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443 F.Supp.2d 1023 (2006) John H. SCHIPP, Administrator of the Estate of Jerome Neufelder, Deceased, and Kenneth Bracy and Jocelyn Bracy, Plaintiffs v. GENERAL MOTORS CORPORATION and Ann Kennedy, Defendants Ann Kennedy, Cross-Plaintiff v. General Motors Corporation, Cross-Defendant. No. 2:03CV00175 JLH. United States District Court, E.D. Arkansas, Helena Division. August 10, 2006. 1024 1025 B. Michael Easley, Easley, Hudson & Houseal, Forrest City, AR, for Plaintiffs. Andrew L. Richardson, Brita H. Cantrell, Mary Quinn-Cooper, William S. Leach, Eldridge Cooper Steichen & Leach, P.L.L.C, Tulsa, OK, D. Keith Fortner, William H. Edwards, Jr., Barber, McCaskill, Jones & Hale, P.A., Little Rock, AR, for General Motors Corporation. 1026 Justin N. Joy, Bruce A. McMullen, Michael L. Robb, Thomason, Hendrix, Harvey, Johnson & Mitchell, Memphis, TN, for Ann Kennedy. OPINION AND ORDER HOLMES, District Judge. Ann Kennedy has filed a crossclaim against General Motors in which she alleges that the accident at issue in this case was caused by a defect in the pickup truck that she was driving when the accident occurred. Her lawyers have engaged Drs. Jahan Rasty and Dale Wilson as expert witnesses to testify regarding the alleged defect. General Motors has moved to exclude the testimony of Rasty and Wilson pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and for summary judgment. Both parties have submitted affidavits and deposition transcripts, thoroughly briefed the issues, and presented evidence and argument at a Daubert hearing. After careful consideration of the evidence and arguments, the Court excludes the testimony of Rasty and Wilson as unreliable but denies summary judgment in favor of General Motors. I On July 24, 2002, Kennedy was driving a 2001 Chevrolet Silverado westbound on Interstate Highway 40 when she lost control of the vehicle, crossed the center median, and struck two other vehicles. Kennedy testified that the Silverado began weaving, that she suddenly lost the ability to control the direction of the vehicle, and that the vehicle then shot across the median. Her husband, Thomas Kennedy, who was in the vehicle with her, testified that he saw the right front fender go down and then come up. Next, he saw the left front fender go down "markedly," followed again by the right side. He testified that each time a side went down, it went down further and "got worse." He testified that when the right side went down, the front end of the Silverado moved toward the right; when the left side went down, the front end of the vehicle moved towards the left. Mr. Kennedy told his wife during this process not to oversteer, but after the right dip, left dip, and another right dip, the vehicle "took off across the median." Kennedy claims that her vehicle's left torsion bar adjuster, which is part of the suspension system, was defective.[1] A suspension system functions to isolate vehicle occupants from road surface irregularities and, although it is distinct from the steering system, contributes to the ride and handling characteristics of the vehicle. The Silverado's front suspension system was a torsion bar suspension system. The torsion bar, which is a steel or steel composite shaft, functions as a spring in the suspension system and controls the vertical position of the suspension. It is connected from a lower control arm to an adjustable mount at the torsion bar cross member. A hexagonal hole of the lower control arm accepts the hexagonal-shaped front end of the torsion bar; the torsion bar adjuster receives and secures the hexagonal-shaped back end of the torsion bar; and the torsion bar cross member houses the torsion bar adjuster. The torsion bar adjuster allows adjustment of the ride height of each side's front suspension in order to ensure level height at rest. Either before or during the accident, the left-side torsion bar adjuster was broken into two pieces along a vertical plane at the six o'clock and twelve o'clock positions of the hexagonal hole. A piece of the 1027 fractured torsion bar adjuster in the shape of a "y" was recovered; the remaining "u" shaped piece was never found.[2] The experts disagree as to how and when the torsion bar adjuster broke. General Motors' experts say that it broke due to impact forces from the accident. Kennedy's experts, Rasty and Wilson, say that some unspecified manufacturing or material defect in the torsion bar adjuster induced a fracture along the hexagonal hole which, in turn, caused the torsion bar adjuster to break under normal operating forces. Rasty and Wilson say that the fracture originated in the lower portion of the torsion bar adjuster at the six o'clock position of the hexagonal hole. According to their testimony, the torsion bar adjuster was completely fractured at the six o'clock position of the hexagonal hole and partially fractured at the twelve o'clock position for a significant period of time before the accident, at least weeks but possibly months, and that the torsion bar adjuster completely fractured at the twelve o'clock position immediately before the accident, which caused the torsion bar adjuster to break into two pieces. Rasty offers the additional opinion that the fracture at the twelve o'clock position caused the accident. He says that the final fracture of the torsion bar adjuster meant that the torsion bar adjuster would no longer support the weight of the truck, which shifted the center of gravity of the truck to the left and caused Kennedy to lose control.[3] II. Rasty is an associate professor of mechanical engineering at Texas Tech University. He teaches mechanical metallurgy and fracture and failure analysis, among other things. Wilson is a professor of mechanical engineering at Tennessee Tech University. He researches in the areas of fracture analysis and failure mechanics, among other things. Except for Rasty's qualification to opine that the fracture of the torsion bar caused the accident, General Motors does not dispute the qualifications of Rasty and Wilson to testify as experts in the area of failure analysis. General Motors does, however, contend that their testimony should be excluded under Daubert. "The opinion of a qualified expert witness is admissible if (1) it is based upon sufficient facts or data, (2) it is the product of reliable principles and methods, and (3) the expert has applied the principles and methods reliably to the facts of the case." Fireman's Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054, 1057 (8th Cir.2005) (citing FED.R.Evm. 702). The inquiry "entails a preliminary assessment of whether the reasoning or methodology underlying the testing is scientifically valid and of whether the reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796. "Ordinarily, a key question to be answered . . . will be whether [a theory] can be (and has been) tested." Id. at 593, 113 S.Ct. at 2796. Scientific methodology is "based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry." Id. (internal quotation marks and citations omitted). Other factors may include: whether the theory has been subjected to peer review and publication; what the known or potential rate of 1028 error is; the existence and maintenance of standards controlling the technique's operation; whether the theory has received "general acceptance" in the relevant scientific community, whether the expertise was developed for litigation or naturally flowed from the expert's research; whether the proposed expert ruled out alternate explanations; and whether the expert sufficiently connected the proposed testimony with the facts of the case. Id. at 593-94, 113 S.Ct. at 2797; Lauzon v. Senco Prods., Inc., 270 F.3d 681, 687 (8th Cir.2001). The inquiry is flexible, but the focus is always on the principles and methodology used by the proffered expert, not on the conclusions generated. Daubert, 509 U.S. at 594-95, 113 S.Ct. at 2797. The gatekeeping obligation that Rule 702 imposes on the district court applies to all expert testimony, including that of engineers, not merely to "scientific" testimony as distinct from "technical" testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The ASM Handbook, an authoritative publication by ASM International,[4] outlines the principal stages of a failure investigation and analysis as follows: Collection of background data and selection of samples Preliminary examination of the failed part (visual examination and record keeping) Nondestructive testing Mechanical testing (including hardness and toughness testing) Selection, identification, preservation, and/or cleaning of all specimens Macroscopic examination and analysis (fracture surfaces, secondary cracks, and other surface phenomena) Microscopic examination and analysis Selection and preparation of metallographic sections Examination and analysis of metallographic sections Determination of failure mechanism Chemical analyses (bulk, local, surface corrosion products, deposits or coatings, and electron microprobe analysis) Analysis of fracture mechanics Testing under simulated service conditions (special tests) Analysis of all the evidence, formulation of conclusions, and writing the report (including recommendations). D.A. Ryder et al., General Practice in Failure Analysis, in 11 ASM HANDBOOK (William T. Becker et al. eds., 2002). Rasty testified that investigations differ according to circumstances and that an engineer might not complete every stage in any particular investigation. Still, these steps define the general practice in failure analysis and represent a reliable method of failure investigation and analysis. Cf. Fireman's Fund, 394 F.3d at 1057-58 (citing Daubert, 509 U.S. at 594, 113 S.Ct. at 2797). Rasty's opinion is based primarily on visual examination. The lower arm fracture surface appears corroded and is darker in color than the upper arm fracture surface. Rasty opined that the surface of the torsion bar adjuster arm at the six o'clock position was rust, which meant, he said, that the surface of the fractured area had been exposed to the elements for a significant period of time before the accident. A small segment of apparent corrosion is found at the fracture at the twelve o'clock position, which according to Rasty, means that a small fracture at the twelve 1029 o'clock position existed a significant time before the accident. Rasty opined that the torsion bar fractured completely at the twelve o'clock position just before the accident, which in turn caused the weight of the vehicle to shift to the left, as a result of which Kennedy lost control. In addition to the corrosion on the fracture surface at the six o'clock position and on a small portion of the fracture surface at the twelve o'clock position, Rasty pointed to the witness marks on the torsion bar adjuster and the nature of the fracture as evidence that the fracture was caused by ordinary pressures of the torsion bar, not by the collision. Rasty did not perform subsequent steps of failure analysis, which is to say that he did not perform steps that might disconfirm his opinion. Rasty testified at his deposition, "if that material [on the fracture surface at the six o'clock position] is not ferrous oxide [rust] and it's predominantly dirt, you know, then basically it shoots ourit shoots our theory basically." Yet, he did not conduct chemical analysis of the material on the fracture surface. Wilson and one of General Motors' experts, Thomas Proft, analyzed the surface of the fracture at the six o'clock position using a scanning electron microscope and energy dispersive spectroscopy, which allows the determination of the chemistry of materials observed in the microscope. It is undisputed that the chemical composition of the material on the fracture surface is typically found in dirt. In fact, Proft analyzed a sample of dirt from the scene of the accident and found that the chemical composition of that dirt matched the chemical composition of the materials found on the fracture surface of the torsion bar adjuster. The material on the fracture surface is not predominantly rust. For purposes of the Daubert motion, the important point is not that Rasty's opinion was wrong; the important point is that he did not do the chemical analysis that could confirm or disconfirm his theory. That analysis is one of the steps in general practice in failure analysis, according to the ASM Handbook. Rasty's failure to perform that step in the analysis leaves his opinionthat the material on the fracture surface at the six o'clock position is rust unreliable. Rasty opined that the torsion bar adjuster was defective. He did not specify the nature of the defect. He did say that the defect must have been present at the time the vehicle left the manufacturer. The evidence showed that this opinion can be tested. The evidence showed that it is feasible to use metallographic sectioning to analyze the material in the torsion bar adjuster to determine the presence or absence of inherent material flaws. Proft performed this analysis and found what one would expect for properly cast ductile iron of the type used in making the torsion bar adjuster.[5] According to Proft, the images showed no casting defect, porosity or shrinkage problems, high temperature oxide, or anything else indicative of a material or manufacturing flaw. Instead, the features indicated what he called a "rapidly running, single-cycle" overload fracture, that is, a fracture caused by stress imposed above the tensile strength of the material. Again, for purposes of the Daubert motion, the significance of this examination is not the conclusions drawn from it by Proft. The significance is that such an examination 1030 is part of general practice in failure analysis. Such analysis is necessary to the formation of a reliable opinion; yet, Rasty did not perform it. He did no metallographic sectioning. He testified that he was told that he could not perform destructive testing. In December 2004, the Court entered an agreed order that prohibited destructive testing except by agreement of the parties or a subsequent order. General Motors sought and obtained (over Kennedy's objection) a court order permitting destructive testing. Kennedy never sought an agreement or an order to permit Rasty to perform the same testing. Rasty was invited to attend the examination performed by Proft, but he did not go. Kennedy could have sought and' would have obtained agreement from the other parties or a court order to allow Rasty to perform metallographic sectioning but did not. For whatever reason, Rasty did not perform the step, which is part of the general practice in failure analysis. His opinion is unreliable. One of the key issues surrounding Rasty's opinion in this case is whether a torsion bar adjuster with a complete fracture at the six o'clock position of the hexagonal hole and a partial fracture at the twelve o'clock position could sustain the weight of the Silverado for any amount of time without breaking. Rasty's opinion assumes that a torsion bar adjuster fractured at the six o'clock position of the hexagonal hole can support the weight of the vehicle for weeks or months. The evidence shows that the issue of whether a fractured torsion bar adjuster would support the weight of the vehicle could be analyzed in two ways. First, mathematical calculations can provide evidence of whether it is possible for a fractured torsion bar adjuster to sustain the weight of the vehicle. Second, the installation of a torsion bar adjuster severed at the six o'clock position on a Silverado can provide evidence of whether the torsion bar adjuster will support the weight of the vehicle. General Motors' experts did both of these things. They performed mathematical calculations that purport to show that a fractured torsion bar adjuster will not sustain the weight of a Silverado. They also severed a torsion bar adjuster at the six o'clock position and installed it on a Silverado. The torsion bar adjuster snapped as soon as the weight of the vehicle was placed on it. Rasty disputes the calculations performed by the General Motors expert, which he says are based on the assumption that the torsion bar adjuster is a straight member, whereas in reality it is a curved member. He also cites "a number of errors" made in the analysis. Yet he did not offer calculations based on the assumption that the torsion bar adjusting arm is a curved member. Rasty says that the calculations of General Motors' expert "do not demonstrate that it is a mathematical impossibility that the torsion bar adjuster could retain the hexagonal end of the torsion bar with the bottom half of the hexagonal loop of the torsion bar adjuster severed." For purposes of this motion, we assume that Rasty is correctthe calculations offered by General Motors do not show that it is mathematically impossible for a severed torsion bar adjuster to support the weight of the vehicle. However, for purposes of the Daubert motion, the important point is that Rasty did not perform calculations to show that it is mathematically possible for a fractured torsion bar adjuster to support the weight of the vehicle. His opinion assumes that it is possible for a torsion bar adjuster fractured at the six o'clock position of the hexagonal loop to support the weight of the vehicle for a significant period of timelong enough for rust to form on the surface of the fracturebut he did no 1031 calculations to determine whether that is possible. Nor did he perform a test by fracturing an adjuster at the six o'clock position and installing it on a Silverado. It should be an easy test to perform. Rasty testified that he thought of performing the test but could not find a vehicle comparable to Kennedy's 2001 Silverado. It is difficult to believe that Rasty could not find a Silverado in or around Lubbock, Texas, where he lives, or that Kennedy's lawyers, who practice in Memphis, Tennessee, could not find one. Even if it is true that Rasty could not find a Silverado of the same generation as the 2001 model, the fact remains that Rasty's opinion in this case rests on a significant assumptionthat a torsion bar adjuster fractured at the six o'clock position of the hexagonal loop could support the weight of a pickup truckand Rasty has not tested the assumption in any manner. To summarize, Rasty's opinions rest largely on visual examination. General practice in failure analysis, as reflected in the ASM Handbook, requires further testing. In this instance, such testing would include chemical analysis of the materials on the fracture surface using scanning electronic microscope analysis, metallographic sectioning, and testing under simulated conditions to see whether a fractured torsion bar adjuster would support the weight of the vehicle. Rasty performed none of these tests. In essence, he adopted a hypothesis but failed to test it. His opinions are therefore unreliable. His testimony is excluded. Wilson, who did perform chemical analysis, testified that the deposits on the fracture surfaces are predominately something other than rust and that only faint traces of rust existed. According to him, for the most part, these deposits "appear to be just deposits" and are "not corrosion products." This fact did not alter Wilson's opinion because his opinion depended more on his belief that the deposits, whatever they are, would have taken weeks or months to form. Wilson conducted no testing to confirm this belief; he relied solely on his past experience of examining fracture surfaces. Wilson also was aware that whether a fractured torsion bar adjuster would support the weight of the vehicle was a critical issue, but he did nothing to determine whether his assumption that a fractured torsion bar adjuster would support the vehicle was true. Wilson discussed the issue with Kennedy's accident reconstructionist but, as he stated at his deposition, he doesn't "think we have ever known [the answer] one way or the other." Wilson admits that he was capable of calculating the amount of force a fractured torsion bar adjuster could withstand if he was provided the proper data, but that he has not performed those calculations. He testified at one point in his deposition that he began performing them but "ended up seeing that I was doing that for a Dodge truck instead of . . . so the dimensions weren'tI didn't have the correct dimensions." Elsewhere, he testified that he had not performed them because he hadn't been asked to. Wilson testified that Kennedy's team had also tried to set up a physical experiment to test this issue but that they "didn't have the capacity to do that experiment." In short, Wilson's opinion suffers from the same lack of testing as Rasty's. His testimony will be excluded. III. A court should enter summary judgment if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. FED.R.CIv.P. 56(c); see also 1032 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847, 850 (8th Cir. 2005). The party moving for summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party carries its burden, the nonmoving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1985) (quoting FED.R.Civ.P. 56(e)) (emphasis in original). A genuine issue for trial exists only if there is sufficient evidence to allow a jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. When a nonmoving party cannot make an adequate showing on a necessary element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The Court is required to view the facts in the light most favorable to the nonmoving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. United States v. Friedrich, 402 F.3d 842, 845 (8th Cir.2005). A supplier of a product is liable for damages when the product supplied was in a defective condition that rendered it unreasonably dangerous and the defective condition was a proximate cause of the harm. ARK.CODE ANN. § 4-86-102. Expert testimony is not necessary in every product liability case. Dancy v. Hyster Co., 127 F.3d 649, 653 (8th Cir.1997) (stating Arkansas law). "Strictly speaking, since proof of negligence is not an issue, res ipsa loquitur has no application to strict liability; but the inferences which are the core of the doctrine remain, and are no less applicable." Higgins v. Gen. Motors Corp., 287 Ark. 390, 699 S.W.2d 741, 743 (1985). "Consequently, [p]roof of a specific defect is not required when common experience teaches the accident would not have occurred in the absence of a defect.'" Dancy, 127 F.3d at 653 (quoting id.). That said, "[t]he mere fact of an accident, standing alone, as where an automobile goes into the ditch, does not make out a case that the product was defective, nor does the fact that it was found in a defective condition after the event, where it appears equally likely that it was caused by the accident itself." Harrell Motors, Inc. v. Flanery, 272 Ark. 105, 108, 612 S.W.2d 727, 729 (1981). "Generally speaking, when a vehicle suddenly goes out of control while being operated, driver error is a likely cause, absent a reliable explanation in the alternative." Yielding v. Chrysler Motor Co., 301 Ark. 271, 275, 783 S.W.2d 353, 355 (1990). Relevant then is the extent to which the plaintiff has negated other possible causes. Dancy, 127 F.3d at 653. As noted, Kennedy testified that the Silverado began weaving and then, after she lost control of the steering, suddenly shot across the median. Her testimony was not that the vehicle pulled to the left; her testimony was that she would turn the steering wheel but the wheels would not respond. The relevant portion of her testimony is as follows: Q. . . . So you're driving down the road and we're getting pretty close to where the accident is going to happen. What is the first thing you notice that made you concerned or was out of the ordinary? A Just that we were kind of weaving on the road. Q Okay. A And I couldn'tI had both hands on the steering wheel. And when I would 1033 turn the steering wheel, I had no control over how the direction the vehicle was going and no control over the steering wheel, the steering at all. Q And did that happen just out of the blue? A Just out of the blue. Q You don't recall hitting anything or making an evasive maneuver or anything like that? A No, I do not. Q Did you hear any noises? A No. Q Okay. And I assume A Not that I remember. Q You will have heard some noises once the accident scenario was happening and you are colliding with things, but A Yes. Q But as far as when you experienced this inability to steer the vehicle, there was no noise, no A Not that I remember. Q Okay. And did youdid you make any comment or remark when you first experienced this phenomenon of not being able to control the steering? A The only thing that I remember is my husband saying, don't over steer. And I said, I'm not. I just had no control over it. And then, the next thing I know, we were shooting across the median. And I remember say, oh, no. And Q Thethis absence of ability to control the steering, was that during the time that you're shooting across the median? A No. Prior to it. Q Before? A Prior. Q And so, is it your belief that you went from the outside lane through the inside lane A Yes. Q to get to the median? Okay. Didn't hit anything at this point? A No. Q Howwhat is your best estimate of how long you experienced this inability to control the steering wheel before you hit the median? A A matter of seconds probably. Q Very, very fast? A I don't know. Somewhereyou know, those things just happen so fast, you can't even tell. 30 to 60 seconds, I would guess. It wasn't long at all. Didn't have time to think about how to correct the situation. Q Do you recall your husband making any other comment other than don't over steer? A No, I don't. * * * Q I hate to go back through the actual accidents again, because I know it is difficult for you. But now let [me] make sure I'm understanding. The inability the inability to steer is what I want to ask you another question about. Are you telling me that you were able to turn the steering wheel and it simply did not control the wheels, or you were not physically able to turn the steering wheel? A I believe that I was able to turn the steering wheel, but nothing was responding. Q So you think you were able to turn the steering wheel to the right and to the left A And was getting no response. Q and that action was simply not having an effect on the front wheels? A That's correct. Mr. Kennedy testified that he witnessed the front fender drop, once on the right, once on the left, and then again on the 1034 right. Mr. Kennedy testified that the direction of the vehicle would move in the direction of the side which dropped. Right before the car "took off across the median," Mr. Kennedy told his wife not to oversteer. Even if Rasty and Wilson were permitted to testify that the torsion bar adjuster snapped shortly before the accident, there is no evidence that the failure of the torsion bar adjuster would cause the vehicle to move in the manner described by either of the Kennedys. Failure mode analyses by General Motors lists as potential effects of a failed torsion bar adjuster, among other things, "ride degradation" and "potential steer in-put." David Wood, an expert for General Motors, testified in his affidavit that: [i]f a torsion bar or a torsion bar adjuster were to break, the vertical "at rest" height of the affected wheel position would no longer be maintained. That wheel position's suspension would "drop" to a fully deflected position, and the lower control arm would come to rest (or "bottom out") against a urethane jounce bumper. The jounce bumper would then be carrying the vertical load (instead of the vertical load being converted to a twisting torque in the torsion bar). This would result in the affected corner of the vehicle riding significantly lower than the normal "at rest" position. This change in height would be approximately four to five inches with no load in the vehicle, and the vehicle would "lean" approximately four to five degrees towards the affected side as a result. A small steering torque (or pull) could occur as a result; however, this would not change the driver's ability to steer and to control the vehicle's path. Kennedy initially offered Rasty's opinions as to what impact the alleged failure would have on Kennedy's driving.[6] At the Daubert hearing, however, Kennedy agreed that Rasty was not qualified to testify as an expert on the issue of the Silverado's handling and stability. No one then has stated that a failure of the torsion bar adjuster would cause Kennedy's Silverado to take off uncontrollably to the left as Kennedy described or to cause the front fenders alternatively to go up and down as her husband described. Cf. Higgins, 287 Ark. at 394, 699 S.W.2d at 744. Wood's testimony that a failure of the torsion bar adjuster would not change the driver's ability to steer is undisputed. The issue, then, is whether the testimony of Kennedy and her husband suffices to defeat General Motors' motion for summary judgment. For purposes of ruling on the motion for summary judgment, the Court is obligated to assume that the sworn testimony of Kennedy and her husband is true. Johnson v. Univ. of Iowa, 431 F.3d 325, 329 (8th Cir.2005). If that testimony is true, driver error is negated; and, if that testimony is true, a nearly new Silverado experienced some failure in the steering mechanism while Kennedy was driving at 65 miles per hour on an interstate highway. In Higgins, the Arkansas Supreme Court stated, "We note that under appropriate circumstances, a user's testimony alone may be sufficient evidence." Higgins, 1035 287 Ark. at 392, 699 S.W.2d at 743. In support of that proposition, the court cited, among other authorities, Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 686 P.2d 925 (1984). In Stackiewicz, the plaintiff and her mother testified that, as they were driving at 50-55 miles per hour, the steering wheel locked and would not turn, which caused an accident. Plaintiffs counsel "retained various experts who were unable to find a defect in the steering mechanism." Id. at 927. A jury returned a verdict for the plaintiff. The trial court granted judgment notwithstanding the verdict. The Supreme Court of Nevada reversed saying, "evidence of a steering malfunction which resulted in the driver losing control of the vehicle might properly be accepted by the trier of fact as sufficient circumstantial proof of a defect, or an unreasonably dangerous condition, without direct proof of the mechanical cause of the malfunction." Id. at 929. Other courts, presented with a steering malfunction and similar proof, have ruled in line with Stackiewicz. See Stewart v. Ford Motor Co., 553 F.2d 130, 140 (D.C.Cir.1977) ("Plaintiffs were entitled to ask the jury to infer that the accident was caused by some unknown defect which caused the steering system to malfunction."); Buckley v. Gen. Motors Corp., 2004 WL 725933 (S.D.N.Y. 2004) (Plaintiffs testimony that the vehicle veered in a direction she did not steer and failed to slow when she applied the brakes avoided summary judgment even though her expert was excluded.); Dennis v. Ford Motor Co., 332 F.Supp. 901, 903 (W.D.Pa. 1971), aff'd, 471 F.2d 733 (3d Cir.1973) ("If he is unable by expert testimony to pinpoint the defect he can still fall back on the fact of malfunction as evidence of a defect."); Millette v. Radosta, 84 Ill.App.3d 5, 39 Ill.Dec. 232, 404 N.E.2d 823, 835 (1980) ("Radosta testified that the steering suddenly failed and the failure caused the accident. This testimony, alone, if believed, established that the vehicle was defective at the time of the accident."); Walczak v. Gen. Motors Corp., 34 Ill. App.3d 773, 340 N.E.2d 684 (1976) (Plaintiffs testimony that the steering locked in a new vehicle was sufficient. Proof of a specific defect was not required.); Moraca v. Ford Motor Co., 66 N.J. 454, 332 A.2d 599 (1975) (Plaintiffs testimony that the steering mechanism locked on his nearly new vehicle was sufficient circumstantial evidence of a defect.); Caprara v. Chrysler Corp., 71 A.D.2d 515, 423 N.Y.S.2d 694, 697 (N.Y.App.Div.1979) ("Plaintiffs testimony that the steering wheel `seized right up' and that it `would not turn' was sufficient to establish prima facie in strict products liability that a defect . . . existed. . . ."); Ducko v. Chrysler Motors Corp., 433 Pa.Super. 47, 639 A.2d 1204, 1207 (1994) ("Mrs. Ducko's testimony of the erratic performance of the vehicle's steering and braking systems . . . was sufficient to make a prima facie case of a manufacturing defect in the vehicle."); MacDougall v. Ford Motor Corp., 214 Pa.Super. 384, 257 A.2d 676, 680 (1969) ("Mrs. MacDougall's testimony of the bizarre steering action both before and when the accident occurred establishes a mechanical malfunction in the absence of abnormal use which prevented her from maintaining control of the car."). See also Christopher H. Hall, Strict Products Liability: Product Malfunction or Occurrence of Accident as Evidence of Defect, 65 A.L.R.4th 346 (1988). General Motors relies upon an opinion by Judge Eisele in Ruminer v. General Motors Corp., No. 4:03CV00349 GTE, 2006 WL 287945 (E.D.Ark. Feb. 6, 2006) (Document # 149). There, the plaintiff contended that the fact that the seatbelt system did not restrain him, or did not restrain him adequately, was sufficient to establish that the seatbelt system was defective. Judge Eisele held that, in the absence of proof of a specific defect, the plaintiff must negate other causes of the seatbelt failure. *1036 The evidence showed that a seatbelt may fail for many reasons other than a manufacturing or design defect. Judge Eisele said, "Most, if not all, of these `potential causes' appear to occur post-manufacture." Id. at 9. Hence, the plaintiff did not negate possible causes other than a defect. Id. at 15. Here, the present state of the evidence leaves only two alternative causes for the accident: either Kennedy lost control of the vehicle through driver error, or she lost control due to a malfunction of the steering mechanism. Her testimony, and that of her husband, if believed, negates driver error. It is for a jury to decide whether the Kennedys should be believed. If. the jury believes the testimony of Kennedy and her husband, it will find that the accident was not caused by driver error but by some sudden, unexpected malfunction in the steering mechanism of a nearly new vehicle. According to Stackiewicz, and the other cases cited, that evidence is sufficient circumstantial proof of a defect to permit a finding against the manufacturer. Therefore, General Motors' motion for summary judgment is denied. CONCLUSION For the reasons herein, the Court grants the motion of General Motors to exclude from evidence the testimony of Dr. Jahan Rasty and Dr. Dale Wilson. Document # 136. The Court denies summary judgment in favor of General Motors on Kennedy's crossclaim. Document # 138. General Motors also moved for summary judgment on the plaintiffs' complaint against it. For the same reasons that the Court denies General Motors' motion for summary judgment on the crossclaim of Ann Kennedy, the Court also denies summary judgment on plaintiffs' claims against General Motors. Document # 30. Kennedy's motion to strike is denied as moot. Document # 153. NOTES [1] She also alleges that the vehicle was defective in other unspecified ways. See ¶ 15 of Kennedy's crossclaim. Document # 47. [2] Photographs of the torsion bar adjuster are attached to this opinion. [3] At the Daubert hearing, Kennedy conceded that Rasty is not qualified to opine that the fracture of the torsion bar adjuster caused Kennedy to lose control. Kennedy argued that whether the fracture of the torsion bar adjuster would cause her to lose control is nevertheless a jury question. [4] ASM International is a professional organization for those who work with metals, composites, ceramics, polymers, and electronic materials. [5] At the Daubert hearing, Rasty testified on examination by Kennedy's lawyer that the torsion bar adjuster was made of cast steel. When told by General Motors' lawyer that it actually is made of ductile iron, Rasty said, "it's in the iron family is what I meant" and "I misspoke on that." [6] Rasty testified that a defective torsion bar adjuster would "affect the handling of a vehicle and more likely than not create a risk of a loss of control when [it] failed." He opined that complete fracture of the left torsion bar adjuster in a vehicle traveling 60 to 70 miles per hour (the speed that Kennedy was traveling) and maneuvering a right curve, would "result in the sudden drop in height of the left side of the vehicle, which in turn would cause the momentum of the vehicle to suddenly shift to the left creating a sudden pull to the left." According to him, this sudden drop and pull would result in a loss of control of the vehicle and the vehicle would veer left.	{ "pile_set_name": "FreeLaw" }
87 F.3d 1317 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.Armando CANEZ, Plaintiff-Appellant,v.CITY OF PHOENIX; Johnny Vasquez, Defendants-Appellees. No. 96-15386. United States Court of Appeals, Ninth Circuit. Submitted June 11, 1996.Decided June 19, 1996. Before: CANBY, NOONAN, and LEAVY, Circuit Judges. 1 MEMORANDUM* 2 Arizona state prisoner Armando Canez appeals pro se the district court's order denying his motion to vacate the district court's prior dismissal of his civil rights action brought under 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand. 3 * Background 4 In August 1995, Canez filed a pro se civil rights complaint and a motion for leave to proceed in forma pauperis in the district court. He failed to sign the complaint, but signed the declaration in support of his request to proceed in forma pauperis. 5 On September 27, 1995, the district court issued an order: (1) ruling that Canez's failure to sign the complaint was in violation of Fed.R.Civ.P. 11(a); and (2) staying Canez's action for thirty days to allow Canez to file a signed, amended complaint. The court warned Canez that if he failed to file the amended complaint within thirty days, the Clerk of the Court was directed to enter dismissal of the action pursuant to Fed.R.Civ.P. 41(b). The court engaged in no discussion of the merits of Canez's complaint. 6 On October 31, 1995, having received no amended complaint from Canez, the Clerk of the Court entered a judgment dismissing the action. 7 On February 5, 1996, Canez filed a "motion to vacate" in the district court, stating that on January 29, 1996, he was notified by the Clerk of the Court, in response to his inquiry as to the status of his case, that his case had been dismissed. In his motion, Canez stated that he had never received any order from the court, and asked the court to order the Clerk of Court to send him a copy "so that he could cure any deficiencies." 8 On February 13, 1996, the district court issued an order denying Canez's motion to vacate: (1) acknowledging that Canez had contended in his motion to vacate that he had not received any order of dismissal in this case; (2) construing Canez's motion as a "motion to inquire" rather than a "motion to vacate"; and (3) advising Canez that judgment had been entered in his case on October 31, 1995 and that, therefore, "it is too late for Plaintiff to 'cure' any defects alleged in his complaint." The district court did not, however, make any finding as to whether Canez received either the court's September 27, 1995 order directing him to file an amended complaint within thirty days or the judgment dismissing his case. 9 On February 20, 1996, Canez filed a notice of appeal repeating that he had never received a copy of either the September 27, 1995 order or the judgment dismissing his case. II 10 Construction of Canez's "Motion to Vacate" 11 Although neither Canez nor the district court indicated what Federal Rule of Civil Procedure governed Canez's February 5, 1996 "Motion to Vacate," a motion which challenges the merits of the court's final judgment is properly brought under Fed.R.Civ.P. 60(b) or 59(e). See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1441-42 (9th Cir.1991); see also Hammer v. Drago, 940 F.2d 524, 525 (9th Cir.1991) (motion styled an "Application to Set Aside Right to Attach Order And Release Attached Property, Etc." treated as Rule 60(b) motion). Here, because Canez's motion was not timely under Rule 59(e), it is properly construed as a Rule 60(b) motion. Cf. United States v. Nutri-Cology, Inc., 982 F.2d 394, 396-97 (9th Cir.1992) (a motion to reconsider, however labelled, served within ten days of the entry of an order that could have been brought under Rule 59(e) construed as a 59(e) motion). III Standard of Review 12 The denial of a Fed.R.Civ.P. 60(b) motion is reviewed only for abuse of discretion, and must be affirmed unless the district court erred in ruling that sufficient grounds for setting aside the judgment were not shown. Browder v. Director, Dep't of Corrections of Illinois, 434 U.S. 257, 263 n. 7 (1978); Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir.1989). An appeal from a Rule 60(b) motion brings up only the denial of the motion for review, not the underlying judgment. Molloy, 878 F.2d at 315. 13 In order to decide whether the district court abused its discretion by denying Canez's Rule 60(b) motion, we must determine whether the district court's previous order dismissing Canez's action for failure to comply with the court's order was proper. III Discussion 14 On appeal, Canez contends that the district court erred in denying his motion to vacate, and refusing to allow him to amend his complaint out of time, because he never received a copy of the order directing him to amend his complaint or the judgment dismissing his case. 15 A district court may dismiss an action for failure to comply with any order of the court. Fed.R.Civ.P. 41(b); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 506 U.S. 915 (1992). In addition, a district court may dismiss an action where the court has provided a pro se litigant with notice of the deficiencies in his complaint and leave to amend before dismissing the action. See McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir.1992). 16 Here, the district court's September 27, 1995 order notified Canez of his failure to sign his complaint and directed him to file an amended, signed complaint within thirty days, which Canez failed to do. The court's September 27, 1995 order conforms with the requirement of notification and opportunity to amend set forth in McGuckin. Thus, if Canez received a copy of the order and simply failed to comply with it, the district court's dismissal of his action would be proper. Fed.R.Civ.P. 41(b); McGuckin, 974 F.2d at 1055; Ferdik, 963 F.2d at 1260. 17 Canez alleged, however, in his February 5, 1996 motion to vacate that he never received the court's September 27, 1995 order. Thus, he may not have received the requisite notice of the deficiencies in his complaint and an opportunity to amend. See McGuckin, 974 F.2d at 1055. The district court, moreover, failed to properly construe Canez's motion to vacate as a Rule 60(b) motion, and made no finding as to whether Canez received a copy of the September 27, 1995 order. 18 Accordingly, we remand to the district court for the district court to make a finding as to whether Canez received the September 27, 1995 order and, thus, received notice of the deficiencies in his complaint and an opportunity to amend in accordance with McGuckin, 974 F.2d at 1055. After the district court makes such a finding, the court may proceed in a manner consistent with this memorandum disposition. 19 VACATED and REMANDED. * The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** 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	{ "pile_set_name": "FreeLaw" }
9 F.3d 103 Ruizv.Morales* NO. 93-04405 United States Court of Appeals,Fifth Circuit Nov 03, 1993 1 Appeal From: E.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
Filed 11/15/05 by Clerk of Supreme Court IN THE SUPREME COURT STATE OF NORTH DAKOTA 2005 ND 194 In the Interest of J.F., a child Winston Pottenger, Director, Petitioner and Appellee v. J.F., a child, Respondent and Appellee and her parents, J.F., and D.G., Respondents and Appellants No. 20050046 Appeal from the Juvenile Court of Pierce County, Northeast Judicial District, the Honorable John C. McClintock, Jr., Judge. AFFIRMED. Per Curiam. Galen J. Mack (on brief), State’s Attorney, P.O. Box 196, Rugby, N.D. 58368- 0196, for petitioner and appellee. Scott R. Thompson (on brief), Thompson & Thompson, P.O. Box 696, Devils Lake, N.D. 58301-0696, for respondent and appellee. Eric P. Baumann (on brief), Slorby Law Office, P.O. Box 3118, Minot, N.D. 58702-3118, for respondents and appellants. In re J.F. No. 20050046 Per Curiam. [¶1] J.F. and D.G. appealed from district court orders finding their daughter, J.F., to be an unruly and deprived child and placing her in the custody of Pierce County Social Services for twelve months. J.F. and D.G. alleged that the trial court erred in finding that J.F. was a deprived child and in various evidentiary and procedural rulings during trial. The orders are affirmed under N.D.R.App.P. 35.1(a)(2) and (4). [¶2] Gerald W. VandeWalle, C.J. Dale V. Sandstrom Carol Ronning Kapsner Daniel J. Crothers William F. Hodny, S.J. [¶3] The Honorable William F. Hodny, Surrogate Judge, sitting in place of Maring, J., disqualified.	{ "pile_set_name": "FreeLaw" }
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Webb v. United States Nos. 01-5682/5683 ELECTRONIC CITATION: 2003 FED App. 0228P (6th Cir.) File Name: 03a0228p.06 Canale, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________ UNITED STATES OF AMERICA , X RONALD LEE GILMAN, Circuit Judge. Bobby Webb Plaintiff-Appellee, - and his son, Preston Webb, pled guilty to both conspiring to - possess and with actually possessing Dilaudid tablets, each - Nos. 01-5682/5683 with the intent to distribute, in violation of 21 U.S.C. §§ 846 v. - > and 841(a)(1). On appeal, the Webbs argue that the district , court improperly (1) enhanced their offense levels for BOBBY WEBB (01-5682) and - possession of a firearm under United States Sentencing PRESTON WEBB (01-5683), - Guidelines § 2D1.1(b)(1); (2) denied them a reduction for Defendants-Appellants. N acceptance of responsibility under Sentencing Guidelines § 3E1.1; and (3) considered the full weight of the tablets in Appeal from the United States District Court computing their offense levels. In addition, Preston Webb for the Western District of Tennessee at Memphis. argues that the district court improperly enhanced his offense No. 00-20130—Jon Phipps McCalla, District Judge. level for being a manager of the conspiracy. For the reasons set forth below, we AFFIRM the judgments of the district Submitted: June 20, 2003 court. I. BACKGROUND Decided and Filed: July 11, 2003 A. Factual background Before: BOGGS and GILMAN, Circuit Judges; DOWD, Senior District Judge.* Bobby and Preston Webb conducted a fencing operation in Memphis, Tennessee by paying for stolen merchandise with _________________ Dilaudid pills, a synthetic heroin. Law enforcement officers began investigating the Webbs in February of 2000. On COUNSEL March 29, 2000, federal search and seizure warrants were ON BRIEF: James O. Marty, Brett B. Stein, FINLEY & served on the Webbs’ businesses and residences. At the STEIN, Memphis, Tennessee, for Appellants. Stuart J. business address where all of the undercover purchases of Dilaudid had been made, the officers recovered stolen merchandise, Dilaudid tablets, a Smith & Wesson .38-caliber revolver, and a disassembled 9mm submachine gun. * The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern District of Ohio, sitting by designation. 1 Nos. 01-5682/5683 Webb v. United States 3 4 Webb v. United States Nos. 01-5682/5683 The officers also interviewed Preston Webb at the time of facts were undisputed), this court has held that our standard the search. He admitted that he and his father, Bobby, had of review of a district court’s application of provisions of the been dealing in Dilaudid for approximately three months. Sentencing Guidelines to the facts should be treated Bobby Webb also spoke to the officers on the day of the deferentially and should not be disturbed unless clearly search. Later that spring, local law enforcement officers erroneous. United States v. Jackson-Randolph, 282 F.3d 369, received information that the Webbs were still dealing drugs. 389-90 (6th Cir. 2002) (holding that the Supreme Court’s On June 15, 2000, the Webbs were arrested and a second reasoning in Buford leads to the use of a deferential standard search took place at their business. More Dilaudid tablets of review in the application of the Sentencing Guidelines were seized at that time. under circumstances involving fact-bound determinations). B. Procedural background B. The district court did not err in enhancing the defendants’ offense levels for possession of a firearm A superseding indictment on October 24, 2000 charged the under Sentencing Guidelines § 2D1.1(b)(1) Webbs both with conspiring to possess and with actually possessing Dilaudid, each with the intent to distribute. On The Webbs argue that the district court erred in enhancing February 8, 2001, both defendants pled guilty to all counts. their sentences for possession of a firearm because the The Webbs’ sentencing hearing took place in May of 2001. government did not present evidence sufficient to establish Although they did not object to the facts as presented in the that they were aware of the presence of the .38-caliber Presentence Report, they filed four objections to the revolver in their store. In support of their contention, the recommendations contained therein that mirror the arguments Webbs point to the sentencing-hearing testimony of Joyce they make on appeal. The probation officer then filed an Webb, Bobby’s wife and Preston’s mother, to the effect that addendum to the Presentence Report, responding to the the gun belonged to her. Webbs’ objections. After conducting a sentencing hearing, the district court adopted the Presentence Report as amended Under Sentencing Guidelines § 2D1.1(b)(1), the offense and sentenced both Bobby and Preston Webb to 235 months level may be increased by two levels if a dangerous weapon of imprisonment. This timely appeal followed. was possessed during an offense involving drugs. The commentary provides that the enhancement “should be II. ANALYSIS applied if the weapon was present, unless it was clearly improbable that the weapon was connected with the offense.” A. Standard of review U.S. Sentencing Guidelines Manual § 2D1.1, cmt. n.3 (2000). To start with, the government must prove by a preponderance In reviewing a district court’s application of the Sentencing of the evidence that the defendant actually or constructively Guidelines, we “accept the findings of fact of the district court possessed the weapon and that such possession was during unless they are clearly erroneous and . . . give due deference the commission of an offense involving drugs. United States to the district court’s application of the guidelines to the v. Dunlap, 209 F.3d 472, 477 (6th Cir. 2000). The burden facts.” 18 U.S.C. § 3742(e). In light of Buford v. United then shifts to the defendant to prove that any connection States, 532 U.S. 59, 63-66 (2001) (holding that the district between the drug offense and the weapon is clearly court was entitled to deference in its application of § 4B1.2 of improbable. Id. the Sentencing Guidelines in a case where the underlying Nos. 01-5682/5683 Webb v. United States 5 6 Webb v. United States Nos. 01-5682/5683 At the sentencing hearing, the district court considered position to evaluate a defendant’s acceptance of Joyce Webb’s testimony in its entirety, but found it responsibility. For this reason, the determination of the unconvincing. She could not identify the type of gun found sentencing judge is entitled to great deference on review.” at the defendants’ place of business or even describe what the U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n.5 (2000). gun looked like. Although she claimed that she kept it for protection at her restaurant, the gun was found at the Consequently, the Webbs’ reliance on the older cases of defendants’ adjacent business location where all of the United States v. Jeter, 191 F.3d 637 (6th Cir. 1999) undercover drug transactions had occurred. Further, there (reviewing de novo an application of the acceptance of was ample evidence provided by the investigating officers of responsibility adjustment to uncontested facts), and United where the gun was located in relation to the Webbs’ drug States v. Tilford, 224 F.3d 865 (6th Cir. 2000) (same), and the dealing. The district court found that the government had met government’s reliance on United States v. Childers, 86 F.3d its burden and that the Webbs had not demonstrated that the 562 (6th Cir. 1996) (same), are both misplaced. The newer gun’s connection with the offense was clearly improbable. deferential standard adopted by Buford and its progeny is now Because they rely on essentially the same arguments and controlling. evidence on appeal, the Webbs have not demonstrated that the district court’s application of the enhancement was clearly In response to the defendants’ objection regarding the erroneous. proposed denial of a reduction for acceptance of responsibility, the probation officer filed an addendum to the C. The district court did not err in denying the Presentence Report. Both Bobby and Preston were defendants a reduction for acceptance of interviewed by the probation officer regarding their responsibility under Sentencing Guidelines § 3E1.1 acceptance of responsibility. Bobby expressed remorse, but also disagreed with the factual accuracy of his conduct as As discussed in Part II.A. above, the Supreme Court in related in the Presentence Report. The probation officer Buford applied a deferential standard of review to a district found that Bobby’s statements were inconsistent with his court’s application of Sentencing Guidelines § 4B1.2 to the guilty plea and his failure to earlier object to the facts as undisputed facts. Buford, 532 U.S. at 64-65. The Court noted presented in the Presentence Report. See U.S. Sentencing “the fact-bound nature of the legal decision, the Guidelines Manual § 3E1.1, cmt. n.1(a) (2000) (“[A] comparatively greater expertise of the District Court, and the defendant who falsely denies, or frivolously contests, relevant limited value of uniform court of appeals precedent . . . .” Id. conduct that the court determines to be true has acted in a at 66. Following the reasoning of Buford and of this court in manner inconsistent with acceptance of responsibility.”). Jackson-Randoph, 282 F.3d at 388-90, an unreported decision has applied the deferential standard of review to § 3E1.1. The denial of Preston’s request for an acceptance-of- United States v. Miller, No. 01-5581, 2002 WL 1894647, *5 responsibility reduction is a closer case. Although Preston (6th Cir. Aug. 15, 2002) (holding that the district court’s expressed greater remorse than Bobby and did not engage in denial of a reduction for acceptance of responsibility is “a drug trafficking subsequent to his guilty plea, the probation factual question, and should be accorded great deference and officer nevertheless recommended that the reduction be should not be disturbed unless clearly erroneous.”). Section denied based upon Preston’s admission of continuing illegal 3E1.1's commentary further supports the use of a deferential conduct after the initial search warrants were executed in standard of review: “The sentencing judge is in a unique March of 2000. The probation officer concluded that Nos. 01-5682/5683 Webb v. United States 7 8 Webb v. United States Nos. 01-5682/5683 Preston’s ongoing criminal activity up to the time of his arrest E. The district court did not err in enhancing Preston in June was inconsistent with the acceptance of responsibility. Webb’s offense level as a manager of the conspiracy Using the appropriate standard of review, we conclude that the district court did not err in determining that Preston’s Finally, Preston Webb argues that the district court erred in conduct was inconsistent with the acceptance of giving him a two-level enhancement as a manager of the responsibility. conspiracy under Sentencing Guidelines § 3B1.1(c). The district court, however, was provided with ample evidence at As § 3E1.1 of the Sentencing Guidelines provides, the the sentencing hearing to find that Preston held managerial district court is to make an acceptance-of-responsibility and supervisory roles essentially equal to those of his father. determination based upon the facts presented. The entry of a U.S. Sentencing Guidelines Manual § 3B1.1, cmt. n.4, states guilty plea does not obligate the court to find that a reduction that “there can . . . be more than one person who qualifies as is appropriate. Id., cmt. n.3. In this case, the district court a leader or organizer of a criminal association or conspiracy.” adopted the Presentence Report as it had been supplemented In addition, the undisputed facts in the record show that in response to the defendants’ objections. Based upon the Preston ran the organization together with his father and that evidence in the record, the district court’s finding was not five or more people were involved in the conspiracy. The clearly erroneous. district court thus did not err in finding that Preston should receive a two-level enhancement for his managerial role in the D. The district court did not err in calculating the weight conspiracy. of the Dilaudid tablets for purposes of determining the defendants’ base offense levels III. CONCLUSION Although the Webbs argue that the conversion table in For all of the reasons set forth above, we AFFIRM the Sentencing Guidelines § 2D1.1 is unfair and in violation of judgments of the district court. the Fourteenth Amendment, they fail to provide any support for their argument. In any event, the district court properly considered the weight of the Dilaudid tablets in determining the Webbs’ base offense level. The Sentencing Guidelines provide that “[u]nless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.” Id., § 2D1.1(c)(A). This court held in United States v. Landers, 39 F.3d 643, 646 (6th Cir. 1994), that the entire weight of Dilaudid tablets should be used in calculating the base offense level. We thus find no error by the district court in determining the Webbs’ base offense level under Sentencing Guidelines § 2D1.1.	{ "pile_set_name": "FreeLaw" }
Frank v 1100 Ave. of the Ams. Assoc. (2018 NY Slip Op 01875) Frank v 1100 Ave. of the Ams. Assoc. 2018 NY Slip Op 01875 Decided on March 20, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on March 20, 2018 Friedman, J.P., Richter, Mazzarelli, Kapnick, Gesmer, JJ. 156632/13 -698 6033 [1] James Frank, et al., Plaintiffs, v1100 Avenue of the Americas Associates, et al., Defendants-Respondents, Statewide Demolition Corp., Defendant-Appellant. Cascone & Kluepfel, LLP, Garden City (Olympia Rubino of counsel), for appellant. Smith, Mazure, Director, Wilkins, Young & Yagerman, P.C., New York (Stacy I. Malinow of counsel), for respondents. Order, Supreme Court, New York County (Jennifer G. Schechter, J.), entered on or about February 3, 2017, which, insofar as appealed from, granted the motion of defendants 1100 Avenue of the Americas Associates (1100 Associates), JT Magen & Co., Inc. (JT Magen), and Home Box Office Inc. (HBO) (together movants) for summary judgment on their cross claim against Statewide Demolition Corp. for contractual indemnification, unanimously affirmed, without costs. The record shows that, pursuant to its contract with HBO, JT Magen was generally responsible for coordinating and scheduling subcontractors' work, and for site safety. Standing alone, this is not enough to impose liability in negligence on JT Magen for the injuries allegedly sustained by plaintiff, who was an employee of Hugh O'Kane Electric Co., one of JT Magen's subcontractors. Nor is there any evidence that JT Magen directly controlled the work of Statewide, the demolition contractor, or of any other basis for a finding that JT Magen was negligent (see Bisram v Long Is. Jewish Hosp., 116 AD3d 475, 476 [1st Dept 2014]; Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 AD3d 446, 449 [1st Dept 2013]; O'Sullivan v IDI Constr. Co., Inc., 28 AD3d 225, 226 [1st Dept 2006], affd 7 NY3d 805 [2006]). Statewide's argument that the indemnity clause contained in the purchase order issued to it by JT Magen violates the General Obligations Law's proscription against exempting owners and contractors from liability for their own negligence (see General Obligation Law § 5-322.1) is unpreserved and without merit. The indemnity clause expressly limits its own scope "[t]o the fullest extent permitted by law." Such qualifying language "limit[s] [a party's] contractual indemnity obligation solely to [the party's] own negligence" (Brooks v Judlau Contr., Inc., 11 NY3d 204, 210 [2008]), and redeems an otherwise facially violative indemnity provision (see Johnson v Chelsea Grand E., LLC, 124 AD3d 542, 543 [1st Dept 2015]). Indeed, the indemnity provision at issue here goes beyond pro forma limiting language and expressly restricts the indemnitees' right to recover to be coextensive with their own lack of fault. Since the accident arose from the covered work and movants established themselves to be free from fault in causing plaintiff's alleged injuries, the motion court properly granted movants' motion for summary judgment on their cross claim against Statewide for contractual indemnification. Also without merit is Statewide's argument that movants failed to show that 1100 Associates and HBO are designated as indemnitees under the purchase order. The purchase order on its face identifies the "Building Owner" and "Landlord" as an indemnitee; there is no question that 1100 Associates owns the subject building. The purchase order also identifies the "Owner" as an indemnitee. While the identity of the "Owner" is not clear from the face of the [2]purchase order, that document incorporates by reference JT Magen's prime contract with the "Owner." JT Magen's prime contract, in turn, is with HBO as net lessee of the building and "Owner." Hence, Statewide's assumption of a duty to indemnify, as well as movants' identities as indemnitees, is clear on the face of the purchase order and the governing prime contract incorporated therein by reference (see BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 852 [1st Dept 1985]). M—698 - James Frank v Avenue of the Ams. Assocs. Motion for stay of trial pending appeal denied as moot. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: MARCH 20, 2018 CLERK	{ "pile_set_name": "FreeLaw" }
64 P.3d 188 (2003) 204 Ariz. 360 STATE of Arizona, Appellee, v. Samuel Phillip VIRAMONTES, Appellant. State of Arizona, Appellee, v. Jason Jared Beck, Appellant. Nos. CR-01-0296-PR, CR-01-0414-PR. Supreme Court of Arizona. January 8, 2003. Isabel G. Garcia, Pima County Legal Defender by Robb P. Holmes, Tucson, Attorneys for Appellant. Janet Napolitano, Arizona Attorney General by Randall M. Howe, Phoenix, Cynthia Ryan, Tucson, Attorneys for Appellee. Isabel G. Garcia, Pima County Legal Defender by Joy Athena, Tucson, Attorneys for Appellant. Janet Napolitano, Arizona Attorney General by Randall M. Howe, Phoenix, Diane M. Acosta, Tucson, Attorneys for Appellee. OPINION ZLAKET, Justice (Retired). ¶ 1 Samuel Viramontes and Jason Beck were separately convicted of first degree murder and each received a natural life sentence. We consolidated their cases and granted review without oral argument to decide whether a trial court, in a first degree murder case where the state has not sought the death penalty, may consider in sentencing 189 those aggravating factors provided for by Arizona Revised Statutes section 13-702. We have jurisdiction pursuant to Arizona Constitution, Article VI, Section 5(3) and Arizona Rule of Criminal Procedure 31.19. ¶ 2 Viramontes was convicted of killing Kevin Stratton. The state did not seek the death penalty and the trial court sentenced him to natural life in prison, having found four aggravating factors: 1) the presence of an accomplice, 2) the defendant's failure to avail himself of past rehabilitative efforts, 3) his juvenile history, and 4) a prior conviction. The court of appeals affirmed the sentence, holding that it was permissible for the trial court to utilize the aggravating factors set forth in section 13-702. State v. Viramontes, 200 Ariz. 452, 455, 27 P.3d 809, 812 (App. 2001). ¶ 3 Beck was convicted of kidnapping and killing David Nickell. The state did not seek the death penalty. The trial court relied on the following factors in handing down a natural life sentence: 1) Beck's 34 point I.Q. advantage over his co-defendant, 2) his lack of remorse, 3) the cruelty involved in the killing, 4) the significant emotional harm to the victim, 5) the use of a deadly weapon, 6) Beck's temperament and personality, and 7) the presence of an accomplice. In a memorandum decision, the court of appeals affirmed the sentence based on its previous opinion in Viramontes. ANALYSIS ¶ 4 We review issues of statutory construction de novo. Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996). ¶ 5 Arizona Revised Statutes section 13-1105(C) states that "[f]irst degree murder is a class 1 felony and is punishable by death or life imprisonment as provided by § 13-703." Section 13-703(A), as it was in effect at all times pertinent to this case,[1] reads in part as follows: "A person guilty of first degree murder as defined in § 13-1105 shall suffer death or imprisonment ... in accordance with the procedures provided in subsections B through G of this section." Subsection (A) further specifies that a person convicted of first degree murder is subject to 1) death, 2) natural life in prison, or 3) life in prison with the possibility of parole. ¶ 6 Section 13-702, on the other hand, explicitly limits its reach to classes 2 through 6 felonies. Moreover, subsection F states: "Nothing in this section affects any provision of law that imposes the death penalty, [or] that expressly provides for imprisonment for life." A.R.S. § 13-702(F). ¶ 7 Viramontes and Beck argue that the plain language of section 13-703(A) requires the application of its aggravators and sentencing procedures in all first degree murder convictions. The state, on the other hand, contends that the statute is implicated only if the death penalty has been soughtthat is, where the trial court must choose either life or death. It does not apply, says the state, where the only choice is between 1) natural life and 2) life with the possibility of parole. ¶ 8 "[W]hen the language [of a statute] is clear and unequivocal, it is determinative of the statute's construction." Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). In the absence of ambiguity, we must give effect to that language and may not employ other means of statutory interpretation. Id.See also Canon School Dist. No. 50 v. W.E.S. Constr. Co., Inc., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994). ¶ 9 We believe that sections 13-702, 13-703, and 13-1105 are clear. Section 13-1105 provides that any person guilty of first degree murder must be sentenced pursuant to section 13-703. Section 13-703(A) expressly states that a person guilty of first degree murder shall suffer death or imprisonment pursuant to its terms. And, section 13-702 190 expressly applies only to class 2 through class 6 felonies, with subsection (F) thereof stating that the statute has no effect on first degree murder sentencings. ¶ 10 The state tries to make much of the disjunctive language in subsections 13-703(A) and (E). Both speak in terms of death or life imprisonment. Thus, the state argues, the statute applies only in cases where the actual choice to be made is between death and life. We believe that such an interpretation is too restrictive and overlooks the clear language mandating that a sentencing determination for first degree murder be made pursuant to section 13-703. Nothing in the statutes expresses or implies that the procedures and aggravators of section 13-703 apply only to cases in which the state has sought the death penalty. Rather, it is clearly the nature and classification of the crime that determines the appropriate sentencing statute. ¶ 11 The state argues that we should examine legislative history to properly construe the statute. While helpful under some circumstances, a review of legislative history is generally unnecessary and inappropriate where statutory language is without ambiguity. Although we recognize that the impetus for significant revision of section 13-703 was the United States Supreme Court decision in a capital case, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), we cannot ignore the plain wording of our statutes. ¶ 12 We agree with the court of appeals' observation that trial judges impose consecutive sentences every day amounting to natural life in prison without the special sentencing procedures of section 13-703. That fact, however, does not inform our decision here. The statutes limit sentencing procedures in a non-capital first degree murder case to those set forth in section 13-703. It is not our place to pass on the wisdom of such limits; that is a decision for the legislature. ¶ 13 Moreover, nothing presented to us indicates that the legislature intended for non-capital first degree murder defendants to be sentenced using those aggravators listed in section 13-702. The court of appeals and the state rely on State v. Sproule, 188 Ariz. 439, 937 P.2d 361 (App.1996), and State v. Guytan, 192 Ariz. 514, 968 P.2d 587 (App. 1998). But that reliance is misplaced. First, neither of those cases is binding on this court. Second, they are both easily distinguishable. In Sproule, the state sought the death penalty. Following a hearing pursuant to section 13-703, the trial judge determined that death was not warranted and ordered a natural life sentence. In Guytan, the defendant claimed that the trial court had double counted factors from sections 13-702 and 13-703 in sentencing him to natural life. The Guytan court did not explicitly approve of the use of aggravators from both statutes; it simply rejected the defendant's claim, relying on Sproule. ¶ 14 Finally, the court of appeals here rejected Viramontes' claim that the aggravators must be proven beyond a reasonable doubt. Viramontes, 200 Ariz. at 455, 27 P.3d at 811. We agree. Section 13-703, as it was in effect at all times pertinent hereto, makes no mention of an evidentiary standard of proof. Nevertheless, we have consistently required aggravators to be proven beyond a reasonable doubt in capital cases. See, e.g., State v. Jordan, 126 Ariz. 283, 286, 614 P.2d 825, 828 (1980); see also State v. Brewer, 170 Ariz. 486, 500, 826 P.2d 783, 797 (1992); State v. Richmond, 136 Ariz. 312, 322, 666 P.2d 57, 67 (1983). In non-capital cases, aggravators need only be supported by reasonable evidence. See State v. Meador, 132 Ariz. 343, 347, 645 P.2d 1257, 1261 (App.1982); Matter of Varbel, 182 Ariz. 451, 455 n. 7, 897 P.2d 1337, 1341 n. 7 (1995). This would include aggravators in non-capital first degree murder cases. DISPOSITION ¶ 15 Because the aggravators in section 13-703 are the only ones permitted in a first degree murder prosecution where the state has not sought the death penalty, these cases are remanded for resentencing. The court of appeals' decisions are vacated. CONCURRING: CHARLES E. JONES, Chief Justice, RUTH V. McGREGOR, Vice Chief Justice, and STANLEY G. FELDMAN, Justice. NOTES [1] After these defendants were sentenced, section 13-703 was amended by Laws 2001, Ch. 260, § 1. The legislature inserted a new subsection B, redesignated existing subsections B to H as C to I, and modified internal subsection references to conform to the reorganization of the section. The wording of the relevant sections remained the same. Additionally, on August 1, 2002 the Arizona Legislature passed Senate Bill 1001, which further amended section 13-703, renumbered section 13-703.01 as 13-703.04, added new sections 13-703.01 and -703.05, and amended section 13-1105. Most of these changes related to death sentences, in response to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).	{ "pile_set_name": "FreeLaw" }
94 F.Supp. 28 (1950) ST. PAUL FIRE & MARINE INS. CO. v. AMERICAN MAIL LINE, Limited. United States District Court S. D. New York. October 20, 1950. Richard T. Graham, New York City, proctor for libelant, by Seymour Simon, New York City, advocate. Haight, Deming, Gardner, Poor & Havens, New York City, proctors for respondent, by Tallman Bissell, New York City, advocate. GODDARD, District Judge. This is a motion to dismiss or to transfer this suit in admiralty to the Western District of the State of Washington, Northern Division. It is a suit in admiralty for cargo loss and damages in the amount of $5,515 in connection with eighteen shipments of flour from Vancouver, B. C., Canada to Manila, Philippine Islands on vessels operated by respondent. A libel was filed in this district and jurisdiction obtained by service of process in personam with clause of foreign attachment. All parties are foreign corporations. Libelant is a Minnesota corporation. Respondent, a Delaware corporation whose main offices are in Seattle, Washington, does not do, and is not licensed to do, business within this state. It merely maintains a small office in New York City for the purpose of soliciting cargo for transportation by vessels of respondent from the Pacific Northwest ports to foreign ports. The New York City office has no authority to enter into contracts to bind respondent. None of respondent's vessels call at any port within this district. In fact, none call at any port on the East Coast. All records and files pertaining to the shipments by respondent are kept and maintained at Seattle. Most of the witnesses in this case reside in or near Seattle. If respondent were to be forced to defend this suit in this district, the cost of its defense might approximate the amount in controversy. Respondent relies upon 28 U.S.C.A. § 1404(a) which provides as follows: "(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Libelant contends that Section 1404(a) does not apply to suits in admiralty. However, the language used by the Congress in this statute is broad enough to include admiralty cases. In Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 946, 959, 93 L.Ed. 1207, the Supreme Court *29 held that Section 1404(a) was applicable to suits brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., saying "The reach of `any civil action' is unmistakable. The phrase is used without qualification, without hint that some should be excluded." Libelant's arguments are technical at best. There is no logical reason why Section 1404(a) should not apply to suits in admiralty. It would be far more convenient for the parties and witnesses and justice would best be served if this case were transferred to the Western District of Washington, Northern Division. Motion to transfer to the United States District Court for the Western District of the State of Washington, Northern Division, is granted.	{ "pile_set_name": "FreeLaw" }
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________ No. 99-11227 Summary Calendar Civil Docket #3:99-CR-136-2-L _______________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DELANO MARCEL ROBINSON, Defendant-Appellant. _________________________________________________________________ Appeal from the United States District Court for the Northern District of Texas _________________________________________________________________ September 15, 2000 Before DAVIS, JONES, and DeMOSS, Circuit Judges. EDITH H. JONES, Circuit Judge:* On appeal from a conviction for conspiracy to commit bank fraud, appellant Robinson challenges the amount of loss calculation that the court used to determine relevant conduct for sentencing purposes. Finding neither legal error nor clear error in the court’s determination of the facts, we affirm. According to the Presentence Report, Robinson came in on the ground floor of a large bank fraud conspiracy that operated in the Dallas-Fort Worth area. Specifically, Robinson, who had * Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. already participated in a fraud exceeding $10,000 that utilized his own bank account, introduced the ringleader Simpkins to codefendant Lee, who took charge of the Fort Worth branch of the conspiracy. Paragraph 16 of the PSR states that “Simpkins explained in depth to Robinson and Lee the Bank One scheme. Simpkins advised Lee and Robinson if they could find persons who had Bank One accounts, . . . Simpkins, Robinson and Lee could all make some money.” Pursuant to this plan, Robinson recruited numerous account holders in Fort Worth and assisted a number of them in the fraud. Robinson now objects that the PSR tied the amount of bank losses relevant to his sentencing not only to those that he personally induced, but also to some of the losses perpetrated by other members. He points out that a relevant conduct finding under U.S.S.G. § 1B1.3 involves not only reasonable forseeability of the loss – a point he concedes on appeal – but also that the conduct be “jointly undertaken” by him and the other codefendants. U.S.S.G. § 1B1.3(a)(1)(B). Contrary to Robinson’s arguments, we find, first, that the requirement of a joint undertaking was specifically recognized by the probation office in the addendum to the PSR, at page 3. Thus, in concluding that the PSR correctly calculated the amount of loss, the court approved a finding based on the correct legal test. Moreover, the court did not clearly err in implicitly finding that Robinson jointly undertook the conspiracy with Simpkins and Lee and 2 therefore became responsible for losses beyond the ambit of his personal acts. The above-noted portions of the PSR examined and explained Robinson’s thorough knowledge, understanding and significant role in starting and maintaining the conspiracy. There is a substantial factual underpinning in the PSR for the joint undertaking prong of the relevant conduct determination. Robinson’s reliance on United States v. Evbuomwan, 992 F.2d 70 (5th Cir. 1993), is misplaced. While that case affirmed that under the Guidelines, courts must initially determine what criminal conduct a defendant has jointly undertaken, there was no hint in the record or PSR that the defendant was aware of the separate fraud perpetrated by an associate of his. In this case, by contrast, Robinson was one of the initiators of the scheme, together with Simpkins and Lee, and the PSR indicates, and Robinson conceded in the hearing, that he knew a great deal about its intended scope, even if not about the precise illegal transactions. For these reasons, the district court’s loss calculation contains no reversible error, and the sentence awarded by the district court is AFFIRMED. 3	{ "pile_set_name": "FreeLaw" }
38 Wn.2d 786 (1951) 232 P.2d 94 PHIL SHAFFER, Respondent, v. R.C. WALTHER et al., Appellants.[1] No. 31478. The Supreme Court of Washington, Department One. May 31, 1951. 787 Skeel, McKelvy, Henke, Evenson & Uhlmann and Donald S. Voorhees, for appellants. Lloyd Holtz, for respondent. DONWORTH, J. Plaintiff brought this action against R.C. Walther and his wife, Lulu Walther, formerly Lulu Shaw, for damages allegedly caused by defendants' wrongful eviction of plaintiff from his place of business and taking possession of his stock of meats, his butcher tools and other personal property. Defendants counterclaimed, asking payment of overdue rent and damages for the plaintiff's failure to keep the premises in proper repair and to perform other obligations under their tenancy agreement. Trial was had in the superior court before a jury. At the close of plaintiff's evidence the cause was dismissed as to the defendant R.C. Walther, because he had no interest in the property involved, and the trial proceeded with Lulu Walther as the sole defendant. She will be referred to as the appellant. After the testimony was concluded, the jury returned a verdict in favor of plaintiff in the sum of two thousand dollars. Defendant moved for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The trial court stated that it would grant a new trial unless plaintiff accepted a reduction of five hundred dollars in the amount of the verdict, which reduction was accepted. Thereupon defendant's motion for a new trial was denied and judgment was entered against the defendant in the sum of fifteen hundred dollars. Defendant appealed from this judgment. The testimony concerning the alleged eviction of respondent from appellant's property is in direct conflict, but the jury was entitled to believe the essential facts to be as follows: Appellant is the owner of certain premises known as Shaw's Cold Storage Lockers and Supermarket located in South Park, which is south of the city limits of Seattle. 788 Respondent leased the meat market in this establishment, and certain equipment used in connection therewith, from appellant on April 12, 1948, for a period of one year, the rental being a sum equal to 3 1/2% of respondent's gross receipts each month. Shortly before the lease was to expire appellant and respondent had a conversation in which it was agreed that respondent could hold over; respondent's version being that he could stay for another year at least, appellant's version being that he could stay "as long as things were right." After April 12, 1949, respondent continued as a tenant for a period of several months on a month-to-month basis. On Monday, September 12, 1949, appellant told respondent that she wanted to take over the market. Here again the testimony of the parties is in conflict. According to respondent, he protested, asking that he be allowed to keep it for the remainder of the year 1949, or at least until the end of the hunting season. Appellant insisted upon taking over at the end of the week. On the following Saturday, appellant asked respondent if he were going to come over Sunday or Monday to take inventory. He informed her that he was coming over on Monday to do business. On Monday, September 19th, the parties happened to meet at a meatpacking establishment where both were engaged in buying a meat supply for the week's business. Appellant, having bought her meat, proceeded to the market and with two butchers, whom she had employed during the preceding week, was commencing business when respondent arrived there. He asked her if she were going to do business there and when she replied affirmatively, respondent stated that he was going to do business there also. They then had a conversation, the content of which is in dispute, although it appears that respondent asserted his right to the premises. He claimed that he was entitled to thirty days' written notice of termination of the tenancy and told her that she had better consult with her attorney before evicting him. She did call her attorney, and, according to respondent, returned and said, "Phil, you got me over 789 a barrel but I'm going to operate this meat market anyway." Appellant admitted stating that she definitely told respondent that she was going to run the market. Appellant then offered to buy his meat inventory for two hundred fifty dollars, which respondent admitted at the trial was its reasonable value. According to appellant, this offer was refused, respondent claiming that he had at least five hundred dollars "coming out of the place." Upon appellant's refusal to pay this amount, respondent left the premises and consulted his attorney. On the premises when he left were his tools and other personal property incidental to the trade of butchering, as well as the meat inventory. He testified that the total value of these items was $539.50, plus one hundred dollars worth of accounts receivable. Respondent made no attempt to take any of his property with him. Subsequently, appellant sent a letter to respondent telling him that she had placed his meat in a locker on the premises and asking him to take it. This letter was received later on the same day that respondent verified the complaint in this action. One week later, appellant's attorney wrote respondent's attorney a letter asking him to request respondent to remove his tools, meat, and other property at once. Apparently this personal property, at the time of the trial, was still on the premises and was still being held for respondent. Appellant assigns as error the giving of instruction No. 13 and also instruction No. 16. No. 13 reads as follows: "In the event that you find that the plaintiff was wrongfully evicted from these premises, then the defendant wife would be liable for the reasonable value of the merchandise, supplies and tools claimed by the plaintiff. This is because the act of holding these things would be conversion. There is no duty on the plaintiff to remove these items if they were wrongfully taken from him." Appellant excepted to this instruction, as well as instruction No. 16, for the reason that it permitted the jury to find that appellant was liable for conversion of the meat 790 and the tools and other personal property and to award as damages the value thereof. In instruction No. 16 the jury were told that in assessing the damages (if they should find for respondent): "... You may also take into consideration the reasonable market value of the stock of meats and other merchandise, butcher tools, cleavers, knives, paper, twine, and other personal property, if any, placed by the plaintiff upon said premises and there at the time, to-wit: September 19, 1949, that the defendant took possession of said premises...." [1] Under the evidence in this case, we think that the giving of these two instructions constituted reversible error because there was no showing that appellant exercised any dominion over these articles of personal property inconsistent with, or in denial of, respondent's right of ownership. Respondent's own testimony plainly negatives any basis for finding that there was a conversion. On cross-examination respondent testified: "Q. (by Mr. Voorhees) Did she at any time tell you that you could not take that meat from there? A. No, there was nothing said about that part. Q. How about your tools? Did she tell you you couldn't take your tools away from there? A. There was nothing said about that. Q. You knew that you could have taken them if you wanted to? Isn't that right? A. I don't know if I could. I think I have a letter there where she wrote me, if you want to see that. But the lawsuit was already started." In her testimony, appellant testified that, when respondent left the premises on September 19th, she did not indicate that he could not take his personal property. She testified on this matter as follows: "Q... Did the plaintiff leave the market during the morning? A. I would say in the neighborhood of maybe ten-fifteen or shortly after that, around that time anyhow. Q. During that time did you at any time indicate to him, to the plaintiff, that he could not pick up his tools or his twine or paper? Did you indicate to him he couldn't pick up his personal tools? A. Personal tools? Meat Cutters' tools to a butcher are his personal property; and when you call the 791 union for a meat cutter, they bring their tools with them. It is their very own personal property. Q. Did you indicate to him that he could not have his tools? A. No. Q. You did write a letter subsequent to that time, which was read in evidence this morning, A. Yes. Q. telling him that he could pick up what he had there...." Controversies arising out of similar facts have been before this court on two previous occasions. In Browder v. Phinney, 37 Wash. 70, 79 Pac. 598, appellant claimed to have been wrongfully evicted from certain premises and claimed, among other damages, the reasonable value of goods that had been taken from the premises by the landlord. This court held that there could have been no conversion for the reason that, after the eviction, the goods were first tendered to the tenant, who refused to take them, and had then been stored in a public warehouse in the tenant's name. In Pappas v. General Market Co., 104 Wash. 116, 176 Pac. 25, where there was also a wrongful eviction and a claim for damages for the conversion of goods on the premises, we held that there was a conversion. In that case the goods were neither tendered to the tenant nor held for him, but were sold by the landlord to a third person and thus the tenant was deprived of them. The facts in the Browder case and those in this case are quite similar. While here there was no tender of the goods to the tenant until the day this action was begun, the question whether or not there was a tender is immaterial in this case because there was no attempt by the tenant to remove the goods when he left the premises nor was any attempt on the part of the landlord made to prevent their removal. There was no sale of the goods to a third person, as in the Pappas case, so that case is not in point. In Clark v. Groger, 102 Wash. 188, 172 Pac. 1164, the facts relied upon to establish a conversion were stated as follows: "On January 26, 1917, Mrs. Groger and August Sold went to the brewery and notified plaintiff that it was the intention of the corporation to take possession, and called upon him to remove his property. When he returned after his dinner 792 hour he found the doors barred and locked and a guard in charge, who informed him that he would not be permitted to enter. He did enter the building later in the afternoon, after securing permission from Groger and a pass from his attorney. Plaintiff did not remove any of his property at that time, nor did he attempt then or thereafter to do so." In holding that there had been no conversion, this court said: "But it cannot be held arbitrarily that the mere taking of goods is sufficient to sustain an action for conversion. A wilful, or even an unlawful taking, will not always amount to conversion. There must be some assertion of right or title that is hostile to the true owner. In the instant case, the trustees, by resolution, disclaimed any intention of claiming as owners. They not only admitted the title of the plaintiff, but made a demand that he remove his property. His answer to this demand was not made with a moving van, but by filing an action in damages for conversion. "This phase of the case is learnedly treated in Lee Tung v. Burkhart, 59 Ore. 194, 116 Pac. 1066, where it is said: "`In an action of trover it is not sufficient that the facts show a mere trespass, without showing a conversion.... There may be an actual, wrongful exercise of dominion over chattels without constituting a conversion, if such dominion is not a denial or repudiation of the owner's right or title.' "And this we understand to be the doctrine of Browder v. Phinney, 37 Wash. 70, 79 Pac. 598." In the Oregon case, cited in the foregoing quotation, the landlord, having been ordered by the municipal authorities to remove her building because it was unsafe, requested her tenants to take their goods out of the building. Upon their refusal, she took possession of the goods and stored them in a warehouse in the tenant's name. It was held, after a thorough review of the authorities, that there had been no conversion. In discussing the essential elements of conversion, the supreme court of Oregon said: "... While in 8 Words & Phrases, 7111 (citing Waring v. Pa. R.R. Co., 76 Pa. 491, 496), this definition appears: "`The taking may have been lawful; hence the gist of the action lies in the wrongful conversion. Where one has the lawful possession of the goods of another, and has not 793 converted them, this action will not lie until there has been a refusal to deliver them on demand made.' "See, also, Boulden v. Gough, 4 Pennewill (Del.) 48, (54 Atl. 693). "`A conversion is the gist of the action, and without conversion neither possession of the property, negligence, nor misfortune will enable the action to be maintained.' 8 Words and Phrases, 7112. "In order to maintain an action for conversion, there must have been, on the part of the defendant, some unlawful assumption of dominion over the personal property involved, in defiance or exclusion of the plaintiffs' rights, or else a withholding of the possession from the plaintiffs, under a claim of right or title inconsistent with that of the plaintiffs. Thweat v. Stamps, 67 Ala. 96, 98; France v. Gibson, 101 S.W. (Tex. Civ. App.) 536; Swank v. Elwert, 55 Or. 487 (105 Pac. 901)." Lee Tung v. Burkhart, 59 Or. 194, 116 Pac. 1066. The Michigan case of Mattice v. Brinkman, 74 Mich. 705, 42 N.W. 172, involved facts similar to this case. There the plaintiff had paid his month's rent and had found another location for his business. While he was away, but before he had moved his equipment and before the term for which he had paid rent had expired, the defendant (his landlord) broke into the place and took possession, moving plaintiff's equipment into one part of the building. The Michigan court found that there was no conversion, saying: "Here the right of the plaintiff to the personal property was never denied, and it was his own fault that he did not regain his goods. They were simply moved from one place in the building to another as a necessary act in the taking of possession by defendant of the building. To call this a conversion, because defendant had no right to so move them, when the possession of or title to them in the plaintiff was never questioned, and they were neither lost nor destroyed by such moving, would not only be unjust, but such a holding would find no support in the law." Our recent decision in Martin v. Sikes, ante p. 274, 229 P. (2d) 546, which discusses the legal principles relating to acts of conversion, involved facts which raised the question of the necessity of taking possession of the personal property by the defendant. The discussion is not directly 794 applicable here because in this case the element of possession is not involved. We are concerned here with the question whether appellant exercised any dominion or control over the property in defiance of respondent's rights. We have examined the case of Bickford v. Hupp, 83 Wash. 427, 145 Pac. 454, cited as controlling by respondent, and find it inapplicable for the reason that in that case the goods were sold to a third person, which act obviously constituted a conversion. Since the record contains no evidence from which the jury could have found appellant guilty of conversion, we are of the opinion that the trial court's instructions No. 13 and the portion of No. 16 quoted above were erroneous. Appellant's motion for a new trial should have been granted. With regard to the claimed wrongful eviction of respondent by appellant, the evidence strongly supports respondent's position. Appellant admitted in her testimony that on September 19, 1949, after discussing the situation with her attorney three times on the telephone, she persisted in her assertion to respondent that she was going to run the market, even though she had given him no written notice of termination of his tenancy. [2] The trial court correctly instructed the jury that a month-to-month tenancy must be terminated by a written notice, served on behalf of the landlord on the tenant more than twenty days prior to the end of the month, requiring surrender of possession at the end of that period. The jury was further instructed that the parties could orally agree upon some other method of terminating the tenancy and such method would be binding upon the parties. Appellant claimed that such an oral agreement existed between the parties. Her proof in support of this contention (in addition to her own testimony) consisted of declarations by respondent to third persons, made during the week of September 12th, to the effect that he thought that would be his last week at the market. There was also testimony that respondent stated to third persons that appellant was taking over the market and that he would be 795 leaving the following Saturday. Respondent, testifying in rebuttal, either denied making such statements or endeavored to explain the circumstances under which he made some of them. This issue as to whether or not there was a wrongful eviction was a question for the jury to decide. They found for respondent on this issue and fixed his damages at two thousand dollars. However, since instructions No. 13 and No. 16 erroneously permitted the jury to include the value of the personal property in their award of damages, we must remand this case to the superior court for a new trial upon the issue of whether there was a wrongful eviction and, if so, what sum should be awarded respondent as damages therefor. In appellant's exception to instruction No. 16, she objected also on the ground that it permitted the jury, in awarding damages, to consider any losses as well as profits shown by the operation of respondent's business and, in effect, permitted the jury to award damages for the loss of prospective profits. Since this problem may arise again on the retrial of this case, we deem it proper to say that we consider this objection to be without merit. In our opinion, reading instruction No. 14 in conjunction with No. 16, the jury could not have understood that anything could be awarded to respondent by reason of the loss of any prospective profits. While appellant was entitled to an instructed verdict for rental accruing between September 1st and September 19th in the stipulated sum of $82.50, this amount upon a retrial should be offset against any damages that may be awarded respondent for wrongful eviction. The trial court did not err in denying appellant's motion for judgment n.o.v. because it was (and will be) the function of the jury to fix the amount of respondent's damages. Because of the errors above noted in giving the two instructions excepted to by appellant, the judgment is reversed and the case remanded with instructions to grant appellant a new trial limited to the issue of the alleged 796 wrongful eviction of respondent and the amount of damages flowing therefrom, if any, and to the issues set forth in appellant's cross-complaint. SCHWELLENBACH, C.J., BEALS, HILL, and FINLEY, JJ., concur. NOTES [1] Reported in 232 P. (2d) 94.	{ "pile_set_name": "FreeLaw" }
166 F.3d 346 1999 CJ C.A.R. 33 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Terrance E. DURBIN, Petitioner--Appellant,v.Ken KLINGER, Respondent--Appellee. No. 98-6332. United States Court of Appeals, Tenth Circuit. Dec. 24, 1998. Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. 1 ORDER AND JUDGMENT* 2 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)(2); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. 3 Terry E. Durbin, an Oklahoma state prisoner appearing pro se, seeks a certificate of appealability to appeal the district court's dismissal of his 28 U.S.C. § 2254 petition. Durbin also seeks leave to appeal in forma pauperis.1 We grant leave to proceed in forma pauperis, we grant Durbin's motion to supplement his brief,2 we deny a certificate of appealability, and we dismiss Durbin's petition. 4 On July 23, 1997, Durbin pleaded guilty to lewd molestation and received a sentence of twenty years' imprisonment. Although he did not appeal his sentence, he eventually initiated state court post-conviction proceedings, apparently based upon equal protection claims related to Oklahoma's newly enacted Truth In Sentencing Act, 1997 Okla.Sess.Laws ch. 133 (the "Act"). R.Vol. I, Doc. 8, Exh. B at 1; Id., Doc. 10, Exh. B. On October 28, 1997, the Oklahoma Court of Criminal Appeals found that Durbin had failed to supply a proper record for its review. Under such circumstances, the court indulged a "presumption of regularity in the trial court proceedings" and affirmed the state district court's denial of Durbin's petition. Id., Doc. 8, Exh. B at 2-3. 5 Following the adverse state court decision, Durbin filed a § 2254 petition in federal court in the Western District of Oklahoma. The single ground for his petition was that he was entitled to be resentenced under the new Act. The case was referred to a magistrate judge, and the state was ordered to file a reply. In its reply, the state argued that Durbin was procedurally barred from bringing his federal petition. After the state's filing, Durbin filed a response (the "Traverse"), in which he disputed the procedural bar. Additionally, for the first time, he claimed an Ex Post Facto Clause violation. Specifically, he claimed that because he had been considered for parole under the Act, he no longer qualified for pre-parole consideration under Okla. Stat. tit. 57 § 365.3 R.Vol. I, Doc. 10 at 6-7. 6 In his Report and Recommendation ("Report"), the magistrate judge concluded that Durbin was procedurally barred, but he also ruled alternatively on the merits. Addressing the original petition, which he noted was "in large part a photocopy of a pleading being presented in several Oklahoma prisoners' petitions, all claiming that the Act's sentencing matrixes and community sentencing provisions became 'effective July 1, 1997,' " the magistrate judge concluded that federal habeas relief did not extend to correct errors of state law. Id., Doc. 11 at 5-7. Addressing the Traverse, the magistrate judge noted that Durbin had attached copies of documents demonstrating that he had received parole consideration and that he has been scheduled for future parole reconsideration, and that Durbin had not "allege[d] any constitutional infirmity related to [those] proceedings." Id. at 6. Accordingly, the magistrate judge recommended that the petition be denied. 7 Durbin filed timely objections which focused primarily on his entitlement to be resentenced under the new Act. Additionally, Durbin disputed the magistrate judge's conclusion as to procedural bar. Finally, Durbin claimed a violation of the Ex Post Facto Clause because the Act eliminated pre-parole. However, he made no claim as to his own eligibility for any eliminated programs, and he did not directly address the magistrate judge's conclusion that he had failed to raise any constitutional infirmity regarding his own parole proceedings. Id., Doc. 12 at 3. 8 Noting that Durbin's objections challenged the magistrate judge's Report "pertaining to the applicability of the new sentencing statute," the district court conducted a de novo review and adopted the Report. Id., Doc. 13. 9 After a thorough review of the record on appeal, we conclude that Durbin has failed to make a substantial showing of the denial of a constitutional right.4 In an unpublished case addressing identical issues, we have recently held that the retroactivity of the Act's sentencing provisions is a question of Oklahoma state law not cognizable in a federal habeas petition, and that the Equal Protection Clause is not violated simply because a criminal defendant who commits a crime after the Act's effective date receives a lesser sentence than a defendant who committed a crime before the effective date. Nestell v. Klinger, No. 98-6148, 1998 WL 544361 (10th Cir.1998). Although the Ex Post Facto Clause may be violated when a new statute eliminates parole, there is no such implication in Durbin's case, inasmuch as the documents which he has attached to his appellate brief clearly indicate that he has been and continues to be considered for parole and pre-parole on a regular basis.5 Appellant's Br., Exhs. A-D; see also Raymer v. Enright, 113 F.3d 172, 174 (10th Cir.1997). 10 Accordingly, we GRANT Durbin's application to proceed in forma pauperis and his motion to supplement his brief. Because he has failed to make a substantial showing of the denial of a constitutional right, we DENY his request for a certificate of appealability, and DISMISS his appeal. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3 1 We note that 28 U.S.C. § 1915(a)(2) and (b) do not apply to § 2254 proceedings. Cf. United States v. Simmonds, 111 F.3d 737, 744 (10th Cir.1997) (holding these provisions inapplicable to § 2255 cases) 2 However, our review discloses that none of the arguments raised by the supplemental brief was presented to the district court. Therefore, the issues are not properly before us, and we do not consider them. Walker v. Mather (In re Walker ), 959 F.2d 894, 896 (10th Cir.1992) 3 Durbin also noted other early release programs which the Act eliminated. However, his brief either explicitly indicates that he had never been eligible for those programs or simply fails to claim any such eligibility. R.Vol. I, Doc. 10 at 7 4 In this appeal, Durbin continues to dispute the validity of any procedural bar. Inasmuch as Durbin has failed to a substantial showing of the denial of a constitutional right, in any event, we need not address whether he is procedurally barred 5 We also note that the issue appears to have been waived by Durbin's failure to make a specific objections to the Report's conclusion that he raised no constitutional infirmity regarding parole considerations. See Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1533 (10th Cir.1996)	{ "pile_set_name": "FreeLaw" }
904 F.2d 803 58 USLW 2748, 14 U.S.P.Q.2d 1959, 30Fed. R. Evid. Serv. 461 UNITED STATES of America, Appellee,v.Nam Ping HON, Defendant-Appellant. No. 655, Docket 89-1424. United States Court of Appeals,Second Circuit. Argued Jan. 22, 1990.Decided May 21, 1990. Adina Schwartz, New York City (The Legal Aid Soc., Federal Defender Services Unit, New York City, of counsel), for defendant-appellant. Jeffrey B. Sklaroff, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty. for the S.D. of N.Y., David E. Brodsky, Asst. U.S. Atty., of counsel), for appellee. Before KEARSE, MINER and WALKER, Circuit Judges. WALKER, Circuit Judge: 1 Nam Ping Hon appeals from his conviction, after a jury trial in the United States District Court for the Southern District of New York (Robert W. Sweet, Judge ), on two counts of trafficking and attempting to traffic in wrist watches bearing prestige-brand counterfeit trademarks, in violation of 18 U.S.C. Sec. 2320. Hon's primary argument is that Judge Sweet erred when he instructed the jury on the "likely to confuse" element of section 2320 that it could consider the confusion of members of the non-purchasing public in addition to actual or potential purchasers. Because we conclude that Judge Sweet's charge was appropriate, and because we find Hon's other claims to be without merit, we affirm. BACKGROUND 2 In early 1988, undercover agents of the United States Customs Service, seeking to buy counterfeit watches, made contact with Nam Ping Hon and his wife Sandy Hon who had imitation Rolex, Gucci, Piaget and Movado watches for sale at prices ranging between $13 and $17. The watches generally bore a close resemblance to the genuine article and carried an identical or nearly identical trademark, but their quality of manufacture was poor. 3 On January 25, 1988, the agents purchased eight counterfeit watches at the Hons' place of business at 326 Canal Street in New York City and told the Hons that, if these were satisfactory, they would purchase a much larger quantity. Through the spring and summer, the agents kept sporadic contact with the Hons. On August 23, Sandy Hon agreed to sell Agent Bonnie Goldblatt 1,200 counterfeit watches at 8:00 a.m. on August 25. Sandy said that Nam Ping Hon would be with her and gave the agent a list of the styles and prices involved. The total price for the watches was $17,200, an average price of $14.33 per watch. 4 On the morning of August 25, 1988, Nam Ping Hon, accompanied by Sandy Hon and carrying two shopping bags he had taken from his car, met Agent Goldblatt outside his Canal Street address. Both Hons separately indicated that the watches were in the bags. Agent Goldblatt said that she had seen police nearby and suggested that they complete the transaction elsewhere. Sandy went in a car with Agent Goldblatt and Special Agent Blaise Piazza to the pre-arranged spot. Nam Ping left on foot with the two shopping bags. When the group reconvened, Sandy and Nam Ping conferred separately. Sandy returned alone to the agents and said that the deal was off. The agents arrested Sandy Hon and, shortly thereafter, Nam Ping Hon. 5 A surveillance agent found and, as authorized by 19 U.S.C. Sec. 1595a, seized Hon's car and took the two shopping bags--containing 889 counterfeit watches--from the trunk. Searches ensued at 326 Canal Street with a warrant, and at 325 Canal Street and Hon's home on consent. The agents seized a total of 2,600 counterfeit watches from these locations and found $68,000 in cash in a bedroom closet. 6 The Hons were charged with one count of conspiracy under 18 U.S.C. Sec. 371 and three counts of trafficking and attempting to traffic in counterfeit watches, in violation of 18 U.S.C. Secs. 2320 and 2. Sandy Hon pled guilty to all counts and was sentenced to 36 months probation, a $6,000 fine and a $200 special assessment. A jury found Nam Ping Hon guilty of two of the counts of trafficking and attempting to traffic. Judge Sweet sentenced Hon to five months imprisonment, five months in a community treatment center, a $3,000 fine and a $100 special assessment. DISCUSSION I. 7 Hon's principal argument on appeal is that Judge Sweet erred when he charged the jury that they could find "likelihood of confusion," an element of 18 U.S.C. Sec. 2320, "either among the members of the purchasing public or among the members of the nonpurchasing public ... [including] persons who have no intention of purchasing a watch, such as the recipient of a gift or someone who simply views the watch."1 Hon argues that this instruction was based upon an erroneous interpretation of both section 2320 and the civil Lanham Act, 15 U.S.C. Secs. 1051 et seq., whose confusion requirement was incorporated into section 2320. Hon asserts that Second Circuit authority interpreting the Lanham Act--including Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961), and its progeny--compels the conclusion that trademark confusion is limited to purchasers and potential purchasers. 8 We note at the outset that the discrepancy between Judge Sweet's charge and one Hon would favor is quite likely to be material in a case such as this. A purchaser or potential purchaser would invest at least minimal effort in examining the counterfeit watch in question and, based on the differences he would discover in price and quality of manufacture between the counterfeit and the genuine item, would probably not be confused as to the watch's origin. However, a casual observer viewing a counterfeit watch, on the wrist of a friend, for instance, could easily be confused. 9 Section 2320, enacted as the Trademark Counterfeiting Act of 1984, punishes "[w]hoever intentionally traffics or attempts to traffic in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services." "Counterfeit mark" is defined, in pertinent part, as: 10 a spurious mark-- 11 (i) that is used in connection with trafficking in goods or services; 12 (ii) that is identical with, or substantially indistinguishable from, a mark registered for those goods or services on the principal register in the United States Patent and Trademark Office and in use ...; and 13 (iii) the use of which is likely to cause confusion, to cause mistake, or to deceive. 14 There is no doubt that Congress wished to incorporate the Lanham Act's confusion requirement into 18 U.S.C. Sec. 2320 and did so. See 15 U.S.C. Sec. 1114(1). As stated by the chief House and Senate sponsors of the Trademark Counterfeiting Act, 15 likely "to cause confusion, to cause mistake, or to deceive," ... is the key phrase in the remedial section of the Lanham Act ... and its inclusion here is intended to ensure that no conduct will be criminalized by this act that does not constitute trademark infringement under the Lanham Act. 16 Joint Statement on Trademark Counterfeiting Legislation, 130 Cong.Rec. 31,67 3, 31,675 (1984). See also United States v. Torkington, 812 F.2d 1347, 1351-52 & n. 4 (11th Cir.1987); United States v. Gonzalez, 630 F.Supp. 894, 896 (S.D.Fla.1986). 17 Hon argues that the confusion requirement under 18 U.S.C. Sec. 2320 must be read more narrowly than its Lanham Act counterpart because "Congress intended that the criminal act be narrower in scope than the Lanham Act and prohibit only 'egregious' instances of the conduct that the civil statute prohibits." While we agree with Hon's characterization of congressional intent, the conclusion he urges does not follow. Egregiousness is grounded not upon whether the person deceived is a purchaser or potential purchaser but whether the mark is a counterfeit and is knowingly used as such. 18 Section 2320 is, of course, "narrower" than the Lanham Act provision. Section 2320 proscribes only the use of counterfeits--marks "identical with, or substantially indistinguishable from" a registered trademark--while Lanham Act liability may rest upon not only a "counterfeit" but also a "reproduction," "copy" or "colorable imitation." Section 2320 is also narrower than the Lanham Act because it requires proof of criminal intent. In fact, section 2320's mens rea requirement is dual: the defendant must intend to traffic or attempt to traffic in goods and services and knowingly use a counterfeit mark on or in connection with such goods or services. See S.Rep. No. 98-526, 98th Cong., 2d Sess. 11 (1984), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3627, 3637. 19 The legislative history of 18 U.S.C. Sec. 2320 supports our view that the statute reaches public, non-purchaser confusion. Congress enacted section 2320 in response to an increasing tide of commercial trademark counterfeiting and wished to impose stiff criminal penalties upon those whose intentional acts were previously subject only to civil sanctions under the Lanham Act. See S.Rep. No. 98-526, supra, at 3-6, reprinted in 1984 U.S.Code Cong. & Admin.News at 3629-32. The Senate Report cited our observation in Montres Rolex, S.A. v. Snyder, 718 F.2d 524, 528 (2d Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1594, 80 L.Ed.2d 126 (1984), that "[c]ommercial counterfeiting has reached epidemic proportions.... [T]he owners of trademarks on prestige items are particularly likely to be plagued by recurring counterfeit problems," and specifically stated that the criminal counterfeiting act was designed to help stem this epidemic. S.Rep. No. 98-526, supra, at 5, reprinted in 1984 U.S.Code Cong. & Admin.News at 3631. 20 Congress was concerned not only that "[t]rademark counterfeiting ... defrauds purchasers, who pay for brand-name quality and take home only a fake," but also that "counterfeiters [can earn] enormous profits ... by capitalizing on the reputations, development costs, and advertising efforts of honest manufacturers at little expense to themselves." S.Rep. No. 98-526, supra, at 4-5, reprinted in 1984 U.S.Code Cong. & Admin.News at 3630-31. 21 Courts have widely agreed that 18 U.S.C. Sec. 2320 is " 'not just designed for the protection of consumers. [It is] likewise fashioned for the protection of trademarks themselves and for the prevention of the cheapening and dilution of the genuine product.' " United States v. Yamin, 868 F.2d 130, 132-33 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989) (quoting United States v. Gonzalez, 630 F.Supp. at 896); United States v. Gantos, 817 F.2d 41, 43 (8th Cir.), cert. denied, 484 U.S. 860, 108 S.Ct. 175, 98 L.Ed.2d 128 (1987) (same). See also United States v. Torkington, 812 F.2d at 1353 ("[A] central policy goal of [section 2320] is to protect trademark holders' ability to use their marks to identify themselves to their customers...."). 22 In the Lanham Act context, we have stated, "[t]he trademark laws are designed not only to prevent consumer confusion but also to protect 'the synonymous right of a trademark owner to control his product's reputation.' " Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 (2d Cir.1979) (citation omitted). See also A.T. Cross Co. v. Jonathan Bradley Pens, Inc., 470 F.2d 689, 692 (2d Cir.1972); Syntex Laboratories, Inc. v. Norwich Pharmacal Co., 437 F.2d 566, 568-69 (2d Cir.1971); Mastercrafters Clock & Radio Co. v. Vacheron & Constantin-Le Coultre Watches, Inc., 221 F.2d 464, 466 (2d Cir.), cert. denied, 350 U.S. 832, 76 S.Ct. 67, 100 L.Ed. 743 (1955). 23 Thus an interpretation of section 2320's confusion requirement to include the non-purchasing public advances the important purpose underlying the trademark laws of protecting the trademark owner's investment in the quality of the mark and his product's reputation, one that is independent of the goal of preventing consumer deception. 24 The courts in our sister circuits that have addressed the confusion requirement of 18 U.S.C. Sec. 2320 have uniformly rejected Hon's position. See United States v. Yamin, 868 F.2d 130 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989); United States v. Gantos, 817 F.2d 41 (8th Cir.), cert. denied, 484 U.S. 860, 108 S.Ct. 175, 98 L.Ed.2d 128 (1987); United States v. Torkington, 812 F.2d 1347 (11th Cir.1987). See also United States v. Infurnari, 647 F.Supp. 57 (W.D.N.Y.1986); United States v. Gonzalez, 630 F.Supp. 894 (S.D.Fla.1986). In Yamin the Fifth Circuit, affirming the convictions of two defendants for trafficking in counterfeit Rolex, Piaget, Cartier and Gucci watches, held that "[t]he statute's application is not restricted to instances in which direct purchasers are confused or deceived by the counterfeit goods." 868 F.2d at 132. The court found a jury instruction not to be plain error that included confusion "of the public in general.... [which] includes persons who have no intent to purchase such as the recipient of a gift or the guest in the house who simply views goods as well as purchasers and potential purchasers." Id. 25 In Torkington, also a counterfeit watch trafficking case, section 2320's confusion requirement was "satisfied by a showing that it is likely that members of the public would be confused, mistaken or deceived should they encounter the allegedly counterfeit goods in a post-sale context." 812 F.2d at 1352 (citations omitted). The court also found relevant to likelihood of confusion that the defendant "intended to traffic in goods that he knew would be desirable to consumers because the goods would be identified by the public as those of the authentic trademark owner." Id. at 1355 n. 9. See also Gantos, 817 F.2d at 43. 26 Although this is the first instance in which we have been called upon to address section 2320's confusion requirement, the broader confusion standard adopted by the district court has support in our previous decisions interpreting the Lanham Act. In Syntex Laboratories, presented with a possible infringement between health care products with similar but not identical names, we noted that Congress' 1962 amendment of the "likely to confuse" language in the Lanham Act "evinc[ed] a clear purpose to outlaw the use of trademarks which are likely to cause confusion, mistake, or deception of any kind, not merely of purchasers nor simply as to source of origin." 437 F.2d at 568.2 27 At least as far back as G.H. Mumm Champagne v. Eastern Wine Corp., 142 F.2d 499 (2d Cir.), cert. denied, 323 U.S. 715, 65 S.Ct. 41, 89 L.Ed. 575 (1944), a case where a cheap domestic champagne's label resembled that of the plaintiff's premium French import, we have recognized nonpurchaser confusion as relevant. In the words of Judge Learned Hand, 28 as an evening wears on, the label, and only a very casual glance at the label, is quite enough to assure the host and his table that he remains as free-handed and careless of cost as when he began. At such stages of an entertainment nothing will be easier than for an unscrupulous restaurant keeper to substitute the domestic champagne. 29 Id. at 501. See also A.T. Cross Co., 470 F.2d at 692 (Friendly, J.) (noting relevance of trademark infringer's "attempt at persuading purchasers that their donees would think they were receiving Cross pens"); Mastercrafters Clock & Radio Co., 221 F.2d at 466 (trademark copier liable when "at least ... some customers would buy [the] cheaper clock for the purpose of acquiring the prestige gained by displaying what many visitors at the customers' homes would regard as a prestigious article"). 30 Courts outside our circuit have also extended Lanham Act confusion to the public at large. See AMP Inc. v. Foy, 540 F.2d 1181, 1183 (4th Cir.1976); Rolex Watch U.S.A., Inc. v. Canner, 645 F.Supp. 484, 492-93 (S.D.Fla.1986); Koppers Co. v. Krupp-Koppers GmbH, 517 F.Supp. 836, 844 (W.D.Pa.1981); T & T Mfg. Co. v. A.T. Cross Co., 449 F.Supp. 813, 823 (D.R.I.), aff'd, 587 F.2d 533 (1st Cir.1978), cert. denied, 441 U.S. 908, 99 S.Ct. 2000, 60 L.Ed.2d 377 (1979); Rolls-Royce Motors, Ltd. v. A & A Fiberglass, Inc., 428 F.Supp. 689, 694 & n. 10 (N.D.Ga.1977). 31 Hon points to language appearing in some of our prior Lanham Act decisions that he says stands for the proposition that the relevant confusion is that of purchasers or potential purchasers. See Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 47 (2d Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979) (crucial issue is "whether there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question"); Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961) (in eight-factor test for confusion, relevant group assumed to be persons in the market for defendant's products). See also Centaur Communications, Ltd. v. A/S/M Communications, Inc., 830 F.2d 1217, 1225-28 (2d Cir.1987); Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 871-73 (2d Cir.1986); McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1130-38 (2d Cir.1979); Grotrian, Helfferich, Schulz, Th. Steinweg Nachf. v. Steinway & Sons, 523 F.2d 1331, 1339-42 (2d Cir.1975). 32 These cases do not assist the appellant. None hold that confusion among the general public is never relevant under the Lanham Act. Most--Polaroid, Mushroom Makers, Centaur Communications, and McGregor-Doniger --raise the question whether the second mark on a different, non-competing product creates a likelihood of confusion as to the source or origin of the product and are far removed from the counterfeit context presented here. The two others, Lois Sportswear and Steinway, while also not counterfeit cases are closer since the similar marks are on the same product--jeans and pianos, respectively. But in both cases ample purchaser confusion was present, so the courts did not have to consider confusion of the public at large. Finally, there is no suggestion in the legislative history of 18 U.S.C. Sec. 2320 that Congress intended to incorporate Hon's reading of the Polaroid line of cases into its understanding of the confusion requirement it was enacting. 33 In the Lanham Act context, we have remarked that a case where the products are the same "does not require a weighing of the many conflicting considerations necessary in trademark cases where the products are different." A.T. Cross Co., 470 F.2d at 692 (Friendly, J., distinguishing his earlier Polaroid opinion). Indeed the non-exclusive Polaroid factors themselves--strength of prior owner's mark, degree of similarity between the two marks, proximity of the products, likelihood that prior owner will bridge the gap, actual confusion, defendant's good faith, quality of defendant's product, sophistication of the buyers--are designed to assess infringement "[w]here the products are different." 287 F.2d at 495. 34 Where the products are identical and the jury has concluded that the defendant has met the two-pronged mens rea standard of section 2320, a requirement that confusion among actual or potential purchasers be shown is unnecessary. Because the purposes of the trademark laws include protection of the integrity of the mark itself, as well as prevention of consumer fraud, we hold that the "likely to confuse" standard of 18 U.S.C. Sec. 2320 is not limited to purchasers or potential purchasers. Therefore, we conclude that Judge Sweet did not err when he charged the jury that they could consider non-purchaser confusion. II. 35 Hon argues that even if we approve Judge Sweet's charge we must still reverse the conviction because the charge effectively eliminated the confusion requirement and thus nullified his due process right to proof beyond a reasonable doubt of each element of the offense, or because the charge amounted to a partial directed verdict on that issue, thus abridging his sixth amendment right to a jury trial in a serious criminal case. We reject these arguments. 36 First, we do not accept that the charge had the effect ascribed to it by Hon. Even though Judge Sweet, out of the jury's presence, voiced a belief that as a practical matter his instruction "eliminated" the confusion requirement, the charge the jury heard still required them to find a likelihood of confusion as an element of the offense. The jury was free to find no likelihood of confusion, perhaps by deciding that the genuine and counterfeit watches in evidence were not so indistinguishable as to create a "likelihood" of confusion, even among casual observers. Moreover, even if Judge Sweet's charge made a jury finding of no likelihood of confusion highly improbable on these facts, Hon's constitutional right to a jury finding was not impaired. A defendant is not entitled to a jury charge simply to create a reasonable doubt when on the facts and the law as correctly applied there should be none. 37 Hon also argues that Judge Sweet's charge rendered the statute unconstitutionally vague as applied because the instructions did not refer to the "ordinary prudent purchaser" or the "reasonable man," and thus "provided absolutely no guidelines as to whose potential confusion the jury should consider." This argument is frivolous. The charge itself is clear regarding the types of people whose confusion can be considered. Moreover, we fail to see how the statute would be any less vague had the judge charged the jury in the manner Hon urges, i.e., letting them consider the confusion only of an ordinary prudent purchaser or potential purchaser--given the uncertainty inherent in a concept such as "potential purchaser." 38 Hon asserts that Judge Sweet "precluded a commonsense interpretation of whose confusion was relevant" by his comments to counsel that the confusion of even a "cretin observer" would be relevant. But such comments were not heard by the jury, and the charge on its face fairly asks for a commonsense interpretation, in which a reasonableness standard is implicit. See United States v. Powell, 423 U.S. 87, 93-94, 96 S.Ct. 316, 320, 46 L.Ed.2d 228 (1975). Accord United States v. McEvoy, 820 F.2d 1170, 1172-73 (11th Cir.), cert. denied, 484 U.S. 902, 108 S.Ct. 243, 98 L.Ed.2d 201 (1987) (section 2320 not unconstitutionally vague on its face). "[S]training to inject doubt as to the meaning of words where no doubt would be felt by the normal reader is not required by the 'void for vagueness' doctrine, and we will not indulge in it." Powell, 423 U.S. at 93, 96 S.Ct. at 320. III. 39 Finally, Hon argues that the "chain of custody" proof was insufficient to warrant the district court's admission into evidence of certain watches.3 This argument is meritless. 40 As Hon concedes, Fed.R.Evid. 901 requires that to meet the admissibility threshold the government need only prove a rational basis for concluding that an exhibit is what it is claimed to be. United States v. Casamento, 887 F.2d 1141, 1188 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990); United States v. Mendel, 746 F.2d 155, 167 (2d Cir.1984), cert. denied, 469 U.S. 1213, 105 S.Ct. 1184, 84 L.Ed.2d 331 (1985). See also United States v. S.B. Penick & Co., 136 F.2d 413, 415 (2d Cir.1943) (judge must be satisfied that "in reasonable probability the article has not been changed in important respects").4 41 The government more than adequately demonstrated such a rational basis in this case. Although the government, with greater care in handling the exhibits, could have avoided the issue, any "weaknesses" in the government's chain of custody were insufficient to offset the ample evidence supporting admission of the watches. Once the exhibits were admitted into evidence, the alleged defects in the government's chain of custody proof were for the jury to evaluate in its consideration of the weight to be given to the evidence. See United States v. Johnson, 513 F.2d 819, 822 n. 1 (2d Cir.1975); S.B. Penick & Co., 136 F.2d at 415. See also Fed.R.Evid. 901, Advisory Committee's Note at -(a) (authentication and identification represent a special aspect of relevancy, governed by the procedure of Fed.R.Evid. 104(b)). 42 Agent Goldblatt, who purchased the eight watches on January 25, 1988, testified that immediately after the purchase she and her partner brought the watches back to the Customs House, where she placed them in an evidence bag and sealed and labelled it, indicating date and time of purchase and a description of contents. She stored the bag in a locked cabinet in her office, removed it a week later so that the watches could be certified as counterfeit, and then placed the watches back into the bag and resealed it. Agent Piazza, who received the stapled evidence bag from Goldblatt, kept it in his desk, which contained no other evidence of any kind. He took it out on only one occasion when he broke the seal to examine the contents, and then returned the bag, albeit unsealed, to his desk. Goldblatt also testified at trial that she could identify the eight watches as those she purchased from the Hons by the watches themselves, the label on the bag, and the receipt she received at the time of purchase. The incorrect case number on the label arose because Agent Goldblatt mistakenly wrote a "6" instead of a "2" for the ninth digit of the case number. 43 Regarding the watches seized from the trunk of the Hons' car on August 25, 1988, one agent testified that he and his partner physically handed the items to Agent Piazza on that day. Agent Piazza testified that he first locked the watches in his supervisor's office, then in one evidence room and then in a different evidence room, until he brought the exhibits to the U.S. Attorney's office for trial preparation. Although Piazza apparently sealed only the boxes and not the bags, Piazza stated that he covered the rolled-up bags with the boxes when he placed them in the two evidence rooms and found the bags in their original positions when he retrieved them from the rooms. 44 The prosecution is not required to "exclude all possibility that the article may have been tampered with." S.B. Penick & Co., 136 F.2d at 415. See Johnson, 513 F.2d at 822 n. 1. Given the ample evidence offered by the government to demonstrate that the exhibits were what they were claimed to be, we conclude that the district court did not abuse its discretion in admitting them into evidence. 45 Judgment affirmed. 1 The relevant portion of Judge Sweet's charge is: And in addition, the government does not have to prove that the direct purchasers, in this case the undercover agents, were confused, mistaken or deceived when they bought the watches from Hon. Rather, the government must establish a likelihood of confusion either among the members of the purchasing public or among the members of the non-purchasing public in the post sale context. Putting it differently, thus, to assess this likelihood of confusion, you can consider the potential for confusion, mistake or deception among purchasers and potential purchasers of counterfeit or authentic watches, as well as among persons who have no intention of purchasing a watch, such as the recipient of a gift or someone who simply views the watch. 2 The pre-1962 version of the confusion requirement in section 1114(1) read, "is likely to cause confusion, or to cause mistake, or to deceive purchasers as to the source of origin of such goods or services " (emphasis added). The amendment eliminated the italicized portion. As Hon points out, the Senate Report suggests that the amendment's purpose was to make clear that the confusion requirement includes potential purchasers as well as actual purchasers. See S.Rep. No. 87-2107, 87th Cong., 2nd Sess., reprinted in 1962 U.S.Code Cong. & Admin.News 2844, 2847, 2850-51. Still, nothing in the legislative history or the statute as amended excludes from its reach public, nonpurchaser confusion in the case of counterfeits 3 Hon cites evidence that an evidence bag bore a label with an incorrect case number; that the watches in that bag were initially carried loose in the pockets of an agent who was not called as a witness; that the bag was left open for several months in an unlocked desk drawer; that certain other evidence bags and boxes when initially received from the seizing agent may have been left uncounted for several days in an office to which many agents had access; that these bags were never actually sealed when placed in an evidence room to which many persons had access; that no written records were kept of who had custody of various items in the evidence room or when various items entered or left the room 4 Hon cites a Seventh Circuit case, United States v. Lampson, 627 F.2d 62, 65 (7th Cir.1980), for the proposition that when the issue concerns the very identity of the evidence, rather than just possible changes in its condition, heightened scrutiny is appropriate for chain of custody claims. Even if this Circuit were to adopt such a principle, which we need not decide here, we do not believe that this case involves "the very identity of the evidence" as opposed to changes in its condition. Moreover, we believe that the evidence of authentication in this case would support admissibility of the watches even under a heightened standard	{ "pile_set_name": "FreeLaw" }
No. 84-86 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 MOUNTAIN WEST FARM BUREAU MUTUAL INSURANCE COMPANY, a corporation, Plaintiff, Counter-defendant and Respondent, JOHN R. GIRTON and BARBARA GIRTON, Defendants, Counter-claimants and Appellants. APPEAL FROM: District Court of the Fifth Judicial District, In and for the County of Beaverhead, The Honorable Frank Davis, Judge presiding. COUNSEL OF RECORD: For Appellants: Hooks & Budewitz, Townsend, Montana For Respondent : Landoe, Brown, Planalp & Lineberger; Gene I. Brown, Bozeman, Montana Submitted on Briefs: Jan. 18. 1955 Decided: April 11, 1985 ~ p l :i 985 Filed: Clerk I . Justice William E. Hunt, Sr., delivered the Opinj-on of the Court. The appellants', John R. and Barbara L. Girton's, house, insured by the respondent, Mountain West Farm Bureau Mutual Insurance Company, was damaged by a fire that had been intentionally set. The respondent sought a declaratory judgment that the appellants were responsible for the fire. The appellants counterclaimed for coverage, damages for emotional distress and punitive damages for bad faith. A jury trial ended in a verdict for the respondent and this appeal followed. We affirm. The appellants first contend that the evidence is not sufficient to support the jury verdict. When an issue on appeal concerns the sufficiency of the evidence to support a iury verdict review j s governed by established principles. . The standard for review is substantial evidence. If substantial evidence supports the case of the prevailing party the verdict will stand. The evidence will be viewed in a light most favorable to the party that prevailed at trial and, if the evidence conflicts, the credibility and weight given to the evidence is the province of the jury and not this Court. See, Lackey v. Wilson (Mont. 19833, 668 P.2d 1051, 1053, 40 St.Rep. 1439, 1440-1441; Griffel v. Faust (Mont. 1983), 668 P.2d 247, 249, 40 St.Rep. 1370, 1372-1373; Estate of Holm (1978), 179 Mont. 375, 379, 588 P.2d 531, 533-534. Tn arguing to support their contention that the evidence is insufficient the appellants emphasize that they were in New Jersey at the time that the fire occurred. Presence, however, is not a requisite element in proving responsibility. Presence is only a factor that the jury could have weighed in reaching its verdict. The appel-lants also stress that the actual arsonist was not discovered. The identity of the arsonist, like presence, is not a requisite element in proving responsibility. It, too, is only a factor that the jury could have weighed. The identity of the arsonist is also not required to prove an agreement or conspiracy. The jury need only find that the appellants agreed with someone that the fire would be set. The identity of that someone need not be known. The appellants argue that they have contested each element of the evidence that could have any bearing on the iury's determination. In reviewing the record we find that the evidence is in conflict but it is within the province of the jury to determine what evidence shall prevail. The record demonstrates that the jury verdict is supported by substantial evidence. Several months prior to the fire the appellants had moved a valuable coin collection and stamp collection, both uninsured, from the premises. The appel-lants had stored valuable business inventory and business equipment, both insured, in the premises. The house payments were a significant expense to the appellants. The house had been for sale at one time and did not sell. The house was heavily insured. An unusually larqe amount of gasoline was stored in the premises. Some of the gasoline storage containers were of a type compatible with the arson scheme. Some of the arson paraphernalia belonged to the appellants. The arson scheme fit the insurance arsonist profile and was incompatible with other arson profiles such as revenge or vandalism. We hold the iury verdict is supported by substanti.a1 evidence. The appellants next allege that the District Court erred in allowing a witness to testify after the close of the case in chief because the witness was not a proper rebuttal witness and the witness was not listed in the pretrial list of witnesses. Prior to the testimony, the appellants objected on the grounds of improper rebuttal and surprise. The District Court heard both parties on the matter and allowed the testimony. The appellants had argued that the testimony was offered to rebut testimony from the respondent"^ case in chief and it therefore was improper rebuttal. However, the respondent argued that although the testimony did rebut testimony from its own case in chief it more critically was offered to show that they did not commit bad faith in not investigating certain clipped burglar alarm wires, evidence of which was from appellants' case in chief. It is true that rebutting evidence is confined to that which tends to counteract new matter offered by the adverse party, Gustafson v. Northern Pacific Ry. Co. (19601, 137 Mont. 154, 164, 351 P.2d 212, 217, however, the parties are not confined to rebuttal evidence after the close of the case in chief if the court, for good reasons in the furtherance of justice, permits them to offer evidence in their original cause. Section 25-7-301 (4), MCA. We find that it was in the interests of justice to allow this testimony and, in part, it was offered to counter a new matter offered by the appellant owners. An issue in the case was whether the respondent acted in bad faith in pursuing the insurance claim. One allegation by the appellants was that the respondent's investigation was incomplete. A factor that had a bearing on the issue was whether the respondent should have more thoroughly investigated the cl ipped burglar alarm wires. If it could be shown that at the time of the fire the burglar alarm system was inoperable and that the respondent knew this, the respondent's investigation could fairly be limited in that aspect. As to the appellants' objection of surprise, we find that the appellant requested only ten minutes to prepare for the witness. The District Court granted this request. No further request for time was made. If the appellants could not prepare for the witness more time should have been requested and it is improper now to allege that inadequate time to prepare was granted. The appellant next alleges that the evidence of statenents made by one of the appellants several years prior to the fire about "torching" a building was irrelevant and prejudicial. The District Court allowed evidence in the form of witness testimony that one of the appellants had been interested in purchasing a building but the owner had wanted a high price. The witness stated that the appellant kind of laughed and said something to the effect of "why not torch it, maybe we could get a better price." The witness further testified that he took it a 3 1 in jest. The statement was made several years prior to the fire here in question, and the circumstances under which it was made demonstrate that it had little bearing on the past or present motive of the appellant. The jury was aware of the time and circumstances 'of the statement. They were also informed that it was taken in jest. While the testimony may be questionable, the District Court has wide discretionary power to admit evidence. Admitting this testimony was within the District Court's discretion. Affirmed. We Concur: , Justices Mr. Justice John C. Sheehy, specially concurring: I would nold that the District Court abused its discretion in admitting the "torching" statement, which I deem to be ancient. However, the error was harmless. \ - . ,/=&&. .-k: &/dW1 / Justice I	{ "pile_set_name": "FreeLaw" }
43 F.3d 1485 NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Rebecca J. SHIRES, Petitioner,v.MERIT SYSTEMS PROTECTION BOARD, Respondent. No. 94-3617. United States Court of Appeals, Federal Circuit. Dec. 5, 1994. 1 63 M.S.P.R. 702. 2 PETITION DISMISSED. ORDER 3 The petitioner having failed to file the brief required by Federal Circuit Rule 31. (a) within the time permitted by the rules, it is 4 ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.	{ "pile_set_name": "FreeLaw" }
346 F.2d 960 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.G & J COMPANY, Inc., Respondent. No. 15080. United States Court of Appeals Third Circuit. Argued April 8, 1965. Decided June 16, 1965. Elliott C. Lichtman, Atty., N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., N. L. R. B., on the brief), for petitioner. Samuel Weitzman, Weitzman, Brady & Weitzman, Newark, N. J., for respondent. 1 Before GANEY and FREEDMAN, Circuit Judges, and KIRKPATRICK, District Judge. 2 KIRKPATRICK, District Judge. 3 This is a petition by the National Labor Relations Board for enforcement of a cease-and-desist order, which includes reinstatement of four employees with reimbursement for lost wages. 4 The Board's finding that the respondent violated Section 8(a) (1) of the Act, 29 U.S.C. 158(a) (1), by coercively interrogating its employees, by threatening them, and by promising benefits for their withdrawal from the union, although not precisely admitted, has not been challenged before this Court. In fact, there can be no question of the sufficiency of the evidence to sustain the Board's finding on this point. 5 Upon the issue of reinstatement, the question as to three of the employees involved is whether their layoffs were occasioned by their union connection and activities or by legitimate economic considerations. Upon the question of the employer's motivation, the record is replete with statements made by the respondent's president, both in a speech to assembled employees and in conversations with individuals, showing a determination on his part to prevent by every means possible the entry of any union into the plant and to visit loss of employment upon such of the employees as might attempt to join or to form a union. The Board rejected, and properly, the contention made before it that evidence was lacking to show that the president knew of the union activities of these particular employees. 6 There was evidence that additional men were hired just before the layoffs, and the Board, after comparing the economic situation in 1962 with an earlier period, rejected the explanation offered by the respondent of a reduction in force to meet a seasonal decline in business. That the layoffs of these three employees were caused by their union activities is almost an inescapable conclusion. 7 As to Davis, the discharged employee, admittedly there was cause which would have justified his discharge, but the Board, examining the evidence as a whole, concluded that, in fact, he was not discharged because of his record of absenteeism and tardiness nor for the purpose of making a place for the president's future son-in-law but because of his union activities. 8 In N. L. R. B. v. Buitoni Foods Corp., 3 Cir., 298 F.2d 169, 174, a case almost on all four's with the present one, this Court said, 9 "There is clearly no obligation on the Board to accept at face value the reason advanced by the employer. The concurrent existence of an otherwise valid reason for the discharge of an employee does not preclude a factual determination that his discharge was discriminatory if it appears from a preponderance of evidence, and the reasonable inferences drawn therefrom, that the discharge was in fact motivated by the employer's opposition to the employee's union activities." 10 This statement of the law is fully applicable to the present case and needs no elaboration. 11 It is the responsibility of the Board in a case of this kind to weigh the evidence and resolve the factual conflicts, and we see nothing in the record to cause us to disagree with the Board's findings and conclusions or to modify its order. 12 The petition for enforcement will be granted.	{ "pile_set_name": "FreeLaw" }
970 A.2d 1147 (2009) COM. v. ZITO. No. 764 MAL (2008). Supreme Court of Pennsylvania. May 1, 2009. Disposition of petition for allowance of appeal. Denied.	{ "pile_set_name": "FreeLaw" }
830 S.W.2d 285 (1992) Claudia COHEN, Appellant, v. Roger Coleman SIMS, Appellee. No. A14-91-00637-CV. Court of Appeals of Texas, Houston (14th Dist.). April 30, 1992. Rehearing Denied May 28, 1992. 286 Shawn Casey, Houston, for appellant. Earle S. Lilly, Leslie Werner de Soliz, Houston, for appellee. 287 Before SEARS, CANNON and ELLIS, JJ. OPINION CANNON, Justice. Claudia Cohen, appellant, filed a motion to modify the child support provision of her divorce decree. The court of continuing jurisdiction heard the motion and granted an increase in child support. Appellant brings this appeal complaining the trial court 1) erred in sustaining, Roger Coleman Sims' (Sims) objection to the introduction of any evidence concerning lump sum and/or retroactive child support; 2) abused its discretion in not granting her trial amendment; 3) abused its discretion in failing to continue support for the eldest child until she graduates from high school; 4) abused its discretion in failing to order Sims to pay all costs of health and psychological treatment for his children; and 5) abused its discretion in awarding her only $4,550 in attorney's fees. Appellee has filed a single cross-point of error requesting sanctions against appellant for bringing a frivolous appeal. We affirm. On July 26, 1990, appellant filed a motion to modify child support alleging that the needs of the children, Marjorie Monica Sims (Marjorie) and Laura Cameron Sims (Laura), had increased and that the income of Sims had substantially increased. The motion requested an increase in child support in the best interest of the children, and reasonable attorney's fees for appellant's attorney. Before the modification hearing, the parties entered into several stipulations which were made part of the record at the hearing. In the stipulations, appellant waived all motions filed regarding economic discovery and discovery regarding the past and present financial affairs of Sims. In return, Sims stipulated that he had "a positive economic change of circumstances" and "that he ha[d] the financial means to satisfy any reasonable order of this court for prospective child support, including lump sum or retroactive support (if ordered), as well as the means to pay any reasonable attorney fees award, if any, made by this court." Sims further stipulated, "[t]o the extent that this court awards additional child support for the needs of the minor children (as well as other financial orders such as attorney fees), [he] would be estopped to claim inability or insufficient funds to pay such." The stipulation by Sims, however, specifically stated that he did "not stipulate nor waive any defenses to such child support increases, attorney fees, lump sum, or retroactive support," and "that the needs of the children are met by the present support order." The trial court, after examining the pleadings, and hearing the evidence and argument of counsel, found the material allegations pertaining to support in appellant's motion were true. The court ordered support for both children increased from a total of $900 a month to $2,500 a month until June 30, 1991, the month of Marjorie's graduation from high school. Beginning July 1, 1991, the court reduced support to $1,500 a month until Laura reaches the age of 18 years, graduates from high school, marries, dies or is otherwise freed from disability or emancipated. The court ordered Sims, for as long as child support is payable, to maintain and pay 100% of the cost for major medical and health insurance for the children, and to pay 50% of any unreimbursed health care expenses including medical, dental, and orthodontic expenses. The trial court also ordered Sims to pay appellant's attorney $4,550 in fees. There were twenty findings of fact and five conclusions of law filed by the trial court in this case. These findings of fact are not conclusive in this appeal because a statement of facts appears in the record. Kroger Co. v. Warren, 420 S.W.2d 218, 221 (Tex.Civ.App.Houston [1st Dist] 1967, no writ) (citing Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156 (1950)). "It is necessary, however, that material findings of fact be challenged by appropriate points in appellant's] brief or else the appellant[] [is] bound by the findings of fact." Id. See City of Wichita Falls v. Streetman, 607 S.W.2d 644, 648 (Tex.Civ.App.Fort Worth 1980, no writ). The court's findings of fact are "susceptible to challenge on two grounds: `legal sufficiency ... and factual 288 sufficiency ... of the evidence.'" City of Wichita Falls, 607 S.W.2d at 648 (quoting Michol O'Connor, Appealing a Nonjury Case, The Houston Lawyer, Feb.-Mar. 1975). In this case, appellant does not challenge any of the trial court's findings of fact on either of these two grounds. Therefore, "[a] detailed discussion of the evidence as applied to the fact findings..." is not required. Kroger Co., 420 S.W.2d at 221. "Any unchallenged findings of fact which will support the judgment will preclude reversal of the case." Gable v. Wood, 622 S.W.2d 884, 885 (Tex. App.Fort Worth 1981, writ dism'd). In point of error one, appellant complains the trial court erred when it sustained Sims' objection to her introduction of evidence concerning retroactive and/or lump sum child support. Appellant alleges the trial court has broad discretion in setting child support, and retroactive and lump sum child support are allowed by the Family Code. See Tex.Fam.Code Ann. §§ 14.-05(a), 14.08(c)(2) (Vernon Supp.1992). She argues that there is no requirement in the Family Code that she specifically plead the relief she is seeking, in order for the trial court to grant such relief. The record reveals that the trial court sustained Sims' objection to evidence of retroactive child support. As to Sims' objection to evidence of lump sum child support, however, the trial court stated "I shall consider it. Move on." During final argument the trial court stated it was "not even considering" making an award of lump sum support. Therefore, appellant's complaint as to lump sum support is not well founded. At the end of the evidence the court determined, within its discretion, that lump sum support was not called for in this case. We agree with appellant that the trial court has broad discretion in these matters. Hoffman v. Hoffman, 805 S.W.2d 848, 851 (Tex.App.Corpus Christi 1991, writ denied). Nonetheless, simply because the trial court did not exercise its discretion in appellant's favor is not a reason for this court to reverse the trial court. The trial court's decision will not be overturned unless a clear abuse of discretion is shown. Id. Additionally, appellant is correct that the rules of pleading and practice are not of primary concern in child custody and support cases, the best interest of the child is the primary concern. White v. Adcock, 666 S.W.2d 222, 226 (Tex.App.Houston [14th Dist.] 1984, no writ); Boriack v. Boriack, 541 S.W.2d 237, 242 (Tex.App.Corpus Christi 1976, no writ); Tex.Fam.Code Ann. § 14.07(a) (Vernon Supp.1992). We disagree, however, that because Sims stipulated he would not raise the defense of financial inability or insufficient funds to pay additional child support, the trial court was required to hear evidence on retroactive support. The stipulation of the parties included the statement that Sims was not waiving any defenses to "lump sum, or retroactive support" and "the needs of the children" were met by the support order currently in force. The trial court could have reasonably determined that retroactive child support was not necessary in this case. In its findings and conclusions, the trial court concluded that its actions were in the best interest of the children based on the unchallenged findings of fact. We overrule appellant's point of error one. In point of error two, appellant contends the trial court abused its discretion in refusing to grant her requested trial amendment as to retroactive child support. Appellant alleges that Sims could not show surprise or hardship as to the amendment because of the stipulation made by the parties. Point of error two contains no case law to support appellant's position. The stipulation stated that Sims did not waive any defenses to child support increases, attorney fees, lump sum, or retroactive support, other than the fact that he had the financial ability to pay a reasonable increase in child support. We fail to understand how a party making a stipulation as to financial ability, but wisely protecting his interests by stating that he did not waive any defenses as to any other possible basis of support, has somehow indicated an 289 awareness that appellant was seeking all of these. Knowledge of the bases of support that appellant might seek, does not indicate that Sims was aware appellant was actually seeking that basis of support. Further, the trial court could reasonably have determined that retroactive child support was not necessary in this case; and the trial court did conclude that its actions were in the best interest of the children based on the unchallenged findings of fact. We find no abuse of discretion. Appellant's point of error two is overruled. In point of error three, appellant alleges the trial court abused its discretion in failing to continue support for the eldest child until she graduated from high school. Appellant argues that this is contrary to section 4.02 and requires reversal. See Tex.Fam.Code Ann. § 4.02 (Vernon Supp. 1992). The evidence at the hearing clearly showed Marjorie, the eldest child, would turn 18 years of age in April 1991 and would graduate from high school in June 1991. The trial court ordered child support to continue at $2,500 until July 1, 1991, making the support effective through the end of the school year in which Marjorie was to graduate from high school as permitted by statute. Tex.Fam.Code Ann. § 14.05(a) (Vernon Supp.1992). Appellant filed a motion for new trial stating Marjorie had not graduated from high school as anticipated. Attached to the motion for new trial was an undated letter from Marjorie's high school counselor, stating she needed to stay in school through a summer and fall semester. There are no dates in the letter revealing which summer and fall semesters the counselor is talking about. The trial court was presented no competent evidence on which to base a decision about extending the child support payments and it must be presumed the trial court disregarded any incompetent evidence. Naficy v. Broker, 642 S.W.2d 282, 285 (Tex. App.Houston [14th Dist.] 1982, writ ref'd n.r.e.). The trial court properly overruled the motion as to this complaint. Section 4.02 does state that "[e]ach parent has the duty to support his or her child during the period that the child is a minor, and thereafter so long as the child is fully enrolled in an accredited secondary school program leading toward a high school diploma until the end of the school year in which the child graduates." Tex. Fam.Code Ann. § 4.02 (Vernon Supp.1992). However, "[t]his does not mean ... that the court must divide the burden of support of the minor children equally between the parties," Cooper v. Cooper, 513 S.W.2d 229, 234 (Tex.Civ.App.Houston [1st Dist.] 1974, no writ), and the mother as well as the father has a duty to support her children. Further, the language of section 14.05 clearly makes the date to which periodic support payments extend discretionary with the trial court. Tex.Fam.Code Ann. § 14.05(a) (Vernon Supp.1992). The statute states "the order for periodic support may provide that payments continue until the end of the school year in which the child graduates." Id. In the unchallenged finding of fact number 14 the trial court found Marjorie would graduate from high school prior to July 1, 1991. There was no abuse of discretion in this case. We overrule appellant's point of error three. In point of error four, appellant argues the trial court abused its discretion in failing to order Sims to pay all costs of health and psychological treatment for his children. Appellant alleges that because Sims stipulated financial ability he should pay all physical and mental health expenses for the children. In its unchallenged findings of fact, the court found that the increases in support were sufficient to satisfy the needs and lifestyle of both minor children, and that Sims is capable of providing additional support for the children. Based on its findings of fact, the court concluded that both parents owe a duty of support to the children. The family code provides that each parent "has the duty to support the child, including providing the child with clothing, food, shelter, medical care, and education." Tex. Fam.Code Ann. §§ 4.02, 12.04(3) (Vernon Supp.1992). See White, 666 S.W.2d at 225. Additionally, the trial court did order Sims to pay 100% of the premiums to maintain *290 major medical and health insurance on the children, and to pay 50% of all uninsured medical costs for the children. The evidence at the hearing established that Sims had voluntarily contributed to his children's needs, medical and otherwise, beyond what was originally ordered. Appellant's own testimony showed that Sims payed 100% of Laura's orthodontic costs, had paid 100% of all except two or three uninsured medical bills even though he was under court order only to pay 50% of these expenses, and had never paid less than his court ordered portion on any expenses. "A parent who freely takes responsibility for his or her children should be encouraged." White, 666 S.W.2d at 226. Further, appellant's testimony established that since the previous modification hearing, the children had not been for psychiatric counseling until a few days before the instant hearing. The children had been sent to an unlicensed psychotherapist, appellant did not know what the counseling concerned, and there was no evidence presented as to why the children would need such counseling. The record as a whole does not reflect that the refusal to order Sims to pay 100% of the children's medical costs and psychiatric counseling was an abuse of discretion. We overrule appellant's point of error four. In point of error five, appellant complains the trial court abused its discretion in limiting its award of her attorney's fees and costs by $3,635.05. Appellant argues that because Sims made the stipulation of financial ability to pay, the trial court was required to award the full $8,185.05 in fees and costs on which she offered evidence. Appellant correctly states that section 11.18 provides "[in] any proceeding under this subtitle ... the court may award costs. Reasonable attorney's fees may be taxed as costs, and may be ordered paid directly to the attorney...." Tex.Fam. Code Ann. § 11.18(a) (Vernon 1986). The trial court concluded that the $4,550 it awarded appellant in attorney's fees was reasonable. Absent a showing of an abuse of discretion, this Court is unable to reverse the trial court's decision on attorney's fees. City of Houston v. Harris County Outdoor Advertising Ass'n, 732 S.W.2d 42, 56 (Tex.App.Houston [14th Dist.] 1987, no writ); White, 666 S.W.2d at 226. The record establishes that appellant's attorney testified he had been licensed in the State since 1975, was familiar with the usual and customary fees charged for a modification action, was charging appellant an hourly rate plus expenses, and had expended a total of 45.75 hours. Interestingly, appellant's attorney testified at the hearing that he was charging $175 per hour but in his brief to this Court he has stated he was charging $150 per hour. He further stated that appellant had already paid him $450 in fees and his expenses were just under $200. His testimony was controverted by the testimony of Sims' attorney. Sims' attorney stated he had been licensed to practice in the state since 1965 or 1966, he felt the hourly rate of $175 was reasonable, the total number of hours was very unreasonable, the case was void of any time consuming extenuating circumstances, the total reasonable number of hours would be 25 and the total reasonable fee would be $3,000 to $4,000. We find no abuse of discretion in the trial court's award of $4,550 in attorney's fees to appellant. Appellant's final point of error is overruled. As to appellee's sole cross-point of error, asking this Court to impose sanctions on appellant for bringing a frivolous appeal for purposes of delay and without sufficient cause, we find no merit in this contention. Appellee's cross-point of error is overruled. The judgment of the trial court is affirmed.	{ "pile_set_name": "FreeLaw" }
903 F.2d 106 58 USLW 2673, Fed. Sec. L. Rep. P 95,220 PAINEWEBBER, INC., Appellee,v.Pat RUTHERFORD, Charles Vedrody and Mary Vedrody, Appellants. No. 1111, Docket 89-9035. United States Court of Appeals,Second Circuit. Argued April 16, 1990.Decided May 7, 1990. Robert Dyer, Orlando, Fla. (Neal J. Blaher, and Duckworth, Allen, Dyer & Doppelt, Orlando, Fla., on the brief), for appellants, Pat Rutherford, Charles Vedrody and Mary Vedrody. Sarah G. Anderson, New York City, for appellee, PaineWebber, Inc. Before TIMBERS, MESKILL and CARDAMONE, Circuit Judges. TIMBERS, Circuit Judge: 1 Appellants appeal from a summary judgment entered September 14, 1989, in the Southern District of New York, Kenneth Conboy, District Judge, granting separate motions to compel arbitration. PaineWebber, Inc. v. Pitchford, 721 F.Supp. 542 (S.D.N.Y.1989). 2 Appellant Pat Rutherford appeals from that part of the order which denied her cross-motion to compel arbitration of her claim against appellee PaineWebber, Inc. before the American Arbitration Association ("AAA"). The district court reached its decision by giving effect to a clause in Rutherford's agreement with PaineWebber that required that any dispute between the parties be arbitrated before one of several fora provided by the securities industry. On appeal, Rutherford renews her claim that the agreement is superseded by a provision in the Constitution of the American Stock Exchange ("AMEX") which, she alleges, permits her to choose the AAA as a forum despite the agreement. For convenience, we will refer to this branch of the appeal as the "Rutherford claim." 3 Appellants Charles and Mary Vedrody stand in a different position. There is no dispute that their claim against PaineWebber may be arbitrated before the AAA. They appeal from that part of the court's order which requires their claim before the AAA to be arbitrated in the City of New York. The court based its decision on the statement in the AMEX Constitution that claims may be brought "before the [AAA] in the City of New York." On appeal, the Vedrodys renew their claim that the geographic reference is not a venue provision, but rather merely descriptive. We will refer to this branch of the appeal as the "Vedrody claim." 4 For the reasons that follow, we affirm the order of the district court in its entirety. We will not address in detail the legal questions presented by the Rutherford claim, since those questions are resolved fully by our decision today in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Georgiadis, 903 F.2d 109 (2 Cir.1990). I. 5 We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. 6 This appeal arises from claims by a large number of customers against appellee PaineWebber, Inc., alleging that employees of PaineWebber touted a certain stock in order to inflate its value, induced customers to buy shares, and then sold their own shares before the price collapsed. The merits of the case are not before us. 7 Appellants are part of a larger class of 21 claimants, represented by the same counsel, who have identical grievances against PaineWebber. For our purposes, the class can be divided into two categories. The first category, which included Rutherford, had signed pre-dispute agreements with PaineWebber. These agreements all contained provisions requiring any dispute to be settled by arbitration by the so-called self-regulatory organizations ("SROs") of the securities industry. Rutherford's agreement provided that: 8 "Any controversy between us arising out of or relating to this contract or the breach thereof, shall be settled by arbitration, in accordance with the rules, then obtaining, of either the Arbitration Committee of the New York Stock Exchange, American Stock Exchange, National Association of Securities Dealers or where appropriate, Chicago Board Options Exchange or Commodity Futures Trading Commission, as I [Rutherford] may elect." 9 The other category, which included the Vedrodys, did not sign pre-dispute agreements with PaineWebber. Their right to arbitration was governed by the relevant provision of the AMEX Constitution, Art. VIII, Sec. 2(c) (the so-called "AMEX Window"), which provides that: 10 "the customer may elect to arbitrate before the American Arbitration Association in the City of New York, unless the customer has expressly agreed, in writing, to submit only to the arbitration procedure of the Exchange." 11 On or about March 29, 1988, all of the claimants filed a joint complaint against PaineWebber. The complaint was filed in the AAA's Miami office, and included a demand for arbitration before the AAA in Orlando, Florida. PaineWebber responded by commencing a special proceeding in the New York Supreme Court, New York County, on May 27, 1988, which sought to block the requested arbitration. Appellants and the other claimants removed the action to the Southern District of New York soon thereafter. 12 The parties filed motions for summary judgment. In an opinion and order entered September 14, 1989, the court granted summary judgment in favor of PaineWebber on separate grounds, viz. that Rutherford and the others similarly situated could not submit their claim to the AAA, and that the Vedrodys and others similarly situated had to submit their claim to the AAA in New York City, or not at all. 721 F.Supp. 542 (S.D.N.Y.1989). 13 This appeal followed. II. 14 We turn first to the issue presented by the Rutherford claim: whether an agreement between a broker and a customer to arbitrate disputes only in an SRO may supersede the terms of a stock exchange constitution in general and the AMEX Window in particular. As stated above, our holding that such agreements should be given effect is based on our decision in Merrill Lynch v. Georgiadis, supra, 903 2. 2d 109. 15 There is one potentially significant distinction between the two cases. In Merrill Lynch, the customer agreed to arbitrate "only before" the New York Stock Exchange, the National Association of Securities Dealers or other unnamed SROs. Id. at 111. By contrast, the Rutherford agreement provides that arbitration be "in accordance with the rules" of one of the SROs. 16 Although Rutherford does not press the point vigorously on appeal, we agree with the district court that that language should be construed simply as an agreement to arbitrate before one of the SROs rather than the AAA. 721 F.Supp. at 549. To hold, as Rutherford apparently contends, that the quoted language incorporates the AMEX Window rather than superseding it, would allow customers to circumvent their agreements with ease. Id. 17 That leaves for decision the question whether "a specific customer agreement can supersede the AMEX Constitution regarding the choice of arbitration fora." Merrill Lynch, supra, 903 2. 2d at 111. For the reasons set forth in section II of the Merrill Lynch opinion, we hold that it can. We therefore affirm the order of the district court in this respect. III. 18 This brings us to the Vedrody claim--whether the phrase in the AMEX Window "before the American Arbitration Association in the City of New York" compels the Vedrodys, if they elect AAA arbitration, to arbitrate in New York City. 19 The Vedrodys contend that the phrase "in the City of New York" is merely a reference to the headquarters of the AAA, rather than a forum selection clause. We disagree. We of course are guided by the principle that extrinsic evidence may not be resorted to for the purpose of altering contractual terms that, standing alone, are unambiguous. E.g., Wards Co. v. Stamford Ridgeway Assocs., 761 F.2d 117, 120 (2 Cir.1985). 20 The argument that "in the City of New York" is descriptive is undermined by the fact that, at all relevant times, there was only one American Arbitration Association. The geographic reference is superfluous if not a forum selection clause. PaineWebber, supra, 721 F.Supp. at 551. In essence, the Vedrodys invite us to read "in the City of New York" as "of the City of New York" (emphasis added). Since we must give effect to the agreement by its terms, if possible, we decline their invitation. 21 To the extent that our decision conflicts with the one opinion that has addressed this precise issue, Boudreau v. L.F. Rothschild & Co., No. 89-250-CIV-ORL-18 (M.D.Fla.1990), we decline to follow it. We are aware that our holding also conflicts with the views of AMEX and the AAA. Both organizations would permit arbitration nationally, absent a contractual provision to the contrary. We cannot alter the unambiguous terms of the AMEX Window simply because the alternative construction may be thought to be fairer to the Vedrodys. E.g., United States v. 0.35 of an Acre of Land, 706 F.Supp. 1064, 1070 (S.D.N.Y.1988) (citing Collard v. Incorporated Village of Flower Hill, 52 N.Y.2d 594, 604, 439 N.Y.S.2d 326, 331, 421 N.E.2d 818, 823 (1981)). If AMEX finds that our construction is unacceptable, it of course is free to change the terms of future agreements. Cf. Roney & Co. v. Goren, 875 F.2d 1218, 1221 (6 Cir.1989). IV. To summarize: 22 We hold that, based on her agreement with PaineWebber, Rutherford must submit her claim to one of the SRO fora provided for in the agreement or lose her right to arbitrate. We further hold that the phrase in the AMEX Window "in the City of New York" is a forum selection clause. If the Vedrodys exercise their right to submit their claim to the AAA, they must do so in New York City, or not at all. 23 Affirmed.	{ "pile_set_name": "FreeLaw" }
November 1, 2016 JUDGMENT The Fourteenth Court of Appeals MARATHON PETROLEUM COMPANY LP, Appellant NO. 14-16-00634-CV V. CHERRY MOVING COMPANY, INC., Appellee ________________________________ Today the Court heard its own motion to dismiss the appeal from the judgment signed by the court below on July 15, 2016. Having considered the motion and found it meritorious, we order the appeal DISMISSED. We further order that all costs incurred by reason of this appeal be paid by appellant, Marathon Petroleum Company LP. We further order this decision certified below for observance.	{ "pile_set_name": "FreeLaw" }
16-3943 Rivadeneira Manosalvas v. Sessions BIA Straus, IJ A078 678 815 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 27th 4 day of July, two thousand eighteen. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 SUSAN L. CARNEY, 9 Circuit Judges, 10 EDWARD KORMAN, 11 District Judge. 12 _____________________________________ 13 14 MARIO BELFOR RIVADENEIRA 15 MANOSALVAS, AKA MISAEL GUTIERREZ 16 GARCIA, AKA MIGUEL GARCIA, 17 Petitioner, 18 19 v. 16-3943 20 21 JEFFERSON B. SESSIONS III, 22 UNITED STATES ATTORNEY GENERAL, 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Glenn L. Formica, Elyssa N. Williams, 27 Formica Williams, P.C., New Haven, CT. 28  Judge Edward Korman, of the United States District Court for the Eastern District of New York, sitting by designation. 1 FOR RESPONDENT: Chad A. Readler, Acting Assistant 2 Attorney General; Douglas E. Ginsburg, 3 Assistant Director; Jenny C. Lee, 4 Trial Attorney, Office of Immigration 5 Litigation, United States Department 6 of Justice, Washington, DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a Board 9 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, 10 ADJUDGED, AND DECREED that the petition for review is GRANTED. 11 Petitioner Mario Belfor Rivadeneira Manosalvas 12 (“Rivadeneira”), a native and citizen of Ecuador, seeks review of 13 an October 27, 2016 decision of the BIA affirming a December 23, 14 2015 decision of an Immigration Judge ordering Rivadeneira’s 15 removal and denying his application for cancellation of removal. 16 In re Mario Belfor Rivadeneira Manosalvas, No. A 078 678 815 17 (B.I.A. Oct. 27, 2016), aff’g No. A 078 678 815 (Immig. Ct. 18 Hartford Dec. 23, 2015). We assume the parties’ familiarity with 19 the underlying facts and procedural history in this case. 20 Rivadeneira received a charging document entitled “Notice to 21 Appear” in 2000 and was ordered removed in absentia in 2001 under 22 an alias, but never departed the United States. In 2015, he was 23 served with another charging document, also entitled “Notice to 24 Appear,” and sought cancellation of removal. An alien like 25 Rivadeneira may establish eligibility for cancellation of removal 26 if he can demonstrate, among other requirements, that he “has been 27 physically present in the United States for a continuous period of 2 1 not less than 10 years immediately preceding the date of [his] 2 application.” 8 U.S.C. § 1229b(b)(1)(A). However, under the 3 stop-time rule, “any period of continuous residence or continuous 4 physical presence in the United States shall be deemed to end . . 5 . when the alien is served a notice to appear under” 8 U.S.C. 6 § 1229(a). Id. § 1229b(d)(1). The agency denied cancellation, 7 reasoning that the service of Rivadeneira’s 2000 charging document 8 prevented Rivadeneira from accruing the required ten years of 9 continuous physical presence in the United States. 10 We retain jurisdiction to consider the question of law at 11 issue in this case: whether the 2000 charging document stopped 12 Rivadeneira’s accrual of physical presence for cancellation of 13 removal. See id. §§ 1252(a)(2)(B), (D); Barco-Sandoval v. 14 Gonzales, 516 F.3d 35, 38-40 (2d Cir. 2008). For the reasons 15 discussed below, we vacate and remand due to an intervening Supreme 16 Court decision that calls into question whether the stop-time rule 17 was triggered in 2000 in Rivadeneira’s case. See Pereira v. 18 Sessions, 138 S. Ct. 2105 (2018). 19 As noted above, the BIA’s conclusion that Rivadeneira was 20 ineligible for cancellation of removal rested on a determination 21 that Rivadeneira’s 2000 charging document was sufficient to 22 trigger the stop-time rule. See, e.g., J.A. at 5 (“[T]he Notice 23 to Appear terminated [Rivadeneira’s] continuous physical presence 24 in 2000.”). The Government has produced a copy of Rivadeneira’s 3 1 2000 charging document in its supplemental brief on appeal.1 The 2 charging document does not list a hearing date.2 In Pereira, the 3 Supreme Court held that service of a charging document will not 4 trigger § 1229b(d)(1)’s stop-time rule unless the charging 5 document includes a hearing date. Pereira, 138 S. Ct. at 2113– 6 14. Pereira expressly abrogated this Court’s precedent, which had 7 deferred to the BIA’s position that a charging document stops the 8 time even if it does not list a hearing date. See id. & n.4; 9 Guaman-Yuqui v. Lynch, 786 F.3d 235, 238-41 (2d Cir. 2015) (per 10 curiam); Matter of Camarillo, 25 I. & N. Dec. 644, 651 (B.I.A. 11 2011). Pereira also therefore implicitly overrode the BIA’s 12 determination that Rivadeneira’s 2000 charging document alone 13 triggered the stop-time rule. The BIA’s decision must therefore 14 be vacated.3 1We note that this document was not included in Rivadeneira’s Certified Administrative Record. We will therefore assume arguendo, and without making a factual determination, that this document accurately represents Rivadeneira’s 2000 charging document. 2 Incidentally, we note that Rivadeneira’s 2015 charging document does not appear to specify a hearing date either. See J.A. 360. 3 Although Rivadeneira did not challenge the adequacy of his 2000 charging document before the agency, his failure to exhaust is excused because our precedent at the time foreclosed his argument. See, e.g., Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 135 (2d Cir. 2014) (“[A] party cannot be deemed to have waived objections or defenses which were not known to be available at the time they could first have been made.” (quoting Hawknet, Ltd. v. Overseas Shipping Agencies, 590 F.3d 87, 92 (2d Cir. 2009))). 4 1 The Government contends that any defect in Rivadeneira’s 2000 2 charging document was cured by service of a subsequent hearing 3 notice. See, e.g., Guamanrrigra v. Holder, 670 F.3d 404, 410–11 4 (2d Cir. 2012) (per curiam). This issue was not raised before the 5 BIA, and we decline to address it in the first instance on appeal. 6 Accordingly, we remand for the BIA to consider, in light of 7 Pereira, whether and when the stop-time rule was triggered in 8 Rivadeneira’s proceedings. 9 For the foregoing reasons, the petition for review is GRANTED, 10 the BIA’s decision is VACATED, and the case is REMANDED to the BIA 11 for further proceedings consistent with this order. Because we 12 have completed our review, Rivadeneira’s stay motion is DENIED as 13 moot. 14 FOR THE COURT: 15 Catherine O’Hagan Wolfe 16 Clerk of Court 5	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE CHARLES DEWAYNE MOORE v. KENNETH W. LOCKE, WARDEN and STATE OF TENNESSEE Appeal from the Criminal Court for Davidson County No. 3657 J. Randall Wyatt, Jr., Judge No. M2005-01866-CCA-R3-HC - Filed February 2, 2006 The Petitioner, Charles Dewayne Moore, appeals from the trial court’s summary dismissal of his petition seeking habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court’s denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State’s motion is granted. The judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed Pursuant to Rule 20, Tenn. Ct. Crim. App. R. DAVID H. WELLES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and ROBERT W. WEDEMEYER , JJ., joined. Charles Dewayne Moore, Pro Se. Paul G. Summers, Attorney General and Reporter Rachel E. Willis, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Lisa Naylor, Assistant District Attorney General, for the appellee, State of Tennessee. MEMORANDUM OPINION It appears from the record on appeal that on March 16, 2005, in the Criminal Court of Roane County, the Petitioner, Charles Dewayne Moore, was convicted of voluntary manslaughter and was sentenced to a term of twelve years. On June 3, 2005, apparently while incarcerated in Davidson County, the Petitioner filed a petition seeking habeas corpus relief. Without conducting an evidentiary hearing, the trial court issued an order dismissing the petition. The order of dismissal states that the petitions was dismissed because it did not contain a copy of the Petitioner’s judgment of conviction, nor did it contain a satisfactory reason for its absence. See Tenn. Code Ann. § 29-21-107(b)(2). The petition alleges that the twelve-year sentence as a Range III persistent offender is an illegal sentence because the Petitioner did not have the requisite number of prior convictions to qualify as a persistent offender. Although not asserted in the petition filed in the trial court, the Petitioner on appeal also argues that his conviction and sentence violate his protection against double jeopardy, that he received the ineffective assistance of counsel and that his guilty plea which led to his conviction was not knowingly and voluntarily entered. He also argues that his due process rights were violated. Article 1, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus relief and our statutes codify the applicable procedures for seeking a writ. Tenn. Code Ann. §§ 29-21-201 et seq. However, the grounds upon which our law provides relief are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). Habeas corpus relief is available in Tennessee only when it appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered that (1) the convicting court was without jurisdiction or authority to sentence the defendant; or (2) the defendant’s sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). It is permissible for a trial court to summarily dismiss a petition for habeas corpus relief, without the appointment of counsel and without an evidentiary hearing, if there is nothing on the face of the judgment to indicate that the convictions addressed therein are void. Passarella v. State, 891 S.W.2d 619 (Tenn. Crim. App. 1994). In addition, the procedural requirements for habeas corpus relief are mandatory and must be scrupulously followed. Hickman v. State, 153 S.W. 3d 16, 20-21 (Tenn. 2004). One of these requirements is that if the Petitioner is being restrained by legal process, “a copy thereof shall be annexed, or a satisfactory reason given for its absence.” Tenn. Code Ann. § 29-21-107(b)(2). In this case, the Petitioner did not attach to his petition a copy of his judgment of conviction sentencing him to the Department of Correction. A habeas corpus court may properly choose to dismiss a petition for failing to comply with the statutory procedural requirements. See Hickman, 153 S.W. 3d at 21. This failure alone was sufficient reason for the trial court to summarily dismiss the petition seeking habeas corpus relief. In addition, the petition does not demonstrate or allege that the convicting court was without jurisdiction to convict or sentence the Petitioner or that his sentence has expired. The sentence which the Petitioner received is authorized by law for his crime and thus is not an illegal sentence. Furthermore, this Court will not consider on appeal issues which were not first raised in the trial court. We acknowledge that a petition for habeas corpus relief may be treated as a petition for post- conviction relief. See Tenn. Code Ann. § 40-30-105(c). However, a post-conviction proceeding must be commenced in the court in which the conviction occurred. The Petitioner’s conviction occurred in Roane County, and this petition was filed in Davidson County. -2- For the reasons stated herein, this Court concludes that the petition for habeas corpus relief was properly dismissed. Accordingly, the State’s motion is granted. The judgment of the trial court is affirmed in accordance with Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. ___________________________________ DAVID H. WELLES, JUDGE -3-	{ "pile_set_name": "FreeLaw" }
IN THE TENTH COURT OF APPEALS No. 10-11-00225-CV In the Interest of J.I.G., a Child From the 13th District Court Navarro County, Texas Trial Court No. 11-19865-AG MEMORANDUM Opinion Appellant appeals the denial of a plea to the jurisdiction. Appellant has now filed a motion to dismiss the appeal. Accordingly, this appeal is dismissed. Tex. R. App. P. 42.1(a). TOM GRAY Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal dismissed Opinion delivered and filed July 13, 2011 [CV06]	{ "pile_set_name": "FreeLaw" }
727 F.2d 809 16 Ed. Law Rep. 378 DEPARTMENT OF EDUCATION, STATE OF HAWAII, Plaintiff,v.KATHERINE D., a minor, By & Through her natural parents &legal guardians, KEVIN & ROBERTA D.,Defendants-Counterclaimants-Appellees,Department of Education, State of Hawaii & Donnis Thompson,in her capacity as Superintendent of Education,Counterclaimants-Defendants-Appellants. No. 82-4096. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 21, 1982.Decided Nov. 7, 1983.As Amended Feb. 24, 1984. Charleen M. Aina, Honolulu, Hawaii, for counterclaimants-defendants-appellants. Paul Alston, Honolulu, Hawaii, for defendants-counterclaimants-appellees. Appeal from the United States District Court for the District of Hawaii. Before CANBY, NORRIS and REINHARDT, Circuit Judges. NORRIS, Circuit Judge: 1 The Department of Education of the State of Hawaii (DOE), appeals from a district court judgment, 531 F.Supp. 517, holding it responsible for Katherine D.'s tuition at a private school. For the school years 1980-81 and 1981-82, Katherine had sought the "free appropriate public education" to which she was entitled under the Education for All Handicapped Children Act of 1975 (EAHCA or Act), 20 U.S.C. Sec. 1401 et seq. (1976). The district court found that the DOE's offers of education for both years were inadequate under the Act and that, consequently, Katherine's parents were entitled to tuition reimbursement for the private school Katherine attended during that time. We affirm the district court's judgment as to the 1980-81 school year but reverse the 1981-82 component. We also reverse the district court's award of attorneys' fees. 2 * Facts 3 Katherine, who was born in 1976, suffers from cystic fibrosis and tracheomalacia, which cause her windpipes to be floppy instead of rigid. Since 1978, Katherine has worn a tracheostomy tube, which allows her to breathe and to expel mucus secretions from her lungs two or three times a day. She is unable to vocalize normally, but has received speech therapy and since February 1981 has been able to speak very softly. 4 In the summer of 1980, Katherine was certified by the DOE as eligible for special education services under the EAHCA. As required by the Act, the DOE offered an Individualized Educational Program (IEP) to Katherine prior to the beginning of the 1980-81 school year. Based on the recommendation of its physician, the DOE determined that the medical services Katherine might require could not be provided at a public school and therefore proposed a homebound program consisting of speech therapy and parent counseling. Katherine's parents rejected the IEP and initiated a due process hearing under the provisions of 20 U.S.C. Sec. 1415(b)(2). During the course of that proceeding, Katherine continued to attend St. Philomena's Child Care Center, where she had been enrolled since 1979. Katherine's attendance at this private preschool was contingent on the presence of her mother. Mrs. D. was a teacher at St. Philomena's and thus was always available to provide for Katherine's health needs. 5 In October 1980 the administrative hearing officer decided that the DOE's offer of a homebound program did not constitute a "free appropriate public education" as required by section 1412(1) of the EAHCA because it did not provide for Katherine's placement in the "least restrictive environment" possible. He concluded that Katherine should continue to attend St. Philomena's and ordered the DOE to pay for her tuition there. The DOE refused to follow the hearing officer's order and, in November 1980, filed a petition for review by the district court under 20 U.S.C. Sec. 1415(e)(2). Katherine counterclaimed for enforcement of the hearing officer's order, attorneys' fees, and costs. 6 After the hearing officer had reached a decision, but before the trial in the district court, the DOE submitted an IEP for the 1981-82 school year to Katherine's parents. Under this IEP, the DOE proposed that Katherine attend Moanalua Elementary School and receive emergency health services, when needed, through the school's staff. The IEP outlined a plan to train the staff to dispense Katherine's medication, suction her lungs, and reinsert her tube should it become dislodged. The first of two planned training sessions was conducted by Dr. Light, Katherine's physician, on September 9, 1981. 7 During this training session, Dr. Light formed the impression that the staff was reluctant to perform the necessary emergency health services for Katherine. He consequently recommended that Katherine not be sent to Moanalua. 8 A short time later, three unions representing Moanalua employees filed grievances with the DOE seeking clarification whether their contracts required them to perform health services for Katherine or similarly situated students. Those grievances had not been resolved by the time of trial. 9 The district court affirmed the findings of the hearing officer as to the 1980-81 school year and held that the DOE had not made an adequate offer for a "free appropriate public education" for either 1980-81 or 1981-82. The district court thus ordered the DOE to reimburse Katherine's parents for the cost of enrolling her in private school during both years,1 and granted attorneys' fees to appellees. The DOE appeals on all counts. II 10 Did the DOE Offer Katherine a "Free Appropriate Public Education"? 11 The EAHCA "both funds and regulates state assistance to handicapped students." Mountain View-Los Altos Union High School Dist. v. Sharron B.H., 709 F.2d 28, 29 (9th Cir.1983). Under section 1412(1) of the EAHCA, a state may qualify for federal assistance for special education programs only if it "has in effect a policy that assures all handicapped children the right to a free appropriate public education." The term "free appropriate public education" is defined as special education plus such "related services" "as may be required to assist a handicapped child to benefit from special education." 20 U.S.C. Sec. 1401(17), (18). The term "related services" is further defined by regulation to include "school health services," i.e., "services provided by a qualified school nurse or other qualified person." 34 C.F.R. Sec. 300.13(b)(10) (1982). Katherine's need both for speech therapy and for maintenance of her tracheostomy tube falls within these definitions. See Hymes v. Harnett County Board of Education, 664 F.2d 410 (4th Cir.1981) (replacement of tracheostomy tube and suctioning of mucus assumed to be "related services" school board was obligated to provide). Under section 1412(5)(B) of the Act, furthermore, participating states must establish "procedures to assure that, to the maximum extent appropriate, handicapped children ... are educated with children who are not handicapped," and that handicapped children are not removed from the "regular educational environment" unless "the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily ...." 12 These provisions set forth the DOE's obligations in offering Katherine a special education program under the EAHCA. Noticeably absent from the Act is any requirement that the DOE provide the best possible education for the eligible handicapped child. Because budgetary constraints limit resources that realistically can be committed to these special programs, the DOE is required to make only those efforts to accommodate Katherine's needs that are "within reason." Tokarcik v. Forest Hills School Dist., 665 F.2d 443, 455 (3d Cir.1981), cert. denied, 458 U.S. 1121, 102 S.Ct. 3508, 73 L.Ed.2d 1383 (1982) (related services). As noted by the Supreme Court in its first interpretation of the terms of the EAHCA, 13 furnishing handicapped children with only such services as are available to nonhandicapped children would in all probability fall short of the statutory requirement of "free appropriate public education"; to require, on the other hand, the furnishing of every special service necessary to maximize each handicapped child's potential is, we think, further than Congress intended to go. 14 Board of Education v. Rowley, 458 U.S. 176, 198, 102 S.Ct. 3034, 3047, 73 L.Ed.2d 690 (1982) (emphasis added) (holding that the EAHCA does not require the states "to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children"). The Court concluded 15 that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. 16 Id. at 201, 102 S.Ct. at 3048. See also Doe v. Anrig, 692 F.2d 800, 806 (1st Cir.1982) (in determining appropriate placement of an individual handicapped child, the child's needs must be weighed against the realities of limited public monies). 17 We turn now to a consideration of the appropriateness of the IEP's the DOE offered to Katherine D.2 In determining whether the DOE's proposed programs met the statutory standard, we consider the two relevant school years separately because the programs offered in 1980-1981 and 1981-1982 were significantly different. We hold that the DOE's offer for 1980-81 was inadequate but that the 1981-82 plan offered Katherine a "free appropriate public education." A. 1981-82 School Year3 18 For the 1981-82 school year, the DOE offered to enroll Katherine in a regular public school program and to train the school staff to respond to her medical needs. The district court held that this offer did not satisfy the EAHCA's "free appropriate public education" requirement because 19 the attitude of the school's personnel toward the plan made it completely unworkable and ineffectual [and] the plan self-destructed with the filing of the grievance by the school administrators and teachers involved. 20 Appellees agree with the district court's conclusion, arguing that the 1981-82 plan was inadequate solely because school personnel were reluctant to administer the necessary emergency health services. 21 We do not agree with the district court that the 1981-82 IEP was so flawed that it failed to satisfy the statutory standard of a "free appropriate public education." The 1981-82 plan met the explicit requirements of the EAHCA and its implementing regulations.4 Katherine was to attend a regular public school and to receive emergency health services through the school's personnel when required. The district court's conclusion that staff reluctance made this plan unworkable is based upon only two pieces of evidence: first, the testimony by Katherine's physician that he overheard two unidentified teachers expressing hesitation about administering medical services to Katherine, and second, the grievance petition filed by three unions representing teachers and principals. This evidence was insufficient to support the district court's conclusion that the DOE would not provide the health services Katherine required.5 22 The grievance petitions sought clarification whether the services Katherine might require fell into the category of "medical services" that were outside the school staffs' contractual responsibilities. It is totally conjectural to assume from this, however, that the teachers would have refused to aid Katherine if ordered by their supervisors to perform the services pending final resolution of the grievance. Nor is there any evidence that the teachers were not competent to provide the care Katherine would have required. Finally, there is no evidence that the school board would not have arranged for special personnel to provide the emergency services if the union ultimately prevailed in the contract dispute and the teachers were not required to comply with orders to attend to Katherine's needs. 23 In sum, the record before us contains insufficient evidence that Katherine would not have received emergency care when needed or that the DOE's proposed plan had "self-destructed." Taking that plan at face value and presuming, as we must in the absence of evidence to the contrary, that it would have been carried out competently and in good faith, we hold that the DOE offered Katherine a "free appropriate public education" for the 1981-82 school year. B. 1980-81 School Year 24 For 1980-81, the DOE offered Katherine a homebound program consisting of one and one-half hours of speech therapy and forty minutes of parent counseling per week. No academic instruction was offered. Nor was any effort made to ensure that Katherine would be educated in a school "with children who are not handicapped." 20 U.S.C. Sec. 1412(5)(B). The DOE claimed in its own defense that Katherine's handicap was so severe "that education in regular classes with the use of supplementary aids and services [could not] be achieved satisfactorily." 20 U.S.C. Sec. 1412(5)(B). The district court disagreed, and held that "the home treatment program offered by the DOE in this case does not satisfy the concept of the 'least restrictive environment' prescribed by the federal regulations." 531 F.Supp. at 525. 25 We agree with the district court. Katherine was clearly capable of participating in regular classes with nonhandicapped children. She had attended St. Philomena's for a full year prior to requesting admission to public school. As the DOE's proposal for the 1981-82 school year demonstrates, furthermore, services similar to those provided by Katherine's mother at St. Philomena's could have been made available in a public school setting without unduly burdening the school system. See supra p. 812. These services could have been provided by a "school nurse or other qualified person,"6 and thus fell squarely within the requirements of the Act. See 34 C.F.R. Sec. 300.13(b)(10) (1982). 26 For these reasons, we hold that because the DOE did not make adequate efforts to place Katherine in a regular educational environment, the 1980-81 IEP did not offer her a "free appropriate public education" within the meaning of the Act. III 27 Tuition Reimbursement for the 1980-81 School Year 28 The hearing officer ordered the DOE to reimburse Katherine for her private school tuition for the 1980-81 school year, acting under his "power to order any educational program for the child," 42 Fed.Reg. 42,476, 42,512 (1977), and, if necessary, to require placement in a private school at no cost to the parent. Id. at 42,510; S.Rep. No. 168, 94th Cong., 1st Sess., reprinted in 1975 U.S.Code Cong. & Ad.News 1425, 1426. The district court affirmed. The DOE challenges the district court's affirmance of the hearing officer's award on two grounds:7 first, that reimbursement of tuition for Katherine's attendance at a private school during 1980-81 pending resolution of a dispute over the IEP for that year is not an available remedy under the EAHCA; and second, that any money judgment against the DOE is barred by the eleventh amendment. A. Statutory Remedies 29 The DOE here insists that appellees are not entitled to reimbursement for Katherine's private school tuition for the 1980-81 school year because the remedies available for violations of the EAHCA are limited to prospective relief.8 Appellees in turn contend that the language of section 1415(e)(2) of the Act, giving the reviewing court authority to grant "such relief as ... is appropriate," supports the district court's retroactive award of the costs of Katherine's attendance at St. Philomena's during 1980-81. 30 The seminal case on the availability of reimbursement as a remedy under the EAHCA is Anderson v. Thompson, 658 F.2d 1205 (7th Cir.1981).9 There, the Seventh Circuit held that despite the broad language of section 1415(e)(2), the legislative history of the Act demonstrates that the statute "was intended in most cases to provide only injunctive relief as a final procedural safeguard that would ensure an appropriate educational program for a handicapped child." Id. at 1210-11. Despite this general rule, the court recognized that damages might be recoverable in certain "exceptional circumstances," and cited illustratively two situations "in which a limited damage award might be appropriate": first, when the "child's physical health would have been endangered had the parents not made alternative arrangements to those offered by the school system," and second, when the "defendant has acted in bad faith by failing to comply with the procedural provisions of [the Act]." Id. at 1213-14.10 The court believed these cases to be "exceptional" because 31 [i]n those situations it is likely that Congress, though generally requiring that a child remain in his current placement, 20 U.S.C. Sec. 615(e)(3), would have intended that parents take action to provide the necessary services for their children without awaiting the outcome of lengthy administrative and judicial proceedings. Parents should then be compensated for the costs of obtaining those services that the school district was required to provide. 32 Id. at 1213 (footnote omitted). 33 We recognize that Katherine's situation does not fit the precise facts of either of the illustrative exceptions mentioned in Anderson.11 Nonetheless, we believe that the DOE's behavior in this case was just as exceptional, and that this case therefore also involves "exceptional circumstances." We hold that an unexplained failure to offer a child placement in a classroom with his peers when the child has clearly demonstrated his ability to function in a classroom environment entitles the child to recover the cost of a private school education until an appropriate program is devised. 34 The congressional preference for educating handicapped children in classrooms with their peers is made unmistakably clear in section 1412(5)(B) of the Act, which provides that "to the maximum extent appropriate," handicapped children should be integrated into a regular educational environment. Although the statute does not require "mainstreaming" in every case, it is fundamental to the scheme and purpose of the Act that handicapped children be provided the same educational opportunity and exposure as those children who are not so disadvantaged. See, e.g., Tokarcik v. Forest Hills School Dist., 665 F.2d 443, 458 (3d Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 3508, 73 L.Ed.2d 1383 (1982) ("given the advantages of placement in as normal an environment as possible, to deny a handicapped child access to a regular public school classroom without a compelling educational justification constitutes discrimination and a denial of statutory benefits"); Gladys J. v. Pearland Independent School Dist., 520 F.Supp. 869, 874 n. 5 (S.D.Tex.1981) ("[m]ainstreaming is clearly a predominant thesis underlying the EAHCA"). The DOE's own regulations recognize and implement this congressional preference: 35 Hospitalized and homebound care should be considered to be among the least advantageous educational arrangements [and are] to be utilized only when a more normalized process of education is unsuitable for a student who has severe health restrictions. 36 Department of Education, Program Standards and Guidelines for Special Education and Special Services, Programs and Services for the Orthopedically Handicapped and Other Health Impaired, paras. 27, 29, 30. We thus believe that this is also a case where "Congress ... would have intended that parents take action to provide the necessary services for their children." Anderson, 658 F.2d at 1213. 37 Consequently, we find no error in the district court's award of the cost of Katherine's private school tuition for the 1980-81 school year. Because the DOE failed to offer her a placement with her peers, notwithstanding her undisputed ability to function in a regular classroom environment, Katherine's continued attendance at St. Philomena's during the 1980-81 school year was the only feasible way her parents could assure her the benefits of the regular educational environment to which she was entitled. 38 Our holding is not inconsistent with those cases in which damages have been denied. As far as we can determine from often limited statements of fact, in no other case did a court consider a situation in which a state education agency offered a homebound program to a child who was clearly capable of functioning in a classroom setting. In Mountain View-Los Altos Union High School Dist. v. Sharron B.H., 709 F.2d 28 (9th Cir.1983), for instance, our court denied reimbursement for private school tuition because the procedure for assessing the child's health and education needs had not yet been completed. Id. at 30. In Anderson, the court refused to award damages when the parents of a handicapped child refused the placement in a public school classroom that was offered to her, and instead requested reimbursement of her tuition at a private school. 658 F.2d at 1207. Similarly, in Stemple v. Board of Education, 623 F.2d 893 (4th Cir.1980), cert. denied, 450 U.S. 911, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981), the court denied reimbursement to parents who unilaterally decided to transfer their handicapped child to a private school when they found her progress in the offered public school placement to be too slow. Because these cases did not involve "exceptional circumstances" to support an award of damages, they are distinguishable from Katherine D.'s situation. We thus hold that if education agencies fail to offer a classroom program to a handicapped child who has clearly demonstrated his ability to function in a normal classroom environment, leaving a private school placement as the only feasible means for satisfying the congressional preference that handicapped children be placed in the least restrictive environment, the state must pay the costs of that placement until an appropriate program is devised. B. Eleventh Amendment Issue 39 The DOE also claims that the award of Katherine's school costs violates the eleventh amendment.12 We disagree. Because the State of Hawaii chose to participate in a federally funded and regulated program to provide special educational programs for its handicapped children, we hold that it waived its eleventh amendment immunity against suit. 40 The Supreme Court has made clear that a state waives its eleventh amendment immunity by engaging in an activity regulated by Congress when Congress has constitutional authority to enact the regulatory statute, and that statute authorizes suits against the state. See, e.g., Parden v. Terminal Ry. of Alabama State Docks Dept., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). In Parden, the Court held that "Congress conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court as provided by the [Federal Employers' Liability Act]," id. at 192, 84 S.Ct. at 1212, and that "[the state], when it began operation of an interstate railroad ... necessarily consented to such suit as was authorized by that Act." Id. at 192, 84 S.Ct. at 1212. 41 Because, however, the states have "long enjoyed" the protection of the eleventh amendment, Employees v. Department of Public Health & Welfare of Missouri, 411 U.S. 279, 285, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251 (1973), the Court has said that it 42 will find waiver only where stated "by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction." 43 Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662, reh. denied, 416 U.S. 1000, 94 S.Ct. 2414, 40 L.Ed.2d 777 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 L.Ed. 742 (1909)). Accordingly, the Ninth Circuit has indicated that eleventh amendment immunity will be waived 44 when Congress has authorized suit against a class of defendants that includes states, and the state enters into the activity regulated by federal law. 45 Mills Music, Inc. v. Arizona, 591 F.2d 1278, 1283 (9th Cir.1979) (Copyright Act). 46 We find that both prongs of the Mills Music test are satisfied in the instant case. Here, Congress conditioned the right to receive funds under the EAHCA on the state's amenability to suit in federal court. Section 1415(e)(2) provides that 47 [a]ny party aggrieved by the findings and decisions made under subsection (b) [providing for administrative review] ... shall have the right to bring a civil action ... in any State court of competent jurisdiction or in a district court of the United States ... 48 Since, inevitably, one of the parties to any EAHCA dispute will be a state agency, see 20 U.S.C. Sec. 1412, this authorization clearly extends to suits against states. We therefore hold that the DOE consented to suit when it applied for and received federal funds under 20 U.S.C. Sec. 1412. The State of Hawaii waived its eleventh amendment immunity and was amenable to suit by Katherine in federal court under the EAHCA.13 IV Attorneys' Fees 49 Finally, we reverse the district court's award of attorneys' fees to appellees. While we recognize that the availability of attorneys' fees may be essential to enable many of the handicapped to avail themselves of statutory safeguards enacted for their benefit, we hold that appellees may not recover their fees under either of the statutes on which they rely: the Civil Rights Attorneys' Fees Award Act, 42 U.S.C. Sec. 1988 (1976), or the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794a(b) (Supp. III 1979). A. 42 U.S.C. Sec. 1988 50 The Civil Rights Attorneys' Fees Award Act, 42 U.S.C. Sec. 1988, provides for an award of attorneys' fees only to those parties who prevail "in any action or proceeding to enforce a provision of section ... 1983 ... of this title."14 We hold that appellees cannot recover under this provision because they cannot state a claim under 42 U.S.C. Sec. 1983. 51 The Supreme Court has consistently indicated that the benefits of an action under 42 U.S.C. Sec. 1983 are unavailable "where the governing statute provides an exclusive remedy for violation of its terms." Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981) (citing Maine v. Thiboutot, 448 U.S. 1, 22 n. 11, 100 S.Ct. 2502, 2513, n. 11, 65 L.Ed.2d 555 (1980) (Powell, J., dissenting)). Where Congress has provided a comprehensive enforcement and remedial scheme in enacting a regulatory statute, the Supreme Court has held, we must read the statute "to supplant any remedy that would otherwise be available under Sec. 1983." Middlesex County Sewerage Authority v. National Sea Clammers Assoc., 453 U.S. 1, 21, 101 S.Ct. 2615, 2627, 69 L.Ed.2d 435 (1981). 52 We hold that the complex provisions of section 1415 of the EAHCA, which establish detailed procedures for administrative and judicial review of the state's proposals to educate handicapped children, create a comprehensive and exclusive remedial scheme that precludes reliance upon a cause of action under section 1983. The Act evinces the "balance, completeness, and structural integrity" the Supreme Court has looked to in finding that a statute creates an exclusive remedial scheme. Brown v. GSA, 425 U.S. 820, 832, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 (1976). See also Smith v. Cumberland School Committee, 703 F.2d 4, 8 (1st Cir.1983) cert. granted, --- U.S. ----, 104 S.Ct. 334, 78 L.Ed.2d 304 (U.S.1983) (No. 82-2120); Anderson v. Thompson, 658 F.2d 1205, 1216 (7th Cir.1981) ("The EAHCA ... contains an elaborate administrative and judicial enforcement system."). Moreover, because money damages are not recoverable under the EAHCA absent exceptional circumstances, the remedies authorized by the two statutes are inconsistent. That is a strong indication that Congress did not intend to leave the section 1983 remedies available. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-51 n. 5, 90 S.Ct. 1598, 1604-05 n. 5, 26 L.Ed.2d 142 (1970); Anderson, 658 F.2d at 1216-17. Consequently, appellees may not assert the section 1983 claim necessary to support a fees award under section 1988.15 B. 29 U.S.C. Sec. 794a(b) 53 We apply a similar analysis to find that appellees can assert no claim under the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794a(b), and thus cannot recover their attorneys' fees by reliance on its provisions. 29 U.S.C. Sec. 794 provides in relevant part that "[n]o otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation in ... any program ... receiving Federal financial assistance." Arguably, Katherine might have recovered under this provision had Congress not enacted the EAHCA to provide special education and health services for handicapped children. In the face of the comprehensive remedial provisions of the EAHCA, however, we must conclude that Congress foreclosed persons complaining of conduct protected by the EAHCA from asserting claims under the Rehabilitation Act. As noted above, the EAHCA establishes detailed procedures for administrative review of states' proposals for educating handicapped children. If aggrieved parties could gain direct access to the courts merely by asserting claims under the Rehabilitation Act, the EAHCA's administrative review requirements could easily be circumvented. As in Brown v. GSA, 425 U.S. 820, 833, 96 S.Ct. 1961, 1968, 48 L.Ed.2d 402 (1976), Congress' "careful blend of administrative and judicial enforcement powers" compels a conclusion that other remedies are precluded. The Rehabilitation Act cannot be used to create an "end run" around the restrictions of the EAHCA and to gain remedies that would otherwise be unavailable. Reineman v. Valley View Comm. School Dist., 527 F.Supp. 661, 665 (N.D.Ill.1981), ("[plaintiffs could not recover damages under the Rehabilitation Act because they] cannot do indirectly via [the Rehabilitation Act] what Anderson teaches may not be done directly"); see also Hines v. Pitt County Board of Education, 497 F.Supp. 403 (E.D.N.C.1980) (although plaintiff included cause of action under Rehabilitation Act, attorneys' fees under 29 U.S.C. Sec. 794a(b) held unavailable because suit had been treated as arising under EAHCA throughout litigation).16 Prohibiting reliance on the Rehabilitation Act in this case also accords with the long-established principle of statutory construction that "a precisely drawn, detailed statute pre-empts more general remedies." Brown v. GSA, 425 U.S. at 834, 96 S.Ct. at 1968. We thus hold that Katherine cannot recover attorneys' fees under section 794a(b) of the Rehabilitation Act. 54 In sum, we hold that Katherine prevailed in this litigation solely on the basis of her rights under the EAHCA, and that the comprehensive remedial provisions of that statute prevent her from recovering attorneys' fees under either 42 U.S.C. Sec. 1983 or the Rehabilitation Act, 29 U.S.C. Sec. 794a(b). 55 AFFIRMED in part and REVERSED in part. 56 REINHARDT, Circuit Judge, concurring in part and dissenting in part: 57 I dissent from the majority's rejection of the district court's finding that the Department of Education failed to offer Katherine a free appropriate public education for the 1981-82 school year. I cannot agree that the district court's finding in this regard was clearly erroneous. I concur in all other parts of Judge Norris's opinion. 58 The majority does not state clearly what it believes Katherine was required to show in the district court. Parts of the opinion indicate that reluctance on the part of the school's staff would be enough to render the school's plan unworkable, yet other parts suggest that only a showing of positive refusal to perform the required services would suffice. 59 I believe that under the circumstances the staff's reluctance to perform the required services rendered the plan inadequate for purposes of the EAHCA. Katherine's physician testified that delay by the school staff in performing the emergency services would have been life-threatening to Katherine and that a cooperative attitude on the part of the teachers was essential to the effectiveness of the emergency plan. The district court credited the physician's testimony with regard to these factual issues; we are not free to disregard it here. A plan involving such a risk to a child's life cannot be considered adequate. 60 The filing of a grievance petition by the teachers' union and the conversations overheard by the physician support a finding that at least part of the school's staff was reluctant to perform the services and justify an inference that there might have been hesitation or delay at the crucial moment. The district court's holding that the attitude of the school's personnel rendered the plan inadequate was therefore not clearly erroneous. 61 Moreover, Katherine's parents were not required to show conclusively that the teachers would have refused to perform the emergency services when necessary. The Act certainly does not require parents to risk their child's life pending a conclusive showing that essential services would not be provided. In life-and-death situations such as the one involved here, a reasonable doubt whether the services would be provided is enough to justify parents in refusing to enroll their children in a school. 62 The evidence presented here may reasonably have led Katherine's parents to doubt whether the school's staff would have provided the services when they were needed. Katherine's physician, who was responsible for training the teachers in the emergency procedures and who conducted an introductory training session, testified that the teachers were unwilling to perform the required services. His testimony was buttressed by the teacher's union's filing of a grievance petition. Although that evidence does not compel a conclusion that the teachers would have refused to perform the services if put to the test, it is certainly sufficient to raise a reasonable doubt in one's mind on that point. 63 In short, the district court's finding that the staff's attitude rendered the plan inadequate was not clearly erroneous. Accordingly, I would affirm the district court's conclusion that the Department of Education did not offer Katherine a free appropriate public education for the second year. Because the Department's prior EAHCA violation was not cured by the school's offer of the second plan, I would affirm the district court's award of damages for both years in accordance with our holding that, when exceptional circumstances are involved, the state must pay the cost of private school placement until an appropriate program is devised. 1 The district judge did not make clear whether he intended to extend his order of reimbursement to cover both the 1980-81 and the 1981-82 school years. Because we hold that the DOE's 1981-82 IEP offered a "free appropriate public education," we need not reach the question whether an award of Katherine's school costs for that year would have been justified 2 We apply a de novo standard of review to the questions whether the DOE's IEPs constituted a "free appropriate public education" within the meaning of the EAHCA and whether the Act provides for an award of damages and attorneys' fees. Because those determinations require us to weigh the values underlying the statute in deciding the legal sufficiency of the DOE's offers--we must, for instance, determine the weight to be assigned the explicit congressional preference that handicapped children be educated in classrooms with their peers, see infra p. 818 --we treat them as questions of law. Cf. Bonnette v. California Health and Welfare Agency, 704 F.2d 1465, 1468-69 (9th Cir.1983) (whether state was "employer" within meaning of Fair Labor Standards Act treated as question of law) 3 Although the administrative hearing officer was never asked to consider whether the DOE's IEP for the 1981-82 school year constituted a "free appropriate public education," we hold that it was proper for the district judge to decide that question when the case came before him. Because Congress "intended the courts to make independent program decisions based on a preponderance of the evidence," Anderson v. Thompson, 658 F.2d 1205, 1208 (7th Cir.1981) (affirming district court's consideration of plaintiff's then current educational requirements despite absence of prior administrative findings); see 20 U.S.C. Sec. 1415(e)(2), the district court in this case was not hampered by the absence of administrative findings on Katherine's educational or health needs. See also Doe v. Anrig, 692 F.2d 800, 805 (1st Cir.1982) ("the review mechanism which the Act creates stands in sharp contrast to the usual situation where a court is confined to examining the record made before the agency"). Nor are the necessary findings so technical or specialized that the trial judge is less competent than the administrative hearing officer to make them de novo. As a matter of judicial efficiency, furthermore, it was sensible for the trial judge to consider the DOE's offers for both school years at the same time 4 The question whether the 1981-82 offer satisfied the statutory requirements is judged by an absolute, not a comparative, standard. As noted in text, supra p. 813, Katherine was entitled only to an appropriate, not to the best, education at public expense. It is thus irrelevant to our determination whether a placement at St. Philomena's would have been superior to a public school placement in 1981-82. Thus, the fortuitous circumstance of Mrs. D.'s presence at St. Philomena's is not a factor that we can consider in evaluating the DOE's 1981-82 proposal 5 We apply the clearly erroneous standard of review to test the district court's factual finding that the school staff was unwilling to perform the required emergency health services for Katherine. As indicated in text, we do not accept this factual finding, even under the deferential standard of review we apply to it 6 It is indisputable that even a lay person could have been trained to provide the services Katherine required. Indeed, Katherine's mother, who had had no medical training, had performed them for some time 7 The DOE also contends that appellees do not have standing to ask the court to award them the cost of Katherine's private schooling because, since the hearing officer decided in their favor, they are not "aggrieved parties" within the meaning of section 1415(e)(2). We reject this contention. Although the DOE relies on Colin K. v. Schmidt, 528 F.Supp. 355 (D.R.I.1981), and Scruggs v. Campbell, 630 F.2d 237 (4th Cir.1980), to support its claim, both of these cases are distinguishable. Colin K. held only that a parent was no longer an "aggrieved party" when the state education agency agreed to satisfy the parent's claims after suit in federal court had begun. The court in Scruggs held that a plaintiff could not request review of an administrative determination under the Act simultaneously in both federal and state forums. Neither speaks to the facts of this case, in which the DOE to date has refused to enforce the hearing officer's order and in fact initiated this suit itself. In responding to the DOE's action with a counterclaim, appellees thus had standing to press enforcement of the hearing officer's decision 8 The DOE contends only that the retroactive award of Katherine's tuition for the period pending resolution of the dispute over the IEP is impermissible under the EAHCA. As to any prospective relief, the statute provides that a state education agency must pay the costs of private schooling concurrently with the child's enrollment if the agency or a hearing officer determines that a private school program is the appropriate placement to meet EAHCA requirements. See 20 U.S.C. Sec. 1413(a)(4)(B) 9 In Mountain View-Los Altos Union High School Dist. v. Sharron B.H., 709 F.2d 28 (9th Cir.1983), we relied upon Anderson as an "extensive and well reasoned opinion," id. at 30, to support our conclusion that damages were inappropriate when the administrative assessment procedure preparatory to offering a placement for a handicapped child had not yet been completed. Anderson has also been cited with approval by other circuits. See, e.g., Miener v. Missouri, 673 F.2d 969, 979 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982) 10 These "exceptional circumstances" are best described in the cases in which they were first held to exist. In Tatro v. Texas, 516 F.Supp. 968 (N.D.Tex.1981), cited by the Anderson court to illustrate the first of its exceptions to the general rule, the court ordered reimbursement of private school tuition when the school district's offer to enroll a handicapped child in a public school program did not make provision for the "related health services" the district knew the child would need in order to attend. The court there indicated that "where ... the parents cannot enroll the child [in the offered placement] without a risk of injury to the child because a school will not provide a required related service [there, regular catheterization], appropriate relief ought to include the cost of alternative sources of education and therapy." Id. at 978. In Monahan v. Nebraska, 491 F.Supp. 1074 (D.Neb.1980), the case used in Anderson to illustrate the bad faith exception to the general rule, the court held that an award of the interim costs of private schooling was "appropriate" relief where the state's statutory procedures for review of placement offers did not comply with the requirements of the EAHCA. Also pointing to an administrative failure to follow prescribed procedures, the court in Christopher T. v. San Francisco Unified School Dist., 553 F.Supp. 1107, 1121 (N.D.Cal.1982), awarded plaintiffs reimbursement for residential placement of their child when the state education agency wilfully avoided taking responsibility for his education. Similarly, the court in Boxall v. Sequoia Union High School Dist., 464 F.Supp. 1104 (N.D.Cal.1979), awarded plaintiffs the cost of a home tutor for their autistic child after the local school district refused to follow the recommendation of every other state agency consulted that individualized supervision for the child be provided 11 Unlike the plaintiff in Tatro, Katherine was not physically incapable of accepting the DOE's offer for the 1980-81 school year. The DOE failed to provide her not with essential health services but rather with an adequate educational program in a classroom with her peers. See infra p. 818. Nor is the DOE guilty of the kind of procedural bad faith implicitly recognized as a basis for an award of damages in Monahan, Christopher T. and Boxall: the DOE was following the procedural safeguards of the EAHCA in pursuing administrative and judicial review of its placement offer 12 The eleventh amendment is not by its terms applicable to suits brought against a state by its own citizens. Nonetheless, "it is established that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Employees v. Department of Public Health and Welfare, 411 U.S. 279, 280, 93 S.Ct. 1614, 1615, 36 L.Ed.2d 251 (1973) (citations omitted) 13 Because we find that the DOE waived its eleventh amendment rights by consenting to the terms of the EAHCA, we do not reach the appellees' contentions that that immunity could also have been waived by the DOE's initiation of this suit, by the state's passage of its own tort claims act, or by Congress' authority to abrogate eleventh amendment immunity if it passes legislation under Sec. 5 of the fourteenth amendment 14 The parties do not claim that any of the other statutory provisions to which 42 U.S.C. Sec. 1988 is applicable is implicated in this case 15 Nor can Katherine assert a viable cause of action under Sec. 1983 by relying on a claim that her right to equal protection was violated by the DOE's failure to offer her an adequate educational program. It is clear that where adequate alternative remedies remain available Congress may abrogate a statutory means for the enforcement of constitutional rights. The comprehensive nature of the remedies laid out in the EAHCA evinces a congressional intent to preclude reliance on either a statutory or a constitutional cause of action under Sec. 1983. It is arguable that where adequate alternative remedies for the vindication of constitutional rights are unavailable, Congress may not abrogate existing statutory means of enforcement. See Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362 (1953). Cf. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (despite absence of statutory authorization, money damages available to compensate victims of fourth amendment violations). Appellees do not argue, however, that the EAHCA remedies are constitutionally inadequate. Thus, we do not reach the question 16 Some district courts have held that attorneys' fees under the Rehabilitation Act will be available even in cases in which the prevailing party has relied primarily on the EAHCA to support his substantive claims. See, e.g., Patsel v. District of Columbia Board of Education, 530 F.Supp. 660 (D.D.C.1982); Campbell v. Talladega County Board of Education, 518 F.Supp. 47 (N.D.Ala.1981); Tatro v. Texas, 516 F.Supp. 968 (N.D.Tex.1981). For the reasons given in the text, we cannot accept those courts' holdings. See supra p. 819-820	{ "pile_set_name": "FreeLaw" }
11TH COURT OF APPEALS EASTLAND, TEXAS JUDGMENT Barry Chad Beal, * From the 42nd District Court of Coleman County, Trial Court No. 2567. Vs. No. 11-13-00261-CR * August 21, 2014 The State of Texas, * Memorandum Opinion by Bailey, J. (Panel consists of: Wright, C.J., Willson, J., and Bailey, J.) This court has inspected the record in this cause and concludes that there is no error in the judgment below. Therefore, in accordance with this court’s opinion, the judgment of the trial court is in all things affirmed.	{ "pile_set_name": "FreeLaw" }
932 A.2d 76 (2007) COM. v. WILLIAMS. No. 153 MAL (2007). Supreme Court of Pennsylvania. September 13, 2007. Disposition of Petition for Allowance of Appeal. Denied.	{ "pile_set_name": "FreeLaw" }
274 So.2d 708 (1973) EVERGREEN PLANTATION, INC., et al. v. Simon ZUNAMON. No. 53291. Supreme Court of Louisiana. March 26, 1973. Writ denied. No error of law under the assignment of errors.	{ "pile_set_name": "FreeLaw" }
105 F.Supp.2d 83 (2000) WENDY HONG WU a/k/a Hong Wu and Arthur Lin, Plaintiffs, v. DUNKIN' DONUTS, INC., Turnway Donuts, Inc., Rick Yuan, Jessie Pan, and York Kissena Realty, Inc., Defendants. No. 98-CV-3020 ARR. United States District Court, E.D. New York. June 14, 2000. 84 Madeline Lee Bryer, P.C., New York, NY, for Plaintiffs. Christopher Kendric, Ahmuty, Demers & McManus, Albertson, NY, for Dunkin' Donuts. Alice Spitz, Molod, Spitz, Desantis & Stark, P.C., New York, NY, for York Kissena. Robert H. Goldberg, Goldberg & Carlton, P.C., New York, NY, for Turnway Donuts, Rick Yuan, and Jessie Phan. OPINION AND ORDER ROSS, District Judge. This case addresses whether a franchisor may be held liable under New York law for an attack by third parties on an employee of its franchisee. In the early morning hours of May 25, 1999, Wendy Hong Wu was working alone at a twenty-four hour donut store owned by defendant Turnway Donuts, Inc. ("Turnway"), under a franchise agreement with defendant Dunkin' Donuts, Inc. ("Dunkin' Donuts" or "DD"). Two teenagers entered the store, gained access to the employee area behind the counter, and brutally attacked and raped Ms. Wu. Ms. Wu and her husband, Arthur Lin, allege, among other things, that the attack resulted in part from the vicarious and direct negligence of Dunkin' Donuts.[1] Dunkin' Donuts moves for summary 85 judgment. There is no evidence in the record of this case that Dunkin' Donuts exercised actual control over the security measures taken by its franchisee Turnway or that Ms. Wu relied on any preventive actions taken by Dunkin' Donuts. The issue, then, is whether under New York law a franchisor's making of recommendations concerning security matters to its franchisees renders the franchisor legally responsible for ensuring the safety of its franchisees' employees. For the reasons stated below, the court concludes that it does not. BACKGROUND Except as otherwise indicated, the following facts are undisputed. Plaintiffs Wendy Hong Wu and Arthur Lin reside in the state of Maine. Dunkin' Donuts is a corporation incorporated in the state of Delaware and authorized to do business in and by the State of New York. Turnway is a New York corporation. On April 23, 1992, Turnway entered into a franchise agreement with DD to operate a donut store at 59 Kissena Boulevard in Queens, New York.[2] Turnway renovated the premises, which had previously housed a furniture store, to facilitate the production and sale of donuts. Between 1992 and 1994, the donut store was robbed at least three times. At some point prior to the incident involving Ms. Wu, Jen Chuan Yin, the then-manager of the store, and Sam Yuan, part owner of the store, arranged for the installation of an alarm system and a plexiglass partition with a locked door between the employee area and the customer area. Turnway also installed in the employee area a phone that did not require money to place a "911" call and a video security camera. At some later point, Turnway removed the customer restroom because the employees found it difficult to keep the restroom clean. According to Mr. Yin, Mr. Yuan, and other Turnway employees involved in making these decisions, Turnway did not seek prior approval from DD for these alterations. In 1994, DD retained Rolland Trayte as a security consultant for the corporation. Mr. Trayte reviewed materials that had been gathered on crimes in Dunkin' Donuts stores and offered several suggestions to company executives. Beginning in November 1994, DD included a series of articles on safety and security matters written by Mr. Trayte in Common Grounds, an internal newsletter that DD distributed to its franchisees, including Turnway. In April 1995, Turnway placed an advertisement announcing a job opening at the Kissena Boulevard store in The World Journal, a Chinese-language newspaper. Ms. Wu replied to the advertisement and interviewed with Jessie Phan, the assistant manager of the store. Ms. Phan hired and trained Ms. Wu. At this time, Ms. Wu's English was quite limited and Ms. Phan spoke to Ms. Wu in Chinese. Ms. Wu usually worked the overnight shift, usually alone. A few weeks after Ms. Wu began, the store was robbed a fourth time. The robbery occurred during a night that Ms. Wu was not working. According to various Turnway employees, Ms. Wu was told about this robbery and was warned not to open either the back door that led to the street or the interior door that separated the employee area from the customer area. According to Ms. Wu, she was never told about this robbery. She also asserts that she never received training in crime prevention 86 techniques or in handling emergencies. On May 24, 1995, Ms. Wu was working a double shift beginning at 4:00 p.m. and continuing until 7:00 a.m. the next morning. At about 1:00 a.m. on May 25, two young males entered the store. One vomited on the floor. The other asked Ms. Wu for a mop. Ms. Wu opened the locked door that separated the employee area from the customer area and handed the young man a mop. After cleaning up the mess, the young man knocked again on the glass door and Ms. Wu opened the door to retrieve the mop. The two men brutally attacked Ms. Wu, repeatedly raping her and slashing her with a knife. Ms. Wu did not attempt to sound the alarm system or to use the free phone to call 911. According to an unsigned, unsworn letter from a security expert retained by the plaintiffs, the alarm system was not working and there was no video-tape in the security camera at the time the attack occurred. This action followed. Ms. Wu claims that the defendants breached their duty to provide reasonable security and to protect those lawfully on the property from foreseeable criminal activity (first cause of action); made material misrepresentations to Ms. Wu concerning the safety of the store in general and the night shift in particular (second cause of action); intentionally caused emotional distress through these actions (third cause of action); and deprived Mr. Lin of his wife's company, comfort, society, and companionship (fourth cause of action). See Amended Complaint, attached as Exh. B to Affidavit of Christopher Kendric in Support of DD's Motion for Summary Judgment ("Kendric Aff."). DISCUSSION 1. The Standard for Summary Judgment In ruling on a motion for summary judgment, judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists," Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219, 1223 (2d Cir. 1994), but "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "On summary judgment the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), but the non-moving party "must do more than show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In making the necessary showing, "[c]onclusory allegations [by the non-moving party] will not suffice to create a genuine issue." Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990). A "genuine" issue is one that could be decided in favor of the non-moving party based on the evidence by a reasonable jury. Liberty Lobby, at 248, 106 S.Ct. at 2510. The role of the court in deciding a motion for summary judgment is not to decide issues of fact, but only to determine whether or not they exist. Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). II. Negligent Provision of Security Plaintiffs assert three different rationales for their claim that Dunkin' Donuts is liable for failing to provide adequate security to Ms. Wu: first, that Dunkin' Donuts is vicariously liable for Turnway's allegedly negligent provision of security; 87 second, that DD is directly liable under an assumed duty theory; and third, that DD owes Ms. Wu a special and non-delegable duty by virtue of DD's requirement that the donut store remain open 24 hours a day. A. Vicarious Liability Plaintiffs claim that DD should be held vicariously liable for Turnway's allegedly negligent provision of security. In deciding whether a franchisor may be held vicariously liable for acts of its franchisees, courts determine whether the franchisor controls the day-to-day operations of the franchisee, and more specifically whether the franchisor exercises a considerable degree of control over the instrumentality at issue in a given case. See, e.g., Schoenwandt v. Jamfro Corp., 261 A.D.2d 117, 689 N.Y.S.2d 461 (1999) (summary judgment appropriate where relationship is "merely franchisor-franchisee" and there is no showing that franchisor "exercised complete domination and control of [franchisee's] daily operations or [that] such control resulted in plaintiff's injury"); see also Helmchen v. White Hen Pantry, 685 N.E.2d 180, 182 (Ind.Ct.App.1997) (reviewing case law from several jurisdictions raising similar issues and concluding the relevant inquiry is "whether there is a genuine issue of material fact as to the extent the [franchisor] controlled security measures at its convenience stores"). New York courts have granted summary judgment in favor of franchisors of restaurants and convenience stores in several recent cases in which plaintiffs claimed that the franchisor was vicariously liable for the negligence of a franchisee. In each case, the court concluded that the franchisor did not exercise sufficient control over the day-to-day operations of the franchisee to give rise to a legal duty. See, e.g., Schoenwandt, 261 A.D.2d at 117, 689 N.Y.S.2d at 462 (reversing lower court decision denying summary judgment to Burger King Corporation on the ground that Burger King's right to reenter the premises and terminate the agreement did not constitute a basis for imposing liability); Lewis v. McDonald's Corp., 245 A.D.2d 270, 272, 664 N.Y.S.2d 477, 479 (1997) (affirming without discussion lower court's grant of summary judgment to McDonald's in case brought by patrons of McDonald's franchisee assaulted in parking lot); Andreula v. Steinway Baraqafood Corp., 243 A.D.2d 596, 668 N.Y.S.2d 891 (2d Dept. 1997) (reversing lower court's denial of summary judgment motion brought by Dunkin' Donuts in case arising from an accident involving a delivery truck operated by employee of DD franchisee on ground that DD did not hire the driver, maintain control over the franchisee's hiring practices, or control this aspect of the franchisee's business); Dalzell v. McDonald's Corp., 220 A.D.2d 638, 632 N.Y.S.2d 635 (2d Dept.1995) (affirming grant of summary judgment to McDonald's in case arising from sexual assault of franchisee's employee but largely basing the decision on analysis of McDonald's obligations as a landowner rather than a franchisor); see also Hatcher v. Augustus, 956 F.Supp. 387 (E.D.N.Y.1997) (granting summary judgment to 7-11 franchisor in suit brought by employee of 7-11 store alleging religious discrimination), Perry v. Burger King Corp., 924 F.Supp. 548 (S.D.N.Y.1996) (granting summary judgment to franchisor in suit brought by customer of franchisee alleging racial discrimination). In several similar cases alleging injuries that occurred at, or were otherwise related to, gas stations, New York courts have likewise granted summary judgment to franchisor oil companies. See Baker v. Getty Oil Co., 242 A.D.2d 644, 663 N.Y.S.2d 40 (2d Dept. 1997), appeal denied 93 N.Y.2d 801, 687 N.Y.S.2d 625, 710 N.E.2d 272 (1999); Norton v. Cohen, 248 A.D.2d 519, 670 N.Y.S.2d 49 (2d Dept.1998); Ahmad v. Getty Petroleum Corp., 217 A.D.2d 600, 629 N.Y.S.2d 779 (2d Dept.1995); Ross v. Mobil Oil Corp., 173 A.D.2d 361, 569 N.Y.S.2d 729 (1st Dept.1991); Balsam v. Delma Eng'g 88 Corp., 139 A.D.2d 292, 532 N.Y.S.2d 105 (1st Dept.1988) (all granting or affirming summary judgment or directed verdict for franchisor). In a few (less recent) cases, courts denied summary judgment on a showing that there were material disputed facts bearing on the extent of control exercised by the franchisor. See O'Boyle v. Avis Rent-A-Car Sys., Inc., 78 A.D.2d 431, 435 N.Y.S.2d 296 (2d Dept.1981) (affirming jury verdict against Avis as well as franchisee in action arising out of an automobile accident caused by an unlicenced, underage employee who drove a car off the franchisee's premises, where testimony established that Avis representatives had frequently observed underage employees driving company vehicles around the premises); see also Vaughn v. Columbia Sussex Corp., 91-CV-1629, 1992 WL 18843 (S.D.N.Y. Jan.28, 1992) (denying under New York law a summary judgment motion brought by Holiday Inn in an action arising out of plaintiff's slip on a wet floor in a franchisee's lobby on the ground that Holiday Inn was involved in training of hotel employees and construction of building, and that it reserved a right to inspect and order upgrading at any time); Hilton v. Holiday Inns, Inc., 87-CV-1958, 1990 WL 113133 (S.D.N.Y. Aug.1, 1990) (denying under New York law a summary judgment motion brought by Holiday Inn in an action claiming damages concerning an accident involving a shuttle bus operated by franchisee's employee on the ground that Holiday Inn required that its franchisees comply with the company's standards manual). In all of the cases cited above, the courts recognize that the outcome requires analysis of the extent of control exercised by the franchisor over the franchisee. Unfortunately, however, the decisions include only brief descriptions of the underlying facts supporting each court's conclusion. They thus offer little aid to this and other courts faced with determining whether the degree of control exercised by a franchisor in a given situation gives rise to liability under New York law. Accordingly, although the large number of cases granting summary judgment to franchisors suggests that New York courts tend to define franchisor liability in such situations narrowly, the court looks, as have the parties, to caselaw from non-New York jurisdictions in assessing the significance of the facts alleged in this case. Several carefully-reasoned decisions by courts in other states address this issue. As in New York, the franchisor typically is found to be vicariously liable only in situations where it exercised considerable control over the franchisee and the specific instrumentality at issue in a given case. Most courts have found that retaining a right to enforce standards or to terminate an agreement for failure to meet standards is not sufficient control. A right to reenter premises and inspect also generally does not give rise to a legal duty. For example, the Supreme Court of Washington recently issued a decision en banc considering a claim brought by the estates of employees of a Burger King franchisee who were murdered during a robbery of the restaurant. See Folsom v. Burger King, 135 Wash.2d 658, 958 P.2d 301 (1998) (en banc). The court noted that Burger King reserved the right to enforce its standards and required that its franchisees comply with the guidelines included in Burger King's manual. The court observed, however, that the franchise agreement specifically stated that the franchisee was an independent contractor, that Burger King had no control over the terms and conditions offered to the franchisee's employees, and that Burger King had not "retained control over the security of the franchise restaurant." Folsom v. Burger King, 958 P.2d at 308-09. Accordingly, notwithstanding the considerable control Burger King retained to ensure "the uniformity of the Burger King system," id. at 309, the court concluded that Burger King 89 did not owe a legal duty to the plaintiffs. See id. In a case brought by an employee of a McDonald's franchisee who was similarly injured in a criminal assault by third parties, the Supreme Court of Iowa also found that the franchisor did not owe the plaintiff a legal duty. See Hoffnagle v. McDonald's Corp., 522 N.W.2d 808 (Iowa 1994). The court recognized that McDonald's required its franchisees to use business manuals developed by McDonald's and to attend training programs at its central training center. McDonald's also reserved a right to inspect restaurants to ensure that its franchisees operated their establishments in accordance with the company's standards. However, as in Folsom (and almost all other franchise situations), the franchisee had discretion to hire, fire, train, and discipline its own employees. The court concluded that "McDonald's authority is no more than the authority to insure `the uniformity and standardization of products and services offered by a [franchisee's] restaurant'" and that such authority was insufficient to give rise to a legal duty. Hoffnagle, 522 N.W.2d at 813 (quoting Little v. Howard Johnson Co., 183 Mich.App. 675, 455 N.W.2d 390, 394 (1990)); see also Hayman v. Ramada Inn, Inc., 86 N.C.App. 274, 357 S.E.2d 394 (1987) (similar); Myszkowski v. Penn Stroud Hotel, Inc., 430 Pa.Super. 315, 634 A.2d 622 (1993) (similar). As noted above, the degree of control that the franchisor exercises over its franchisee's security measures is particularly significant. In deciding whether the franchisor's actions give rise to a legal duty, courts typically draw distinctions between recommendations and requirements. For example, in a case brought by the estate of an employee of a White Hen Pantry ("WHP") franchisee who was abducted from the store, raped, and murdered, an Indiana appeals court affirmed a grant of summary judgment in favor of the franchisor. See Helmchen v. White Hen Pantry, Inc., 685 N.E.2d 180 (Ind.Ct.App.1997). At the outset, the court reviewed the franchise agreement and found that WHP required that franchisees follow WHP plans for fixtures, equipment, signs, and other display-related materials and that they comply with the standards included in the franchisor's operating manual. Like the Folsom and Hoffnagle courts, the Indiana court found that these controls were intended to maintain uniformity of appearance and products and were insufficient to create a duty on the part of the franchisor to provide a secure workplace for its franchisees' employees and customers. See id. at 182. The court then considered the nature and significance of the franchisor's involvement in the security of its franchisees. WHP's operation manual included a section on robberies. The company also had a "director of loss prevention" who, in correspondence to franchisees, discussed loss prevention strategies, including video surveillance systems, and WHP required franchisees that chose to adopt video security systems to employ certain kinds of equipment. The company did not, however, require that its franchisees use video surveillance at all, and the franchisee at issue in the case did not do so. The court concluded that display the company's efforts to "heighten awareness" and "offer suggestions" regarding security issues to its franchisees, the company was not vicariously liable for the alleged negligence of its franchisee because WHP did not specifically mandate any security measures. Id. at 183. A recent case from a Texas appeals court reached the same conclusion in affirming a directed verdict to the franchisor in a case brought by a customer who was assaulted in a franchisee's parking lot. See Kelley v. Wurzbach, 14-97-00557-CV, 1999 WL 33640 (Tex.App.1999). The plaintiff claimed that issues of fact existed because the franchisor, McDonald's, published a security manual, trained franchisee managers and owners in security measures, and sponsored an advertisement promoting its franchisees' 24-hour drivethrough 90 lanes. There was also evidence presented at trial that McDonald's had advised the individual franchisee of crimes at other McDonald's restaurants in the area and described to the franchisee the security measures taken by the other franchisees. The court concluded, however, that the directed verdict entered by the trial court judge was appropriate because, although McDonald's made suggestions and recommendations to its franchisees regarding security, it did not control the security decisions made by the franchisees. See id. 1999 WL 33640 at 6-7. Although the case law is not uniform,[3] the weight of authority construes franchisor liability narrowly, finding that absent a showing of actual control over the security measures employed by the franchisee, franchisors have no legal duty in such cases. Against this background, the court now turns to the specific relationship between the franchisor and franchisee in this case. The franchise agreement entered into by Dunkin' Donuts and Turnway (which is a form franchise agreement with a few minor modifications) specifically provides that Turnway, the franchisee, is an independent contractor rather than an agent, employee, servant, joint venturer, or other legal representative of DD. See Laudermilk Aff., Exh. D [hereinafter "franchise agreement" or "FA"], ¶ 11-A. The agreement details the duties of each party. DD assists with the launch of new stores by providing a standard site plan, organizing an advertising campaign, and training the franchisee's managers in the DD system. DD then maintains a `continuing advisory relationship' which includes periodic inspections to determine whether franchisees maintain the store in conformity with the DD standards manual. FA ¶ 3. The franchisee warrants to maintain the premises in conformity with DD's standards and to secure prior written consent for significant interior or exterior alterations. FA ¶ 5. If the franchisee fails to maintain the standards, DD may make necessary repairs at the franchisee's expense or terminate the relationship. Although the control that DD exercises 91 under the franchise agreement is considerable, it is primarily designed to maintain uniform appearance among its franchisees and uniform quality among their products and services to protect and enhance the value of the Dunkin' Donuts trademark. Turnway remains solely responsible for hiring, firing, and training its employees and for making all day-to-day decisions necessary to run the business. Plaintiffs do not seem to dispute that the general control that DD exercises under the franchise agreement, which is equivalent to that exercised by the franchisors in the Folsom, Hoffnagle, Hayman, Myszkowski, and Helmchen cases, is insufficient in itself to create vicarious liability.[4] They point, however, to three particular practices which they argue show that DD retained control over security measures giving rise to a legal duty. Specifically, they argue that DD (1) controlled the purchase of security equipment and "require[d]" a functioning alarm system; (2) "require[d]" a site plan that revealed to passers-by that Ms. Wu was alone; and (3) required that Turnway remain open 24 hours a day. See Plaintiff's Declaration in Opposition to DD's Motion for Summary Judgment ("Pl. Opp. to DD"), at 28. Turning first to the third asserted indicium of control, it is undisputed that the franchise agreement provided that the Turnway store would remain open 24 hours a day. DD's requirement that the donut store remain open through the night may well have heightened the need for adequate security. The provision does not, however, mandate specific security measures or otherwise control or limit Turnway's response to this increased risk.[5] Accordingly, it cannot be grounds for an assertion of vicarious liability. Cf. Kelley, 1999 WL 33640 (rejecting plaintiff's claim that franchisor's sponsorship of a promotion of franchisees' 24-hour drive-through lanes gave rise to liability). Turning next to plaintiffs' first claimed indicium of control, that claim fails for lack of evidence. Plaintiffs have provided no competent evidentiary support for their assertion that DD "required" that Turnway install a working alarm system or take other security measures. To the contrary, the undisputed evidence in the record demonstrates that DD merely made security equipment available for purchase and suggested that alarm systems and other burglary prevention techniques were important, Kevin Golden, DD's former equipment manager, testified that he prepared a list of recommended equipment for franchisees and that in 1988 this list contained four items that related to security: a lockable safe, a cash box, a convex mirror, and a pushbar alarm. See Pl. Opp. to DD, Exh. H (Golden Dep.), at 27-28, also available at Kendric Aff., Exh. O. The court notes that this list was compiled some four years before Turnway opened the Kissena Boulevard store. Plaintiffs have provided no evidence that an equipment list existed at the relevant time, much less that these or similar items were included on any such list. Further, although 92 plaintiffs ignore the context in which these statements were made, Mr. Golden's responses to subsequent questions made clear that the list merely suggested equipment that was "available to order if [the franchisee] so chose." Id. at 29. There is thus no evidence that DD required the purchase of security equipment. Moreover, even assuming a similar list remained available at the time that Turnway opened and operated the Kissena store, the evidence is uncontradicted that Turnway did not take advantage of the offered services. Rather, without informing DD of the robberies or seeking prior approval for the alterations, Turnway hired a security consultant on its own and installed its own plexiglass partition, alarm system, and video camera. See Kendric Aff., Exh. I (S. Yuan Dep.), at 99, 103, 123 (Sam Yuan, part owner of Turnway store, did not remember informing DD that Turnway intended to install a partition and did not remember anyone from DD asking about the partition), at 129 (Sam Yuan did not advise DD of the video surveillance equipment that Turnway proposed to install and did not receive DD's approval to install it), 134 (Sam Yuan did not recall informing DD that an alarm system had been installed). Although DD inspectors subsequently observed that these alterations had been made, there is no indication that they evaluated the necessity or sufficiency of such security measures. See Kendric Aff., Exh. II (DeLuca Dep.), at 81 (Warren DeLuca, DD business consultant for the geographic area including the Kissena Boulevard store, stated that DD inspected for "quality, service, [and] cleanliness, the three issues"); Exh. D (R. Yuan Dep.), at 98 (Rick Yuan, vice-president of Turnway and former manager of the Kissena Boulevard store, never spoke about shop security with anyone from Dunkin' Donuts prior to 1997); Exh. F (Phan Dep.), at 79 (Phan, then assistant manager of the Kissena Boulevard store, recalled that DD inspector knew about the alarm and video system and asked at what hour the partition was opened and closed but did not ask further questions about security). DD's simply providing a list of suggested but not required security items does not support plaintiffs' contention that DD retained or assumed control of the security of its franchisees. Cf. Helmchen, 685 N.E.2d at 183 (franchisor that allowed franchisees to choose whether to use video surveillance assumed no duty even though franchisor mandated which video surveillance system, if any, would be used). Nor does the record support plaintiffs' repeated assertion that DD "mandated" or "required" that Turnway employ a site plan allegedly making it evident to persons outside the store that Ms. Wu was alone. Neither party has submitted evidence as to the lighting plan of Turnway's donut store or the clarity of sight lines from outside (or inside) the store into the employee area. The franchise agreement states that DD will provide the franchisee with its standard site plan. FA ¶ 2-C. The agreement does not, however, explicitly require that franchisees conform with this standard plan, and there is no evidence in the record concerning whether Turnway designed its store according to the specifications of the plan. Also, as noted above, Turnway made several significant interior alterations, including installation of the plexiglass partition and the locked door and removal of the customer restroom, without seeking or receiving DD's prior approval. See S. Yuan Dep. at 123 (Sam Yuan did not submit any specifications to DD for approval in connection with the installation of the partition and did not recall being asked by DD about the partition); R. Yuan Dep. at 61-62 (Rick Yuan informed DD of Turnway's plans to remove the restroom but did not believe that he needed DD's prior approval to make the alteration). Of course, in deciding a motion for summary judgment, all reasonable inferences must be drawn in favor of the non-movant, in this case, the plaintiffs. However, since there is no express requirement 93 that franchisees comply with a standard site plan and the undisputed evidence in the record demonstrates that Turnway made material alterations to its interior design without seeking or receiving DD's prior approval, the court finds that no reasonable fact finder could conclude that DD "required" the site plan at issue in this case.[6] The other security measures that plaintiffs have identified DD's hiring of Mr. Trayte, its subsequent publication in the Common Grounds newsletter of Mr. Trayte's articles providing security advice, and the portion of DD's managers' training devoted to security are similarly merely advisory. The franchisee is responsible for assessing the usefulness of these suggestions and implementing them to the extent it deems appropriate. The "Overview" of the section on shop safety of the managers' training manual states: "You, the Franchisee or manager are the key person responsible for detecting unsafe conditions, teaching safe practices to employees and enforcing those practices," and the following pages of the manual are explicitly presented as a "`Guide to A Franchise Safety Self-Inspection Program.'" Laudermilk Aff., Exh. L (Network Administration Manual, at 10-2) (emphasis added). The Common Grounds articles similarly offer recommendations, not requirements. See, e.g., Laudermilk Aff., Exh. M ("Does Your Shop Have A Fishbowl?", Common Grounds, dated Nov. 18, 1994, at 3) ("Franchisees and shop managers can apply the visibility concept by implementing what environmental design engineers call the fishbowl effect.") (emphasis added). As noted above, it is undisputed that DD did not inspect for security. It is similarly agreed that franchisees were not obligated to (and Turnway did not) report robberies or other incidents to DD. See DeLuca Dep., at 170-172 (franchisees not required to report robberies); S. Yuan Dep., at 161 (Sam Yuan did not recall reporting a robbery to DD and was not asked to prepare incident reports); Phan Dep., at 75 (Turnway did not have custom or practice of reporting accidents or incidents to DD). Dunkin' Donuts, like the franchisors in Helmchen and Kelley, merely offered suggestions to its franchisees concerning security. The possibility, however, that the recommended security measures might have helped protect Ms. Wu highlights a public policy concern that the court believes also counsels against imposing liability on Dunkin' Donuts under the circumstances of this case. Dunkin' Donuts' expressed a laudable desire to assist its franchisees in protecting their employees and customers. Imposing liability on the basis of such advice could discourage franchisors such as DD from taking steps to promote an awareness of security issues among franchisees. By contrast, the relatively narrow definition of liability adopted by the Helmchen, Kelley, and other courts discussed above which requires a showing of control over a franchisee's security measures beyond merely offering recommendations and advice concerning security and imposing standards relating to appearance, products, and services fosters a franchisor's efforts to assist in ensuring the safety 94 of its franchisees' employees and customers. The many New York court decisions granting summary judgment to franchisors in suits brought by employees or customers of franchisees is consistent with a conclusion that New York courts also recognize the value of the policy promoted by defining franchisor liability in such situations narrowly. The court therefore determines that since there is no evidence that DD actually mandated specific security equipment or otherwise controlled the steps taken by its franchisees in general, and Turnway in particular, to protect employees, DD is not vicariously liable for the alleged lapse in security at issue in this case. B. Assumed Duty Plaintiffs also contend that DD voluntarily assumed a duty to provide and maintain security and that the company was negligent in its execution of this duty. To establish a cause of action for violation of an assumed duty, the plaintiff must show (1) that the plaintiff reasonably relied on the defendant's assumption of a duty and (2) that the defendant's conduct "placed [the] plaintiff in a more vulnerable position than [the] plaintiff would have been in had [the] defendant done nothing." Heard v. City of New York, 82 N.Y.2d 66, 72, 623 N.E.2d 541, 544, 603 N.Y.S.2d 414, 417 (1993) (citing Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 522, 429 N.Y.S.2d 606, 407 N.E.2d 451 (1980)); see also Tavarez v. Lelakis, 143 F.3d 744 (2d Cir.1998) (discussing standard under New York law). Plaintiffs claim that DD voluntarily instituted a company-wide program designed to increase security at its franchisees and then negligently failed to follow through on this commitment. Plaintiffs have, however, failed to make either of the two showings that might give rise to an enforceable duty. That is, they have failed to submit competent proof demonstrating that Ms. Wu relied on DD's security program or that DD's actions increased the risk of harm to Ms. Wu. Plaintiffs suggest that DD's publication of security advice in the company's internal newsletter, Common Grounds, and the alleged release of an announcement that the company had retained Rolland Trayte as a security consultant "establish reliance." Pl. Opp. to DD at 18.[7] This conclusory assertion is not sufficient. First, although plaintiffs provide what appears to be a press release announcing the hiring of Mr. Trayte, see id., Exh. BB, plaintiffs have provided no evidence that this press release was actually disseminated or that it engendered any media coverage of the appointment, let alone that Ms. Wu saw or heard any such news stories and relied on them in choosing to work at the donut store. Nor has Ms. Wu testified or submitted any evidence that she ever read or knew anything about Common Grounds. Rather, Ms. Wu testified that she did not remember receiving "any instructional 95 manuals or pamphlets or written training materials, [or] anything in the nature of guidelines or suggestions of how to perform [her] job properly." Wu Dep. at 57-58. Plaintiffs also argue that Ms. Wu "relied" on the Dunkin' Donuts name and a promise of "excellent working conditions" in answering the employment advertisement that Turnway placed in The World Journal, a Chinese-language newspaper. See Pl. Opp. to DD at 3, 18 & n.4. Ms. Wu, however, has not testified that she was familiar with, or relied on, Dunkin' Donuts' reputation or any particular language in the advertisement in choosing to apply for the job at the donut shop. Rather, plaintiffs' argument seems to be based on an assumption that the advertisement to which Ms. Wu responded resembled sample employment advertisements that are included in at least one version of the Network Administration Manual that DD distributes to franchisees. See Pl. Opp. to DD, at 3, 18 n.4 (citing Pl. Opp. to DD. Exh. A). One sample advertisement, described as a "general ad" that can be adapted to a number of positions, suggests promoting the employment position as "a chance to become a member of the Dunkin' Donuts family." Exh. A. The other sample advertisement suggests promising "excellent working conditions." Id. Again, the court recognizes that in deciding this motion for summary judgment, all reasonable inferences must be drawn in favor of plaintiffs, the non-movants. Plaintiffs, however, cannot rely on wholly conclusory allegations to defeat a motion for summary judgment. Plaintiffs have not submitted a copy of the advertisement to which Ms. Wu responded. Nor have plaintiffs submitted copies of other advertisements that Turnway has used in the past. Plaintiffs have not even submitted evidence that the sample advertisements included in plaintiffs' Exhibit A were included in the version of the Network Administration Manual that was in use (and distributed to Turnway) in the early 1990s. The court therefore finds that there is insufficient evidence for a reasonable fact finder to conclude that Ms. Wu relied on such a representation in choosing to apply for work at the donut store. Since the record is barren of evidence demonstrating reliance, plaintiffs' claim based on a voluntary assumption of duty fails. C. Special Relationship Finally, plaintiffs contend that Dunkin' Donuts owes Ms. Wu a special duty because it required that the donut store remain open 24-hours a day, thus creating, according to plaintiffs, a "hazardous condition" that fits within an exception recognized under New York law to the general rule that a principal is not liable for work undertaken by an independent contractor. This argument strains credibility. First, plaintiffs heavily rely on Longo v. New York City Educational Construction Fund, 121 Misc.2d 830, 469 N.Y.S.2d 303 (Sup.1983), a case holding that, even absent a contractual relationship, Consolidated Edison could be liable for injuries sustained by the plaintiff in the lobby of his apartment building during an electrical black-out because the injury was foreseeable and the company had specifically intended to provide a benefit to the class of persons that included the plaintiff. Defendants accurately observe that this decision was subsequently overturned on the basis of public policy, since the Supreme Court's holding would give rise to almost limitless liability. See Longo, 114 A.D.2d 304, 493 N.Y.S.2d 561 (1st Dept. 1985) (citing Strauss v. Belle Realty Co., 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34 (1985)). More centrally, plaintiffs' argument is flawed because requiring a convenience store to remain open 24-hours a day simply does not meet the definition of a "hazardous activity." The Court of Appeals has defined a "hazardous activity" as one that is "dangerous in spite of all reasonable care" and has noted that typical examples include blasting or working with high tension wires. Chainani v. Board of Educ., 87 N.Y.2d 370, 380, 663 96 N.E.2d 283, 639 N.Y.S.2d 971 (1995) (quotations omitted). Like driving a school bus, see Chainani, operating a convenience store 24-hours a day does not pose the sort of inherent risk for the non-negligent operator that triggers such liability. In fact, plaintiffs' main argument is that DD and Turnway could have and should havetaken steps to avoid the injuries that occurred. There is also no evidence that DD was in a better position than Turnway to minimize the risk. See id. at 381, 639 N.Y.S.2d 971, 663 N.E.2d 283. Rather, the undisputed evidence is that Turnway did not inform DD of the prior robberies and took it upon itself to install the video camera and the plexiglass partition. The requirement that the donut store remain open 24-hours a day does not create a "hazardous condition" as defined by the Court of Appeals and DD is not vicariously liable for Turnway's alleged failure to take adequate precautions. III. Negligent Misrepresentations Plaintiffs allege that DD made negligent misrepresentations to Ms. Wu about the safety of working at the donut store through its publication of safety advice in Common Grounds and through the employment advertisement placed by Turnway, which allegedly promised "excellent working conditions." To state a claim for negligent misrepresentation, a plaintiff must establish that the "defendant had a duty to use reasonable care to impart correct information because of some special relationship between the parties, that the information was incorrect or false, and that the plaintiff reasonably relied upon the information provided." Grammer v. Turits, 706 N.Y.S.2d 453 (2d Dept.2000). Here, plaintiffs have failed to demonstrate factual support for any of these elements. First, there is no evidence of a special relationship between the parties, or indeed, that DD ever made any kind of representation directly to Ms. Wu. Second, there is no evidence that the statements identified by plaintiffs were "false." As to the statements in Common Grounds, these columns merely suggested safety measures that franchisees could employ; such advice is not in any way untrue. As to the advertisement, since plaintiffs have not made part of the record on this motion a copy of the actual advertisement viewed by Ms. Wu, there is no way to know what statements it did or did not make or to assess their veracity. Finally, as discussed in reference to plaintiff's assumed duty argument, there is no evidence that Ms. Wu relied on any of these alleged statements. Accordingly, the court grants summary judgment on this claim. IV. Intentional Infliction of Emotional Distress Although plaintiffs' complaint claims intentional infliction of emotional distress, plaintiffs make no response to DD's contention that this claim fails, suggesting that plaintiffs may intend to abandon the claim. In any case, the court grants summary judgment to DD. To recover for intentional infliction of emotional distress, a party must show (1) extreme or outrageous conduct, (2) with the intent to cause, or in disregard of a substantial probability of causing, severe emotional distress, (3) causal connection between the conduct and the injury, and (4) that the conduct actually resulted in severe emotional distress. See Howell v. New York Post Co., 81 N.Y.2d 115, 121-22, 612 N.E.2d 699, 702, 596 N.Y.S.2d 350, 353 (1993). Liability exists only where the conduct "has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in `civilized community.'" Id. (quoting Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 448 N.E.2d 86, 90, 461 N.Y.S.2d 232, 236 (1983)). Plaintiffs have alleged merely that DD failed to provide adequate security or to ensure that Turnway did so. Although certainly the attack itself was brutal and shocking, the record is devoid of *97 any evidence that DD's actions, or lack thereof, might be deemed to reach the level of extreme outrageousness required by New York law. V. Loss of Consortium Mr. Lin's claim of loss of consortium against DD is predicated on the theory that DD is liable for Ms. Wu's injuries. Since that theory fails, Mr. Lin's loss of consortium claim fails as well. See June v. Laris, 158 Misc.2d 881, 886, 602 N.Y.S.2d 778, 782 (Sup.1993) ("[The] derivative claim for loss of consortium draws its life from the primary claim and cannot stand by itself if the underlying action is meritless."), aff'd 205 A.D.2d 166, 618 N.Y.S.2d 138 (3rd Dept.1994). CONCLUSION For the reasons stated above, defendant Dunkin' Donuts motion for summary judgment against plaintiffs is GRANTED. By separate opinion and order dated June 9, 2000, the court grants defendant York Kissena's motion for summary judgment against plaintiffs. Defendants Turnway and York Kissena's motions for summary judgment against Dunkin' Donuts' on its cross-claim are dismissed as moot. Since all pending claims are resolved, this action is dismissed. The Clerk of Court is instructed to enter judgment accordingly. SO ORDERED. NOTES [1] Plaintiffs also name as defendants in this action Turnway, Rick Yuan and Jessie Phan, employees of Turnway, and York Kissena Realty, Inc. ("York Kissena"), the owner of the building in which the donut store is located. Pursuant to a stipulation dated March 5, 1999, plaintiffs discontinued their action against Turnway and its employees Rick Yuan and Jessie Phan. York Kissena has also moved for summary judgment against plaintiffs. By separate opinion and order dated June 9, 2000, the court grants York Kissena's motion. Dunkin' Donuts brought a cross-claim against Turnway, the individual defendants, and York Kissena for indemnification. York and Turnway have both moved for summary judgment on the cross-claim. Because the court grants Dunkin' Donuts' motion for summary judgment against plaintiffs, York Kissena's and Turnway's motions against Dunkin' Donuts on the cross-claim are dismissed as moot. [2] Turnway already operated at least one other Dunkin' Donuts franchise at a different location in Queens. [3] In Holiday Inns, Inc. v. Shelburne, 576 So.2d 322 (Fla.App.1991), for example, an appellate court in Florida considered a similar case and found that Holiday Inn, as franchisor, could be liable for injuries sustained in a parking lot brawl by two patrons of a bar operated in a Holiday Inn franchisee. The court observed that Holiday Inn required its franchisees to comply with the company's standards manual and to send managers to a safety training program. Holiday Inn also published a loss prevention manual and retained a right to reenter the premises. Although this level of involvement was, at most, equivalent to the degree of involvement exercised by the franchisors in the Helmchen, Kelley, Folsom, and Hoffnagle cases, the court concluded that Holiday Inn had retained control over the franchisee's security programs and thus could be liable. Plaintiffs also identify two cases from Illinois finding that where the franchisor suggested various security measures, conducted reviews of franchisee security, and, in one case, required that franchisees employ time-delay safes, the franchisor voluntarily assumed a duty to provide security that it subsequently breached. See Decker v. Domino's Pizza, Inc., 268 Ill.App.3d 521, 205 Ill.Dec. 959, 644 N.E.2d 515 (1994); Martin v. McDonald's Corp., 213 Ill.App.3d 487, 157 Ill. Dec. 609, 572 N.E.2d 1073 (1991). However, since liability in both these cases was premised on an assumed duty theory which, as discussed below, Ms. Wu cannot establish because she has not shown reliance neither actually determines whether such a degree of control would be sufficient to establish vicarious liability. In another variation, a California appeals court reversed a grant of summary judgment issued in favor of Southland Corporation, the franchisor of 7-11 stores, on the ground that the foreseeability of the criminal action was a fact issue for a jury. See Cohen v. Southland Corp., 157 Cal.App.3d 130, 203 Cal.Rptr. 572 (1984). Southland was the owner as well as the franchisor of the store and liability was premised on Southland's duties as a landowner. Accordingly, the analysis focuses on foreseeability rather than the amount of control that Southland exercised over its franchisee. Since York Kissena Realty, rather than DD, owned the property where the donut store was located, the reasoning applied in the Southland case is inapposite to Ms. Wu's claim against Dunkin' Donuts. [4] As noted, the pertinent terms and conditions of the franchise agreement in this case are very similar to those of the franchise agreements in the Folsom case, granting summary judgment to Burger King, and the Hoffnagle case, granting summary judgment to McDonald's. As also noted, recent New York cases raising similar issues also grant summary judgment to Burger King, see Scheonwandt, 26 1 A.D.2d at 117, 689 N.Y.S.2d at 462, and McDonald's, see Lewis, 245 A.D.2d at 272, 664 N.Y.S.2d at 479, Dalzell, 220 A.D.2d at 638, 632 N.Y.S.2d at 635. Although the New York decisions do not describe the franchise agreements in detail, there is no reason to believe that the agreements differed materially from the Burger King and McDonald's franchise agreements described in the Folsom and Hoffnagle cases. If the agreements were similar, these New York courts have likewise determined that a franchisor's right to enforce standards designed to maintain uniform appearance and services is insufficient to give rise to vicarious liability in such suits. [5] Nor, as explained below, is it sufficient to support plaintiffs' allegation that DD owed Ms. Wu a special duty. [6] Plaintiffs may be basing their assertion on an article written by Rolland Trayte, DD's security consultant, suggesting that franchisees employ a "fishbowl" arrangement because he apparently believed that clear visibility of the cash register area increased employee safety. See Laudermilk Aff., Exh. M ("Does Your Shop Have A Fishbowl?", Common Grounds, dated Nov. 18, 1994, at 3). Plaintiffs' proposed expert apparently disagrees. See Pl. Opp. to DD. Exh. D (unsigned, unsworn letter ostensibly from Harry Smith suggesting that fishbowl arrangement increased risk and should not have been employed without use of additional security measures). Since there is no evidence that anyone at Turnway read Mr. Trayte's article, let alone made modifications on the basis of it, the wisdom of this suggestion is entirely immaterial. (If anything, the fact that Mr. Trayte wrote an article in the newsletter suggesting that franchisees consider implementing a fishbowl design suggests that the standard DD plan did not employ such a configuration.) [7] Plaintiffs' argument relies heavily on Martin v. McDonald's Corp., 213 Ill.App.3d 487, 157 Ill.Dec. 609, 572 N.E.2d 1073 (1991), and Decker v. Domino's Pizza, 268 Ill.App.3d 521, 205 Ill.Dec. 959, 644 N.E.2d 515 (1994), two cases decided under Illinois law. In these cases, appellate courts affirmed judgments entered on jury verdicts finding franchisors liable for injuries to their franchisees' employees on the ground that the franchisors negligently performed a voluntarily assumed duty to provide security. Neither of these decisions makes clear whether there was evidence that the plaintiffs in these cases specifically relied on the defendant's assumption of the duty, probably because reliance is not required under Illinois law. See Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769, 780 (1964) ("Defendant's liability for the negligent performance of its [voluntary] undertaking ... is not limited to such persons as might have relied upon it to act but extends instead to such persons as defendant could reasonably have foreseen would be endangered as the result of negligent performance."). Thus, although these cases might be persuasive in determining whether DD's actions gave rise to a legally enforceable duty, they do not speak to (or in any way lessen) the requirement under New York law that the plaintiff demonstrate reliance.	{ "pile_set_name": "FreeLaw" }
720 F.2d 451 UNITED STATES of America, Plaintiff-Appellee,v.Larry Wayne CASSITY (81-1565), Billy Sword (81-1566),Stephen Gordon Lenk (81-1567), Defendants-Appellants. Nos. 81-1565, 81-1566 and 81-1567. United States Court of Appeals,Sixth Circuit. Argued March 23, 1983.Decided Oct. 31, 1983. Edward Wishnow, Southfield, Mich. (court-appointed), for Cassity. Thomas Rosender, argued, Pontiac, Mich. (court-appointed), for Sword. Edward Wishnow, Southfield, Mich. (court-appointed), for Lenk. Leonard R. Gilman, U.S. Atty., Maura D. Corrigan, Asst. U.S. Atty. (argued), Detroit, Mich., for plaintiff-appellee in all cases. Before MARTIN and JONES, Circuit Judges, and BROWN, Senior Circuit Judge. BOYCE F. MARTIN, Jr., Circuit Judge. 1 This case, before us for the second time, raises important fourth amendment issues. When first confronted with this case, this court was asked to consider, inter alia, whether the monitoring of an electronic homing transmitter (beeper) could ever amount to a search and seizure in fourth amendment terms. Citing United States v. Bailey, 628 F.2d 938, 943 (6th Cir.1980), a decision reached in the interim between trial and appeal of this case, we answered affirmatively. United States v. Cassity, et al. (Cassity I), 631 F.2d 461 (6th Cir.1980). Simultaneously we considered and answered the question of the validity of the warrants obtained by the police prior to the installation and monitoring of the beeper transmitters. We held the warrants invalid due to lack of time limits. However, finding ourselves without the benefit of an evidentiary record on the issue of the individual defendants' expectations of privacy and therefore unable to determine whether the challenged warrantless monitoring impinged upon the defendant's constitutional rights, we remanded the case to the lower court for further fact-finding. 2 On remand, the district court, 546 F.Supp. 611, after hearing evidence on the defendants' expectations of privacy, determined that three1 of the four had been the victims of unconstitutional searches. It declined to suppress evidence gleaned as a result of these searches, however, holding that the rule announced in Bailey should not be given retroactive effect. Accordingly, it affirmed the convictions. That decision is before us on appeal. We now reverse that decision. I. 3 The facts are succinctly summarized in Cassity I. 4 These cases arose from the undercover investigative efforts of Special Agent John Graetz of the Drug Enforcement Administration (DEA). From April to August 1977, Agent Graetz posed as a supplier of precursor chemicals and laboratory glassware to Jay Cody, who is alleged to be the central figure in the conspiracy. Cody apparently coordinated the conspirators' operations, arranged to obtain necessary chemicals and equipment and delivered samples of amphetamine manufactured in the conspirators' clandestine laboratory. 5 Among the chemicals and equipment Agent Graetz delivered to Cody at various times were secreted three electronic homing devices, or beepers. Two were located in cans of precursor chemicals and one was hidden in a heating mantle. All three beepers were installed pursuant to search warrants issued by a United States Magistrate. However, none of the warrants contained a time limit. 6 Agent Graetz delivered the first beeper on July 11, 1977. By monitoring the beeper's signals, DEA agents traced the chemicals to defendant Cassity's home at 2803 Stair Street in Detroit. On July 15, the beeper's signals indicated the chemicals had been moved to defendant Sword's home at 1494 Calvary in Detroit. On July 28, Agent Graetz delivered the other two beepers, which also were monitored to Sword's home. On August 11, 1977, all three beepers were located in the basement of defendant Dean's home at 6344 Hanson in Detroit. 7 DEA agents monitored the beepers' signals until August 17. They observed all five defendants and Cody enter and leave the house at 6344 Hanson at various times during the monitoring. On three occasions during the beeper surveillance, Cody delivered samples of amphetamine allegedly produced by the conspirators. 8 On August 17, 1977, DEA agents executed a search warrant at 6344 Hanson. In the basement, they found a complete laboratory which expert testimony established was capable of producing amphetamine. The agents did not, however, find any trace of amphetamine on the premises. Investigation revealed that a number of chemical containers and pieces of laboratory equipment bore the fingerprints of defendants Lenk, Sword, Dean and Hines. 9 The defendants were indicted, along with Cody, for conspiring to manufacture and manufacturing amphetamine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. The indictment also charged Cody with ten counts of possessing and distributing amphetamine. However, Cody remained a fugitive and was not tried with the appellants. 10 The case went to trial on July 18, 1978. The Government's case against the appellants consisted primarily of testimony that all the appellants had been observed in and around the laboratory's location (Dean's home) the day of the search; that Cassity and Sword previously had stored precursor chemicals and laboratory equipment in their homes; that Hines had picked up chemicals and glassware left in a rented van by Agent Graetz; that Lenk was in the laboratory at the time of the search; and that fingerprints of four of the appellants were found on glassware in the laboratory. In addition, the Government introduced tape recordings of Cody's numerous telephone conversations with Agent Graetz, as well as the samples of amphetamine Cody had delivered to Graetz. 11 The jury convicted all five appellants of conspiracy and manufacturing amphetamine. 12 631 F.2d at 462-63. 13 Several issues are presented here. Defendants argue that the district court exceeded its mandate on remand when it considered the question of the retroactive application of the Bailey decision to the facts of this case. Moreover, they argue that the manner in which the court resolved the question was erroneous. The government disagrees and, additionally, asserts that the lower court erroneously concluded that defendants Sword, Lenk, and Cassity had successfully proven legitimate expectations of privacy in those areas subject to beeper monitoring. 14 Shortly before oral argument in this case, the Supreme Court delivered an opinion in United States v. Knotts, --- U.S. ----, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). Because Knotts concerned warrantless beeper monitoring, we asked the parties to brief the decision. We have received those briefs, considered the question, and now hold, as a preliminary matter, that Knotts does not affect our decisions in either Bailey or Cassity I or control our resolution of the issues here. 15 In Knotts, the police utilized electronic beeper surveillance to track the movement of chemicals in an automobile on an open highway and, when highway surveillance was interrupted, to locate the chemicals under a barrel outside a cabin on private property. The Court, reversing the court of appeals, held that the monitoring did not invade any legitimate expectation of privacy on the defendant's parts and, therefore, that there was neither a search nor a seizure in fourth amendment terms. 16 Although the opinion contains some sweeping language suggesting a broad expansion of search and seizure law, read as a whole Knotts does little more than apply established doctrine to an unconventional type of search. The majority relies on the "automobile exception" to the fourth amendment, see Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 69 (1974), and the open fields doctrine, see Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), to validate the electronic tracking. Common to both concepts is the notion of diminished expectation of privacy in those things otherwise open to public inspection. The beeper, said the Court, revealed nothing more to the police than constitutionally permissible visual surveillance could have revealed. 17 Visual surveillance from public places along Petschen's route or adjoining Knotts' premises would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but on the use of the beeper to signal the presence of Petschen's automobile to the police receiver, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case. 18 --- U.S. at ----, 103 S.Ct. at 1086, 75 L.Ed.2d at 63. 19 The use to which the police may put a beeper without first obtaining a warrant is "limited", however. Id. --- U.S. at ----, 103 S.Ct. at 1086, 75 L.Ed.2d at 64. Nothing in the Court's opinion abrogates the sanctity of a private home or dwelling place. Although "no ... expectation of privacy extended to the visual observation of [the defendants'] automobile arriving on his premises after leaving a public highway, nor to movements of objects such as the drum of chloroform outside the cabin in the 'open fields' ", id. --- U.S. at ----, 103 S.Ct. at 1085, 75 L.Ed.2d at 62, the defendant "undoubtedly had the traditional expectation of privacy within a dwelling place insofar as the cabin was concerned." Id. 20 As we have noted, nothing in this record indicates that the beeper signal was received or relied upon after it had indicated that the drum containing the chloroform had ended its automobile journey at rest on respondent's premises in rural Wisconsin. Admittedly, because of the failure of the visual surveillance, the beeper enabled the law enforcement officials in this case to ascertain the ultimate resting place of the chloroform when they would not have been able to do so had they relied solely on their naked eyes. But scientific enhancement of this sort raises no constitutional issues which visual surveillance would not also raise. A police car following Petschen at a distance throughout his journey could have observed him leaving the public highway and arriving at the cabin owned by respondent, with the drum of chloroform still in the car. This fact, along with others, was used by the government in obtaining a search warrant which led to the discovery of the clandestine drug laboratory. But there is no indication that the beeper was used in any way to reveal information as to the movement of the drum within the cabin, or in any way that would not have been visible to the naked eye from outside the cabin. Just as notions of physical trespass based on the law of real property were not dispositive in Katz, supra, neither were they dispositive in Hester v. United States, 265 U.S. 57 [44 S.Ct. 445, 68 L.Ed. 898] (1924). 21 Id. --- U.S. at ----, 103 S.Ct. at 1087, 75 L.Ed.2d at 64 (emphasis added). 22 In Bailey, we said "beeper surveillance of non-contraband personal property in private areas trenches upon legitimate expectations of privacy and constitutes a search or seizure within the meaning of the fourth amendment." 628 F.2d at 944. Nothing in Knotts erodes that principle as it applies to monitoring beepers located in areas in which the subject of the search exhibits a legitimate expectation of privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Bailey, 628 F.2d at 940; United States v. Karo, 710 F.2d 1433, 1439, (10th Cir.1983). We come back, then, to the question we posed on remand--namely, whether defendants Lenk, Sword, or Cassity, had exhibited a legitimate expectation of privacy in those places into which they carried the chemicals containing the beepers. Cassity I, 631 F.2d at 464-65. The district court held that they had. We agree. 23 Because fourth amendment rights are "personal," Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978), the central inquiry in any suppression hearing is whether the defendant challenging the admission of evidence has shown a legitimate expectation of privacy in the place searched or the thing seized. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Whether a legitimate expectation of privacy exists in a particular item or place is a determination to be made on a case-by-case basis. Brown, 635 F.2d 1207 at 1211. That question in turn entails a two-part inquiry: (1) whether the individual defendant has exhibited an actual subjective expectation of privacy and (2) whether that expectation is one society recognizes as reasonable or legitimate. Katz v. United States, 389 U.S. 347, 362, 88 S.Ct. 507, 517, 19 L.Ed.2d 576 (1967) (Harlan, J. concurring); Smith v. Maryland, 442 U.S. 735, 740-41, 99 S.Ct. 2577, 2580-81, 61 L.Ed.2d 220 (1979); United States v. Brown, 635 F.2d 1207 (6th Cir.1980); United States v. Bailey, 628 F.2d 938, 940-41 (6th Cir.1980). 24 "Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12. To identify which expectations merit fourth amendment protection, the courts have pointed to a number of factors. Most obvious among these is an individual's possessory or proprietary interest in the place or thing. However, a property right alone is not determinative of whether the individual reasonably expected "freedom from governmental intrusion." Mancusi v. De Forte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968). In United States v. Haydel, 649 F.2d 1152 (5th Cir.1981), rehearing denied, 664 F.2d 84, cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 140 (1982), the Fifth Circuit identified other factors any one of which or any combination of which could, in the circumstances of a specific case, signify legitimacy. 25 No one circumstance is talismanic to the Rakas inquiry. "While property ownership is clearly a factor to be considered in determining whether an individual's Fourth Amendment rights have been violated, property rights are neither the beginning nor the end of ... [the] inquiry." United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619, 628 (1980) (citation omitted). Other factors to be weighed include whether the defendant has a possessory interest in the thing seized or the place searched, whether he has the right to exclude others from that place, whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises. See Id.; Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). As the very listing of these factors demonstrates, the expectation must be based on considerations outside of the fourth amendment. Rakas v. Illinois, 439 U.S. at 142-145 n. 12, 99 S.Ct. at 430-31 n. 12, 58 L.Ed.2d at 400-402 n. 12. 26 Id. at 1154-55. 27 In Bailey, this court held that defendants who had stored chemicals containing a beeper transmitter in a locked storage room in the basement of an apartment complex had "exhibited an expectation of privacy in the location of the chemicals which, but for the beeper surveillance, would have been entirely justified." Id. at 944. See United States v. Carriger, 541 F.2d 545 (6th Cir.1976) (tenants of apartments may have the same expectation of privacy in their apartments as homeowners in their homes). There is little difference between that situation and the situation presented by Cassity and Sword's claims here. Sword resided at 1494 Calvary Street, a three- or four-unit2 apartment complex with his girlfriend, a child, and cotenants. The chemicals containing the beeper were kept in the locked basement to which only Sword and a friend had the key. It was not a common area accessible to public and tenants alike. See Fixel v. Wainwright, 492 F.2d 480, 484 (5th Cir.1974). There is no evidence that his friend consented to the search. See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); United States v. Sumlin, 567 F.2d 684, 687 (6th Cir.1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978). In Cassity's case, he had resided with his parents at 2803 Starr Street twenty to twenty-five years. He kept his clothes and other personal effects there. Although he did not personally own the house, for all intents and purposes, it was his home. We think it indisputable that Cassity had an expectation of privacy which was legitimate in the Starr Street address. See Haydel, 649 F.2d at 1155 (son had a legitimate expectation of privacy in gambling records kept in parents' home although he did not reside there regularly). Moreover, that expectation reasonably extended to all parts of the home, including the garage. See United States v. Banerman, 552 F.2d 61, 64-65 (2d Cir.1977) (lessees of a commercial building who had expectation of privacy in offices could also legitimately expect privacy in the garage). 28 The government argues that neither Cassity nor Sword can establish even a subjective expectation of privacy in the chemicals because neither admitted to ownership of or knowledge of the containers. This argument misconstrues the basis for finding that Cassity and Sword have "standing" to object to the government's actions in this case. Whether beeper monitoring in a private home is characterized as a search or a seizure is unimportant. Bailey, 628 F.2d at 940. What is important is that it entails governmental intrusion into an area when privacy can most legitimately be expected. See United States v. Weeks, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Bailey, 628 F.2d at 944. It is this fact--the intrusive monitoring of objects within the sanctity of the home--which permits Cassity and Sword to successfully suppress any and all evidence garnered as a result. 29 Lenk was a guest in Dean's home when the police entered with a search warrant. At the time of the search, he was in the basement working in what was shown to be the laboratory used by the defendants to manufacture the illegal drugs. Seized in the search was a bag containing Lenk's personal effects, as well as papers on which were written chemical formulas. The government, relying primarily upon the Tenth Circuit's decision in United States v. Clayborne, 584 F.2d 346, 348 (1978), argues that Lenk may not object to the search because "no one, at least no non-resident, could derive rights that society should be prepared to recognize as legally justified from his work in a clandestine drug laboratory." Government brief, p. 41. The government misses the point, however. It is Lenk's status as a guest of Dean's and not his presence as a chemist in a clandestine drug laboratory which gives him a subjective expectation of privacy the police were not privileged to infringe. 30 In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the Supreme Court advanced "the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place." Although in subsequent decisions, the Court has narrowed somewhat the sweeping provisions of Jones, it remains the law that one who resides at a private residence with permission of the owner as a guest or invitee may demonstrate an expectation of privacy in the premises legally sufficient to support a challenge to a police search. See Rakas, 439 U.S. at 141-142, 99 S.Ct. at 429-30. Like the defendant in Jones, Lenk was at the Dean home with permission of the owner, came and went freely, and kept his personal belongings there. He testified that he expected privacy. These facts are sufficient to establish a legitimate, reasonable expectation of privacy protected by the Fourth Amendment. 31 Clayborne is easily distinguishable. The court's opinion is predicated explicitly on the commercial nature of the building, which, it said, "was susceptible not only to outside viewing, but also to ingress and egress of the public." Id. at 350 (footnote omitted). "Strict privacy," the court continued, "as in a home was not to be properly expected here." Id. In contrast, the Hanson Street location was a private home where the homeowner, Dean, and his guest Lenk, could properly expect freedom from uninvited intrusions. The fact that part of the home was used for illegal purposes does not obviate this conclusion. As the district court stated, when the Jones Court held that "wrongful" presence at the scene of the search would preclude the legitimacy of the privacy expectation, "wrongful" was used to refer to the occupancy of the premises, not its use. See Rakas, 439 U.S. at 141 n. 9, 99 S.Ct. at 429 n. 9. We also agree with the district court's determination that the facts that the monitoring began before Lenk arrived and that a warrant was obtained prior to the search of the house do not save the government's case. Whether or not Lenk was in the house as a guest when the illegal monitoring began is irrelevant. When he arrived, the monitoring was still in progress. Therefore what we have already found to be Lenk's legitimate expectation of privacy in the premises was infringed. In effect, he steps into the shoes of the homeowner, whose ongoing interest in the privacy of his home permits him to challenge any intrusion, regardless of whether he was present or not. 32 The government also argues that because it obtained a search warrant prior to entering the Hanson Street address the search and any evidence seized were legal. We disagree. The location of the Hanson Street building was ascertained through illegal beeper monitoring. Once located, additional evidence arguably sufficient to show probable cause was otherwise legally gathered through visual surveillance and other means. However, the fact remains that but for the beeper, the opportunity to gather other evidence might not have arisen. This additional evidence, therefore, is fruit of the initial illegal search. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). 33 Having concluded that Lenk, Sword and Cassity had shown legitimate expectations of privacy which the government's warrantless beeper monitoring had infringed, the district court went on to consider and resolve in the negative the issue of whether Bailey should be applied retroactively to exclude the tainted evidence. To reach that issue was error. In Cassity I, we explicitly stated that the scope of the court's task on remand was limited to determining "whether the beeper surveillance by the Government invaded ... [the defendant's] ... legitimate expectation of privacy." To that end, the court was to hold "suppression hearings," and if it found such an invasion, to grant the suppression motion. That the court was not then to proceed to consider the retroactivity issue was equally obvious from other language in Cassity I making it plain that this court had already considered and resolved the issue. Id. at 464-465 ("Given our Bailey decision ...; As our Bailey decision makes clear ... On remand the district court should undertake the analysis outlined in Bailey.") 34 To conclude, because we affirm the district court's findings that Lenk, Sword, and Cassity each had legitimate expectations of privacy in the respective locations subjected to beeper monitoring, monitoring without a warrant violated the Fourth Amendment. Evidence gleaned as a result of the monitoring should be suppressed. We vacate the lower court's decisions on the question of Bailey's retroactivity, that issue having been improperly considered. Of course, should the government elect to retry these defendants, the exclusion of evidence need not be complete for all defendants. For example, evidence seized from Hanson Street, while inadmissible against Lenk because its seizure violated a legitimate privacy interest of his, is admissible for any relevant purpose against either Sword or Cassity, neither of whom have legitimate expectations of privacy in that house. Because all the evidence was admitted in a joint trial, however, we are unable here to selectively determine the actual effect of erroneous admission on each defendant. 1 The fourth defendant, Hines, claimed that monitoring a beeper secreted in a can of chemicals traveling in the back of a van driven by him on a public highway amounted to an unconstitutional search. The district court disagreed, finding that he lacked an expectation of privacy in the contents of the van. By order date October 4, 1983, we have affirmed Hines' conviction 2 It is unclear from the record	{ "pile_set_name": "FreeLaw" }
64 F.3d 673 NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.In Re Jaume SERRA, S.A. Nos. 95-1308, 95-1309. United States Court of Appeals, Federal Circuit. July 14, 1995. PTO DISMISSED. Before RADER, Circuit Judge. ON MOTION ORDER RADER, Circuit Judge. 1 Jaume Serra, S.A. moves to stay the briefing schedules in appeal nos. 95-1308 and 95-1309 pending the final disposition of its petition, with the Patent and Trademark Office (PTO), to cancel registration no. 1,071,571. The PTO does not oppose. 2 Serra states that if its cancellation proceeding is successful, then the basis of the Trademark Trial and Appeal Board's refusal to register will be eliminated. Because the cancellation proceeding could be lengthy, the court prefers to dismiss without prejudice to reinstatement rather than to stay the appeal. 3 Upon consideration thereof, IT IS ORDERED THAT: 4 (1) Appeal nos. 95-1308 and -1309 are consolidated, sua sponte. 5 (2) Serra's motions to stay the briefing schedules are denied. 6 (3) The appeals are dismissed without prejudice to reinstatement pending the final disposition of Serra's petition to cancel registration no. 1,071,571. Serra must provide notice of reinstatement within 30 days of the final disposition by the Board.	{ "pile_set_name": "FreeLaw" }
OSCN Found Document:STATE ex rel. OKLAHOMA BAR ASSOCIATION v. FRIESEN OSCN navigation Home Courts Court Dockets Legal Research Calendar Help Previous Case Top Of Index This Point in Index Citationize Next Case Print Only STATE ex rel. OKLAHOMA BAR ASSOCIATION v. FRIESEN2015 OK 34Case Number: SCBD-6178Decided: 05/26/2015THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2015 OK 34, __ P.3d __ STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. LARRY DOUGLAS FRIESEN, Respondent. ORIGINAL PROCEEDING FOR ATTORNEY DISCIPLINE ¶0 This is a summary disciplinary proceeding initiated pursuant to Rule 7, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. 2011, Ch. 1, App. 1-A, concerning the Respondent's plea of guilty to three misdemeanor counts for the crime of willful failure to pay taxes in violation of 26 U.S.C., § 7203. RESPONDENT IS SUSPENDED FROM THE PRACTICE OF LAW FROM THE DATE OF THIS COURT'S ORDER OF INTERIM SUSPENSION TO THE EFFECTIVE DATE OF THIS PRONOUNCEMENT FURTHER DISCIPLINE MAY BE IMPOSED UPON VIOLATION OF HIS PROBATION AND IMPOSITION OF COSTS Gina L. Hendryx, General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant. Mack K. Martin and Amber B. Martin, Oklahoma City, Oklahoma, for Respondent. COMBS, V.C.J., FACTS ¶1 On March 21, 2014, a Criminal Information was filed in the United States District Court for the Western District of Oklahoma, against the Respondent, Larry Douglas Friesen (Respondent), an attorney and member of the Oklahoma Bar Association.1 The Criminal information accused the Respondent of willfully failing to pay income and FICA taxes to the Internal Revenue Service (IRS). The Respondent withheld these taxes from his law office employees' wages in three quarterly periods of calendar year 2007 but failed to pay them in violation of 26 U.S.C. § 7203.2 He was charged with one misdemeanor count for each of the three quarterly periods. Approximately one month later the Respondent entered into a plea agreement and pled guilty to the charges. ¶2 The United States Magistrate Judge entered judgment and sentence on September 25, 2014, accepting the Respondent's plea of guilty to all three counts. The sentence included thirty-six months of probation, including forty-five days of weekend incarceration beginning October 10, 2014, and one hundred and eighty days of house arrest beginning the first Monday following his last weekend of incarceration.3 He was also required to use a GPS monitoring device during this period. During the one hundred and eighty day period, the Respondent was authorized to leave his residence for employment, among other things. In addition he was required to pay $209,673.00 in restitution and an assessment of $75.00. He was ordered to make monthly payments on the restitution equal to the lesser of $300.00 or 10% of his monthly income beginning thirty days after the end of incarceration. ¶3 The total agreed-to restitution amount was $320,000.00 and included interest, penalties and other "relevant conduct" which includes certain prior unpaid taxes. The Respondent was given credit for the amount he paid to the IRS ($110,327.00) prior to his plea agreement. This $110,327.00 included amounts owed for not only the three quarters for which he was charged but also included all the remaining quarters for calendar years 2006 and 2007. These additional quarters are also referred to as "relevant conduct." ¶4 The Government's Sentencing Memorandum filed in the Respondent's criminal case shows he failed to pay employment taxes for various quarters in calendar years 1999 through 2001 and 2003 through 2007. This document also reflects his law firm had not filed corporate tax returns for 2000, 2001, and 2002 but eventually did so in 2003 after being contacted by the IRS. The Memorandum indicates the IRS had many contacts with the Respondent and his employees since 2002 to discuss the collection of these delinquent taxes. The IRS also sent notices and letters to the Respondent warning him about his taxes in the calendar years 2002 through 2005. The Memorandum shows that at least in calendar years 2006 and 2007 he had other funds to pay his taxes. It notes he paid a contractor in those years to remodel his residence as well as his office for an amount totaling $35,336.00. In addition, the Memorandum states for the calendar years of 2005 through 2007 his annual gross business receipts exceeded $400,000.00 in each year. ¶5 The parties to the criminal action agreed that the tax loss would only include those taxes unpaid in all quarters of calendar years 2006 and 2007, which totaled $110,327.00. Based on this amount, the federal sentencing guidelines formula recommended a sentence of twelve to eighteen months incarceration. The federal district court, however, chose a sentence below the advisory guideline range. In its Statement of Reasons, the court said: These offenses are financial crimes with the IRS being the only victim. Defendant plead guilty to three (3) counts of failure to pay taxes and has made full restitution for the tax loss covered by the three count Criminal Information. Over the past 30 years Defendant has no criminal history, other than a 2009 misdemeanor conviction for which he received a probationary sentence. Defendant has served his community and volunteered his services in law related activities. Defendant submitted over 20 letters of support from local attorneys, law enforcement, and others attesting to his good character and value to the community. The sentence imposed affords adequate deterrence to criminal conduct and serves to provide restitution to the victim of the offense. Defendant, if given any more than weekend incarceration, would likely lose his license to practice law, thereby dramatically reducing the ability of the victim to obtain full restitution. Defendant's sentence of 3 years probation and his continued employment will assure that regular restitution payments are made. If during the lengthy probationary sentence, Defendant fails to make these payments or otherwise violates the conditions of his probation then he faces the prospect of a lengthy imprisonment and the loss of his license to practice law. ¶6 On September 29, 2014, the General Counsel for the Oklahoma Bar Association (Complainant) forwarded certified copies of the federal criminal case to this Court pursuant to Rule 7.2, RGDP. On October 13, 2014, this Court ordered an immediate interim suspension of the Respondent from the practice of law. The Respondent chose not to challenge his interim suspension but did request a hearing to present mitigating evidence. An evidentiary hearing was held before the Professional Responsibility Tribunal (PRT) on December 18, 2014. ¶7 At the evidentiary hearing, the Respondent presented two main factors as mitigation to show why he had not paid the taxes. The first factor concerned the embezzlement of significant funds by his CPA. The second factor concerned his legal fees for representation in a 2008 federal indictment. In addition, the Respondent provided positive testimony from local judges, lawyers and other professionals concerning his legal abilities. ¶8 The Respondent's first main mitigating factor concerned his CPA. In 1988, Respondent hired a CPA, Judy Poltera. Poltera's duties included paying all the office bills and preparing as well as paying taxes including payroll taxes. She had the final decision making authority as to when and if employment taxes would be paid to the IRS. In 1998, Poltera was involved in a serious car accident which enhanced an existing medical condition. She began taking prescription pain killers and had many doctor appointments. She subsequently lost another job where she had health insurance and eventually lost that health insurance. She testified she embezzled money from the Respondent's operating account and even took out a mortgage on the Respondent's home without his knowledge to pay for her medical treatment and medication. Poltera was also authorized to accept correspondence and phone calls from the IRS and to meet with them as needed. She testified she told the Respondent she would take care of any problems and "it would be okay." She also testified she did not believe the Respondent knew of the details of her meetings with the IRS. In 2005, when Poltera realized she could no longer hide her embezzlement she quickly left the law firm. ¶9 After Poltera left, the Respondent went to her office and discovered she had not paid all the federal and state taxes owed from 1998 to 2005 and she had not been paying office bills. The amount of unpaid office bills alone amounted to approximately $150,000.00. In addition, he discovered she had taken out a mortgage in excess of $100,000.00 on his residence, which he eventually lost in foreclosure. ¶10 The second mitigating factor concerns his legal fees in defense against a 2008 federal indictment. Prior to 2003, the Respondent had represented members of the Outlaw motorcycle club. The motorcycle club had been under investigation by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). After that investigation, the ATF conducted another investigation of the Respondent who was a gun enthusiast as well as a former gun dealer. The ATF discovered a World War II English Sten fully-automatic submachine gun the Respondent had legally purchased. The submachine gun had been shipped from England but apparently a wrong serial number had been recorded when it was shipped. In 2004, a search warrant was issued and the ATF searched the Respondent's house and office and confiscated the submachine gun. In 2007, the case against him "started gearing up" and in 2008, the Respondent was indicted for this recording error. He went to trial which resulted in a mistrial and afterwards the government tried to negotiate a plea. The Respondent testified the government discovered he had also failed to properly record a gun he legally purchased from a local gun dealer. Because the Respondent had been a gun dealer he was required to keep a separate log of guns he owned personally from the ones his business owned. He stated he failed to note the gun purchase on his individual registry. The government agreed to drop the felony charges concerning the submachine gun in exchange for a plea of guilty to a misdemeanor improper recordkeeping charge on the gun he purchased locally.4 The Respondent accepted and pled guilty in 2009. The Respondent testified he spent approximately $250,000.00 on legal representation and experts during the period between 2007 through 2009. In 2009, he also received a private reprimand from the Professional Responsibility Commission of the Oklahoma Bar Association for his plea of guilty to the misdemeanor charge. ¶11 Following the discovery of unpaid bills in 2005, the Respondent testified he had to make tough decisions on what could be paid. The Respondent's attorney coined his situation as being in a "perfect storm" of financial duress. The Respondent was upside down because of his accountant's embezzlement and he was faced with losing his livelihood, license and freedom if he did not defend himself against the federal gun indictment. The Respondent admits that after his CPA left and during 2006 and 2007 he had control over the firm's finances and had the final decision making authority as to when and if bills would be paid. He testified he believed he would pay the back taxes once his financial situation was stabilized. In order to pay those back he had to keep the law office open which also meant he had to pay the unpaid office bills. Further, he had to defend himself in the federal gun case or he would lose his freedom and not be able to pay the taxes. The Respondent testified that at the time there was not enough money to do both. ¶12 The Respondent testified he was able to begin making regular tax payments after his 2009 plea in the federal gun case. He testified that after his gun case was completed he not only paid back the $110,327.00 but also paid another $130,000.00 towards state and federal taxes. He also stated he believed for the period of 2009 through 2014, with the exception of maybe one or two payments, his firm is current on state and federal employment taxes for that period. He is also making the ordered restitution payments. ¶13 The Respondent testified he has taken significant remedial steps to correct his law office management. In 2012, he was able to afford a professional office manager. The office manager placed the Respondent on a strict budget and established procedures to keep the Respondent informed of his office's finances. Now, he receives weekly, monthly and quarterly reports concerning payments leaving the office, including tax payments, and accounts receivable as well as a reconciliation sheet for the firm's bank accounts. ¶14 At the hearing, several witnesses testified on the Respondent's behalf. These included attorneys and judges who attested positively to the Respondent's reputation as a practitioner and to his integrity in dealing with the court and other lawyers. In addition, evidence was presented concerning the Respondent's contributions to the profession over the years which included volunteer and educational activities. ¶15 The Respondent took responsibility and expressed remorse and embarrassment for his actions. He said he was lackadaisical and "was enjoying the practice of law but was not taking care of the business of law." He also understood the disrepute his conviction brought to the bar and felt very bad for having caused it. In addition, the Respondent stated he complied with Rule 9.1, RGDP and notified his clients and withdrew from his cases following his suspension. He testified he has not been practicing law since his October suspension. He currently works as a paralegal and has obtained other counsel to work with his former clients who have not otherwise found counsel. The Respondent testified he has kept current with his continuing legal education. In addition, the Oklahoma Bar Association's investigator also testified that the Respondent had fully cooperated in the investigation. ¶16 In the Complainant's closing argument before the PRT it recommended the Respondent's interim suspension should continue until this Court makes a ruling which it believed should be a sufficient amount of time and one that most likely would be in excess of six months.5 In the Respondent's attorney's closing argument he reminded the Trial Panel that his client's convictions did not arise out of the practice of law and they have not caused any harm to any of his clients nor were they the result of any violence, alcohol or drug abuse. ¶17 On February 19, 2015, the Trial Panel filed its report. After consideration of all the mitigating factors, it recommended the Respondent's interim suspension be lifted and he receive a deferred suspension of two years and one day subject to compliance with his probation. It recommended that if the Respondent violated the terms of his probation, the General Counsel of the Oklahoma Bar Association should be directed to immediately notify this Court and the suspension of two years and one day should be imposed from the date of the violation. 6 STANDARD OF REVIEW ¶18 This Court is vested with exclusive and original jurisdiction over attorney disciplinary proceedings.7 We exercise the responsibility to decide whether attorney misconduct has occurred and what discipline is appropriate, not for the purpose of punishing the attorney, but to assess his or her continued fitness to practice law and to safeguard the interests of the public, the courts, and the legal profession.8 Each aspect of a Rule 7, RGDP proceeding is reviewed de novo.9 One of the purposes behind exercising discipline is to provide deterrence to the offending lawyer and other members of the bar.10 FITNESS TO PRACTICE LAW ¶19 The Respondent argues that based upon the subject tax offenses, the circumstances, and the mitigating evidence, a finding of unfitness to practice law is not appropriate here. The Respondent notes that in our cases where we have held a violation of state or federal tax laws demonstrates unfitness to practice law the attorney had failed to file a tax return or had other included offenses. He asserts he was charged with failing to pay taxes and not for failure to file a tax return. ¶20 In State ex rel. Oklahoma Bar Ass'n v. Hart, 2014 OK 96, ¶¶10-11, 339 P.3d 895, this Court recognized that a criminal conviction does not, ipso facto, require an automatic finding of unfitness under the Rules Governing Disciplinary Proceedings, 5 O.S. 2011, Ch. 1, App. 1-A or the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2011, Ch. 1, App. 3-A. In State ex rel. Oklahoma Bar Ass'n v. Livshee, 1994 OK 12, ¶8, 870 P.2d 770, this Court held when a lawyer willfully fails to file a tax return, he or she appears to the public to be placing himself or herself above the law. We determined, "[a] lawyer's willful failure to file an income tax return is a breach of professional responsibility that tends to discredit the legal profession in the eyes of the public." Livshee, 1994 OK 12 at ¶13. The Comments to Rule 8.4, ORPC provide "[m]any kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving . . . willful failure to file an income tax return." In State ex rel. Oklahoma Bar Ass'n v. Spradling, 2009 OK 39, ¶8, 213 P.3d 570, another case concerning a failure to file a tax return, we held "[a] lawyer's disregard of federal law demonstrates a lack of dedication to and respect for the laws and for the government which lawyers are sworn to uphold." In Spradling, we were concerned that such failure to comply with federal law undermined public confidence in lawyers and damaged the public perception that lawyers are a community of law-abiding practitioners. Spradling, 2009 OK 39 at ¶8. ¶21 The record indicates during the calendar years 2006 and 2007 the Respondent filed quarterly employment tax returns with the IRS but intentionally decided not to pay those taxes. The record also reflects during that period the Respondent withheld employment taxes from his paycheck and the paychecks of his employees. Although he did not try to deceive the IRS by failing to file his quarterly returns, he had no intention of paying those amounts at the time he filed the returns. The Respondent instead intended to pay the back taxes owed in the future when his affairs were stable. Even though we are not dealing with a failure to file a tax return, which as mentioned does reflect upon an attorney's fitness to practice law, we have here repeated violations of federal law. Employment taxes for the eight quarters during 2006 and 2007 were intentionally unpaid. The taxes withheld from paychecks went to pay the Respondent's legal fees on the federal gun case and towards keeping his law office open and possibly to other expenses of questionable necessity, such as fees to a contractor for remodeling his office. The Comments to Rule 8.4, ORPC provide "[a] pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation." Failure to pay employment taxes cannot be considered a minor offense and here the offense occurred repeatedly. ¶22 Additionally, the record reflects there were many other years prior to 2006 where taxes went unpaid. The Respondent's excuse is that he was not effectively managing his law office.11 Management of one's law office is at the core of an attorney's ability to practice. We find such failure to pay taxes, especially after withholding those taxes from employee paychecks, reflects adversely on the Respondent's fitness to practice law. DISCIPLINE ¶23 Discipline is determined on a case-by-case basis, however, in imposing discipline we consider the discipline imposed in our previous decisions concerning like misconduct. State ex rel. Oklahoma Bar Ass'n v. Givens, 2014 OK 103, ¶18, 343 P.3d 214; State ex rel. Oklahoma Bar Association v. Edwards, 2011 OK 3, ¶20, 248 P.3d 350. In our jurisprudence, where an attorney has violated a tax law without harming a client or committing any other offense discipline has been more yielding.12 However, where a tax offense was only one of many offenses committed by an attorney the discipline imposed has been more severe.13 ¶24 In State ex rel. Oklahoma Bar Ass'n v. Livshee, an attorney pled guilty to one misdemeanor count in federal court for willful failure to file an income tax return and received two years of probation. 1994 OK 12, ¶2, 870 P.2d 770. Thereafter, on September 13, 1993, this Court entered an order of interim suspension. This Court considered mitigating factors when determining the appropriate discipline. The Professional Responsibility Tribunal found the following mitigating factors: (1) Livshee complied fully with this court's post-conviction order of interim suspension and with all other rules governing him while under suspension; (2) he has refrained from practicing law; (3) his offense of willful failure to file a tax return does not reveal any elements of "deception and dishonesty;" (4) Livshee readily admitted his wrongdoing; (5) at the time of his criminal omission Livshee did not have the money to pay the taxes then due the government; (6) the acts of which he stands convicted neither relate to his practice of law nor did they harm any of his clients or other individuals; (7) at the time of the PRT hearing Livshee had filed all his tax returns; (8) while he then owned (sic) in taxes between $50,000 and $55,000, he was making arrangements for a payout. Livshee, 1994 OK 12 at ¶10. This Court also noted the parties' stipulation that Livshee had never been previously disciplined. Livshee, 1994 OK 12 at ¶6. We disagreed with the PRT's finding that failure to file a tax return did not relate to the practice of law. However, we held the length of time from the interim suspension order to the date of our final discipline, January 25, 1994, was "long enough to constitute an adequate disciplinary sanction for the misconduct of which he was convicted." Livshee, 1994 OK 12 at ¶14. No further discipline was ordered. ¶25 Here we are confronted with multiple misdemeanor counts for failure to pay taxes in violation of federal tax laws. The Respondent was not convicted of any other offenses nor is there any evidence that his clients were harmed by his actions. The Respondent has taken important remedial steps to improve his law office management, especially concerning its finances. He has already paid nearly a quarter of a million dollars in back taxes. The United States Magistrate Judge tailored the Respondent's sentence so that even on house arrest he could practice law if his suspension was lifted. The judge understood that allowing the Respondent to practice would greatly increase his chance of paying the restitution. Many testified concerning the Respondent's practice of law including several judges. All gave favorable testimony. The record also reflects the many services he has provided to the legal profession above and beyond his daily practice. In addition, the Respondent has complied with Rule 9.1, RGDP and has also refrained from the practice of law since his interim suspension. Although the record reflects the Respondent received a private reprimand in 2009 for his plea to a federal misdemeanor, we find no value in enhancing his discipline for the mistake of incorrectly recording a gun he purchased in the wrong log. ¶26 We believe the Respondent's lesson from failing to pay his tax obligations will deter other attorneys from following that path. The period of interim suspension, which began when this Court issued its order on October 13, 2014, will end when this pronouncement becomes final and effective. However, based upon the facts of this case, we defer the imposition of final discipline for so long as Respondent remains on probation, under the terms of probation imposed by the Court in United States v. Friesen, Case No. M-14-114-E (WDOK). We reserve the right to revisit the discipline imposed today if the Respondent violates the terms of his probation in United States v. Friesen, Case No. M-14-114-E (WDOK). The full panoply of discipline shall be available to this court should there be a finding of a violation of the terms of his probation. Respondent is directed to notify the General Counsel of the Oklahoma Bar Association, within 10 days, if a motion to revoke or accelerate his probation is filed by the federal authorities. The General Counsel shall immediately notify this Court upon learning of such filing. The Claimant has filed an Application to Assess Costs against the Respondent for the amount of $1,854.56. Our opinion herein shall be effective, so as to allow the Respondent resumption of law practice, when the costs of this proceeding in the amount of $1,854.56 have been paid and its remittance documented by the Oklahoma Bar Association filing a receipt in this court. RESPONDENT IS SUSPENDED FROM THE PRACTICE OF LAW FROM THE DATE OF THIS COURT'S ORDER OF INTERIM SUSPENSION TO THE EFFECTIVE DATE OF THIS PRONOUNCEMENT FURTHER DISCIPLINE MAY BE IMPOSED UPON VIOLATION OF HIS PROBATION AND IMPOSITION OF COSTS ¶27 REIF, C.J, COMBS, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, and COLBERT, JJ., concur. ¶28 TAYLOR, J., dissents: "The Respondent should not be allowed to practice law while he is on federal criminal probation." ¶29 GURICH, J., not participating. FOOTNOTES 1 United States v. Friesen, Case No. M-14-114-E (WDOK). 2 26 U.S.C. § 7203, provides: Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution. In the case of any person with respect to whom there is a failure to pay any estimated tax, this section shall not apply to such person with respect to such failure if there is no addition to tax under section 6654 or 6655 with respect to such failure. In the case of a willful violation of any provision of section 6050I, the first sentence of this section shall be applied by substituting "felony" for "misdemeanor" and "5 years" for "1 year". 3 The Respondent stated in his Notice of Completion of Incarceration Portion of Federal Sentence that he completed the forty-five days of weekend incarceration on Sunday, January 18, 2015. Therefore, the one hundred and eighty days of house arrest began on Monday, January 19, 2015, and should end on Friday, July 17, 2015. 4 A violation of 18 U.S.C. § 922(m). 5 In its Brief in Chief, the Complainant changed its recommendation. The Complainant recommends the Respondent be suspended until he is no longer on house arrest, approximately July 17, 2015, and thereafter be subject to a deferred suspension for the remainder of his probation. 6 The Trial Panel cited State ex rel. Oklahoma Bar Ass'n v. Bernhardt, 2014 OK 20, 323 P.3d 222, a case involving a plea of guilty to felony DUI, where a similar discipline was pronounced. 7 State ex rel. Oklahoma Bar Ass'n v. Cooley, 2013 OK 42, ¶4, 304 P.3d 453; State ex rel. Oklahoma Bar Ass'n v. Hart, 2014 OK 96, ¶6, 339 P.3d 895. 8 State ex rel. Oklahoma Bar Ass'n v. Wilburn, 2006 OK 50, ¶3, 142 P.3d 420. 9 Hart, 2014 OK 96 at ¶6. 10 State ex rel. Oklahoma Bar Ass'n v. Livshee, 1994 OK 12, ¶12, 870 P.2d 770. 11 The Respondent testified prior to 2006 he relied on his CPA to manage and take care of the law office's finances. He stated it was his responsibility to manage and he had stopped managing. (Tr. of the proceedings held on December 18, 2014, at 52). 12 State ex rel. Oklahoma Bar Ass'n v. Livshee, 1994 OK 12, 870 P.2d 770 (an attorney was suspended for the period beginning with the order of interim suspension to the pronouncement of final discipline); State ex rel. Oklahoma Bar Ass'n v. Spradling, 2009 OK 39, 213 P.3d 570 (an attorney was suspended for the period beginning with the order of interim suspension to the pronouncement of final discipline); State ex rel. Oklahoma Bar Ass'n v. Strickland, 2011 OK 54, 256 P.3d 76 (an attorney received a public censure); State ex rel. Oklahoma Bar Ass'n v. Gann, 1995 OK 48, 895 P.2d 726 (an attorney received a public censure). 13 State ex rel. Oklahoma Bar Ass'n v. Hart, 2014 OK 96, 339 P.3d 895 (an attorney convicted of a felony and multiple misdemeanor offenses, one of which was failure to pay state tax obligations, was suspended for two years and one day); State ex rel. Oklahoma Bar Ass'n v. Wolfe, 1996 OK 75, 919 P.2d 427 (an attorney was found to have twenty-four violations of the ORPC and RGDP and additionally had not filed tax returns for three years. He was suspended for two years and one day); State ex rel. Oklahoma Bar Ass'n v. Stewart, 2003 OK 13, 71 P.3d 1 (an attorney was suspended in several bankruptcy courts for failure to disclose fees in violation of federal law, she was convicted in federal court of contempt for the same conduct, and she had failed to file a tax return. This Court suspended her for four years from the practice of law). Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Supreme Court Cases CiteNameLevel 1994 OK 12, 870 P.2d 770, State ex rel. Oklahoma Bar Assn. v. LivsheeDiscussed at Length 1995 OK 48, 895 P.2d 726, State ex rel. Oklahoma Bar Assn. v. GannDiscussed 2003 OK 13, 71 P.3d 1, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. STEWARTDiscussed 2006 OK 50, 142 P.3d 420, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. WILBURNDiscussed 1996 OK 75, 919 P.2d 427, 67 OBJ 2051, State ex rel. Oklahoma Bar Assn. v. WolfeDiscussed 2009 OK 39, 213 P.3d 570, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. SPRADLINGDiscussed at Length 2011 OK 3, 248 P.3d 350, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. EDWARDSDiscussed 2011 OK 54, 256 P.3d 76, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. STRICKLANDDiscussed 2013 OK 42, 304 P.3d 453, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. COOLEYDiscussed 2014 OK 20, 323 P.3d 222, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. BERNHARDTDiscussed 2014 OK 96, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. HARTDiscussed at Length 2014 OK 103, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. GIVENSCited	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-6837 JOHN ED FLAMER, Plaintiff - Appellant, versus CAPTAIN ROWLETT, Security Chief; WARDEN BASKERVILLE; B. B. HOLLIFIELD, Lieutenant; DOCTOR FISHER, Mental Health, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry C. Morgan, Jr., District Judge. (CA-98-311-2) Submitted: September 10, 1998 Decided: September 24, 1998 Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. John Ed Flamer, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellant appeals the district’s order dismissing his 42 U.S.C. § 1983 (1994) complaint. The district court ordered Appel- lant to either consent to the collection of the filing fee from his inmate account or to submit the full filing fee within thirty days. See 28 U.S.C.A. § 1915(b)(1) (West 1994 & Supp. 1998). The court dismissed the case without prejudice when Appellant failed to com- ply with the order. Finding no abuse of discretion, we affirm the district court’s order. We dispense with oral argument because the facts and legal contentions are adequately presented in the mate- rials before the court and argument would not aid the decisional process. AFFIRMED 2	{ "pile_set_name": "FreeLaw" }
272 F.Supp. 226 (1967) AMERICAN AIRLINES, INC., et al., the Port of New York Authority, and Charles H. Ruby et al., Plaintiffs, and the Administrator of the Federal Aviation Agency, Intervenor, v. TOWN OF HEMPSTEAD et al., Defendants. No. 63 Civ. 1280. United States District Court E. D. New York. June 30, 1967. 227 Cleary, Gottlieb, Steen & Hamilton, New York City, for plaintiffs American Airlines, Inc., et al., Fowler Hamilton, Lyman M. Tondel, Jr., George Weisz, Robert A. Fineman, New York City, of counsel. Sidney Goldstein, New York City, for plaintiff Port of New York Authority, Daniel B. Goldberg, Joseph Lesser, Isobel E. Muirhead, New York City, of counsel. Cohen & Weiss, New York City, for plaintiffs Charles H. Ruby et al., Samuel J. Cohen, Bruce H. Simon, New York City, of counsel. John F. Wolf, Civil Division, Department of Justice (Joseph P. Hoey, U. S. Atty., Carl Golden, Asst. U. S. Atty., Nathaniel H. Goodrich, General Counsel, Federal Aviation Agency, Martin J. White, Regional Counsel, Federal Aviation Agency, and Frank Granito, Federal Aviation Agency, of counsel), for Administrator of Federal Aviation Agency, intervenor. Richard P. Charles and John Hewitt Owen, Brooklyn, for defendants. DOOLING, District Judge. Nine major American-flag air carriers, the Port of New York Authority, Charles H. Ruby as president of the Air Line Pilots Association, three air line pilots, individually and as representatives of their class, and the Administrator of the Federal Aviation Agency (as intervenor) have sued to enjoin the enforcement against them of the Town of Hempstead Unnecessary Noise Ordinance (No. 25), Article II, as amended March 10, 1964, so far as it applies to aircraft using John F. Kennedy International Airport. Plaintiffs have moved for a preliminary injunction against the enforcement of the ordinance and defendants have moved for a preliminary injunction against violations of the ordinance by the plaintiffs. Some four thousand pages of testimony have been taken, elaborate affidavits and detailed exhibits have been presented and the parties have, in addition, agreed in effect on many of the background and underlying facts. In addition, tape recordings of actual flyovers monitored by the Town's acoustical expert were played back under controlled conditions which reproduced in the Courtroom as nearly as possible the actual experience of flyovers against a background of normal domestic sounds. It is concluded that the plaintiffs and intervenor are entitled to enjoin pendente lite enforcement of the Ordinance and that the Town is not entitled to a preliminary injunction against violations of the Ordinance by the plaintiffs. The facts have been found separately and will not be repeated in detail here. The Town of Hempstead lies east of Kennedy Airport and extends both farther north and farther south than the Airport. Some 150,000 residents of Hempstead live within four miles of the Airport. The easterly ends of the five runway strips at Kennedy Airport are from 1,300 to 20,850 feet from the Hempstead boundary. The conflict in the present case arises out of the Town's addition to its Unnecessary Noise Ordinance of a new article forbidding anyone from operating a mechanism or device (including airplanes) which creates a noise within the Town exceeding either of two "limiting noise spectra." The noise spectra are set out in two tables; the Table I spectrum sets out eight octave bands of center frequencies (in cycles per second) from 63 in the first octave band to 8,000 in the eighth octave band, and sets forth the noise limit for each band in decibels of "band pressure level" (referred to the conventional base of 0.0002 microbars, considered the pressure level of a sound at the threshold of audibility). The decibel limits range from 92 decibels in the first or lowest pitched band to 52 decibels in the eighth or highest pitched band, thus recognizing that high pitched sounds are more "annoying" than low 228 pitched sounds of equal pressure level. The Ordinance treats as a violation any transient noise having a "duration" exceeding twelve seconds in the daytime hours 7:00 A.M. to 7:00 P.M., or exceeding six seconds in the night hours 7:00 P.M. to 7:00 A.M. The second or Table II spectrum applies to "steady noise" exceeding one minute in duration and the limiting band pressure levels are, in each octave band, 20 decibels lower than the corresponding Table I value. "Duration" of transient noise (during the entire period when the noise from a source is first distinguished from the ambient noise until the noise from that same source finally recedes into the ambient noise) is defined as the time beginning when the noise first exceeds a certain band pressure level until it no longer exceeds the same band pressure level, provided it remains above the same band pressure level for at least one-third of the total "duration." Exceeding the band pressure level in any one octave band is a violation even if all other octave band noises are well below their limiting levels. It is not suggested that the "limiting noise spectra" of the Ordinance are unreasonably low viewed as stating sound levels above which noise is irritatingly loud when heard in private dwellings. There is no question, indeed both sides insist, that take-offs from and landing approaches to Kennedy Airport regularly produce noise that exceeds the limiting noise spectrum of Table I in Hempstead while the aircraft are passing over parts of the Town. And, in what may be taken to be a typical enough year, in 48% of the landings the aircraft passed over some part of Hempstead and in 36% of the take-offs the aircraft passed over some part of Hempstead. The parties assume that Kennedy Airport will be used more intensively in future, and that in general, the aircraft using the Airport will be larger and will use jet engines of greater thrust than those presently in use. Plaintiffs and the intervenor contend that the Town is impotent to impose such anti-noise legislation as is here involved because it amounts to forbidden regulation of interstate and foreign commerce. Defendants contend that the Ordinance is a proper exercise of police power to protect the welfare of its citizens and that it does not operate in any field actually occupied by federal action or peculiarly reserved for federal action. Defendants argue strenuously that over-flights can be all but eliminated by changing take-off and landing approach procedures in logical extension of existing procedures already approved by the Federal Aviation Agency (FAA) for certain take-offs and landings at Kennedy Airport. It would be difficult to exaggerate the magnitude of the regional and national commitment to Kennedy Airport, and the importance of its role in the interstate and intercontinental transport of mail, passengers and cargo, and it is needless to add that air transport, and particularly long distance air transport, is not an optional alternative to ground and water transport but is indispensable. The two other major airports serving the greater Metropolitan area, LaGuardia and Newark, operated under a common control through the Port of New York Authority, do not, with Kennedy, provide all the airport capacity the region requires. The search for new airport facilities to relieve the overburdened airports of the present and make room for the future has been publicly conducted for years. In the years since 1948, when the Port Authority undertook to operate Kennedy, turbo and fan jet aircraft have all but displaced turbo and piston driven propeller craft. Larger, heavier and faster than propeller craft, the jets have demanded lengthened runways, and exacted new constants of air traffic management. Broadly, the airport base they required, was, in absolute terms, larger in every dimension than what had been required for propeller craft, and the inverted truncated cone of air space resting on the airport, that can be thought of as representing the zone marked by the jets' landing glide slopes of about three degrees, 229 was far nearer the edges of the airport and closer down on the bordering communities. It was as if every existing propeller craft runway had been suddenly moved out toward the boundary of the airport. The margin of laterally insulating air that had sheltered the neighborhood of the airport from take-off and landing noise was radically reduced and the impact on the surrounding communities was marked and unhappy. The Town of Hempstead, neighboring the Airport to its east, is the largest town in the State. It is 128 square miles in area and has grown rapidly in population in recent years; its population was 432,506 in 1950, was 740,738 in 1960, and was estimated at nearly 806,000 in September 1963. In 1964 there were about 225,000 dwelling units in the town, and the population density in the areas nearest to the Airport exceeded 10,000 persons per square mile. It is estimated that 150,000 people live in the incorporated villages that lie within three miles of the Airport. The Town is primarily residential. The problem with which the Town Ordinance deals does not affect the whole Town. Parts of the TownLevittown and Wantagh, for exampleare as far from the center of the Airport as is Central Park. Thickly populated areas in Queens, including the Rockaway Peninsula, and Brooklyn are as close to the center of the Airport as the northwest corner of the Town, which is affected by flights taking off from or landing on the northeastsouthwest oriented runways at Kennedy. The noise problem is not peculiar to Hempstead nor does it equally affect the many communities in the Town. It is a problem that affects communities in terms of their proximity to the Airport quite without reference to town, city and borough boundaries. The dimensions of the noise problem cannot be minimized. It is, however, one of the manifold of environmental problems that press on a society in which the pace of industrialization steadily outstrips the capacity to deal with its modification of the total environment of urban and suburban existence. Perhaps the aircraft noise problem differs in that it appears to be unavoidable, in the present stage of technical development, and not a consequence of the failure to take feasible precautions or to provide practical remedies. The testimony has dealt mostly with turbo-jet and turbo-fan aircraft since they are the ones on which the problem centers and they are steadily displacing propeller driven aircraft. The testimony and this area is non-controversial showed that the noise sources are the compressor whine produced by beating of the blades and vanes on the air and the sound produced outside the engine by the exhaust discharge, moving at high velocity and shearing through the ambient air and dragging it along in eddies that increase in size as they are swept along. The sound wave lengthand sound pitchof the eddies is related to their diameter. Turbo-jet and turbo-fan engines, while broadly similar as noise sources, differ in that the wake velocity of the turbo-fan is relatively lower and more of the energy of the engine is used in the compressor, which has an annular discharge directly to the air. Jet aircraft noise is thus predominantly the product of relative mass flow between the ambient air and exhaust discharge. There is no indication that it could be muffled like an automobile engine or that progress in diminishing noise-production by jet engines can in the foreseeable future do more than mitigate it by such advances as the turbo-fan represents in relation to the turbo-jet. Given the jet engine, with its noise characteristics, the amount of noise it produces in service as it affects the neighborhood of an Airport is determined by the airframe of the aircraft, its take-off weight or landing weight, the thrust applied by its engines, the flap setting of the wings and other physical constants. The evidence showed plainly take-offs and landings are essentially mathematical solutions of problems in physics and not inspirational piloting. The evidence is very clear that a very 230 high degree of skill and judgment in the piloting of aircraft is indispensable, but the point is that, to the uninitiate, the flght manual is an immense array of graphs and tables that translate aircraft weight, air temperature and humidity, change in weight during flight due to fuel loss, radius of turn, angle of bank, and many other elements into quantitative measures of air speed, thrust setting, flap setting etc. The testimony made it very clear that flying a jet transport is a complex enterprise. The aircraft in flight is inevitably a noise source. It travels at the center of a sphere of sound that attenuates with distance in accordance with the law of inverse squares ("spherical divergence") and by an absorption constant determined by atmospheric conditions and the octave band level of the sound; the higher frequency sounds are much more affected by absorption than low frequency sound. In general doubling the distance at which a noise is measured reduces it by six decibels. The noise of the aircraft is inseparable from it, and the evidence is clear that the noise cannot be much or safely mitigated by diminishing thrust at the levels at which take-offs and landings are executed. The evidence explored these matters exhaustively and they are detailed in the findings. The picture that emerges clearly is that the aircraft are operated in a thoroughly responsible manner and with an attention to engineering detail that would have been difficult to credit without the thorough evidentiary elaboration it received during the trial. Equally clear is the demonstration that noise is regularly created in the Town which radically exceeds the limiting noise spectra of Table I of the Ordinance. The evidence supports no other conclusion than that continued operation in accordance with present operating procedure will create noise in the Town substantially in excess of the ordinance criteria. The records of overflights that were in compliance indicate that the flights were at altitudes so high that the aircraft could not land at or take-off from Kennedy at all if required to maintain those compliance altitudes over Hempstead. The various monitorings of flights produced aggregate samples that were sufficiently large, and free from the suspicion of pre-selection and tendentious exclusions, to establish that the pattern of systematic non-compliance with the ordinance was a direct consequence of the basic plan of airport use and was not due to differences among pilots or among airlines, or, among jet aircraft, to differences in take-off weight or aircraft size, although all of these factors bore on the degree of non-compliance. The collision between the present mode of operating the Airport and the Hempstead ordinance is, thus, direct and complete. The ordinance is a noise ordinance in objective. Hempstead has, presumably, no desire to regulate the conduct of the Airport for regulation's own sake. Yet the Ordinance can achieve its objective only if overflights are above the calculated altitudes required to achieve compliance. If the Ordinance is to be complied with landing approaches and take-off procedures long in use, and chosen for valid air traffic and safety reasons, will have to be abandoned. The aircraft and its noise are indivisible; the noise of the aircraft extends outward from it with the same inseparability as its wings and tail assembly; to exclude the aircraft noise from the Town is to exclude the aircraft; to set a ground level decibel limit for the aircraft is directly to exclude it from the lower air that it cannot use without exceeding the decibel limit. The Town recognizes this, for it proposes, with ingenious analysis, a new pattern of Airport use the essence of which is that overflights of Hempstead will be radically diminished and almost all those that do occur will be at heights at which compliance seems a possibility. In a word, the Ordinance does not forbid noise except by forbidding flights and it is, therefore, the legal equivalent of the invalid Cedarhurst Ordinance. All 231 American Airways v. Village of Cedarhurst, E.D.N.Y.1952, 106 F.Supp. 521, aff'd, 2d Cir. 1953, 201 F.2d 273; after final judgment, aff'd, sub. nom. Allegheny Airlines v. Village of Cedarhurst, 2d Cir. 1956, 238 F.2d 812. Like the Cedarhurst ordinance, it denies the lower air to aircraft and closes against them landing approaches and take-off paths to an established airport in contravention of the federally granted public right of freedom of transit through navigable air space (49 U.S.C. § 1304) including the air space needed to insure safety in take-off and landing of aircraft [49 U.S.C. § 1301(24)]. See also City of Newark, N. J. v. Eastern Airlines, D.N.J. 1958, 159 F.Supp. 750. It would not be enough to save the ordinance that it is grounded in a concern for local order and public health, so that, if the ordinance had been enacted in another context it might have been valid. Cf. Weber v. Anheuser-Busch, Inc., 1955, 348 U.S. 468, 479-481, 75 S.Ct. 480, 99 L.Ed. 546. The decisive question is whether the ordinance, operating as it must if it is to achieve its objectives, conflicts with federal law, or invades a field of legislation reserved to the national government. Given the necessary effect of the ordinance as it applies to interstate and international aircraft flights in the navigable air space surrounding Kennedy Airport, it must be concluded on the present record that the ordinance is invalid. The legislation operates in an area committed to federal care, and noise limiting rules operating as do those of the ordinance must come from a federal source. To dispose first of an argument presented in various forms: the case is not involved with landowners' rights, or with concepts of trespass or nuisance. The ordinance is not an exercise of landowners' rights, but it is, if valid, an exertion of police power purely as such; it as much restricts the right of Hempstead landowners to create excessive noise as it does the right of overflying aircraft. So far as landowners are concerned, they are constitutionally entitled to just compensation if overflights are such in nature, proximity and frequency as to amount to a taking of the property for public purposes (United States v. Causby, 1946, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; Griggs v. Allegheny County, 1962, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585); but that does not constrict the federally granted public right of freedom of transit through air space, including that needed for safe landing and take-off, and certainly confers no legislative power on municipalities. Cf. Avery v. United States, 1964, 330 F.2d 640, 642, 165 Ct.Cl. 357, as to compensable interferences with the enjoyment of property. Such a case as Swetland v. Curtiss Airports Corp., 6th Cir. 1932, 55 F.2d 201, dealing with a private landing field and not with a public airport, enjoined the operation of the field as planned on nuisance grounds, but it is not expressive of the present-day law applicable to public airports. Contrast Loma Portal Civic Club v. American Airlines, Inc., 1964, 61 Cal.2d 582, 39 Cal. Rptr. 708, 394 P.2d 548; Martin v. Port of Seattle, 1964, 64 Wash.2d 309, 391 P.2d 540. And, again, the question is not what rights landowners may or may not have but what ordinances the Town may validly enact. Such an ordinance as Hempstead's cannot be considered in the accident of its particular circumstances. Thus, much that the Town argues about the possibility of operating the Airport without intrusions into the Town's air space is wholly irrelevant. In the perspective of power, the ordinance must be tested as if it were one of a set of ordinances each enacted by a bordering town, and all, taken together, enveloping the airport. Diversion of the airport traffic over another Town would then be impossible and each ordinance would be revealed in its inner nature as a direct regulation of aircraft flight. The test is whether the power of enactment is present; to show that, adventitiously, 232 the power, as sought to be exercised, may not render airport operations impossible, but may only require their diversion to other parts of the navigable air space, shows only that the consequences of the exercise of the power may be avoidable, because of accidental features of the circumstances in which it is exercised; it does not show that the exercise of the power is valid. The question remains, may the municipalities that surround an airport adopt such ordinances as Hempstead's which deny to aircraft those parts of the navigable air space that cannot be used without causing noise on the ground in excess of specified limiting noise spectra. The regulation of interstate and foreign navigation has from the beginning of our constitutional history raised questions of the relative scope of state power and of the power of the national government. Gibbons v. Ogden, 1824, 22 U.S. (9 Wheat.) 1, 196-197, 209-212, 230-237, 6 L.Ed. 23; Cooley v. Board of Wardens, 1851, 53 U.S. (12 How.) 299, 319-320, 13 L.Ed. 996. The inquiry whether regulation of the navigation of aircraft in interstate and foreign commerce is a fieldin the language of Cooley"imperatively demanding a single uniform rule" does not need to be and cannot be broadly answered. But legislation, whatever its purpose, that denies access to navigable air space by local rule cannot but be regarded as a plain and forbidden exertion of the power to regulate commerce as such. Cf. Leisy v. Hardin, 1890, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128. By the very nature of the power exercised, it could be used by neighboring towns to impose different and inconsistent rules, and the operator of aircraft thus be required to conform to the most exacting rule. Cf. Southern Pacific Co. v. State of Arizona, 1945, 325 U.S. 761, 767-769, 65 S.Ct. 1515, 89 L.Ed. 1915. But even if the commerce clause were not thought without more to preclude local action of the kind here involved, the actual exercise by the Congress of the power to regulate in this field is so pervasive as to preclude valid enactment of the Hempstead Ordinance. It would be difficult to visualize a more comprehensive scheme of combined regulation, subsidization and operational participation than that which the Congress has provided in the field of aviation. Federal aid for public airport development is provided (49 U.S.C. § 1101 et seq.), and both economic, technical and operational regulation is provided (49 U.S.C. § 1301 et seq.) starting from the basis of an unqualified assertion of the public right of freedom of transit through the navigable air space of the United States. Carriers and routes are certificated by the Civil Aeronautic Board, the FAA certificates aircraft and air men. The Administrator of the FAA is authorized and directed to prescribe air traffic rules and regulations governing the flight of aircraft for the navigation and protection of aircraft and for the protection of persons and property on the ground, including rules as to safe altitudes of flight and for the prevention of aircraft collision. In exercising his rule-making authority the Administrator is subject to the provisions of the Administrative Procedure Act. He is authorized and directed to assign by rule, regulation or order the use of navigable air space to insure the safety of aircraft and the efficient utilization of air space. The Administrator is authorizedwithin the limits of appropriationsto acquire and operate air navigation facilities where necessary and to provide necessary facilities and personnel for the regulation and protection of traffic. The Administrator's powers include the power to prescribe by regulation the minimum altitudes of flight defining the lower limit of navigable air space. The powers granted by the Congress are not dormant but actively exercised. The regulations of the Administrator are of formidable proportions, impressive detail and manifest sophistication. The findings and conclusions set out those 233 regulations and related matters that most nearly affect the present case. For present purposes it is enough to note that the FAA prepares and publishes approach procedures and standard instrument departures (SIDs) for Kennedy Airport which are provided to pilots and, taken with the elaborate flight manuals approved by the FAA and carried in each plane, standardize every material element of a commercial airline take-off or landing including flight path, glide slope on landing and, within limits, climb-out procedure. Every such take-off and landing is a moving part in a vast complex of regional aircraft traffic control that involves transfer of aircraft from one FAA manned control center to another until the aircraft is safe-landed on the runway or en route out of the area. The weft of federal airways and electronic navigational aids mapped on the airmen's charts is a record of the elaborateness, complexity and immediacy of the federal provisions of aids to and controls of air traffic. As one of the witnesses put it, when asked about the approach of aircraft from about 200 miles out (Tr. 2530): "The aircraft is under continuous Air Traffic Control at all times, so therefore its track over the earth and altitude and descent and changes in altitude and final approach clearances are all controlled parts of flight. They are not free wheeling. * " The federal regulation of air navigation and air traffic is so complete that it leaves no room for such local legislation as the Hempstead Ordinance. Cf. Campbell v. Hussey, 1961, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299; Rice v. Santa Fe Elevator Corp., 1947, 331 U.S. 218, 230-234, 67 S.Ct. 1146, 91 L.Ed 1447; Southern Pacific Co. v. State of Arizona, supra 325 U.S. at 779, 65 S.Ct. 1515; Cloverleaf Butter Co. v. Patterson, 1942, 315 U.S. 148, 154-156, 62 S.Ct. 491, 86 L.Ed. 754; Hines v. Davidowitz, 1941, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581; Pennsylvania R. R. Co. v. Public Service Commission, 1919, 250 U.S. 566, 568-569, 40 S.Ct. 36, 64 L.Ed. 1142. There are, to be sure, areas of freedom within the system of controls, as, for example, in the basic rule that the pilot in command of an aircraft is the final authority on its operation [14 C.F.R. § 91.3(a)], and, again, in the degree of pilot discretion when flying under Visual Flight Rules (VFR) during fair weather as against the tighter and more sternly patterned controls operative when the pilot is under Instrument Flight Rules (IFR); and there is always the pilot's responsibility to use his judgment in emergencies, and in identifying emergencies. But these are discretions delegated to certificated airmen, flying certificated aircraft and drawing their flight data from FAA approved flight manuals, delegated discretions dovetailed into and forming a part of the comprehensive control of air traffic and navigation by FAA regulations, tower bulletins and traffic control personnel. Cf. Local 24 of Intern. Broth. of Teamsters, etc. v. Oliver, 1959, 358 U.S. 283, 296, 79 S.Ct. 297, 3 L.Ed.2d 312. But in a congested area like that surrounding Kennedy Airport, and for jet transports, IFR flying is the rule and VFR procedure the exception because the pilots all but universally opt for the safeguards implicit in voluntary subjection to IFR procedures. The Town observes that the Port of New York Authority is apparently permitted to regulate flight. It has imposed a noise limitation on take-offs, and it monitors take-offs to assure compliance; it imposes a 10:00 P.M. to 7:00 A.M. runway preferential that requires take-offs over Jamaica Bay. Valid or not, and the airlines do not concede validity, the Port Authority rules are rested on its supposed right as the airlines' landlord to impose conditions on the airlines' use of the Authority's leasehold property. See Port of New York Authority v. Eastern Air Lines, Inc., E.D.N.Y.1966, 259 F. Supp. 745. In obedience to this view of its own action, the Authority imposes 234 rules on take-offs, for they occur on the Authority's property, and does not impose them on landings, for that would be an exertion of authority over approach procedures executed off the rental premises. The Authority points out, too, that its rules are expressly subordinate to the FAA rules and do not profess to authorize or direct anything not authorized under the FAA rules, regulations and Tower bulletins. It is argued with force that the federal legislation nowhere in express words confers the power to regulate noise or to protect those living near airports from noise intrusions, and that the "Harris Report" to the Committee on Interstate and Foreign Commerce of the House (H.R.Rep. No. 36, 88th Cong. 1st Sess., 1963) assumed that the localities could exercise police power in the noise abatement field. But the point would seem rather to be whether the Congress authorized the FAA to ignore noise considerations in regulating noise-inseparable air traffic in the perspective of safety to the aircraft and to persons and property on the ground. The FAA is not free to ignore, and it has not ignored, noise abatement considerations in its work on aircraft design review, airport planning, airway establishment and local traffic control, nor in drafting its flight control regulations and bulletins. The public interest in safely attainable quiet is obvious. The preferential runway system established by the FAA for Kennedy Airport is noise-oriented, and so is its regulation requiring large aircraft to enter the Kennedy Airport traffic area at not less than 1,500 feet (14 C.F.R. 93.33); the general rule requiring large departing aircraft to climb to 1500 feet as rapidly as practicable [14 C.F.R. § 91.87(f) (2)] serves that purpose as well as others, as do the tracks established for approach-procedures and for take-off vectors. The assumption of the Harris Report that local police power could function cannot be taken to express the view of the Congress nor to negate either the content of the statutes, or the practice of their administration; no legislative action was taken on the report. The Town argues from Huron Portland Cement Co. v. City of Detroit, 1960, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed. 2d 852 that such local exercises of police power are valid even if they affect instrumentalities of commerce. The Court there sustained a local smoke abatement ordinance as applied to a federally licensed and enrolled vessel which was subject to much federal regulation, including annual inspection requirements that extended to its boilers. The Court considered that the smoke ordinance did not directly regulate commerce. The Court noted (362 U.S. at 448, 80 S.Ct. at 818) that the law did not "destroy the right of free passage." The Hempstead Ordinance on the contrary does deny the right of free passage. The Huron case, it will be seen, did not hesitate to test the smoke ordinance for its effect on commerce; the case makes plain that the ordinance in question to be valid must be not only rooted in a proper and real local police power interest, but it must also be free of direct regulation of commerce, it must not burden commerce, and it must not operate in a field fully occupied by federal legislation. By the test applied in Head v. New Mexico Board of Examiners, 1963, 374 U.S. 424, 429-430, 83 S.Ct. 1759, 10 L. Ed.2d 983, to a state statute addressed to a public health interest, there is here, on the present record, that direct conflict between federal action and the ordinance which requires invalidation of the ordinance. As the findings explain in detail, the Ordinance forbids flight paths that the FAA has approved for landing approaches and for take-offs. For example, the instrument landing system (ILS) approach approved by the FAA for the left runway on a 220° heading passes over an outer marker 5.6 miles from the landing threshold of the runway at 1,692 feet, and the path descends on 2° 45' glide slope to 218 feet when 0.6 235 miles from the threshold. The outer marker is in Hempstead and this ILS approach could not be used by present day jet aircraft without violating the ordinance. The ILS approach to the right runway on a 310° heading, similarly has its outer marker at 5.6 miles, in Hempstead, and descends on a glide slope of 2° 30' from 1,557 feet at the outer marker to 198 feet at the middle marker 0.6 miles from the landing threshold. What are called "VOR" approaches to the left runway on 310° heading pass over Hempstead at relatively low altitudes on approach headings of 321°, 297° and 285° and at glide slopes not exceeding 3 degrees. All these landing approaches involve direct conflict with the ordinance. Similarly the take-off procedures involve flight over Hempstead at altitudes that inevitably produce noise in excess of the ordinance limits in the Town from the aircraft of the present day. The instances cited are the easily visualized direct collisions that meet the strict test of Florida Lime & Avocado Growers, Inc. v. Paul, 1963, 373 U.S. 132, 142, 929, 83 S.Ct. 1210, 10 L.Ed.2d 248. The conflict, however, is also subtler. Local initiative in noise control of aviation is inherently an effort to regulate a consequence while disclaiming regulation of the cause. It cannot coexist with a comprehensive system of federal regulation of aircraft manufacture (through certificates of airworthiness) and federal regulation of air navigation and air traffic. Cf. Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 1948, 333 U.S. 103, 105-106, 68 S.Ct. 431, 92 L.Ed. 568, Northwest Airlines, Inc. v. State of Minnesota, 1944, 322 U.S. 292, 302-303, 64 S.Ct. 950, 88 L.Ed. 1283 (concurring opinion of Mr. Justice Jackson). What Mr. Justice Jackson said, concurring, in the latter case points up the essential conflict, and beautifully expresses what is far truer today (322 U.S. at 303, 64 S.Ct. at 956): "Congress has recognized the national responsibility for regulating air commerce. Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls. It takes off only by instruction from the control tower, it travels on prescribed beams, it may be diverted from its intended landing, and it obeys signals and orders. Its privileges, rights, and protection, so far as transit is concerned, it owes to the Federal Government alone and not to any state government." The Town has presented, with impressive skill and ingenuity, a program for changing flight patterns at Kennedy Airport, allegedly within the philosophy of the present pattern and the capabilities of present-day aircraft, so as substantially to eliminate flights over Hempstead. The record support for the program is far from adequate, and it appears to make assumptions about cross-wind and tail-wind tolerances and circling procedures on landing and take-off that do not correspond with existing safe-flying procedures. It would appear too that it overlooks, in estimating the fraction of time that tail and cross winds would interdict use of preferred runways, that summing of the times that the wind is in a quarter corresponding to, or perpendicular to, a runway heading is not enough, because it omits to take account of the fact that winds in other quarters may contribute components that belong in the summation of interdicting conditions. Moreover, the Town's program includes suggestions for diverting traffic over Far Rockaway and Queens that can not be admitted as a valid part of a professed demonstration that such an ordinance is valid, or, at least, not burdensome to commerce, because it can be complied with; to contribute to such an at best doubtful argument for validity, 236 the demonstration would have to assume that Far Rockaway and Queens have identical ordinances identically enforced, and then show that compliance with all was possible without halting or burdening the use of navigable air space. There are other and momentous objections to the Town's suggested method of operating the airport. A full scale study of the traffic pattern of the region would be a prerequisite to accepting the suggestions as presenting a means of compliance. In any such examination other communities would in principle, be entitled to be heard. Cf. Ashbacker Radio Corp. v. F. C. C., 1945, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108; 5 U.S.C. § 1003. The technical data would have to be elaborated beyond the present record, complete as it is, to illuminate the meaning and validity of certain assumptions of aircraft capability used in the Town's suggestions, and other matters. But, as indicated above, the very making of the Town's suggestion for a new mode of operating the airport to achieve compliance demonstrates the invalidity of the ordinance. It illustrates forcefully that the ordinance so radically regulates the use of the navigable air space that a new plan of landing approaches and take-off procedures must be devised and aircraft must be excluded from all except the upper reaches of the navigable air space over Hempstead in order to comply with the ordinance. As the findings indicate, the nature of the case is, beyond question, such that irreparable injury is implicit in enforcement of the ordinance. It is concluded that plaintiffs are entitled to a preliminary injunction against the enforcement of the ordinance and that the Town is not entitled to an injunction against plaintiffs' violating the ordinance. In the light of Rule 65(a) (2) and the divergent positions of the parties on the question of the availability and admissibility of further evidence, the question of further hearing will have to be taken up at counsel's convenience.	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 30, 2009 No. 08-50135 Conference Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. MARIO LUIS BOSQUEZ, III Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:06-CR-1069-ALL Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges. PER CURIAM:* The attorney appointed to represent Mario Luis Bosquez, III, has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Bosquez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5 TH C IR. R. 42.2. * Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.	{ "pile_set_name": "FreeLaw" }
406 F.2d 415 UNITED STATES of America, Appellee,v.Jackie LONGFELLOW, Appellant. No. 12340. United States Court of Appeals Fourth Circuit. Argued Jan. 9, 1969.Decided Feb. 13, 1969. George A. Daugherty, Charleston, W. Va. (James Reed, Jr., Charleston, W. Va., on brief) for appellant. W. Warren Upton, Asst. U.S. Atty. (Milton J. Ferguson, U.S. Atty., and Charles M. Love, III, Asst. U.S. Atty., on brief) for appellee. Before BOREMAN, BRYAN and CRAVEN, Circuit Judges. PER CURIAM: 1 This is an appeal from a guilty verdict on a two-count indictment charging interstate transportation of stolen property. We reject the four points of error urged by the defendant, and affirm the judgment of the district court. 2 ( 1) We adhere to the rule established in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), as we are bound to do, that upon cross-examination of character witnesses produced by defendant it is proper to question them as to whether they have heard rumors detrimental to the defendant. Although Michelson has been strongly criticized, we are not aware that it has been so eroded by other Supreme Court decisions as to permit our disregard of it. We think the district judge sufficiently followed the approved Michelson charge so that the subordinate contention that the trial judge's instructions to the jury, even under Michelson, were insufficient, is without merit. 3 ( 2) The search warrant contention is frivolous. Printed forms are a convenience, not a straitjacket. It matters not that the grounds for search appeared in the wrong place on the form. What is important is that they appeared. 4 ( 3) A government witness testified that the paint on one stolen vehicle had similar characteristics to paint seized under the search warrant. We reject as absurd the defendant's contention that such expert testimony cannot be received in evidence because lacking scientific certainty that the paint on the car was in fact the same paint seized under the warrant. 5 ( 4) The evidence about a green Mack truck and whether there were one or two such trucks is the stuff of which juries pick and choose and was clearly for their resolution. We find no reversible error in the district judge's instructions to the jury with respect to this evidence or on any other aspect of the case. 6 Affirmed.	{ "pile_set_name": "FreeLaw" }
Cite as 2015 Ark. 272 SUPREME COURT OF ARKANSAS No. CV-15-18 B. EDMOND WATERS, ARKANSAS Opinion Delivered June 18, 2015 SECURITIES COMMISSIONER APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT V. [NO. 60CV-12-383] HONORABLE CHRISTOPHER ISAAC HAL MILLSAP III, GIFFORD CHARLES PIAZZA, JUDGE KEITH JORDON, and CHARLES DUANCE SOLUM APPELLEES REVERSED AND REMANDED. KAREN R. BAKER, Associate Justice This case involves a civil regulatory action filed by the Arkansas Securities Commissioner, B. Edmond Waters (Commissioner), in his official capacity, against three individuals, Isaac Hal Millsap III, Gifford Keith Jordon, and Charles Duance Solum.1 The Commissioner’s complaint alleged two violations of the Arkansas Securities Act (the Act), codified at Arkansas Code Annotated sections 23-42-101 through -509. In his complaint, the Commissioner alleged that the appellees engaged in the sale of unregistered securities, in the form of notes for real estate loans with a fixed rate of interest, and offering and selling securities despite not being licensed as a brokers or agents. The circuit court concluded that the notes at issue were not securities based on the test announced by the Arkansas Court of 1 The complaint in this case was filed by Waters’s predecessor, A. Heath Absure. Waters was appointed Commissioner on February 10, 2015, and was substituted as the plaintiff in his official capacity. Cite as 2015 Ark. 272 Appeals in Smith v. State, 266 Ark. 861, 587 S.W.2d 50 (Ark. App. 1979). On appeal, the Commissioner contends that the circuit court erred in concluding that the notes were not securities, that this court has never explicitly adopted the Smith test as the exclusive test of whether a transaction is a security, and that the element of a fixed rate of interest does not automatically preclude the notes at issue from being securities. In addition, the Commissioner urges this court to adopt the Family Resemblance Test adopted by the United States Supreme Court in Reves v. Ernst & Young, 494 U.S. 56 (1990). Because this case involves issues of substantial public interest and a perceived inconsistency between opinions from this court and the court of appeals regarding the proper test for determining what constitutes a security, our jurisdiction is proper pursuant to Arkansas Supreme Court Rule 1-2(b)(2) and (4). On January 1, 2012, the Commissioner filed a complaint against the appellees in the Pulaski County Circuit Court. In his complaint, the Commissioner alleged that from 2001 through 2009, appellee Millsap did business with the British American Group (BAG), which purportedly matched borrowers from the United Kingdom with lenders. According to the complaint, the borrowers would borrow money for real-estate projects at interest rates of 15% to 17% per annum. The complaint alleged that Millsap would approach individuals and tell them about the business and ask them to invest or loan their money as a lender to a borrower in the United Kingdom through BAG. In doing so, Millsap relied on a page of facts and information, referred to as the “Highlights” page, regarding the risks and returns on the investments. The complaint further alleged that investors would write a check to BAG and fill out some paperwork and several weeks later Millsap would send them a document entitled 2 Cite as 2015 Ark. 272 Loan Agreement, which set out a contract between the investor as the lender and the borrower, a British business entity conducting real-estate development. This note would be for a term of one year, the Commissioner alleged, and the annual interest rates varied from 14.5% to 17.5%. In addition, the complaint stated that investors could elect to compound their interest or receive periodic payments and were encouraged to “roll over” their notes to extend the term past one year. According to the complaint, Millsap was paid a commission of .5% to 8% of the investment upon the initial investment and received an additional commission upon rollover of the note. The complaint alleged that the appellees sold a total of twenty notes with a total value of $1,907,881.41, and received commissions for each of these sales. According to the complaint, Millsap enlisted Jordon and Solum to solicit investors with BAG and sell the notes. Jordon and Solum also received commissions based on soliciting investors. In addition, Millsap received a commission of .5% for Jordon’s and Solum’s sales. The complaint alleged that Jordon sold BAG notes from 2008 through 2010 and that Solum did the same in 2008 and 2009. The complaint alleged that, although some of the BAG investors received interest payments, the “vast bulk of the money was never repaid.” Thus, while the complaint acknowledged that the investors were “guaranteed a specific return on their money,” it alleged that the investors had no control over the real estate projects and “expected their profits to come solely from the efforts of the borrower.” Finally, the complaint alleged that each note was a security, was not registered, and that Millsap, Jordon, and Solum were not registered to sell securities. The Commissioner requested that the 3 Cite as 2015 Ark. 272 appellees be restrained and enjoined from continuing to sell the notes, be ordered to render an accounting of all monies received and disbursed in connection with the notes, be ordered to disgorge all monies raised, and be ordered to pay a fine. On August 3, 2012, the appellees filed an answer denying that notes were securities. On April 23, 2014, the Commissioner filed separate motions for summary judgment against Jordon and Solum. In his motion, the commissioner contended that the proper test for determining whether an instrument constituted a security is the so-called “family resemblance test,” which was announced by the United States Supreme Court in Reves. On May 14, 2014, Jordon filed a response and cross-motion for summary judgment. In his motion, Jordon contended that the proper test was the test announced in Smith. Jordon contended that this court has adopted that test but has not adopted the family resemblance test. As a result of these two motions, the following facts were undisputed: 1. Interested lenders and borrowers would enter into loan agreements structured with one-year fixed rates of interest. 2. Lenders expected to receive interest payments reflective of the interest rates and principal amounts agreed to in the loans. 3. The loans had a fixed rate of interest. 4. The borrower’s obligation to repay the loan was not based on the financial performance of the borrower’s endeavor. 5. The appellees utilized the highlights page to promote the loans. 6. According to the highlights page, the more principal invested, the higher the interest rate on the loans. The circuit court held a hearing on the cross-motions for summary judgment on July 30, 2014. The circuit court entered a written order on September 17, 2014. In that order, the court granted summary judgment in favor of the appellees and determined that the notes did not constitute securities. Specifically, the court found that there were no issues of fact and 4 Cite as 2015 Ark. 272 but one issue of law, whether certain instruments entitled “loan agreements” are securities within the meaning of the Act. The court characterized the facts of the transactions at issue as follows: Jordon contends that his role was to match lenders with one borrower in the United Kingdom. Because the loans were secured by collateral and had a fixed interest rate which was payable in one year regardless of the success of the real estate development, and the persons making this loan had no opportunity to participate in the earnings of the borrower and had no opportunity to participate in the earnings of the borrower [sic], Jordon contends that these transactions were loans and not securities. .... [The Commissioner] on the other hand contends that these transactions were investments which were securities both as investment contracts . . . and as notes . . . It matters not, according to [the Commissioner] . . . that these instruments promise only a fixed rate of return and allow no opportunity to participate in the earnings or profit of the borrower in the United Kingdom. The Arkansas Supreme Court has not adopted the Reves family resemblance test or SEC v. Edwards . . . and the law in Arkansas remains Smith v. State. . . . The instruments here in question do not qualify as securities under that test. After concluding that the notes at issue did not meet the test for securities announced in Smith, the circuit court granted summary judgment in favor of Jordon. The circuit court also granted summary judgment in favor or Millsap and Solum on the basis that their position was the same as Jordon’s and the Commissioner had the opportunity to respond to Jordon’s motion. On October 10, 2014, the Commissioner filed a timely notice of appeal from the circuit court’s ruling. To reiterate, on appeal the Commissioner contends that the circuit court erred in concluding that the notes were not securities, that this court has never explicitly adopted the Smith test as the exclusive test of whether a transaction is a security, and that the element of a fixed rate of interest does not automatically preclude the notes at issue from being securities. 5 Cite as 2015 Ark. 272 In addition, the Commissioner urges this court to adopt the family resemblance test from Reves. Generally, on appeal from a summary-judgment disposition, the evidence is viewed in the light most favorable to the party resisting the motion, and any doubts and inferences are resolved against the moving party. Ark. State Bd. of Election Comm’rs v. Pulaski Cnty. Election Comm’n, 2014 Ark. 236, 437 S.W.3d 80. However, when the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. See id. When parties file cross-motions for summary judgment, as was done in this case, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. See id. As to issues of law presented, our review is de novo. Crafton, Tull, Sparks & Assocs., Inc. v. Ruskin Heights, LLC, 2015 Ark. 1, at 5, 453 S.W.3d 667, 671. The point of law at contention in this appeal is simply stated: What is the proper test for determining whether an instrument constitutes a security under Arkansas law? To answer this question, we must turn first to the Act and then to cases interpreting that Act. At the time the Commissioner filed his complaint, the Act included “any” note among the list of instruments constituting securities. Ark. Code Ann. § 23-42-102(15)(A) (Supp. 2011).2 At the time the Act was adopted, Arkansas’s definition of “security” was 2 The statute defined security to mean any: (i) Note; (ii) Stock; (iii) Treasury stock; (iv) Bond; (v) Debenture; (vi) Evidence of indebtedness; 6 Cite as 2015 Ark. 272 borrowed from the Securities Act of 1933 and remains essentially the same as the federal designation.3 Our present law was enacted during the 1979 legislative session. State securities laws were enacted to stop the sale of stock in fly-by-night concerns, visionary oil wells, distant gold mines, and other like fraudulent exploitations. Hall v. Geiger-Jones Co., 242 U.S. 539, 550 (1917). Notably, Arkansas’s statutory definition of “security” has included “any note” (vii) Certificate of interest or participation in any profit-sharing agreement; (viii) Collateral-trust certificate; (ix) Preorganization certificate or subscription; (x) Transferable share; (xi) Investment contract; (xii) Variable annuity contract; (xiii) Life settlement contract or fractionalized or pooled interest in a life settlement contract; (xiv) Voting-trust certificate; (xv) Certificate of deposit for a security; (xvi) Certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease; or (xvii) In general, any interest or instrument commonly known as a “security” or any certificate of interest or participation in, temporary or interim certificate for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. Ark. Code Ann. § 23-42-102(15). 3 Pursuant to the federal statute: The term “security” means any note, stock, treasury stock, security future, security- based swap, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a “security,” or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. 15 U.S.C.A. § 77b(a)(1). 7 Cite as 2015 Ark. 272 at all times relevant to this litigation. Prior to the 1979 session, this court decided Schultz v. Rector-Phillips-Morse, Inc., 261 Ark. 769, 552 S.W.2d 4 (1977), and held that the definition of a security within the meaning of the Act should not be given a narrow construction, but should be determined in each instance from a review of all the facts whether an investment scheme or plan constitutes an investment contract, or a certificate of interest or participation in a profit-sharing agreement, within the scope of the statute. Id. at 781, 552 S.W.2d at 11. Although we examined definitions from other jurisdictions, including the test applied in Securities & Exchange Commission v. Howey Co., 328 U.S. 293 (1946) (defining an unconventional security as an “investment contract” under the Federal Securities Laws) and Hawaii v. Hawaii Market Center, Inc., 52 Hawaii 642, 485 P.2d 105 (Haw. 1971) (holding that an “investment contract” is created whenever: (1) An offeree furnishes initial value to an offeror; and (2) a portion of this initial value is subjected to the risks of the enterprise; and (3) the furnishing of the initial value is induced by the offeror’s promises or representations which give rise to a reasonable understanding that a valuable benefit of some kind, over and above the initial value, will accrue to the offeree as a result of the operation of the enterprise; and (4) the offeree does not receive the right to exercise practical and actual control over the managerial decisions of the enterprise), we declined to adopt a mechanical formula. Instead, we agreed with the more flexible approach endorsed in Minnesota v. Investors Security Corporation, 209 N.W.2d 405 (Minn. 1973). With regard to the Minnesota view, this court stated: We agree with the general approach taken by the Minnesota Supreme Court that the definition of a security within the meaning of the Arkansas Securities Act should not 8 Cite as 2015 Ark. 272 be given a narrow construction, and that it is better to determine in each instance from a review of all of the facts, whether an investment scheme or plan constitutes an investment contract, or a certificate of interest or participation in a profit-sharing agreement, within the scope of the statute. Schultz, 261 Ark. at 781, 552 S.W.2d at 10. Subsequently, in 1979, the Arkansas Court of Appeals decided Smith v. State, and adopted a five-element test for identifying securities: (1) the investment of money or money’s worth; (2) investment in a venture; (3) the expectation of some benefit to the investor as a result of the investment; (4) contribution towards the risk capital of the venture; and (5) the absence of direct control over the investment or policy decisions concerning the venture.4 266 Ark. at 865, 587 S.W.2d at 52. The transaction at issue in Smith involved the appellant’s failed attempt to start a business called the Russellville Radio Telephone Company with the appellee. The appellant, who represented himself to be part of Memphis Mobile Telephone Company, Inc. (Memphis Mobile), sold 500 shares of stock to the appellee for a total of $5,000. The business failed, and the appellee filed suit after being unable to recover the $5,000 he had given to the appellant. Although the appellant characterized the enterprise as a “joint venture” between Memphis Mobile and the appellee, the court of appeals disagreed and concluded, after applying the five-element test, that the transaction met the test for being 4 The court of appeals derived this test from an article in the Oklahoma Law Review: As stated by Professor Long in “An Attempt to Return Investment Contracts to the Mainstream of Regulations,” 24 Okla. L. Rev. 135 (May 1971), there are five significant common characteristics of traditional securities. These common factors can be used to establish a uniform test for the identification of all securities, whether of a specific type or of a general nature, intended to be covered by the act in question, unless a specific contrary definition is contained therein. Smith, 266 Ark. at 864–65, 587 S.W.2d at 52. 9 Cite as 2015 Ark. 272 considered a security. The court concluded that the “joint venture” label was not determinative of whether the transaction constituted a security. Id. at 864, 587 S.W.2d at 52 (“This court recognizes that regardless of labels, the Arkansas Security Act was designed to protect both investors in common stock and those persons who in substance are investors in the disguised business venture of another.”) (citing Schultz, 261 Ark. 769, 552 S.W.2d 4). The court of appeals summarized the definition of a security as follows: a security is an investment of money or money’s worth in the risk capital of a venture with the expectation of benefit to the investor where the investor has no direct control over the investment or policy decisions of the venture. Id. at 865, 587 S.W.2d at 52. Since Smith, this court has addressed the question of whether particular instruments constituted a security. For instance, in Grand Prairie Savings & Loan Association v. Worthen Bank & Trust Co., 298 Ark. 542, 769 S.W.2d 20 (1989), which involved a commercial loan transaction, this court discussed the five-element Smith test. We determined that the test used in Smith is substantially the same as the test used in the federal courts. Id. (citing Union Nat’l Bank v. Farmers Bank, 786 F.2d 881 (8th Cir. 1986) (finding no error in the trial court’s determination that the Smith factors, which are used to identify a security under Arkansas law, were “substantially similar” to the test in Howey, which is used to identify a security under federal law). Despite this determination, we did not utilize the Smith factors. Instead, this court relied on its prior statement in Schultz that the definition of what constitutes a security must necessarily depend on an analysis of all of the factors in any given transaction. Id. at 545, 769 S.W.2d at 22. We determined that the instrument at issue did not constitute a security 10 Cite as 2015 Ark. 272 because the evidence in the lower court disclosed that the transaction was between two sophisticated parties. Id. at 546, 769 S.W.2d at 22. Subsequently, in 1991, we did apply the five-factor Smith test to a transaction involving the sale of stock. Cook v. Wills, 305 Ark. 442, 447, 808 S.W.2d 758, 761 (1991). However, we acknowledged that, pursuant to Schultz, we analyze all of the factors in any given transaction. Six years later, this court again acknowledged the existence of the Smith test, but did not explicitly analyze all five factors. Carder v. Burrow, 327 Ark. 545, 940 S.W.2d 429 (1997) (holding that a transaction involving loan to corporation, which paid a fixed interest rate of five percent per annum above the federal discount rate calculated at time of loan, did not constitute a security). We again cited to Schultz to support our conclusion that “the trial judge was correct in examining all of the factors involved in the execution of this transaction in determining that the transaction . . . was an ordinary secured commercial loan between two parties, not the sale of a security as defined in the Arkansas Securities Act.” Carder, 327 Ark. at 550, 940 S.W.2d at 432. Despite these prior cases, Waters urges this court to abandon the Schultz and Smith tests and adopt the family resemblance test announced in Reves, a case that originated in the United States District Court for the Western District of Arkansas. The financial transaction involved in Reves was summarized by the Court as follows: The [Farmer’s Cooperative of Arkansas and Oklahoma] is an agricultural cooperative that, at the time relevant here, had approximately 23,000 members. In order to raise money to support its general business operations, the Co-Op sold promissory notes payable on demand by the holder. Although the notes were uncollateralized and uninsured, they paid a variable rate of interest that was adjusted monthly to keep it higher than the rate paid by local financial institutions. The Co-Op 11 Cite as 2015 Ark. 272 offered the notes to both members and nonmembers, marketing the scheme as an “Investment Program.” 494 U.S. at 58–59. The Reves Court resolved a circuit split and held that, when determining whether an instrument denominated a “note” is actually a “security” within the meaning of the Securities Exchange Act, courts should apply the “family resemblance” test developed by the Second Circuit. 494 U.S. 56. Under that test, a note is presumed to be a “security,” but that presumption may be rebutted by showing that the note bears a strong resemblance, determined by examining four specified factors, to a list of categories of instruments that are not securities.5 If an instrument is not sufficiently similar to a listed item, courts must decide whether another category should be added by examining the same four factors. The four factors involved in the family resemblance test are: First, we examine the transaction to assess the motivations that would prompt a reasonable seller and buyer to enter into it. If the seller’s purpose is to raise money for the general use of a business enterprise or to finance substantial investments and the buyer is interested primarily in the profit the note is expected to generate, the instrument is likely to be a “security.” If the note is exchanged to facilitate the purchase and sale of a minor asset or consumer good, to correct for the seller’s cash- flow difficulties, or to advance some other commercial or consumer purpose, on the other hand, the note is less sensibly described as a “security.” Second, we examine the 5 In order to rebut the presumption that a note is a security, there must be a showing that the note bears a strong resemblance to one of six enumerated categories of instruments: (1) a note delivered in consumer financing; (2) a note secured by a mortgage on a home; (3) a short-term note secured by a lien on a small business or some of its assets; (4) a notice evidencing a “character” loan to a bank customer; (5) a short term note secured by an assignment of accounts receivable; or (6) a note that simply formalizes an open-account debt incurred in the ordinary course of business, particularly if, as in the case of the customer of a broker, it is collateralized. 12 Cite as 2015 Ark. 272 “plan of distribution” of the instrument, to determine whether it is an instrument in which there is “common trading for speculation or investment.” Third, we examine the reasonable expectations of the investing public: The Court will consider instruments to be “securities” on the basis of such public expectations, even where an economic analysis of the circumstances of the particular transaction might suggest that the instruments are not “securities” as used in that transaction. Finally, we examine whether some factor such as the existence of another regulatory scheme significantly reduces the risk of the instrument, thereby rendering application of the Securities Acts unnecessary. Id. at 66–67 (internal citations omitted). At this time, we decline to adopt the Reves test because all of these factors are embraced within our flexible, all-inclusive Schultz test. Moreover, while we have found the Smith factors to be instructive, this court has never relied on those factors exclusively. The unifying thread in our cases addressing whether an instrument constitutes a security is the Schultz test, which requires a review of all of the facts. Here, the circuit court considered only the Smith factors, concluding that “the law in Arkansas remains Smith v. State, supra. The instruments in question here do not qualify as securities under that test.” The circuit court did not mention Schultz and failed to consider the sophistication of the parties, a factor that is prominent in this court’s prior cases. While the Smith test remains instructive, we find that the all-inclusive nature of the Schultz test is better suited to the purposes of the Act. The Act is clearly remedial and is intended to prevent fraudulent practices and activities from becoming a burden upon unsophisticated investors and the general public. Grand Prairie, 298 Ark. at 546, 769 S.W.2d at 22. Therefore, we reverse and remand this case to the circuit court to consider all factors surrounding the transaction, as required by Schultz. Reversed and remanded. 13 Cite as 2015 Ark. 272 HANNAH, C.J., and DANIELSON and HART, JJ., dissent. PAUL E. DANIELSON, Justice, dissenting. I would affirm the circuit court’s ruling that the loan transactions at issue were not securities within the purview of the Arkansas Securities Act, currently codified at Arkansas Code Annotated §§ 23-42-101 to -509 (Repl. 2012 & Supp. 2013). Even if the circuit court’s order fails to mention any reliance on Schultz v. Rector-Phillips-Morse, Inc., 261 Ark. 769, 552 S.W.2d 4 (1977), that decision and its all- factor consideration was well argued before the circuit court, and I believe that under our de novo review, the circuit court’s ruling can be affirmed as reaching the right result. See Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001) (recognizing that this court will affirm a trial court when it has reached the right result, even though it may have announced the wrong reason). I therefore respectfully dissent. From my review of the record, the transactions in the instant case consisted of private loans by the Appellees’ clients that were purportedly secured and made at a fixed rate of interest for a one-year period. As in Carder v. Burrow, 327 Ark. 545, 940 S.W.2d 429 (1997), there was no expectation by those extending the loan to profit from the transactions as if they were investments; instead, the sole expectation was the receipt of interest on the loaned amount. But, in addition, even if it could be said that the initial loan was an investment of sorts, there is no evidence that the loan rate was in any way dependent on the borrower’s earnings. See Carder, 327 Ark. 545, 940 S.W.2d 429. Moreover, while the borrower of the funds allegedly engaged in some type of real-estate venture, the success or failure of the borrower’s venture really had no effect on the transaction at all; like a typical loan, the interest 14 Cite as 2015 Ark. 272 was due the Appellees’ clients regardless. Likewise, there was no benefit to be extended as a result of the investment, no contribution to the risk capital of the venture, nor was control an issue because the loan was not tied to the venture’s success or failure. By its very definition, an investment is “[a]n expenditure to acquire property or assets to produce revenue; a capital outlay,” which is very different from a loan, defined as “[a]n act of lending; a grant of something for temporary use” or “[a] thing lent for the borrower’s temporary use; esp., a sum of money lent at interest.” Black’s Law Dictionary 954, 1077–78 (10th ed. 2014). Indeed, this court has recognized that “the underlying economic substance of a security is an arrangement where the investor is a mere passive contributor of risk capital to a venture in which he has no direct or managerial control.” Casali v. Schultz, 292 Ark. 602, 605, 732 S.W.2d 836, 837 (1987). There is no such arrangement in the instant case. Here, the Appellees’ clients extended sums of money with the sole expectation of receiving interest and ultimately having their money repaid. Furthermore, their realization of interest was in no way tied to the efforts, successes, or failures of the borrower or venture, but was tied only to the borrower’s ability to pay. In light of these circumstances, I cannot say that the transactions at issue were securities; they were simply nothing more than loans, albeit in hindsight, risky ones. While the Commissioner urges this court to examine the transactions as notes using the federal test set forth by the United States Supreme Court in Reves v. Ernst & Young, 494 U.S. 56 (1990), I, like the majority, see no need to do so. This court has consistently followed Schultz, 261 Ark. 769, 552 S.W.2d 4, and looked at all of the factors in any given 15 Cite as 2015 Ark. 272 transaction, including a consideration of the Smith factors when doing so.6 See, e.g., Carder, 327 Ark. 545, 940 S.W.2d 429; Cook v. Wills, 305 Ark. 442, 808 S.W.2d 758 (1991); Grand Prairie Sav. & Loan Ass’n v. Worthen Bank & Trust Co., 298 Ark. 542, 769 S.W.2d 20 (1989). That has been the law in Arkansas, and it should remain so. For the foregoing reasons, I would affirm the circuit court’s order. HANNAH, C.J., and HART, J., join. Theodore Holder, Arkansas Securities Department, for appellant. Reece Moore Pendergraft LLP, by: Larry McCredy and Timothy C. Hutchinson, for appellees. 6 Notably, the Carder opinion made no mention of Reves even though it had been decided almost seven years before Carder and was discussed in the parties’ briefs on appeal. 16	{ "pile_set_name": "FreeLaw" }
NO. 07-01-0135-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A APRIL 24, 2002 ______________________________ GERNORRIS WAYNE DIXON, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 46 TH DISTRICT COURT OF WILBARGER COUNTY; NO. 9951; HONORABLE TOM NEELY, JUDGE _______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. In this appeal, appellant Gernorris Wayne Dixon presents seven points of asserted error challenging his conviction for aggravated robbery and the jury-assessed punishment of 63 years confinement in the Institutional Division of the Texas Department of Criminal Justice. Overruling each of appellant’s points of error, we affirm. Appellant was charged by indictment of committing the offense of aggravated robbery on or about October 20, 2000, in Wilbarger County. The indictment alleged that he used or exhibited a firearm during the offense. It also contained an enhancement paragraph alleging a prior felony. Appellant pled not guilty and was tried before a jury over two days in April, 2001. The jury found him guilty and imposed the 63-year sentence. In his seven points, he challenges the legal and factual sufficiency of the evidence and the improper use of peremptory strikes in the composition of the jury. Because appellant challenges the sufficiency of the evidence, we begin with a recitation of the evidence presented at trial. The State’s first witness was Marilyn Kay Lopez (Lopez). On October 20, 2000, she was employed as a clerk at the Lafonda Motel, where she and her husband Louise Lopez (Louise) also resided. That morning, appellant appeared at the locked motel office door. Lopez recognized him because he had often stayed there. She opened the door for him and answered his query concerning the cost of a room. He left the office saying that he would return. He did return shortly, telling Lopez that a vending machine on the property had malfunctioned. Lopez testified she left the office to assist appellant and, while at the machine, he grabbed her around the neck with his right arm and placed a gun to her head with his other hand. He instructed her to go into the office to get the money that was there and threatened to kill her if she did not cooperate. In response to his question outside the office door, Lopez stated that Louise was sleeping inside. In fact, no one was inside the office area. She testified that he took her back outside, threatened her if she told what happened, released her and left. Lopez went to the office, locked the door, and called police. She stated she was in fear of death or serious bodily injury. Lopez identified appellant at trial as the man who assaulted her. The State’s second witness was Officer Dean Winters, who responded to Lopez’s call about 9 a.m. He testified that Lopez identified appellant by name and gave a description of him and his clothing. Appellant was not arrested that day, but was picked up the following week. The State also called Tara Jackson, the dispatcher who took Lopez’s call. She testified that Lopez recited to her what happened and stated that she recognized the man and his last name was Dixon. Jackson described Lopez’s state as “hysterical.” She identified written notes she made in the course of the call, which were introduced into evidence. At the conclusion of the State’s case-in-chief, appellant moved for a directed verdict on the basis that there was no evidence he had any intent to obtain and maintain control of property of another. The motion was overruled. The defense called three witnesses. The first was Anthony Scott, appellant’s cousin. Scott testified that he spent the night with appellant on October 19, 2000, at appellant’s apartment, a few blocks from the motel. He stated appellant left the apartment about 9:00 a.m. that day. According to Scott, appellant returned between 11:00 a.m. and noon. On cross-examination, Scott admitted he told an investigator that appellant left the apartment “early” that morning, and did not return until noon. He did not believe this conflicted with his trial testimony. The second defense witness was Melvin Whiteside, appellant’s uncle. Whiteside testified that appellant came to his home at about 9:45 a.m. on October 20, 2000. He said appellant was wearing a dark-colored coat, appeared calm and stayed about 30 minutes. Appellant next called Chad Flye, another cousin of appellant’s. He testified that he saw appellant at his mother’s house from about 9:30 until 11:00 on the morning of October 20, 2000. He maintained this assertion even after being told another witness placed appellant at another location at 9:45 that morning. The defense presented the testimony of Alfred Gaines, who had known appellant his entire life. He testified he met with appellant at 11:00 a.m. to move furniture to appellant’s apartment. They did not move the furniture until later in the day because of rain. On cross-examination, the State sought to show the events Gaines testified to occurred in September rather than October. The defense recalled Lopez and questioned her about her identification of appellant. She could not recall any unique or unusual features of appellant, but did recall that his clothes were dry, even though it was raining that morning. She admitted that she did not have any bruises or marks after the offense and that appellant owed the motel for two or three nights rent. In his first and second points, appellant challenges the legal and factual sufficiency of the evidence of his intent to commit theft. The standards by which we determine the legal and factual sufficiency of the evidence are by now so well established that it is not necessary to discuss them at length. See Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Clewis v. State , 922 S.W.2d 128 (Tex.Crim.App. 1996). Suffice it to say, we must first determine if the evidence is legally sufficient, and if it is legally insufficient, render an acquittal judgment. If the evidence is legally sufficient, we must then determine if it is factually sufficient measured by the standards explicated in Clewis . See id. at 134. This requires us to determine whether, on neutral review, proof is so obviously weak as to undermine confidence in the jury's determination or the proof of guilt, adequate if taken alone, is greatly outweighed by contrary proof. King v. State , 29 S.W.3d 556, 563 (Tex.Crim.App. 2000). Appellant contends there is no evidence that the person who assaulted Lopez had an intent to commit theft and the evidence affirmatively shows that nothing was taken. The State points to the testimony of Lopez that appellant ordered her into the office to “get the money” as evidence of his intent to commit theft. We agree. The fact that no property was taken does not preclude a finding of each element of the offense. Robbery is defined in section 29.02(a) of the Penal Code. As applicable to these facts, the offense only requires that the person threaten another or place them in fear of imminent bodily injury or death with intent to obtain or maintain control of property, not that they actually complete a theft. Blount v. State , 851 S.W.2d 359, 364 (Tex.App.--Houston [1st Dist.] 1993, no writ). Viewing this evidence in the light most favorable to the verdict, it is sufficient to support an affirmative finding on each element of the offense. We overrule appellant’s first point. His second point challenges the factual sufficiency of the evidence. He fails to cite any evidence which greatly outweighs the evidence of guilt. Without such evidence, we have no basis on which to usurp the jury’s determination of the complaining witnesses’ credibility. Consequently, there is no basis to find the evidence factually insufficient and we overrule appellant’s second point. Appellant’s third point challenges the sufficiency of the evidence to support the submission of a jury charge on the use of a firearm. Sufficiency is measured against a hypothetically correct jury charge. Malik v. State , 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). A hypothetically correct jury charge for the case would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. at 239-40. The testimony of Lopez was some evidence that appellant used a firearm in the commission of the offense. This evidence supported submission of the charge at issue. We overrule appellant’s third point. On the same basis, we overrule appellant’s fourth point, which challenges the legal sufficiency of the evidence supporting the deadly weapon finding. In point five, appellant challenges the factual sufficiency of the evidence that he used a deadly weapon in the commission of theft. In support, he points to the testimony of his alibi witnesses. We initially note the fundamental principle that it is the exclusive province of the factfinder to determine the credibility of the witnesses, the weight to be given their testimony, and resolve conflicts in the evidence. Johnson v. State , 571 S.W.2d 170, 173 (Tex.Crim.App. 1978); Armstrong v. State , 958 S.W.2d 278, 284 (Tex.App.-- Amarillo 1997, pet. ref'd). Moreover, the jury could reasonably have found there was no conflict between the State’s evidence and that presented by appellant. (footnote: 1) Defense witnesses did not account for appellant’s location between 9:00 and 9:30 a.m., the approximate time of the offense. The record shows the distance between the apartment and the motel was only a few blocks and well within walking distance. On this record, we cannot say the jury’s verdict was so against the weight of the evidence as to be clearly wrong and manifestly unjust. We overrule appellant’s fifth point. Appellant’s sixth and seventh points allege the deprivation of his rights to equal protection of law under the Texas and federal constitutions because, he alleges, the State improperly used a peremptory strike to remove the only member of the venire who was black. It is well established that the State may not use peremptory challenges for the purpose of excluding members of the defendant’s race from the jury. Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This rule is embodied in article 35.261 of the Texas Code of Criminal Procedure. A party making a Batson challenge first makes a prima facie case that a venireperson was excluded on the basis of race. Then, the prosecution must come forth with race-neutral reasons for exercising the peremptory challenge. The defendant has the opportunity to rebut those reasons. The burden of persuasion remains with the defendant. Finally, the judge rules on whether the neutral reasons given for the peremptory challenge were contrived to conceal racially discriminatory intent. Keeton v. State , 749 S.W.2d 861, 868 (Tex.Crim.App. 1988). The trial court held a hearing on appellant’s Batson challenge. He made a prima facie showing by establishing the State struck the only member of appellant’s race on the venire. He also noted that the victim of the crime was of a different race. The prosecuting attorney testified that he struck venire member Phillip Gaines because he “knew and was acquainted with the defendant,” and was the brother of defense witness Alfred Gaines. On cross-examination, the defense asked if any of his other peremptory strikes were because of relationships between venire members and the victim. The defense did not identify any such specific relationships. The trial court overruled his motion. The State’s argument on appeal in support of the trial court’s decision describes the decision to strike the brother of a defense witness as “a no-brainer,” but does not cite any authority in support. While we agree that the jury’s role in determining the credibility of witnesses makes the strike at issue intuitively race neutral, we must also examine how other Texas appellate courts have addressed this issue. In Clemons v. State , 893 S.W.2d 212 (Tex.App.--El Paso 1995, no writ), the court considered a peremptory strike based on personal relationships between a venire member and the defendant’s family. Id. at 216. The court did not find the trial court’s determination that this was a racially neutral reason to be “clearly erroneous” and overruled the challenge. Id. at 218. See also Alexander v. State , 919 S.W.2d 756, 765 (Tex.App.--Texarkana 1996, no writ) (upholding as racially neutral strikes of a prospective juror on the basis that they have a family member or close friend who was arrested, charged or convicted of a crime). We find the holding in Clemons applicable and overrule appellant’s sixth and seventh points. In sum, all of appellant’s points are overruled, and the judgment of the trial court is affirmed. John T. Boyd Chief Justice Do not publish. FOOTNOTES 1:There was, however, clearly a conflict in the testimony of appellant’s witnesses, which placed him in two locations over the same 15-minute period.	{ "pile_set_name": "FreeLaw" }
5 Cal.App.2d 106 (1935) ANT. C. ZVOLANEK, Respondent, v. BODGER SEEDS, LTD. (a Corporation), Appellant. California Court of Appeals. March 4, 1935. Denio, Hart, Taubman & Simpson and Matthew C. Simpson for Appellant. Heaney, Price & Postel and Clarence A. Rogers for Respondent. Willis, J., pro tem. Defendant has appealed from a judgment awarding damages for injuries to land and sweet peas situated thereon, resulting from flooding by water through the negligent acts of the defendant. Plaintiff alleged that defendant so negligently flooded its lands in process of irrigation that water ran into and over 108 the land of plaintiff and the sweet peas situated thereon, and "damaged" the said land and sweet peas thereon to the amount of five thousand five hundred dollars". At the trial it developed that the sweet peas so injured were special experimental varieties propagated and cultivated over a period of successive years to the end that new and special varieties of sweet peas might be produced in quantities sufficient to make seed for market uses, but which at the time of injury had not reached the stage where any market value had attached to seeds produced therefrom. Over defendant's objection plaintiff was permitted to give testimony as to the amount of ground space occupied by these special varieties, as to the method of producing them as hybrids by means of a cross-pollination, as to the manner of raising them, the amount of time expended during the preceding years from first cross-pollination to date, the value of the time so expended, the rental value of the land used for producing such specialties and the value to plaintiff of the seed lost by reason of the flooding. The ground of objection to the admission of such evidence in each instance was founded on the proposition that such testimony was evidence of special damages and not admissible because special damages were not pleaded in the complaint. On this appeal this point is presented, and in addition it is contended that such proof, regardless of the character of the pleading of damages, was not admissible because it related to elements of damage too remote and speculative to sustain the judgment of $1,000 entered herein." [1] Damages are either general or special. Damages which necessarily result from the act complained of are denominated general damages, and may be proved under the ad damnum clause or general allegation of damage; while those which are the natural consequence of the act complained of, and not the necessary result of it, are termed special damages. [2] Special damage must be specially set forth in the complaint or the plaintiff will not be permitted to give evidence of it at the trial. (Treadwell v. Whittier, 80 Cal. 574 [22 P. 266, 13 Am.St.Rep. 175, 5 L.R.A. 498].) [3] The measure of damages arising from tort, such as the one herein pleaded, is the amount which will compensate for all detriment proximately caused thereby whether it could be anticipated or not. (Civ. Code, sec. 3333.) [4] The damage alleged herein was that which 109 necessarily resulted from the flooding of the land and the sweet peas thereon. The sweet peas were shown by evidence to have been special varieties or specialties in process of development to a future status which would be productive of seed with market value. Damage to a special variety of sweet peas is not necessarily special damage. Damage may necessarily flow from injuries to a special variety, having no present market value, the same as from injuries to a common variety with provable market value. In the case at bar the damage sought to be recovered is the general damage to a growing crop and the seeds thereof, which had no present market value. To prove such damage required evidence of the different elements which, singly or in combination, represented the value of the crop destroyed by the acts complained of, in the condition it was at the time of injury or destruction. (Shoemaker v. Acker, 116 Cal. 239 [48 P. 62]; Teller v. Bay & River Dredging Co., 151 Cal. 209 [90 P. 942, 12 Ann. Cas. 779, 12 L.R.A. (N. S.) 267].) [5] In cases where property destroyed or lost has no market value, while there may be no rule which will be absolutely certain to do justice between the parties, it does not follow, nor is it the law, that plaintiff must be turned out of court with nominal damages merely. [6] Where the article or thing is so unusual in character that market value cannot be predicated on it, its value, or plaintiff's damages, must be ascertained in some other rational way from such elements as are attainable, such as the difficulty and expense to which plaintiff was put in acquiring the property, the nature and character of the use to which it was put by him, and the like. All these elements being shown, the value is to be determined by the court or jury by the exercise of a sound discretion. (Willard v. Valley Gas & Fuel Co., 171 Cal. 9 [151 P. 286]; Hoffman v. Eastman Kodak Co., 99 Cal.App. 436 [278 P. 891].) [7] The course pursued by respondent in producing proof of damage by the questions objected to was in harmony with these rules. Each item sought to be proved related to a loss necessarily resulting from the flooding, and no error was committed in admitting the evidence objected to, excepting, however, the last question and ruling excepted to, relating to the value to respondent of seed lost. [8] The question was: "What was the value to you of the seed lost on this acre and a half of ground on August 12, 1930?" This amounted to an attempt *110 to prove "peculiar" value. Section 3355 of the Civil Code provides that the peculiar value of property to the person recovering damages for deprivation thereof, or injury thereto, may be deemed its value against one who had notice thereof before incurring a liability for damages in respect thereof, or against a wilful wrongdoer. Herein there was no proof of notice to appellant of such peculiar value, nor that appellant was a wilful wrongdoer. And this section deals with property which has a market value and also a peculiar value to the owner, and not with property having no market value. (Willard v. Valley Gas & Fuel Co., supra.) Hence it was error to admit evidence of such peculiar value as the value or damage which respondent was entitled to recover. The answer given was "$20,000.00". The court found that the damage amounted to $1,000. It is quite patent that the question and answer as to the value to respondent did not affect the court's estimate of damages based on the other elements of value which were established by evidence. After an examination of the entire cause, including the evidence, we are of the opinion that the error in admitting the evidence of the value to respondent of the seed lost has not resulted in any prejudice to appellant nor in a miscarriage of justice. (Const., art. VI, sec. 4 1/2.) The evidence showing the amount and value of the time devoted over the six-year period to development of these special varieties reveals by computation that the loss suffered by plaintiff in that respect alone exceeds the amount awarded by the court. For the reasons above given it must also be held that there is no merit in the contention that the evidence admitted over the other objections above referred to related to elements too remote and speculative to justify its admission. Such evidence all related to definite elements of loss sustained. The judgment is affirmed. Stephens, P. J., and Crail, J., concurred.	{ "pile_set_name": "FreeLaw" }
Filed 2/5/14 P. v. Parker CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E058058 v. (Super.Ct.No. INF1101858) DARNELL ANTHONY PARKER, OPINION Defendant and Appellant. APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. Affirmed. Helen Irza, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. A jury found defendant and appellant Darnell Anthony Parker guilty of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possession of drug paraphernalia (Health & Saf. Code, § 11364), and possession of diazepam without a prescription (Health & Saf. Code, § 11375, subd. (b)(2)). The trial court thereafter placed 1 defendant on formal probation for a period of 36 months with various terms and conditions. Defendant appeals. We find no error and affirm the judgment. I FACTUAL AND PROCEDURAL BACKGROUND On August 14, 2011, Palm Springs Police Officer Amanda Graham was on duty when at around 11:58 a.m. she stopped a black 1993 Cadillac being driven by defendant. A female was in the front passenger seat. As defendant pulled the car over, Officer Graham saw the woman leaning forward and making exaggerated movements with her body. Officer Graham had initiated the traffic stop, because a man named Gary Canady had filed a police report indicating that the Cadillac had been embezzled by a woman named Marjorie Grinstead. After Officer Graham arrested defendant for being in possession of a stolen vehicle, Officer Graham searched the vehicle. Officer Graham found a black, London Fog briefcase on the rear floorboard behind the driver’s seat. Inside the briefcase the officer found a glass pipe, two grams of methamphetamine, and three small pills identified as diazepam. The briefcase also contained numerous documents with multiple items in defendant’s name. Defendant later admitted to owning the briefcase but denied being the owner of all its contents. A bill of sale in the name of “Ray Lyons” was also found inside a black backpack in the vehicle. Officer Graham also searched the passenger and found a methamphetamine pipe inside her clothing between her legs. The passenger gave the officer a false last name. 2 Officer Graham did not find any illegal substances or drug paraphernalia on defendant’s person. Defendant was not charged with stealing or embezzling the Cadillac.1 On August 17, 2011, a felony complaint was filed charging defendant with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); unlawful possession of drug paraphernalia (Health & Saf. Code, § 11364); and possession of diazepam without a prescription (Health & Saf. Code, § 11375, subd. (b)(2)). On September 7, 2011, defendant made a motion to represent himself. He also made a motion requesting that the public defender’s office be appointed to assist him with his defense. The court granted defendant’s motion for self-representation but denied defendant’s request to have the public defender’s office available to assist him as advisory counsel. In denying defendant’s request to have the public defender’s office assist him as advisory counsel the court explained, “I want to make the record clear . . . I’m in complete agreement with [the public defender] that at this point the public defender’s office has no concern with [defendant]. [Defendant] will never get the services of the public defender’s office as advisory counsel. It is not done. It will not be done, and we’re not going to waste any time on it.” Defendant disagreed with the court’s ruling, arguing that under the law he was entitled to the assistance of the public defender’s office even though he was representing himself. The court responded, “All right. So I’m not going to argue with what you said. I know the law. The public 1The record indicates that defendant may have purchased the Cadillac from Ray Lyons. Ray Lyons asserted his Fifth Amendment right at trial and was therefore found to be unavailable to testify at trial. 3 defender’s office knows the law. You are entitled to represent yourself if you want to, but you are not entitled to the services of the public defender’s office under that circumstance, and that being the case, I’m going to excuse the public defender’s office.” On November 22, 2011, defendant filed a motion to suppress the evidence pursuant to Penal Code section 1538.5. On December 6, 2011, the People filed a written opposition arguing that Officer Graham properly stopped and detained defendant based on a reasonable suspicion the vehicle was stolen or embezzled; that the vehicle was searched incident to an arrest; and that the officer had probable cause to arrest defendant. The preliminary hearing was held on December 13, 2011. At that same time, the evidentiary hearing on defendant’s suppression motion was also heard. Following the presentation of evidence and argument by the parties, the court denied the suppression motion, finding the officer was investigating a possible embezzlement or theft of the vehicle and therefore had a right to stop the vehicle and investigate. The court also found that the officer had probable cause to arrest defendant and search the vehicle incident to that arrest. The court further found sufficient evidence to hold defendant to answer to the complaint. On December 23, 2011, an information was filed charging defendant with the same three drug-related offenses as in the complaint. On March 27, 2012, defendant filed a motion to set aside the information pursuant to Penal Code section 995. The People filed a written opposition on April 9, 2012. On May 16, 2012, the trial court denied defendant’s motion to set aside the information. 4 On June 6, 2012, defendant requested that private counsel Ruben Sanchez be appointed as associate counsel to assist him. The trial court allowed Sanchez to be designated as the “investigating officer” for the defense, but denied defendant’s request to allow him to be appointed as an associate counsel. The court clarified that Sanchez cannot participate or be cocounsel, but he can sit with defendant and assist defendant. The court later stated that Sanchez could act as defendant’s cocounsel. A jury trial commenced on June 7, 2012. Defendant’s defense was that the methamphetamine, the pipe, and the pills of diazepam did not belong to him and that numerous people had possession of the Cadillac prior to the stop. Defendant read Lyons’s testimony from the preliminary hearing wherein Lyons had admitted the methamphetamine belonged to him, but could not describe what the methamphetamine looked like. Lyons also denied leaving a methamphetamine pipe and diazepam in the vehicle. Defendant argued that the items all belonged to Lyons or someone else; he had recently acquired the vehicle; and he had no knowledge of the items in the vehicle.2 On June 13, 2012, the jury found defendant guilty as charged. Following the jury’s guilty verdict, defendant made an oral motion for a judgment notwithstanding the verdict. The court denied the motion. 2 At the preliminary hearing, Officer Graham testified that defendant was asked to leave the car first and the passenger was left alone with other officers standing by. At trial, however, Officer Graham stated that she had first asked the passenger to exit the vehicle first, and after arresting her, she had asked defendant to get out of the car. 5 Defendant subsequently filed motions for a new trial. He also filed a motion to reduce the felony convictions to misdemeanors.3 On January 25, 2013, the trial court denied the motion for new trial. The court thereafter placed defendant on probation for a period of 36 months on various terms and conditions under Proposition 36. On February 6, 2013, defendant filed a timely notice of appeal, listing numerous potential arguments. On March 8, 2013, defendant made an oral motion to substitute the ARC Program for Proposition 36. The motion was denied. II DISCUSSION We appointed counsel to represent defendant on appeal. After examination of the record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court conduct an independent review of the record. We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his supplemental brief, defendant argues that (1) he should be entitled to a new trial or dismissal of the charges because the prosecutor committed misconduct by allowing Officer Graham to testify in contradiction to her preliminary hearing testimony and asserting she did not know the female passenger when the prosecutor and the officer 3 This motion was denied on March 8, 2013. 6 knew her identity; (2) his constitutional rights were violated by the trial court’s failure to allow advisory counsel to assist him; and (3) the trial court erred in failing to continue the matter to allow an attorney to conduct a direct examination of him. For the reasons explained below, we reject these contentions. A. Prosecutorial Misconduct “A criminal defendant may move for a new trial on specified grounds. ([Pen. Code,] § 1181.)” (People v. Ault (2004) 33 Cal.4th 1250, 1260 (Ault).) Penal Code section 1181 provides that a trial court may grant a new trial only on certain specified grounds, including “when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury.” (Pen. Code, § 1181, subd. (5).) A trial court has broad discretion in ruling on a motion for new trial and its ruling will be disturbed only for clear abuse of that discretion. (Ault, at p. 1260.) “The standards under which we evaluate prosecutorial misconduct may be summarized as follows. A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.) Here, there is no evidence in the record to indicate the prosecutor committed misconduct. There is no evidence to suggest that Officer Graham committed perjury at trial or that the prosecutor allowed the officer to commit perjury. A defendant is denied a 7 fair trial when the prosecutor knowingly uses false testimony. However, the defendant must establish by a preponderance of the evidence both that the witness committed perjury and that the prosecutor knew it was perjury. (See People v. Gordon (1973) 10 Cal.3d 460, 473-474, disapproved on other grounds in People v. Ward (2005) 36 Cal.4th 186, 212.) At trial, on cross-examination, defendant elicited testimony from Officer Graham that at the preliminary hearing she stated that she asked defendant to exit the vehicle first and at trial she had testified that she asked the passenger to exit the vehicle first. Officer Graham explained that at the time of the preliminary hearing “I was just confused on the questioning. But at this time I do remember that she was the one that I spoke to first, contacted first, searched and arrested first.” There is nothing to indicate that Officer Graham committed perjury; her credibility was merely attacked and was an issue for the jury to resolve. There is also no evidence to show that the district attorney’s office and the police department were in cahoots, as defendant appears to argue, because both Officer Graham and the district attorney’s office had knowledge of the female passenger’s true identity. There is also no evidence to suggest that Officer Graham falsely testified when she indicated she did not know the identity of the female passenger. Defendant was not denied a fair trial here. Assuming arguendo the prosecutor committed misconduct, any such misconduct was harmless error. Based on the totality of the evidence, it is not reasonably probable a result more favorable to defendant would have occurred absent the purported 8 prosecutorial misconduct. (People v. Castillo (2008) 168 Cal.App.4th 364, 386; People v. Watson (1956) 46 Cal.2d 818, 836.) Based on our review of the record, the evidence supporting defendant’s guilt of the three offenses was strong. Although defendant attempted to assert the illegal items were not his or that he had no knowledge of the items, a briefcase defendant possessed was found with the illegal items. Documents in defendant’s name were contained in the briefcase and defendant admitted that the briefcase belonged to him. We conclude it is not reasonably probable defendant would have received a more favorable result had the prosecutor not committed the purported misconduct. Therefore, the assumed prosecutorial misconduct was not prejudicial. B. Advisory Counsel We also reject defendant’s claim that his constitutional rights were violated by the trial court’s failure to allow advisory counsel to assist him in direct examination. A defendant in a criminal proceeding has a constitutional right to be represented by professional counsel and also a constitutional right of self-representation, but these rights are mutually exclusive. (People v. Hamilton (1989) 48 Cal.3d 1142, 1162.) The Supreme Court has “specifically held that cocounsel status, advisory counsel and other forms of ‘hybrid’ representation are not constitutionally guaranteed.” (People v. Clark (1992) 3 Cal.4th 41, 111, overruled on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462; see also People v. Frierson (1991) 53 Cal.3d 730, 741; People v. Bloom (1989) 48 Cal.3d 1194, 1218.) In other words, “‘[w]hile the Sixth Amendment guarantees both the right to self-representation and the right to representation by counsel [,] . . . a defendant who elects self-representation “does not have a constitutional 9 right to choreograph special appearances by counsel,”’” including the presence of advisory counsel. (People v. Blair (2005) 36 Cal.4th 686, 723.) “California courts have discretion to appoint advisory counsel to assist an indigent defendant who elects self-representation.” (People v. Crandell (1988) 46 Cal.3d 833, 861 (Crandell), abrogated on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364- 365.) Thus, as with other matters left to the trial court’s discretion, “‘as long as there exists “a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside . . . .”’ [Citations.]” (Crandell, at p. 863.) “The factors which a court may consider in exercising its discretion on a motion for advisory counsel include the defendant’s demonstrated legal abilities and the reasons for seeking appointment of advisory counsel.” (Ibid.) “Where the record supports an inference of . . . a manipulative purpose, a court might be justified in denying a request for advisory counsel.” (Ibid.) Here, the trial court did not abuse its discretion in denying defendant’s request for advisory counsel. Defendant demonstrated legal abilities comparable to an attorney. Moreover, at defendant’s request, the trial court later allowed private attorney Sanchez to assist defendant as defendant’s cocounsel. C. Motion to Continue Defendant also argues that the trial court erred in failing to continue the matter to allow attorney Christopher De Salva time to arrive to conduct a direct examination of him. We reject this contention. The right to a continuance of a trial is limited. A continuance will be granted only upon showing of good cause. (Pen. Code, § 1050, subd. (e).) The granting or denial of a 10 continuance motion rests within the sound discretion of the trial court. (People v. Mickey (1991) 54 Cal.3d 612, 660.) Therefore, the trial court’s ruling will be affirmed on appeal absent a showing of an abuse of discretion. (Ibid.) A defendant may seek a continuance to allow time to substitute counsel, as defendant purportedly appeared to do here for the sole purpose of direct examination of himself. (See People v. Crovedi (1966) 65 Cal.2d 199, 206 (Crovedi); People v. Courts (1985) 37 Cal.3d 784, 790 (Courts).) However, defendant’s right to substitute counsel is not absolute. (See Crovedi, at pp. 206-207.) The right to counsel of choice must yield when it would cause an unreasonable disruption in the orderly process of justice. (Id. at p. 208.) There is no established test for determining when to deny a continuance to substitute counsel. Rather, “[t]he answer must be found in the circumstances present in every case, particularly the reasons presented to the trial judge at the time the request is denied.” (Id., at p. 207.) The court may deny a request for a continuance to substitute counsel if the accused is “unjustifiably dilatory” in obtaining counsel or “if he arbitrarily chooses to substitute counsel at the time of trial.” (Courts, at pp. 790-791.) The trial court here did not abuse its discretion. While still desiring to represent himself, defendant wanted to substitute counsel at the close of defense evidence so counsel could directly examine him at trial. The court, however, explained to defendant that he could testify and that the court would allow defendant to testify “from a narrative form . . . .” Defendant responded that he would “prefer to have someone ask” him questions. Defendant thereafter rested his case under protest. The record does not demonstrate defendant was diligent in making plans to substitute counsel or that he had a 11 valid reason to allow substitute counsel merely for the sole purpose of having someone ask him questions. The trial court gave defendant a choice to testify in a narrative form; defendant, however, chose not to do so. Defendant has failed to meet his burden of showing the trial court abused its discretion by denying his motion for a continuance. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues. III DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J. We concur: HOLLENHORST J. McKINSTER J. 12	{ "pile_set_name": "FreeLaw" }
917 N.E.2d 642 (2006) 363 Ill. App.3d 1210 STARRETT v. KANE COUNTY IPA, LLC. No. 2-05-0471, 2-05-0621. Appellate Court of Illinois, Second District. February 17, 2006. Dism. in pt., rev'd in pt. & rem. Affirmed.	{ "pile_set_name": "FreeLaw" }
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted October 8, 2009 Decided October 9, 2009 Before FRANK H. EASTERBROOK, Chief Judge RICHARD A. POSNER, Circuit Judge TERENCE T. EVANS, Circuit Judge No. 08‐3838 Appeal from the United States District UNITED STATES OF AMERICA, Court for the Northern District of Illinois, Plaintiff‐Appellee, Eastern Division. v. No. 07 CR 651‐1 JOE VAZQUEZ‐OTERO, John W. Darrah, Defendant‐Appellant. Judge. O R D E R Jose J. Vasquez1 was charged with conspiracy to possess and distribute controlled substances. See 21 U.S.C. §§ 846, 841(a)(1). He entered into a plea agreement that includes a broad waiver of his right to appeal the conviction or sentence. But after the district court imposed a 262‐month term of imprisonment, Vasquez filed a notice of appeal despite the waiver. His appointed attorney is unable to find a nonfrivolous basis for the appeal and has 1 Vasquez has previously used several different names including Joe Vazquez‐Otero, Joseph J. Vazquez‐Otero, Pedro Lopez, Jose Vazquez, Joe Vazquez, Jose Jaime Vazquez, and Jose Jaime Vazquez‐Otero. No. 08‐3838 Page 2 moved to withdraw under Anders v. California, 386 U.S. 738 (1967). We invited Vasquez to comment on the pending motion. He did not respond. That leaves us with only the potential issues identified in counsel’s facially adequate supporting brief. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997). Because Vasquez has told counsel that he wants his guilty plea set aside, counsel first addresses whether there is any basis to challenge the plea. See United States v. Knox, 287 F.3d 667, 671‐72 (7th Cir. 2002). In the district court Vasquez did not seek to withdraw his plea; therefore, we would examine the plea colloquy for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Sura, 511 F.3d 654, 658 (7th Cir. 2008). Counsel identifies only one omission during the plea colloquy: Vasquez was not informed of his right to a lawyer. See FED. R. CRIM. P. 11(b)(1)(D). But when he pleaded guilty Vasquez was represented by appointed counsel, so he must have known of this right, and the omission was harmless. See United States v. Lovett, 844 F.2d 487, 491‐92 (7th Cir. 1988). Accordingly, we agree with counsel that a challenge to Vasquez’s guilty plea would be frivolous. Counsel next evaluates whether Vasquez could challenge his sentence, but correctly concludes that any potential argument is precluded by the appeal waiver. If the guilty plea stands, so does the waiver. See United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002); United States v. Hare, 269 F.3d 859, 860 (7th Cir. 2001). Accordingly, we agree with counsel that a challenge to Vasquez’s sentence would be frivolous. Counsel is not able to identify any other potential issue for appeal. The motion to withdraw is GRANTED, and the appeal is DISMISSED.	{ "pile_set_name": "FreeLaw" }
Court of Appeals of the State of Georgia ATLANTA, October 10, 2017 The Court of Appeals hereby passes the following order A18D0102. ANDREW WILDES v. MELISSA CLARK. Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby GRANTED. The Appellant may file a Notice of Appeal within 10 days of the date of this order. The Clerk of Superior Court is directed to include a copy of this order in the record transmitted to the Court of Appeals. LC NUMBERS: 17CV01412 Court of Appeals of the State of Georgia Clerk's Office, Atlanta, October 10, 2017. I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk.	{ "pile_set_name": "FreeLaw" }
182 F.2d 243 86 U.S.App.D.C. 347 DAVID,v.KENDRICK et al. No. 10194. United States Court of Appeals District of Columbia Circuit. Argued March 16, 1950.Decided April 24, 1950. Mr. Harry L. Ryan, Jr., Washington, D.C., for appellant. Mr. George C. Gertman, Washington, D.C., with whom Mr. C. Clinton James, Washington, D.C., was on the brief, for appellees. Before EDGERTON, WILBUR K. MILLER, and BAZELON, Circuit Judges. PER CURIAM. 1 The plaintiff appeals from a judgment for the defendants in a suit for specific performance of an alleged contract to sell real estate. The plaintiff bases his claim on the following memorandum which the defendants signed: 2 'Aug. 3, 1945. . 3 'Received of E. M. David Twelve Hundred Fifty & 00/000 Dollars as deposit on sale of property at 1451 Pa. Ave. S.E. D.C. 4 $1,250.00 Harry T. Kendrick 5 'Purchase price $12,750.00 balance due $11,500.00. 6 Leona Kendrick' 7 The court found in substance that the defendants had no intention of binding themselves to sell, that the plaintiff knew this, and that the plaintiff induced the defendants to sign the memorandum by telling them he would return it to them and take back his deposit if they asked him to do so. The plaintiff did not deny making this representation. Since the plaintiff knew that the defendants intended the memorandum to have no legal effect and the plaintiff gave the defendants to understand that he also intended it to have no legal effect, it has none. The court understated the matter in describing plaintiff's conduct as 'overreaching'. 8 Affirmed.	{ "pile_set_name": "FreeLaw" }
901 F.2d 1115 Sellersv.Cargill, Inc.*** NO. 89-7477 United States Court of Appeals,Eleventh Circuit. APR 03, 1990 1 Appeal From: N.D.Ala. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3 ** Local Rule 36 case	{ "pile_set_name": "FreeLaw" }
688 F.2d 834 Perduev.Hudson 81-6988 UNITED STATES COURT OF APPEALS Fourth Circuit 8/11/82 1 W.D.Va. AFFIRMED	{ "pile_set_name": "FreeLaw" }
September 30 2014 DA 13-0790 IN THE SUPREME COURT OF THE STATE OF MONTANA 2014 MT 265 IN THE MATTER OF: M.S., A Youth in Need of Care. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDN-11-128 Honorable Dirk M. Sandefur, Presiding Judge COUNSEL OF RECORD: For Appellant: Julie Brown; Montana Legal Justice, PLLC; Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Appellate Services Bureau Chief; Helena, Montana John Parker, Cascade County Attorney; Matthew W. Robertson, Deputy County Attorney; Great Falls, Montana Submitted on Briefs: August 13, 2014 Decided: September 30, 2014 Filed: Clerk Justice Beth Baker delivered the Opinion of the Court. ¶1 G.S. appeals an order of the Eighth Judicial District Court, alleging that the court terminated his parental rights without following the statutory requirements of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et. seq., and without providing due process. We restate the issue on appeal as follows: Whether the termination proceedings complied with statutory requirements for proceedings involving an Indian child. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Thirteen-year-old M.S. was removed from her mother’s care and placed into emergency protective custody on July 18, 2011, after her mother was arrested for Possession of Dangerous Drugs with Intent to Distribute. M.S.’s father, G.S., has been incarcerated in a federal prison in Arizona since 2009, serving a 480-month sentence with an additional 20 years of supervised release for aggravated sexual abuse. G.S. is an enrolled member of the Northern Cheyenne Tribe (Tribe). ¶4 On July 25, 2011, the Department of Public Health and Human Services (Department) filed a Petition for Emergency Protective Services, Adjudication as Youth in Need of Care and Temporary Legal Custody. Although the Department initially placed M.S. with another family member, by August 2011, M.S. had moved to Billings to live with her grandmother’s ex-husband. ¶5 On July 28, 2011, the District Court set a date for a show cause hearing and issued a citation to the mother directing her to appear at the hearing. The Department sent notice of the pending show cause hearing to the Chippewa Cree Tribe, mistakenly 2 believing that M.S. was a member or eligible for membership with that tribe. The Chippewa Cree responded that M.S. was not enrolled or eligible for enrollment with that tribe. ¶6 The District Court held the show cause hearing on December 5, 2011. G.S. did not personally attend, but he had been served and was represented at the hearing by his attorney. Both parents stipulated that M.S. was a Youth in Need of Care. The District Court issued an order on December 21, 2011, adjudicating M.S. a Youth in Need of Care and granting the Department Temporary Legal Custody. ¶7 On July 26, 2012, the Department filed a Petition for Permanent Legal Custody and Termination of Parental Rights for both parents. At the disposition hearing on the petition, G.S., through counsel, informed the court that he was a member of the Northern Cheyenne Tribe. The District Court denied and dismissed the Department’s petition without prejudice on the grounds that the petition contained inaccurate information regarding M.S.’s tribal affiliations and granted the Department leave to file a new petition to terminate G.S.’s parental rights. ¶8 On September 12, 2012, the Department sent notice of the proceedings by registered mail to the Northern Cheyenne Tribe in Lame Deer, Montana. The Department filed a Notice of Filing with the court, stating that the Tribe received copies of the Petition for Temporary Legal Custody, Social Worker’s Affidavit, Order to Show Cause Hearing, and Tribal Notice. The Tribe filed a notice of intervention acknowledging that M.S. was an Indian child under ICWA and was eligible for enrollment in the tribe. While the Tribe expressed interest in transferring the case to 3 tribal court and provided contact information, the Tribe did not appear at any subsequent hearings. ¶9 On December 4, 2012, the Department filed a modified petition for the termination of G.S.’s parental rights and for permanent legal custody of M.S. The Department asserted a theory of aggravated circumstances under § 41-3-609(1)(d), MCA. A hearing on this petition was held on March 25, 2013. The court determined that a continuance was necessary because the Tribe was not properly notified of the hearing. The termination hearing was rescheduled and held on April 22, 2013. The only indication that the Tribe received notice of the rescheduled hearing was that the court’s order indicated that the Tribe was “cc’d” with a copy of the order. At the April 22 hearing, the Department then moved to dismiss its petition and refile for termination solely on the issue of abandonment because it had concluded that, under § 41-3-423(2), MCA, aggravated circumstances are not a ground for termination where the proceeding is subject to ICWA. ¶10 On April 30, 2013, the Department filed a motion to amend the petition to terminate G.S.’s parental rights and for summary judgment. The District Court issued an order granting the Department’s motion to amend. Although the Department’s motion indicated that a copy was “cc’d” to the Tribe, neither the motion nor the court’s subsequent order contained a certificate of service confirming that the documents were served on the Tribe. ¶11 At the Department’s request, the District Court issued an order setting a summary judgment hearing for October 21, 2013, on the petition to terminate G.S.’s parental rights. 4 This order indicated that it was sent to the parties by a certificate of mailing signed by the clerk of court. At the hearing, the District Court ordered G.S.’s parental rights terminated and awarded the Department permanent legal custody of M.S. The District Court issued its findings of fact, conclusions of law, and order terminating G.S.’s rights on November 12, 2013. G.S. appeals. STANDARD OF REVIEW ¶12 This Court reviews the District Court’s decision to terminate parental rights for an abuse of discretion. In re K.B., 2013 MT 133, ¶ 18, 370 Mont. 254, 301 P.3d 836. “In a case governed by ICWA, we will uphold the district court’s termination of parental rights if a reasonable fact-finder could conclude beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child.” In re K.B., ¶ 18. We review a district court’s application of the law to the facts of the case for correctness. In re K.B., ¶ 18. DISCUSSION ¶13 Whether the termination proceedings complied with statutory requirements for proceedings involving an Indian child. ¶14 ICWA establishes the minimum federal standards for the removal of an Indian child from her family and the placement of such a child in a foster or adoptive home. M.S. is eligible for enrollment with the Tribe and, under ICWA, M.S. is an Indian child. ICWA must be followed strictly by state courts, to “protect the best interests of Indian children and promote the stability and security of Indian tribes and families.” 25 U.S.C. § 1902. 5 ¶15 ICWA provides that “any parent or Indian custodian from whose custody such [Indian] child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.” 25 U.S.C. § 1914. Section 1912 of ICWA requires: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. . . . No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary . . . . 25 U.S.C. § 1912(a). ¶16 A recent case decided by this Court involved problems with notice under 25 U.S.C. § 1912(a). In re K.B., ¶¶ 22-25. In that case, the tribe received proper notice of the youth in need of care proceeding by registered mail, but did not receive proper notice of the termination petition and hearing. In re K.B., ¶ 24. Although the termination petition and the court’s order setting the termination hearing indicated by notation that copies were “cc’d” to the mother and the tribe, the record did not include an accompanying certificate of service or other documentation that could prove that timely service was accomplished. In re K.B., ¶ 24. ¶17 We held that the notice was insufficient under 25 U.S.C. § 1912(a) because the record did not reflect that the mother and the tribe received notice ten days in advance of the termination hearing. In re K.B., ¶ 25. We reversed the district court’s termination 6 order and remanded for a new hearing because the State gave insufficient notice and also because the State did not adequately develop the record with regard to whether it demonstrated “active efforts” under 25 U.S.C. § 1912(d) or whether continued custody of the child by the parent was “likely to result in serious emotional or physical damage to the child” under 25 U.S.C. § 1912(f). In re K.B., ¶ 34. ¶18 The procedure followed in this case with regard to notice was remarkably similar to that in In re K.B. After the Department realized its mistake concerning M.S.’s tribal affiliation, the Department properly notified the Tribe by registered mail of the involuntary child custody proceeding. The Tribe promptly filed a notice of intervention. The petition for termination of parental rights filed on April 30, 2013, however, indicates only that it was “cc’d,” without any certificate of service. The court’s order granting the amendment also did not contain a certificate of service. No other proof of service was filed in the record. ¶19 ICWA requires that “the party seeking the foster care placement of, or termination of parental rights to, an Indian child” first notify the Tribe of “any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved . . . .” 25 U.S.C. § 1912(a). ICWA also provides that “[n]o foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary . . . .” 25 U.S.C. § 1912(a) (emphasis added). If there is “any question about whether notice had to be given both before the department sought to put the child in foster care and when it sought to terminate parental rights, that question should be 7 resolved in favor of giving notice twice.” People ex rel. S.R.M., 153 P.3d 438, 442 (Colo. Ct. App. 2006), cited in In re K.B., ¶ 25. ¶20 Here, while the initial notice to the tribe was adequate, the Tribe was not properly served with notice of the termination of parental rights proceeding. The Department’s indication that it “cc’d” the Tribe with its motion to amend the termination petition did not include a certificate of service, and no other proof of service appears in the record. Although the court’s order setting the termination hearing was served on the Tribe, that document was styled as an order setting a summary judgment hearing and virtually all of the evidence considered by the court already had been presented in prior hearings. Consistent with In re K.B., ¶¶ 24-25, we conclude that the Department failed to provide adequate evidence of proper notice.1 ¶21 We do not hold that the State must send notice of termination proceedings to the Tribe by registered mail if, as here, notice of the initial proceedings already has been effected in that manner. Where the Tribe already has intervened in the case, notice of termination will be sufficient if it is given in compliance with the Rules of Civil Procedure governing notice to other parties. Thus, the notice to the Tribe must, at a minimum, comply with M. R. Civ. P. 5; Rule 5 states that all documents listed in Rule 5(a)(1) must be served on every party. Service may be accomplished by “mailing it to the person’s last known address—in which event service is complete upon mailing.” 1 It is incumbent upon counsel for the Department to ensure that the Tribe receives proper service of the District Court’s orders. If an order does not indicate that the court served a copy of the order on the Tribe, the Department should serve the order on the Tribe to guarantee that the Tribe receives a copy, and file a Certificate of Service. 8 M. R. Civ. P. 5(b)(2)(C). If service is made by mail, a certificate of service must be filed. M. R. Civ. P. 5(d)(1). Once a tribe has filed a notice of intervention, it has appeared as a party in the case and is entitled to proper service under this rule. Compliance with Rule 5 ensures that a certificate of service will be filed in the record of the district court. M. R. Civ. P. 5(d). That did not occur here. ¶22 We have held consistently that a district court may protect a child’s best interest despite procedural errors that would have no impact upon the result. In re J.C., 2008 MT 127, ¶ 43, 343 Mont. 30, 183 P.3d 22; In re F.H., 266 Mont. 36, 39, 878 P.2d 890, 892 (1994); In re A.N., 2000 MT 35, ¶ 39, 298 Mont. 237, 995 P.2d 427 (2000). We agree with the line of cases holding that ICWA’s notice requirements are not jurisdictional and are subject to harmless error review. In re N.N.E., 752 N.W.2d 1, 10 n.3 (Iowa 2008); In re Christian P., 208 Cal. App. 4th 437 (Cal. App. 2d Dist. 2012); In re G.L., 177 Cal. App. 4th 683, 695-96 (Cal. App. 4th Dist. 2009). An error involving notice to a tribe is not ground for reversal unless the appellant shows a “reasonable probability that he or she would have obtained a more favorable result in the absence of the error.” In re G.L., 177 Cal. App. 4th at 696. ¶23 Despite the Department’s failure to provide adequate notice, the record shows that the Tribe was aware of the case but, after evaluating the circumstances, did not assume an active role or interest in participating in the matter. “ICWA recognizes that tribes have a unique interest and ability to provide services in the upbringing of Indian children.” In re C.H., 2003 MT 308, ¶ 21, 318 Mont. 208, 79 P.3d 822. The ICWA expert testified, however, that she had “spoken to the Tribe and they said that at this point, there would be 9 turmoil if we removed her from the place that she’s at [sic].” The Tribe did not participate in this appeal and G.S. has not provided any evidence that the Tribe intended to actively participate had it properly been notified of the termination hearing. This is not a case where the court ignored a child’s Indian ancestry or deprived a tribe of its right to intervene. “It would serve no purpose to require the [District Court] to terminate [G.S.’s] parental rights all over again.” In re N.N.E., 752 N.W.2d at 10. Because G.S. has not demonstrated a reasonable probability that he would have obtained a more favorable result in the absence of the Department’s error regarding proper ICWA notice, we hold that the error in this case was harmless. ¶24 G.S. argues next that the Department failed to meet ICWA’s “active efforts” requirement. The Department has an obligation to demonstrate active efforts to prevent the breakup of an Indian family: Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. 25 U.S.C. § 1912(d). “‘Active efforts’ implies a heightened responsibility compared to passive efforts.” In re D.S.B., 2013 MT 112, ¶ 15, 370 Mont. 37, 300 P.3d 702. If the underlying proceeding is a termination of parental rights under § 1912(f), proof of “active efforts” must be satisfactory “beyond a reasonable doubt.” In re G.S., 2002 MT 245, ¶ 33, 312 Mont. 108, 59 P.3d 1063. ¶25 As we have noted before, a common sense understanding of “active efforts” “requires only that ‘timely affirmative steps be taken to accomplish the goal which 10 Congress has set: to avoid the breakup of Indian families whenever possible by providing services [designed] to remedy problems which might lead to severance of the parent-child relationship.’” In re G.S., ¶ 36 (quoting Letitia v. Superior Court, 81 Cal. App. 4th 1009, 1016, 97 Cal. Rptr. 2d 303, 309 (Cal. App. 4th Dist. 2000)). Further, “a parent’s incarceration may limit the remedial and rehabilitative services that the State can make available to the parent to prevent the breakup of the Indian family.” In re D.S.B., 2013 MT 112, ¶ 15, 370 Mont. 37, 300 P.3d 702. We do not excuse the state’s obligation to make active efforts if a parent is incarcerated, but “we will not fault the [Department] if its efforts are curtailed by the parent’s own criminal behavior.” In re D.S.B., ¶ 15. ¶26 The District Court expressly addressed whether ICWA’s heightened standard for active efforts was met, noting that the Department worked with the mother to create a treatment plan and that reunification with the father was a practical impossibility because of G.S.’s long-term incarceration. The Department assisted M.S.’s mother in complying with her court-ordered treatment plan before she consented to the termination of her rights. The Department paid for the mother to visit M.S. in Billings and made efforts to help her locate an appropriate residence. No treatment plan was ordered for G.S. due to his long-term incarceration. The court found that the father had failed to develop and maintain a parental relationship with M.S., and that his incarceration left “virtually no likelihood or prospect that [G.S.] will ever be in a position to parent, or even establish a 11 parental relationship, as a matter of fact, with the child prior to the time that she turns 18.”2 ¶27 The court concluded that “the [Department] has actively intervened in this matter and endeavored, to the extent practical, under the facts and the law, to effect reunification of the child with either or both parents.” The court held as a matter of law that the Department’s “efforts to effect reunification are reasonable under State law and they have been active under the federal law within the meaning of the ICWA on the same findings of fact.” We hold that a reasonable trier of fact could have concluded that the Department made sufficient active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of this Indian family. Substantial evidence supports the court’s finding that G.S. will not be able to parent his daughter at any time before she reaches the age of majority. The District Court did not err in concluding that the Department met ICWA’s “active efforts” requirement in this circumstance. ¶28 G.S. asserts that the District Court did not make specific findings of fact required by 25 U.S.C. § 1912(f) that continued custody of the child by the parent was “likely to result in serious emotional or physical damage to the child.” The Department presented evidence that the continued parental custody of the children would result in serious 2 The record does not clarify whether G.S. ever had custody of M.S. The record is silent regarding G.S.’s relationship with M.S. prior to his incarceration. We recognize that 25 U.S.C. § 1912(d) does not apply where the “breakup of the Indian family” has long since occurred. In re J.S., 2014 MT 79, ¶ 29, 374 Mont. 329, 321 P.3d 103 (citing Adoptive Couple v. Baby Girl, 570 U.S. __, 133 S. Ct. 2552, 2559 (2013)). Although the District Court asked during the April 22, 2013 hearing, before Baby Girl was decided, how the ICWA standard for termination applies in a situation where the child was never in the parent’s custody, the parties did not dispute that ICWA’s active efforts were required. Because this potential issue was not raised, we will not address it in this appeal. See Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 78, 358 Mont. 474, 247 P.3d 244. 12 emotional or physical damage to the children. The District Court took judicial notice that G.S. has been convicted of aggravated sexual abuse of another daughter, who was four years old at the time, and that he is serving a term of forty years in prison. The District Court found that, even if the father were to leave prison, continued custody of the child with the father likely would result in serious emotional or physical harm to the child by removing her from her current placement in a stable environment. The District Court made sufficient findings regarding the child’s well-being and reasonably concluded that continued custody by G.S. would likely result in “serious emotional or physical damage to the child.” In re K.B., ¶ 18. ¶29 Finally, although G.S.’s issue statement alleges a violation of the right to procedural due process, he did not present any due process arguments or develop this allegation in any way and we do not further consider it. M. R. App. P. 12(1)(f); In re Estate of Harmon, 2011 MT 84, ¶ 28, 360 Mont. 150, 253 P.3d 821. G.S. does argue that the Department cannot terminate a parent’s rights through a summary judgment motion, and that the District Court improperly relied on testimony from prior proceedings. The District Court made specific findings of fact during the April 22 hearing and expressly incorporated those findings, “so as not to waste the time and effort” of the parties and witnesses. The court reasonably sought “to avoid duplication” of the testimony presented at an earlier termination hearing. Although G.S. is correct that the statutes do not contemplate any summary judgment process for a termination proceeding, the court did not grant summary judgment. It is clear that the court based its decision on the presentation of evidence by the parties; it properly considered the statutes in Title 41, 13 MCA, and ICWA; and it entered detailed findings of fact and conclusions of law explaining its decision to terminate G.S.’s parental rights. CONCLUSION ¶30 The District Court did not err in determining that the Department satisfied the “active efforts” requirement and made sufficient findings of fact pursuant to 25 U.S.C. § 1912(f). Although we hold that the Department did not provide appropriate proof that the father’s tribe received proper notice of the termination hearing, that error was harmless under the circumstances of this case. We affirm. /S/ BETH BAKER We concur: /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA 14	{ "pile_set_name": "FreeLaw" }
993 F.2d 1551 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. In re Douglas L. CANADY, also known as Douglas Lee Canady,also known as Doug Canady, individually and as officer,director & sole shareholder of Interior Services, Inc., aColorado corporation, and joint venturer in ViaductAssociates, and Creative Partners, Colorado joint ventures, Debtor.Glen K. SANDLIN, Plaintiff,v.Douglas L. CANADY, Defendant-Appellee,David L. Smith, Attorney-Appellant. No. 92-1169. United States Court of Appeals, Tenth Circuit. April 27, 1993. Before TACHA and BALDOCK, Circuit Judges, and BROWN,* Senior District Judge. ORDER AND JUDGMENT** TACHA, Circuit Judge. 1 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. 2 This matter is before the court on appellant's petition for rehearing and request for rehearing in banc, challenging in part the court's jurisdiction to issue the order and judgment filed February 4, 1993. We agree that we lacked jurisdiction. We therefore vacate the order and judgment and dismiss this appeal. 3 "[A] sanction order against an attorney currently of record is not a final decision for purposes of ... appeal where the underlying controversy remains unresolved." G.J.B. & Assocs., Inc. v. Singleton, 913 F.2d 824, 827 (10th Cir.1990). Nor is such an order appealable under the exception to the final judgment rule for collateral orders set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). G.J.B. & Assocs., 913 F.2d at 829. Rather, "counsel must await the conclusion of the underlying lawsuit and then appeal." Id. 4 This court dismissed an appeal from an order on the merits of the underlying claims because that order remanded the case for significant further proceedings and therefore did not dispose of the entire discrete controversy between the creditor and debtor. Sandlin v. Canady (In re Douglas Canady), No. 92-1100 (10th Cir. June 24, 1992). The underlying controversy remains unresolved. The order sanctioning appellant is not yet appealable. 5 Appellant requests that the court hold the appeal in abeyance for an unspecified length of time until the underlying claims are resolved. He cites no authority allowing the court to do so. We deny this request. 6 The February 4, 1993, order and judgment is VACATED, and the appeal is DISMISSED. * Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation ** This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3	{ "pile_set_name": "FreeLaw" }
101 Ariz. 239 (1966) 418 P.2d 576 The STATE of Arizona, Appellee, v. Jerry Frank MAYNARD, Appellant. No. 1483. Supreme Court of Arizona, In Banc. October 6, 1966. Darrell F. Smith, Atty. Gen., James S. Tegart, Asst. Atty. Gen., for appellee. Joe R. Glenn, Mesa, for appellant. STRUCKMEYER, Chief Justice. Appellant was convicted of grand theft, a felony, and appeals. The single question presented is whether the trial judge should have instructed the jury, sua sponte, on the probative value of circumstantial evidence under these facts: On the 30th day of July, 1963, eighty sheets of plywood, 4' x 8' x 1/2", were delivered to the Sullivan Construction Co., Inc., at their open yard in Phoenix, Arizona. Each of the eighty sheets was valued at $3.52. That afternoon, appellant, together with one Price, was observed loading the plywood sheets into Price's 1963 Chevrolet 3/4-ton pickup truck. The following morning, forty-two sheets were counted as missing. The eyewitness, who saw appellant and Price loading the truck, testified that when he saw them, the truck was three-quarters loaded with sheets and that they were within one or two sheets from filling it up level with the side of the bed. At the trial, a police officer testified that, several days after appellant's arrest, he had a conversation with him and that appellant then stated the value of the stolen plywood was more than $100. We said, in State v. Tigue, 95 Ariz. 45, 386 P.2d 402, that "* * * the court on its own motion is under a duty to give proper instructions as to the effect of circumstantial evidence, if the prosecution must rely exclusively on circumstantial evidence to convict." (Emphasis in original.) See also State v. Daymus, 90 Ariz. 294, 367 P.2d 647. But this is not a case where the prosecution relies exclusively on circumstantial evidence. There was direct evidence by an eyewitness who watched appellant commit the theft. Further, there was direct evidence from the statement by appellant to the police officer of the value of the stolen plywood. "Direct evidence of the crime is the evidence of an eyewitness that it was committed. This includes, in criminal law, confessions and admissions of the accused * * ." 1 Underhill's Criminal Evidence, 5th Ed., p. 5. 240 Confessions and admissions of an accused are direct evidence rather than circumstantial evidence. State v. Tornquist, 254 Iowa 1135, 120 N.W.2d 483; State v. Criger, Mo. Sup., 46 S.W.2d 537; Fisher v. State, 154 Neb. 166, 47 N.W.2d 349; State v. Nortin, 170 Or. 296, 133 P.2d 252. The trial court did not instruct the jury on circumstantial evidence but the failure to so instruct is not error unless requested before the jury retires. State v. Evans, 88 Ariz. 364, 356 P.2d 1106. The failure to instruct on the probative value of circumstantial evidence is not fundamental error since the prosecution did not rely exclusively thereon for conviction. Judgment affirmed. BERNSTEIN, V.C.J., and UDALL, LOCKWOOD and McFARLAND, JJ., concur.	{ "pile_set_name": "FreeLaw" }
770 F.2d 1311 54 USLW 2182, 6 Employee Benefits Ca 2345 Everate W. DEDEAUX, Plaintiff-Appellant,v.PILOT LIFE INSURANCE CO., Defendant-Appellee. No. 84-4201. United States Court of Appeals,Fifth Circuit. Sept. 16, 1985. Denton, Persons, Dornan & Bilbo, William L. Denton, Ronald S. Cochran, Biloxi, Miss., William C. Walker, Univ. of MS, Law Center, University, Miss., for plaintiff-appellant. Heidelberg, Woodliff & Franks, Harry E. Neblett, Jr., George F. Woodliff, III, Keith R. Raulston, Jackson, Miss., for defendant-appellee. Appeal from the United States District Court for the Southern District of Mississippi. Before BROWN, WILLIAMS and GARWOOD, Circuit Judges. JERRE S. WILLIAMS, Circuit Judge: 1 The case before us raises the question of whether the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Secs. 1001-1381 (1982), preempts an employee's common law breach of contract and tort claims against the insurance company that issued his employer's group insurance policy. The district court concluded that ERISA preempted the employee's claims. We reverse on the authority of Metropolitan Life Insurance Co. v. Massachusetts, --- U.S. ----, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985), decided after the decision of the District Court. I. 2 In March, 1975, Everate W. Dedeaux, an employee of Entex, Inc.1 in Gulf Port, Mississippi, injured his back in a work-related accident. At the time of the accident, a long term disability benefits plan (Plan) Entex had established for its employees was in effect and purported to afford coverage for work-related injuries such as Dedeaux's. Entex established the Plan by purchasing a group insurance policy from Pilot Life Insurance Co.2 Entex collected and matched its employees' contributions to the Plan and forwarded those funds to Pilot Life. Entex also bore responsibility for providing its employees with the necessary forms and documents for processing disability claims and forwarding those completed forms and documents to Pilot Life. Entex, however, possessed no discretion nor authority to determine who would receive disability benefits. Pilot Life alone possessed that authority. Entex's role was predominantly a ministerial one. 3 Dedeaux sought permanent disability benefits for the injuries he sustained in the March 1975 accident. Pilot Life provided Dedeaux with benefits for the first two years after the accident but thereafter terminated benefits. For the next three years, Pilot Life repeatedly reinstated and then terminated benefits. Because of his frustration with Pilot Life, Dedeaux instituted this diversity action in 1980. Dedeaux sought $750,000 in compensatory and exemplary damages for Pilot Life's conduct and asserted claims under the Mississippi common law for breach of contract, breach of fiduciary duty, and fraud. Unlike the typical plaintiff litigating the status of his disability benefits, however, Dedeaux did not assert any claim under ERISA.3 See, e.g., 29 U.S.C. Sec. 1132 (1982) (identifying myriad causes of action for a fiduciary's failure to pay benefits). 4 After the close of discovery, Pilot Life moved for summary judgment, asserting that the group insurance policy it issued to Entex was an employee benefit plan governed exclusively by ERISA.4 According to Pilot Life, ERISA therefore preempted any common law claim for its failure to pay disability benefits. The district court found that section 514(a) of ERISA expressly preempted Dedeaux's causes of action and accordingly granted Pilot Life's motion for summary judgment. II. A. 5 The narrow question in this appeal is whether Dedeaux's tort and contract claims are saved from preemption by section 514(b)(2)(A), 29 U.S.C. Sec. 1144(b)(2)(A). Answering this question necessarily requires us to interpret the delicate balance between several critical provisions of section 514. In pertinent part, Section 514 provides: 6 (a) Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 4(a) [29 U.S.C. Sec. 1003(a) ] of this title and not exempt under section 4(b) [29 U.S.C. Sec. 1003(b) ] of this title.... 7 * * * 8 * * * 9 [ (b) ](2)(A) Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities. 10 [ (b)(2) ](B) Neither an employee benefit plan described in section 4(a) [29 U.S.C. Sec. 1003(a) ] of this title, which is not exempt under section 4(b) [29 U.S.C. Sec. 1003(b) ] of this title (other than a plan established primarily for the purpose of providing death benefits), nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. 11 Section 514(a), the "preemption" clause, embodies the general rule of preemption and speaks in sweeping terms. Section 514(b)(2)(A), or the so-called "saving" clause, limits the scope of the preemption clause and essentially states that ERISA does not preempt any state law that regulates "insurance, banking, or securities." Section 514(b)(2)(B), the "deemer" clause states, in part, that no benefit plan shall be construed to be an insurance company or engaged in the business of insurance for the purpose of any state law regulating insurance matters. 12 Dedeaux asserts that his causes of action against Pilot Life constitute laws "which regulate[ ] insurance" and therefore are saved from the general rule of preemption.5 Pilot Life answers with five separate but related arguments supporting its conclusion that preemption is mandated in this case. First is Congress's preeminent intent to maintain national uniformity in the maintenance and administration of ERISA plans. It is argued that permitting plan participants and beneficiaries to assert state-created claims instead of or in addition to their causes of action under ERISA subjects insurers and the plans they insure to additional exposure to liability as well as a variety of duplicative, inconsistent, or conflicting state regulations. The varied panoply of rights, it is urged, defeats Congress's stated desire to ensure that plans are administered on a uniform, nationwide basis. Second, it is asserted that Congress sought to have the exceptions to the otherwise broad rule of preemption construed narrowly. Under such a reading, Pilot Life asserts that common law causes of action such as Dedeaux's simply cannot be construed to be "law[s] ... which regulate[ ] insurance." Pilot Life views this count as a natural corollary to its first claim. 13 In its third argument, Pilot Life urges that to hold otherwise would create an irrational and indefensible distinction between plans that are self-insured and those that are insurance-funded. See supra n. 2. This result occurs if Dedeaux's claims fall within the saving clause. There is no question that because of the deemer clause, which limits the effect of the saving clause, Dedeaux would have no claims outside of the ERISA scheme if Entex self-insured the Entex Plan. Why, Pilot Life asks, should plan beneficiaries and participants be afforded additional rights and remedies merely because Entex purchased an insurance policy to create the Entex Plan? 14 Pilot Life's fourth argument is that the deemer clause substantially limits the scope of the saving clause and operates to save from preemption only so-called "traditional" insurance laws. Pilot Life defines traditional insurance laws as including those governing the sale of stock, the licensing of agents, or the maintenance of minimum capital reserves. Non-traditional insurance laws and those that would be preempted are any laws that mandate the inclusion of substantive benefits in policies sold to plans or those that create separate rights or a remedial scheme outside ERISA. 15 Pilot Life's fifth argument merits particular attention as later analysis reveals. In this final argument, Pilot Life asserts that ERISA specifically proscribes and creates a cause of action for the conduct in which Dedeaux alleges Pilot Life engaged. It is urged, therefore, that Congress certainly did not intend to enable states to enact separate laws proscribing the same conduct. B. 16 Our holding on this appeal turns upon the Supreme Court's recent decision in Metropolitan Life Insurance Co. v. Massachusetts, --- U.S. ----, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985). In Metropolitan Life, the Court for the first time interpreted the meaning and scope of the saving clause. Metropolitan Life involved the challenge mounted by two insurance companies against a Massachusetts statute that required all insurers, including those who sold policies to employee benefit plans, to provide insurance coverage for mental health care services. The insurer attacked the validity of the so-called mandated benefit law by raising the same arguments Pilot Life raises here. A unanimous Supreme Court rejected the insurers' arguments and upheld the validity of the statute. In so doing, the Court clearly and unequivocally repudiated the first four arguments Pilot Life raises here. 17 The Court began its analysis of the preemption question with the following aphorisms--(1) the ordinary meaning of the language of the statute expresses congressional intent, (2) unless the statute explicitly and clearly states otherwise, Congress does not intend to preempt areas which states traditionally have regulated, (3) federal statutes are not presumed to preempt state laws, and (4) courts should not read limitations into a statute to enlarge the statute's preemptive scope. The opinion then noted that the Massachusetts statute appeared to be a law that regulated "insurance" and therefore would fall squarely within the saving clause. The Court proceeded to analyze the statute and its legislative history and found nothing in either supporting a narrowing of the saving clause. The Court led itself to conclude that the insurers' interpretation of the statute would render the saving clause meaningless. 18 The Court, however, went beyond the mere lack of legislative or statutory support for the insurers' arguments. It analyzed by way of comparison the McCarran-Ferguson Act, 15 U.S.C. Secs. 1011-1015 (1982). That statute, which was enacted originally in 1945, states in pertinent part: 19 (a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business. 20 (b) No Act of Congress shall be construed to invalidate, impair, or supercede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance. 21 15 U.S.C. Sec. 1012. The Supreme Court on numerous occasions has interpreted the McCarran-Ferguson Act and emphasized that the primary concern of that act was to "ensure that the States would continue to have the ability to tax and regulate the business of insurance." Group Life and Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 217-218, 99 S.Ct. 1067, 1076-1077, 59 L.Ed.2d 261 (1979). The latter act and the interpretations thereof were seen to provide support for the opinion's conclusion that state laws regulating the substantive terms of insurance policies sold to ERISA-authorized benefit plans are saved from preemption by the saving clause. See Metropolitan Life, --- U.S. ---- at ---- & ---- n. 21, 105 S.Ct. at 2391 & 2392 n. 21. 22 The Court explicitly rejected the insurers' argument that the deemer clause operated to limit the saving clause and save from preemption only "traditional" state insurance laws. --- U.S. at ---- & ----, 105 S.Ct. at 2390 & 2391. And the opinion paid short shrift to several of the insurers' remaining arguments favoring preemption. The Court recognized and quoted statements made in the floor debate about the "narrow" exceptions to the preemption clause, but found that these references were "far too frail a support" for the insurers' interpretation of the saving clause. --- U.S. at ----, ---- & n. 24, 105 S.Ct. at 2392, 2393 & n. 24. The opinion additionally noted: 23 We are aware that our decision results in a distinction between insured and uninsured plans, leaving the former open to indirect regulation while the latter are not. By so doing we merely give life to a distinction created by Congress in the "deemer clause," a distinction Congress is aware of and one it has chosen not to alter. We also are aware that [the insurers'] construction of the statute would eliminate some of the disuniformities currently facing national plans that enter into local markets to purchase insurance. Such disuniformities, however, are the inevitable result of the congressional decision to "save" local insurance regulation. Arguments as to the wisdom of these policy choices must be directed at Congress. 24 --- U.S. at ----, 105 S.Ct. at 2393. And finally the Court said: 25 We therefore decline to impose any limitation on the saving clause beyond those Congress imposed in the clause itself and in the "deemer clause" which modifies it. If a state law "regulates insurance," as mandated-benefit laws do, it is not preempted. Nothing in the language, structure, or legislative history of the Act supports a more narrow reading of the clause, whether it be the Supreme Judicial Court's attempt to save only state regulations unrelated to the substantive provisions of ERISA, or the insurers' more speculative attempt to read the saving clause out of the statute. 26 --- U.S. at ----, 105 S.Ct. at 2393 (emphasis added). In summary, the Court read the saving clause broadly and the preemption and deemer clauses narrowly. 27 The Supreme Court's disposition of similar issues in Metropolitan Life makes it unnecessary to analyze in detail Pilot Life's first four arguments favoring preemption. Pilot Life, however, raises as its fifth argument one that the Supreme Court did not consider expressly. Pilot Life asserts that since Congress proscribed the conduct which Dedeaux alleges Pilot Life committed--wrongful failure to pay insurance benefits--and created causes of action for the commission of that conduct,6 Congress did not intend state laws proscribing the same conduct to survive. 28 We must disagree. The plain language of the statute supports the contrary result. Pilot Life does not argue seriously that state law causes of action for the nonpayment of insurance benefits are not laws "which regulate[ ] insurance." In interpreting the similar phrase, "regulation [of] ... the business of insurance," the Supreme Court in SEC v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969), concluded that laws affecting the "relationship between the insurer and the insured ... [are] the core of 'the business of insurance.' " Id. at 460, 89 S.Ct. at 568, cited with approval in Metropolitan Life, --- U.S. at ----, 105 S.Ct. at 2391. The instant causes of action unquestionably affect the relationship between the insurer, the insured, and the beneficiaries and therefore are laws which regulate insurance. Under the plain language of the statute, therefore, Dedeaux's causes of action for Pilot Life's failure to pay insurance benefits rely upon laws "which regulate[ ] insurance and fall squarely within the saving clause." 29 Pilot Life answers with the ipsi dixit argument that "Congress could not have intended to permit states to do the same thing as it did in ERISA." Nothing in the statute or its legislative history, however, supports Pilot Life's argument. Indeed, the Court in Metropolitan Life held that "[i]f a state law 'regulates insurance' ... it is not preempted." --- U.S. at ----, 105 S.Ct. at 2393. The analysis of whether a particular law is saved from preemption ends once it is determined that a law falls within the saving clause and is not exempt by the narrow deemer clause. --- U.S. ----, 105 S.Ct. at 2393. And given the repeated reaffirmance and application of the forty year old McCarran-Ferguson Act, which in essence states that insurance matters are areas of state concern absent a clear congressional statement to the contrary, clear and precise words by Congress would be required to disgorge states of their long-held ability to proscribe and create a cause of action for an insurer's failure to pay insurance benefits. 30 We are left with the unavoidable conclusion that state laws proscribing the same conduct as ERISA may provide a cause of action in place of, in addition to, or coequal with any cause of action available under ERISA. See Eversole v. Metropolitan Life Insurance Co., 500 F.Supp. 1162, 1170 (C.D.Cal.1980). Dedeaux's common law causes of action for Pilot Life's failure to pay disability benefits, therefore, are not preempted. We are not unmindful of the practical consequences of this decision. As the Supreme Court stated in Metropolitan Life, however, those concerns must be directed to Congress. 31 The district court's order granting Pilot Life's motion for summary judgment must be set aside. 32 REVERSED AND REMANDED. 1 On March 28, 1975, Dedeaux's employer of fifteen years, United Gas, Inc., became Entex, Inc 2 In ERISA, Congress authorized employers to create for their employees welfare benefit plans, including health and disability plans. See 29 U.S.C. Sec. 1002(1). The employer may create or "fund" these plans in any one of three ways: (1) the employer absorbs the entire risk of loss, thereby becoming a self-insurer, (2) the employer purchases a group insurance policy from a commercial insurance company, or (3) the employer self-insures to a certain monetary amount and purchases from an insurance company a so-called "stop loss" policy to cover any claim over that amount. Entex used the second manner of funding its plan 3 The reason why Dedeaux did not pursue this tack is obvious--Dedeaux sought $500,000 in exemplary damages, but ERISA neither expressly nor implicitly authorizes such an award. See 29 U.S.C. Secs. 1109(a) & 1132(a); Massachusetts Mut. Life Ins. Co. v. Russell, --- U.S. ----, 105 S.Ct. 3085, 3094, 87 L.Ed.2d 96 (1985); Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1216 (8th Cir.), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384 (1981). Mississippi common law, however, authorizes such an award in certain circumstances. See Tideway Oil Programs, Inc. v. Serio, 431 So.2d 454, 460 (Miss.1983) (fraud); Bryan Constr. Co. v. Thad Ryan Cadillac, Inc., 300 So.2d 444, 449 (Miss.1974) (fraud) 4 Benefits under the Mississippi Workers' Compensation Law, Miss.Code Ann. Secs. 71-3-1 to 71-3-113 (1973 & 1984 Supp.) are not at issue in this case. Entex appears to have procured the disability policy to include benefit coverage supplemental to the compensation statute 5 In finding that ERISA preempted Dedeaux's claims, the district court apparently did not consider the manner in which the saving clause operated to limit the preemption clause in this case. It dismissed Dedeaux's case merely upon the breadth of the preemption clause 6 See 29 U.S.C. Sec. 1132(a) (creating cause of action for breach of fiduciary duty, wrongful termination of benefits, and wrongful failure to pay benefits)	{ "pile_set_name": "FreeLaw" }
Filed: August 24, 1998 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 95-5568 (CR-94-453-DKC) United States of America, Plaintiff - Appellee, versus Linwood Douglas Thorne, Defendant - Appellant. O R D E R The court amends its opinion filed August 10, 1998, as follows: On the cover sheet, section 7, lines 1-2 -- the law firm for David Lease is corrected to read "STEIN, SPERLING, BENNETT, DE JONG, DRISCOLL, GREENFEIG & METRO, P.C., Rockville, Maryland ." For the Court - By Direction /s/ Patricia S. Connor Clerk PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 95-5568 LINWOOD DOUGLAS THORNE, Defendant-Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Herbert N. Maletz, Senior Judge, sitting by designation. (CR-94-453-DKC) Argued: October 30, 1997 Decided: August 10, 1998 Before WIDENER, ERVIN, and WILKINS, Circuit Judges. _________________________________________________________________ Vacated and remanded by published opinion. Judge Ervin wrote the opinion, in which Judge Widener and Judge Wilkins joined. _________________________________________________________________ COUNSEL ARGUED: David Warren Lease, STEIN, SPERLING, BENNETT, DE JONG, DRISCOLL, GREENFEIG & METRO, P.C., Rockville, Mary- land, for Appellant. Deborah A. Johnston, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. _________________________________________________________________ OPINION ERVIN, Circuit Judge: Linwood Douglas Thorne, who pled guilty to conspiracy to distrib- ute cocaine, raises several issues on direct appeal. We find merit in Thorne's first argument -- that the trial court failed to comply with Rule 11 of the Federal Rules of Criminal Procedure by neglecting to inform Thorne of the maximum sentence to which he was subject under the terms of his plea agreement -- and therefore need not address his other claims. We vacate Thorne's guilty plea and sentence and remand his case for further proceedings in accordance with this opinion. I. Defendant Thorne initially pled not guilty to a three-count indict- ment alleging conspiracy to distribute and to possess with intent to distribute a mixture containing cocaine base, possession with intent to distribute a mixture containing cocaine base, and the use of a firearm during and in relation to a drug trafficking offense. On March 27, 1995, after a jury had been empaneled, Thorne entered into a plea agreement with the United States. In the agreement, Thorne agreed to plead guilty to the conspiracy count in exchange for dismissal of the other two counts and the government's recommendation that he be sentenced at the low end of the applicable guidelines. The parties also stipulated to a base offense level of 36, to be increased by two levels for possession of a firearm and decreased by two levels for accep- tance of responsibility. They agreed that no other guideline factors applied to Thorne. The court then conducted a Rule 11 hearing, at which it described the minimum sentence Thorne could receive as 188 months and the maximum as 235 months. The court stated on three occasions that this maximum could be increased to a life sentence if Thorne had a prior criminal record, but noted that pretrial services said Thorne did not have a record, though pretrial services could be wrong. During the hearing, the court established that Thorne was compe- tent to plead, and then queried Thorne as to the accuracy of the state- 2 ment of facts attached to the plea agreement. Thorne stated that his alleged co-conspirators had "made a deal" for drugs and that he was just holding the crack for them, but he also agreed that the stipulated facts were correct, and that he knew about the crack and had agreed to supply it to his co-defendants. The court also asked the Assistant U.S. Attorney to explain the essential elements of the offense and what the U.S. Attorney's office was prepared to prove at trial. The court then clarified that the U.S. Attorney would dismiss the last two counts of the indictment, and asked whether Thorne understood that. It also noted that there had been extensive discussion, and asked whether Thorne still wanted to plead guilty. It noted again the sub- stantial nature of the sentence, even at the low end of the guidelines, and asked if Thorne still wanted to plead guilty. Thorne answered all these questions affirmatively. The court had previously ascertained that Thorne understood the constitutional rights he was waiving by pleading guilty. After the court had accepted Thorne's guilty plea, the Assistant U.S. Attorney brought to the court's attention that Thorne would also be subject to a mandatory five-year term of supervised release. The court did not describe the nature of supervised release beyond noting that it was the guideline equivalent of probation. The court did not ask Thorne whether he still wished to plead guilty after the Assistant U.S. Attorney raised the issue of supervised release. On May 8, 1995, approximately six weeks after the Rule 11 hear- ing, Thorne, acting pro se, requested leave of the court to withdraw his guilty plea, alleging ineffective assistance of counsel. The court ordered both Thorne's defense attorney, Ponds, and the U.S. Attorney to respond to Thorne's motion. Ponds defended his actions, and the United States opposed the motion to withdraw the plea. Without opin- ion, the district court denied Thorne's request to withdraw his plea. During sentencing, Ponds continued to represent Thorne. Thorne disputed portions of the pre-sentence report that were immaterial to sentencing and asked for a new attorney. The court denied his request, but noted that he would have new counsel on appeal. In fact, the court directed Ponds to file an appeal that day. The court sentenced Thorne to 188 months, which was the lowest permissible sentence under the guidelines, plus five years of supervised release and a fifty dollar spe- 3 cial assessment. As the court instructed, Ponds then filed this appeal, which we have jurisdiction to entertain under 28 U.S.C. § 1291. II. We review the adequacy of a Rule 11 proceeding de novo. United States v. Good, 25 F.3d 218, 219 (4th Cir. 1994). Rule 11 violations are subject to a harmless error standard. United States v. DeFusco, 949 F.2d 114, 117 (4th Cir. 1991); Fed. R. Crim. P. 11(h). III. Thorne first argues that the district court erred by not informing him that his sentence would include a term of supervised release and by not describing to him the nature of supervised release before accepting his guilty plea. Rule 11(c)(1) requires that the court inform the defendant of "the maximum possible penalty provided by law, including the effect of any special parole or supervised release term . . . ." Fed. R. Crim. P. 11(c)(1). A district court's failure to inform a defendant that his sentence will incorporate a term of supervised release and its further failure to explain the significance of supervised release is error. Good, 25 F.3d at 220; Moore v. United States, 592 F.2d 753, 756 (4th Cir. 1979). Failure to comply with the dictates of Rule 11 is harmless, however, if the failure does not violate a defendant's substantial rights. United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995). In determining whether the district court's errors affected substan- tial rights, the appellate court will consider (1) what the defendant actually knows, based on an affirmative indication in the record, at the time he pleads guilty; (2) what information would have been added to the defendant's knowledge by compliance with Rule 11; and (3) how the additional or corrected information would likely have affected the defendant's decision. Id. (holding failure to inform defen- dant of mandatory minimum sentence to be reversible error). "If a review of the record indicates that the oversight`influenced the defen- dant's decision to plead guilty' and `impaired his ability to evaluate with eyes open the direct attendant risks of accepting criminal respon- 4 sibility,' then substantial rights were violated." Id. at 402-403 (quot- ing United States v. Padilla, 23 F.3d 1220, 1221 (7th Cir. 1994)). Thorne may have known that he was subject to five years of super- vised release because his plea agreement contained notice of it, but he did not know of the nature of supervised release or of the conse- quences attendant on its violation. Good, 25 F.3d at 220 (failure to explain effect of supervised release is error even if defendant is aware he must serve a term of supervised release); United States v. Garcia- Garcia, 939 F.2d 230, 232-33 & n.3 (5th Cir. 1991) (characterizing supervised release as restraint on liberty because of potential for rein- carceration without credit for time served on supervised release). Though we have declined to go as far as the Seventh Circuit in endorsing a presumption that a Rule 11 failure affects the defendant's decision to plead, see Goins, 51 F.3d at 403 (citing Padilla, 23 F.3d at 1222), in this case Thorne was unable to "evaluate with eyes open the direct attendant risks of accepting criminal responsibility." The district court's failure to inform him of the maximum sentence to which he was subject thus violated his substantial rights. See, e.g., Padilla, 23 F.3d at 1223 (substantial rights violated when defendant receives longer sentence than maximum court advised him he could receive during Rule 11 hearing); United States v. Roberts, 5 F.3d 365, 369 (9th Cir. 1993) (same); United States v. Syal, 963 F.2d 900, 906 (6th Cir. 1992) (same). Contrary to the government's assertions, the district court's over- sight in Thorne's case was not harmless error as outlined in Good: "[f]ailure to discuss the nature of supervised release is harmless error if the combined sentence of incarceration and supervised release actu- ally received by the defendant is less than the maximum term he was told he could receive." 25 F.3d at 220; see also Padilla, 23 F.3d at 1223; United States v. Osment, 13 F.3d 1240, 1243 (8th Cir. 1994) (en banc); Roberts, 5 F.3d at 369; Syal , 963 F.2d at 906. The United States attempts to shoehorn Thorne's case into the Good harmless error rubric by noting that the district court informed Thorne that the maximum penalty he could receive under the guidelines was life in prison if he had a prior criminal record. This argument is unavailing. The district court stated Thorne could receive life only if he had a prior record; logically, Thorne would have known he had no record and was therefore subject to a maximum sentence of 235 months. 5 The maximum term Thorne understood he could receive was there- fore less than his actual sentence of 248 months (188 months plus five years (60 months) of supervised release). In the event he violated supervised release, he would be subject to a further five years of incarceration, resulting in an even greater disparity. The district court's failure to inform Thorne of his supervised release term and the nature of supervised release was thus not harmless error under the Good rationale. We now turn to the question of appropriate remedy. In theory, the Rule 11 error could be rectified either by permitting Thorne to with- draw his guilty plea and plead anew or by remanding to the district court for the imposition of a lesser sentence to ensure Thorne's entire sentence would not exceed the maximum he was told he could receive during the plea colloquy, in this case 235 months. Moore, 592 F.2d at 756. The latter remedy is unavailable to us in this case, however, because Thorne would have to be resentenced below the applicable guideline range in order to bring his sentence under the 235-month maximum,* and the imposition of a minimum five-year term of supervised release is statutorily required under 18 U.S.C. § 3583(e)(3) (1994); 21 U.S.C. §§ 841(b), 846. Cf. Padilla, 23 F.3d at 1224 (vaca- tur of plea appropriate relief so defendant does not get lesser sentence than that commensurate with offense of conviction); United States v. Bounds, 943 F.2d 541, 546 (5th Cir. 1991) (prejudice may not be cured by eliminating supervised release term because term required _________________________________________________________________ * Thorne's guideline range was from 188-235 months. The court advised Thorne that the maximum sentence he could receive was 235 months, and sentenced him to 188 months in prison. In order to ensure his sentence fell below the maximum of which he was advised, Thorne would have to be resentenced to a maximum of 175 months in prison (175 + 60 = 235). We need not now decide whether his resentencing would have to take into account the "worst-case scenario" -- the addi- tional time he could be incarcerated should he violate supervised release, in order to be below the maximum term of which he was advised, see United States v. Osment, 13 F.3d 1240, 1243 (8th Cir. 1994) (en banc) (maximum penalty is worst case scenario, which assumes term of impris- onment, violation of term of supervised release on last day of release, and subsequent imprisonment for time period of supervised release term), because in either case the period of imprisonment falls below the guideline range. 6 by statute). Therefore, we order that Thorne be permitted to withdraw his guilty plea and to plead anew. Thorne's other arguments have become moot by virtue of his suc- cess on the merits of his first claim. VACATED AND REMANDED 7	{ "pile_set_name": "FreeLaw" }
603 F.2d 221 Petersonv.Hiniker Co. No. 78-1810 United States Court of Appeals, Eighth Circuit 4/24/79 1 D.Minn. DISMISSED	{ "pile_set_name": "FreeLaw" }
241 Miss. 75 (1961) 128 So.2d 877 FAVRE v. MEDDERS et al. No. 41817. Supreme Court of Mississippi. April 24, 1961. Simrall, Aultman & Pope, Hattiesburg; Colin L. Stockdale, Jackson, for appellants. 77 Scales & Scales, Jackson, for appellees. 78 ETHRIDGE, J. This is a child custody case, involving an appeal from a decree in a habeas corpus proceeding, in which petitioners (appellees) were awarded custody of a ten-month-old baby girl. The child, Kathleen Allison Medders, was born on October 2, 1959. Her parents were Vardaman J. Medders and Mrs. Imogene Kuhn Medders. At the time of her birth, the parents were separated. On June 6, 1960, the Chancery Court of the First Judicial District of Hinds County entered a decree in a divorce action filed by the father, with a cross-bill by the mother, in which he denied both of them a divorce. However, the decree awarded temporary custody of their four children to the paternal grandparents, Mr. and Mrs. Robert Edward Medders, with a minor exception. On June 10 appellees, Mr. and Mrs. Robert Edward Medders, filed in the Chancery Court of Lamar County a petition for writ of habeas corpus. The petition averred that, after the birth of Kathleen, "the mother gave consent and permission for the defendants (Mr. and Mrs. Willie B. Favre, appellants) to have the child in their possession"; and the father has attempted to get the child from defendants' possession, but without success. Petitioners averred they were the paternal grandparents of the child and had been awarded her temporary custody by the decree of June 6, 1960, of the Chancery Court of Hinds County. Resting on that decree, appellees, the paternal grandparents, sought custody. 79 The defendants, Mr. and Mrs. Willie B. Farve, answered, asserting they were not bound by the Hinds County decree, since neither they nor petitioners were parties to that action. Defendants stated that the child's father had deserted the mother during pregnancy, and the mother requested defendants to take and care for her; that since her birth they had done so, and they stood in loco parentis. Defendants denied that petitioners had ever contributed to or offered to provide anything for Kathleen, who had lived with them since her birth. They averred that all persons related to the child by blood had abandoned her, and its best welfare demanded that she remain with defendants, who were morally and financially able to care for Kathleen. A bill of exceptions reflects that at the hearing, before the Chancery Court of Lamar County, petitioners offered in evidence the decree of the Chancery Court of Hinds County, in the divorce proceedings. Defendants' objections to it were overruled, and the trial court held that the Hinds County decree vested exclusive jurisdiction with respect to Kathleen's custody in that court, no change of conditions was shown since June 6, and the court was obligated to enforce the custody provisions of the Hinds County decree. Defendants made a detailed tender of testimony by a number of witnesses. In summary, it would show that defendants are morally fit and financially responsible citizens of Lamar County, who are able to care for Kathleen. They love the child and want to adopt her. The mother, Mrs. Imogene Medders, told them in September 1959 that she was was expectant with child and was destitute. She urged defendants to take the child when born, care for her and adopt her. The mother has agreed to the adoption. After Kathleen's birth, the mother and child came to defendants' home in Lamar County, where defendants took care of them. The child has lived with defendants all of her life, from the day she left the hospital 80 around October 6, 1959, to the date of the bill of exceptions, August 18, 1960. The father had left the mother and child in destitute circumstances, and wilfully abandoned them. The tender of proof by defendants further showed that, in November 1959, with the consent of the mother, defendants had adoption papers prepared by an attorney, who forwarded them to Bruce Aultman, an attorney of Hattiesburg, for filing and handling the suit. However, the next day Aultman was seriously injured in an automobile accident, and incapacitated for several months. Hence the petition of the Farves for adoption of Kathleen was not filed until May 9, 1960, in the Chancery Court of Lamar County. A copy of the petition for adoption was attached to the defendants' answer, along with a consent by Kathleen's mother to the adoption. The father, Vardaman J. Medders, is a defendant in the adoption suit. Since he concluded that the Hinds County decree was binding, the chancellor sustained objections to the evidence tendered. The final decree of the Chancery Court of Lamar County, from which this appeal was taken, adjudicated that the decree of the Hinds County Chancery Court of June 6, 1960, was binding on it; no evidence showed any change in circumstances since that date; and petitioners were entitled to the relief sought, custody of the child. The trial court allowed an appeal but denied supersedeas. (Hn 1) The decree of the Hinds County Chancery Court of June 6, 1960, in the divorce proceedings, is not binding upon the appellants. Neither they nor appellees were parties to that decree, and could not have been. That was a suit between the mother and father, with both seeking and being denied a divorce. However, the court awarded therein temporary custody to appellees, the paternal grandparents. (Hn 2) For purposes of this appeal, we must assume the tender of proof by appellants 81 to be correct. If so, the child was in their custody in Lamar County since her birth, and at the time of the Hinds County decree of June 6, 1960. The child was not at that time within the jurisdiction of the Chancery Court of Hinds County. She was with the Farves in Lamar County. Furthermore, under appellants' tender of proof, the father had abandoned the child, and the mother had placed her with the Farves for custody and adoption. (Hn 3) Under those circumstances, the Farves had rights as persons in loco parentis to the child. That term means in the place of a parent. (Hn 4) A person in loco parentis may be defined as one who has assumed the status and obligations of a parent without a formal adoption. The rights, duties and liabilities of one standing in loco parentis are the same as those of a natural parent. Whether the relationship exists is a matter of intention and of fact to be deduced from the circumstances of the particular case. 67 C.J.S., Parent and Child, Secs. 71, 72. (Hn 5) A person standing in loco parentis is entitled to the custody of the child, as against third persons. Ibid., Sec. 73; 39 Am. Jur., Parent and Child, Sec. 61; Britt v. Allred, 199 Miss. 786, 25 So.2d 711 (1946); Bryant v. Brown, 151 Miss. 398, 414-415, 118 So. 184, 60 A.L.R. 1325 (1928); Bunkley and Morse's Amis, Divorce and Separation in Mississippi (1957), Sec. 8.16. (Hn 6) In accordance with the evidence submitted and tendered by appellants, defendants clearly stood in loco parentis to the child. Neither of her parents are parties to this suit. Petitioners, the paternal grandparents, claim under the Hinds County decree, which was rendered in a suit to which neither appellants nor appellees were parties, at a time when Kathleen was not within the jurisdiction of the Hinds County Chancery Court. Appellants cannot be deprived of their rights as persons in loco parentis by a decree in a suit to which they are not parties, and in which the court had no jurisdiction 82 over the person of the child. Appellants' rights accrued long before the Hinds County decree. Hence it was not necessary to show changed circumstances subsequent to it. Britt v. Allred, supra, is relevant. The infant, named Patsy Harsten, was an orphan. Her grandmother by ex parte petition was appointed guardian of her person and estate. She then brought a petition for habeas corpus against the Allreds, who had taken custody of the child after her parents' death and had since treated her and cared for her as their own. The trial court denied petitioner the requested relief, and this action was affirmed. The court held that appellees had lawfully taken the child into their custody and assumed the obligations to her incident to the parental relation. Hence they stood in loco parentis, with the same rights and duties as if they were her lawful parents. Fortinberry v. Holmes, 89 Miss. 373, 42 So. 799 (1907). It was held that a child's parents cannot be deprived by a judicial proceeding of their rights as persons in loco parentis without a notice of such proceedings and an opportunity to be heard. The decree by which the grandmother was appointed guardian was of no effect as against the defendants. By the same token, assuming defendants' tender of proof here as true, they had rights as persons in loco parentis to Kathleen. She was in their custody with her mother's consent after the father had abandoned her, and was not within the jurisdiction of the Hinds County Chancery Court. Hence that decree, in the divorce proceedings, to which appellants were not parties, was not binding on them. See Neal v. Neal, 238 Miss. 572, 119 So.2d 273 (1960); Montgomery v. Walker, 227 Miss. 552, 86 So.2d 502 (1956); Steele v. Steele, 152 Miss. 365, 118 So. 721 (1928). For these reasons, the decree of the trial court will be reversed, and the cause remanded for a full hearing on the issues raised by the pleadings and the evidence, and *83 for a decision consistent with the principles enunciated by this opinion. Reversed and remanded. McGehee, C.J., and Kyle, Gillespie and Jones, JJ., concur.	{ "pile_set_name": "FreeLaw" }
177 F.Supp.2d 31 (2001) UNITED STATES of America, v. Cornelius SINGLETON, Defendant. No. Crim. 00-0105(PLF). United States District Court, District of Columbia. December 4, 2001. 32 33 John Dominguez, Assistant U.S. Attorney, Washington, DC, for Government. James Lyons, Kellogg Williams & Lyons, Washington, DC, for defendant. OPINION PAUL L. FRIEDMAN, District Judge. This matter is before the Court on defendant Cornelius Singleton's motion to hold 21 U.S.C. § 841(b)(1)(A) and (B) and 21 U.S.C. § 848(b) unconstitutional on their face and on his separate motion to dismiss the Section 848(b) allegation from the indictment on the grounds that (1) it fails to allege specifically that any one predicate drug charge involved at least 300 times the quantity of a substance described in 21 U.S.C. § 841(b)(1)(B), and (2) the indictment improperly charges the element of leadership role. At a motions hearing on September 24, 2001, the Court heard argument on these and other motions. Upon consideration of the arguments presented by the parties in their briefs and at the hearing, the Court denies defendant's motion to hold 21 U.S.C. § 841(b)(1)(A) and (B) and 21 U.S.C. § 848(b) unconstitutional on their face and denies the motion to dismiss the Section 848(b) allegation from the indictment. I. BACKGROUND On March 16, 2000, a grand jury in the United States District Court for the District of Columbia returned a one-count indictment charging defendant Singleton and four other individuals with unlawfully, knowingly and willfully combining, conspiring, confederating and agreeing to distribute and possess with the intent to distribute a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, in the amount of five kilograms or more, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(ii), all in violation of 21 U.S.C. § 846. After two superseding indictments, returned on April 20, 2000 and on March 29, 2001, Mr. Singleton continued to face only a single count of conspiracy to possess and distribute cocaine. On August 9, 2001, a grand jury returned a third superseding indictment charging Mr. Singleton with an additional crime: unlawfully, knowingly and intentionally engaging in a continuing criminal enterprise ("CCE") by unlawfully, knowingly and intentionally engaging in violations of 21 U.S.C. §§ 841(a)(1), 843 and 846, all in violation of 21 U.S.C. § 848. According to the indictment, the predicate violations for the CCE charge are (1) the conspiracy charged in Count One; (2) many of the Overt Acts (specifically, Overt Acts 1, 3, 4, 5, 6, 7 and 8) listed in Count One; and (3) various other narcotics conspiracies in the District of Columbia, Tennessee, Georgia, Maryland and New York, all of which are said to be a part of the charged continuing criminal enterprise. II. DISCUSSION A. Section 841(b)(1)(A) and (B) Defendant Singleton argues that the Court should hold 21 U.S.C. 34 § 841(b)(1)(A) and (B) unconstitutional on their face in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. at 490, 120 S.Ct. 2348. Prior to this decision, the D.C. Circuitindeed, all of the federal circuitsconsidered drug quantity under Section 841(b)(1)(A) and (B) to be a sentencing factor that the judge would decide at sentencing by a preponderance of the evidence and not an element of the offense that must go to the jury and be proved beyond a reasonable doubt. See United States v. Williams, 194 F.3d 100, 102 (D.C.Cir.1999) (citing United States v. Lam Kwong-Wah, 966 F.2d 682, 685 (D.C.Cir.1992)). After Apprendi, however, courts can no longer treat drug quantity as a sentencing factor because in a particular case the judge could find by a mere preponderance that a sufficient quantity of drugs was involved to trigger the statutory minimums and maximums set forth in Section 841(b)(1)(A) or (B), thereby resulting in a prison term beyond the 20-year statutory maximum set forth in Section 841(b)(1)(C). The question of drug quantity therefore now is treated as an element of the offense that must be decided by the jury beyond a reasonable doubt. See United States v. Webb, 255 F.3d 890, 896 (D.C.Cir.2001). In United States v. Buckland, 259 F.3d 1157, 1165-68 (9th Cir.), reh'g en banc granted, 265 F.3d 1085 (2001), the Ninth Circuit held that in light of the Supreme Court's decision in Apprendi, Section 841(b)(1)(A) and (B) must be struck down as unconstitutional.[1] The court in Buckland reasoned that the structure of Section 841 and its legislative history support the conclusion that drug quantity is not an element of the offense but rather is a sentencing factor that Congress intended to be determined by the sentencing judge by a preponderance of the evidence. See id. at 1162-65. The panel concluded that to submit the matter of drug quantity to the juryas now required by Apprendi would violate the express congressional intent behind the statute, the intent to treat drug quantity as a sentencing factor. See id. at 1165-66. Based on what it concluded was Congress's clear intent, the panel in Buckland struck down Section 841 as unconstitutional in light of Apprendi. This Court does not agree with the result reached in Buckland or with the reasoning of the panel. This Court concludes that Section 841(b)(1)(A) and (B) are constitutional under Apprendi and that drug quantity can be considered as if it were an element of the offense that is put to the jury. To the extent that the reasoning of the panel in Buckland retains any value as persuasive precedent, the Court agrees with the five circuits that have reached the opposite conclusion. See United States v. McAllister, 272 F.3d 228 (4th Cir.2001); United States v. Cernobyl, 255 F.3d 1215, 1219 (10th Cir.2001); United States v. Martinez, 253 F.3d 251, 256 n. 6 (6th Cir.2001); United States v. Brough, 243 F.3d 1078, 1079-80 (7th Cir.2001); United States v. Slaughter, 238 F.3d 580, 582-83 (5th Cir.2000). These courts acknowledge 35 that while drug quantity traditionally was treated as a sentencing factor, nothing in the legislative history of Section 841 indicates that Congress clearly intended that the judge and only the judge determine drug quantity at sentencing by a preponderance of the evidence. It is equally likely that the congressional purpose behind the inclusion of drug quantities in Section 841 was to create a scheme in which larger amounts of drugs yielded longer sentences regardless of who decided the amount and under what burden. See United States v. Vazquez, 271 F.3d 93 (3d Cir.2001) (en banc) (Becker, C.J., concurring). Treating quantity as an element of the offense therefore does not conflict with this broader legislative intent. Moreover, the statute at issue in Apprendi contained an explicit provision requiring that the judge find by a preponderance of the evidence those facts that would enhance the sentence beyond the statutory maximum. See Apprendi v. New Jersey, 530 U.S. at 491, 120 S.Ct. 2348. By contrast, Section 841 contains no equivalent provisiona significant omission in light of the procedural protections of Apprendi. See United States v. McAllister, 272 F.3d 228, 232-33. As Judge Easterbrook has written: If Congress had specified that only judges may make the findings required by § 841(b), or that these findings must be made by a preponderance of the evidence, then § 841 would create a constitutional problem. But the statute does not say who makes the findings or which party bears what burden of persuasion. Instead the law attaches effects to facts, leaving it to the judiciary to sort out who determines the facts, under what burden. It makes no constitutional difference whether a single subsection covers both elements and penalties, whether these are divided across multiple subsections (as § 841 does), or even whether they are scattered across multiple statutes. ... Apprendi holds that the due process clauses of the fifth and fourteenth amendments make the jury the right decisionmaker ..., and the reasonable doubt standard the proper burden, when a fact raises the maximum lawful punishment. How statutes are drafted, or implemented, to fulfil that requirement is a subject to which the Constitution does not speak. United States v. Brough, 243 F.3d at 1079; see also United States v. Cernobyl, 255 F.3d at 1219; United States v. Slaughter, 238 F.3d at 582-83. Although the D.C. Circuit has not squarely addressed this issue, several of the court's decisions suggest that our Circuit like the Fourth, Fifth, Sixth, Seventh and Tenthwould conclude that Section 841(b)(1)(A) and (B) are constitutional. With respect to Section 841(b)(1)(A) and (B), the D.C. Circuit has held that "the Government must state the drug type and quantity in the indictment, prove the relevant drug quantity to the jury, and prove the relevant drug quantity beyond a reasonable doubt," clearly indicating that after Apprendi courts in this jurisdiction should treat drug quantity as if it were an element of the offense, not a sentencing factor. United States v. Webb, 255 F.3d at 896 (citing United States v. Fields, 242 F.3d 393, 396 (D.C.Cir.2001) ("Fields I")); see also United States v. Fields, 251 F.3d 1041, 1043 (D.C.Cir.2001) ("Fields II"). The position adopted by this Circuit is consistent with the majority of the circuits that have addressed this issue and not with the analysis in Buckland. Based on the foregoing, the Court denies defendant Singleton's motion to hold Section 841(b)(1)(A) and (B) facially unconstitutional. 36 B. Section 848(b) Defendant Singleton has filed two motions addressing Count Two of the superseding indictment which charges Mr. Singleton with operating a continuing criminal enterprise in violation of 21 U.S.C. § 848. 1. Apprendi Argument In his first motion, the defendant argues that like Section 841(b)(1)(A) and (B), Section 848(b) must be held unconstitutional because the legislative history and statutory structure of Section 848 make clear that Congress intended the factors enumerated in Section 848(b) to be sentencing factors that the judge must decide by a preponderance of the evidence. Defendant argues that the Section 848(b) factors cannot be put to the jury because treating them as elements of the offense would run contrary to the will of Congress. The Court rejects this Buckland-type Apprendi analysis for the reasons previously stated. But there is more to defendant's Apprendi argument. To convict a defendant of operating a continuing criminal enterprise under Section 848(a) and (c), the government must show that (1) the defendant has committed violations of the federal drug laws, (2) these violations are part of a continuing series of violations, (3) which are undertaken by the defendant in concert with at least five others, (4) with respect to whom the defendant "occupies a position of organizer, a supervisory position, or any other position of management," and (5) the defendant obtains substantial income or resources from the continuing series of violations. 21 U.S.C. § 848(c); see United States v. Hoyle, 122 F.3d 48, 50 (D.C.Cir.1997). If the jury finds these elements beyond a reasonable doubt, the defendant faces a minimum sentence of 20 years (30 years if there is a prior felony drug conviction) and a maximum of life in prison. See 21 U.S.C. § 848(a). Section 848(b), however, requires the court to sentence a defendant convicted of engaging in a continuing criminal enterprise to a mandatory term of life imprisonment if certain additional facts are proven, specifically if: (1) such person is the principal administrator, organizer, or leader of the enterprise or is one of several such principal administrators, organizers, or leaders; and (2)(A) the violation referred to in [21 U.S.C. § 848(c)(1)] involved at least 300 times the quantity of a substance described in [21 U.S.C. § 841(b)(1)(B)], or (B) the enterprise, or any other enterprise in which the defendant was the principal or one of several principal administrators, organizers, or leaders, received $10 million dollars in gross receipts during any twelve-month period of its existence for the manufacture, importation, or distribution of a substance described in [21 U.S.C. § 841(b)(1)(B)]. 21 U.S.C. § 848(b) (emphasis added). The question under Apprendi is whether Section 848(b), which carries a mandatory life sentence, sets out a separate offense that must be separately charged and proved to a jury beyond a reasonable doubt or whether it contains only sentencing factors that may be considered by the Court after conviction and determined by a preponderance of the evidence. The Court in Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. at 490, 120 S.Ct. 2348. Stated another way, Apprendi stands for the proposition that when a fact increases the defendant's punishment beyond the maximum allowed by 37 a statute, that fact is treated like an element of the offense and must be proved to the jury beyond a reasonable doubt. Defendant argues that the requirement that a mandatory life sentence be imposed after conviction implicates the protections of Apprendi. In support of his argument, defendant cites cases from the Sixth Circuit holding that Apprendi applies to facts increasing the mandatory minimum term of imprisonment. See United States v. Ramirez, 242 F.3d 348, 351 (6th Cir.2001); United States v. Flowal, 234 F.3d 932, 937 (6th Cir.2000). In those cases, the Sixth Circuit held that there is a "substantial difference in penalty based on drug quantity when a statute moves the maximum penalty of 20 or 30 years to life to a mandatory minimum penalty of the same length," that is, when instead of setting the maximum sentence available, the statute requires the judge to impose a mandatory 20-year, 30-year or life sentence. United States v. Ramirez, 242 F.3d at 351. Similarly, the difference between a statute permitting a sentencing judge to consider life imprisonment and one requiring the judge to impose it is significant because once the trial judge makes a determination as to the weight of the drugs or other facts that trigger the mandatory life provision of the statute, that judicial determination takes any discretion the judge would otherwise have to impose a sentence below life. See United States v. Flowal, 234 F.3d at 937. The view of the Sixth Circuit is consistent with Justice Thomas's concurring opinion in Apprendi in which he wrote: "What matters is the way by which a fact enters into the sentence. If a fact is by law the basis for imposing or increasing punishmentfor establishing or increasing the prosecution's entitlementit is an element." Apprendi v. New Jersey, 530 U.S. at 521, 120 S.Ct. 2348 (Thomas, J., concurring). Justice Thomas went on to state: But it is equally true that his expected punishment has increased as a result of the narrowed range and that the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish. The mandatory minimum "entitl[es] the government," ... to more than it would otherwise be entitled (5 to 10 years, rather than 0 to 10 and the risk of a sentence below 5). Thus, the fact triggering the mandatory minimum is part of "the punishment sought to be inflicted," ...; it undoubtably "enters into the punishment" so as to aggravate it, ... and is an "ac[t] to which the law affixes ... punishment." Id. at 522, 120 S.Ct. 2348 (internal citations omitted). Defendant argues that by bringing a charge under Section 848(b) and invoking its mandatory life requirement, the prosecutor is thereby "empowered ... to require the judge to impose a higher punishment than [the judge] might wish" and to which the statute otherwise entitles the government. Id. Defendant contends that the factors in Section 848(b) therefore must be treated like elements of the offense that must be proved to the jury beyond a reasonable doubt. The express holding of Apprendi does not lead ineluctably to the conclusion reached by the Sixth Circuit, and defendant's position arguably runs up against the Supreme Court's earlier decision in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). McMillan involved a statute that required the sentencing judge to impose a mandatory sentence of at least five years if the judge concluded by a preponderance of the evidence that the defendant "visibly possessed a firearm" during the commission of certain specified offenses. Id. at 81, 106 38 S.Ct. 2411. The Supreme Court held that the Pennsylvania statute was constitutional because it "neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it...." Id. at 87-88, 106 S.Ct. 2411. While Justices Thomas and Scalia in Apprendi seemed willing to overrule McMillan, the other three justices constituting the majority of the Court in Apprendi did not go that far, expressly stating that they were not then prepared to revisit the decision in McMillan. See Apprendi v. New Jersey, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. In view of McMillan, the five other circuits that have addressed the issue disagree with the Sixth Circuit's analysis and conclude that facts that trigger a mandatory minimum sentence do not implicate Apprendi so long as the maximum sentence remains the same; in their view, the fact that the sentence is made mandatory in one provision of the statute but not in another is irrelevant. See United States v. Hill, 252 F.3d 919, 921-22 (7th Cir.2001); United States v. Harris, 243 F.3d 806, 809 (4th Cir.2001); United States v. Robinson, 241 F.3d 115, 120-22 (1st Cir.2001); United States v. Keith, 230 F.3d 784, 787 (5th Cir.2000); United States v. Smith, 223 F.3d 554, 565 (7th Cir.2000); United States v. Aguayo-Delgado, 220 F.3d 926, 932 (8th Cir.2000). The Seventh Circuit's opinion in Smith is the only one to involve a mandatory life sentence. It seems to this Court that a mandatory life sentence as required under Section 848(b) is a punishment different in kind from the mandatory minimum sentence required by the type of statute at issue in McMillan and considered by the various circuits. When a mandatory minimum is involved, the judge's sentencing discretion is decreased but some sentencing discretion remains. By contrast, if the judge makes the necessary findings under Section 848(b), the statuteand the prosecutor's decision to invoke ittakes away all sentencing discretion and compels the judge to conclude that the only available sentence is life in prison. Thus, while McMillan is relevant to any Apprendi analysis of Section 848(b), McMillan's rationale does not, as the Seventh Circuit has suggested, apply "with equal force" to Section 848(b). See United States v. Smith, 223 F.3d at 566. Fortunately, the matter need not be resolved in this case. Count Two of the superseding indictment here closely tracks the indictment in United States v. Tommy Edelin, et al. In the final paragraph of the CCE count in this case, the grand jury has charged: Further, the defendant Cornelius Singleton, also known as Chico, also known as Neal, was the principal administrator, organizer, supervisor, and leader of the criminal drug enterprise, which involved the possession with intent to distribute and the distribution of quantities of a mixture and substance containing a detectable amount of cocaine, a Schedule II narcotic drug controlled substance, and the quantity of said mixture and substance was 150 kilograms or more. April 9, 2001 Indictment at 11. Like the CCE count in Edelin, the indictment here cites both 21 U.S.C. § 848(a) and 21 U.S.C. § 848(b) in support of the single CCE charge. As in Edelin, it specifies the quantity of drugs involved in the criminal drug enterprisein Edelin 1.5 kilograms or more, see Edelin Indictment at 33; in this case, 150 kilograms or more. See April 9, 2001 Indictment at 11. Furthermore, as in Edelin, the indictment in this case intermingles the role in offense language 39 of Section 848(c) with the language of Section 848(b): Edelin and Singleton are both described as "principal administrator, organizer, supervisor, and leader" of the continuing criminal enterprise. See Edelin Indictment at 33; April 9, 2001 Indictment at 11. In the Edelin case, Judge Lamberth instructed the jury that there were seven separate elements that had to be proved beyond a reasonable doubt for the jury to convict, including two separate elements relating to role in offenseone derived from Section 848(c) and the other from Section 848(b)and one relating to drug quantity: 4. That the defendant occupied a position of organizer, supervisor, or some other position of management with respect to these five or more other persons, either named or unnamed in the indictment;[2] * * * * * * 6. That the defendant was a principal administrator, organizer, or leader of the enterprise or one of several such principal administrators, organizers, or leaders;[3] and 7. That the enterprise was involved in the distribution of quantities of a mixture and substance containing a detectable amount of cocaine base, also known as "crack," in an amount of 1.5 kilograms or more. Furthermore, while the jury verdict form in Edelin did not ask the jury to make specific findings regarding Tommy Edelin's role in the offense, it did ask the jury to make a specific finding regarding the amount of cocaine base involved in the continuing criminal enterprise. See Edelin Jury Verdict Form at 4. As defendant points out, and as the Edelin indictment and jury instructions corroborate, it is the practice in this jurisdiction to charge in the indictment and to instruct the jury that Section 848(b) drug quantity and leadership role are elements of the Section 848 offense and must be proved beyond a reasonable doubt. Certainly the indictment as drafted in this case treats both drug quantity and leadership role as elements of the offense. Defendant also statesand the government nowhere disputes this assertionthat it has been the practice in this jurisdiction to require the jury to memorialize its decisions with respect to both CCE drug quantity and leadership role on a special verdict form. See Defendant Singleton's Memorandum in Support of Motion to Hold 21 U.S.C. §§ 841(b)(1)(A) and (B) and 21 U.S.C. § 848(b) Unconstitutional on Their Face at 2. While the Edelin verdict form did not require a specific finding on leadership role, the court of appeals' decision in Fields I makes plain that both drug quantity and leadership role have historically been presented to the jury in CCE cases even before Apprendi. See United States v. Fields, 242 F.3d at 396 (special verdict form required specific finding by jury regarding drug quantity on CCE count); id. at 398 (issue of leadership role submitted to jury on CCE count but not on RICO and drug conspiracy counts). In Fields the jury was deadlocked on the CCE count. See id. at 398. Thus, the court in Fields II addressed the remaining counts in the indictment and held only that Apprendi did not apply to leadership enhancements under the Sentencing Guidelines. 40 See United States v. Fields, 251 F.3d at 1043-44. While this Court is inclined towards the view that a mandatory life sentence is a penalty so different in kind from a permissible maximum sentence of up to life that Apprendi is implicated, a decision on this issue can be avoided by continuing to follow the practice in this jurisdiction. The jury in this case therefore will be instructed on the Section 848(b) drug quantity and on the Section 848(b) leadership role as if they were elements of the charged CCE offense. A special verdict form will require the jury to indicate whether it has unanimously found each beyond a reasonable doubt. If the jury fails to find any element beyond a reasonable doubt, the defendant will be acquitted of having engaged in a continuing criminal enterprise under Section 848.[4] 2. Alleged Improper Charging Of Drug Quantity And Leadership Role In his second Section 848(b) motion, the defendant argues that the indictment should be dismissed because it fails properly to charge that any particular one of the underlying predicate acts involved at least 300 times the drug quantity specified by Section 841(b)(1)(B)in this case, 150 kilograms of powder cocaine. See 21 U.S.C. § 848(b)(2)(A). The defendant also argues that the indictment is defective because it mischarges the "leadership role" element. The defendant is correct that the indictment's assertion that defendant Singleton was a "principal administrator, organizer, supervisor, and leader of the criminal drug enterprise" intermingles the elements of Section 848(a), as defined in Section 848(c) (a person who occupies "a position of organizer, a supervisory position, or any other position of management") with the language of Section 848(b) ("the principal administrator, organizer, or leader of the enterprise"). As indicated above, however, the matter is moot so long as the jury is instructed, as it was in Edelin, that these two leadership elements constitute two separate "elements" that must be proved beyond a reasonable doubt, and so long as the jury is asked in a special verdict form specifically to find each unanimously beyond a reasonable doubt. The second issue raised by the defendant relates to the indictment's allegation that "the criminal drug enterprise ... involved the possession [of] ... cocaine," the amount of which was "150 kilograms or more." Defendant Singleton's Memorandum at 6. The defendant argues that it is not enough under the plain language of 21 U.S.C. § 848(b) to charge that the continuing criminal enterprise involved the requisite quantity of drugs but it must be alleged that a particular predicate drug violation involved that quantity of drugs. His argument would make sense if Section 848(b)(2)(A)'s cross-reference was to Section 848(c)(2), but it is not; it is to Section 848(c)(1). Indeed, his entire argument is based on the (c)(2) language"such violation is a part of a continuing series of violations"rather than on the (c)(1) language "he violates any provision of this subchapter...." As the government points out, the plain meaning and intent of the statute are to the effect that the drug quantity is defined by the quantities aggregated throughout the life of the enterprise and not by any one single transaction 41 or predicate act. See United States v. Harris, 959 F.2d 246, 257 (D.C.Cir.1992). The Supreme Court's decision in Richardson v. U.S., 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), does not compel a different conclusion. There is no defect in the indictment. Defendant's motion to dismiss the Section 848(b) allegation from the indictment therefore will be denied. An Order consistent with this Opinion will issue this same day. SO ORDERED. ORDER Upon consideration of defendant Singleton's motion to hold 21 U.S.C. § 841(b)(1)(A) and (B) and 21 U.S.C. § 848(b) unconstitutional on their face and on his separate motion to dismiss the Section 848(b) allegation from the indictment, the government's oppositions, the defendant's replies, the arguments of counsel and the entire record herein, and for the reasons set forth in an Opinion issued this same day, it is hereby ORDERED that the motion to hold 21 U.S.C. § 841(b)(1)(A) and (B) and 21 U.S.C. § 848(b) unconstitutional on their face is DENIED; and it is FURTHER ORDERED that the motion to dismiss the Section 848(b) allegation from the indictment is DENIED. SO ORDERED. NOTES [1] Rehearing en banc was ordered on September 14, 2001. In the order granting rehearing en banc, the Ninth Circuit directed that Buckland "shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court." 265 F.3d 1085 (9th Cir. 2001). The case was heard by the en banc court and submitted on September 26, 2001. [2] This part of the instruction tracks the language of Section 848(c). [3] This part of the instruction tracks the language of Section 848(b), where additional requirements must be proved in order to trigger a mandatory life sentence. [4] Whether a Section 848(a) and (c) charge is a lesser included offense of a Section 848(b) charge is an academic question in view of the way in which the indictment has been drafted. For the government in this case, it is an all or nothing proposition: the defendant will either be convicted of violating Section 848 or acquitted.	{ "pile_set_name": "FreeLaw" }
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/17/2019 09:06 AM CST - 869 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 Andrew J. Olson, appellee, v. Kirsti M. Olson, appellant. ___ N.W.2d ___ Filed December 10, 2019. No. A-18-1210. 1. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court’s determinations of custody, child support, property division, alimony, and attorney fees; these determinations, however, are initially entrusted to the trial court’s discretion and will normally be affirmed absent an abuse of that discretion. 2. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a deci- sion which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judi- cial system. 3. Child Custody: Appeal and Error. In child custody cases, where the credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. 4. ____: ____. Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court’s determination will normally be affirmed absent an abuse of discretion. 5. Divorce: Child Custody. When custody of a minor child is an issue in a proceeding to dissolve the marriage of the child’s parents, child custody is determined by parental fitness and the child’s best interests. 6. Child Custody. When both parents are found to be fit, the inquiry for the court is the best interests of the children. - 870 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 7. ____. The paramount consideration in determining child custody is the best interests of the children. 8. ____. Neb. Rev. Stat. § 43-2923 (Reissue 2016) of Nebraska’s Parenting Act sets forth a nonexhaustive list of factors to be considered in deter- mining the best interests of a child in regard to custody. 9. ____. The best interests factors of Neb. Rev. Stat. § 43-2923 (Reissue 2016) include the relationship of the minor child to each parent; the desires and wishes of the minor child; the general health, welfare, and social behavior of the minor child; credible evidence of abuse inflicted on any family or household member; and credible evidence of child abuse or neglect or domestic intimate partner abuse. 10. ____. While the wishes of a child are not controlling in the determina- tion of custody, if a child is of sufficient age and has expressed an intel- ligent preference, the child’s preference is entitled to consideration. 11. ____. In child custody cases where the minor child’s preference was given significant consideration, the child was usually over 10 years of age. 12. ____. In addition to the “best interests” factors listed in Neb. Rev. Stat. § 43-2923 (Reissue 2016), a court making a child custody determination may consider matters such as the moral fitness of the child’s parents, including the parents’ sexual conduct; respective environments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent’s character; and the parental capacity to provide physical care and satisfy the educational needs of the child. 13. ____. In child custody cases, the preference of a mature, responsible, intelligent minor child regarding his or her custody should be given consideration, but should not be controlling. 14. Evidence: Appeal and Error. When evidence is in conflict, the appel- late court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. 15. Child Custody: Proof. Generally, before a court will permit the removal of a minor child from the jurisdiction, the custodial parent must satisfy the court that there is a legitimate reason for leaving the state and that it is in the minor child’s best interests to continue to live with that parent. 16. Child Custody: Visitation. In determining whether removal to another jurisdiction is in the children’s best interests, the trial court evaluates three considerations: (1) each parent’s motives for seeking or opposing - 871 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 the move, (2) the potential that the move holds for enhancing the quality of life for the children and the custodial parent, and (3) the impact such a move will have on contact between the children and the noncusto- dial parent. 17. Child Custody. Removal jurisprudence has been applied most fre- quently when a custodial parent requests permission to remove a child from the state and custody has already been established. 18. ____. In determining the potential that removal to another jurisdiction holds for enhancing the quality of life of the children and the custodial parent, a court should evaluate the following factors: (1) the emotional, physical, and developmental needs of the child; (2) the child’s opinion or preference as to where to live; (3) the extent to which the custodial parent’s income or employment will be enhanced; (4) the degree to which housing or living conditions would be improved; (5) the existence of educational advantages; (6) the quality of the relationship between the child and each parent; (7) the strength of the child’s ties to the present community and extended family there; (8) the likelihood that allowing or denying the move would antagonize hostilities between the two par- ents; and (9) the living conditions and employment opportunities for the custodial parent, because the best interests of the child are interwoven with the well-being of the custodial parent. Appeal from the District Court for Polk County: Rachel A. Daugherty, Judge. Affirmed in part, and in part reversed and vacated. Eddy M. Rodell for appellant. Steffanie J. Garner Kotik for appellee. Moore, Chief Judge, and Pirtle and Welch, Judges. Pirtle, Judge. I. INTRODUCTION Kirsti M. Olson appeals from the order of the district court for Polk County entered on November 26, 2018. The order dis- solved her marriage to Andrew J. Olson and awarded the par- ties joint legal custody of their minor child, Lukas Olson. The court awarded Andrew physical custody of Lukas and granted him permission to remove Lukas from Nebraska to Minnesota. - 872 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 For the reasons that follow, we affirm in part, and in part reverse and vacate. II. BACKGROUND Kirsti and Andrew married in April 2003 in Minneapolis, Minnesota, and later separated in 2007 or 2008 (we note there was inconsistent testimony as to the precise year). The parties had one child by marriage, Lukas, who was born in 2004. Soon after the parties separated, Kirsti moved back to Nebraska with Lukas, who was then almost 4 years old. Throughout the separation, Lukas resided with Kirsti in Nebraska, with her and Andrew attempting to work out summer and holiday visits for Lukas in Minnesota with Andrew. Andrew filed a complaint for dissolution of the parties’ marriage in the district court for Polk County in August 2017. The complaint requested dissolution of marriage, division of property, and custody of Lukas. At the time of the complaint, Andrew had continued to reside in Minnesota and no prior custody determination had been made. While the complaint did not specifically state such, Andrew also sought to remove Lukas from the State of Nebraska. In September 2017, Kirsti filed an answer and counterclaim seeking both temporary and permanent custody of Lukas, child support, and alimony. The matter was tried before the district court on November 20, 2018. At trial, because Kirsti was self-represented, the minor child, Lukas, then 14 years old, testified in chambers with only the judge and the court-appointed guardian ad litem pres- ent. Lukas testified that he had been attending middle school in Lincoln, Nebraska, since the second half of the previous school year and was previously involved in cross country, track, and soccer until he stopped due to foot injuries. Lukas further testified that he usually earned grades of A’s and B’s in school. Prior to attending middle school in Lincoln, Lukas attended elementary school in Osceola, Nebraska; was tempo- rarily homeschooled by Kirsti until near the end of his fifth - 873 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 grade year; and then remained in public school while living in Osceola. Lukas previously lived with his mother and grandparents but later moved with Kirsti to his uncle’s home in Columbus, Nebraska, when he was 13 years old, where he briefly attended seventh grade. He testified that his mother had been unem- ployed and staying home because she was “sick most of the time” before she saved up enough money for an apartment and found a job. At that point, Kirsti and Lukas moved to Lincoln where they remained up until trial. Lukas testified that he lived with his younger half brother (who is not Andrew’s biological son) and that the two would “fight a lot,” but he would often let him into his room “so that he [could] watch videos on YouTube using [Lukas’] hot spot.” Lukas noted that while living with his mother, he did not have internet, which made it difficult for him to do his homework. Lukas said that he would often call his father, Andrew, in order to get help with his homework and that Andrew provided him with a cell phone and “hot spot.” Lukas had his own room at his mother’s home, and he said that he would likewise have his own bedroom at his father’s house and that there would “prob- ably be more space there.” Lukas testified that when he stayed at his father’s house, it was the two of them and his father’s fiance, Carla Perdew (Carlie); occasionally, one of Carlie’s children from a previ- ous marriage would also be there. At his father’s house, Lukas played games, ate out often, and visited his grandparents and cousins whom he did not see often. Lukas testified that he had several family members in Nebraska, including two uncles, cousins, and his maternal grandparents, whom he “[got] along with . . . great.” Lukas further testified that both his parents had spoken negatively about each other, but he more frequently heard negative comments from his mother. He noted that this made him “feel really bad for [his] dad and just [made him] feel really uncomfortable.” He also testified that he frequently - 874 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 called his father on his cell phone and that sometimes when he got mad at his mother, she would take his cell phone away to prevent him from talking poorly about her to his father. On one occasion, Lukas overheard a discussion about a previous conversation where his mother threatened his father that she would not bring Lukas to visit without receiving money from him for travel expenses for her, Lukas, and Lukas’ younger half brother. When specifically asked if he had an opinion on where he wished to live, Lukas testified that he would like to live with his father during the school year and visit his mother on holidays and during the summer. He noted that he thought his father could “support [him] just a little bit better than Mom can,” had a more stable income, and did not yell at him. Lukas then stated that he thought living with his mother was “haz- ardous” because she was a “hoarder” and the home was dirty with clutter and animal waste. He testified that the cats had urinated on his mattress, on his clothes, and in his closet, and that he often could still smell it. On one occasion, Lukas went to school and when another student mentioned a smell, Lukas smelled his coat and discovered there was cat urine on it. Lukas testified that the environment at his father’s house was “[v]ery clean” and that he was not nervous about switching schools because he had “already done it like two times.” Andrew testified that he had resided in Minnesota since he was 17 and that he remained there throughout his entire marriage to Kirsti. Andrew testified that during his marriage to Kirsti, she gave birth to two children, but that only Lukas was his biological son. Around 2008, Kirsti and Andrew sepa- rated but remained legally married. Andrew testified that he was employed by the Federal Reserve Bank of Minneapolis where he had worked in technical support for the last 7 years. He worked overnights Thursday through Sunday, and most of his work was done from home with one required office visit approximately every 3 weeks. Andrew testified that despite his work schedule, he would nevertheless be available - 875 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 to Lukas in the evenings if granted custody. Andrew’s pay was between $23 and $24 per hour, and he worked 40 hours per week. Andrew testified that he provided health insurance for Lukas, that he voluntarily provided financial support to Kirsti for Lukas, that he and his parents had paid for most of Lukas’ involvement in extracurricular activities, and that he and his parents exclusively paid for travel expenses for Andrew to see Lukas. As to his relationship with Lukas, Andrew testified that he spoke with Lukas frequently on the cell phone and that they “certainly communicate every week.” When Lukas would visit, the two would “take [the] dog out,” visit family, go to mov- ies, and play games. Andrew noted that if Lukas were to come reside with him, there would be opportunities to participate in activities such as taekwondo and soccer, and that he would provide the finances and share information regarding any com- petitions or events with Kirsti. Andrew testified that he had several family members living nearby, including his parents, who had a close relationship with Lukas and were “always glad to see him” when he visited. He also noted that Lukas’ relationship with Carlie was also good. Andrew went on to testify about his home, that he and Carlie kept the place very clean, and that Lukas would have his own room there. Andrew testified that he had concerns about Lukas’ health with Kirsti because her apartment was “unsanitary” and that he believed her parenting style was “almost dictatorship in style.” Andrew believed that Kirsti’s use of chores as punish- ment was not healthy. Andrew testified that up until recently, he was unaware of most medical updates with Lukas, including discussion of the possibility Lukas may have attention deficit disorder. He also had not been given access to resources to check on Lukas’ progress in school. Andrew testified that there had been many instances where Kirsti had attempted to limit Lukas’ communication with him - 876 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 and that she often required Lukas to talk on speakerphone so she could hear what the two talk about. He noted that Lukas was free to contact Kirsti while visiting him. On cross-examination, Andrew denied ever agreeing that Carlie’s child from a previous marriage and Lukas would “never meet again” after an “incident” when Lukas was 6 years old. He further denied ever making a death threat to his previous ex-wife. He testified that he had in fact made Kirsti aware of his attention deficit disorder diagnosis as a child despite Kirsti’s insistence that he had only told her about it recently. Andrew further clarified previous statements regard- ing his relationship with his sister in stating that they were “not extremely close, [but] we’re not distant.” Andrew denied any current recreational drug use. He further explained that he had removed toxic relationships from his life and had friendships with coworkers. Andrew denied that Carlie ever used drugs or had a drug conviction. He further denied ever counseling Lukas to “bad mouth” Kirsti. Andrew denied ever neglecting family events to play video games. He also denied signing a document giving up parental rights to his child from a previ- ous marriage. Andrew went on to testify that he wanted to see Lukas have the opportunity to succeed, have access to extracurricular activities, develop a friend base, and “have a chance to grow up with the influence of his father for once in his life” outside of the controlling environment he believed was experienced with Kirsti. He further explained that he would utilize paren- tal discipline through discussion and restrictions rather than punishment through chores. Andrew stated his belief that it was not a parent’s responsibility to ensure their child inter- acts with others, but rather a child would “develop their own friend base.” Andrew’s father testified that he spoke with his son a couple times a month and that he and his wife were able to see Lukas once or twice when he came to visit Andrew. He testified that he had no concerns with the cleanliness of Andrew’s home. He - 877 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 went on to testify that Andrew’s relationship with Lukas was a “warm, easy-going, comfortable relationship” and that he had no concerns about Andrew’s parenting style. Andrew’s father noted that he and his wife had previously provided financial support for Lukas by purchasing him a computer, plane tick- ets, and providing additional funds so Lukas could participate in extracurricular activities. He noted that on one prior occa- sion, Kirsti had unexpectedly called and said Lukas would not be on a plane to Minneapolis after they were already on the way to the airport to pick him up. He further testified that Lukas and Carlie seemed to “get along comfortably.” Andrew’s mother testified that she and Andrew frequently texted each other and that they saw each other in-person a couple of times a month, on average. She testified that she enjoyed “going out,” reading, and doing activities with Lukas. She noted that Andrew and Lukas had good interaction while together and that she had no concerns. Andrew’s mother testi- fied she and her husband assisted with financial support for Lukas because they “felt that Lukas needed to have extra opportunities and involvement other than just the school.” Andrew’s fiance, Carlie, testified that she had resided with Andrew for the past 10 years and that her children had occa- sionally stayed there when Lukas visited. She testified that she did not have any felony or other criminal convictions. She went on to testify that both her and Andrew ensured Lukas was taking care of his hygiene, but it was mostly Andrew who did so. Carlie described Andrew’s relationship with Lukas as being “two peas in a pod” and that her personal relationship with Lukas was “great” despite not doing much together. She testified that she supported Lukas’ coming to live with her and Andrew full-time and that Andrew was able to provide a posi- tive environment for Lukas. On cross-examination, Carlie testified that her daughter had previously stayed with her and Andrew at times when Lukas was visiting and that Lukas may have had to sleep on the couch one night because there were not enough beds. She - 878 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 testified that she remembered an incident between Lukas and her son, when Lukas was 6 years old, where the two were “horse playing,” but that the two have largely been kept apart since then and the event was misunderstood. In her case in chief, Kirsti offered several exhibits, includ- ing Lukas’ report cards; notes from recent doctor, dentist, and eye appointments; and recent pay stubs. She also introduced a signed statement detailing her observations and care of Lukas over the years and both her and Lukas’ relationship with Andrew. Kirsti explained the photographs of her apartment that were introduced, noting that the closet of her apartment was left exclusively for the pets because otherwise they would “tear up the whole house.” She explained that the clutter and mess in the pictures was only temporary and that the condition of the apartment was not usually like that. She testified that she had a “problem with organization” and that certain areas of the apartment needed to be better organized. Kirsti testified that she hardly drank alcohol but Lukas did not like it when she did. She also noted that her new job was difficult and was the cause of a lot of the mess in her apartment. She explained that Lukas liked things clean, so she regularly had him clean his room because “he’s happier when it’s clean.” Kirsti testified that she was happy Lukas wanted to spend quality time with Andrew but that she believed she had done a good job parenting him and allowed Lukas to regularly con- tact Andrew. She testified that throughout their relationship, Andrew had ongoing issues with his previous wife regarding visitation and child support of another child, and that this required Kirsti to support them while she was pregnant with Lukas. She testified that Andrew once made a comment to her about his ex-wife stating, “If you leave me, I’m going to kill [my ex-wife],” and that this made her afraid when they separated. Kirsti testified that 5 or 6 months after their separation, Andrew began making voluntary child support payments. She - 879 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 noted that since she moved to Nebraska, it had been more dif- ficult to schedule visits between Andrew and Lukas, but the two largely worked it out. She testified that toward the end of their relationship, Andrew treated her poorly, causing her to become depressed, and that he frequently “spent all his time playing video games.” She testified that when Lukas was in fourth grade and fifth grade, he was struggling to get homework done so she decided to homeschool him temporarily, and that he had since done well in school. She noted that her parents had been sup- portive and that she and Lukas often visited nearby family. She testified that the decision to move to Lincoln was made because she wanted Lukas to have more of an opportunity to make friends and she needed more opportunities for work. She noted that Andrew’s parents had helped out financially with travel costs for Lukas to visit Andrew in Minnesota, but that they rarely initiated contact when Lukas was with her in Nebraska. She also testified that when Lukas was younger, Andrew was far less proactive in reaching out to talk to Lukas, and that he had become more interested as Lukas had gotten older. Kirsti addressed her concerns with Lukas’ living with Andrew’s fiance, Carlie, namely because she did not know her very well. She explained that she believed Carlie prioritized her own children over Lukas. For example, when Carlie’s daughter visited at the same time as Lukas, he was forced to sleep on the couch. When Carlie’s oldest daughter got married, Kirsti did not receive any child support around that time, which she believed to be because of the wedding costs. She testified about an incident between Carlie’s son and Lukas when they were younger and that law enforcement was involved but no charges were ever filed. On cross-examination, Kirsti was asked about the photo- graphs of her apartment and she explained that she believed Lukas intentionally took the photographs to make her “look bad.” She added that the photographs did not accurately - 880 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 reflect the day-to-day condition of the apartment. She went on to testify that she very rarely limited Lukas’ cell phone access and that she usually did so only when he was spend- ing too much time on the cell phone “watching YouTube videos.” On the rare occasion Kirsti had limited Lukas’ cell phone calls with Andrew, she noted that it was because they had been “talk[ing] for so long” and she had somewhere she needed to be with Lukas. She testified that she was trying to get Lukas involved in more extracurricular activities but that he was often “burnt out,” so balancing activities and school was difficult. Kirsti testified that she moved to Nebraska to be close to her family and that Andrew gave his permission for her to move. The court questioned Kirsti about her pets and their history of urinating on Lukas’ bed and clothing. Kirsti noted that she cleaned the mattress extensively and “the smell is gone” and that the animals had “gotten better.” She noted that she was “undecided” on whether “to get rid of the cats.” Although the district court found that Lukas had done well with Kirsti, it nevertheless found that his overall quality of life would be improved living with Andrew. The court awarded Andrew physical custody of Lukas, subject to reasonable par- enting time with Kirsti. The court further amended the pro- posed parenting plan regarding Kirsti’s summer parenting time. This appeal followed. III. ASSIGNMENTS OF ERROR Kirsti asserts the district court erred by (1) awarding Andrew sole physical custody of their child; (2) allowing Andrew to remove the child from the State of Nebraska “without perform- ing a removal analysis”; and (3) allowing her only extended summer parenting time with the child in odd-numbered years, rather than every year. IV. STANDARD OF REVIEW [1] In an action for the dissolution of marriage, an appel- late court reviews de novo on the record the trial court’s - 881 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 determinations of custody, child support, property division, alimony, and attorney fees; these determinations, however, are initially entrusted to the trial court’s discretion and will nor- mally be affirmed absent an abuse of that discretion. Mamot v. Mamot, 283 Neb. 659, 813 N.W.2d 440 (2012). [2] A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for dis- position through a judicial system. McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002). [3] In child custody cases, where the credible evidence is in conflict on a material issue of fact, the appellate court consid- ers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). V. ANALYSIS 1. Determination of Custody Kirsti’s first assignment of error is that the district court erred by awarding Andrew sole physical custody of Lukas. Kirsti’s primary assertion is that the court improperly rested a majority of its decision on the desires and wishes of Lukas, who testified that he would prefer to live with Andrew. [4-6] Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court’s determina- tion will normally be affirmed absent an abuse of discre- tion. Schrag v. Spear, supra. When custody of a minor child is an issue in a proceeding to dissolve the marriage of the child’s parents, child custody is determined by parental fit- ness and the child’s best interests. Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492 (2007). When both parents are found to be fit, the inquiry for the court is the best interests of the - 882 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 children. Id. Here, both parties concede, and the district court agreed, that both parents were fit for the custody and care of Lukas. [7-11] The paramount consideration in determining child custody is the best interests of the children. Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017). Neb. Rev. Stat. § 43-2923 (Reissue 2016) of Nebraska’s Parenting Act sets forth a nonexhaustive list of factors to be considered in determining the best interests of a child in regard to custody. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016). Such factors include the relationship of the minor child to each parent; the desires and wishes of the minor child; the general health, welfare, and social behavior of the minor child; credible evidence of abuse inflicted on any family or household member; and credible evidence of child abuse or neglect or domestic intimate partner abuse. See id. (citing § 43-2923(6)(b)). With regard to the desires of the child, the statute provides that courts should consider such “regard- less of chronological age, when such desires and wishes are based on sound reasoning.” § 43-2923(6)(b). The Nebraska Supreme Court in applying this provision has stated that while the wishes of a child are not controlling in the determination of custody, if a child is of sufficient age and has expressed an intelligent preference, the child’s preference is entitled to consideration. Floerchinger v. Floerchinger, supra (citing Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002), and Adams v. Adams, 13 Neb. App. 276, 691 N.W.2d 541 (2005)). The Supreme Court has also found that in cases where the minor child’s preference was given significant consideration, the child was usually over 10 years of age. Floerchinger v. Floerchinger, supra (citing Vogel v. Vogel, supra). [12] In addition to the factors of § 43-2923, the Supreme Court has held that a court may also consider matters such as the moral fitness of the child’s parents, including the parents’ sexual conduct; respective environ- ments offered by each parent; the emotional relationship - 883 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 between child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent’s character; and the parental capacity to provide physical care and satisfy the educational needs of the child. Schrag v. Spear, 290 Neb. 98, 112, 858 N.W.2d 865, 877 (2015) (citing Smith-Helstrom v. Yonker, 249 Neb. 449, 544 N.W.2d 93 (1996)). [13] Kirsti argues that in awarding physical custody of Lukas to Andrew, the district court abused its discretion by placing too much of an emphasis on Lukas’ preferences, and not enough on the current living conditions with her and the fact she had been Lukas’ primary caregiver for over 10 years. We disagree. While it is true we have held that “the prefer- ence of a mature, responsible, intelligent minor child regard- ing his or her custody should be given consideration, but [not] that it should be controlling,” and that other factors are to be considered under the direction of § 42-2923, see Adams v. Adams, 13 Neb. App. at 286, 691 N.W.2d at 549, nothing in the record of the present case indicates the district court abused its discretion by failing to consider the other factors required by statute. [14] The district court specifically laid out the best interests factors of § 43-2923(6) and relevant case law. Although the district court did not address each factor individually in the decree, the record indicates it adequately weighed the evi- dence before it and gave consideration to factors such as the unclean living conditions at Kirsti’s apartment (particularly the presence of urine and feces from the animals), the com- parative living arrangements at both Kirsti’s and Andrew’s homes, the relationship Lukas has with his father versus the sometimes tense relationship with his mother, and Kirsti’s occasionally controlling parenting style. The court found no credible evidence of abuse by either parent. The district court’s order also considered testimony by Kirsti regarding Andrew’s - 884 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 obsession with video games while the two were together, Andrew’s previous drinking habits and marijuana use, and an instance where Andrew made a comment about his previous ex-wife that Kirsti found to be threatening. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016). The district court also acknowledged, and considered, the fact that Kirsti had adequately provided for Lukas and his educational and emotional needs since she and Andrew separated nearly 10 years earlier. The district court was entitled to weigh all the evidence before it in conducting a best interests analysis. Furthermore, the district court did not abuse its discretion by placing significant weight on Lukas’ desires. When asked whether he had a preference on whether to live with his father or continue living with his mother, Lukas stated that he would prefer to live with his father. When asked the reasons for his preference, Lukas indicated that he still wanted to see his mother and his younger half brother during breaks but thought his father could support him better because “[h]e has more stable income [and] doesn’t ever yell at [him].” He indicated that his father was able to help him with homework and that he did not want “to live in such a hazardous environment any- more.” When asked why the environment with his mother was “hazardous,” he noted that she was a “hoarder,” the apartment was not clean, his mother would lose things, and it caused him “stress[].” Further, Lukas had previously testified that he had a good relationship with his father and Carlie and that he was not concerned about switching schools because he had previously done so and the adjustment was “pretty easy.” This is not a case where the minor child was unable to articulate an intelligent rationale for preferring to reside with one parent over the other. In Wild v. Wild, 15 Neb. App. 717, 746, 737 N.W.2d 882, 904 (2007), this court held the minor - 885 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 child’s preferences were not entitled to significant weight because she was unable to provide a “‘reasonable and per- suasive reason[] for her decision.’” When asked why she preferred to live with her mother, the child responded, “‘Uhm, because I think it’s, uhm — I think it’s a good choice because, uhm, I think I’ll be safer there than here.’” Id. at 745, 737 N.W.2d at 904. When asked to explain why she felt that way, the child testified, “‘It’s just a feeling that I get sometimes.’” Id. Here, as detailed above, Lukas clearly articulated a reason- able basis for his preference. The district court was entitled to give significant consider- ation to Lukas’ preferences, and it did not abuse its discretion in doing so. At the time of trial, Lukas was 14 years old, and the district court specifically found him to be “super bright,” “really smart,” and “very articulate.” In its order, the district court noted that “Lukas was very mature in his reasoning and his desires were well thought out.” Because the district court was entitled to give Lukas’ preferences consideration, and adequately considered the other factors of § 43-2923, we hold that the district court did not abuse its discretion in awarding Andrew physical custody of Lukas. 2. Removal of Minor Child Kirsti next argues that the district court erred in permit- ting Andrew to remove Lukas from the State of Nebraska. Kirsti asserts that the district court was required, and failed, to perform a removal analysis as set forth in Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), in deter- mining whether removal of the minor child was appropriate. The district court in this case noted in its decree: To a certain extent, I do think I’ll do some type of Farnsworth analysis. Even though the child lived in Minnesota when the parents were together, the child moved here. It’s still a removal from the state and I think I have to take that analysis into consideration, and I think the evidence . . . addresses those items. - 886 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 For the reasons that follow, we find that the district court, to the extent it was required to, did conduct an appropriate Farnsworth analysis under the circumstances and that it was not in error to award Andrew custody and permit Lukas to move with Andrew to his home in Minnesota. [15,16] In Farnsworth v. Farnsworth, supra, the Supreme Court established a detailed two-step process required before a custodial parent is permitted to remove a child from the State of Nebraska. The custodial parent must satisfy the court that there is a legitimate reason for leaving the state and that it is in the minor child’s best interests to continue to live with that parent. Hiller v. Hiller, 23 Neb. App. 768, 876 N.W.2d 685 (2016) (citing Farnsworth v. Farnsworth, supra). In determining whether removal to another jurisdiction is in the children’s best interests, the trial court evaluates three con- siderations: (1) each parent’s motives for seeking or opposing the move, (2) the potential that the move holds for enhancing the quality of life for the children and the custodial parent, and (3) the impact such a move will have on contact between the children and the noncustodial parent. Hiller v. Hiller, supra (citing Bird v. Bird, 22 Neb. App. 334, 853 N.W.2d 16 (2014)). Under the second “quality of life” prong, the Supreme Court enumerated nine factors to be taken into con- sideration. See Farnsworth v. Farnsworth, supra. Three years after Farnsworth, the Supreme Court reaffirmed its removal analysis in Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002), in a proceeding to modify the parties’ prior decree of dissolution. In Vogel, the mother sought permission to remove her minor children from the State of Nebraska to the State of Virginia, where her new husband had recently been trans- ferred by the U.S. Air Force. [17] Removal jurisprudence has been applied most fre- quently when a custodial parent requests permission to remove a child from the state and custody has already been estab- lished. Hiller v. Hiller, supra. Notably, this court has applied the Farnsworth removal analysis in situations where a prior - 887 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 custody determination has not been established. See, e.g., Kashyap v. Kashyap, 26 Neb. App. 511, 921 N.W.2d 835 (2018) (dissolution proceeding where temporary custody order had been established with mother and father was stationed out-of-state); Hiller v. Hiller, supra (dissolution proceeding where both parties resided in Nebraska at time of proceeding); Rommers v. Rommers, 22 Neb. App. 606, 858 N.W.2d 607 (2014) (dissolution proceeding where mother left Nebraska with child prior to filing of dissolution complaint). In Rommers, the parties were before the court on a dissolu- tion action whereby both parties sought custody of the minor child. Prior to the initiation of the dissolution and custody action in Nebraska, the mother had moved with the child to the State of Arizona without the father’s knowledge. In reversing the district court’s determination that Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), was inap- plicable, we held: If the Nebraska court system were to allow litigants to mesh original custody determinations and removal deter- minations in such a way as has occurred in this case, it would allow parents to leave the state with children before any filing occurred and without any repercussions and would allow parents to avoid any scrutiny under a removal analysis. The trial court should have first entered an order regarding custody and then conducted a proper Farnsworth removal analysis, which would take into account an appropriate parenting plan in accordance with the custody determination and decision regarding removal . . . . Rommers v. Rommers, 22 Neb. App. at 617, 858 N.W.2d at 616. Under Farnsworth, we first consider whether the custodial parent has a legitimate reason for leaving the state. Here, there is no dispute that Andrew has a legitimate reason for “leaving” the state, and this issue was conceded by Kirsti’s counsel during oral argument. Prior to this action, Andrew - 888 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 had been living in Minnesota since he was 17 years old, and both Kirsti and Lukas lived there with him prior to moving to Nebraska. Under Farnsworth, the court next considers the child’s best interests. In determining whether removal to another jurisdic- tion is in the child’s best interests, the trial court considers (1) each parent’s motives for seeking or opposing the move; (2) the potential that the move holds for enhancing the quality of life for the child and the custodial parent; and (3) the impact such a move will have on contact between the child and the noncustodial parent, when viewed in the light of reasonable visitation. Kashyap v. Kashyap, supra. See, also, Farnsworth v. Farnsworth, supra. (a) Each Parent’s Motives The first consideration is each parent’s motives for seeking or opposing the move. Both parties concede that there are legit- imate reasons for seeking and opposing the move of Lukas to Minnesota. Andrew has lived in Minnesota throughout most of his life. Kirsti has been living in Nebraska for the last 10 years. Both parties are employed in their respective home states. Therefore, we find that both parties have legitimate reasons to seek or oppose the move. (b) Quality of Life [18] Under the second consideration, the Supreme Court has enumerated nine factors to determine whether the pro- posed move will enhance the quality of life of the child and the custodial parent. See Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). Those factors to be considered are as follows: (1) the emotional, physical, and developmental needs of the child; (2) the child’s opinion or preference as to where to live; (3) the extent to which the custodial parent’s income or employment will be enhanced; (4) the degree to which housing or living conditions would be improved; (5) the existence of educational advantages; (6) the quality of - 889 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 the relationship between the child and each parent; (7) the strength of the child’s ties to the present community and extended family there; (8) the likelihood that allowing or denying the move would antagonize hostilities between the two parents; and (9) the living conditions and employment opportunities for the custodial parent, because the best inter- ests of the child are interwoven with the well-being of the cus- todial parent. Id. This list should not be construed as setting out a hierarchy of factors. Id. Depending on the circumstances of a particular case, any one factor or combination of factors may be variously weighted. Id. We will address each of these nine factors in turn. (i) Emotional, Physical, and Developmental Needs Our first consideration in assessing the extent the move would enhance the minor child’s quality of life is the impact it would have on the child’s emotional, physical, and devel- opmental needs. The evidence presented shows that Lukas has had a history of attention issues (namely attention defi- cit disorder) but has improved significantly over time in Kirsti’s care and now performs well in school. Nothing in the record suggests that Lukas would not continue to thrive in this regard under Andrew’s care; in fact, Lukas testified that Andrew often was available by cell phone to help Lukas with his homework. While Kirsti has adequately provided for Lukas physically in terms of food, medical care, shelter, and the like, there was evidence that her apartment was disorga- nized and unclean and that the cats had urinated on Lukas’ mattress, on his clothes, and in his closet on multiple occa- sions. Lukas testified that the environment at his mother’s apartment was “hazardous.” Andrew testified that Lukas had commented to him that fumes from the animals had often made him feel sick. Emotionally, Lukas has a close relationship with both par- ents. However, there is testimony that Kirsti’s parenting style - 890 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 is sometimes controlling and that she will impose chores as punishment, will take away Lukas’ cell phone if she believes he is talking negatively about her to Andrew, and will often talk negatively about Andrew herself. Overall, this factor weighs slightly in favor of removal. (ii) Child’s Opinion or Preference As discussed previously in the custody discussion of this opinion, Lukas expressed a preference to live with his father and provided several well-thought-out reasons for his prefer- ence. This factor weighs in favor of removal. (iii) Enhancement of Relocating Parent’s Income or Employment Both Kirsti and Andrew are already employed in their respective states and are not seeking removal to pursue alterna- tive employment opportunities. Both parties concede, and we agree, that because this is an initial custody determination, this is a nonfactor and is neutral. (iv) Degree to Which Housing or Living Conditions Would Be Improved The evidence shows that Lukas enjoys having his own room at both Andrew’s home in Minnesota and Kirsti’s apartment in Nebraska. The district court found, and the evidence shows, that Kirsti’s apartment is generally unclean and disorganized. The presence of three animals, which have a history of urinat- ing in Lukas’ room and on his clothing and mattress, adds to the uncleanliness. Andrew currently makes between $23 and $24 per hour and works full time. Kirsti currently earns $12 per hour and works full time; however, she has had periods of unemployment while Lukas was in her care. Lukas testi- fied that he believed Andrew could support him “just a little bit better” than Kirsti could. Based on the evidence comparing the conditions of their respective homes and employment, and the testimony that Lukas preferred a clean environment and - 891 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 referred to Kirsti’s home as “hazardous,” this factor weighs in favor of removal. (v) Existence of Educational Advantages At the time of trial, Lukas was attending eighth grade at a Lincoln middle school and was performing well, receiving grades of A’s and B’s in his classes. While there was no evi- dence presented suggesting the quality of education available in Minnesota, there was also no evidence suggesting that it would be inferior to what Lukas has received in Nebraska. Lukas overcame much of his attention issues after a brief period of homeschooling by Kirsti, and he receives significant help with his homework over the cell phone from Andrew. This factor is neutral. (vi) Quality of Relationship Between Child and Each Parent The lower court found, and the evidence suggests, that Lukas has maintained a close relationship with both of his parents. While Lukas has been in Kirsti’s custody since he was around 4 years old, he has also established a close relationship with Andrew through regular communication and visits. While Lukas has the occasional disagreement with Kirsti, his rela- tionship with both parents is overall healthy and loving. This factor is neutral. (vii) Strength of Child’s Ties to Present Community and Extended Family Lukas has lived with Kirsti for around 10 years and has developed a close relationship with his maternal grandpar- ents, whom he lived with for approximately 5 years while in Nebraska. While living with Kirsti, Lukas has also lived with his younger half brother, and although the two occasionally fight, they appear to have a normal sibling relationship. Lukas has also maintained a relationship with his maternal uncles and cousins. On Andrew’s side of the family, Lukas has been able to establish a close relationship with his extended family. - 892 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 When Lukas visits Andrew in Minnesota, he often does activi- ties with his grandparents and has gotten to know his older half brother. Lukas testified that he would like to see his pater- nal grandparents and cousins more frequently. While Lukas has lived in Nebraska for most of his life, he has made several moves and attended a number of schools in that time. Lukas testified that switching to a new school does not make him nervous because he had already done so more than once. The record reflects that Lukas is fortunate enough to have a close and loving relationship with both his maternal and paternal extended family. While a move to Minnesota would decrease Lukas’ connections to his maternal relatives, it would allow the opportunity to improve relationships with his pater- nal relatives. This factor is neutral. (viii) Likelihood That Allowing or Denying Move Would Antagonize Hostilities Between Parties The district court correctly noted that both parties have a close relationship with Lukas, and Kirsti and Andrew have been able to work together to coordinate opportunities for Lukas to visit Andrew in Minnesota. There is no evidence that allowing or denying the move would antagonize the parties. This factor is neutral. (ix) Well-Being of Custodial Parent The final “‘quality of life’” factor listed in Farnsworth v. Farnsworth, 257 Neb. 242, 250, 597 N.W.2d 592, 598 (1999), is consideration of the “living conditions and employment opportunities for the custodial parent, because the best inter- ests of the child are interwoven with the well-being of the custodial parent,” id. at 251, 597 N.W.2d at 599. Accord Hiller v. Hiller, 23 Neb. App. 768, 876 N.W.2d 685 (2016). This factor focuses largely on “how the proposed new living condi- tions and employment impact the well-being of the custodial - 893 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 parent.” Id. at 789, 876 N.W.2d at 699. Because this is a case where the parties have been living and working in their respec- tive states for several years, and neither party is seeking to relocate with the child, this is a nonfactor and is neutral. (x) Conclusion Regarding Quality of Life After our review of the record, we find that the district court was correct in finding that both parties are fit and capable par- ents. We also note that the court-appointed guardian ad litem for Lukas likewise found both Kirsti and Andrew to be fit and capable parents and expressed his belief that it would be in Lukas’ best interests to award custody in accordance with his preference. Furthermore, after reviewing the evidence in light of the Farnsworth factors, we find that, although Lukas has done well under Kirsti’s care, removal would enhance his qual- ity of life. (c) Impact on Noncustodial Parent’s Visitation When, as here, the parties live hundreds of miles apart, there will undoubtedly be an effect on the noncustodial parent’s visi- tation. However, Kirsti and Andrew have worked amicably to make the arrangement work and to facilitate visitation for the last 10 years. Regardless of whether or not removal is granted, Lukas will necessarily spend time traveling between the two homes. Permitting removal, therefore, would not increase the amount of time Lukas is required to travel or increasingly burden the parties to arrange visitation as they have previ- ously done. (d) Conclusion on Best Interests A de novo review of the record shows that both parties have a legitimate reason for seeking or opposing the move and that permitting removal would enhance the quality of life of Lukas. While the move will surely affect the amount of time Kirsti spends with Lukas, the parties have been able to work out a - 894 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 visitation schedule in the past, and the district court imposed an appropriate parenting plan to facilitate organized visits. The record demonstrates sufficient evidence that it is in Lukas’ best interests to move from Nebraska to Minnesota and that it was not in error for the district court to determine such. 3. Modification of Summer Parenting Time Kirsti’s final assignment of error is that the district court erred in modifying the portion of time allotted to her for sum- mer parenting time within the proposed parenting plan without any explanation for the modification. Both parties, and this court, agree. At trial, Andrew offered to the court as an exhibit a proposed parenting plan. In the event that Andrew was granted custody of Lukas, the plan called for Kirsti to have extended parent- ing time every summer with the parties alternating which half of the summer they would receive. In even-numbered years, Kirsti would have parenting time from mid-July until just prior to the start of the school year. In odd-numbered years, Kirsti would have from June 15 until July 30. In its decree, the district court noted it had modified the proposed parenting plan “by changing the portion of the summer parenting time.” This change, which can be seen in the modified parenting plan attached to the decree, shows the court crossed off the portion of the plan reading: “In the even-numbered years, the mother’s summer parenting time shall begin at noon on the ____ day of July and conclude at noon on the Friday immediately prior to the first day of school.” Section 43-2923(4) provides that “[i]f the court rejects a parenting plan, the court shall provide written findings as to why the parenting plan is not in the best interests of the child.” The district court gave no explanation for the modification, or why it would be in the best interests of Lukas, and we cannot see one evident from the record. Because the parties do not dispute, and we see no reason that Kirsti should not be granted extended parenting time every - 895 - Nebraska Court of Appeals Advance Sheets 27 Nebraska Appellate Reports OLSON v. OLSON Cite as 27 Neb. App. 869 summer, we reverse and vacate the modification to the summer parenting time provision of the proposed parenting plan and reinstate such without modification. VI. CONCLUSION We conclude that the district court did not err in award- ing custody of Lukas to Andrew and allowing Andrew to remove Lukas to the State of Minnesota. We reverse and vacate the modification to the summer parenting time provi- sion of the proposed parenting plan and reinstate such with- out modification. Affirmed in part, and in part reversed and vacated.	{ "pile_set_name": "FreeLaw" }
574 F.2d 164 UNITED STATES of Americav.Terry Dennis PALMER, Appellant. No. 77-2163. United States Court of Appeals,Third Circuit. Argued Jan. 12, 1978.Decided March 22, 1978.Certiorari Denied June 19, 1978.See 98 S.Ct. 3097. 1 George E. Schumacher, Federal Public Defender, by Thomas S. White, Asst. Federal Public Defender, Pittsburgh, Pa., for appellant. 2 Blair A. Griffith, U. S. Atty., Joel B. Strauss, Edward J. Schwabenland, Asst. U. S. Attys., Pittsburgh, Pa., for appellee. 3 Before ALDISERT and HUNTER, Circuit Judges, and CAHN,* District Judge. OPINION OF THE COURT 4 CAHN, District Judge. 5 This appeal presents the narrow issue of whether a criminal defendant, after entering a knowing and voluntary guilty plea, is entitled to a dismissal of the indictment because of the government's violation of Article IV(e) of the Interstate Agreement on Detainers (hereinafter "IAD"), 18 U.S.C. App. § 2 (1977 Supp.).1 Since we hold that he is not, we affirm the district court's denial of defendant's motion to dismiss the indictment. 6 Defendant Palmer was indicted by a federal grand jury on April 28, 1977, on two counts of forging and cashing a United States Treasury check as prohibited by 18 U.S.C. § 495. On May 25, 1977, defendant was sentenced on an unrelated state charge in the Court of Common Pleas of Erie County, Pennsylvania. On the same day he began serving that sentence in the Erie County Jail. On June 2, 1977, the federal government obtained custody of defendant by writ of habeas corpus ad prosequendum, issued pursuant to 28 U.S.C. § 2241(c)(5), and arraigned him in the United States District Court for the Western District of Pennsylvania. The defendant was then returned to the Erie County Jail. On June 22, 1977, defendant was transferred from the Erie County Jail to the Western Pennsylvania State Diagnostic and Correctional Institute at Pittsburgh, Pennsylvania ("Western Penn").2 On August 1, 1977, the federal government again took custody of defendant by writ of habeas corpus ad prosequendum. On that day, following a colloquy pursuant to Fed.R.Crim.P. 11, the adequacy of which is not in dispute, defendant pleaded guilty to both counts in the federal indictment. Thereafter he was immediately returned to Western Penn. 7 On August 14, 1977, defendant filed a motion to dismiss the indictment on the ground that his transfers from state custody to federal custody and then back to state custody violated Article IV(e) of the IAD. On August 26, 1977, the district court denied the motion and sentenced defendant to two years of imprisonment imposed concurrently with the state sentence. Defendant then filed this direct appeal. 8 The parties do not dispute that a violation of the IAD in fact took place. If defendant had raised this contention prior to pleading guilty, the indictment would have been dismissed with prejudice. United States v. Sorrell,562 F.2d 227 (3d Cir. 1977); United States v. Thompson, 562 F.2d 232 (3d Cir. 1977); United States v. Mauro, 544 F.2d 588 (2d Cir. 1976). The sole issue for decision is whether defendant, after pleading guilty without reservation, may thereafter complain about violations of Article IV(e) of the IAD. See United States v. Zudick, 523 F.2d 848, 851 (3d Cir. 1975); United States v. D'Amato, 436 F.2d 52, 53 (3d Cir. 1970). Cf. also, Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975). 9 Defendant pleaded guilty on August 1, 1977. At that time, the applicability of Article IV(e) to his situation was still in doubt because Sorrell and Thompson had not yet been decided. Defendant apparently made a rational and voluntary decision to accept the benefits of pleading guilty.3 Although he moved to dismiss the indictment before sentencing, he was not willing to surrender these benefits by seeking to withdraw his plea and "taking his chances" on the outcome of his IAD motion. By pleading guilty in this way, defendant waived his right to have the Article IV(e) claim considered. 10 Defendant contends the court lacked subject matter jurisdiction because the IAD provides the indictment "shall not be of any further force or effect" and entitles a defendant to dismissal "with prejudice" when Article IV(e) is violated. The defendant is correct that errors and defenses which go to the jurisdiction of the court to accept a guilty plea may be raised even after the plea has been entered. See e. g., Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); United States v. Hawthorne,532 F.2d 318, 321-2 (3d Cir. 1976), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976); United States v. Loschiavo, 531 F.2d 659, 662-3 (2d Cir. 1976). 11 However, the nature of defendant's rights under the IAD disposes of this contention. The Supreme Court has consistently held that even deprivation of constitutional rights occurring prior to the entry of a guilty plea may not be asserted in subsequent proceedings. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Brady v. United States, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). The IAD, on the other hand, constitutes nothing more than a set of procedural rules. The statutory right to dismissal due to an administrative violation of these rules is therefore not "fundamental", even though its impact on a defendant may be great. Cf. Blackledge v. Perry, supra, at 30, 94 S.Ct. 2098. 12 In our view, whether a claim is "jurisdictional" or not depends on the source and importance of the right asserted as well as its impact. We therefore hold that the violation of a statutory provision such as Article IV(e) is not sufficiently important to deny a court jurisdiction to entertain a guilty plea where the defendant fails to raise the issue in a timely manner. Strawderman v. United States, 436 F.Supp. 503 (E.D.Va.1977). Furthermore, while the impact of defendant's right to a dismissal under Article IV(e) may be great, it is no greater than the impact of the right to suppress a confession which may constitute the bulk of the government's proof against a defendant. Nor is it any greater than the right to a dismissal because of an improperly constituted grand jury. The Supreme Court has held that these rights even though derived from the Constitution are also not sufficiently "fundamental" to permit avoidance of a voluntary plea. McMann v. Richardson, supra; Parker v. North Carolina, supra; and Tollett v. Henderson, supra. See also Burrows v. Engle, 545 F.2d 552 (6th Cir. 1976) (right to challenge wording of indictment waived). In light of these cases, it would be anomalous for us to hold that the statutory rights derived from the IAD cannot be waived. See Edwards v. United States, 564 F.2d 652, No. 77-2048 (2d Cir. 1977) (IAD violation not a "fundamental defect"). Cf. United States v. Ford, 550 F.2d 732, 742 (2d Cir. 1977) (protections in IAD Article IV(e) may be waived).4 13 We note that the purposes of the IAD are to implement a defendant's right to a speedy trial and to avoid excessive interference with a prisoner's rehabilitation in the state prison system. United States v. Sorrell, supra, at 229; United States ex rel. Esola v. Groomes, 520 F.2d 830, 833 (3d Cir. 1975); United States v. Ford, supra, at 737-41 (2d Cir. 1977). These purposes are not disserved by our ruling that the benefits of the act may be waived by a guilty plea. The right to a speedy trial may be waived. See Barker v. Wingo, 407 U.S. 514, 523-9, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The defendant in the case at bar never requested to be tried, nor was any substantial delay in affording him a trial evident. Furthermore, a prompt guilty plea enables a defendant to recommence his state program for rehabilitation without any delay. Congressional intent will be frustrated to a far lesser extent by our binding defendant to his plea than by our adopting a rule which would release numerous defendants who have already admitted their guilt.5 Cf. Judge Garth's dissenting opinion in United States v. Thompson, supra, at 239; Daniel v. Louisiana, 420 U.S. 31, 33, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975). Accordingly, we hold that the judgment of the district court will be affirmed. * Edward N. Cahn of the United States District Court for the Eastern District of Pennsylvania, sitting by designation 1 IAD Article IV(e) provides: If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice. 2 The government has conceded that the defendant was not held in federal custody at the Western Penn because that institution is not designated as a holding place for federal prisoners awaiting trial in the United States District Court for the Western District of Pennsylvania 3 At oral argument, defendant's counsel represented to the court that he was aware of the provisions of Article IV(e) at the time defendant pleaded guilty, but was unsure whether they applied in defendant's situation. While the record is bare of evidence of any plea bargain in defendant's case, we assume that defendant's counsel obtained some concessions from the government in exchange for the plea. He and the defendant apparently deemed these concessions acceptable in view of the uncertainty surrounding the IV(e) claim. We note in this regard that the government made no sentencing recommendation and that the sentence imposed was concurrent with the state sentence 4 Defendant contends that Enright v. United States, 434 F.Supp. 1056 (S.D.N.Y.1977), compels a dismissal of the indictment. In view of the recent decision in Edwards v. United States, 564 F.2d 652, No. 77-2048 (2d Cir. 1977), we doubt that Enright has value as precedent, even in its own circuit. Furthermore, the issue in Enright was not whether a violation of the IAD is waived by a guilty plea. Rather, Enright considered whether other acts by the defendant constituted a knowing and voluntary waiver of the provisions of the IAD. Cf. Strawderman v. United States, 436 F.Supp. 503 (E.D.Va.1977) 5 It is presumably for this reason that this court noted in Sorrell, supra, at 231, that "there seems little justification for retroactive application of the statutory construction ultimately adopted, through collateral attack, where the defendant-prisoner has not requested a speedy trial prior to the trial." See also Edwards v. United States, supra, (a claim based on a violation of IAD is not cognizable under 28 U.S.C. § 2255)	{ "pile_set_name": "FreeLaw" }
827 F.2d 774 U.S.A.v.Mandah* NO. 86-5711 United States Court of Appeals,Eleventh Circuit. AUG 05, 1987 1 Appeal From: S.D.Fla. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 23	{ "pile_set_name": "FreeLaw" }
831 F.2d 288 U.S.v.Evans (Stephen R.) NO. 87-5135 United States Court of Appeals,Third Circuit. SEP 11, 1987 1 Appeal From: M.D.Pa. 2 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
451 F.2d 1311 UNITED STATES of America, Plaintiff-Appellee,v.Robert E. LOPEZ, Defendant-Appellant. No. 71-2059. United States Court of Appeals,Ninth Circuit. Nov. 30, 1971.Rehearing Denied Jan. 11, 1972. 1 Robert J. Jaffe (argued), Richard J. Werthimer, San Francisco, Cal., for defendant-appellant. 2 Fred Filton, Asst. U. S. Atty. (argued), James L. Browning, U. S. Atty., San Francisco, Cal., for plaintiff-appellee. 3 Before HAMLEY and KILKENNY, Circuit Judges, and GOODWIN, District Judge.* ALFRED T. GOODWIN, District Judge: 4 Robert E. Lopez was convicted of willful refusal to submit to induction. After this court affirmed the conviction, on May 10, 1971, United States v. Lopez, 442 F.2d 1311 (9th Cir. 1971), Lopez moved the district court, pursuant to Fed.R.Crim.P. 35, to modify his sentence so that he might be permitted to submit to induction in order to make an in-service claim for conscientious-objector status. The district court denied the motion, and this appeal followed.1 5 Appellant received his notice of induction on March 3, 1970. He then for the first time requested a Form 150, so that he could file for classification as a conscientious objector. The board denied appellant's request. He refused to submit to induction, was convicted, and his conviction was affirmed by this court on the basis of Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971). 6 In Ehlert, the Supreme Court held that local boards under a Selective Service Regulation (32 C.F.R. Sec. 1625.2 (1971)), could refuse to consider a conscientious-objector claim made subsequent to the issuance of an induction notice. The Court based its holding in part on the Army's assurance that conscientious-objector beliefs, which had matured after a registrant's receipt of an induction notice, would be considered by the Army after induction. 402 U.S. at 107 n. 11, 91 S.Ct. 1319. Indeed, the Court suggested that if the Army had not made such assurances, and if registrants whose conscientious-objector beliefs had crystallized after receipt of their induction notices were thereby denied an in-service forum for their claims, such registrants would be deprived of their statutory rights under 50 U.S.C. App. Sec. 456(j) (1964 ed., Supp. V); Ehlert v. United States, 402 U.S. at 107, 91 S.Ct. at 1322. The cited statute reads in relevant part: 7 "Nothing contained in this title * * * shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form * * ." 8 The Supreme Court had not decided Ehlert when appellant refused induction. Appellant claims, therefore, that at the time set for his induction he believed that he had no forum in which to raise his conscientious-objector claim. Only after Ehlert did it become clear that such claim could indeed by pursued within the service. Prior to Ehlert, however, appellant's fears may well have been justified. 9 At the time set for appellant's induction, Army Regulation AR 635-20, p 3(b) read: 10 " * * Requests for discharge after entering military service will not be favorably considered when"(1) Based solely on conscientious objection which existed, but which was not claimed prior to induction, enlistment, or entry on active duty or active duty for training." (Emphasis supplied.) 11 This regulation was amended, effective August 15, 1970, to read: 12 "* * * Requests for discharge after entering military service will not be favorably considered when- 13 "(1) Based on conscientious objection which existed, but which was not claimed prior to notice of induction, enlistment or appointment." (Emphasis supplied.) 14 Thus, when appellant was ordered to report for induction, and when he refused induction, the relevant Army regulation then in effect would have given the Army a basis for denying him in-service relief. 15 The new regulations, when coupled with the Army's assurances in Ehlert, however, suggest that the Army's present policy is to consider on their merits conscientious-objector claims which arise after a registrant receives his notice of induction. 16 The appellant frames the issue on appeal in terms of an abuse of discretion when the district court denied appellant's Rule 35 motion. By thus refusing Lopez an opportunity to submit to induction in order to make an in-service conscientious-objector claim, the court is said to have denied him a substantial right created by the Ehlert case. 17 While this court does not order a district court to modify a sentence which is within the statutory limit, Bryson v. United States, 265 F.2d 9 (9th Cir.), cert. denied, 360 U.S. 919, 79 S.Ct. 1437, 3 L.Ed.2d 1535 (1959), it would be in the interests of justice for the district court to hold a hearing in order to determine whether this appellant, at the time set for his induction in 1970, refused induction solely because he believed in good faith that he would not be afforded an in-service forum in which to make his conscientious-objector claim. See United States v. Hedges, 441 F.2d 726, 727 n. 1 (8th Cir. 1971). 18 If, as a result of a hearing, the district court determines that Lopez did not rely upon the pre-Ehlert regulations in refusing induction, the court should treat the Rule 35 motion accordingly. A criminal defendant has no right to gamble on the outcome of a trial and an appeal and then demand Rule 35 relief if he loses. 19 The district court should also determine whether, as a matter of fact, the armed forces will accept for induction a selective-service registrant who holds an announced purpose not to serve. If the armed forces will not accept such an enlistment, the relief sought below would be an idle gesture. The district court may see fit, however, to modify its sentence as the equities may then appear. 20 Remanded, with instructions that the order of June 11, 1971, denying appellant's motion for modification be reconsidered. * The Honorable Alfred T. Goodwin, District Judge for the District of Oregon, sitting by designation 1 Lopez was released on his recognizance pending appeal, by order of the Circuit Justice dated August 23, 1971. See 404 U.S. 1213, 92 S.Ct. 2, 30 L.Ed.2d 17 (Douglas, Circuit Justice, 1971)	{ "pile_set_name": "FreeLaw" }
159 F.3d 1352 Frank H. Morrisv.James Orman, Paul Stanley, Robert Kurtz, William Sammartino,City of Philadelphia, Unknown Individuals who conspired withNamed Defendants to deprive Plaintiff of ConstitutionalRights, James Rusek, H. Frances deLone, Jr. NOS. 98-1008, 98-1053, 98-1121 United States Court of Appeals,Third Circuit. July 31, 1998 Appeal From: E.D.Pa. ,No.87cv5149 1 Appeal Dismissed.	{ "pile_set_name": "FreeLaw" }
25 So.3d 1250 (2010) Martin VALERA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee. No. 3D09-2254. District Court of Appeal of Florida, Third District. January 20, 2010. Martin Valera, in proper person. Louis A. Gutierrez, Senior Attorney, Tallahassee, for appellee, Unemployment Appeals Commission. Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge. SHEPHERD, J. Martin Valera appeals a final order of the Florida Unemployment Appeals Commission, upholding the dismissal of his appeal from a referee's determination, on the ground it was not filed within twenty days from the mailing of the determination. See § 443.151(3)(a), Fla. Stat. (2009); Fla Admin. Code Rule 60BB-5.007 (2009). Mr. Valera admits he received the determination, including notice of his appellate rights. He argues we should reverse the order under review because he was distracted *1251 by personal matters, affording him "good cause" for relief from the strict deadline provided by the statute and dismissal rule. However, the statute and rule do not permit good cause exceptions to the dismissal rule. See Robinson v. Sun Bank & Trust Co., 685 So.2d 1325, 1326 (Fla. 2d DCA 1996); Riegler v. Unemployment Appeals Comm'n, 633 So.2d 1182, 1182 (Fla. 4th DCA 1994); Leon v. Unemployment Appeals Comm'n, 476 So.2d 761, 762 (Fla. 3d DCA 1985). For this reason, we affirm the order of the Commission.	{ "pile_set_name": "FreeLaw" }
91 F.Supp. 1007 (1950) RIPLEY FABRICS CORPORATION v. HYMEN. No. 49 C 1380. United States District Court N. D. Illinois, E. D. February 14, 1950. 1008 Blanksten & Lansing, Chicago, Ill., for plaintiff. Norman H. Arons, Chicago, Ill., for defendant. CAMPBELL, District Judge. This is a suit on a judgment rendered in behalf of plaintiff and against the defendant by the Supreme Court of the State of New York. There is no dispute as to the essential facts involved. On June 20, 1948, defendant, a resident of Illinois, signed plaintiff's printed form of purchase order for certain yard goods to be shipped by plaintiff, a resident of New York, which order was accepted by plaintiff. The face of said order stated that it was subject to the terms therein stated and those on the reverse side thereof. On the reverse side, paragraph 10 states: "10. All controversies arising out of or relating to the contract, or any modification thereof shall be settled by arbitration in accordance with the Arbitration Rules of the National Federation of Textiles, or its successors". Thereafter, a dispute arose over defendant's rejection of the goods ordered, and plaintiff referred the matter to the National Federation of Textiles, Inc. Three arbitrators were appointed who made an award in favor of plaintiff, upon which award the judgment which is the subject of the present litigation was rendered. In none of the proceedings, either before the arbitrators or the court, did defendant appear personally. All summons and notice was given to him by mail and defendant does not deny their receipt. It is contended by the defendant that the judgment of the Supreme Court of New York is invalid for the reason that the court lacked jurisdiction to enter it. Both sides now move for summary judgment. The issue presented by the pleadings is: Did the defendant, by virtue of Paragraph 10 of the purchase contract, consent to the entry of an award and judgment in personam against him without personal service of summons first having been obtained upon him? It is well established that jurisdiction of a person may be secured by personal presence, domicile, allegiance, consent, or acts done within the territorial jurisdiction of the court. Consent to jurisdiction may be given before the commencement of an action or even before the cause of action has arisen. Thus, by contractual agreement, parties may consent in advance that a certain court shall have jurisdiction to hear any dispute that may arise between the parties in regard to their contract. As has been noted above the parties, in Paragraph 10 of their purchase contract, agreed in advance to settle any dispute by arbitration in accordance with the rules of the National Federation of Textiles. Rule 25 of the Federation states that both parties, by their agreement to arbitrate, consented that service of any papers, notices or process "necessary or proper for the enforcement of the agreement and proceedings and for entry of judgment on any award * * may be served upon such party by registered mail * * , providing a reasonable time is allowed such party thereby to appear and defend". Paragraph 1009 10, considered in conjunction with this rule, constitutes an implied consent on the part of defendant to the entry of an arbitration award and judgment. The case at bar, is for all practical purposes, identical with that of Mulcahy v. Whitehill, D.C.Mass. 1943, 48 F.Supp. 917, 919, both as to the facts and to the law. There the contract contained the following provision: "Buyers and sellers agree that any and all questions arising out of this contract not adjusted by mutual agreement shall be settled in New York upon the demand of either party by American Arbitration Association". The Rules of said Association provided: "Each party to a submission or other agreement which provides for arbitration under these Rules, shall be deemed to have consented and shall consent that any papers, notices or process necessary or proper for the institution or continuation of an arbitration proceeding under these Rules or for the confirmation of an award and entry of judgment on an award made thereunder, including appeals therewith, may be served upon such party (a) by mail addressed to such party's last known address or (b) by personal service, within or without the state wherein arbitration is to be held, or within or without the limits of the jurisdiction of the Court having jurisdiction in the premises (whether such party be within or without the United States of America); provided that a reasonable time shall be allowed such party to appear and defend". The award and judgment were obtained in New York, and suit was brought on said judgment in the District Court of Massachusetts, in which state the defendant resided. In holding for the plaintiff, the court stated: "In the instant case, the parties agreed that questions arising out of the contract not adjusted by mutual agreement should `be settled in New York upon the demand of either party by the American Arbitration Association.' Thus, the parties consented in advance to the settlement of disputes in New York by the Association. It is my opinion that the defendant's unqualified submission of disputes to arbitration necessarily implied a submission to the Rules of Procedure of the American Arbitration Association and to the law of New York governing, such arbitration. See Gilbert v. Burnstine, supra. It follows, therefore, that the defendant, by consent, is bound, in so far as disputes arising under the contract in question are concerned, by the Association's Rules of Procedure. Paragraph XVI, set forth above, provides that each party to a submission or agreement providing for arbitration shall be deemed to have consented to service by mail or by personal service, within or without the state, of all process necesary for such arbitration or for the confirmation of an award and entry of judgment on an award. Here, service was made by the mailing of notice to the defendant's last-known address, and the defendant admitted that he received such notice." For the foregoing reasons, defendant's motion for summary judgment is denied, and plaintiff's motion for summary judgment is granted. Accordingly, judgment will, therefore, enter in favor of plaintiff.	{ "pile_set_name": "FreeLaw" }
Order entered August 18, 2020 In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00293-CR No. 05-20-00294-CR No. 05-20-00295-CR EVERARDO RAUL SANCHEZ CABRERA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-82637-2019 Cts. 1, 2 & 3 ORDER On August 14, 2020, the State filed a motion to extend time to file its brief along with its tendered brief. We GRANT the motion and ORDER the State’s brief filed as of the date of this order. /s/ CORY L. CARLYLE JUSTICE	{ "pile_set_name": "FreeLaw" }
680 P.2d 1318 (1984) The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Larry D. WHITE, Defendant-Appellant. No. 82CA0582. Colorado Court of Appeals, Div. I. February 9, 1984. Rehearing Denied March 8, 1984. 1319 Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Dolores Atencio, Asst. Atty. Gen., Denver, for plaintiff-appellee. Richard A. Hostetler, Sp. Deputy State Public Defender, Denver, for defendant-appellant. TURSI, Judge. Defendant, Larry White, appeals his conviction of aggravated robbery, and mandatory sentencing for the use of a deadly weapon. We affirm. On July 15, 1980, a King Soopers Store located in Denver was robbed of approximately $26,000. The head clerk of the King Soopers Store, Robert Rivas, was robbed at gun point at approximately 6:00 a.m., as he was preparing to open the store's safe. On September 17, 1980, the same King Soopers Store was robbed of approximately $22,000. The head clerk at the time, Anthony Lobato, was robbed at gun point at approximately 6:30 a.m., as he was preparing to open the store. No arrests were made for these two robberies. On March 15, 1981, the defendant was arrested at a King Soopers Store in Commerce City. At approximately 10:20 p.m., after he had locked up the King Soopers Store, Fidel Ortega, a security guard, noticed defendant as he was coming down from the loft in back of the produce room wearing a King Soopers apron. Ortega did not recognize defendant as an employee of the store, so he approached him in order to ascertain his identity. Defendant asserted that he was a new employee on the night crew. In order to verify his explanation, Ortega requested that defendant accompany him while he checked with the night crew foreman and head clerk. Ortega conducted a pat-down search, which revealed a loaded weapon in defendant's waist band. Ortega then advised defendant of his Miranda rights, and turned him over to the custody of Officer James E. Newton, who again gave defendant Miranda warnings. Defendant was charged with one count of aggravated robbery, and one count of mandatory sentencing for violent crime, on each of the incidents. Defendant pled not guilty to all of the charges, his motion for separate trials was granted. The conviction at issue on this appeal concerns his conviction, after a jury trial, of the September robbery of the Denver supermarket. At trial, Ortega and Newton were permitted to testify regarding defendant's arrest in Commerce City. Testimony was received regarding appearance, attire, and possession of a loaded weapon. Defendant 1320 objected to the history of the arrest evidence prior to its admission. However, there is no request for a contemporaneous limiting instruction in the record. On the following day, defendant moved for a mistrial because of the lack of a contemporaneous limiting instruction. The motion for mistrial was denied by the trial court. However, the trial court did offer to give a cautionary instruction at that time. This offer was rejected by defendant. Lobato and Rivas testified regarding the robberies in which they were involved. They testified to the perpetrator's appearance, attire, and use of a gun in perpetrating the robberies. The trial court gave an instruction prior to Rivas' testimony limiting its use to the sole purpose of establishing identity and, sua sponte, related the instruction to the prior testimony of the officers. A limiting instruction regarding similar transaction evidence was also given to the jury in the trial court's final instructions. On appeal, defendant contends that, in admitting the testimony pertaining to the July robbery and the Commerce City arrest, the trial court erred by not adhering to the procedural and substantive safeguards mandated by Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959) and People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979). See CRE 404(b). In addition, defendant contends the trial court erred in denying his motion to suppress the evidence derived from the Commerce City arrest as that arrest was effected without a warrant and without probable cause. We disagree with both contentions. An investigatory stop or limited search is justified on less than probable cause, if there is an articulable and specific basis in fact for suspecting that criminal activity has or is about to take place, the purpose of the intrusion is reasonable, and the scope and character of the intrusion is reasonably related to its purpose. People v. Tate, 657 P.2d 955 (Colo.1983). The record supports a conclusion that Ortega had a reasonable and articulable suspicion that criminal activity was afoot based upon the after-hours presence of an unfamiliar person in the King Soopers Store. Therefore, detention of the defendant for the purpose of conducting an on-the-scene investigation and a pat-down examination for self-protection was justified. People v. Tate, supra; People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977). The evidence and testimony pertaining to the Commerce City arrest were offered by the prosecution as history of defendant's arrest. If relevant, such evidence is admissible even though the arrest was made for a transaction separate and unrelated to the crime for which the defendant is charged and being tried. Davis v. People, 137 Colo. 113, 321 P.2d 1103 (1958). See People v. Watson, 650 P.2d 1340 (Colo.App.1982). Here, the testimony of Newton and Ortega as to defendant's appearance and attire was relevant to identity. It is undisputed that the evidence concerning the Commerce City arrest is unrelated to the September robbery for which the defendant was being tried. And, although it was brought in as history of the arrest evidence, it involved the commission of a crime similar to the one charged, and perpetrated in a similar manner. As such, inherent in the evidence is the "damning innuendo likely to beget prejudice in the minds of jurors ...." Stull v. People, supra. It is fundamental to our system of criminal jurisprudence, that a defendant "be tried on the offense charged in the information and no other." Gill v. People, 139 Colo. 401, 339 P.2d 1000 (1959). A defendant should not be tried for a crime wholly independent of the offense for which he is on trial. Stull v. People, supra. Accordingly, since the defendant was arrested for an unrelated yet similar crime to the one charged, the procedural requirements set forth in Stull should have been followed. The People argue, however, that even if Stull is applicable, defendant is *1321 precluded from raising this issue on appeal as a contemporaneous limiting instruction was not requested of the trial court. We agree. Our supreme court has stated that where the Stull requirements are applicable, the better practice would be to require the trial court to issue a contemporaneous limiting instruction regardless of whether it is requested. People v. Scheidt, 182 Colo. 374, 513 P.2d 446 (1973). However, it has refused to hold that the trial court's failure, sua sponte, to so instruct is plain error. People v. Gladney, 194 Colo. 68, 570 P.2d 231 (1977). Thus, failure by the trial court to issue, sua sponte, a limiting instruction contemporaneously with the history of the arrest testimony does not constitute plain error. People v. West, 43 Colo.App. 246, 603 P.2d 967 (1979). Defendant's final contention is that the trial court failed to comply with either the Stull procedural or the Honey substantive requirements in admitting Rivas' testimony regarding the July robbery of the King Soopers Store as similar transaction evidence establishing identity. Defendant contends that under Honey and CRE 404(b), Rivas' testimony was not necessary to establish the defendant's identity as the perpetrator of the September robbery. Defendant contends that Lobato's testimony was competent to establish the defendant's identity, thereby rendering Rivas' testimony inadmissible. We disagree. As in Honey, identity of the perpetrator was defendant's primary defense. In addition, on cross-examination of Lobato, defense counsel sought to impeach his ability to identify the defendant as the perpetrator of the September robbery. Under these facts, the identity of the defendant was clearly in controversy, rendering Rivas' testimony admissible for the purpose of establishing identity. See People v. Honey, supra. As such, we find no error on the part of the trial court in admitting Rivas' similar transaction testimony. See People v. Crespin, 631 P.2d 1144 (Colo.App.1981). Finally, defendant contends that the contemporaneous limiting instruction given by the trial court in regard to Rivas' testimony was inadequate under Stull. This contention is without merit. Judgment affirmed. PIERCE and BERMAN, JJ., concur.	{ "pile_set_name": "FreeLaw" }
NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ DELPHIX CORP., Appellant v. JOSEPH MATAL, PERFORMING THE FUNCTIONS AND DUTIES OF THE UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, U.S. PATENT AND TRADEMARK OFFICE, Intervenor ______________________ 2016-2072 ______________________ Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2015- 00128. ______________________ JUDGMENT ______________________ J. DAVID HADDEN, Fenwick & West, LLP, Mountain View, CA, argued for appellant. Also represented by SAINA S. SHAMILOV; TODD RICHARD GREGORIAN, PHILLIP JOHN HAACK, San Francisco, CA. PHILIP J. WARRICK, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for intervenor. Also represented by NATHAN K. KELLEY, THOMAS W. KRAUSE, COKE MORGAN STEWART. ______________________ THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED: PER CURIAM (PROST, Chief Judge, LOURIE and HUGHES, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT December 12, 2017 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court	{ "pile_set_name": "FreeLaw" }
109 F.2d 703 (1940) OLD POINT FISH CO., Inc., v. HAYWOOD et al. No. 4563. Circuit Court of Appeals, Fourth Circuit. February 7, 1940. J. L. Morewitz, of Newport News, Va. (Morewitz & Morewitz, of Newport News, Va., and R. Arthur Jett, of Norfolk, Va., on the brief), for appellant. Henry Bowden, of Norfolk, Va. (Bowden & Winder, of Norfolk, Va., on the brief), for appellees. Before PARKER, Circuit Judge, and COLEMAN and CHESNUT, District Judges. CHESNUT, District Judge. This case presents an unusual if not novel question of admiralty law. A fishing vessel has been libeled and sold at the instance of lien claimants for repairs and supplies. Four members of the crew, whose compensation was to be based on a percentage of the proceeds of the catch, have filed intervening libels for an estimated percentage of the profit which might 704 have resulted from a catch which was not made, because the voyage was terminated a few days after it began by the necessary return of the vessel to port for repairs, and before they were made the vessel had been libeled. The repair and supply claims approximate $16,000, while the vessel sold for $5,900. The members of the crew contend that the sums due them, as for wages, are entitled to payment in priority to other lien claims. After testimony and hearing on these so-called wage claims, the district judge allowed each of the four members of the crew, as intervening libelants, the sum of $100 based on 46 U.S.C.A. § 594 as an analogous statute; and also allowed one member of the crew $50 for clothing left upon the ship and lost or not returned, and another $10 for similarly lost bedding. The district judge did not make formal findings of fact, but in a brief opinion expressed the view that the crew had in effect been wrongfully discharged. The evidence in the record relating to the wage claims of the crew is in many respects vague and unsatisfactory but from it the district judge could have and apparently did find the following facts. The ship libeled (named the St. Providenza II) was a motor vessel about 80 feet long, of 61 gross tons and 18 net tons, owned and operated by the master Philip Giammanco of Gloucester, Massachusetts. For several years prior to 1939 the vessel had been engaged in trawl fishing in the waters of the Atlantic, operating a part of each year out of Gloucester, and the remainder of the year out of Hampton, Virginia. A few days prior to March 29, 1939, the date on which the original libel in this case was filed, the vessel began a voyage from Hampton, Virginia, with a crew of seven men including the master, under an oral agreement whereby they were to work the vessel on what is called a "lay", the arrangement being in substance that the crew would furnish the food, ice and fuel and receive 60% of the gross proceeds of the catch, the ship owner to receive the remaining 40%. A few days thereafter, about 50 barrels of fish having been caught, the vessel developed engine trouble and was towed back to port. The fish caught were sold for about $200, which was less than the cost of the supplies furnished but not paid for by the crew, and later included among the libel claims against the ship. It was estimated that the making of the repairs would occupy three days, and the master instructed the crew, who lived nearby, to go home and await orders to return for a continuation of the voyage. It appears he gave one or more of them a sufficient sum for transportation home. Before the repairs were made the original libel was filed, and shortly thereafter several members of the crew filed their intervening libels, each claiming about $1,000 by way of damages for breach of contract of employment for the fishing season. The evidence did not show with any definiteness what constituted such a season, but there was some testimony to the effect that on somewhat similar voyages, one or more members of the crew had averaged on a percentage basis about $100 a month. At the hearing held on April 21, 1939, some of the members of the crew testified in effect that as a result of the voyage having been broken up they would probably be unable to obtain further employment of the same kind during the summer. On June 6, 1939, the district judge filed a brief memorandum opinion in which he expressed the thought that the statute mentioned, 46 U.S.C.A. § 594, by analogy furnished "as fair a standard by which to adjudge the claims of the seamen in this case as can be found". His order filed July 7, 1939 decreed that four members of the crew were entitled to recover the respective allowances "as a first lien upon the proceeds of said sale". From this order the other lien claimants have appealed. There is nothing novel or unusual of itself in the kind of an oral agreement that we have here between the owner of the vessel and the crew for their compensation on a fishing voyage. Such an arrangement has been common practice from ancient times, United States v. Laflin, 9 Cir., 24 F.2d 683; 56 C.J. 1058. In such situations the fishermen crew are treated as seamen, and there have been numerous judicial decisions enforcing the rights of the crew against the owner and the ship. The Carrier Dove, 1 Cir., 97 F. 111, 112; The Z. R.-3, D.C., 18 F.2d 122; The Flk, D.C. Mass., 1938 A.M.C. 714, 724; Robinson on Admiralty (1939) 281, 282. See also 46 U.S.C.A. §§ 531-534. In Benedict on Admiralty, 5th Ed. Vol. I, p. 129, the applicable law is briefly summarized as follows: "In the earliest periods of maritime commerce, a common form of compensating the mariner was by giving him, in one way 705 or another, an interest in the success of the voyage. In modern times, fixed pecuniary wages have taken the place of a share of the earnings, except in the cases of whaling, fishing, and sealing voyages, in which the ancient mode of compensation still prevails. * * * Where a fishing vessel is worked on the quarter lay plan, her crew have a lien, as for wages, upon the vessel, and catch on board, for their share of the catch." And in The Georgiana, 1 Cir., 245 F. 321, 325, the court said: "For the value of their respective shares in the catch taken, upon a trip made upon terms like the above ["quarter lay plan"], the members of a fishing crew have a lien upon the vessel and the catch on board, corresponding to the lien of seamen shipped for hire in the ordinary way, for their unpaid wages against vessel, cargo and freight pending, so long as anything remains of either." The novel feature of the present case lies in the asserted priority of lien claimed for fishermen as wages in lieu of prospective and speculative shares of fish not caught because the voyage was terminated by the libel of the ship for repairs and supplies. No case has been brought to our attention where a prior lien as for wages has been allowed under such circumstances; and we do not think it can be properly established consistently with other principles of admiralty law. In Piedmont & George's Creek Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1, 12, 41 S.Ct. 1, 4, 65 L.Ed. 97, Mr. Justice Brandeis, speaking for the Court said: "The maritime lien is a secret one. It may operate to the prejudice of prior mortgagees or purchasers without notice. It is therefore stricti juris and will not be extended by construction, analogy or inference." In Collie v. Fergusson, 281 U.S. 52, 55, 50 S.Ct. 189, 191, 74 L.Ed. 696, Mr. Justice Stone states the general admiralty rule that "events subsequent to the seizure do not give rise to liens against a vessel in custodia legis. See The Young America (D.C.) 30 F. 789, 790; The Nisseqogue (D.C.) 280 F. 174, 181; The Grapeshot (D.C.) 22 F. 123. Cf. New York Dock Co. v. The Poznan, 274 U.S. 117, 47 S.Ct. 482, 71 L.Ed. 955." In Collie v. Fergusson, it was held that seamen, employed at a stipulated monthly wage, some part of which had not been paid upon the libeling of the ship, were not entitled to recover double wages under the applicable statute for the delay in payment of wages consequent upon the seizure of the ship; and in The Poznan, 274 U.S. 117, 47 S.Ct. 482, 71 L. Ed. 955, recovery of wharfage due under an agreement prior to the libel of the ship, accruing after her seizure, was disallowed, except as an expense of the libel proceeding. In accordance with the general rule that maritime liens do not arise from matters happening subsequent to the legal seizure of the ship, it has uniformly been held (in the absence of an applicable statute or duly authorized continuing services of seamen) that no maritime lien can be allowed for wages to seamen accruing after the libeling of the ship. The Astoria, 5 Cir., 281 F. 618, 621; The Nisseqogue, D.C.N.C., 280 F. 174, 184; The Bethlehem, D.C.Pa., 286 F. 400, 402; The Philomena, D.C.Mass., 200 F. 873, 874; The Bethulia, D.C.Mass., 200 F. 876, 878; The Rupert City, D.C.Wash., 213 F. 263, 271; The Augustine Kobbe, D.C.Ala., 37 F. 696, 699; Id., C.C., 39 F. 559; The Irages, D.C., 283 F. 445. See also The Pacific Hemlock, D.C.Wash., 3 F.Supp. 305, 307, and Burdine v. Walden, 5 Cir., 91 F.2d 321. In Benedict on Admiralty, 5th Ed., § 585, the rule is stated that "seizure of a vessel under process, resulting in breaking up the voyage, operates as a discharge of the crew who, therefore, have no lien for further wages". In the instant case it is clear that the crew had earned nothing from the catch up to the time of the seizure of the ship, and they performed no services thereafter, but apparently recognized the breaking up of the enterprise by the filing of their libel claims. See The Nisseqogue, supra; The Charles L. Baylis, D.C., 25 F. 862. Whether, if the fishing enterprise had not been broken up, they would subsequently have earned compensation for their share of the catch and if so the amount thereof, was wholly speculative, uncertain, and dependent upon future happenings. If they had been employed for a definite period at a definite wage they would not have been entitled to a prior lien for the wages accruing after the seizure of the ship even though the amount were certain. 706 A fortiori they were not entitled to a prior lien for compensation which might have been earned from a future catch wholly speculative in amount. It is argued that when seamen are wrongfully discharged before normal expiration of their period of service they are entitled not only to the wages accrued up to the time of discharge, but also to damages for the wrongful discharge; and as they admittedly have a prior maritime lien for the wages actually earned, they should also have a lien for damages. While there are situations in which such damages have been allowed as a lien (The Wanderer, C.C. 20 F. 655; The Lakeport, D.C., 15 F.2d 575), the admiralty law does not allow a prior lien for damages consequential upon a legal arrest of a vessel, as we have above noted. Furthermore, even if the lien for damages could be admitted in the case of ordinary wages, it is clear, upon well established legal principles as to computation of damages, the amount is entirely too speculative in this case to be allowed. In Williams v. The Sylph, 1841, 29 F.Cas. page 1407, No. 17,740 it was pointed out that "The present case is distinguishable from that of an ordinary hiring in this great particular: that the libelants, shipping for shares, have no specific lien on the vessel until the earnings of the vessel are ascertained and liquidated." It is also suggested that it is only equitable to allow the seamen some damages here because the other lien claimants must have been guilty of laches in not more promptly enforcing their liens, but we find nothing in the record before us to support this contention; and it appears that one of the other lien claims filed is for supplies furnished for the particular voyage. The intervening libels filed by the members of the crew each claimed from $900 to $1100 as their estimated shares of what might have been the future catch; but the district judge evidently concluded that no such allowance could be made because wholly speculative. In allowing four members of the crew each the sum of $100 he, by analogy, applied the statute (46 U.S.C.A. § 594) which provides that "Any seaman who has signed an agreement and is afterward discharged before the commencement of the voyage or before one month's wages are earned, without fault on his part justifying such discharge, and without his consent, shall be entitled to receive from the master or owner, in addition to any wages he may have earned, a sum equal in amount to one month's wages as compensation, and may, on adducing evidence satisfactory to the court hearing the case, of having been improperly discharged, recover such compensation as if it were wages duly earned." But we do not think the allowances can be supported on the analogy of this statute. As the agreement here was oral and not written it is obvious that the statute is not literally applicable to the case. More importantly it is to be noted that it was codified from R.S. § 4527, which was derived from the Act of June 7, 1872, c. 322, § 21, 17 Stat. 266; and by the Act of June 9, 1874, c. 260, 18 Stat. 64, (now codified as 46 U.S.C.A. § 544) section 594 was expressly made inapplicable "in any case where the seamen are by custom or agreement entitled to participate in the profits or result of a cruise, or voyage". Ross v. Bourne, D.C.Mass., 1883, 14 F. 858, 859, affirmed C.C., 17 F. 703; United States v. Bain, C.C.Me., 1880, 5 F. 192; Wilson v. Manhattan Canning Co., D.C., 205 F. 996. It also seems that the word "seaman" in 46 U.S.C.A. § 594, was not intended by Congress to include a fisherman "on a lay". See The Cornelia M. Kingsland, D.C., 25 F. 856; Telles v. Lynde, D.C., 47 F. 912. Compare Blackton v. Gordon, 303 U.S. 91, 92, 94, 58 S.Ct. 417, 82 L.Ed. 683; Collie v. Fergusson, 281 U.S. 52, 57, 50 S.Ct. 189, 74 L.Ed. 696. The appellees place reliance on the early cases of The Page, 1878, 18 Fed.Cas. page 977, No. 10,660 and Woolf v. The Oder, 1802, 30 Fed.Cas. page 600, No. 18,027; but they do not support the contention here made. The Page dealt with the case of a fishing "lay" where the crew were allowed in addition to their proportionate share of the fish actually caught, a further sum estimated as the amount they would have received from an additional catch (proportionate to the actual catch) if the voyage had not been prematurely terminated by the fault of the master who had neglected to provide sufficient salt. The case is not in point here because the voyage was voluntarily terminated by the master before its normal expiration and not, as in this case, terminated by the attachment of the vessel. In Woolf v. The Oder a fishing lay was not involved but only ordinary wages; and 707 the case merely illustrates a well known early maritime practice by which seamen discharged without their fault, by the breaking up of the voyage at a place far distant from the port of shipment, by libel of the ship or otherwise, were allowed in addition to their accrued wages for services actually performed, a further sum, discretionary in amount but estimated to be sufficient to defray the expenses of their return to the place from where they shipped. Other cases illustrative of the same practice are Thompson v. The Oakland, 1841, 23 Fed.Cas. page 1064, No. 13,971; The Frank & Willie, D.C., 45 F. 488, 490; Alaska SS. Co. v. Gilbert, 9 Cir., 236 F. 715; and The Trader, D.C.S.C., 17 F.2d 623, 626. See also The Steel Trader, 275 U.S. 388, 392, 48 S.Ct. 162, 72 L.Ed. 326. It seems probable that this early maritime practice may have influenced the passage by Congress of the Act of December 21, 1898, c. 28, § 3, 30 Stat. 755; R.S. § 4526, now codified in 46 U.S.C.A. § 593, which, as amended March 5, 1934, c. 40, 48 Stat. 395, was made applicable to fishing and whaling vessels but not to yachts; and as amended now reads as follows: "In cases where the service of any seaman terminates before the period contemplated in the agreement, by reason of the loss or wreck of the vessel, such seaman shall be entitled to wages for the time of service prior to such termination, but not for any further period. Such seaman shall be considered as a destitute seaman and shall be treated and transported to port of shipment as provided in sections 678, 679, and 681. This section shall apply to fishing and whaling vessels but not to yachts." It will be noted that the statute literally applies only where the services of the seaman are terminated, "by reason of loss or wreck of the vessel"; and allows wages only for the time of service prior to the termination of the voyage. It is not necessary to now decide whether the statute supersedes or merely supplements the particular maritime practice referred to as neither supports the position here taken for the appellees. We conclude therefore that the award of $100 to each of the appellees in this case for wages as a first or other lien on the proceeds of the sale of the vessel must be disallowed and the order appealed from must be modified in this respect. The question as to whether the appellees have a just claim against the owner of the vessel in personam is not presented on this appeal. As to the allowance of $50 and $10 respectively to two members of the crew for loss of clothing and bedding, the evidence is meagre indeed. It appears, however, that this personal property was left upon the vessel when the owners left it expecting to return to complete the voyage, and was not thereafter recovered by them. In the absence of any evidence to explain the loss we think the allowance should not be disturbed. The Washington, D.C.N.Y., 296 F. 158, 166. Modified. PARKER, Circuit Judge (dissenting). There can be no question but that a sharesman under a fishing lay is entitled to the usual maritime lien for seamen's wages upon the ship, as well as upon the catch or cargo. 56 C.J. 1065 and cases cited. The seizure of the vessel resulting in a breaking up of the voyage entitles him to any amount previously earned and to damages due to the discharge. The case is not different from any other case of discharge resulting from seizure of the vessel and consequent breaking up of the voyage, as to which see 56 C.J. 968; The Hudson, 12 Fed.Cas. page 805, No. 6,831; Van Beuren v. Wilson, 9 Cow., N.Y., 158, 18 Am.Dec. 491. In such case, wages accruing after the seizure do not constitute a lien on the vessel, but lien is accorded for wages earned prior thereto and damages resulting from the discharge. As said by Judge Pardee in The Esteban de Antunano, C.C., 31 F. 920, 925: "It is probable that the breaking up of the voyage by the seizure of the ship operated, ipso facto, a discharge of the crew (see Woolf v. The Oder [Fed.Cas. No. 18,027], 2 Pet.Adm. 261;), and if the crew thereafter remained aboard, they did it by the consent of the sheriff. In such case they would, no doubt, be entitled to their pay, and damages resulting from discharge, and the same would constitute an admiralty lien, not divested by the seizure and sale of the ship." No distinction can properly be drawn, with respect to the right of lien, between claim for wages earned under a contract and claim for damages arising from discharge in violation of its terms. The lien 708 for wages covers the entire term of employment contracted for. 56 C.J. 1053; The Wanderer, C.C., 20 F. 655. And certainly the seaman's rights thereunder may not be defeated without fault on his part. He cannot, of course, be accorded lien for wages accruing subsequent to seizure for the reason that lien may not be created on the vessel after it has passed out of the control of the owners; but this does not mean that he may not have a lien for the damages resulting from the breach of his contract occasioned by the seizure.[] Woolf v. The Oder, 30 Fed.Cas. page 600, No. 18,027. This is to award against the vessel no more than the seaman is entitled to under his contract at the time the seizure is made. The statute awarding one month's wages as damages in case of wrongful discharge, which has no application to a case such as this, is intended merely to afford seamen a simple and summary method of establishing and enforcing damages. 56 C.J. 1028; The Steel Trader, 275 U.S. 388, 390, 48 S.Ct. 162, 72 L.Ed. 326. But there can be no question that, in cases where the statute does not apply, a maritime lien exists on the vessel for the amount necessary to compensate the seaman for the breach of his contract of employment. The Lakeport, D.C., 15 F.2d 575. In a case such as that with which we are dealing, damages resulting from discharge are difficult to estimate, but one month's earnings based on prior experience, the basis adopted by the Judge below, is certainly not unreasonable. I see no injustice whatever in giving these seamen priority for the damage resulting from their discharge over bills of repairmen, who, when they permitted the vessel to proceed about her business, must have known that contracts of the character here involved would be made with the crew. When breach of these contracts was caused by seizure of the vessel at the instance of the repairmen, it is but fair that claims for damage resulting from such breach be given priority over their claims. I think, therefore, that the decree appealed from should be affirmed. NOTES [*] For cases relating to lien for damages for breach of contract of employment as distinguished from wages, see Dary v. The Caroline Miller, D.C., 36 F. 507; The Abbie M. Deering, D.C., 105 F. 400; The White Seal, 9 Cir., 194 F. 402; The Emma F. Angell, D.C., 217 F. 311; The City of New Orleans, C.C., 33 F. 683.	{ "pile_set_name": "FreeLaw" }
116 Ariz. 460 (1977) 569 P.2d 1358 Dewey Ray EHMAN, a minor, by his mother and guardian ad litem, Donna Ehman, Appellant and Cross Appellee, v. Billy RATHBUN and Marjorie Rathbun, husband and wife, Appellees and Cross Appellants. No. 2 CA-CIV 2410. Court of Appeals of Arizona, Division 2. June 2, 1977. Rehearing Denied August 19, 1977. Review Denied September 22, 1977. 462 Verity, Smith, Lacy, Allen & Kearns, P.C. by Bruce F. Rinaldi, Tucson, for appellant and cross appellee. Kipps & Salter by Gordon S. Kipps, Tucson, for appellees and cross appellants. OPINION RICHMOND, Judge. Appellant, hereinafter plaintiff, was a passenger in a pickup truck that collided with a car driven by appellee Billy Rathbun, hereinafter defendant. The pickup truck was being driven by Russell Kosten, who also was a plaintiff in the court below. After a verdict and judgment awarding damages to both plaintiff and Kosten, and in favor of Kosten and against defendant on the latter's counterclaim, the trial court granted defendant's motion for new trial as against plaintiff on the issue of damages only. Plaintiff has appealed from that order, and defendant has perfected a cross appeal from so much of the order denying a new trial on all issues. There has been no appeal from the judgment in favor of Kosten. In granting a new trial on damages the trial court concluded that an expert witness was permitted improperly to testify regarding plaintiff's future economic losses, which were based on the premise that he would be unable to work as a truck driver at a copper mine as a result of his accident injuries. The court specifically found that there was "insufficient foundational evidence" to substantiate the premise. Although ordinarily the granting of a new trial is to a great extent discretionary with the trial court, Cano v. Neill, 12 Ariz. App. 562, 473 P.2d 487 (1970), this appeal involves no such discretion. The question is whether the record, contrary to the court's finding, reflects an evidentiary foundation for the witness's computation of damages. Plaintiff relies on the testimony of three witnesses: Dr. Silver, the orthopedic surgeon who attended him; Dr. Johnson, a rehabilitation psychologist who administered vocational tests, and Dr. Buehler, the economist. Dr. Silver testified that as a result of his injuries plaintiff had sustained a 20 to 25 per cent partial permanent disability of the right leg, which might preclude his working at hard labor in a copper mine "unless he was willing to assume the responsibilities that he could break his leg." He went on to state: "I think he might hurt himself or hurt others if they depended on him in time of crisis. Some sudden twist or emergency movement to save himself or somebody else might cause him irreparable harm or loss of life." On cross examination he characterized plaintiff's problems as mild. Plaintiff was 15 at the time of the accident. He had dropped out of school in the eighth grade. Before the accident he had worked as a janitorial helper for his father's office maintenance company. Dr. Johnson, based on his testing, testified that with no physical disability plaintiff could have worked at a variety of jobs, including driving a truck. He also testified that if plaintiff "were unable to work in the mines because of his physical disability and his physical disability prevented that type of employment," his tests indicated it was possible to "re-train" him to work as a draftsman or television repairman. Dr. Silver did not testify that plaintiff would be physically unable to work as a truck driver, and Dr. Johnson's opinion on "re-training" was based on projected inability "to work in the mines," not as a driver. However, Dr. Buehler, who computed future 463 economic loss from the difference between the wages paid a truck driver at the mines and those paid a draftsman or television repairman, was permitted to testify, over hearsay objection, as follows: "Q. In your research in analyzing this situation, was there a step of employment or beginning part of employment with a majority of the mines other than truck driver? "A. Yes. Most of the mines that I surveyed do not hire a truck driver directly. They hire an individual in as a laborer and if he is responsible, reliable and a good worker, then he can make application to become a truck driver, which people in the mines indicate a preferred job in terms of salary and working conditions." From this, plaintiff argues that physical disqualification for hard labor would prevent him from ever qualifying as a truck driver. Despite a developing trend to the contrary,[1] it is still the rule in Arizona that expert opinion may not be based on hearsay statements or information received by the witness outside the court. Hemet Dodge v. Gryder, 23 Ariz. App. 523, 534 P.2d 454 (1975); Gilbert v. Quinet, 91 Ariz. 29, 369 P.2d 267 (1962). It is true that the so-called "expertise" of the witness necessarily is based on hearsay in the course of his training and experience. The door is closed, however, to hearsay sources of information in acquiring factual knowledge of the specific subject on which he is to testify. 2 Jones on Evidence 639, § 14:21 (6th Ed. 1972). Dr. Buehler was head of the economics department at the University of Arizona, and the jury was told that "... a part of the science of economics ... can be used in making projections as to the effect of [an] injury on a person's earning capabilities" by the following means: "Essentially, we treat the human being as an economic asset to determine what that individual could generate in economic benefits into the future and then to use a technique called discounting to bring the value of those future earnings, future monies that would be generated, to what is known as a present value; in other words, a sum of money that is payable today invested at a reasonable rate of interest would generate earnings or interest over the normal life of an individual, the normal working life of an individual such that he would have earned exactly what he would have earned if he had not been disabled." Information regarding the hiring practices of prospective employers is not part of the economist's qualification to project future economic loss. It is as much a part of the facts with which he works as information about the prospective employee, which would have been subject to hearsay objection. See Hemet Dodge v. Gryder, supra. Thus, Dr. Buehler's testimony regarding "most of the mines that [he] surveyed"[2] did not supply the foundation for his computation of future economic losses. The latter testimony should have been excluded, and the trial court was correct in ordering a new trial. We believe, however, that it was error to limit the new trial to the issue of damages. There was sufficient evidence from which a jury could legitimately conclude that plaintiff assumed the risk of the specific danger that caused his injuries.[3] Although the jury found in favor of Kosten 464 as well as plaintiff on liability, and against defendant on his counterclaim, the verdict was not conclusive on the issue of assumption of risk.[4] In Tovrea Equipment Co. v. Gobby, 72 Ariz. 38, 230 P.2d 512 (1951), the Arizona Supreme Court said: "... [A] new trial on the question of damages only will be granted when liability is not contested or has been clearly proved by the plaintiff so that the issues may be deemed separable; on the other hand when liability is contested and the issues are so inextricably entwined that a fair trial could not be given one of the parties on the issue of damages alone then a new trial will be ordered on all issues." 72 Ariz. at 42, 230 P.2d at 515. Defendant on his cross appeal has questioned the exclusion of testimony that plaintiff's brother had made statements after arriving at the accident scene to the effect that he had warned Kosten and plaintiff not to drive the pickup truck until its lights and brakes had been fixed. The statements were properly excluded. They did not qualify as excited utterances, and the trial court correctly prevented defendant, after calling plaintiff's brother as a witness, from eliciting his denial of the statements in order to render them admissible through other witnesses for impeachment. The order granting a new trial is modified by eliminating therefrom that portion limiting the issue to be retried to the amount of damages, and as modified is affirmed. HOWARD, C.J., and HATHAWAY, J., concurring. ON MOTION FOR REHEARING Appellant on motion for rehearing urges that this court's opinion filed June 2, 1977, is "directly contrary" to the holding in State v. Clark, 112 Ariz. 493, 543 P.2d 1122 (1975), which adopted the approach expressed in Rule 703, Federal Rules of Evidence, regarding the use of facts not in evidence as a basis for an expert's opinion. Contra, International Harvester Company v. Chiarello, 27 Ariz. App. 411, 555 P.2d 670 (1976). Inasmuch as the identical rule[1a] has been promulgated by the Supreme Court of Arizona to take effect prior to any re-trial of this action, we supplement our opinion. As a basis for an expert's opinion or inference, Rule 703 permits use of facts or data not admissible in evidence "[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, ...." The importance of this limitation as a safeguard against the use and possible introduction of all sorts of otherwise inadmissible evidence was recognized by the supreme court in Clark, and by the State Bar Committee on the Rules of Evidence in its Note on Rule 703: "This rule, along with others in this article, is designed to expedite the reception of expert testimony. Caution is urged in its use. * * The question of whether *465 the facts or data are of a type reasonably relied upon by experts is in all instances a question of law to be resolved by the court prior to the admission of the evidence. If the facts or data meet this standard and form the basis of admissible opinion evidence they become admissible under this rule for the limited purpose of disclosing the basis for the opinion unless they should be excluded pursuant to an applicable constitutional provision, statute, rule or decision. "Evidence which is inadmissible except as it may qualify as being `reasonably relied upon by experts in the particular field' has traditionally included such things as certain medical reports and comparable sales in condemnation actions." The last quoted paragraph parallels the application of the Rule 703 approach in Clark. The issue there involved the admission in evidence of a psychiatrist's opinion based in part upon records and charts which were not in evidence. The court said: "The use of charts of appellant's medical history by a psychiatrist engaged in an examination of appellant clearly falls within the category of information relied upon by psychiatrists." 112 Ariz. at 496, 543 P.2d at 1125. The issue here is quite different. The trial court found it had improperly admitted an economist's opinion as to appellant's future economic losses because there was "insufficient foundational evidence", and ordered a new trial. The weak link in the foundational chain relied on by appellant was information the economist acquired from unidentified sources on hiring practices in "most of the mines that I surveyed." There was no evidentiary showing that the facts or data so acquired were "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject", although the economist testified: "Q. Do you use certain recognized sources in your profession and field in compiling these figures? "A. Yes. "Q. Can you explain some of the sources you used in respect to Dewey Ray? "A. On this particular case I did have an interview with Dewey and in addition I gained some information from Doctor Robert Johnson, vocational rehabilitation expert. Then I went to some published sources to determine wage rates for varying occupations in the Tucson area. These are put out by the Department of Economic Security of the State of Arizona." Appellant and Doctor Johnson both testified at trial to the information they had made known to the expert. The wage rates published by the Department of Economic Security satisfy the Rule 703 test of facts and data reasonably relied upon by economists. For lack of a similar showing, however, the information in question was properly disregarded as "foundational evidence" by the trial court. Motion for rehearing denied. HOWARD, C.J. and HATHAWAY, J., concurring. NOTES [1] See Fed.R.Evid. 703, 705, 28 U.S.C.A. [2] Because defendant did not base his motion for new trial or cross appeal specifically on admission of the hearsay testimony, plaintiff claims its admission is not subject to appellate review, Hays v. Richardson, 95 Ariz. 64, 386 P.2d 791 (1963), modified on other grounds, 95 Ariz. 263, 389 P.2d 260 (1964), and that this court therefore must regard as competent the evidence of the mines' requirement. Defendant's motion for new trial, however, was based primarily on the inadequate foundation for Dr. Buehler's testimony on future economic loss, and specifically in that regard on its hearsay basis. [3] Defendant testified he saw no lights on the pickup at the time of the accident. Several witnesses had seen it being operated without lights a short time earlier and a deputy sheriff, who had stopped it for that reason about a quarter of a mile from the accident scene, told Kosten and the plaintiff to leave the vehicle if they could not fix the lights. Kosten testified the lights went on when he changed a fuse; however, they were off when the vehicle came to rest after the accident and the switch was in the off position. [4] The jury was instructed, inter alia: "If the defendant was negligent and the plaintiff Dewey Ehman voluntarily exposed himself to the specific danger which caused his injury which he knew about and understood, the plaintiff Dewey Ehman should not recover. This means that you must decide two things: "1. Whether the plaintiff Dewey Ehman did assume the risk by voluntarily exposing himself to the specific danger which caused his injury which he knew about and understood, and "2. If the plaintiff Dewey Ehman did assume the risk, whether assumption of the risk should prevent a verdict in his favor." [1a] Rule 703. Bases of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.	{ "pile_set_name": "FreeLaw" }
976 So.2d 1063 (2006) EX PARTE BRUCE L. DEVANE. No. 1050835. Supreme Court of Alabama. May 12, 2006. Decision of the Supreme Court of Alabama Without Opinion. Cert. denied.	{ "pile_set_name": "FreeLaw" }
437 F.2d 407 UNITED STATES of America, Appellee,v.Andrew Wayne KINNEY, Appellant. No. 25858. United States Court of Appeals, Ninth Circuit. Dec. 21, 1970. Jo Ann D. Diamos, Tucson, Ariz., for appellant. Richard K. Burke, U.S. Atty., James M. Wilkes, Asst. U.S. Atty., Tucson, Ariz., for appellee. Before KOELSCH, BROWNING and KILKENNY, Circuit Judges. PER CURIAM: 1 Andrew Wayne Kinney, an Indian, appeals from a judgment determining him to be a juvenile delinquent (18 U.S.C. 5031), in that he committed the crime of burglary, as defined by Arizona law, within the boundaries of the San Carlos Apache Indian Reservation in Arizona (18 U.S.C. 1153). 2 Kinney does not attack the sufficiency of the evidence to sustain the court's finding of delinquency, but confines his assignment of errors to the court's rulings on the admission of evidence. His principal complaint goes to the admission of testimony concerning incriminating statements which he, Kinney, made to Wilke Nash and McKinsey Smith, when they apprehended him the day after the burglary. At that time Kinney was wearing a pair of boots and carrying a jacket that were taken in the burglary; but, as Kinney points out, bare possession of recently stolen goods, while sufficient to support an inference of larceny, is ordinarily not prima facie proof of burglary-- there must be some evidence of guilty conduct besides the bare possession of the stolen property before the presumption of burglary is superadded to that of the larceny. Kinney's argument is that testimony concerning the incriminating statements was not admissible because the statements were coerced and because neither Nash nor Smith gave him a warning, as required by Miranda v. Arizona, 384 U.S. 436, 86 and judicial review. 7 U.S.C. the questioning; that since the incriminating statements, together with the evidence of possession, constituted the government's sole proof, the court's ruling, admitting the testimony, was prejudicially erroneous. 3 Granting Kinney's major premises,1 his minor premise is not borne out by the record: The government's evidence was not limited to the incriminating statements. To the contrary, the government adduced proof that Kinney, after being accused of the burglary, broke from Smith's custody and fled. This fact in itself, and separate and apart from Kinney's possession of the recently stolen property, would constitute some evidence that Kinney was the burglar, but when that fact is combined with his possession of the property, the evidence of guilt is beyond question. 4 The case, of course, was tried without the interposition of a jury (18 U.S.C. 5033); from the colloquy between court and counsel following submission it appears that the court relied upon the proof of flight as the factual predicate for its ultimate conclusion. Thus, even if the evidence of the statements should not have been admitted, we are satisfied that the error was harmless. 5 Kinney's remaining points do not merit discussion. 6 Judgment affirmed. 1 We should perhaps note that the court conducted a hearing on the issue of whether or not the statements were voluntary and found, on substantial evidence, that they were not the product of coercion; and that with respect to the Miranda objection, Kinney's attorney took the position that the Miranda rule extends to private persons who make citizens arrests. But see the Supreme Court's statement in Miranda at page 444 of 384 U.S., at page 1612 of 86 S.Ct.: 'By custodial interrogation, we mean questioning initiated by law enforcement officers * * *.' The Second Circuit recently in United States v. Antonelli, (2d Cir. 1970) interpreted literally this statement and held that no Miranda warning was required of private security guards. See also: State v. Lombardo, 104 Ariz. 598, 457 P.2d 275, in which the Arizona Supreme Court construed Miranda as not applicable to persons 'acting in a private capacity and not as law enforcement officers.'	{ "pile_set_name": "FreeLaw" }
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-10-00134-CV Pifi Constancio, Individually and on Behalf of the Estate of Ruben Constancio, Deceased, Appellant v. Shannon Medical Center d/b/a Shannon West Texas Memorial Hospital, Appellee FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT NO. B-06-0157-C, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING MEMORANDUM OPINION Pifi Constancio, Individually and on behalf of the Estate of Ruben Constancio,1 brings this interlocutory appeal from the district court’s orders sustaining a challenge to the causation opinion of Constancio’s expert witness and granting a no-evidence summary judgment dismissing Constancio’s health care liability claim against Shannon Medical Center d/b/a Shannon West Texas Memorial Hospital.2 For the reasons that follow, we reverse both orders and remand this case to the district court. 1 Because appellant and the decedent share the same last name, we will refer to appellant as “Constancio” and to the decedent as “Ruben.” 2 This appeal follows our remand of this case for the district court’s consideration of whether to grant a statutory extension of time to cure a deficient expert report as to Constancio’s health care liability claim against Dr. James Bray, who is not a party to this appeal. See Constancio v. Bray, 266 S.W.3d 149 (Tex. App.—Austin 2008, no pet.). BACKGROUND The record reflects that Ruben went to the emergency room of the Shannon West Texas Memorial Hospital on November 29, 2003, and was diagnosed with diabetic ketoacidosis (DKA).3 Dr. James Bray initially wanted to admit Ruben to the Hospital’s intensive care unit, which offers continuous monitoring and periodic recording of a patient’s vital signs, but there were no ICU beds available. Instead, Ruben was admitted to the Hospital’s “step-down” unit that cares for critical patients who require more care than a regular medical floor but do not receive constant monitoring of vital signs and oxygen level. Ruben’s DKA condition began to improve the next day. Unfortunately, Ruben also had pancreatitis and the undiagnosed conditions of pneumonia and methicillin-resistant Staphylococcus aureus (MRSA) sepsis.4 Dr. Bray prescribed medications for Ruben—Ativan for restlessness, morphine for pain, and Phenergan for nausea—which the nurses administered on an “as needed” basis. On November 30, hospital staff observed Ruben becoming increasingly restless or agitated, pulling out his IV lines and oxygen. That afternoon, Dr. Bray prescribed 10 milligrams of Haldol, which he testified he would have ordered for signs of delirium, and a nurse administered it to Ruben.5 3 Diabetic ketoacidosis is a type of metabolic acidosis produced by an accumulation of ketone bodies resulting from uncontrolled diabetes mellitus. Dorland’s Illustrated Medical Dictionary 17 (31st ed. 2007). 4 Methicillin-resistant Staphylococcus aureus (MRSA) is a species of bacteria that causes serious suppurative infections and systemic disease and has developed resistance to nearly all classes of antibiotics. Id. at 1203, 1790. 5 Haldol is a trademark name for haloperidol, an antipsychotic agent used in the management of psychoses and for control of vocal utterances and tics characteristic of Tourette’s syndrome. Id. at 828, 830. 2 That evening, Ruben’s respiratory condition began deteriorating. In the early morning hours of December 1, a nurse administered morphine, Phenergan, and Ativan to Ruben concurrently. When nurses checked on Ruben at about 3:40 a.m., they found that he had a respiratory rate of eight breaths per minute, with questionable detectable pulses and blood pressure. Ruben was intubated, received fluid resuscitation, and was transferred to the intensive care unit where he was resuscitated. But Ruben sustained significant brain damage after the respiratory event, and he died twelve days later after the withdrawal of life support. Attributing Ruben’s respiratory event to oversedation, Ruben’s wife, Pifi Constancio, and his estate filed a health care liability claim against Shannon Medical Center d/b/a Shannon West Texas Memorial Hospital, alleging the hospital’s vicarious liability for its nurses’ negligence in: (1) administering the Ativan, morphine, and Phenergan medications concurrently to Ruben, and (2) failing to use proper monitoring devices on Ruben, such as a pulse oximeter.6 See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001-.507 (West 2011 & Supp. 2011) (Texas Medical Liability Act). In an effort to comply with the requirements applicable to health care liability claims under chapter 74 of the civil practice and remedies code, Constancio provided an expert report from Stephen J. Hata, M.D., a physician with four board certifications in anesthesiology, critical care medicine, pulmonology, and internal medicine, who addressed standard of care and causation issues.7 6 A pulse oximeter is a device that measures the oxygen saturation of arterial blood. Id. at 76. 7 The district court concluded that Hata’s original and first amended expert reports were inadequate and dismissed Constancio’s suit on May 15, 2006. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l), (r)(6) (West 2011). In the first appeal of this case, we agreed that Hata’s second expert report was inadequate, but we remanded the case for the district court’s reconsideration of whether to grant a full 30-day extension of time to cure the report’s deficiencies. 3 A fair summary of Hata’s causation testimony is that but for the concurrent administration of the medications causing Ruben’s respiratory event, and the Hospital staff’s lack of continuous pulse- oxygen monitoring to alert when intervention was needed to prevent it, Ruben would have lived. The Hospital designated George Marck, M.D. as one of its experts on standard of care and causation. After the parties took the experts’ depositions, the Hospital filed a motion to exclude Hata’s causation testimony and a no-evidence motion for summary judgment. See Tex. R. Civ. P. 166(a)(i); Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993); E.I. du Pont de Nemours v. Robinson, 923 S.W.2d 549 (Tex. 1995). Two weeks before trial, the district court excluded Hata’s testimony and granted the Hospital’s no-evidence motion for summary judgment. Constancio appeals those two orders here. ANALYSIS Hospital’s Daubert/Robinson challenge and motion to exclude Hata’s testimony In her first issue, Constancio contends that the district court erred in granting the Hospital’s Daubert/Robinson challenge and motion to exclude Hata’s testimony. The order granting the Hospital’s challenge specified that the court excluded Hata’s testimony as to causation and noted that the ruling preceded its consideration of the Hospital’s no-evidence motion for summary judgment: See Constancio, 266 S.W.3d at 162-63. After remand, the district court granted the 30-day extension and subsequently ruled that Hata’s second amended report, dated August 15, 2006, and served on September 19, 2008, was adequate. 4 Defendant SHANNON MEDICAL CENTER’s Daubert/Robinson Challenge and Motion to Exclude Opinion Testimony of J. Stephen Hata, M.D. is GRANTED as to the causation testimony of J. Stephen Hata, M.D., and said testimony is hereby excluded pursuant to Rules 702-705 of the TEX. R. OF CIV. EVID. It is also noted by the Court that this ruling has been made, and this Order has been entered, before consideration of Defendant SHANNON MEDICAL CENTER’s No-Evidence Motion for Summary Judgment. Because the court’s order explicitly excluded Hata’s testimony based on its unreliability as to causation, we review the court’s ruling on that ground. Cf. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (“Because the trial court did not specify the ground on which it excluded Dr. Johnston’s testimony, we will affirm the trial court’s ruling if any ground is meritorious.”); cf. also Tennyson v. Phillips, No. 12-02-00154-CV, 2004 Tex. App. LEXIS 350, at 10 (Tex. App.—Tyler Jan. 14, 2004, pet. denied) (mem. op.) (addressing each of appellees’ objections to expert’s testimony because trial court did not specify ground for its exclusion of expert’s testimony); see In re K.M.B., 148 S.W.3d 618, 622 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (concluding that court’s written order controls over oral pronouncement); see also Hyperion Holdings, Inc. v. Texas Dep’t of Hous. & Cmty. Affairs, 03-05-00563-CV, 2006 Tex. App. LEXIS 1366, at 8 (Tex. App.—Austin Feb. 16, 2006, no pet.) (mem. op.) (same). Standards for testing reliability of expert’s causation testimony Texas Rule of Evidence 702 provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702. For an expert’s 5 testimony to be admissible, the witness must be qualified to testify about “scientific, technical, or other specialized knowledge,” and the testimony must be relevant and based upon a reliable foundation. TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 234 (Tex. 2010) (citing Tex. R. Civ. Evid. 702; Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 628 (Tex. 2002)). The dispute in this case does not involve Hata’s qualifications to render an opinion on the cause of Ruben’s death, nor the relevancy of his opinions to this case; rather, his methodology was challenged as unreliable. Unreliable expert testimony may be excluded under Rule 702. See TXI Transp., 306 S.W.3d at 234. We review a trial court’s exclusion of expert testimony for an abuse of discretion. Honeycutt, 24 S.W.3d at 360; see Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006) (stating that abuse-of-discretion standard applies to review trial court’s determination of whether admissibility requirements for expert testimony were met). The Texas Supreme Court identified six factors in Robinson to assist courts in determining the reliability of an expert’s testimony, including: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique. 923 S.W.2d at 557. Subsequently, the court clarified that Robinson’s six factors are nonexclusive and “do not fit every scenario.” TXI Transp., 306 S.W.3d at 235; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998). 6 Here, for instance, Hata relied on his professional experience, Ruben’s medical records, deposition testimony in this case, and medical literature to opine that the concurrent administration of medications to Ruben and the lack of pulse-oxygen monitoring during his respiratory decline led to his respiratory event of December 1, which led to the deprivation of oxygen to his brain, which led to his brain damage, which led to the commencement of life support, and ultimately resulted in his death when support was withdrawn. There would be no practical way for Hata’s peers to conduct objective, randomized experiments to test the validity of his two specific opinions about causation, i.e., it would not be ethically possible to: (1) administer a combination of Ativan, morphine, and Phenergan to a patient—after a 10 milligram dose of Haldol—to determine how soon they brought about a respiratory event, or (2) neglect a respiratory-compromised patient who is deprived of pulse-oximetry monitoring—or one placed on pulse-oximetry monitoring—to determine how soon nursing intervention would need to begin without further compromising the patient’s health. See Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 217 (Tex. 2011); Robinson, 923 S.W.2d at 557. Thus, in addition to any applicable Robinson factors, when experts rely on experience and training rather than a particular methodology to reach their conclusions, reviewing courts determine whether there may be “simply too great an analytical gap between the data and the opinion proffered” for the opinion to be reliable. Gammill, 972 S.W.2d at 726; see Fennern v. Whitehead, No. 03-09-00570-CV, 2010 Tex. App. LEXIS 4587, at 5 (Tex. App.—Austin June 18, 2010, no pet.) (mem. op.); see also Crump, 330 S.W.3d at 217 (noting that Robinson and Gammill analyses were appropriate in assessing reliability of physician’s testimony based on differential diagnosis); 7 TXI Transp., 306 S.W.3d at 239 (“Reliability may be demonstrated by the connection of the expert’s theory to the underlying facts and data in the case.”). However, trial courts are not required to ignore fatal gaps in an expert’s analysis, to consider assertions that are simply incorrect, or to consider evidence connected to existing data only by the expert’s say-so. See Cooper Tire, 204 S.W.3d at 800-01. The underlying data should be independently evaluated to determine whether the opinion itself is reliable. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 713 (Tex. 1997). Ultimately, the trial court’s task is not to determine whether the expert’s conclusions are correct, but rather whether the analysis the expert used to reach those conclusions is reliable and therefore admissible. TXI Transp., 306 S.W.3d at 239 (citing Zwahr, 88 S.W.3d at 629; Gammill, 972 S.W.2d at 728); Keo v. Vu, 76 S.W.3d 725, 734 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). To recover on a claim of medical negligence, a plaintiff must prove to a reasonable medical probability that the defendant’s negligence proximately caused the complained-of injuries. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 860 (Tex. 2009) (citing Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995)). Proximate cause consists of two components: cause-in-fact and foreseeability. Id. (citing LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (per curiam)). Demonstrating that negligence was a cause-in-fact of an injury requires proof that (1) the negligence was a substantial factor in causing the injury, and (2) without the act or omission, the harm would not have occurred. Id. “These standards bar recovery by a patient if a condition preexists the negligence of a health care provider and at the time of the negligence, the condition resulted in the patient having a 50% or less chance of cure or survival.” 8 Id. (addressing propriety of jury instruction and quoting Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 400 (Tex. 1993)). An expert’s causation opinion is the equivalent of “no evidence” if it is based completely on speculation and surmise rather than reasonable medical probability. Keo, 76 S.W.3d at 734; Onwuteaka v. Gill, 908 S.W.2d 276, 283 (Tex. App.—Houston [1st Dist.] 1995, no writ); see Tennyson, 2004 Tex. App. LEXIS 350, at 31 (noting “analytical gap” in expert’s analysis of how failure to timely diagnose and treat patient’s condition ultimately caused his death); see also Schaefer v. Texas Emp’rs Ins. Ass’n, 612 S.W.2d 199, 204-05 (Tex. 1980) (holding, in workers’ compensation case, that there was no evidence of how disease was transmitted to Schaefer or that bacteria suspected of causing disease existed where he worked). Generally, factual weaknesses underlying an expert’s causation opinion go to the testimony’s weight, not its admissibility. Keo, 76 S.W.3d at 734; see TXI Transp., 306 S.W.3d at 239 (citing Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 40-41 (Tex. 2007)). With these standards in mind, we consider whether the determination that Hata’s causation testimony fell below Rule 702’s reliability threshold was an abuse of discretion. Reliability of Hata’s causation opinion At the Daubert/Robinson hearing, the Hospital challenged the reliability of Hata’s testimony, arguing that he relied only on speculation to opine that Ruben’s respiratory event on December 1, 2003, proximately caused his death twelve days later. Constancio responded that the evidence supported Hata’s opinion that the drug combination administered to Ruben, after he received the Haldol, caused his “respiratory event.” 9 To refine our review of this issue, it is helpful to note where both experts’ opinions in this case align and where they diverge. In several respects, Hata’s testimony aligns with that of the Hospital’s expert, Marck. Both agree that the cause of Ruben’s death was the withdrawal of life support and that the reason necessitating the institution of life support was the respiratory event that occurred on December 1 at approximately 3:30 a.m., resulting in Ruben’s brain damage. Both experts agreed that the medical records did not contain sufficient evidence suggesting that a stroke or a pulmonary embolus was a possible explanation for the event, but they disagreed about what did explain it. Marck opined that the respiratory event occurred because of Ruben’s MRSA sepsis, while Hata attributed it to the drugs administered to Ruben concurrently at 1:45 a.m. and the failure to have Ruben on a pulse-oxygen monitor. 1. Concurrent administration of medications The Hospital argues that Hata’s opinions were “not based upon appropriate evidence, but only on speculation and assumptions,” and its motion to exclude Hata’s testimony complained that Constancio “wholly failed to provide any evidence of probative value to prove that the patient’s death [on December 13, 2003] was proximately caused by the respiratory arrest which occurred on December 1, 2003.” The Hospital’s brief rephrases that complaint, stating that Hata “does not have any valid way to determine how the medications he is critical of contributed to Ruben’s death.” However, the record reflects that Hata’s opinion relied on Ruben’s medical records, published information on the risks of the intravenous use of the medications, his experience with patients in using the medications, and Constancio’s deposition testimony about her observations of Ruben. During his deposition, Hata testified that Ruben received Ativan, morphine, and 10 Phenergan in a very short period of time. Hata stated that as a pulmonologist and anesthesiologist, he prescribed these medications to patients on a regular basis, he was familiar with published information on them, and he provided references in a packet of information addressing “major concerns” that “if you’re going to use these IV, there is risk for respiratory depression and oversedation.”8 Additionally, Hata testified that because of the published half-life of Haldol, he believed that the Haldol administered previously to Ruben was still in his system when he received the Ativan, morphine, and Phenergan. Hata stated that Phenergan “can potentiate the effects of all the drugs,” meaning that “it can increase, for example, the pain relief, but it can also increase the effects of sedation.” Marck, the hospital’s expert, agreed that there is an “additive” or “synergistic” effect of putting all four of those drugs together, meaning that “one drug potentiates the effect of another, even beyond what the individual drug itself would give.” Hata reasoned that when dealing with a patient like Ruben, who already had significant respiratory compromise, there is a concern about giving drugs that would further compromise the patient. Hata continued that on December 1 at 3:30 a.m., based on the deposition testimony of Ruben’s wife, Ruben “was having increased respiratory difficulties.” Ruben “was found with very labored respirations,” a “respiratory rate that was reportedly very, very slow,” he was “pale” and “unresponsive,” and appropriately,“[t]he staff at that point called a code.” Hata opined that “all the evidence supports that this was a respiratory—the patient had his event because of respiratory 8 The record reflects that Hata’s deposition exhibits 3 and 5 contain the published drug information that Hata reviewed and provided. Although the exhibits are not in the record, the parties do not dispute their production at the deposition or their use as authority. 11 suppression.” Hata stated the physical effect of the medications, specifically linking them to suppressed respiratory drive and brain damage: Q. Explain to us in common terms what happens as a result of the respiratory arrest. A. What happens when a person has medications of this sort, combined with underlying disease, is a patient’s blood oxygen level goes down. All right. With that, a patient will respond by trying to breathe faster, but with the sedation, with the suppression of his respiratory drive by medications, oxygen level will drop to a life-threatening level. The heart can stop, you can have low blood pressure, and the brain is damaged. Hata further detailed the facts from Ruben’s medical records supporting the opinion that Ruben’s respiratory event occurred because of the known effect of the medications: Q. What was the cause, in your opinion, within reasonable probability, of the cause of the respiratory depression? A. I believe the evidence supports that it was a combination of all three drugs that he received in a very rapid fashion, combined with his underlying compromised state. Q. What do you base that on, Doctor? A. Mr. Constancio had multiple predictors that he was going to have respiratory failure; markedly abnormal vital signs in terms of his pulse ox showed that his saturation was 84 percent at one period of time. He had a markedly abnormal exam in terms of his lung exam. He had had increasing tachypnea, which I’ve included reference in your packet that that is also a high risk factor for predicting cardiac arrest, and he had received four very potent medications which are known to cause respiratory depression. When he was found by the physicians at this time, they found a pulse initially suggesting that this was a respiratory event. .... Q. When you order medications like Ativan, Haldol, morphine, and Phenergan—You’ve prescribed all four of those; right? 12 A. Yes. Q. Do you know what the pharmacological effects of those are on patients? A. I do. Q. Do you have any doubt in your mind that you have adequate training, knowledge, and experience with those medications to know what the effects of those are on patients such as Mr. Constancio? [objections omitted] A. I believe I have a very good foundation of effects in patients like this. .... Q. Have you studied them and used them in the practice of your profession? A. Yes. Q. Did you learn about them in medical school? A Yes. Q. And in residency? A. Yes. Q. In fellowship? A. Yes. Q. Do you teach about the facts of those four drugs to residents? A. Yes. Q. To fellows? A. Yes. 13 Hata pointed to the temporal relationship between the administration of the medications and the respiratory event and, factoring in Ruben’s sepsis, he opined that the medications were the critical “last straw” in causing Ruben’s respiratory event: Q. So if I understand your opinions with respect to Mr. Constancio’s underlying MRSA, your opinion within a reasonable medical probability as to what caused his code at 3:40 a.m. is the fact that three medications were administered at 1:45 a.m.; is that right? A. I would expound on that, if I may. Q. Go ahead. A. I think that when a patient like this dies, it’s usually multiple factors. I think the patient’s underlying disease contributed to his respiratory failure. I think the patient was likely septic and having increasing respiratory compromise. I think the final straw was receiving three medications—or, actually, four medications over a short period of time which caused respiratory depression. Given Hata’s testimony and its stated foundation on Ruben’s medical records, Hata’s professional experience, deposition testimony in this case, and medical literature, the Hospital’s contention that Constancio “wholly failed to provide any evidence of probative value” to show that Ruben’s death on December 13, 2003 was proximately caused by his “respiratory arrest” on December 1, 2003 is unpersuasive. Hata’s testimony lacks the type of analytical gap identified in Tennyson, a case cited by the Hospital, in which the expert’s causation opinion never stated how a particular type of abscess or infection caused death generally or the patient’s cardiac arrest specifically, but offered only that “early surgical drainage often leads to a good result.” See Tennyson, 2004 Tex. App. LEXIS 350, at 30-31. Nor does Hata’s causation testimony suffer from the type of analytical gap found in the causation testimony of an expert in Badhiwala v. Favors, 14 340 S.W.3d 560, 568 (Tex. App.—Dallas 2011, no pet.), who failed to connect the conduct of any hospital personnel to a patient’s cardiorespiratory failure from side effects of drugs she was prescribed at admission. Hata’s testimony is more like the unobjected-to causation testimony that an expert presented to the jury in THI of Tex. at Lubbock I, LLC v. Perea, 329 S.W.3d 548, 579 (Tex. App.—Amarillo 2010, pet. denied), which “established a traceable chain of causation from the condition—[the patient]’s arrest—back to the event—the administration of multiple doses of Ativan.” The physician expert in Perea opined that the patient—a seventy-eight-year-old man with a history of heart disease complicated by respiratory issues and diabetes—was oversedated and overdosed after he received a second dose of Ativan. Id. at 556, 562, 577. The expert opined that “[h]is breathing became increasingly more shallow until there was insufficient oxygen to support the functions of his heart or brain causing his heart to go into arrhythmia until he suffered a cardiac arrest and finally quit breathing altogether due to respiratory depression.” Id. at 562, 577; see also Sanjar v. Turner, 252 S.W.3d 460, 467-68 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (concluding that causation opinion in expert’s report was sufficient in that it explained basis for expert’s statements and described causal link between patient’s congestive heart condition, depression of her respirations from overmedication, and failure to adequately monitor her deteriorating condition). In Perea, approximately six hours passed between the time that the patient was administered medications and the time of his cardiac arrest. Id. at 578. Thus, the evidence offered by the claimants’ expert in that case presented a weaker temporal connection than does the evidence 15 here, because fewer than two hours passed between Ruben’s receipt of the medications and his respiratory event. See Crump, 330 S.W.3d at 219 n.3 (noting that while temporal proximity alone will not support inference of medical causation, “when combined with other causation evidence, evidence that conditions exhibited themselves or were diagnosed shortly after an event may be probative in determining causation” (quoting Guevara v. Ferrer, 247 S.W.3d 662, 667-68 (Tex. 2007)). Hata’s testimony offering a causal link between the effects of the administered medications and the respiratory event meets the minimum standards for reliability under Robinson. Hata relies on the medications’ published literature instead of a “subjective interpretation” of the data. He considers Ruben’s reported symptoms and the medical records to reach his opinion and rules out other theories in a process that accords with the differential diagnosis technique that is “generally accepted as valid” by the scientific community of physicians, and he utilizes the same methodology in a “non-judicial” setting when he treats patients who present with conditions like Ruben’s. See Robinson, 923 S.W.2d at 557. Hata’s testimony also satisfies Gammill by making a causal link between the concurrent administration of medications that are recognized in medical literature as respiratory depressants, the lack of continuous pulse-oxygen monitoring to alert Hospital staff to a decline in Ruben’s respiratory function, the respiratory event, the lack of oxygenation to the brain, the brain damage, the commencement and discontinuance of support, and death; as such, there is not “too great an analytical gap between the data and the opinion proffered” to be reliable. See Gammill, 972 S.W.2d at 727. 16 However, this addresses only part of the Hospital’s complaint about the unreliability of Hata’s testimony. The Hospital also contended that Hata’s opinion that Ruben would have survived was speculative and based only on assumptions. We turn now to Hata’s causation opinion on continuous pulse-oxygen monitoring in addressing the Hospital’s further contention. 2. Continuous pulse-oxygen monitoring Hata’s causation opinion attributes Ruben’s respiratory event to the medications administered to him concurrently at 1:45 a.m., but Hata further opined that Ruben should have received continuous pulse-oxygen monitoring. Hata testified that if the staff had used continuous pulse-oxygen monitoring, even after the combination of medicines given to Ruben, there was a reasonable probability that Ruben would have received earlier oxygen intervention and survived. Hata testified that oxygen saturation is beneficial to patients like Ruben because respiratory failure, or failure of the lungs, is a complication of diabetic ketoacidosis, and having oxygen saturation information would have helped clinicians and nurses to know that he was doing poorly. Hata further testified that a pulse oximeter is a noninvasive, effective device that usually fits on a finger and is used in many intensive and intermediate care units to monitor oxygen in a patient’s blood. The device will sound an alarm if a patient’s oxygen level falls to life-threatening levels so that the health care provider can increase the oxygen or have other medical interventions. Hata specified the particular usefulness of continuous pulse-oxygen monitoring in Ruben’s case: Q. Do you have an opinion from the time he was admitted—Mr. Constancio was admitted into the step-down unit, up until the time of his arrest, whether or not he should have been under constant blood oxygenation monitoring; first of all, do you have an opinion? 17 A. It’s my opinion he should have had continuous monitoring— Q. Why? A. —of oxygen saturations. The major reasons were that the patient had shown evidence of hypoxemia, that is, low blood oxygen levels, during the stay. Secondly, we know because of the del[i]rium he was at higher risk for failure of the lungs. Third, this is an intermediate care unit for somebody who the physician thought was at high risk. Relying entirely on two excerpts of Hata’s testimony, the Hospital argues that Hata’s causation opinion was: (1) speculative in requiring assumptions that Ruben could and would have responded to treatment for sepsis and (2) incapable of testing because Hata declined to assign percentages of causation between Ruben’s underlying condition and his medications: Q: How, in your opinion, within reasonable medical probability did this respiratory event at 3:30 on the 1st play into his ultimate death, if at all? A: I believe it was a major factor. Q: Explain how? A: Once the patient became hypoxemic and developed encephalopathy, ultimately there was a decision to limit support for the patient. If the patient had responded, his sepsis could have been treated, his DKA would have responded, and I think he would have survived. ... Q: What percentage of the cause of his death do you attribute to these medications that you’ve talked about? A: Again, that is very difficult. My concerns are the medications led to the rapid deterioration in terms of his respiratory status. A: May I go on? 18 A: If this patient had been a 25-year-old, healthy individual, these medications may not have caused the same degree of compromise; but this patient was, again, older. He had chronic medical problems. So I think all three together—all of the medications together caused his respiratory failure. Q: But you cannot tell the jury or me what percentage is attributable to his underlying disease as opposed to his medications? A: I think that’s very hard to do that in a valid fashion. The Hospital does not cite any legal authority requiring an expert to assign percentages between causation factors of death or injury; rather, the controlling legal authority on proximate cause requires a showing that the negligence was a substantial factor in causing the injury and without which the harm would not have occurred. See Hawley, 284 S.W.3d at 860. In any event, Hata did opine that Ruben would have survived, even with the sepsis: Q. I know you’re reluctant to do percentages, but would you agree with me that with all of the things that we’ve talked about, and the increased risk of mortality that we’ve added to the equation as we’ve gone through Mr. Constancio, that more likely than not he had a substantial risk of mortality when he first hit the door at Shannon? [objection omitted] A. When you say substantial, what do you mean by that? Q. Good. Was it more likely than not that this was going to be a terminal illness for him when he hit the door of the emergency room? A. When you say that, that infers you mean greater than 50 percent? Q. Yes, sir. I’m trying to avoid that percentage, but that’s what I’m asking straight up; yes, sir. A. I don’t think so. 19 Q. It could be close to that; agreed? Again, you can’t use percentages. A. I thought he had a better chance than that to survive, particularly with the response that he had. Hata testified that “[i]f you intervene early, you can prevent deaths from sepsis,” and noted that Ruben responded well to his initial treatment and did not have any other organ failure. Hata opined that even with the combination of medicines given to Ruben, if the staff had used continuous pulse- oxygen monitoring, there was a reasonable probability that Ruben would have survived: Q. Well, let me ask you another question. Would you agree with me that it was going to be a significant challenge for him to overcome the occult MRSA infection that he had, given his underlying health conditions; would you just agree with that statement? A. Yes. Once, after his arrest, he was placed on antibiotics, and initially he required some hemodynamic support, but those were—the hemodynamic support was—I mean, he did not require that for a long time. He did not have evidence of other significant organ failure. So once he received appropriate therapy, he seemed to get better, except for his brain injury. ... Q: Now, what difference would it have made, Doctor, if he had been on continuous pulse ox monitoring beginning at midnight, and even after he got these three medications? What difference, if any, would that have made, in your opinion? A: The benefits of having pulse oximetry continuously is that an alarm will sound, health care providers will go to the patient immediately and provide adequate support. Q: What, in your opinion, within a reasonable probability, would have happened if we assume this whole fact scenario that he got the Haldol at the afternoon, that he had the respiratory changes that we saw late in the night into the early morning of the 1st, that he even got these three drugs; had he been on a continuous pulse ox monitoring, what, in your opinion, would have been the results for Mr. Constancio? 20 A: I believe the patient would have survived. Q: Why? A: I believe that— Q: Why do you believe he would have survived? A: I believe that with appropriate support, treatment of his sepsis, which he was shown to have, he would have responded to. I believe that his major event in terms of having hypoxic encephalopathy would have been prevented by early use of oxygen. Q: Explain that. If he had been on the pulse ox after the 1:45 medications were given? A: Yes. Q: Do you have an opinion within reasonable medical probability whether or not his oxygen saturations decreased up to the time of his respiratory event at 3:30? A: Based on all of the evidence I have, I believe that his oxygen saturations would have dropped to life threatening levels. Q: If he would have been on—the little thing on his finger, the monitoring— A: Yes. Q: If it was hooked up, and it was working, would an alarm have sounded? A: Yes. Q: If an alarm had sounded, what is the staff or a nurse supposed to do? A: The staff will come to bedside, assess the patient, provide oxygen. Q: Was that done in this patient, based on the records you’ve seen? A: Based on the records I’ve seen, it was not done until it was too late. 21 Q: Let me re-ask this. Do you have an opinion as to whether or not the alarm would have sounded before it got to the point that he was in arrest that led to brain damage? A: I believe that to be so. Q: If the alarm had sounded prior to him getting to O2 sats to the point he had gotten brain damage, were interventions available that would have prevented the brain damage, within reasonable medical probability? A: Yes. Q: What would those interventions have been at this facility? A: Based on all of the information I have, this is a very solid facility. They would have called people to the bedside, they would have provided oxygen, and they would have begun resuscitation. Q: Resuscitation would include turning up his oxygen? A: Yes. Q: Could it include turning up his oxygen? A: It could include increasing oxygen. Q: Could it be call a code? A: Yes. Q: Could it include intubating the patient? A: Yes. Q: Within reasonable probability, had those things been done prior to the arrest, would he have survived? A: I believe so. 22 The Hospital’s expert, Dr. Marck agreed that timely medical intervention would have prevented Ruben’s respiratory event, that Ruben showed signs of responding to his treatment for sepsis, and that nurses could use their own judgment to check a patient’s blood oxygen saturation without a physician’s order: Q: And just so I—because we’ve got to change the tape, and I just want to finish this part. So what I’m hearing you say, if he would have gotten adequately oxygenated in the 1:00 a.m., 1:30 a.m. time frame— A: Uh-huh. Q: —had that been achieved— A: It could have made a difference. Q: -—and it probably would have made a difference? A: That’s—that’s possible. Yes. I’ll agree with that. Q: Those are kind of key words, probable, possible, could have. But what I want to know is based upon what you see after the event and before the—before the event. If he had gotten that oxygenation previously, he probably would not have had the event of 3:30. Correct? A: That’s possible. I would agree with that. Q: You would agree with that? A: Yes. .... Q. After the event of 3:30 in the morning— A. Okay. Q. —and they realized that he was septic at that point in time. Am I right? 23 A. Yes. Q. They began treating that, didn’t they? A. Yes. Q. Was he responding to that treatment? [objection omitted] A. There were signs of that, yes. Q. Is that a good sign or a bad sign? A. That’s a good sign. Q. All right. A. His white blood cell count was coming back up. And yeah, it looked like things were improving. Q. And there was—save and except for his—the brain injury that he had, you didn’t see anything that was keeping him from continuing to improve and respond to the treatment, did you? [objections omitted] A. No. .... Q. All right. And in a patient like Mr. Constancio, the nurses don’t have to have a—an order to check his O2 saturations if they think in their judgment there’s a circumstance that says are we getting good oxygenation for the patient? A. That’s right. Similar testimony came from Cynthia Clark, who worked for the Hospital as a bedside nurse and charge nurse. She worked at the Hospital from 11:00 p.m. on November 30 until 24 7:00 a.m. the next day, cared for Ruben, and made entries in medical records about his care. She testified that normal respirations for a patient with DKA are between 18 and 24, and agreed that there was a significant change between Ruben’s vital signs at midnight, which showed respirations at 22, and the respiratory therapist’s assessment forty minutes later, which showed respirations at 32. Clark also testified that with such information, a reasonable and prudent nurse should have gone to Ruben’s bedside, assessed him, and checked his pulse oxygen. Finally, with regard to the manner in which Hata worked through the data to his conclusions, Marck acknowledged that he had no criticism of the methodology that Hata used in reaching his causation opinion. See Crump, 330 S.W.3d at 217 (stating that Robinson reliability inquiry focuses “solely on the underlying principles and methodology, not on the conclusions they generate”); Robinson, 923 S.W.2d at 557. Marck testified that Hata used “a very academic approach” by considering the literature, pharmacology, his experience, and Ruben’s condition to reach his conclusions. Marck further agreed that Hata was not “out of line” for coming up with his theory linking causation to the drugs. A fair summary of Hata’s causation testimony is that but for the concurrent administration of the medications causing Ruben’s respiratory event, and the Hospital staff’s lack of continuous pulse-oxygen monitoring to alert when intervention was needed to prevent it, Ruben would have lived. Hata specifically attributes Ruben’s death to his receipt of a combination of drugs with published respiratory-suppressing effects, administered concurrently without proper pulse- oxygen monitoring, which resulted in his suppressed respiratory function as shown by the medical records and deposition testimony, a lack of notification to hospital staff to intervene when his blood 25 oxygen level declined, his loss of oxygen to the brain, the institution of life support, its eventual withdrawal, and his death. Hata’s causation opinion relied on evidence in the medical records to refute Marck’s suggestion that Ruben’s death due to sepsis was inevitable, pointing out Ruben’s positive response to his treatment and his lack of other significant organ failure. By the Hospital’s own expert’s admission, Hata utilized a “very academic approach” in reaching his opinions. Nonetheless, as in many cases, the Robinson factors do not align perfectly with the issues in this case. See Robinson, 923 S.W.2d at 557. As previously noted, Hata’s specific opinions are not susceptible to “testing” or “peer review,” nor does his methodology have a mathematical “rate of error.” See id. However, his reliance on the medications’ published literature satisfies those criteria to some degree and tends to negate a “subjective interpretation” of the data, his process of considering Ruben’s reported symptoms and the medical records to reach his opinion and ruling out other theories accords with the differential diagnosis technique that is “generally accepted as valid” by the scientific community of physicians, and Hata utilizes the same methodology in a “non-judicial” setting when he treats patients who present with conditions similar to Ruben’s. See id. We conclude that Hata’s testimony, which makes a causal link between the concurrent administration of medications that are recognized in medical literature as respiratory depressants, the lack of continuous pulse-oxygen monitoring to alert Hospital staff to a decline in Ruben’s respiratory function, the respiratory event, the lack of oxygenation to the brain, the brain damage, the commencement and discontinuance of support, and death, does not present “too great an analytical gap between the data and the opinion proffered” to be reliable. See Gammill, 972 S.W.2d 26 at 727. Hata’s testimony offered more than merely “his credentials and a subjective opinion.” Cf. Cooper Tire, 204 S.W.3d at 801; Havner, 953 S.W.2d 706 at 712; see also Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987). Because Hata had a sufficiently reliable foundation for his opinions on proximate cause to warrant admission of his testimony linking the respiratory event of December 1, 2003 to Ruben’s death, the exclusion of Hata’s testimony was an abuse of discretion. Accordingly, we sustain Constancio’s first issue. Having determined that Hata’s causation testimony should not have been excluded, we must now determine whether Hata’s testimony constituted more than a scintilla of evidence to raise a genuine issue of material fact in response to the Hospital’s no-evidence motion for summary judgment. Hospital’s no-evidence motion for summary judgment In her second issue, Constancio contends that the district court erred in granting the Hospital’s no-evidence motion for summary judgment. As previously noted, the court excluded Hata’s testimony specifically as to causation and clarified that its ruling and entry of the exclusion order preceded its consideration of the Hospital’s no-evidence motion for summary judgment. A party seeking a no-evidence summary judgment contends that there is no evidence of one or more essential elements of a claim on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). If the respondent does not produce summary judgment evidence raising a genuine issue of material fact, the trial court must grant the motion. Tex. R. Civ. P. 166a(i); Hamilton, 249 S.W.3d at 426. We review a no-evidence summary judgment for evidence that would enable reasonable and 27 fair-minded jurors to differ in their conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). A no-evidence point will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Havner, 953 S.W.2d at 711). When determining whether more than a scintilla of evidence has been produced in response to a no-evidence motion for summary judgment, we view the evidence in the light most favorable to the non-movant. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). Because the district court’s order does not specify the grounds for its ruling, we may affirm the summary judgment if any of the theories presented to the district court and preserved for appellate review are meritorious. Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003)). To prevail on a medical-malpractice claim, the plaintiff must prove: (1) the health care provider had a duty to act according to a certain standard; (2) the provider breached that standard; and (3) the breach proximately caused the plaintiff to sustain injury. See Hamilton, 249 S.W.3d at 426 (recognizing required elements applied by appellate court). Constancio contends that if Hata’s causation testimony had not been excluded, the Hospital’s no-evidence motion for summary judgment would have been denied because she presented more than a scintilla of evidence to create an issue of material fact on her claim that the Hospital’s nurses were negligent. The 28 Hospital’s motion argued that there was no evidence of Constancio’s wrongful death damages and, if Hata’s testimony were excluded, Constancio would have no evidence of causation. Although two of the Hospital’s witnesses, Dr. Marck and Nurse Clark, testified as to certain aspects of causation—namely, that Ruben’s respiratory event “almost had to be” the cause of his brain damage, and that a reasonable and prudent nurse should have included pulse oximetry in an assessment of Ruben’s changing respiratory rate—Hata’s testimony was essential because it was the only expert testimony affirmatively linking the nurse-administered medications and lack of continuous pulse-oxygen monitoring during Ruben’s respiratory decline to his ultimate death. See American Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 876 (Tex. 2001) (“Texas courts have long recognized the necessity of expert testimony in medical-malpractice cases.”); Chester v. El-Ashram, 228 S.W.3d 909, 914 (Tex. App.—Dallas 2007, no pet.) (“Without expert testimony in a medical malpractice action, there is no issue to submit to the jury.”); Wiggs v. All Saints Health Sys., 124 S.W.3d 407, 414 (Tex. App.—Fort Worth 2003, pet. denied) (affirming trial court’s take-nothing judgment because claimants’ sole causation evidence supporting their claims was from experts’ testimony that court had excluded as unreliable); see Tennyson, 2004 Tex. App. LEXIS 350, at 32 (concluding that expert’s testimony was sole evidence supporting medical- malpractice action and after its exclusion claimant “was left with no evidence to defeat Appellees’ no-evidence motion for summary judgment”). As the hospital predicted in its argument below, a favorable ruling on its Daubert/Robinson challenge cleared the way for its no-evidence motion for summary judgment: “[I]n the event the Court sustains the Defendant’s Motion and precludes the testimony of Plaintiffs’ 29 expert witness as to offering any evidence as to any departure from the standard of care and/or proximate cause, then Plaintiffs would be precluded from offering any evidence of liability or causation and summary judgment as to those allegations would be ripe for dismissal.” If Hata’s testimony had not been excluded, Constancio would have presented greater than a scintilla of evidence on her allegation of the Hospital’s liability for the negligence of its nursing staff. Because we have previously determined that the district court abused its discretion in striking Hata’s causation testimony, and because his testimony constitutes more than a scintilla of evidence creating a material fact issue as to the element of causation, we conclude that the district court erred in granting the Hospital’s no-evidence motion for summary judgment on this ground. See Tex. R. Civ. P. 166a(i). Further, as to the Hospital’s argument that there was no evidence of Constancio’s wrongful death damages, Constancio provided an affidavit to the district court describing the history of her relationship with her husband, her presence at his side as he was treated and when he died at the Hospital, her emotional pain in his absence, and her grief over the loss of his advice, his emotional support, and their plans for the future together. Wrongful death damages may include recovery for mental anguish, loss of companionship and society, pecuniary losses, and loss of inheritance. Moore v. Lillebo, 722 S.W.2d 683, 687 (Tex. 1986); see Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001-.012 (West 2008) (Wrongful Death Act). The Hospital did not challenge Constancio’s affidavit. We conclude that Constancio’s affidavit constitutes more than a scintilla of evidence creating a material fact issue as to her wrongful death damages; thus, the Hospital was not entitled 30 to a no-evidence summary judgment on the alternative ground raised in its motion. See Tex. R. Civ. P. 166a(i); Knott, 128 S.W.3d at 216; Lillebo, 722 S.W.2d at 687. Accordingly, we sustain Constancio’s second issue. CONCLUSION Having sustained both of Constancio’s issues, we reverse the district court’s order granting the Hospital’s Daubert/Robinson Challenge and Motion to Exclude Opinion Testimony of J. Stephen Hata, M.D., reverse the order granting the Hospital’s No-Evidence Motion for Summary Judgment, and remand this case to the district court for further proceedings consistent with this opinion. Jeff Rose, Justice Before Justices Puryear, Pemberton and Rose Reversed and Remanded Filed: May 22, 2012 31	{ "pile_set_name": "FreeLaw" }
265 N.W.2d 842 (1978) 200 Neb. 726 Brian BRAESCH et al., Appellees, v. Daniel DePASQUALE et al., Appellants. No. 41380. Supreme Court of Nebraska. May 3, 1978. 843 Neil W. Schilke of Sidner, Svoboda, Schilke, Wiseman & Thomsen, Fremont, for appellants. Clayton H. Shrout of Shrout, Christian, Krieger, Merwald & Mori, Verne Moore, Jr. of Moore, Moore & Peters, Omaha, for appellees. Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, BRODKEY, and WHITE, JJ., and KUNS, Retired District Judge. McCOWN, Justice. The plaintiffs brought this proceeding in the District Court for Washington County, Nebraska, to enjoin the defendant school officials from enforcing any rules of conduct that would prevent full participation by the plaintiffs in the interscholastic basketball program of the Arlington Public Schools. The District Court granted a permanent injunction enjoining defendants from preventing plaintiffs from full participation in the interscholastic basketball teams of Arlington, Nebraska. The defendants have appealed. The plaintiffs in this action were all minors under the age of 19 and represented by their respective parents. All five plaintiffs were senior members of either the boys or the girls interscholastic basketball teams of Arlington High School. Rules of conduct for boys and girls basketball teams were distributed at the beginning of the 1976-77 basketball season. Participants in the basketball program were required to sign them and obtain one parent's signature on a copy of the rules. The rule involved here was: "DRINKING, SMOKING OR DRUGS: Do not come out for basketball if you plan on using any of the above. Any use of them will result in the immediate expulsion from the squad." Each of the plaintiffs and one or more of their parents had signed the rule. On Saturday evening, January 8, 1977, a party was held at the home of one of the plaintiffs. The other plaintiffs, along with other seniors who were not members of the interscholastic basketball teams, attended the party. A few days later, Robert Krempke, the coach of the boys basketball team, overheard conversations at school about the party and learned that a senior boy not on the basketball team had been arrested on the evening of the party on a charge of minor in possession. On January 12, 1977, the coach approached the plaintiff who had been the host for the party and questioned him about the party. The plaintiff host admitted that there had been beer 844 at the party and that he and other members of the basketball team were "involved." After consulting with the school principal, the basketball coach talked with each of the plaintiff members of the boys basketball team. Each admitted being at the party and drinking. The coach told them to leave basketball practice, and told them that he would arrange a meeting with them and their parents, and the principal, the following morning. The following morning, January 13, 1977, Daniel DePasquale, the principal of the high school, and Mr. Krempke, the coach, met with two of the boys involved, and on the next morning with the third. Each boy was accompanied by a parent or adult member of his family. At these brief meetings the coach told the persons present that the rules required expulsion from the basketball team, and the principal supported the coach. The principal testified that at the conclusion of these meetings he considered the boys suspended from the team and told them the decision would be confirmed by mail. On January 13, 1977, Eloise Hiemke, the girls basketball coach learned about the drinking party from one of the girls involved and from an assistant coach. On the morning of January 14, 1977, the girls coach met with the two girls involved, asked each of them if they had been at the party, and if they had had any alcoholic beverages to drink. Each of the girls admitted she had. The principal and the girls basketball coach met with the girls and their parents on the afternoon of January 14, 1977. The principal and the girls coach advised the girls and their parents that they felt the girls should be expelled from the team, and that an official letter would be mailed to them advising them of the decision and telling them what could be done to appeal the decision. The principal opinion expressed by the parents at the various meetings was that the penalty was too severe. By letter dated January 18, 1977, the principal notified all the plaintiffs and their parents that each of the plaintiffs had been suspended from the basketball team until January 31, 1977, and then expelled from the team for the remainder of the season. The letter also informed them that they had 5 days in which to give written notice of their desire to appeal to the board of education, and that at the hearing they would each have the right to present their side of the issue, present any documents or statements, and cross-examine witnesses and be represented by counsel. By letters dated January 20, 1977, each of the plaintiffs requested a hearing. On January 21, 1977, the plaintiffs filed this action in the District Court for Washington County, and obtained a temporary order restraining the defendant school officials from enforcing any rules that would prevent full participation by the plaintiffs in the interscholastic basketball program. Hearing on a temporary injunction was set for January 28, 1977. On January 24, 1977, the plaintiffs were advised by the principal that they were entitled to a hearing before a hearing examiner. The hearing examiner advised the plaintiffs that hearing would be held at 4:30 p. m., on January 26, 1977, at the school. The plaintiffs declined to participate in the appeals procedures established by the school board. On January 28, 1977, following a hearing, the District Court granted a temporary injunction enjoining the defendants from preventing the plaintiffs from full participation on the interscholastic basketball teams. Trial on the permanent injunction was later set for and held on February 18, 1977. Following the hearing, the court specifically found that the right to participate in interscholastic basketball activities was "a constitutional right protected by the due process clause of the state and federal constitutions" and that plaintiffs had been deprived of that right without due process. The District Court entered a permanent injunction enjoining defendants from preventing plaintiffs' full participation in the interscholastic basketball teams of Arlington High School. The defendants have appealed. The plaintiffs filed a motion to dismiss the appeal in this court on the ground that 845 the matter is moot. All the plaintiffs have now graduated from high school. It is contended that the judgment in this court will, therefore, have no practical effect as to them, and there is no ground for appellate review. The defendants contend that although the issues may be moot as to the particular plaintiffs here, the case nevertheless involves matters of public interest which affect all schools in the state that maintain programs of interscholastic athletics. Some cases hold that in a case which has become moot, an appeal will not be retained merely for determining the question of costs. As a general rule, appellate courts do not sit to give opinions on moot questions on abstract propositions, and an appeal will ordinarily be dismissed where no actual controversy exists between parties at the time of the hearing. In State ex rel. Coulter v. McFarland, 166 Neb. 242, 88 N.W.2d 892, this court recognized that general rule but said: "This general rule, however, is subject to some exceptions, as where the question involved is a matter of public interest; * ." The court then held that the questions involved in that case presented matters of public interest because they affected all county courts of the state. The questions involved in the case now before us also present matters of public interest. In the context of disciplinary action in the field of interscholastic athletic competition, almost no case could reach this court for decision before it became moot if we refused to decide all cases where no actual controversy still exists between the parties at the time of appellate hearing and decision. The motion to dismiss is not well taken. There is some disagreement between the parties as to whether participation in high school athletics is a constitutional right or is a privilege not protected by any constitutional principle. Since Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534, the Supreme Court of the United States has abandoned much of the former dichotomy between rights and privileges in constitutional classifications. The Fourteenth Amendment's protection of property extends to benefits which, under state law or practice, a person has a claim or entitlement. Bd. of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. The Supreme Court of the United States has also held that temporary suspension from public school infringes upon property or liberty interests protected by the due process clause of the Fourteenth Amendment. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725. The State of Nebraska, as a part of its program for public education, has provided athletic opportunities to all public school students. Participation in interscholastic athletics ordinarily has significantly less important constitutional dimensions than does participation in traditional academic education. A student's interest in participation in high school athletics is nevertheless a significant one. Brenden v. Independent School Dist., 477 F.2d 1292 (8th Cir., 1973). In the light of these constitutional principles, the question is whether the due process clause limits the power of the defendants to exclude the plaintiffs from participation in the interscholastic athletic program of Arlington High School. Assuming that the application of the rule of conduct involved here implicates a property or liberty interest which is protected by the Fourteenth Amendment, the question becomes one of what process was due the plaintiffs under the circumstances of this case. Due process is not a technical fixed concept to be applied in all conditions, but must be flexible. It calls for such procedural protection as may be appropriate to meet the particular situation. In Goss v. Lopez, supra, the Supreme Court held that due process requires that a student facing temporary academic suspension for disciplinary reasons be given oral or written notice of the charges against him, and, if he denies them, an explanation of the evidence the authorities have and an opportunity to explain his side of the story. The Supreme Court required those rudimental precautions against unfair or mistaken findings and arbitrary exclusion from school. Certainly 846 no greater requirements should be imposed for expulsion from interscholastic athletics. There can be no doubt that each of the plaintiffs here had specific advance notice of the rule of conduct involved, and notice of the date, time, and place of the violation charged. Each of the plaintiffs admitted his or her violation of the rule. Courts that have considered the issue have generally concluded that when the acts which are the basis for disciplinary action are admitted, the requirements of due process are far less stringent, and that due process requirements with respect to the "guilt" finding process have been met by the admissions. See, Betts v. Bd. of Educ. of City of Chicago, 466 F.2d 629 (7th Cir., 1972); Ector County Independent School Dist. v. Hopkins, 518 S.W.2d 576 (Tex.Civ.App., 1974). In the latter case the court said: "With regard to what process is due, where students admit the misconduct with which they are charged, the function of procedural protections in insuring a fair and reliable determination of the issue of `guilt' is not essential." In the case before us the plaintiffs do not dispute that there was a specific rule of conduct for interscholastic basketball participants; that each of them and their parents had actual notice of the rule in advance; and that each of the plaintiffs violated the rule. The plaintiffs' position is simply that the rule was arbitrary and unreasonable or that the penalty was too great. Rules prohibiting use of alcoholic liquor or drugs by participants in interscholastic athletics are clearly appropriate. In Richardson v. Braham, 125 Neb. 142, 249 N.W. 557, this court upheld the right of public schools to make reasonable rules for student conduct, and held that in order to overturn such rules on the ground that they were unreasonable or arbitrary, or that they invade private rights, the evidence of such facts must be clear and satisfactory. This court said: "The wisdom or expediency of a rule adopted by a school board and the motive prompting it are not open to judicial inquiry, where it is within the administrative power of that body." Rules governing the conduct of participants in interscholastic athletics duly and regularly adopted by school authorities ought to be valid and enforceable unless they are clearly arbitrary and unreasonable and serve no legitimate end of educational athletic policy. The rule involved in this case, even though the penalty of expulsion for the season might be deemed severe by some persons, clearly serves a legitimate rational interest and directly affects the discipline of student athletes. It cannot be said that the prescribed penalty was an arbitrary and unreasonable means to attain the legitimate end of deterrence of the use of alcoholic liquor by student athletes. See, Bunger v. Iowa High School Athletic Assn., 197 N.W.2d 555 (Iowa); Annotation, 53 A.L. R.3d 1110 at p. 1124. Although due process may also contemplate an opportunity to be heard on the question of the penalty to be imposed where the penalty is discretionary rather than prescribed, that opportunity was also provided here. In addition to the informal procedures and meetings, which met all rudimentary requirements of due process, the plaintiffs here were also given the right to appear at a formal hearing with a right to present evidence, cross-examine witnesses, and be represented by counsel. A hearing examiner was appointed and a date set for hearing but the plaintiffs declined to participate in any of the appeals procedures established by the school board. Instead, they commenced this injunction action 1 day after they had requested the appeals procedures offered by defendants, and the temporary injunction was obtained in the District Court 2 days after the date set for the school hearing which plaintiffs had already refused. Under such circumstances courts should be reluctant to interfere prior to completion of prompt and reasonable procedures for obtaining a final order of the school board. A few days suspension from interscholastic athletic competition can hardly be said to constitute such irreparable harm as to justify judicial interference *847 with orderly and prompt school board procedures. While school boards are not subject to the Administrative Procedures Act, the rules broadly applying to judicial review of the action of administrative agencies are, or should be, equally applicable here. It is the general rule that administrative action which is not final cannot be attacked in an injunction proceeding, the reason being that in the absence of a final order or decision, power has not been fully and finally exercised and there can usually be no irreparable harm. See 2 Am.Jur.2d, Administrative Law, § 583, p. 411. On the evidence in this case, a few days delay could not constitute irreparable harm in a constitutional sense or otherwise. It is clear in this case that the school board had the power to change or reduce the penalty if it were determined to be arbitrary and unreasonable. The plaintiffs refused to exhaust that remedy or to pursue it to the point of finality at which it might be ripe for judicial review. Where a board of education has provided effective, reasonable, and prompt procedures for notice, hearing, and review of an order of expulsion from participation in interscholastic athletics, and the athlete neglects or refuses to follow or comply with such procedures and exhaust such remedies, such neglect or refusal ordinarily constitutes a waiver of any right to subsequent injunctive relief. The action of the District Court in granting the injunction here was erroneous and is therefore reversed. REVERSED.	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 17, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 16-6342 v. (D.C. Nos. 5:16-CV-00217-F and 5:11-CR-00192-F-1) NEIL JASON WILFONG, (W.D. Oklahoma) Defendant - Appellant. _________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________ Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. _________________________________ Neil Jason Wilfong, through counsel, appeals the district court’s order denying his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Wilfong’s application for a certificate of appealability (COA).1 BACKGROUND On September 6, 2011, a federal grand jury charged Mr. Wilfong in a one- count superseding indictment with possession of a firearm after a felony conviction * This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Although Mr. Wilfong did not file an application for a COA in this court, we construe his notice of appeal as a request for a COA. See 10th Cir. R. 22.1(A). in violation of 18 U.S.C. § 922(g)(1). On September 19, 2011, a jury found Mr. Wilfong guilty of that charge. Before sentencing, the United States notified Mr. Wilfong that it intended to seek a sentencing enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The ACCA sets a mandatory minimum sentence of 15 years for a felon with three or more prior convictions for a “serious drug offense” or a “violent felony.” Id. The ACCA defines violent felony as a crime that is punishable by more than one year in prison and that falls within one or more of the following categories: (1) it “has as an element the use, attempted use, or threatened use of physical force against the person of another” (the elements clause); (2) it “is burglary, arson, . . . extortion, or involves use of explosives” (the enumerated-offenses clause); or (3) it “otherwise involves conduct that presents a serious potential risk of physical injury to another” (the residual clause). Id. § 924(e)(2)(B). The United States Probation Office determined Mr. Wilfong was subject to an enhanced sentence based on a federal conviction for use of a telephone to make a threat as to an explosive device, a state conviction for larceny from a person, and two state convictions for assault with a dangerous weapon. Mr. Wilfong challenged the use of the federal conviction and the state larceny conviction as bases for applying the enhancement. The court rejected Mr. Wilfong’s position and concluded that his federal conviction for use of a telephone to make a threat as to an explosive device under 18 U.S.C. § 844(e) was a violent felony under the elements clause, and that his larceny 2 conviction was a violent felony under the residual clause. The court then sentenced Mr. Wilfong to 300 months’ imprisonment, followed by 5 years’ supervised release. On direct appeal, we upheld his conviction and sentence. See United States v. Wilfong, 528 F. App’x 814 (10th Cir. 2013) (unpublished). Concerning whether a sentencing enhancement was appropriate under the ACCA, Mr. Wilfong conceded on appeal that his two convictions for assault with a dangerous weapon were violent felonies. Id. at 820. Noting that only one additional violent-felony conviction was needed to justify the enhancement, we held that Mr. Wilfong’s larceny conviction fell within the ACCA’s residual clause. Id. at 820–21. We therefore did not address whether Mr. Wilfong’s federal conviction under § 844(e) qualified as a violent felony under the Act, leaving the district court’s conclusion undisturbed. We issued our opinion on June 20, 2013, and our mandate on July 12, 2013, making Mr. Wilfong’s conviction and sentence final.2 On March 4, 2016, Mr. Wilfong filed a 28 U.S.C. § 2255 motion based on the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson, which issued on June 26, 2015, the Court held that imposing an enhanced sentence under the ACCA’s residual clause violates the Due Process Clause because the residual clause is impermissibly vague. Id. at 2557. The Court, however, explicitly stated that its decision “does not call into question application of the 2 On September 17, 2015, Mr. Wilfong moved this court to recall the mandate in view of Johnson v. United States, 135 S. Ct. 2551 (2015). We denied the motion on September 25, 2015, concluding that Mr. Wilfong may only challenge the validity of his sentence in a 28 U.S.C. § 2255 motion. Mr. Wilfong then filed a petition for writ of certiorari, which the Supreme Court denied on February 28, 2016. 3 [ACCA] to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.” Id. at 2563. The Court later made Johnson’s holding retroactive to cases on collateral review in Welch v. United States, 136 S. Ct. 1257, 1265 (2016). In its court-ordered response to Mr. Wilfong’s motion, the United States conceded that Mr. Wilfong’s Johnson-based challenge to his larceny conviction was timely under § 2255(f)(3). It also conceded that Mr. Wilfong’s larceny conviction is no longer a violent felony after Johnson. But it maintained that Mr. Wilfong’s other challenges to his convictions for assault with a dangerous weapon and his conviction for using a telephone to make a threat as to an explosive device are time-barred because they were brought more than one year after the date his judgment became final. See 28 U.S.C. § 2255(f)(1). The United States explained that Johnson did not affect the elements or the enumerated clauses of the ACCA, and thus Mr. Wilfong could not challenge his other three convictions under Johnson. And as a result, the United States argued, Mr. Wilfong still had the three necessary predicate offenses to justify an enhanced sentence under the ACCA. The United States also argued that, even if the challenges were timely, Mr. Wilfong’s other convictions were violent felonies under the ACCA. The district court largely agreed with the United States. Relying on United States v. Mitchell, 653 F. App’x 639 (10th Cir. 2016) (unpublished), the court first ruled that Mr. Wilfong’s convictions for assault with a dangerous weapon qualify as violent felonies under the elements clause. Moving to Mr. Wilfong’s federal conviction under § 844(e), the court held: 4 Because the court concluded [at sentencing] that [Mr. Wilfong’s] conviction fell under the elements clause, the court concludes that Johnson is not implicated and [Mr. Wilfong] cannot challenge his federal prior conviction under Johnson. Such challenge would be barred by the one-year time limitation set forth in 28 U.S.C. § 2255(f). Because Johnson does not call into question the elements clause, see Johnson, 135 S. Ct. at [2]563, the court finds its previous ruling stands and defendant has three prior convictions which qualify as violent felonies. Thus, [Mr. Wilfong] is not entitled to § 2255 relief. The district court then denied Mr. Wilfong a COA. And Mr. Wilfong now appeals. DISCUSSION On appeal, Mr. Wilfong does not contest the district court’s conclusion that his convictions for assault with a dangerous weapon qualify as violent felonies under the ACCA’s elements clause. He instead argues that his conviction for using a telephone to make a threat as to an explosive device under 18 U.S.C. § 844(e) is not a violent felony, and that he received ineffective assistance of counsel on direct appeal based on his appellate counsel’s failure to argue the sentencing court erred when it relied on the underlying facts in the presentence report to define the elements of the § 844(e) conviction. Mr. Wilfong concedes that his arguments hinge on whether his challenge to the § 844(e) conviction is timely. A prisoner challenging a district court’s denial of a 28 U.S.C. § 2255 motion must obtain a COA as a jurisdictional prerequisite to proceed with an appeal. 28 U.S.C. § 2253(c)(1)(B). We will issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 5 U.S. 473, 484 (2000). Because the issue here is timing, we may issue a COA only if Mr. Wilfong’s argument on timeliness is at least reasonably debatable. See United States v. Eaton, 614 F. App’x 380, 380 (10th Cir. 2015) (unpublished) (citing Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007)). Mr. Wilfong would ordinarily have only one year to file his motion from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). That window has, of course, come and gone. Mr. Wilfong thus relies on § 2255(f)(3), under which the one-year period runs from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” Mr. Wilfong argues that Johnson supplies the “right asserted” allowing the one-year period to run from June 26, 2015, the date Johnson was decided. But we agree with the district court that Johnson is not implicated because the sentencing court concluded that Mr. Wilfong’s § 844(e) conviction is a violent felony under the elements clause, not the residual clause. And the Court in Johnson only held that the residual clause is unconstitutionally vague, explicitly stating that its “decision d[id] not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.” 135 S. Ct. at 2563. Thus, Johnson does not afford Mr. Wilfong the relief he seeks. See United States v. Taylor, No. 16-6223, 2016 WL 7093905, at 2 (10th Cir. Dec. 6, 2016) (unpublished); In re Encinias, 821 F.3d 1224, 1225 n.2 (10th Cir. 2016) (per curiam); United States v. 6 Cherry, 641 F. App’x 829, 833 (10th Cir. 2016) (unpublished); Traxler v. United States, No. 1:16-cv-747, 2016 WL 4536329, at 5 (W.D. Mich. Aug. 31, 2016). Mr. Wilfong insists that 28 U.S.C. § 2255(a) allows a prisoner to bring a claim that his sentence “was in excess of the maximum authorized by law,” and it was only after Johnson that the allegedly improper characterization of his § 844(e) conviction made his § 922(g) sentence “in excess of the maximum authorized by law.” But Mr. Wilfong’s § 844(e) conviction was not found to be a violent felony under the residual clause. And he therefore cannot rely on Johnson to collaterally attack his sentence, or to extend the one-year time limitation on bringing a § 2255 motion. His claim, filed more than one year after the date his judgment of conviction became final, is time barred. We decline to issue a COA, and dismiss this matter. Entered for the Court Carolyn B. McHugh Circuit Judge 7	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ________________ No. 98-4051 ________________ Ernest P. Sharlow; * Jodi M. Sharlow, * * Appellants, * Appeal from the United States * District Court for the v. * District of Minnesota. * Wally McCarthy Pontiac-GMC * [UNPUBLISHED] Trucks-Hyundai, Inc., a Minnesota * corporation, * * Appellee. * ________________ Submitted: June 14, 1999 Filed: July 6, 2000 ________________ Before HANSEN and MAGILL, Circuit Judges, and JONES,1 District Judge. ________________ HANSEN, Circuit Judge. 1 The Honorable John B. Jones, United States District Judge for the District of South Dakota, sitting by designation. Ernest P. Sharlow and Jodi M. Sharlow (the Sharlows) appeal the district court's2 grant of summary judgment in favor of Wally McCarthy's Pontiac-GMC Trucks- Hyundai, Inc. (McCarthy) in this suit involving an alleged violation of the Minnesota Motor Vehicle Retail Installment Sales Act, Minn. Stat. § 168.66-77. We affirm. I. The Sharlows, citizens of Wisconsin, visited McCarthy in White Bear Lake, Minnesota, on or about January 3, 1995, and expressed an interest in trading in their current vehicle and purchasing a used GMC Sierra Truck. On January 7, 1995, the Sharlows and McCarthy executed a purchase agreement, a motor vehicle retail installment contract, and a financing addendum to both the purchase agreement and the retail installment contract. The financing addendum stated that it was "incorporated by reference to the vehicle purchase contract and the motor vehicle retail installment contract . . . In the event that the seller/dealer fails to arrange the subject financing and assign all of its interest . . . to a lending institution . . . the vehicle purchase contract and retail installment contract shall become null and void." (Appellants' App. at 100). Thereafter, McCarthy informed the Sharlows that it was unable to arrange financing with Firstar Bank according to the terms set out in the retail installment contract, in part due to the fact that Mr. Sharlow did not work at the place of employment identified in his credit application. McCarthy, however, was able to arrange financing through Metropolitan Federal. On January 17, 1995, the Sharlows and McCarthy executed a second purchase agreement and a second retail installment contract, which identified Metropolitan Federal as the assignee and contained less favorable terms for the Sharlows. 2 The Honorable John R. Tunheim, United States District Judge for the District of Minnesota. 2 After making several payments, the Sharlows defaulted, and McCarthy repossessed the truck on November 13, 1995. The Sharlows filed for bankruptcy in July 1996, in the Western District of Wisconsin, and their outstanding installment debt on the truck was discharged. On January 6, 1997, the Sharlows brought suit against McCarthy and Firstar Bank of Minnesota.3 The Sharlows alleged a breach of contract claim as well as violations of various provisions of the Equal Credit Opportunity Act, 15 U.S.C § 1691, the Motor Vehicle Retail Installment Sales Act, Minn. Stat. § 168.66-77, the Uniform Deceptive Trade Practices Act, Minn. Stat. § 325D.43-48, and the Prevention of Consumer Fraud Act, Minn. Stat. § 325F.68-70. The district court adopted the magistrate judge's report and recommendation, granted McCarthy's motion for partial summary judgment, and dismissed with prejudice the federal claim based on the Equal Credit Opportunity Act. The court retained jurisdiction over the remaining state law claims on the basis of supplemental jurisdiction authorized by 28 U.S.C. § 1367. On the four Minnesota state law claims, the district court later adopted the magistrate judge's subsequent report and recommendation and granted summary judgment to McCarthy on all four Minnesota state law claims. The Sharlows appeal the grant of summary judgment only on the Minnesota Motor Vehicle Retail Installment Sales Act claim. II. We review the grant of summary judgment de novo. Coplin v. Fairfield Pub. Access Television Comm., 111 F.3d 1395, 1401 (8th Cir. 1997). In conducting our review, we evaluate the record in the light most favorable to the nonmoving party. Id. Summary judgment is appropriate only when there is "no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Id. (quoting Fed. R. Civ. P. 56(c)). 2 The Sharlows settled with Firstar Bank, and their claims against Firstar Bank were dismissed with prejudice. 3 On appeal, the Sharlows assert that the financing addendum violated the Minnesota Motor Vehicle Retail Installment Sales Act (MMVRISA) because the MMVRISA requires that "[e]very retail installment contract . . . shall contain all the agreements of the parties," Minn. Stat. Ann. § 168.71(a)(1), and the financing addendum was not a part of the retail installment contract. Additionally, the Sharlows contend that the transaction was completed at the time that the first retail installment contract was signed, and therefore, McCarthy should be bound to its terms. In a case with virtually identical facts, the Minnesota Supreme Court, sitting en banc, held that the MMVRISA is not violated by a conditional delivery agreement that is not included in the retail installment contract despite the language of the act. See Scott v. Forest Lake Chrysler-Plymouth-Dodge, No. C4-99-161, 2000 WL 768539, at 4-5 (Minn. June 15, 2000). "The plain purpose of the MMVRISA is to require disclosure to consumers of the cost of credit extended to them . . . The 'agreement of the parties' clause serves to prohibit dealers from relying on separate agreements containing additional or contradictory financing terms." Id. at 5 (quoting Sharlow v. Wally McCarthy Pontiac-GMC Trucks-Hyundai, Inc., No. 97-20 (D.Minn. Sept. 28, 1998)). The MMVRISA does not require "every agreement to a condition precedent to be contained in the" retail installment contract. Id. Like the Sharlows' financing addendum, the conditional delivery agreement contained language that the retail installment contract would become null and void if financing was not approved. Id. at 2. The Minnesota Supreme Court concluded that the failure to attain financing prevented the first retail installment contract from becoming a contract and that it was not until financing was attained that Mr. Scott entered into a contract with the dealership. Id. at 5. Because the second retail installment contract fully disclosed the credit terms, it complied with the MMVRISA. Id. In accordance with the Minnesota Supreme Court, we conclude that the Sharlows' financing addendum did not violate the MMVRISA and that the second retail installment contract complied with the terms of the statute. 4 III. Accordingly, we affirm the judgment of the district court, and we deny all pending motions as moot. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT 5	{ "pile_set_name": "FreeLaw" }
906 F.Supp. 502 (1995) Elsie ALEXANDER, Individually, and as Guardian of Larry Alexander, Plaintiff, v. PATHFINDER, INC.; Colleen Black, Executive Director of Pathfinder, Inc., Individually and In Her Official Capacity; Cindy Crook, Administrator of Pathfinder Home, Individually and in Her Official Capacity; and Tom Dalton, In His Official Capacity as Director of Arkansas Department of Human Services, Defendants. No. LR-C-95-616. United States District Court, E.D. Arkansas, Western Division. October 27, 1995. 503 504 Cecilia Ryker Seay, Theresa Lynn Harmon Caldwell, Little Rock, AR, for plaintiff. Billy S. Clark, Friday, Eldredge & Clark, Little Rock, AR, for Pathfinder, Inc., Colleen Black, Cindy Crook. Breck G. Hopkins, Arkansas Department of Human Services, Office of General Counsel, Little Rock, AR, for Tom Dalton. ORDER HENRY WOODS, District Judge. This case involves the discharge of a 32-year old man, Mr. Larry Alexander, from Pathfinder, Inc., an Intermediate Care Facility for the Mentally Retarded ("ICF/MR"). Pathfinder is duly licensed by the Arkansas Department of Human Services, Office of Long-Term Care, and receives Medicaid funds. Pathfinder decided to discharge Mr. Alexander in April, 1995. Mrs. Elsie Alexander, mother and legal guardian of Mr. Alexander, opposes the discharge. The decision to discharge Mr. Alexander was the subject of a hearing before the Department of Human Services. After a six-day hearing, at which both parties were represented by counsel, the hearing officer concluded that Pathfinder was not equipped to deal with Mr. Alexander's physical conditions and that the discharge had been made for good cause and not in retaliation for Mrs. Alexander's complaints about Mr. Alexander's treatment at Pathfinder. The Findings and Conclusions of the hearing officer are attached hereto as Exhibit A. Mrs. Alexander did not exercise her right to appeal that decision to the Circuit Court of Pulaski County, Arkansas. Subsequently, Mrs. Alexander filed the instant suit seeking relief from this Court. Mr. Alexander became a resident of Pathfinder in May, 1993; previously he lived at the Alexander Human Development Center 505 in a "total care" unit. Mr. Alexander suffers from an array of physical problems in addition to being severely mentally retarded as a result of Down's syndrome. He has sleep apnea, chronic esophagitis, chronic gastritis/reflux, asthma, and environmental allergies. His condition is worsened by his morbid obesity, which is a result of Pickwickian syndrome.[1] The hearing officer found that Pathfinder "reluctantly" admitted Mr. Alexander and that he was admitted "with the understanding that if [Pathfinder's] services proved insufficient to meet [Mr. Alexander's] needs [Pathfinder] would recommend a more appropriate placement." (Findings and Conclusions of Hearing Officer, p. 3.) The hearing officer found that the frequency of Mr. Alexander's illnesses and the need for medical intervention had increased sharply from the time he was first admitted to Pathfinder to the present. The question before the Court is whether the plaintiff can relitigate the issues which were adjudicated, or could have been adjudicated, in the administrative hearing on Mr. Alexander's discharge from Pathfinder. Stated another way, can Mrs. Alexander avoid the limited review of the determination made in the administrative hearing and opt instead for a trial de novo in federal court? In University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), the Supreme Court of the United States addressed the question of the preclusive effect of state administrative adjudications. The Court held that, as a general rule, federal courts must give an agency's factfinding the same preclusive effect to which it would be entitled in the state's courts, except for specific types of cases, discussed infra. Before giving such preclusive effect, a federal court must determine that: (1) the administrative agency was acting in a judicial capacity; (2) the issues litigated were properly before agency adjudicator; and (3) the parties before the administrative adjudicator were afforded a full and fair opportunity to litigate the issues. Id. at 797-98, 106 S.Ct. at 3225-26. These requirements are, of course, in addition to the settled requirements for application of the doctrine of res judicata, or issue preclusion: Res judicata bars relitigation of a claim if: (1) the prior judgment was rendered by a court of competent jurisdiction; (2) the prior judgment was a final judgment on the merits; and (3) the same cause of action and the same parties or their privies were involved in both cases. Lunde v. Helms, 29 F.3d 367 (8th Cir.1994), quoting Lane v. Peterson, 899 F.2d 737, 742 (8th Cir.), cert. denied, 498 U.S. 823, 111 S.Ct. 74, 112 L.Ed.2d 48 (1990). The Elliott Court cited important policy reasons for applying common law preclusion to administrative determinations: The law of res judicata, much more than most other segments of law, has rhyme, reason, and rhythm something in common with good poetry. Its inner logic is rather satisfying. It consists entirely of an elaboration of the obvious principle that a controversy should be resolved once, not more than once. The principle is as much needed for administrative decisions as for judicial decisions. To the extent that administrative adjudications resemble courts' decisions a very great extent the law worked out for the court does and should apply to agencies. Id. at 798 n. 6, 106 S.Ct. at 3226 n. 6, quoting 4 K. Davis, Administrative Law Treatise § 21.9, p. 78 (2d ed. 1983). The Court also quoted from the Restatement (Second) of Judgments, noting its similar conclusion: Where an administrative forum has the essential procedural characteristics of a court, ... its determinations should be accorded the same finality that is accorded the judgment of a court. The importance of bringing a legal controversy to conclusion is generally no less when the tribunal is an administrative tribunal than when it is a court. Id. at 798 n. 6, 106 S.Ct. at 3226 n. 6, quoting § 83, p. 269, Restatement (Second) of Judgments (1982). There are two notable limits or exceptions to the application of common law 506 principles of res judicata to agency decisions. First, Congress may decide that "other values outweigh the policy of according finality to state administrative factfinding." Elliott, at 799, n. 7, 106 S.Ct. at 3226, n. 7. This is the case with claims brought under Title VII[2] and the Age Discrimination in Employment Act (ADEA).[3] There is no preclusive effect given to agency findings in suits brought under Title VII and the ADEA. Although administrative estoppel is favored as matter of general policy, its suitability may vary according to the specific context of the rights at stake, the power of the agency, and the relative adequacy of agency procedures. [Citations omitted] The presumption here is thus properly accorded sway only upon legislative default, applying where Congress has failed expressly or impliedly to evince any intention on the issue. Astoria Federal Savings & Loan Association v. Solimino, 501 U.S. 104, 109-10, 111 S.Ct. 2166, 2170, 115 L.Ed.2d 96 (1991). The Astoria Court found that the filing requirements in the ADEA made it obvious that Congress did not intend for federal courts to give preclusive effect to administrative findings with respect to age discrimination. Id. at 110, 111 S.Ct. at 2171. Second, administrative determinations are given only the preclusive effect that the decision would be entitled to in the state's own courts. Elliott, at 799, 106 S.Ct. at 3226. Had the plaintiff appealed in state court the determination by the agency concerning Mr. Alexander, she would have been confined to the record before the agency, A.C.A. § 25-15-212(g), unless "application [had been] made to the court for leave to present additional evidence and the court [had found] that the evidence [was] material and that there were good reasons for failure to present it in the proceeding before the agency...." A.C.A. § 25-15-212(f). The administrative findings could have been reversed or modified only if found to be: "(1) In violation of constitutional or statutory provisions; (2) In excess of the agency's statutory authority; (3) Made upon unlawful procedure; (4) Affected by other error or law; (5) Not supported by substantial evidence of record; or (6) Arbitrary, capricious, or characterized by abuse of discretion." A.C.A. § 25-15-212(h). Beyond peradventure, each of the Elliott requirements for preclusion are present in this case. Furthermore, all of the elements required for issue preclusion generally, set out supra, are present. These parties were afforded the opportunity to fully and fairly try each and every claim in this lawsuit. The Arkansas Administrative Procedure Act, A.C.A. § 25-15-201 et seq., specifically provides for challenging a decision on the ground that a decision violates constitutional or statutory provisions. A.C.A. § 25-15-212(h)(1). The agency hearing in this case took place before a hearing officer who, while hired by the agency, was an independent contractor. See Deretich v. Office of Administrative Hearings, 798 F.2d 1147 (8th Cir.1986) (Plaintiff was given adequate opportunity to litigate his grievances in state agency proceedings. Preclusive effect would be given to the findings of the hearing examiner in light of fact that there was an independent hearing examiner who spent five days hearing the grievances and issued a fifty-six page advisory opinion.) The Alexander hearing lasted six days, resulting in a 1,400 page transcript, excluding exhibits. The parties were permitted to call witnesses, to offer exhibits, and to cross-examine witnesses. Each issue raised in this lawsuit was litigated in the agency hearing, including the incident of alleged abuse, the taping of telephone conversations between Mrs. Alexander and personnel at Pathfinder, the purpose and reasonableness of the behavior modification plan for Mr. Alexander, and the allegation that Mr. Alexander's discharge was in retaliation for Mrs. Alexander's complaint's about her son's care at Pathfinder. The hearing officer found that Pathfinder was not an appropriate placement for Larry 507 Alexander in spite of the testimony of Mr. Alexander's treating physicians, whom the hearing officer found to be "more concerned with whether Larry [Alexander] would be admitted to a nursing home rather than whether [Pathfinder] is an appropriate placement." (Findings and Conclusions of Hearing Officer, p. 12.) The hearing officer also found that, although Mrs. Alexander and the personnel at Pathfinder had numerous conflicts and disagreements about Mr. Alexander's treatment, both Mrs. Alexander and Pathfinder had his best interest at heart. In other words, their goals and hopes for Mr. Alexander were the same; they disagreed on how best to reach their mutual goals for Mr. Alexander. The hearing officer concluded that certain federal regulations did not apply to Mr. Alexander's discharge and that other federal regulations did apply. The agency's interpretation of federal law, as opposed to its findings of fact, are not entitled to deference. I have reviewed the relevant federal statutes and regulations de novo. Federal regulations clearly differentiate between skilled nursing facilities and intermediate care facilities, such as Pathfinder. Requirements for discharging a patient from a nursing facility (i.e. a nursing home) are found in Subpart B, Part 483, Subchapter E, Chapter IV of Title 42. Subpart B specifically excludes Intermediate Care Facilities such as Pathfinder. The requirements for discharging a resident under Subpart B are considerably more stringent than those for facilities covered by Subpart I, which governs Intermediate Care Facilities, such as Pathfinder. Subpart I requires that Intermediate Care Facilities document that the resident was discharged for "good cause." 42 CFR § 483.400. Given the preclusive effect of the findings of fact made by the hearing officer, only one conclusion is reasonable: Larry Alexander was discharged from Pathfinder for good cause. The facts adduced at the administrative hearing leave no doubt that he required considerably more medical care than other residents and that there was a marked change in his medical condition or at least the medical care required to maintain his health over the two years he lived at Pathfinder. There was no violation of any applicable federal regulation in Mr. Alexander's discharge. Furthermore, the finding that the discharge was reasonable and necessary precludes the claim, brought under the Americans With Disabilities Act ("ADA"),[4] that Mr. Alexander was discriminated against in public accommodations on the basis of his disability. Since the plaintiff cannot relitigate the issue of reasonableness of the decision to discharge, she cannot prevail on a theory that Pathfinder unreasonably denied him accommodations. The ADA was never intended to prevent a facility, whose "customers" are all disabled, from limiting the scope of the services it provides to the disabled. Surely all facilities cannot be required to serve disabled individuals with every degree of disability. If that were the case, it would require abandonment of designations such as "intermediate care" and "total care." As noted, federal regulations are replete with such distinctions; it cannot have been the intent of Congress to prohibit the specialization of facilities which care for the disabled. The purpose of the A.D.A., as with all federal statutes barring discrimination, is to ensure opportunity to take part. The A.D.A. affords disabled persons, "the opportunity ... to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity." That is to say, disabled persons must be afforded the option to avail themselves of the services offered by an entity. What it does not do is force an entity to provide extraordinary services which it is not set up to deliver. 42 U.S.C. § 12182(b)(1)(A)(i). The A.D.A. guarantees a disabled person the right to be able to enter and dine in a restaurant which is open to the general public. It does not, however, require a Chinese restaurant to serve spaghetti. The complaint fails to state a claim under the A.D.A. For the same reasons, the complaint 508 fails to state a claim under the Rehabilitation Act of 1973, 29 U.S.C. 794. The hearing officer found that Pathfinder had put "the horse before the cart" in concluding that Mr. Alexander should be discharged for medical reasons before physicians had reached that conclusion. See A.C.A. § 20-10-1005(a)(1). Indeed the hearing officer found a technical violation of the Arkansas Statutes and regulations governing discharge of residents on the ground that the physicians' assessment and conclusion that a medical discharge was necessary came after the notice of discharge was sent. Nevertheless, the physicians' determination was made before the administrative hearing took place. Requiring Pathfinder to send a new notice, after physicians made a medical determination that discharge was warranted, would have elevated form over substance. The hearing officer's finding, and that of the physicians who testified for Pathfinder, is amply supported in the record. Accordingly, on the grounds of issue and claim preclusion, this case must be, and hereby is, dismissed. Relief sought is denied. The Temporary Restraining Order is hereby dissolved. EXHIBIT A BEFORE THE ARKANSAS DEPARTMENT OF HUMAN SERVICES IN THE MATTER OF THE INVOLUNTARY DISCHARGE OF LARRY ALEXANDER I. FINDINGS OF FACT AND CONCLUSIONS OF LAW Background and Course of Proceedings Larry Alexander (Larry) is a thirty-two (32) year old male resident of the Pathfinder Homes ten-bed ICF/MR facility on Hospital Drive in Jacksonville, Arkansas. Pathfinder, Inc. owns and operates this facility sometimes referred to at the hearing as the "HUD unit". The facility is duly licensed by the Arkansas Department of Human Services, Office of Long-Term Care and Pathfinder, Inc. (Path) receives Medicaid funds in exchange for the care provided residents at the HUD unit. Path also operates other ICF/MR's in central Arkansas and has its principal offices in Jacksonville. ICF/MR's are Intermediate Care Facilities for the Mentally Retarded. As described at the hearing and in Path's Brief these facilities including the HUD house are twenty-four hour skilled care facilities, although the skilled care provided is not as intensive as that provided in a nursing home. For example, a nursing home provides twenty-four hour nursing care with a full-time R.N. on staff while ICF/MR's apparently do not provide same. Elsie Alexander (Elsie) is Larry's mother and the legal guardian of his person and estate. She is a widow and lives in Jacksonville. On April 17, 1995 Ms. Cindy Crook, the duly licensed Administrator of the HUD house wrote and sent a letter to Elsie informing her that Path intended to discharge Larry for medical reasons. Elsie appealed under the authority of A.C.A. XX-XX-XXXX by letter dated April 20, 1995. The undersigned was subsequently appointed hearing officer to consider Elsie's appeal. By agreement of the parties the hearing was postponed until July, 1995 so discovery could be conducted and cases prepared. The hearing commenced on July 11, 1995 and lasted six days in July and August. Numerous witnesses testified. Numerous and voluminous Exhibits were introduced. At the hearing officer's request the parties graciously agreed to allow until September 8, 1995 for a final decision. It is Path's position the discharge is justified because Larry's welfare requires it and Path cannot meet his medical needs. Path has the burden of proof. On the other hand, Elsie asserts the discharge should be denied because Path has not complied with concededly applicable state regulations and because the purported reason for discharge is a pretext. Elsie also contends Path has failed to comply with disputedly controlling federal regulations. Based upon the evidence, arguments and other matters the hearing officer 509 makes and enters the following findings of fact and conclusion of law. II. FINDINGS OF FACT 1. At all relevant times Larry has had the following diagnoses: a) Down's syndrome with severe retardation; b) Morbid obesity; c) Severe asthma and environmental allergies; d) Sleep apnea; e) Barrett's esophagitis; f) Chronic gastritis/reflux; g) Pickwickian Syndrome. Larry's esophageal problems have become progressively worse in the last couple of years. 2. Larry was admitted to the HUD house in May, 1993. Path was fully aware of Larry's diagnoses at the time and "reluctantly" admitted him with the understanding that if Path's services proved insufficient to meet Larry's needs Path would recommend a more appropriate placement. 3. Prior to his admission as a HUD house resident, Larry had been a resident at the Alexander Human Development Center (AHDC). AHDC has a "total care" unit and Larry was in this unit. Such unit provides a more intensive level of care than Path does. 4. The AHDC refused to "transfer" Larry to Path because AHDC personnel did not believe Path was an appropriate placement. Instead, Elsie had to have AHDC discharge Larry. Path then admitted him. 5. While at AHDC Larry was subject to a behavior management program. The program allowed Larry to earn tokens for soft drinks and similar items. Elsie wanted to have Larry at the HUD house because it was closer to her home and Larry apparently disliked the AHDC. 6. Throughout his residence at both AHDC and the HUD house Larry has had trouble with his weight. All physicians agree Larry's obesity exacerbates his other physical problems. 7. During his first two months at the HUD house Larry gained eight pounds. At that point Path and its Interdisciplinary team recommended Larry be put on a behavior management plan to keep his weight down. Elsie agreed. The plan is somewhat similar to the AHDC plan but more restrictive. In effect, Larry earns "smiley faces" or suffers the penalty of "frowny faces". If at the end of the week he has too many "frowny faces" he is not allowed to have weekend visit with Elsie at her home. 8. On July 15, 1993 an incident occurred at the HUD house involving Larry. Elsie was called by Lonia Dednam (Toliver) in the evening. Ms. Dednam the HUD house supervisor informed Elsie that Larry had his bag packed and wished to go home. Elsie went to the HUD house and calmed Larry down. He remained there that night. The next day Elsie called the HUD house about taking Larry to see his physician Dr. Valentin Stone. Elsie made an appointment with Dr. Stone for 2:00 p.m. and picked Larry up for that purpose. She took Larry home and discovered bruises on his back. Elsie notified Path of the bruises and indicated her belief that someone at the HUD house had abused Larry. Path had its employees on duty write up incident reports and reported the matter to the Jacksonville police department. Four representatives of Path went to see Elsie and Larry at Elsie's home and took photos of the bruises. These Path representatives (Cindy Crook, Colleen Black, Lonia Dednam, and Claudette Waddle) or one of them suggested Elsie pursue the matter with the police. Elsie refused because she didn't want to get anyone in trouble. 9. At some point during Larry's residence at the HUD house Elsie informed a Path official that its employees were being rude to her and using abusive language. Path employees at the HUD house accused Elsie of the same thing. Path officials instituted a taping system to tape Elsie's calls to Path and conversations with staff at the HUD house. Initially Elsie agreed to this in order to prove her allegations but she later 510 objected. Path continued to tape communications anyway. 10. From the beginning Larry's attending physician has been Dr. Valentin Stone. Path was notified of his status at or near the time of Larry's admission. But Dr. Stone is only the so-called "quarterback" of a team of physicians treating Larry for various problems. The sheer number of physicians treating Larry causes problems for Path. For example, Path has been instructed to call Dr. Stone the attending physician if Larry needs a physician. But if Dr. Stone is not available and Elsie cannot be reached Path has standing instructions to take Larry to the hospital emergency room. (The proximity of the HUD house to the hospital was one factor cited by Path witness Colleen Black for admitting Larry in the first place.) On one occasion the emergency room physician prescribed a medication that could have caused several problems for Larry or even death. Had the Path nurse not realized the implications of administering the drug (Percocet) to a resident with sleep apnea it may have depressed Larry's system to the point that he stopped breathing. 11. During Larry's residence at the HUD house Path has had a "special" nurse come in during the evening hours to administer his medications. Larry takes around twelve to fifteen different medications. No other resident does so. 12. On one occasion HUD house staff which monitors Larry's sleeping with a special device at this point discovered Larry had stopped breathing during the night. He was awakened and resumed "normal" breathing. 13. The medical testimony is in sharp conflict. Those physicians retained by Elsie are of the opinion that Larry is well-placed at the HUD house and that a more intensive environment such as a nursing home is not necessary for Larry's welfare. On the other hand, Path's physician (a psychiatrist) opines that Larry should not be at the HUD house and believes Path is ill-suited to meet Larry's many and varied medical needs. 14. Drs. Stone and Kellar opine that Larry's condition although serious is stable and they discount the sleep apnea as a reason for intensified service. 15. In the latter part of 1994 Larry was admitted to the hospital with pneumonia and stayed there for four days. A couple of weeks later he was diagnosed with mild bronchitis. In December, 1994 he had an upper respiratory infection. In January, 1995 the possibility of surgery on Larry's esophagus was explored but rejected as too risky. In February, 1995 Larry was treated for bronchitis. In February, 1995 Larry was discovered to have stopped breathing while sleeping on one occasion and awakened to resume same. He was taken to Dr. Stone the following day. Dr. Stone said it was the sleep apnea problem and that Larry needed to be watched closely during the night. 16. At some point in February, 1995 Path officials received and reviewed a Medical Referral Sheet (Path Exhibit 3) which alarmed them. The officials were Cindy Crook, Administrator, and her superior, Colleen Black. Neither of them is a physician or nurse. Based upon this Sheet, Larry's medical diagnoses and perceived deteriorating condition, Ms. Black made the decision that Larry should be discharged. Ms. Black made this decision without consulting any of Larry's or Path's physicians. 17. Path officials subsequently contacted Elsie about transferring Larry to the Conway Regional Development Center and set up a meeting to discuss it. Although Elsie originally agreed to participate in the discussions she subsequently refused. III. CONCLUSIONS OF LAW At the outset I would like to commend the lawyers for their thoroughness of presentation and vigorous advocacy. As can plainly be concluded from the 1,400 page plus record of testimony (excluding depositions) and equally voluminous Exhibits the parties left no stone unturned in their efforts to produce evidence relating to their respective positions. 511 I wish I could be as detailed and thorough in this opinion. The statute, however, says I should render a ruling within seven (7) days which expired on August 30, 1995. Had the parties not granted me until September 8 I would have been in a terrible fix. In view of the statutory intent I did not believe it wise to ask for even more time. In any event, I hope I have covered the "core" facts in the findings. Keeping in mind that Path has the burden of proof to justify discharge I now turn to the issues. Path asserts discharge is proper to meet Larry's needs per A.C.A. XX-XX-XXXX and applicable regulations. A.C.A. XX-XX-XXXX(a)(1) provides, in pertinent part, as follows: (a) The Office of Long-Term Care shall prescribe through rule or regulation the procedure for transfer or discharge of residents to be followed by long-term care facilities. The procedure shall include: (1) Provisions for a written notice to be furnished to the resident, sponsor, and other appropriate parties thirty (30) days prior to any involuntary transfer or discharge, and regulations setting forth the following circumstances for which the written notice need not be furnished: (A) The transfer or discharge is necessary to meet the resident's welfare and the resident's welfare cannot be met in the facility; ... Regulations adopted per the above statute are a part of the "Resident Rights" regulations which apply to 10 bed ICF/MRs: 353 A resident may be transferred or discharged only for; medical reasons; his welfare or the welfare of health of other residents; the resident presents a danger to safety or health of other residents; because the resident no longer needs the services provided by the facility; non-payment for his stay; or the facility ceases operation. The resident shall be given reasonable written notice to ensure orderly transfer or discharge. 353.1 The term "transfer" applies to the movement of a resident from facility to another facility. 353.2 "Medical reasons" for transfer or discharge shall be based on the resident's needs and are to be determined and documented by a physician. That documentation shall become a part of the residents permanent medical record. 353.3 "Reasonable notice of transfer or discharge" means the decision to transfer or discharge a resident shall be discussed with the resident and the resident will be told the reason(s) and alternatives available. A minimum of thirty (30) days written notice must be given. Transfer for the welfare of the resident or other residents may be affected immediately if such action is documented in the medical record. (Emphasis added) It seems obvious to me that Path's attempt to discharge Larry by letter of April 17, 1995 violated regulation 353.2 because no one at Path consulted a physician prior to issuance of the letter. If a physician is not consulted about the determination of "medical reasons" prior to the decision to discharge, then the purpose of the above regulation has been frustrated. Deciding to discharge Larry and then seeking medical justification, as occurred in this case, puts the proverbial cart before the horse. (Perhaps Drs. Stone and Kellar could have assuaged Path's alarm in February or March, 1995 had they been contacted I don't know. But once the decision was made and notice letter sent positions hardened and little done to reverse the decision.) Next, should the violation of the regulation standing alone, be sufficient to justify sustaining Elsie's appeal? In other words, was the violation "harmless error" on Path's part? After all, a physician did determine Larry's discharge was appropriate for medical reasons in May, 1995 and the medical records and evidence about Larry's increased health problems in the latter part of 1994 and early 1995 seem to support his opinion. Before addressing this issue I want to say I am convinced Path did not seek to discharge Larry in 1995 due to a 1993 complaint of alleged abuse. It is fairly clear both Path and Elsie have Larry's interests at heart despite the disputes between them over the behavior modification plan, the tape recorder 512 issue and other complaints Elsie would have me consider and conclude as evidence of efforts to get her to remove Larry from Path's care. It is just as reasonable to conclude, and it is so found, that: a) The behavior management plan was suggested and approved by Elsie in an effort to control Larry's behavior; b) The tape recording of Elsie's communications was instituted to attempt to find out if staff was using abusive language and the culprit or culprits, if any; and, ultimately c) Path did not come up with a scheme or plan to make Elsie's life so miserable that she would remove Larry from Path's care. Now, back to whether Path should be allowed to discharge Larry for "medical reasons". Initially I would note it is my conviction the more strict federal regulations applicable to nursing homes do not apply to ten bed ICF/MRs. See 42 CFR Section 483.5 at definition of "facility" which excludes ICF/MRs from the definition. Then see 42 CFR Section 483.12 which discusses discharge restrictions imposed upon a "facility". Finally, see 42 CFR Section 483.400 et seq. which discuss the "Conditions of Participation [in the Medicaid Program] for Intermediate Care Facilities for the Mentally Retarded" which provide that a client may be discharged for good cause at 42 CFR Section 483.440(b)(4). See also the Arkansas Provider Manual for ICF/MR 15 Bed or Less Long Term Care Facilities at Regulation 607.1. In view of the above Regulations concerning discharge standards for ICF/MRs ("good cause") with documentation in the client's record it is my belief the discharge of Larry should be allowed despite the technical failure of Path to have a physician's opinion prior to the discharge decision. (It could even be argued that the Resident Rights Regulation in question 353.2 conflicts with Regulation 607.1 and since the latter specifically addresses ICF/MRs it therefore controls.) Larry's physical problems are many and interrelated. His weight problem, sleep apnea, reflux, asthma, environmental allergies and Barrett's esophagitis when considered in toto and in conjunction with his recent medical history pose unique daily living problems for which an ICF/MR is ill equipped to handle. And I reject the opinions of Larry's attending physicians. They seem more concerned with whether Larry would be admitted to a nursing home rather than whether Path is an appropriate placement. Path is not an appropriate placement for Larry. (I do not know what is but I am convinced Path is not.) Based upon the medical records of Path, the diagnoses, the recent decline in Larry's health, the medical records of Larry's attending physicians, his pharmacological needs and other matters, I conclude that Path has established discharge for good cause and that its failure to consult a physician prior to issuance of the notice of discharge is an insufficient basis for denying discharge. IV. ORDER IT IS THEREFORE ORDERED that the appeal of Elsie Alexander, legal guardian of Larry Alexander, from the April 17, 1995 Notice of Discharge be, and it hereby is, denied and disallowed. Ms. Alexander and her ward are allowed a reasonable period of time, not to exceed thirty (30) days, for placement at another facility. IT IS FURTHER ORDERED that Ms. Alexander's "Motion for Mistrial" is denied but that her Motion to Strike the Saline County Complaint appended to Path's post-hearing submission is granted. IT IS SO ORDERED. /s/ Jack East III HEARING OFFICER September 8, 1995 DATE NOTES [1] Pickwickian syndrome refers to a condition of compulsive and chronic overeating. [2] "... Congress did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims." Elliott, at 796, 106 S.Ct. at 3225. [3] Astoria Federal Savings & Loan Association v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). [4] 42 U.S.C. § 12181 et seq.	{ "pile_set_name": "FreeLaw" }
268 F.2d 642 TOMLINSON FLEET CORPORATION, Defendant-Appellant,v.Harold A. HERBST, Plaintiff-Appellee. No. 13644. United States Court of Appeals Sixth Circuit. July 27, 1959. Russell V. Bleecker, Cleveland, Ohio, for appellant. J. Harold Traverse, Cleveland, Ohio, for appellee. Before MARTIN, Chief Judge, MILLER, Circuit Judge, and BOYD, District Judge. MARTIN, Chief Judge. 1 This is an appeal by the Tomlinson Fleet Corporation from a judgment of $40,000, on the verdict of a jury, in favor of the individual appellee who was injured while serving as second-assistant engineer on the Steamer James Davidson, owned and operated by the appellant. Plaintiff-appellee had worked on the Tomlinson fleet during a number of years prior to the date of his injuries on July 23, 1956. For approximately a week prior to July 23, the lake-going steamer had been temporarily out of commission because of a strike in the steel industry. Without steam and with her power plant dead, she had been tied up at the dock in Superior, Wisconsin. Electricity for the ship was being furnished from a nearby plant on the shore. 2 When the strike was settled, the officers and crew engaged immediately in preparing the vessel for restored service. On the aforementioned date, after the banked fires in the ship's boilers had been shaken up, steam was available by nine o'clock, A. M., to disconnect the shore power and start the small dynamo in the engine room. Later in the morning, there was sufficient steam to disconnect the small dynamo and put the main generator into operation in the engine room. 3 Sharp conflict inheres in the testimony of the plaintiff-appellee on the one hand and that of the chief engineer and the first-assistant engineer on the other. The appellee testified that, when he and the first-assistant engineer were in the main engine room, he was instructed by his superior officer: "As soon as I get the generator started, will you go down and start the auxiliary condenser." He swore further that the first-assistant engineer started the generator and, while it was running at full speed, called down to him to "start it up" — meaning for appellee to go down, start the condenser and then turn the steam from the auxiliary generator into the condenser. Herbst said that while this was taking place for some fifteen or twenty minutes, there was no electricity in the boat to light the bulbs above the stairway on which he fell. He testified, further, that, as he started down the stairway, he felt some slippery substance under his foot and slipped with such force that, although he had his hands on the railing, he "kept right on going" and "straddled" the hand railing where it curves and comes down to the side of the steps. He was not unconscious after he reached the bottom; but the pain he suffered as he tried to continue his duties quickly made him realize that he was severely injured. 4 The plaintiff-appellee stated that the place to which he was assigned for work was comparatively dark. He said that, as best he could remember, he slipped on the first step below the operating deck. Although the two witnesses introduced by the defendant-appellant contradicted the appellee, his testimony furnished substantial evidence that the stairway on which he fell was insufficiently lighted at the time of the accident. Likewise, his testimony furnished substantial evidence that there was a slippery substance on the stairway when he started down. He said that he "felt" the substance, although he did not see it. He stated, moreover, that there was an oiler on watch, on the morning of the accident, whose duties required him to go up and down the steps upon which plaintiff-appellee fell. A reasonable inference could be drawn by the jury that this oiler had spilled oil on the steps. 5 The cause of action was brought by the plaintiff on two separate grounds, namely: (1) negligence under the Jones Act, Title 46 U.S.C.A. § 688; and (2) unseaworthiness of the vessel under the general maritime law in relation to the stairway or ladder where the accident occurred. 6 Four interrogatories were submitted to the jury. The following were the questions asked and the answers given by the jury: 7 "I. Was the defendant negligent toward the plaintiff? Answer — Yes." 8 "II. If the answer to No. I is `Yes,' in what manner was the defendant negligent? Answer — Defendant failed to thoroughly inspect ship before ordering men aboard." 9 "III. Did the plaintiff slip on a foreign, slippery substance on the ladder? Answer — Yes." 10 "IV. Was the ladder upon which the plaintiff slipped sufficiently lighted? Answer — No." 11 The jury's answers to the foregoing interrogatories, which as has been shown were supported by substantial evidence, constitute plain findings that the defendant was guilty of actionable negligence. 12 It is really not material to affirmance of the judgment that this court should determine further whether the plaintiff established that the vessel was unseaworthy, although, apparently, the verdict of the jury was placed upon both negligence and unseaworthiness. The argument of the defendant-appellant that if unseaworthiness should be a separate basis of recovery the plaintiff would have been required to plead it as a separate cause of action is rejected by McAllister v. Magnolia Petroleum Company, 357 U. S. 221, 224, 225, 78 S.Ct. 1201, 1204, 2 L.Ed.2d 1272: "But if the seaman is to sue for both unseaworthiness and Jones Act negligence, he must do so in a single proceeding. That is a consequence of this Court's decision in Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069, which held that these claims were but alternative `grounds' of recovery for a single cause of action." 13 We think the opinion of this court in Chesapeake & Ohio Ry. Co. v. Newman, 6 Cir., 243 F.2d 804 [brought under the Jones Act and tried by the same United States District Judge who tried the instant case], in which judgment for the plaintiff upon the verdict of a jury was affirmed, furnishes support for affirmance in the case at bar. 14 District Judge Connell instructed the jury clearly, correctly and adequately. He charged, inter alia: "To recover damages on the ground of defendant's negligence, the plaintiff must here show that he slipped on a foreign substance which made the ladder or stairway slippery and that said substance had been present for a sufficient length of time to charge the defendant with knowledge of its presence or that if the lighting and illumination of the ladder was inadequate, such inadequacy had existed a sufficient length of time for the defendant to have had an opportunity to correct that condition." This was a correct statement of law. It was unnecessary that the court should have embraced in its instructions, as requested by the defendant-appellant, the words "sufficient quantity" in relation to the foreign substance which made the ladder, or stairway, slippery. Quantity was not the test, but the correct issue was whether the substance on which plaintiff-appellee slipped was of such character that it actually caused his fall. 15 The trial court was not in error, in the circumstances of the case, in denying the motion of defendant for a directed verdict, or for judgment non obstante veredicto, or in the alternative for a new trial. 16 In Schulz v. Pennsylvania R. Co., 350 U.S. 523, 525, 76 S.Ct. 608, 610, 100 L. Ed. 668, the Supreme Court said: "In considering the scope of the issues entrusted to juries in cases like this, it must be borne in mind that negligence cannot be established by direct, precise evidence such as can be used to show that a piece of ground is or is not an acre. Surveyors can measure an acre. But measuring negligence is different. The definitions of negligence are not definitions at all, strictly speaking. Usually one discussing the subject will say that negligence consists of doing that which a person of reasonable prudence would not have done, or of failing to do that which a person of reasonable prudence would have done under like circumstances. Issues of negligence, therefore, call for the exercise of common sense and sound judgment under the circumstances of particular cases." 17 Johnson v. United States, 333 U.S. 46, 49, 68 S.Ct. 391, 92 L.Ed. 468, holds that the Jones Act, as amended, makes the standard of liability of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. applicable to suits by seamen for personal injuries suffered in the course of their employment, so that the shipowner becomes liable for injuries to a seaman resulting in whole or in part from the negligence of another employee. See also Palermo v. Luckenbach S. S. Co., 355 U.S. 20, 78 S.Ct. 1, 2 L.Ed.2d 3; The Law of Admiralty (Gilmore and Black, 1957), page 312. 18 The judgment of the district court is affirmed. 19 SHACKELFORD MILLER, JR., Circuit Judge (dissenting). 20 I am not in agreement with the ruling of the majority opinion which affirms the judgment on the basis of negligence on the part of the appellant. 21 The ruling of the majority opinion is based upon the fact that in answer to interrogatory No. 1, the jury found that the appellant was negligent, and upon the Court's conclusion that there was sufficient evidence to take to the jury the issue of whether there was a slippery substance on the stairway when the appellee started down and whether the stairway on which the appellee fell was insufficiently lighted at the time of the accident. The opinion thereupon concludes that the jury's answers to interrogatories No. III and No. IV, namely, that the appellee slipped upon a foreign, slippery substance on the ladder and that the ladder was not sufficiently lighted, must be accepted and support the finding of negligence. 22 I agree that the answers to interrogatories No. III and No. IV must be accepted on this review, but I do not agree that a ruling of actionable negligence can be based upon these findings. 23 I think the majority opinion is in error in construing these answers as a finding by the jury that the appellant was negligent because there was a foreign, slippery substance on the ladder or because the ladder was not sufficiently lighted. The jury did not find that negligence existed because of either of those reasons. On the contrary, it specifically found by its answer to interrogatory No. II that the appellant was negligent because it "failed to thoroughly inspect ship before ordering men aboard." (Emphasis added.) In explaining this interrogatory to the jury, the District Judge told the jury, "There you will have to give whatever your answer would be, whichever one of these four specifications of negligence you thought had been proved, whether it be one, whether it be all, that would be the place in which you would answer if your answer to the first question is `yes'." (Emphasis added.) The answer must necessarily be construed that the jury found negligence to exist for one reason, and that reason only, namely, failure to thoroughly inspect the ship before ordering the men aboard. 24 Liability based upon negligence cannot independently result from the jury's answers to interrogatory No. III that the appellee slipped upon a foreign, slippery substance on the ladder, or from its answer to interrogatory No. IV that the ladder was not sufficiently lighted. 25 The fact that the appellee slipped on a foreign, slippery substance on the ladder does not constitute actionable negligence. Other facts must also exist showing knowledge on the part of the appellant of the presence of the foreign substance, or reasonable opportunity to know about it. The jury was so instructed by the District Judge. The jury's answer to interrogatory No. II is a clear indication that it did not find these other facts to exist. 26 The fact that the ladder was not sufficiently lighted at the time of the accident does not by itself constitute actionable negligence. The vital question with respect to negligence as distinguished from unseaworthiness is why was it insufficiently lighted at that time. The evidence shows reasons why it was insufficiently lighted at the time of the accident. The isolated fact that it was not sufficiently lighted, without an additional finding that this condition was due to the fault of appellant, is not a finding of negligence. 27 I am accordingly of the opinion that the findings of fact by the jury in its answers to interrogatories No. III and No. IV are relevant only to the issue of unseaworthiness, which was also an issue submitted to them, and that a ruling of actionable negligence cannot be based upon them. 28 With respect to the jury's answer to interrogatory No. II that appellant was negligent because it failed to thoroughly inspect ship before ordering men aboard, I find no evidence in the record whatsoever to support this finding. The evidence did not deal with the inspection of the boat before ordering the men aboard. I do not read the majority opinion as attempting to sustain that finding. With that finding set aside, answer to interrogatory No. I has nothing to support it, is inconsistent with interrogatory No. II, and a verdict cannot be based upon it. Rule 49(b), Rules of Civil Procedure, 28 U.S.C.A.; Missouri Pacific R. Co. v. Salazar, 5 Cir., 254 F.2d 847. See also: Welch v. Bauer, 5 Cir., 186 F.2d 1002; Golden North Airways v. Tanana Publishing Co., 9 Cir., 218 F.2d 612, 618. 29 Since the judgment of the District Court will necessarily be affirmed on the majority opinion's holding of actionable negligence, it is unnecessary to discuss appellant's contentions with respect to the issue of unseaworthiness.	{ "pile_set_name": "FreeLaw" }
767 P.2d 1331 (1989) John ROOKHUIZEN, Plaintiff and Appellant, v. BLAIN'S MOBILE HOME COURT, INC., a Montana corporation, Defendant and Respondent. No. 88-300. Supreme Court of Montana. Submitted on Briefs December 9, 1988. Decided January 27, 1989. Michael M. Morse, Billings, for plaintiff and appellant. Jarussi & Bishop, Gene R. Jarussi, Billings, for defendant and respondent. GULBRANDSON, Justice. Appellant appeals the order and judgment of the Thirteenth Judicial District, Yellowstone County, granting respondent's motion for a directed verdict at the close of plaintiff's case-in-chief. We affirm the judgment of the District Court and award costs and assess damages in the amount of $200 against counsel for appellant. This case arose after a fire destroyed appellant's mobile home which was located Blain's Mobile Home Court, Inc. (Blain's). Appellant had moved the mobile home into the court on or about April 1, 1982. He signed and completed an application for rental of a mobile home space, a rental agreement, and acknowledged receipt of rules and regulations governing the agreement. On the evening of August 19, 1982, appellant returned to his mobile home. 1332 Upon entering the mobile home he observed smoke and flames around an outlet in the kitchen. He left the mobile home, requesting his wife to go to the neighbors and call the fire department. He then went next door to get a garden hose with which to fight the fire. Appellant testified he almost had the fire out when the kitchen area erupted in flames, forcing him out of the home. When the neighbors called a private fire company, they were told the fire company did not cover the mobile home court anymore. They then called Blain's office to summon the volunteer fire service. The volunteer fire service arrived approximately fifteen minutes later. The first pump on the fire truck would not start so the second pump was started. This pump ran only a few minutes before it ran out of gas. More gas was obtained and the pumping resumed only to have the truck run out of water within a few minutes. Water was then added to the tank using garden hoses. By the time the fire was extinguished the mobile home was extensively damaged in the kitchen and living room areas with extensive smoke damage throughout. A second fire occurred early the next morning, causing more damage to the living room, first bedroom and other areas. The volunteer fire department also extinguished this second fire. The insurance adjuster for the appellant who examined the mobile home on August 20, 1982, considered it a total loss. Appellant contends the extent of the damage was due to negligence on the part of the mobile home court in its maintenance and operation of the volunteer fire department, and its failure to provide adequate fire protection for the residents of the mobile home court. Specifically they allege that Blain's was negligent for: (1) terminating the O'Donnell Fire Service; (2) assuring the appellant that they provided their own service; (3) providing the inadequate equipment and inadequate training of the volunteer fire service; (4) allowing the pumps on the fire truck to be nonfunctional and the water tank nearly out of water; (5) one of the volunteer fire fighters breaking out the windows in the mobile home causing the fire to spread faster into other areas; and (6) the fact that the fire was not completely extinguished before the fire fighters left the scene resulting in the second fire in the early morning hours. Prior to trial the respondent moved for summary judgment on all counts. The judge having jurisdiction over the case at that time granted the motions for summary judgment on two counts of fraudulent, malicious and oppressive conduct by the respondent in failing to deal in good faith, given the lack of equal bargaining power between the parties. The case then proceeded to trial. At the close of the appellant's case-in-chief the respondent moved for a directed verdict on all of the remaining counts. After hearing arguments on the motion the court granted the motion to dismiss all five remaining counts. From this order and judgment granting the motion for directed verdict, appellant appeals. Appellant presents four issues which the respondent rephrases into a single issue. We feel the respondent's characterization of the four issues as one is proper and adopt it as the issue before this Court. Was it error for the District Court to grant Blain's motion for a directed verdict? We will first consider whether the trial court committed reversible error by holding that respondent Blain owed no duty to appellant Rookhuizen to provide fire protection services. Appellant alleges two separate claims, one in contract and one in negligence. Having examined the evidence introduced at trial this Court finds, as did the District Court, that the appellant failed to establish a prima facie case on either claim. To establish the contractual claim, appellant 1333 had to introduce evidence proving a meeting of the minds between the parties to provide fire services on the part of the mobile home court before a contractual obligation would arise. Chadwick v. Giberson (Mont. 1980), 618 P.2d 1213, 1215, 37 St.Rep. 1723, 1725-1726. At trial, appellant introduced the rental agreements the parties executed when the appellant moved his mobile home onto the court. However, neither the application nor the agreement itself included a contractual obligation on the part of the court to provide fire services to the appellant. The rules and regulations, referred to in the rental agreement and introduced by respondent at trial, also did not contain any reference to fire protection services. Appellant testified that he thought the rules and regulations he received contained something dealing with fire protection. However, the appellant was unable to produce this differing version of the rules and regulations as they had been destroyed in the fire. In light of the inconclusive and unconfirmed nature of the appellant's statements and in light of clear written evidence to the contrary, the District Court was correct in its finding that no contractual obligation to provide fire services existed between the parties. The second claim of negligence requires appellant to prove the existence of a duty owed by the respondent, a breach of that duty and damages caused by the breach of the duty. R.H. Schwartz Construction Specialties v. Hanrahan (1983), 207 Mont. 105, 107, 672 P.2d 1116, 1117. The District Court found that appellant failed to establish a duty on the part of Blain's to supply fire protection services. As previously stated, the rental agreements and rules and regulations did not contain a duty on the part of the mobile home court to provide appellant with fire protection services. Therefore it was necessary for the appellant to prove that the mobile home court had a duty as established by statute or by common law. The appellant claimed the mobile home court violated the Montana Residential Landlord and Tenant Act of 1977, §§ 70-24-101 through -442, MCA, (the Act) by failing to "keep all common areas of the premises in a clean and safe condition." Section 70-24-303(c), MCA. However, the appellant provided no justification for finding that the Act requires mobile home court owners to provide fire protection services. While § 70-24-105, MCA, does extend the principles of law and equity relating to safety and fire prevention to the Act, the appellant failed to introduce evidence showing what types of prevention or standards were applicable to the respondent. Appellant claims the District Court erred when it refused to allow appellant's expert witnesses to testify regarding standards it claimed the volunteer fire department was obliged to obey. The court consistently sustained the defendant's objections regarding testimony on the National Fire Protection Association's (NFPA) standards as irrelevant and lacking foundation. The appellant failed to lay the proper foundation showing the standards created a duty on the part of the respondent to provide fire protection. We note the transcript indicates the trial judge repeatedly attempted to aid appellant's counsel by informing him of this necessary foundational requirement, to no avail. Upon counsel's failure to produce authority showing the standards were applicable, the court was left with no recourse, but to exclude testimony upon the NFPA standards. Appellant also fails to produce any case law which would extend a duty to the mobile home court's owner to provide fire protection services. Appellant does cite case law which establishes a duty for landlords in general to exercise ordinary care in the management of the premises to avoid exposing persons thereon to unreasonable risk of harm. Corrigan v. Janney (Mont. 1981), 626 P.2d 838, 841, 38 St.Rep. 545, 549. Also when a property owner's affirmative acts increase an existing hazard or create a new hazard, that property owner may be held liable. Cereck v. Albertson's, 1334 Inc. (1981), 195 Mont. 409, 637 P.2d 509, 511, 38 St.Rep. 1986, 1989. Appellant claims the prior case of Parrish v. Witt (1977), 171 Mont. 101, 555 P.2d 741, extends this theory to the mobile home park situation. Unfortunately, appellant hinges this duty upon Blain's alleged affirmative action of cancelling the prior professional fire service and implementing another fire service under Blain's exclusive control. The evidence which appellant introduced at trial failed to prove such an affirmative action was taken by Blain's. Here evidence showed Blain's acquiesced to the will of the majority of the tenants to terminate the existing professional services in favor of a volunteer service. While Blain's did contribute the storage shed, parts of the fire truck, and paid for some of the truck's repairs, it did so as the owner of 25 of the 217 mobile homes in the park. No evidence showed it exercised exclusive control over the service. As the appellant failed to prove Blain's was responsible for the service, the District Court was justified in holding that the evidence did not indicate any duty owed, and thus respondent could not have been negligent. The law with regard to directed verdicts in this state is well established. The court shall view the evidence presented by the opponent to the motion, in a light most favorable to the party opposing the motion. In light of that consideration of the evidence, it must follow as a matter of law that the only result possible is the result sought by the moving party. Lawlor v. County of Flathead (1978), 177 Mont. 508, 513, 582 P.2d 751, 754. Generally directed verdicts are not favored by the courts. LaVelle v. Kenneally (1974), 165 Mont. 418, 529 P.2d 788. A cause should never be withdrawn from the jury unless the conclusion from the facts advanced by the moving party follows necessarily, as a matter of law, that recovery can, as here, or cannot be had under any view which can reasonably be drawn from the facts which the evidence tends to establish. [Citations omitted.] A corollary rule is that where reasonable men might differ as to the conclusions of fact to be drawn from the evidence viewed in the light most favorable to the party against whom the motion is made, a jury question is presented, and resolution by way of a directed verdict is improper. Parini v. Lanch (1966), 148 Mont. 188, 418 P.2d 861. Lawlor, 582 P.2d at 754. As this Court has previously stated regarding the related Rule 50(b), M.R.Civ.P., motion for judgment notwithstanding the verdict: If a prima facie case is made out, the motion should be denied. Motions made pursuant to Rule 50(b), M.R.Civ.P., cannot be granted if there is substantial conflict in the evidence. Like any form of directed verdict it rests on a finding that the case of the party against whom it is directed is unsupported in some necessary particular. Nicholson v. United Pacific Insurance Co. (Mont. 1985), 710 P.2d 1342, 1345, 42 St. Rep. 1822, 1826, citing Jacques v. Montana National Guard (1982), 199 Mont. 493, 649 P.2d 1319. Having previously found appellant failed to prove a duty existed to establish a prima facie case, we find the District Court was correct in granting respondent's motion for directed verdict. Attorney's Fees Respondent seeks attorney's fees from appellant's counsel for this appeal pursuant to Rule 32, M.R.App.P. That Rule allows this Court to award damages when the Court is satisfied from the record and the presentation of the case on appeal that the appeal was taken without substantial or reasonable grounds. It is not the position of this Court to place hurdles in the appeal process which discourage a party from taking a valid appeal. However, this case presents several reasons for imposing sanctions. Here, counsel for appellant was repeatedly informed by the trial judge of the need to establish a duty owing to him by the respondent. Upon failing to present evidence of such a duty, the trial 1335 judge was left with no alternative but to grant the defendant's motion for a directed verdict. We further note that appellant's brief does not contain a statement of the case (Rule 23(a)(3), M.R.App.P.), citations to authority for numerous contentions (Rule 23(a)(4), M.R.App.P.), nor citations to pages of the record relied upon (Rule 23(e), M.R. App.P.). In addition we note a failure to accurately quote case law, commissioners' comments and the record, as pointed out in the respondent's brief. For the foregoing reasons, we assess damages in the amount of $200 to the respondent. Affirmed and remanded for further proceedings in compliance with this opinion. TURNAGE, C.J., and HARRISON, HUNT and McDONOUGH, JJ., concur.	{ "pile_set_name": "FreeLaw" }
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 08a0404n.06 Filed: July 7, 2008 No. 06-4513 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ELISEO CAYABYAB BELTRAN, ) ) Petitioner-Appellant, ) ) ON PETITION FOR REVIEW v. ) FROM THE BOARD OF ) IMMIGRATION APPEALS MICHAEL MUKASEY, ) AFTER REMAND BY THE ) SIXTH CIRCUIT Respondent-Appellee. ) _______________________________________ ) ) ) BEFORE: GILMAN and COOK, Circuit Judges; and COHN, District Judge. AVERN COHN, District Judge. This is an immigration case that began almost fifteen years ago. Appellant Eliseo Cayabyab Beltran (“Beltran”) now appeals from a final order of deportation issued against him by the Board of Immigration Appeals (“BIA”). Beltran contends that he is eligible for discretionary relief from deportation under former § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c), and that his case should be remanded to the immigration court to consider the merits of this claim. The government argues that Beltran is ineligible for relief under the terms of the statute. For the reasons discussed below, we reverse the decision of the BIA and remand for consideration of the merits of Beltran’s petition for relief under § 1182(c). The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation. I. Background and Procedural History Beltran originally entered the United States as an immigrant in 1977, when he was fourteen years old, along with his parents and siblings. Prior to that time Beltran lived in the Philippines. Since entering the United States, Beltran his been convicted of three crimes. He was first convicted of larceny of a building, Mich. Comp. Laws Ann. § 750.360, in 1981. He was sentenced to six months in jail and five years of probation. In 1984, Beltran was found to have violated his probation by (1) leaving Michigan without permission to care for an ill relative and (2) failing to make certain court-ordered payments. As a result, Beltran’s probation was revoked and he was sentenced to a year in jail, with credit for the six months that he had previously served. In 1992, Beltran was convicted of first-degree retail fraud, Mich. Comp. Laws Ann. § 750.356c, after attempting to steal a television and VCR from a store at which he worked. He was sentenced to three years’ probation. Finally, in 2000, Beltran pled no contest to fourth-degree criminal sexual conduct, Mich. Comp. Laws Ann. § 750.520e, a misdemeanor. The record does not disclose the nature of the underlying conduct. He was sentenced to time served as a pretrial detainee (about 120 days) and released. As a result of his first two convictions, Beltran was served with an order to show cause in August 1994, initiating what has turned out to be a long and tortuous series of deportation proceedings. The order to show cause charged Beltran with deportability under former 8 U.S.C. § 1251(a)(2)(A)(ii) because he had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. 3 A. Original Proceedings in Immigration Court Beltran appeared pro se before an immigration judge in October 1995. He admitted the factual allegations and conceded deportability as charged. To avoid deportation, he petitioned for a waiver under former 8 U.S.C. § 1182(c),1 which allowed an immigration judge to provide discretionary relief from deportation for legal permanent residents. Following a hearing in February 1996, the immigration judge issued a decision finding Beltran deportable under § 1251(a)(2)(A)(ii) and denying his application for a § 1182(c) waiver on the merits. The judge ordered Beltran deported to the Philippines. 1 Former Section 1182(c) provided: Aliens lawfully admitted for permanent residen[ce] who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this paragraph (other than subsection (A), (B), (C), or (E) of paragraph (3)). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title. The first sentence of this subsection shall not apply to an alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years. 8 U.S.C. § 1182(c) (1991). The last sentence of the section, pertaining to aliens convicted of aggravated felonies who have served five years in prison, does not apply to Beltran; it applies only to aliens admitted after the date of enactment of the Immigration Act of 1990 (November 29, 1990). Pub. L. No. 101-649, § 511(b). Section 1182(c) was subsequently amended by the Anti-Terrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996), and repealed by the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. 104- 208, 110 Stat. 3009-546 (1996). As discussed below, however, these laws do not apply to the proceedings in this case, since the proceedings commenced prior to 1996. 4 B. The First Appeal Beltran appealed to the BIA, arguing that the immigration judge should have granted his application for a § 1182(c) waiver. In October 1998, the BIA vacated the deportation order, finding that the immigration judge had not adequately advised Beltran of the free legal services available to him, and remanded the case to the immigration court for further proceedings. The BIA also held that Beltran was statutorily eligible for a § 1182(c) waiver. C. Remanded Proceedings in Immigration Court An immigration judge held a new hearing in January 1999. Beltran failed to appear because, as the parties agree, he was never served with the necessary papers due to a change of address. The immigration judge issued an in absentia order of deportation, finding that Beltran had abandoned any application for relief. Beltran filed a motion to reopen the case and rescind the in absentia order of deportation in March 2001. The immigration judge denied the motion, finding that Beltran had failed to comply with the regulations concerning notification of an address change during deportation proceedings. D. The Second Appeal Beltran again appealed to the BIA. The BIA dismissed the appeal in February 2002. Beltran then petitioned for review in this Court. We reversed, holding that Beltran had complied with the statutory requirements for notification of a change of address, and remanded the case to the immigration court with instructions to grant Beltran’s motion to reopen his deportation hearing. Beltran v. INS, 332 F.3d 407 (6th Cir. 2003). 5 E. Second Set of Remanded Proceedings in Immigration Court Following the remand to the immigration court, the Department of Homeland Security (“DHS”) lodged an additional charge of deportability against Beltran, supported by additional factual allegations. DHS said that, because of the one-year sentence imposed after Beltran’s probation violation, his larceny conviction was an “aggravated felony” as defined in 8 U.S.C. § 1101(a)(43)(G). Consequently, Beltran was subject to deportation under former 8 U.S.C. § 1251(a)(2)(A)(iii). In addition, DHS argued that, because Beltran’s 2000 conviction for fourth- degree criminal sexual conduct occurred after the repeal of § 1182(c),2 that section could not provide Beltran with relief from deportation. In June 2004, an immigration judge sustained the additional factual allegations and the additional charge of deportability. The immigration judge found that the 1981 larceny conviction was an “aggravated felony” as defined in 8 U.S.C. § 1101(a)(43)(G). The judge also found that the aggravated felony conviction did not bar Beltran from relief under § 1182(c), since the conviction occurred prior to September 30, 1996, and thus fell within the rule articulated by the Supreme Court in INS v. St. Cyr, 533 U.S. 289 (2001). However, the immigration judge determined that, despite Beltran’s statutory eligibility for § 1182(c) relief, that provision would not provide relief from Beltran’s 2000 conviction for fourth- degree criminal sexual conduct. The immigration judge held that the conviction for fourth-degree criminal sexual conduct involved “moral turpitude” and that in order to avoid deportation Beltran would require an additional waiver issued under 8 U.S.C. § 1229b(a). Finally, the immigration judge 2 Section 1182(c) was repealed in 1996 by § 309(c)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. 104-208, 110 Stat. 3009-546. 6 concluded that Beltran was barred from § 1229b(a) relief because he had been convicted of an aggravated felony (the 1981 larceny conviction and subsequent probation violation) and therefore declined to consider Beltran’s application for a waiver under § 1182(c), reasoning that even if the waiver were granted, Beltran would remain subject to deportation under 8 U.S.C. § 1251(a)(2)(A)(ii). The immigration judge again ordered Beltran deported to the Philippines. F. The Third Appeal Beltran again appealed from the immigration judge’s order of deportation. In October 2004, the BIA issued a decision affirming the immigration judge’s order without a separate opinion. Beltran filed a motion for reconsideration with the BIA, which was denied. He then petitioned for review in this Court. In March 2005, DHS moved to remand the proceedings “in view of the lengthy and complex history of this deportation matter [to] allow the [BIA] to clarify in the first instance the applicability of 8 U.S.C. § 1229b (cancellation of removal) in the case of an alien in deportation proceedings, and 8 C.F.R. §§ 1212.3(g) and 1212.3(h)(3) in the case of an alien whose proceedings commenced prior to 1996, but who suffered an additional criminal conviction after April 1, 1997.” Beltran did not oppose the motion, and in June 2005 we issued an order remanding the case to the BIA. G. The BIA’s Decision on Remand Following the remand, the BIA issued a new decision dismissing the appeal. During the remanded proceedings, DHS reiterated its earlier argument that § 1182(c) would not provide Beltran with complete relief and that it was therefore unnecessary to consider the merits of Beltran’s petition for relief under that statutory provision. DHS also argued an additional theory that it had not previously raised, specifically that under 8 C.F.R. § 1212.3(f)(5), Beltran is statutorily ineligible for 7 § 1182(c) relief because one of the two claimed grounds of deportability (8 U.S.C. § 1251(a)(2)(A)(iii) (conviction of an aggravated felony)) does not have a “statutory counterpart” in former 8 U.S.C. § 1182(a). Beltran argued that DHS should be foreclosed from raising the “statutory counterpart” argument due to collateral estoppel, law of the case, or some related doctrine. He further argued that § 1182(c) would provide him with relief from deportation despite his conviction for fourth-degree criminal sexual conduct in 2000. The BIA dismissed the appeal, holding first that Beltran was not eligible for cancellation of removal under 8 U.S.C. § 1229b. The BIA noted that Beltran was subject to “deportation proceedings” that commenced prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009-546 (1996). IIRIRA replaced “deportation proceedings” with “removal proceedings” under a new set of statutory provisions and regulations. Section 1229b, which provides for “cancellation of removal,” was enacted as an amendment to IIRIRA. As such, § 1229b is not applicable to cases, like Beltran’s, proceeding under the old law of “deportation proceedings.” The BIA further held that Beltran was not eligible for § 1182(c) relief because his 1981 larceny conviction lacks a “statutory counterpart” of inadmissibility under 8 U.S.C. § 1182(a), as required by 8 C.F.R. § 1212.3(f)(5). Rejecting Beltran’s contention that collateral estoppel or law of the case should bar consideration of the statutory counterpart argument, the BIA noted that “the current issue has never before been resolved or adjudicated by any governing body that has issued a decision in this case, and is crucial in deciding whether or not the respondent is eligible for a waiver” under § 1182(c). 8 III. Standard of Review In immigration appeals, we ordinarily review questions of law de novo, but we defer to the BIA’s reasonable interpretations of the immigration statutes. Singh v. Gonzalez, 451 F.3d 400, 403 (6th Cir. 2006); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). The BIA’s factual findings may be reversed only where “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). IV. Analysis A. The BIA Erred in Allowing DHS to Raise a New Argument on Remand In June 2005, we granted DHS’s unopposed motion to remand the case to the BIA “to clarify in the first instance the applicability of 8 U.S.C. § 1229b (cancellation of removal) in the case of alien in deportation proceedings, and 8 C.F.R. §§ 1212.3(g) and 1212.3(h)(3) in the case of an alien whose proceedings commenced prior to 1996, but who suffered an additional criminal conviction after April 1, 1997.” After the remand, the BIA issued an opinion holding that Beltran was ineligible for relief under 8 U.S.C. § 1182(c) because there was no “statutory counterpart” to his 1981 larceny conviction under 8 U.S.C. § 1182(a), as required by 8 C.F.R. § 1212.3(f)(5). The record does not show that either Beltran, the government, or the immigration courts had previously raised the “statutory counterpart” issue even in passing. We hold that DHS waived the “statutory counterpart” issue by failing to raise it in administrative proceedings prior to Beltran’s appeal to this Court and that the BIA’s consideration of the issue after the remand for clarification impermissibly exceeded the scope of the mandate. Prior to the 2005 remand, the government had consistently taken the affirmative position that Beltran was statutorily eligible for relief under § 1182(c). Counsel for DHS explicitly conceded the point 9 during the June 2004 hearing before the immigration judge. Furthermore, the immigration judge stated in her opinion that Beltran was eligible for § 1182(c) relief, and DHS successfully moved for summary affirmance of that opinion. Therefore, DHS could not have made the “statutory counterpart” argument for the first time before this Court. “It is a well-established rule that this Court will not consider claims that are presented for the first time on appeal nor arguments that are not properly raised below.” Berryman v. Rieger, 150 F.3d 561, 568 (6th Cir. 1998). The fact that the case was remanded to the BIA for clarification does not change this result. In accordance with DHS’s motion, the remand was granted to allow the BIA (which had not issued a separate opinion) to clarify the application of 8 U.S.C. § 1229b and 8 C.F.R. §§ 1212.3(g) and 1212.3(h)(3), issues which were essential to the immigration court’s disposition of the case. The remand was not license for the BIA to consider wholly new legal arguments that could not have been raised in this Court absent the remand. “[U]pon remand of a case for further proceedings after a decision by the appellate court, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal. The trial court must implement both the letter and the spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces.” Brunet v. City of Columbus, 58 F.3d 251, 254 (6th Cir. 1995) (internal quotation marks omitted). Here, the BIA exceeded the scope of the mandate in allowing DHS to raise an issue that was not discussed in the immigration court’s opinion and that could not have been raised in this Court. B. Beltran Is Not Otherwise Foreclosed From Seeking Relief Under § 1182(c) Once the “statutory counterpart” bar to § 1182(c) has been lifted, Beltran is not otherwise foreclosed from seeking relief from deportation under that provision. The only suggestion to the contrary comes in the 2004 opinion of the immigration court. That opinion held that § 1182(c) 10 would not provide Beltran with relief from his 2000 conviction for fourth-degree criminal sexual conduct because the conviction occurred after § 1182(c) was repealed. In its decision after the remand, the BIA rejected the immigration court’s position: However, just as cancellation of removal, which replaced the now repealed waiver of inadmissibility under section 212(c) of the Act, was explicitly enacted for those aliens in removal proceedings, former section 212(c) of the Act was preserved for those aliens in deportation proceedings subject to its [sic] Antiterrorism and Effective Death Penalty Act (“AEDPA”), which took effect on April 24, 1996, and IIRIRA amendments. Thus, under section 309(c) of the IIRIRA, the respondent, who is not eligible to seek cancellation of removal for his 2000 conviction because he is in deportation proceedings, is technically eligible to seek section 212(c) relief as to his post-AEDPA and IIRIRA convictions because section 309(c) of the IIRIRA specifically makes the repeal of the pre-IIRIRA deportation laws, including repeal of section 212(c) of the Act, inapplicable to those aliens in deportation proceedings. Moreover, the regulation at 8 C.F.R. § 1212.3(g), was retained at the time that the new regulations pertaining to relief under former section 212(c) of the Act were enacted in accordance with the United States Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001). As a result, while the AEDPA changes to the old deportation laws should apply to bar the respondent from eligibility for a section 212(c) waiver for his 2000 conviction, the regulation at 8 C.F.R. § 1212.3(g) bars that result. Thus, the respondent’s case is governed by the pre- AEDPA versions of former section 212(c) of the Act as those versions relate to his various convictions unless the regulation at 8 C.F.R. 1212.3(h)(3) bars that outcome. In this regard, we find that 8 C.F.R. § 1212.3(h)(3) should not be read to automatically bar relief under former section 212(c) of the Act for an alien who remains in old-law deportation proceedings because to do so would countermand section 309(c) of the IIRIRA which specifically preserved relief under former section 212(c) of the Act for aliens in old-law deportation proceedings such as the respondent in this case. JA 4. The BIA’s reasoning is persuasive; Beltran’s deportation proceedings are governed by pre- AEDPA law, and he remains eligible for relief under § 1182(c). 11 In its brief, DHS adopts the BIA’s position that Beltran’s case is governed by pre-AEDPA law and that he remains eligible for § 1182(c) relief. Respondent’s Br. at 28-32. Further, DHS agrees with Beltran that if the BIA is reversed on the “statutory counterpart” issue, the case should be remanded to the immigration court for consideration of the merits of Beltran’s petition for § 1182(c) relief. Respondent’s Br. at 53-54. V. Conclusion For the reasons stated above, we REVERSE the decision of the BIA and REMAND the case to the immigration court with instructions to consider the merits of Beltran’s petition for relief from deportation under § 1182(c). 12	{ "pile_set_name": "FreeLaw" }
___________ No. 96-3191 ___________ United States of America, * * Appellee, * * v. * Appeal from the United States * District Court for the Rory Allen Gregory, also known * Western District of Arkansas. as Roy Allen, also known as Roy * Gregory, * [UNPUBLISHED] * Appellant. * ___________ Submitted: January 3, 1997 Filed: January 10, 1997 ___________ Before BOWMAN, MAGILL, and LOKEN, Circuit Judges. ___________ PER CURIAM. Rory Allen Gregory pleaded guilty to attempting to manufacture methcathinone, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The 1 district court sentenced him to 155 months' imprisonment. Gregory appeals, and we affirm. Gregory challenges the district court’s drug-quantity findings. We conclude, however, that the district court did not clearly err in adopting the presentence report's conservative approximations of the amount of drugs Gregory could have produced from the precursor chemicals found at his clandestine drug laboratory. See U.S. Sentencing Guidelines Manual § 2D1.1, 1 The Honorable Jimm Larry Hendren, United States District Judge for the Western District of Arkansas. comment. (n.12) (1995) (where there is no drug seizure, court shall approximate quantity of controlled substance; court may consider, among other things, size or capability of any laboratory involved); United States v. Scott, 91 F.3d 1058, 1062 (8th Cir. 1996) (standard of review). Gregory’s argument that such an approximation is proper only when all the necessary precursor chemicals are present is without merit. See United States v. Beshore, 961 F.2d 1380, 1383-84 (8th Cir.) (even in absence of necessary precursor chemical, district court could properly approximate amount of controlled substance that could have been produced), cert. denied, 506 U.S. 884 (1992); United States v. Havens, 910 F.2d 703, 705 (10th Cir. 1990) (quantity of drugs should equal amount of drugs producible if chemicals possessed by defendant were combined with proportionate amounts of missing ingredients), cert. denied, 498 U.S. 1030 (1991). Accordingly, the judgment of the district court is affirmed. A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT. -2-	{ "pile_set_name": "FreeLaw" }
647 F.Supp.2d 103 (2009) WATCHTOWER BIBLE TRACT SOCIETY OF NEW YORK, INC., et al., Plaintiffs v. Roberto SÁNCHEZ-RAMOS, et al., Defendants. Civil No. 04-1452 (JP). United States District Court, D. Puerto Rico. August 10, 2009. 107 Nora Vargas-Acosta, San Juan, PR, Paul D. Polidoro, Patterson, NY, for Plaintiffs. Luis A. Rodriguez-Munoz, Eduardo A. Vera-Ramirez, Landron & Vera LLP, Guaynabo, PR, Iris Alicia Martinez-Juarbe, Wandymar Burgos-Vargas, Department of Justice, San Juan, PR, for Defendants. 108 OPINION AND ORDER JAIME PIERAS, JR., Senior District Judge. Before the Court are several motions for summary judgment, filed by the following parties: (1) Plaintiffs Watchtower Bible and Tract Society of New York and Congregación Cristiana de Testigos de Jehová en Puerto Rico, Inc. (No. 507); (2) Defendants Roberto Sánchez-Ramos, as Secretary of the Department of Justice, Hon. Aníbal Acevedo-Vilá, as Governor of the Commonwealth of Puerto Rico, Ángel D. Rodríguez-Quiñones, as Director of the Planning Board, and Luis A. Vélez-Roche, as Administrator of the Regulations and Permits Administration, in their official capacities (hereinafter the "Commonwealth Defendants") (No. 516); (3) Defendant Municipality of Dorado (No. 518); (4) Defendant Municipality of Trujillo Alto (No. 520); (5) Defendants Municipality of Bayamón, Municipality of Guaynabo, and Municipality of San Juan (No. 527); and (6) Defendant Municipality of Caguas (No. 528).[1] Also before the Court are the parties' respective responses in opposition to motions for summary judgment. For the reasons stated herein, Plaintiffs' motion for summary judgment (No. 507) is hereby DENIED, and Defendants' motions for summary judgment (Nos. 516, 518, 520, 527, and 528) are hereby GRANTED. I. INTRODUCTION AND BACKGROUND Due to the complex procedural history and number of parties involved, the Court will provide a brief overview of the case history. A. The Parties Plaintiffs Watchtower Bible and Tract Society of New York (hereinafter "Watchtower") and Congregación Cristiana de Testigos de Jehová en Puerto Rico (hereinafter "Congregación") brought the instant case against Defendants, arguing that Puerto Rico Laws No. 21 and No. 22 (hereinafter the "Controlled Access Laws"), P.R. Laws Ann. tit. 23, §§ 64-64h, violate their rights under the First, Fourth and Fourteenth Amendments of the United States Constitution. The Controlled Access Laws grant neighborhoods[2] the authority to close off access to public streets by means of walls and gates. Plaintiff Watchtower is a corporation utilized by the Governing Body of Jehovah's Witnesses to print and distribute Bible-based books and magazines. Plaintiff Congregación is a corporation utilized by the Governing Body of Jehovah's Witnesses to, among other things, administer the 327 congregations of Jehovah's Witnesses located throughout the Commonwealth of Puerto Rico. Plaintiffs allege, in part, that the Controlled Access Laws have impeded their efforts to distribute religious literature and therefore to attract new members. Defendants are the Commonwealth Defendants; the Municipalities of Bayamón, Caguas, Dorado, Guaynabo, Gurabo, Ponce, San Juan, and Trujillo Alto; and the urbanizations Pacifica Homeowners Association and Villa Paz. Plaintiffs' amended complaint (No. 49) originally named additional municipalities and urbanizations as Defendants, but, as explained below, several Defendants have been subsequently eliminated from the case. 109 B. Procedural History On August 9, 2005, 389 F.Supp.2d 171 (D.P.R.2005), the Court issued an Opinion and Order (No. 29) granting in part and denying in part Defendants' Motion to Dismiss. The Court dismissed Plaintiffs' constitutional allegations pertaining to the facial constitutionality of the Controlled Access Laws. However, the Court declined to dismiss Plaintiffs' constitutional challenges to the Controlled Access Laws as they are applied, holding that to do so would be premature given the undeveloped factual record of the case. See Antilles Cement Corp. v. Acevedo Vilá, 408 F.3d 41 (1st Cir.2005) (Selya, J.). The Court also declined to dismiss Plaintiffs' claims under 42 U.S.C. section 1983 ("Section 1983") for the same reason. As such, Plaintiffs' "as applied" claims and Section 1983 claims remain before the Court, and are the subject of the above-named motions for summary judgment. On September 19, 2006, the Court issued another Opinion and Order (No. 34), this time denying Plaintiffs' motion for leave to initiate an interlocutory appeal of the Court's dismissal of Plaintiffs' facial unconstitutionality claims. In said Opinion and Order, Plaintiffs were ordered to provide the Court with detailed information regarding the conditions permitting or preventing access at the various urbanizations. The Court further ordered Plaintiffs to include as defendants in their amended complaint the specific communities which would be affected by any decision of this Court. On April 5, 2007, Plaintiffs filed an amended complaint (No. 49), adding an additional thirty-eight Defendants to the instant litigation. Said Defendants are comprised mainly of municipalities and homeowners' associations. On January 22, 2008, the Court issued an Opinion and Order (No. 249) denying several motions to dismiss and one motion for summary judgment, which were filed by various Defendants. In its Opinion, the Court noted, inter alia, that a municipality's delegation of a portion of its authority over public streets to homeowners' associations does not abrogate the municipality's obligation to ensure that public streets remain available for public use. On April 1, 3, and 4, 2008, three separate Initial Scheduling Conferences were held. In the Initial Scheduling Conference Order (No. 385), the Court ordered each Defendant urbanization to file, on or before May 19, 2008, a brief history as to the construction of the urbanization. In particular, the Court ordered each Defendant urbanization to indicate whether the initial construction of the streets in the urbanization was paid for with private or public funding.[3] On April 21, 2008, the Court issued an Opinion and Order (No. 384) denying a motion for summary judgment filed by Defendant Asociación Comunitaria del Turabo, Inc. ("Turabo"). The Court held that in light of the factual controversy regarding Plaintiffs' ability to access the moving Defendant's urbanization, summary judgment was not appropriate. Subsequently, Defendant Turabo filed a motion for entry of judgment (No. 378), in which Turabo acknowledged that in the 110 past Plaintiffs had been denied access to the Turabo urbanization, and agreed to be bound by an Order of the Court to provide unfettered access. The Court granted Turabo's motion for entry of judgment on May 15, 2008 (No. 419). On May 30, 2008, the Court issued an Opinion and Order (No. 446) granting motions by several Defendant urbanizations for entry of judgment stating that Plaintiffs shall have unfettered access to the moving Defendants' urbanizations. Specifically, the Court ordered that: Plaintiffs shall have unfettered access to the following Defendant Urbanizations:. . . Said access shall not be restricted by the guard into the urbanization, but each individual resident shall have the right to refuse entry of Plaintiffs into his or her individual home. Failure by said Defendant Urbanizations to adhere to this Order will be grounds for contempt. The Court further held that the moving Defendants' agreement to the unfettered access language mooted the controversy involving those urbanization Defendants. Accordingly, the Court dismissed said Defendants. On July 9, 2008 and August 8, 2008, the Court entered two further Opinions (Nos. 465 and 468), in which additional urbanizations were dismissed after agreeing to be bound by the unfettered access language. On June 9, 2008, the Court entered a Default Judgment (No. 455) for Plaintiffs against several Defendant municipalities and urbanizations that had failed to answer Plaintiffs' complaint. The Court deemed the defaulting Defendants to have admitted the allegations of Plaintiffs' amended complaint. The Court also ordered the defaulting urbanizations to provide the Plaintiffs unfettered access to their urbanizations, and ordered the defaulting municipalities to provide the Plaintiffs unfettered access to urbanizations within their jurisdiction. Presently, the Defendants remaining in the case are the Commonwealth Defendants; the Municipalities of Bayamón, Caguas, Dorado, Guaynabo, Gurabo, Ponce, San Juan, and Trujillo Alto; and the urbanizations Pacifica Homeowners Association and Villa Paz. II. MATERIAL FACTS NOT IN GENUINE ISSUE OR DISPUTE The following material facts were deemed uncontested by all parties at the Initial Scheduling Conferences on April 1, 3, and 4, 2008 (No. 385). 1. Watchtower is a corporation utilized by the Governing Body of Jehovah's Witnesses to print and distribute Bible-based books and magazines. 2. The Governing Body is an ecclesiastical group of elders who provide spiritual direction to Jehovah's Witnesses worldwide. 3. Since 1909, Watchtower has been the publisher of numerous Bibles, tracts, magazines, booklets, and books, including the semimonthly magazines entitled The Watchtower and Awake!, all of which are distributed throughout the United States, including Puerto Rico, and elsewhere. 4. Jehovah's Witnesses use the Bible along with religious publications produced by Watchtower to personally discuss with their neighbors the wonderful promises recorded by God in the Bible. 5. Congregación Cristiana de los Testigos de Jehová de Puerto Rico, Inc., is a corporation utilized by the Governing Body of Jehovah's Witnesses, among other things, to administer 111 to the 318 congregations of Jehovah's Witnesses located throughout the Commonwealth of Puerto Rico. 6. As part of their ministry, Jehovah's Witnesses, including those in Puerto Rico, offer home Bible studies and religious literature without cost. 7. On May 20, 1987, the Puerto Rico Legislature passed Law No. 21, "empowering residential associations with the ability to close off their neighborhoods to outsiders." Figueroa v. Fernández, 921 F.Supp. 889, 892 (D.P.R.1996). Authority was granted to close off access to public streets in neighborhoods by means of walls and gates. On July 16, 1992, the Puerto Rico Legislature passed Law No. 22, amending portions of Law No. 21. 8. On April 30, 1997, local representatives of those administering the activities of Jehovah's Witnesses in Puerto Rico testified before the Commission for Municipal Affairs of the House of Representatives. 9. In some urbanizations, Jehovah's Witnesses can obtain access through a pedestrian gate. 10. The Municipality of Caguas is a municipality of the Commonwealth of Puerto Rico organized and existing pursuant to the Autonomous Municipalities Law, Title 21, Puerto Rico Laws Annotated, sec. 4001 et seq. 11. The Municipality of Caguas has issued ordinances adopting regulations governing controlled access to neighborhoods, pursuant to the Controlled Access Laws. 12. The Municipality of San Juan is a municipality in the Commonwealth of Puerto Rico, organized and existing pursuant to the Autonomous Municipalities Law, Title 21, Puerto Rico Laws Annotated, sec. 4001 et seq. 13. The Municipality of Bayamón is an entity, as set forth by the laws of the Commonwealth of Puerto Rico, that has the legal capacity to sue and to be sued. 14. The Controlled Access Laws grant municipalities the authority to issue authorizations or permits for control of streets, urbanizations or communities under the circumstances described in the Laws, and the Municipality of Bayamón has issued authorizations in compliance with said Laws. 15. Pacifica is duly-organized and registered in the Puerto Rico Department of State as a nonprofit institution and has its principal place of business in Trujillo Alto, Puerto Rico. 16. Pacifica is a controlled access community. 17. The Municipality of Ponce is a municipality of the Commonwealth of Puerto Rico, organized and existing pursuant to the Autonomous Municipalities Law, Title 21, Puerto Rico Laws Annotated, sec. 4001 et seq. The Municipality of Ponce adopted ordinance No. 103 of April 10, 1996, superseded by No. 45 of May 14, 2003, adopting regulations governing controlled access to neighborhoods, pursuant to the Controlled Access Laws. 18. The Municipality of Trujillo Alto is a municipality in the Commonwealth of Puerto Rico. 19. The Municipality of Trujillo Alto, in accordance with Planning Regulation 112 No. 20, enacted a Municipal Ordinance that created the Technical Committee which evaluates the permits for gates. Said evaluations are done pursuant to the Controlled Access Laws. 20. The Municipality of Gurabo is a municipality in the Commonwealth of Puerto Rico, organized and existing pursuant to Law 81 of August 30, 1991, as amended. The parties have submitted over nine hundred additional facts in connection with the motions for summary judgment and oppositions thereto. The Court takes this opportunity to remind the parties of the language of Local Rule 56: . . . (b) Supporting Statement of Material Facts A motion for summary judgment shall be supported by a separate, short, and concise statement of material facts, set forth in numbered paragraphs . . . (c) Opposing Statement of Material Facts A party opposing a motion for summary judgment shall submit with its opposition a separate, short, and concise statement of material facts. . . . (emphasis added). While the present case is complex and warrants development of a thorough factual record, in at least some instances the parties' statements of facts could not be described as short and concise. Nevertheless, the Court has reviewed the full record and will give well-supported facts due attention in the following analysis. In the interest of conciseness, the Court will not list here each fact deemed admitted as a result of stipulation or clear support in the record. However, in order to provide further context regarding facts of the case, the Court will list a brief selection of facts. The Court emphasizes that the facts listed here are not the full scope of facts deemed admitted and considered by the Court. Nor are the following facts intended to be perfectly representative of the broader factual record. The following are intended as examples only to provide familiarity with some of the relevant factual context: 1. Under P.R. Laws Ann. tit. 23, § 64, municipalities have authority to issue authorizations or permits for access control of streets, urbanizations or communities under the circumstances described in such statute and the Municipality of Bayamón has issued such authorizations or permits in compliance with those statutory provisions. (Bayamón SOF # 7.) 2. When a permit request is received, the Municipality of Bayamón opens a file for the urbanization, and keeps the file for the life of the urbanization. Approximately one hundred such files exist for approved or pending controlled access permits in Bayamón. The majority of these files pertain to urbanizations who have completed the request process and received an approved permit. (Santana-del Pilar Dep. at 6-7, Oct. 21, 2008; Pl.'s Opp. to Bayamón SOF # 7.) 3. The municipalities' power to grant controlled access permits is subject to oversight by Commonwealth officials. The Planning Board of the Commonwealth of Puerto Rico ("Planning Board") is empowered, by regulation adopted by the Governor of the Commonwealth, to adopt rules regarding the procedure for granting controlled access permits. (Commonwealth Def.'s SOF # 21-26.) 113 4. The Commonwealth Administration of Regulation and Permits administers applicable regulations of the Planning Board regarding permits, but does not provide instructions or guidelines to municipalities and/or urbanizations dealing with the administration, implementation, and/or enforcement of the Controlled Access Laws. (Commonwealth Def.'s SOF # 27-30.) 5. At the urbanization of Valles del Lago, in the Municipality of Caguas, Jehovah's Witnesses have been excluded by the security guard. On one such occasion, the urbanization security guard contacted the municipal police, who arrived and sought to convince the Jehovah's Witnesses to cease their preaching activities and take up the issue with the urbanization board of residents. (Caguas SOF # 46-48.) 6. On two different occasions one of Jehovah's Witnesses was issued a citation for engaging in their ministry in a controlled access community in Caguas. (Pl.'s Opp. to Caguas SOF, Add'l Fact # 2.) 7. At the urbanization of Estancias de Bairoa in the Municipality of Caguas, Jehovah's Witnesses are permitted access to preach during one or two hours per week. (Caguas SOF # 42-43.) 8. In 2007, Plaintiffs conducted an island-wide survey and recorded data indicating how many of the urbanizations within each municipality permit some form of access to Jehovah's Witnesses. (Pl.'s Ex. 2.) 9. The 2007 access control survey indicates that eight out of twelve total urbanizations within the Municipality of Dorado do not permit access to Jehovah's Witnesses. The survey also indicates that twenty-nine out of thirty-three urbanizations within the Municipality of Trujillo Alto do not permit access to Jehovah's Witnesses. Id. 10. The Commonwealth Defendants have no mechanisms in place to address complaints by an individual being denied access to public streets within a controlled access community. (Commonwealth Def.'s Mot. Summ. J. at 516; Pl.'s Opp. to Commonwealth Def.'s SOF, Add'l Fact # 8.) 11. On several occasions, Commonwealth police have participated in enforcing the exclusion of Jehovah's Witnesses from controlled access communities. (Pl.'s Opp. to Commonwealth Def.'s SOF, Add'l Facts # 9-17.) 12. Defendant Pacifica does not admit visitors seeking to speak with residents or distribute printed materials, unless the visitor specifically arranges authorization from a resident. (Colón Resto Dep. 17:1-17:13, July 15, 2008) (No. 503). III. LEGAL STANDARD FOR A MOTION FOR SUMMARY JUDGMENT Summary judgment serves to assess the proof to determine if there is a genuine need for trial. Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990). Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when "the record, including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, viewed in the light most favorable to the nonmoving party, reveals no genuine issue as to any material fact and the moving party is entitled to judgment as a 114 matter of law." Fed.R.Civ.P. 56(c); see also Zambrana-Marrero v. Suárez-Cruz, 172 F.3d 122, 125 (1st Cir.1999) (stating that summary judgment is appropriate when, after evaluating the record in the light most favorable to the non-moving party, the evidence "fails to yield a trial worthy issue as to some material fact"); Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993); Canal Ins. Co. v. Benner, 980 F.2d 23, 25 (1st Cir.1992). The Supreme Court has stated that "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In this way, a fact is material if, based on the substantive law at issue, it might affect the outcome of the case. See Mack v. Great Atl. and Pac. Tea Co., Inc., 871 F.2d 179, 181 (1st Cir.1989). On a summary judgment motion, the movant bears the burden of "informing the district court of the basis for its motion and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, the burden shifts to the opposing party who may not rest upon mere allegations or denials of the pleadings, but must affirmatively show, through the filing of supporting affidavits or otherwise, that there is a genuine issue of material fact for trial. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Goldman, 985 F.2d at 1116. IV. ANALYSIS Plaintiffs move for summary judgment arguing that there is no issue of material fact as to the unconstitutionality of the Controlled Access laws as they are applied to Plaintiffs by Defendants. Plaintiffs' as applied claims arise under the First, Fourth, and Fourteenth Amendments to the United States Constitution, as enforced through Section 1983. Plaintiffs argue that the record shows violations of their freedoms of speech, press, exercise of religion, and association, as well as their rights of due process, equal protection, and to be free from unreasonable seizure. Defendants move for summary judgment arguing that the record shows, without any genuine issue of material fact, that Defendants' application of the Controlled Access Laws to Plaintiffs is constitutional. Several of the Defendant municipalities also raise defenses arguing that Plaintiffs lack standing, and that Plaintiffs' claims have become moot and are barred by the applicable statute of limitations. The Court will now consider the parties' arguments in turn. Because the parties' respective motions and oppositions involve the same issues, the Court considers them together. A. Plaintiffs' Freedom of Speech, Press, and Exercise of Religion Claims (First & Fourteenth Amendments) In their cross motions for summary judgment, the parties dispute whether the record shows violations of Plaintiffs' First Amendment rights to freedom of speech, press, and exercise of religion. The Court will analyze these three First Amendment claims together, as has been done by the United States Supreme Court in cases involving multiple related First Amendment Claims.[4] We shall begin by laying out the 115 applicable standard of scrutiny that emerges from cases dealing with the freedoms of speech, press, and exercise of religion. A statute that imposes content-neutral restrictions on speech is subject to intermediate scrutiny under the First Amendment. Asociación de Educación Privada de Puerto Rico, Inc. v. García-Padilla, 490 F.3d 1, 15-16 (1st Cir.2007). Under intermediate scrutiny, the "government may impose reasonable restrictions on the time, place, or manner of protected speech provided the restrictions . . . are narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication." Id. (internal quotations omitted). The statute need not utilize the least restrictive means possible to achieve the governmental interest. Rather, a statute is sufficiently narrowly tailored if the means chosen are not substantially broader than necessary to achieve the government interest.[5]Id. As with restrictions on speech, a content-neutral restriction on free press is subject to intermediate scrutiny. Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 100 F.3d 175, 186 (1st Cir. 1996). As such, any restriction on the press must be "narrowly tailored to serve a significant governmental interest, and allow for reasonable alternative channels of communication." Id. The law will be valid if it does not burden substantially more expression than is necessary to further the government interest. Id. The First Amendment provides that "Congress shall make no law . . . prohibiting the free exercise" of religion. The First Amendment applies to the states through the Fourteenth Amendment. School Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). The right to espouse the religious beliefs of one's own choosing carries with it the right to engage in proselytization to disseminate religious teachings and seek converts to join a particular faith. Cantwell v. State of Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). The right to free exercise of religion is not absolute, and may be restricted by regulations on the time, place, and manner of the actions. Id. In applying the First Amendment standards articulated by the Supreme Court, the Court must also consider other democratic concepts enclosing the nature of man and his inherent rights. These concepts are included in that great writing that is the Constitution of the United States, which provides for equal protection of the law, and further acknowledges that the rights of one end where the rights of another begin. 116 1. Restriction on Speech, Press, and Exercise of Religion Allegedly Caused by Controlled Access Laws as Applied to Plaintiffs. As to the first elementrestrictivenessin Plaintiffs' speech, press and free exercise claims, the factual record before the Court indicates that, as applied to Plaintiffs, the Controlled Access Laws do create some limited restriction on the speech and other First Amendment freedoms of Jehovah's Witnesses by preventing them from accessing the streets of residential communities throughout Puerto Rico. The extent of the restrictions vary across the different municipalities and the various urbanizations within each municipality. Plaintiffs' 2007 survey of the access control policies in Puerto Rico, as applied to Jehovah's Witnesses, indicates that many of the urbanizations on the island do not permit Jehovah's Witnesses to enter and engage in speech, distribution of literature, or proselytization. To provide a specific example, the record indicates that the Defendant urbanization of Pacifica does not admit individuals seeking to engage in protected speech unless the visitor specifically coordinates entry with a particular resident. The following statements were made at the deposition of Luis Colón Resto, a member of the Pacifica Homeowners Association who is responsible for working with the private security company at the urbanization: Q: So if a person appeared at the gate of Pacifica and said they wanted to go from door to door to speak about politics, would they be given access to the streets of Pacifica? A: No. Q: If a person appeared at the gate and said they wanted to go from door to door to speak about a religious message, would they be given access to the streets of Pacifica? A: No. . . . You have to go specifically to a residence and that person authorize it. (Colón Resto Dep. 17:1-17:13, July 15, 2008) (No. 503). As indicated by the examples of the access control survey and the Colón Resto deposition, the evidentiary record reveals that the Controlled Access Laws, as applied to Plaintiffs, have resulted in certain limited restrictions on Plaintiffs' speech, press, and religious activities. 2. Significant Government Interest As to the second element of the intermediate scrutiny standard, the Controlled Access Laws are designed to further the important government interest of preventing crime. In the statement of motives regarding the 1992 amendments to the Controlled Access Laws, the Puerto Rico Legislature stated: Access control systems permit the effective involvement of the community to help the Government in its fight against crime, which is still experiencing an excessive and alarming increase in spite of the multiple efforts expended by the Puerto Rico Police to provide the security and protection which every citizen is entitled to. In this manner the community participates actively and effectively in its own protection, allowing the resources of the Puerto Rico Police to be used adequately in high crime areas. Statement of Motives, Act No. 22, July 16, 1992, P.R. Laws Ann. tit. 23, § 64. Allowing unfettered access to residential communities creates a heightened risk that criminals seeking to commit a robbery or other offense may freely enter disguised as religious personnel or otherwise. Puerto Rico faces unusually severe problems with violent crime. For example, as of 2005, the murder rate in Puerto Rico 117 was the highest in the United States.[6] Within the first two months of 2009, 119 murders were reported in Puerto Rico.[7] By July 2009, police statistics recorded 433 murders in Puerto Rico, thirty-three more than during the same period of the preceding year.[8] The Court takes judicial notice of said statistics. These grim numbers have prompted Governor and accomplished attorney Luis Fortuño to state "[t]he pointless deaths that have been occurring in Puerto Rico in recent weeks have wounded the feelings of all Puerto Ricans, and we all must be part of the fight against crime."[9] Statistics of this sort understandably lead the Puerto Rico legislature to view protecting its citizens from violence as a central concern. See Figueroa v. Fernandez, 921 F.Supp. 889 (D.P.R.1996) (describing the motivation for the Controlled Access Laws as follows: "[a]ppalled by the skyrocketing number of murders, assaults, and robberies, the Puerto Rico Legislature decided to arm its citizens with a weapon against crime."). In light of these facts, the Court finds that preventing crime in residential areas is a significant government interest. In addition, the Controlled Access Laws further the important government interest of preserving residents' privacy rights. As residential communities in Puerto Rico and throughout the world have evolved and adapted to new circumstances, innovative approaches for ensuring rights of privacy have become necessary. The residential structures enabled by the Controlled Access Laws are an important example of this type of adaptation. Organizing into such new types of community living arrangements allows for stable communities that can overcome the challenges posed by population increases, which are particularly severe in Puerto Rico. Forcing proselytization upon the residents of these communities is counterproductive to the rights of all the parties involved in this controversy. The Court thus finds that the government has an important interest in allowing residents of controlled access communities to be free from undue annoyance and intrusion upon their homes, and in protecting residents' legal rights to control who intrudes upon their properties. 3. Narrowly Tailored The third element in the intermediate scrutiny standard requires that when a content-neutral state law has the effect of restricting speech, the means chosen must not be "substantially broader than necessary to achieve the government interest." García-Padilla, 490 F.3d at 16. Narrow tailoring does not require the state to use the least restrictive means possible to achieve the governmental interest. Rather, a statute is sufficiently narrowly tailored if the means chosen are not substantially broader than necessary to achieve the government interest. Id. Here, the significant government interests involved are prevention of crime and protection of privacy rights. Under the Controlled Access Laws, the means utilized to achieve these goals is a system of allowing communities to set up gates or security checkpoints where entry is limited 118 to those who live in the community and to guests whom a resident has chosen to admit. This approach focuses squarely on the interests of crime prevention and privacy by setting up a mechanism to stop potential burglars or other criminals, and to prevent homeowners from having to personally defend their private property. The means utilized with the Controlled Access Laws sometimes have a minimal effect of preventing Jehovah's Witnesses from proselytizing in certain residential communities. However, this cannot reasonably be avoided without sacrificing safety and privacy. The Controlled Access Laws allow residents to decide whether or not to admit a potential visitor. Therefore individuals, including Jehovah's Witnesses, who wish to speak with a resident may still do so if the resident is willing.[10] In this manner, the laws accommodate both the rights of religious groups and the rights of citizens living in residential communities. A clear example of the successful functioning of this type of balanced approach is the process followed by Defendant urbanization of Pacifica. As explained by Pacifica representative Luis Colón Resto in his deposition, any visitor seeking to enter Pacifica, whether to discuss religion or another topic such as politics, must first obtain the approval of an individual resident. (Colón Resto Dep. 17:1-17:13, July 15, 2008) (No. 503). Once such approval is obtained, the security guard at the gate will permit the visitor to enter and go to the resident's home. No further restrictions are placed on the visitor once he is inside the urbanization. The Court finds that Pacifica's practice of permitting entry after receiving approval strikes a beneficial balance that preserves First Amendment rights without unnecessarily burdening residents. The Court further notes that Plaintiffs' dissatisfaction with the urbanizations' fair and balanced policies indicates Plaintiffs' intent to misuse their economic strength by litigating in the hopes of obtaining favorable Supreme Court jurisprudence. By contrast with Defendant Pacifica's practice, certain urbanizations in Puerto Rico maintain locked pedestrian gates at which no security guard is present to permit entry for approved visitors.[11] Thus, only residents can open the gates with their keys or entry codes. While this practice may be necessary at times to preserve residents' safety, the Court finds that the absence of a guard may place an increased burden on visitors seeking to speak with residents. Without a guard to call from the gate to a resident's home, visitors face the increased burden of needing to coordinate with a resident who can come from their home to the gate to permit entry. The Court therefore notes that the use of guarded entryways, such as those at the Pacifica urbanization, is preferable to unmanned locked gates. Although the presence of a closed gate lacking a guard imposes a greater burden on visitors seeking to speak with residents, 119 such an approach does not rise to the level of being unconstitutionally burdensome. Jehovah's Witnesses or other visitors may still enter such urbanizations if they coordinate with a resident prior to their arrival. The necessity of advanced planning does not negate the constitutionality of these urbanizations' method for implementing the Controlled Access Laws. In addition, as discussed further in the following section, individuals are free to communicate with residents of such communities via numerous alternative means of communication such as mail, email, or direct contact immediately outside the urbanization gates. Because the Controlled Access Laws are carefully formulated to achieve the important government interests of crime prevention and preserving residents' privacy, the Court finds that said laws are sufficiently narrowly tailored to further the relevant government interests. Globe Newspaper Co., 100 F.3d at 188-189 (finding law prohibiting newspaper distribution boxes on streets of historic city area to be sufficiently narrowly tailored to achieve government interest in preserving aesthetics of historic zone). 4. Alternative Channels of Communication The final step in the intermediate scrutiny analysis is to examine whether the law in question leaves open ample alternative channels of communication. Here, the factual record does not reveal any evidence that the Controlled Access Laws, as they are applied to Plaintiffs, have a negative affect on the ability of Jehovah's Witnesses to utilize alternative means of communication to reach new members. Religious messages may be distributed using the mail or electronic mail, telephone, television, radio, billboards, and various other means. These other channels besides personal communication remain open and available to Plaintiffs. In addition, Jehovah's Witnesses remain free to speak directly with residents on public streets outside the urbanization gates. Therefore, the Court finds that the Controlled Access Laws, as applied, satisfy the constitutional requirement for leaving open alternative channels of communication. A careful examination of the record reveals no genuine factual issues that could support a conclusion that the Controlled Access Laws, as applied to Plaintiffs, could in any way infringe upon Plaintiffs' First Amendment rights to freedom of speech, expression, and exercise of religion. Defendants have demonstrated significant government interests in crime prevention and privacy, and have shown that the laws are narrowly tailored to achieve these goals without affecting Plaintiffs' rights of expression in any way and while leaving open alternative channels of communication. The Court emphasizes that the balance struck by the Controlled Access Laws is appropriate given that ours is not an anarchist society, but rather one of law and order. Accordingly, the Court will grant summary judgment for Defendants on these claims. B. Plaintiffs' Freedom of Association Claims (First & Fourteenth Amendments) Plaintiffs bring a claim for violation of their First Amendment right to freedom of association, resulting from the Controlled Access Laws as applied to Jehovah's Witnesses. Defendants move for summary judgment on this claim, arguing that Plaintiffs have developed insufficient evidence to create a genuine issue as to any material fact that could support Plaintiffs' freedom of association claim. Though not explicitly mentioned in the First Amendment, the United States Supreme Court has recognized a 120 constitutional right to freedom of association. NAACP v. State of Ala., ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). The right of association includes two distinct freedoms: (1) freedom of intimate association, and (2) freedom of expressive association. Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Freedom of expressive association refers to the right of individuals to associate for the purposes of engaging in activities protected by the First Amendment such as speech, assembly, and exercise of religion. Id. Freedom to associate for the purposes of engaging in speech and other activities protected by the First Amendment includes various forms of association, including both traditional meetings to organize and further the group's interests, as well as other forms of association such as social events and fundraisers. Gay Students Organization of University of New Hampshire v. Bonner, 509 F.2d 652, 660 (1st Cir.1974). The factual record developed by the parties during discovery has failed to yield evidence indicating that Plaintiffs are being denied the freedom of association as a result of the Controlled Access Laws. Plaintiffs have shown that individuals representing the Jehovah's Witnesses have been denied access to certain urbanizations in Puerto Rico. However, the excluded individuals sought permission only to visit non-members' homes to discuss the religious views of Jehovah's Witnesses. Thus, the intended activities within the urbanizations are not examples of association of the religious group. There is no evidence on the record demonstrating that Plaintiffs are attempting to gather together in group meetings of Jehovah's Witnesses, or to hold social events or fundraisers like in Bonner. Id. Because the record indicates no genuine factual issue as to the possibility that the constitutional right to expressive association has been infringed by the Controlled Access Laws as applied to Plaintiffs, the Court will grant summary judgment for Defendants on this claim. C. Plaintiffs' Unreasonable Seizure Claims (Fourth & Fourteenth Amendments) Plaintiffs allege that the application of the Controlled Access Laws by Defendants has violated their rights to be free from unreasonable seizure, as established in the Fourth Amendment and applicable to the states through the Fourteenth Amendment. Plaintiffs assert that Jehovah's Witnesses are subjected to seizures upon being stopped at the checkpoints for entering controlled access urbanizations. Defendants argue that Plaintiffs' Fourth Amendment unreasonable seizure claim must be dismissed because the record indicates, beyond any genuine factual question, that Plaintiffs right to be free from unreasonable seizure has not been infringed. The Fourth Amendment guarantees the rights of citizens to be free from unreasonable searches and seizures, and requires a two-part test to determine whether this right has been abridged. First, the Plaintiff must show that a search or seizure has occurred. A person is deemed to have been "seized" by police or other authorities if "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); United States v. Ford, 548 F.3d 1, 4 (1st Cir.2008). Second, if a seizure has occurred, it will constitute a Fourth Amendment violation only if the seizure is unreasonable. In the context of a fixed vehicle checkpoint, 121 reasonableness is determined by balancing "the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context." Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 449-450, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (quoting Treasury Employees v. Von Raab, 489 U.S. 656, 665-666, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989)); United States v. Woodrum, 202 F.3d 1, 11 (1st Cir.2000). 1. Existence of Seizure Plaintiffs contend that being stopped by a security guard at the entrance to an urbanization constitutes an unreasonable seizure. Upon approaching a gated urbanization entrance manned by a security guard, drivers may be prevented from entering unless they first stop and answer questions from the guard. Nothing about this scenario suggests that a reasonable person would believe that he was not free to leave. Potential visitors, including Jehovah's Witnesses, know that at any point they could choose to terminate the conversation with the security guard and leave the urbanization. Plaintiffs have not developed and argued facts in their motion for summary judgment, or in their opposition to Defendants' motions for summary judgment, to indicate that guards have in practice detained individuals in a way that prevents them from feeling free to leave. Therefore, the Court concludes that the Controlled Access Laws, as applied to Plaintiffs, do not result in a seizure for Fourth Amendment purposes. Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870; Ford, 548 F.3d at 4. Accordingly, the Court will grant summary judgment for Defendants on Plaintiffs' Fourth Amendment claims pertaining to the Controlled Access Laws as applied to Plaintiffs. 2. Reasonableness Because the facts do not support a finding that a seizure has occurred, we need not proceed to the second step of the analysis, under which a plaintiff must show that the seizure was unreasonable. Nevertheless, the Court will briefly address the reasonableness of stopping visitors entering urbanizations. Applying the Supreme Court's test in Sitz, the reasonableness of the vehicle stops must be determined by balancing the individual's privacy expectations against the Government's interests. Sitz, 496 U.S. at 449-450, 110 S.Ct. 2481. Here, the intrusion on visitors' privacy is nonexistent. By contrast with a police stop on a highway, urbanization security guards do not ask to see the driver's license or registration, or subject drivers to tests to detect intoxication. Instead, the guards merely ask questions such as the purpose of the visit, the name of the resident to be visited, and the name of the visitor. Such questions are asked in a context creating a low expectation of privacyvisitors are outside in a public area and affirmatively choosing to approach an entrance gate or checkpoint. On the other hand, the government interests achieved by this brief stop are significant. Serious dangers such as burglary or violent crime against residents may be prevented by the brief stops at urbanization gates. Such stops allow guards to identify by sight visitors who have previously committed crimes in the urbanization, and deter new offenders who are aware that at least one witness will have noted their entrance around the time of a burglary or other offense. Thus, even if the conversations at checkpoints constituted a seizure, which they do not, we also note that the evidence does not support a 122 finding of unreasonableness. Sitz, 496 U.S. at 455, 110 S.Ct. 2481 (finding intrusion caused by automobile checkpoint stops to be warranted in light of dangers caused by drunk drivers). Accordingly, the Court shall grant summary judgment for Defendants on Plaintiffs' claim of unreasonable seizure resulting from the application of the Controlled Access Laws. D. Plaintiffs' Right to Travel and Freedom of Movement Claims Plaintiffs claim that Defendants' application of the Controlled Access Laws has infringed upon their constitutionally protected right to travel and freedom of movement, by preventing Jehovah's Witnesses from moving freely within closed urbanizations. Defendants move for summary judgment on this claim, arguing that the record creates no genuine issue of material fact to support the possibility that Plaintiffs' have suffered a violation of the right to travel. The United States Supreme Court has established that "[t]he right to travel is a part of the `liberty' of which the citizen cannot be deprived without the due process of law under the Fifth Amendment." Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958). The Fourteenth Amendment provides the same protection for "liberty" against infringement by the states. The right to travel is not absolute, and may be curtailed on the basis of important government interests. Regan v. Wald, 468 U.S. 222, 243, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984) (upholding restrictions on travel to Cuba based on national security concerns). The right to travel applies to international travel and to interstate travel. Kent, 357 U.S. at 125, 78 S.Ct. 1113 (upholding right to international travel); United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966) (upholding right to interstate travel). Neither the United States Supreme Court nor the First Circuit has clearly established whether the right to travel also applies to intrastate travel. Compare Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 277, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) ("a purely intrastate restriction does not implicate the right of interstate travel") with Id. at 333, 113 S.Ct. 753 (finding the majority's position regarding impact on intrastate travel "unsupported by precedent or reason") (Stevens, J., dissenting). The Controlled Access Laws are local in nature, and have no affect on international or interstate travel. To the extent that a right to intrastate travel exists, the Controlled Access Laws also do not infringe on that right. Indeed, the statutes specifically include qualifications providing that they may not be used to cut off a thoroughfare when no alternative means of reaching a particular destination is available. P.R. Laws Ann. tit. 23, § 64. The record does not reveal facts creating a genuine issue as to the possibility that the Controlled Access Laws have resulted in an infringement on Plaintiffs' right to travel. Accordingly, the Court will grant summary judgment for Defendants on Plaintiffs' as applied right to travel claim. E. Plaintiffs' Due Process and Equal Protection Claims (Fourteenth Amendment) Plaintiffs' amended complaint (No. 49) alleges that Defendants' application of the Controlled Access Laws to Jehovah's Witnesses has violated Plaintiffs' rights of due process and equal protection. In the absence of argumentation from Plaintiffs to suggest otherwise, the Court understands Plaintiffs' invocation of the Fourteenth Amendment to refer to the means by which rights provided by the First and Fourth Amendments may be applied to the states. Nevertheless, in order to provide a 123 complete review of the claims alleged, the Court will examine the potential Fourteenth Amendment claims that Plaintiffs may be asserting independent of the First and Fourth Amendments. The Court notes with regard to the following analysis that the Controlled Access Laws are in no way directed specifically at Jehovah's Witnesses, as the language of said laws is general with regard to the affected individuals. 1. Due Process Plaintiffs allege that Defendants' application of the Controlled Access Laws to Jehovah's Witnesses has violated the constitutional protection of due process. Defendants move for summary judgment on this claim. The due process clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property without due process of law." U.S. CONST. amend. XIV, § 1. The Fourteenth Amendment due process clause includes both a substantive due process right and a procedural due process right. Harrah Independent School Dist. v. Martin, 440 U.S. 194, 99 S.Ct. 1062, 59 L.Ed.2d 248 (1979). i. Substantive Due Process Substantive due process creates two categories of rights: (1) incorporation of most of the protections from the Bill of Rights, thus causing those limits on congressional activity to be applicable also to state legislatures, and (2) a more general protection against certain arbitrary, wrongful government actions. Jeneski v. City of Worcester, 476 F.3d 14, 17 (1st Cir.2007). With regard to the first category of substantive due process rights, we have already addressed Plaintiffs' particular claims based on the First and Fourth Amendments in the corresponding sections of our analysis dealing with freedom of speech, press, religion, association, and travel. With regard to the second category of substantive due process rights, a general substantive due process claim may be made only when the state's action "shocks the conscience." Cruz-Ezaro v. Rivera-Montañez, 212 F.3d 617, 622 (1st Cir.2000). State action is said to shock the conscience in situations such as those where the action is "arbitrary or capricious," "run[s] counter to the concept of ordered liberty," or "violate[s] . . . universal standards of decency." Id. (internal quotations omitted). Here, Plaintiffs argue that the Controlled Access Laws have gone too far in tipping the difficult balance between residents' rights to privacy and safety and Plaintiffs' rights to freedom of expression and religion. Plaintiffs have not developed facts to support the notion that the Defendant urbanizations, municipalities, or Commonwealth officials have taken such extreme action so as to shock the conscience. Thus, Plaintiffs have no claim under a theory of generalized substantive due process. Id. 2. Procedural Due Process In order to succeed on a procedural due process claim, a plaintiff must demonstrate that he or she was deprived of a life, liberty, or property interest without the requisite minimum measure of procedural protection warranted under the circumstances. Romero-Barceló v. Hernández-Agosto, 75 F.3d 23, 32 (1st Cir. 1996). In the case at bar, Plaintiffs have not described a property interest of which they have been deprived. With regard to an alleged deprivation of liberty interests, Plaintiffs have discussed, and the Court has considered, the liberties afforded by the First and Fourth Amendments. Because the record reveals no infringement 124 on these constitutionally protected liberties, Plaintiffs' procedural due process claim fails at the first step of the analysis because Plaintiffs have not developed facts to show deprivation of a protected liberty interest. There can be no deprivation without due process if there was no deprivation at all. Therefore, the Court finds that summary judgment for Defendants is appropriate as to Plaintiffs' procedural due process claim. 3. Equal Protection Plaintiffs also allege that the application of the Controlled Access Laws to Jehovah's Witnesses infringes on their right of equal protection. Defendants move for summary judgment on this claim, arguing that the Controlled Access laws are applied consistently to all groups. The Fourteenth Amendment provides that states shall not "deny to any person . . . the equal protection of the laws." Equal protection of the laws means that "no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances." Walsh v. Com. of Mass., 618 F.2d 156 (1st Cir.1980) (quoting Missouri v. Lewis, 101 U.S. 22, 31, 25 L.Ed. 989 (1879)). In order to violate the equal protection clause, the law in question must purposefully discriminate against a person or class of persons. Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). In the present case, Plaintiffs have neither alleged, nor provided evidence of, purposeful discrimination against Jehovah's Witnesses by way of the Controlled Access Laws. The record demonstrates no genuine question as to the fact that the relevant laws were created in order to promote the interests of privacy and safety from crime. Although the Controlled Access Laws may have a more significant impact on the Jehovah's Witnesses as a result of their particular approach to seeking new members, there is nothing to indicate that the laws would not be applied in the same way to a member of any other faith, or to an activist representing a particular political cause, who sought to enter a closed urbanization to spread his or her beliefs. In the absence of evidence of purposeful discrimination against Plaintiffs, the Court will grant summary judgment for Defendants on Plaintiffs' equal protection claim. Id. F. Plaintiffs' Claims Brought Pursuant to 42 U.S.C. § 1983 Plaintiffs' amended complaint invokes Section 1983, alleging that Defendants' actions in passing and implementing the Controlled Access Laws have caused infringement on Plaintiffs' constitutional rights. As discussed in the preceding sections, Defendants' motions for summary judgment argue that Plaintiffs' claims brought pursuant to Section 1983 and various constitutional amendments must fail because the record shows no violation of the substantive constitutional rights. However, in some instances the Defendants also separately contest the applicability of Section 1983 under the circumstances. Section 1983 permits a plaintiff to bring a claim against a person who, acting under color of state law, causes the plaintiff to be denied rights secured by the Constitution or by federal law. Soto v. Flores, 103 F.3d 1056, 1061-62 (1st Cir. 1997). Section 1983 does not create any independent substantive rights. Rather, it only permits private enforcement of existing rights unambiguously conferred by the Constitution or federal law. Gonzaga University v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Thus, 125 Section 1983 is the procedural tool through which Plaintiffs may include particular Defendants in an action for violations of constitutional rights. The municipalities and Commonwealth Defendants argue that Plaintiffs have not demonstrated the necessary causal link between said Defendants' actions and the alleged violations of substantive rights provided by federal law. However, because the record shows no violations of Plaintiffs' Constitutional or other substantive federal law rights, we need not reach the issue of whether such hypothetical violations were caused by particular Defendants. Accordingly, we will make no separate determination regarding the applicability of Section 1983. G. Defendants' Additional Arguments Regarding Standing, Mootness, and Statute of Limitations Several Defendant municipalities raise additional arguments in their motions for summary judgment, including: (1) disputing Plaintiffs' standing to sue under the circumstances of the present case; (2) arguing that Plaintiffs' claims have become moot; and (3) arguing that, under the applicable statute of limitations, Plaintiffs' claims are time-barred. As with the Section 1983 arguments, the Court need not reach these affirmative defenses because the record already reveals, beyond any issue of genuine material fact, that Plaintiffs cannot demonstrate the required elements of their claims alleging violations of constitutional rights. Therefore, the Court will refrain from addressing Defendants' separate affirmative defenses. V. ATTORNEY'S FEES A careful analysis of Plaintiffs' claims in light of the developed factual record reveals that the Controlled Access laws, as applied to Plaintiffs, do not violate any of Plaintiffs' constitutional rights. Furthermore, the Court notes that Plaintiffs have made clear that they will never be satisfied with less than an agreement to enter a judgment that is prepared by them, and that grants complete access to controlled access urbanizations in Puerto Rico. Plaintiffs have the financial resources to spend on a large team of attorneys and on other costs for services such as transcription of depositions, while Defendants are simple citizens who have built up their savings in order to live better in organized modern communities on the outskirts of towns. Plaintiffs' interference with the lives of families living in controlled access communities is unreasonable. Pursuant to 42 U.S.C. § 1988, the Court may award attorney's fees to the prevailing party in a Section 1983 case. The First Circuit has held that "a district court may in its discretion award attorney's fees to a prevailing defendant . . . upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation . . ." Tang v. State of R.I., Dep't of Elderly Affairs, 163 F.3d 7, 13 (1st Cir.1998) (internal quotations omitted). In the instant case, the Court finds that Plaintiffs brought their case on the basis of motives other than reaching a reasonable solution to the present dispute in accordance with the applicable law. The Court finds that Plaintiffs' attempt to use their financial strength to litigate in the hopes of reaching the U.S. Supreme Court is frivolous and unreasonable, thus violating 42 U.S.C. § 1988. Accordingly, the Court will award attorney's fees to Defendants. VI. CONCLUSION In conclusion, the Court DENIES Plaintiffs' motion for summary judgment, and GRANTS Defendants' motions for summary judgment. The Court will enter a separate Judgment dismissing with prejudice 126 Plaintiffs' as-applied constitutional claims. The Court will award costs and attorney's fees to Defendants. IT IS SO ORDERED. NOTES [1] In addition, several Defendants have adopted by reference the arguments made by other Defendants in their motions and oppositions. [2] The gated residential communities involved are commonly referred to in Puerto Rico as "urbanizations." [3] Although five Defendant urbanizations filed informative motions providing the answers to the questions posed by the Court, these five urbanizations are no longer parties to the case. The responses from the five former Defendant urbanizations that did provide information in response to the Court's Order varied. Three of the five urbanizations stated or implied in their informative motions (Nos. 415, 416, and 424) that the construction of the streets was paid for with public funds. Two of the five stated or implied that the streets were originally constructed using private funding (Nos. 422 and 423). [4] See Watchtower Bible & Tract Soc'y of New York, Inc. v. Village of Stratton, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) (analyzing jointly plaintiffs' claims regarding speech, press, and exercise of religion). The Court will separately consider Plaintiffs' freedom of association claim in a subsequent section. [5] The precise formulation of the test applicable to content-neutral regulations of speech has come into some question following the decision of the United States Supreme Court in Village of Stratton, 536 U.S. 150, 175, 122 S.Ct. 2080 ("It is unclear what test the Court is applying . . .") (Rehnquist, C.J., dissenting). Following the lead of the United States Court of Appeals for the First Circuit, we will continue to apply the conventional formulation of the intermediate scrutiny standard articulated in Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) and applied by the First Circuit in García-Padilla, which requires that the statute in question be "narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication." García-Padilla, 490 F.3d at 15-16. [6] Taína Rosa, Detaining Crime in Puerto Rico, Caribbean Business, January 20, 2005 at 16. [7] Violent Deaths Continue, El Nuevo Día, February 24, 2009, accessed on February 24, 2009 at http://www.elnuevodia.com/diario/ noticia/puertoricohoy/noticias/continuan_las_muertes_violentas/537072. [8] Cynthia López-Cabán, "We Must be Part of the Fight," El Nuevo Día, July 3, 2009, at 14. [9] Id. (Court's translation). [10] This feature of the Controlled Access Laws distinguishes the present case from the situation in Village of Stratton, 536 U.S. at 150, 122 S.Ct. 2080. In that case, the law in question prohibited all canvassing without a permit. By contrast, here an individual seeking to speak with a resident can still do so, even without a permit, as long as the resident gives specific prior approval. [11] For example, the Municipality of Guaynabo contains certain urbanizations where entryways are blocked by locked gates without a security guard. As stated by Angel Rafael Albizu-Merced, an attorney working in the administration of Guaynabo, "I understand that there are some small areas, small housing developments that do not have a guard house with a security guard taking care of those coming in and out." (Albizu-Merced Dep. 18:21-19:2, June 11, 2008) (No. 502).	{ "pile_set_name": "FreeLaw" }
113 F.3d 1241 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.Oscar Antonio LOPEZ-ALVAREZ, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 96-70254. United States Court of Appeals, Ninth Circuit. Submitted April 21, 1997.Decided April 29, 1997. On Petition for Review of an Order of the Board of Immigration Appeals, No. Adl-bwy-jaf. BIA REVIEW DENIED. Before: BROWNING, THOMPSON, and HAWKINS, Circuit Judges. 1 MEMORANDUM* 2 Oscar Antonio Lopez-Alvarez petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming a decision of the Immigration Judge denying his application for suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1). Lopez contends that the BIA abused its discretion in finding that his deportation would not result in extreme hardship. We have jurisdiction under 8 U.S.C. § 1105a(a), and we deny the petition. 3 We review the BIA's denial of an application for suspension of deportation for abuse of discretion. See Tukhowinich v. INS, 64 F.3d 460, 463 (9th Cir.1995). Suspension is an exceptional remedy warranted only under "unique extenuating circumstances." See Ramirez-Durazo v. INS, 794 F.2d 491, 499 (9th Cir.1986). 4 To be eligible for relief under section 244(a)(1), an applicant must show (1) continuous physical presence in the United States for a period of at least seven years immediately preceding his application; (2) good moral character during such period; and (3) that his deportation will result in extreme hardship to him or his spouse, parent or child who is a citizen of the United States or a lawful permanent resident. See 8 U.S.C. § 1254(a)(1) (1995). The BIA may define extreme hardship narrowly. See INS v. Wang, 450 U.S. 139, 145 (1981); Tukhowinich, 64 F.3d at 463. The BIA must consider all factors cumulatively in determining whether relief from deportation is warranted. See Watkins v. INS, 63 F.3d 844, 850 (9th Cir.1995). 5 We conclude that the BIA did not abuse its discretion in finding that Lopez failed to establish extreme hardship. The BIA properly considered that Nicaragua's depressed economy and unstable political conditions would make it difficult for Lopez to obtain employment, see Gutierrez-Centeno v. INS, 99 F.3d 1529, 1533 (9th Cir.1996), but Lopez offered no evidence that it would be impossible for him to return to any of his former jobs as a teacher, an insurance adjuster, or a taxi driver. See Ramirez-Durazo, 794 F.2d at 498 (holding that reduced job opportunities and lower standard of living do not constitute extreme hardship); see also Santana-Figueroa v. INS, 644 F.2d 1354, 1356 (9th Cir.1981) (holding that economic detriment by itself is insufficient to establish extreme hardship). At the time of the hearing, Lopez was thirty seven years old and in good health, and had been in the United States only two days over the minimum statutory requirement. He was not involved in any community activities, and Spanish remained his primary language. While Lopez and his family will be separated from his siblings who reside here, Lopez' parents and five other siblings live in Nicaragua.1 See Ramirez-Durazo, 794 F.2d at 498 (noting that hardship would be alleviated by numerous relatives living in homeland). 6 The BIA considered all these factors and properly determined that while Lopez will undoubtedly suffer economic and emotional hardship as a result of his deportation, his hardship will not be extreme enough to warrant the exceptional relief available under section 244(a)(1).2 See Hassan v. INS, 927 F.2d 465, 468 (9th Cir.1991); Tukhowinich, 64 F.3d at 463. 7 PETITION FOR REVIEW DENIED. * The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, petitioner's request for oral argument is denied ** 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 1 Because Lopez' wife and three children were all unlawfully present in this country, the hardship they will suffer cannot be considered in assessing Lopez' claim. See 8 U.S.C. § 1254(a)(1). Evidence that Lopez' family might now be eligible for suspension of deportation was not presented below and therefore we do not consider it. See Patel v. INS, 741 F.2d 1134, 1137 n. 2 (9th Cir.1984) 2 Since we deny the petition for review, we do not consider the applicability of section 304 and 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Cf. Astrero v. INS, 104 F.3d 264, 266 (9th Cir.1996) (stating that new requirements may apply retroactively to trigger cutoff dates based upon notices to appear issued prior to April 1, 1997)	{ "pile_set_name": "FreeLaw" }
456 S.E.2d 581 (1995) 265 Ga. 404 WOODARD et al. v. LAURENS COUNTY, Georgia et al. No. S95A0462. Supreme Court of Georgia. May 15, 1995. 582 W. McMillan Walker, George L. French, McMillan Walker Law Office, Dublin, for Woodard et al. Thomas C. Alexander, Jones, Cork & Miller, Macon, James V. Hilburn, Jones, Hilburn, Claxton & Sanders, Dublin, for Laurens County et al. CARLEY, Justice. The driver of a logging truck failed to obey a stop sign at the intersection of two county roads and, having crossed into the path of on-coming traffic, the truck was struck broadside by appellant-plaintiffs' vehicle. Seeking to recover for the injuries they sustained as the result of this collision, appellants filed suit against the driver of the truck and his employer as well as against the appellees in this case, who are Laurens County, the five county commissioners in their official capacities, and two county employees in both their official and individual capacities. As against appellees, appellants' complaint was predicated upon allegations of negligent inspection and maintenance of the stop sign at the intersection. Although appellees are afforded coverage under a policy of liability insurance, they raised the defenses of sovereign and official immunity in their answers and subsequently moved for summary judgment based upon those defenses. In opposing the motions, appellants raised a constitutional challenge to the current statutory scheme whereby a county is afforded sovereign immunity from tort liability. The trial court granted summary judgment in favor of appellees and appellants appeal. 1. Unless sovereign immunity has been waived, that defense bars appellants' claims against Laurens County, the five commissioners, and the two county employees in their official capacities. Gilbert v. Richardson, 264 Ga. 744, 746(2), fn. 4, 452 S.E.2d 476 (1994). Since the collision occurred after January 1, 1991, the 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983 is controlling on this issue. Pursuant to that constitutional provision, the defense of sovereign immunity to tort liability cannot be waived by the mere purchase of insurance coverage. Donaldson v. Dept. of Transp., 262 Ga. 49, 50(1), 414 S.E.2d 638 (1992). That defense can only be waived pursuant to a "legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver." Gilbert v. Richardson, supra at 748(3), 452 S.E.2d 476. In the exercise of its constitutional authority to waive the defense of sovereign immunity, the General Assembly has enacted the Georgia Tort Claims Act (GTCA). OCGA § 50-21-20 et seq. However, the waiver of sovereign immunity afforded by that statute does not extend to a county. OCGA § 50-21-22(5). A county's sovereign immunity has been waived pursuant to OCGA § 33-24-51(b), but only "to the extent of the amount of liability insurance purchased 583 for the negligence of [county] officers, agents, servants, attorneys, or employees arising from the use of a motor vehicle." (Emphasis supplied.) Gilbert v. Richardson, supra at 749(4), 452 S.E.2d 476. OCGA § 33-24-51(B) does not apply because the liability of appellees is not predicated upon their alleged negligent use of an insured motor vehicle. It follows that, under the current statutory scheme, sovereign immunity has not been waived by the General Assembly and remains a viable defense to appellants' claims. Compare Gilbert v. Richardson, supra at 751(5), 452 S.E.2d 476. This statutory scheme does not afford equal treatment to plaintiffs having tort claims against the state and its counties. Plaintiffs with tort claims against the state itself have the benefit of the broad waiver of sovereign immunity afforded by the GTCA, whereas OCGA § 33-24-51(b) waives the sovereign immunity of a county only as to tort claims which arise out of the alleged negligent use of an insured motor vehicle. However, nothing in the 1991 constitutional amendment mandates that, in the exercise of its authority to waive the defense of sovereign immunity, the General Assembly must afford equal treatment to all plaintiffs with tort claims against the state and its departments and agencies. Although equality of treatment is not mandated by the 1991 constitutional amendment itself, "a law authorized generally by one provision of the Constitution may not contravene another provision of the Constitution. [Cits.]" Glover v. Donaldson, 243 Ga. 479, 482, 254 S.E.2d 857 (1979). However, there is no other provision of our constitution which guarantees equal treatment to plaintiffs having tort claims against the state and its counties. The bar of sovereign immunity neither results in a deprivation of property without just compensation nor constitutes a denial of equal protection or due process under the federal or state constitutions. Robinson v. City of Decatur, 253 Ga. 779(1), 325 S.E.2d 752 (1985), overruled on other grounds, Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 303(2), fn. 1, 357 S.E.2d 569 (1987). See also Crowder v. Dept. of State Parks, 228 Ga. 436, 440(3), 185 S.E.2d 908 (1971). The due process and equal protection clauses of the federal and state constitutions protect only rights, not mere privileges, and discrimination in the grant of privileges is not a denial of equal protection to those who are not favored. Schlesinger v. City of Atlanta, 161 Ga. 148(2)(b), 129 S.E. 861 (1925). A waiver of sovereign immunity is a mere privilege, not a right, and the extension of that privilege is solely a matter of legislative grace. Sikes v. Candler County, 247 Ga. 115, 117(2), 274 S.E.2d 464 (1981). Accordingly, although the current statutory scheme whereby a county is afforded sovereign immunity from tort liability results in unequal treatment, it is not unconstitutional. Any remedy for this unequal treatment lies with the General Assembly rather than the courts. "The immunity rule now has constitutional status, and solutions to the inequitable problems that it has posed and continues to pose must now be effected by the General Assembly." Sheley v. Bd. of Public Ed., 233 Ga. 487, 488, 212 S.E.2d 627 (1975). Therefore, the trial court correctly granted summary judgment in favor of Laurens County, the five county commissioners, and the two county employees in their official capacities. 2. As to appellants' claims against the two county employees in their individual capacities, subsection (d) of the 1991 constitutional amendment provides no official immunity defense for ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or an intent to injure. It, however, does provide immunity for the negligent performance of discretionary acts.... Gilbert v. Richardson, supra at 753(6), 452 S.E.2d 476. Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case. Nelson v. Spalding County, 249 Ga. 334, 336(2)(a), 290 S.E.2d 915 (1982). Here, there is no contention that the stop sign actually was missing and that the county employees failed to follow established procedures in replacing it. Compare Nelson v. Spalding County, supra at 336(2)(a), 290 *584 S.E.2d 915. The contention is that the stop sign had become obscured by the limbs from nearby trees and that the procedures established by appellee county employees for discovering and removing such obstructions were inadequate. This is an allegation that appellee county employees were negligent in their performance of a discretionary act. The decision on whether to adopt other or additional inspection and maintenance procedures is left to [their] personal judgment and is therefore discretionary and not ministerial. Although a public official is liable for damages to those injured by his omissions in performing ministerial duties, he is only liable for errors in the exercise of discretionary duties if his acts are wilful, malicious, or corrupt. [Cit.] While the adoption of more efficient procedures may be beneficial, we do not believe that [the county employees'] failure to implement different procedures amounts to such wilfulness or corruption of office.... [Their] decisions in adopting procedures should not be considered in determining [their] liability. Nelson v. Spalding County, supra at 337(2)(b), 290 S.E.2d 915. It follows that the trial court correctly granted summary judgment in favor of appellee county employees in their individual capacities. Judgment affirmed. All the Justices concur.	{ "pile_set_name": "FreeLaw" }
166 Ariz. 206 (1990) 801 P.2d 441 Michael SHADE and Priscilla Shade, husband and wife, Plaintiffs/Appellants, v. UNITED STATES FIDELITY AND GUARANTY COMPANY (USF & G), a corporation, Defendant/Appellee. No. 2 CA-CV 89-0171. Court of Appeals of Arizona, Division 2, Department A. May 10, 1990. Reconsideration Denied June 27, 1990. Review Denied December 18, 1990. Ettinger & Deckter, P.C. by Elaine W. Bevans and Louis L. Deckter, Tucson, and McGuinn, Hillsman & Palefsky by John A. McGuinn, San Francisco, Cal., for plaintiffs/appellants. Kimble, Gothreau & Nelson, P.C. by William Kimble and David F. Toone, Tucson, for defendant/appellee. OPINION HOWARD, Judge. Michael and Priscilla Shade appeal from the trial court's order granting of summary judgment in favor of appellee, finding that coverage did not extend beyond the period set forth in the insurance policy issued to Douglas and Constance Jewell. For the following reasons, we affirm. FACTS Michael Shade was severely injured in a motorcycle accident in June 1979. The Shades instituted suit against several defendants on various negligence theories. All defendants prevailed except the Jewells who failed to appear. The Jewells, owners of Jewell's Cycle City, were allegedly negligent in repairing the motorcycle which caused Michael Shade's accident. A $5.5 207 million default judgment was entered against the Jewells. The Jewells had obtained a garagekeepers liability insurance policy from appellee, United States Fidelity and Guaranty Company (USF & G), shortly after they purchased Cycle City in April or May 1976. The policy (policy 1) was transferred to the Jewells from the previous owner of Cycle City, Bill Yarbrough.[1] In March 1978, policy 1 expired and USF & G issued a second policy (policy 2) to the Jewells but cancelled it in November 1978 for non-payment of premiums. In January 1979, the Jewells turned Cycle City back to Yarbrough. USF & G issued a garage liability policy (policy 3) to Yarbrough in February 1979. Hesselink handled all of Cycle City's insurance needs until he sold his agency to Mueller Insurance Agency in October 1978. USF & G refused to defend or indemnify the Jewells against the Shades' claims because the accident occurred outside the periods of coverage. The Jewells did not defend themselves in the case. After a default judgment was entered, the Jewells executed an assignment to the Shades of any potential claims against USF & G in exchange for a covenant not to execute against them personally. The Shades filed a lawsuit against USF & G in the United States District Court for the District of Arizona. After they amended the complaint to join Hesselink as a defendant, the case was removed from federal court and was assigned to Judge J. Richard Hannah in the Pima County Superior Court. The Shades filed a second amended complaint that joined Mueller Insurance Agency as a defendant. Subsequently, summary judgment was granted dismissing Hesselink and Mueller Insurance from the action because they were not privy to the Shade-Jewell assignment. A jury trial was held in July 1987. At the conclusion of their case, the Shades moved to amend their complaint for a third time. In addition to previously alleged claims based on policy 3, the policy issued to Yarbrough in February 1979, they sought to include allegations based on policies 1 and 2, the policies covering the Jewells while they operated the business. Judge Hannah granted the motion and simultaneously ordered a mistrial, sua sponte. Appellees then moved for a directed verdict which the court denied. On retrial, Judge Hannah recused himself from the case, and it was subsequently assigned to Judge Carruth. USF & G moved for summary judgment on the issue of coverage. The court granted the motion and this appeal followed. ISSUES The Shades contend that the trial court erred in granting summary judgment because a material issue of fact exists as to whether the Jewells had a reasonable expectation of coverage beyond the stated policy period and whether USF & G was negligent in describing policy terms in the Cycle City policies and in failing to defend the Jewells. The Shades also contend that the trial court abused its discretion in granting summary judgment in favor of USF & G because it mirrored its motion for directed verdict previously denied by Judge Hannah. DISCUSSION 1. Reasonable Expectation. The Shades contend that the Jewells had a reasonable expectation of coverage within the meaning of Darner Motor Sales, Inc. v. Universal Underwriters Insurance Co., 140 Ariz. 383, 682 P.2d 388 (1984), during the time that the alleged negligent act occurred, even if the policies had expired before Michael Shade's accident. Douglas Jewell stated that he never read his policies but that through discussions with Hesselink, he believed that the policies covered any negligent repairs made to the motorcycle that contributed to Shade's accident. Viewing the evidence most favorably towards the Shades' position, 208 we find no material question of fact exists as to Jewell's reasonable expectation of coverage under the policies. Gulf Insurance Co. v. Grisham, 126 Ariz. 123, 613 P.2d 283 (1980). Policy 1 which was transferred to the Jewells provided, in part, as follows: I. GARAGE LIABILITY * * * * * * The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of G. bodily injury * * * * * * to which this insurance applies, caused by an occurrence and arising out of garage operations ... and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury.... Policy 2 provided: The Company will pay on behalf of Insured all sums which the Insured shall become legally obligated to pay as damages because of G. bodily injury * * * * * * to which this insurance applies, caused by an occurrence.... * * * * * * DEFINITIONS: "bodily injury" means bodily injury, sickness or disease sustained by any person which occurs during the policy period ... "occurrence" means an accident.... (Emphasis added.) The policy provisions as set forth are cited from appellant's brief because portions of the copy of policy 2 on record is illegible. USF & G does not contest the accuracy of the provisions; therefore we accept them as true. Darner recognized that an insured's reasonable expectation of coverage may be enforceable, even when contrary to the policy's unambiguous terms. See also Gordinier v. Aetna Casualty & Surety Co., 154 Ariz. 266, 742 P.2d 277 (1987). The Restatement (Second) of Contracts § 211(3) (1979) limits the application of the doctrine of reasonable expectations to situations where the other party has reason to believe that the party manifesting such assent would not do so if he knew that the writing contained a particular term. Darner, 140 Ariz. at 391, 682 P.2d at 397. Further, comment (f) to § 211(3) provides: Such a belief or assumption may be shown by the prior negotiations or inferred from the circumstances. Reason to believe may be inferred from the fact that the term is bizarre or oppressive, from the fact that it eviscerates the nonstandard terms explicitly agreed to, or from the fact that it eliminates the dominant purpose of the transaction. (Emphasis added.) As we have said before, a Darner issue is not raised simply by putting the insured on the stand and asking him, "Did you reasonably expect that you would be covered?" State Farm Fire & Casualty Company v. Powers, 163 Ariz. 213, 215, 786 P.2d 1064 (Ct.App. 1989). The record is devoid of any evidence supporting the Shades' theory of reasonable expectation.[2] The evidence shows that Douglas Jewell received accurate information from Hesselink whenever he inquired about his coverage. Moreover, there is no evidence showing that his belief regarding coverage was any different from the clearly stated terms found in the policies. In response to a question concerning whether he and Hesselink ever discussed coverage if an accident were to occur after the policies expired or after he terminated his business, Jewell stated, "I don't recall a conversation of that nature." The Shades base their argument on the following testimony describing Jewell's reasonable expectation around the time he and his wife purchased Cycle City from Yarbrough in April or May 1976: 209 A: ... I asked Mr. Hesselink if I did have that. And to make sure that we were both talking about the same type of coverage, I gave an example of of things that might happen. And was I covered. Q: Will you tell us the examples you gave Mr. Hesselink when you asked him if you had this garage liability coverage. A: I gave him an example of a if there was an oil plug falling out and if there was any damage or personal injury to the individual, would I be covered if we had done the work on it. And he said yes, I would. * * * * * Q: Now, did you ask Mr. Hesselink specifically if the policy that you had bought but had not seen yet, if it specifically was garage liability coverage? A: Yes, I asked him if it had that particular part of it, and, like I said, I gave him an example of what I was talking about. Hesselink also acknowledged this representation as follows: I told him he would be covered for in the event that the operator of the motorcycle had an accident when he left, he had insurance for that, yes, sir. This evidence does not lend any support to Shade's contentions that 1) Jewell believed he had liability coverage for accidents arising after policy 1 or 2 had expired, 2) Hesselink was aware that Jewell misconceived the clearly provided term of coverage, or 3) Hesselink misrepresented the scope of coverage to Jewell. Further, the policies at issue contain coverage terms which are otherwise standard, not "bizarre or oppressive." Without evidence to the contrary, it is unreasonable to assume Hesselink knew that Jewell thought coverage would extend indefinitely. Nothing that Hesselink said to Jewell and nothing that Jewell said to Hesselink supports a reasonable expectation of coverage. If we permitted the Shades to prevail in this matter, then we would in effect expose insurance companies like USF & G to indemnity actions arising out of accident liability which may not occur for 10, 15 or even 20 years after a policy had expired. Such a result would surely be oppressive and bizarre. The Shades raise no issue that would warrant a departure from the coverage terms provided either in policy 1 or 2. Therefore, we find the court properly entered summary judgment in favor of USF & G. Because we find no misrepresentations made by Hesselink and no merit to their reasonable expectation argument, the Shades' contentions based on estoppel, reformation, fraud and duty to defend fail as well. 2. Negligence. The Shades contend that USF & G had a duty to draft its garage liability policies so that they could easily be understood by the average garage operator. As we understand the argument, they assert that Cycle City's coverage provisions were not conspicuously apparent to Douglas Jewell, even though he had not read the policies, and therefore, they raised a material issue of fact as to whether USF & G was negligent in drafting the provisions. The Shades claim that USF & G had notice of its duty, citing Sylla v. United States Fidelity & Guaranty Co., 54 Cal. App.3d 895, 127 Cal. Rptr. 38 (1976),[3] in support of this proposition. The Shades' argument is fatally flawed. Policy 1, the policy that was transferred to the Jewells was issued on March 15, 1975, more than nine months before Sylla was decided. Notice based on that case was thus not possible. Further, policy 2 clearly states that the insured is covered for bodily injury occurring during the policy period. Having found no issue of fact, we find that *210 the court properly entered summary judgment in favor of USF & G. 3. Summary Judgment. Citing Mozes v. Daru, 4 Ariz. App. 385, 420 P.2d 957 (1966), the Shades' final contention is that Judge Carruth erred in granting USF & G's motion for summary judgment because Judge Hannah had previously denied its motion for directed verdict on the same facts. The court in Mozes condemned "horizontal appeals," the practice of bringing the same motion before different superior court judges in the hope of finding one who will rule in one's favor. The case also states that there is no ironclad rule that absolutely precludes renewal of a prior motion or making a subsequent motion for the same relief, and that no purpose would be served by forcing a case to trial once it clearly appears that summary judgment should be granted. That is the case here. Affirmed. ROLL, P.J., and HATHAWAY, J., concur. NOTES [1] A new policy was not actually issued by USF & G to the Jewells. Lamar Hesselink, USF & G's Sierra Vista agent, merely crossed out Yarbrough's name and substituted the name Jewell's Cycle City as the insured in the policy. [2] Shade does not contend that Jewell was covered under the language of the policies, only that he had a reasonable expectation of coverage. [3] Sylla interpreted the term "occurrence," which is defined as "accident" under the policy, to mean an occurrence at the time of the accident or at the time of the wrongful act. See also Oil Base, Inc. v. Continental Casualty Co., 271 Cal. App.2d 378, 76 Cal. Rptr. 594 (1969). California courts have generally held Sylla and Oil Base to be contrary to the majority of appellate decisions. State Farm Mutual Automobile Insurance Co. v. Longden, 197 Cal. App.3d 226, 242 Cal. Rptr. 726 (1987); Employers Casualty Co. v. Northwestern National Insurance Group, 109 Cal. App.3d 462, 167 Cal. Rptr. 296 (1980) (listing supporting cases).	{ "pile_set_name": "FreeLaw" }
195 So.2d 814 (1967) BLUE CROSS-BLUE SHIELD OF ALABAMA v. Doris B. TURNER. 6 Div. 427. Supreme Court of Alabama. February 23, 1967. Clement, Rosen, Hubbard & Waldrop, Tuscaloosa, and Lange, Simpson, Robinson & Somerville, Birmingham, for petitioner. E.D. McDuffie and Norma Holcombe, Tuscaloosa, opposed. GOODWYN, Justice. Petition of Blue Cross-Blue Shield of Alabama for certiorari to the Court of Appeals to review and revise the judgment and decision in Blue Cross-Blue Shield of Ala. v. Turner, 43 Ala.App. 542, 195 So.2d 807. Writ denied. LIVINGSTON, C.J., and LAWSON and COLEMAN, JJ., concur.	{ "pile_set_name": "FreeLaw" }
581 N.W.2d 372 (1998) Virginia KELLY, et al., Appellants, Kenneth Dukes, Plaintiff, v. CITY OF MINNEAPOLIS, et al., Respondents. No. C0-97-1206. Court of Appeals of Minnesota. July 14, 1998. Review Granted September 22, 1998. 374 Larry E. Reed, Hassan & Reed, Ltd., Minneapolis, for appellants. Jay M. Heffern, Minneapolis City Attorney, Edward Backstrom, Assistant City Attorney, Minneapolis, for respondents. Considered and decided by AMUNDSON, P.J., and KLAPHAKE and SHUMAKER, JJ. OPINION KLAPHAKE, Judge. Appellants Virginia Kelly and Antoinette Deyo allege numerous trial errors in their civil action against respondents, the City of Minneapolis, the police chief, and four Minneapolis police officers. They claim error in (1) the trial court's imposition of official immunity to bar two police officers' liability for intentional infliction of emotional distress; (2) evidentiary rulings; (3) defense counsel misconduct; (4) jury instructions; (5) special verdict form; (6) court rulings on their motion for a posttrial Schwartz hearing; and (7) findings as contrary to the evidence on their human rights claims. Respondent City of Minneapolis filed a notice of review claiming that the trial court erred in declining to grant their motion for summary judgment on appellants' intentional infliction of emotional distress claims. Respondents also move to strike portions of appellants' brief and appendix. We affirm in part and reverse in part. FACTS The parties adamantly dispute the facts of this case. At approximately 1:30 a.m. on September 29, 1991, respondent Minneapolis police officer Daniel Wells was dispatched to 2932 Humboldt Avenue North to investigate a loud party, and he was advised that "someone" was "screaming." Upon arriving there, he heard noise emanating from a party next door, at 2934 Humboldt Avenue North. Appellant Antoinette Deyo, who acknowledged that she was having a party at her house, approached him. According to Wells, when Deyo declined to identify herself, Wells decided to arrest her for a violation of the Minneapolis noise ordinance. Deyo claimed that Wells was not called to her address and that he was unresponsive to the screaming they could both hear coming from 2932 Humboldt Avenue North. Wells ordered Deyo into the back of his squad car, and she started to do so, but 375 immediately got out of the car, allegedly to return her friend's car keys. When Wells attempted to physically force Deyo into the car, the two got into an altercation, during which Deyo pulled Wells's sweater over his head, and he pushed her to the ground and put a choke hold on her. She testified that she struggled because he was choking her, and she could not breathe. He alleged that he let her go when she yelled out that he was raping her. She alleged that he called her a "black bitch" and "nigger bitch" and repeatedly threatened to "put [her] out." She also alleged that during the struggle her clothing was torn, exposing her breasts. When Deyo escaped from Wells, she ran into her house. Believing that Deyo had assaulted him, Wells called for and received back-up assistance from other officers in order to rearrest Deyo. At least six officers entered the house while others remained outside. One of the officers, respondent David Roiger, entered the kitchen and found Deyo clinging to her brother. Roiger claimed that as he attempted to pry Deyo loose, someone jumped on his back and hit him twice on the head. As he turned, Deyo's sister, appellant Virginia Kelly, grabbed him by the sweater and started gouging at his face. Roiger tried to free himself by repeatedly punching Kelly, kneeing her, and grabbing her by the hair. He claimed that at one point she had fallen to her knees facing his crotch, and he was afraid she was going to bite him. Kelly and Deyo testified that Kelly did not attack Roiger and that his assault of her was unprovoked and unnecessarily violent, apparently based on his mistaken belief that Kelly was Deyo (the two were dressed alike). The other officers in the kitchen testified that they did not see Roiger's handling of Kelly because they were occupied with other individuals or with keeping people from entering the kitchen. Wells eventually assisted Roiger in handcuffing Kelly. Roiger escorted Kelly out of the house and admitted to pulling her hair to keep her from "headbutting" him, but denied intentionally slamming her into objects as she left the house. He also admitted placing her over the trunk of his squad car, but denied slamming her head onto it. Other eyewitnesses testified to seeing Roiger drag Kelly through the house by her hair, slam her into objects in their path, and slam her face onto the squad car trunk and window. At least one of the witnesses testified to hearing an officer say, in regard to Kelly, "This bitch thinks she's bad." Deyo claimed that Officer David Stocke held her in a chokehold and that her breasts were exposed both as she left her house and while she was being processed at the jail. After they left the scene and drove around the corner to exchange prisoners, Roiger and Wells also denied that Roiger said to Wells, "Look what I did to this black bitch," and Welles replied, "Look what I did to this one." Roiger also denied Kelly's claim that he delayed her medical treatment and called her a "c* * * t" at the hospital. Wells and Roiger sustained scratches and cuts as a result of the incident that night. Deyo sustained neck injuries, and Kelly sustained a lacerated lip and ripped ear. Both women also claimed that they sustained psychological injuries, including post-traumatic stress syndrome. Deyo and Kelly[1] initiated a civil action against the City of Minneapolis, the police chief, the four named officers, and other unnamed officers. They asserted claims of false arrest and imprisonment, assault and battery, negligent and intentional infliction of emotional distress, unauthorized use of force, and state and federal constitutional violations and statutory human rights violations. Prior to trial, the court granted summary judgment to respondents on the negligent infliction of emotional distress claims and bifurcated the trial of appellants' federal claims against the city and police chief, staying discovery until after the trial involving the four individual respondents. After a six-week trial, the jury returned a verdict finding that Wells intentionally inflicted emotional distress on Deyo and awarded her $65,000 for past and future emotional distress, $10,000 for past and future pain and suffering, 376 $1,680 for lost earnings, and $5,866 for past and future medical expenses. The jury also found that Roiger intentionally inflicted emotional distress on Kelly and awarded her $66,000 for past and future emotional distress, $3,000 for pain and suffering, and $13,220 for past and future medical expenses. The jury found in favor of respondents on all other claims. Because the jury found that Wells and Roiger had not acted with malice, the trial court applied the doctrine of official immunity to bar respondents' liability. In its memorandum of law attached to its posttrial order denying JNOV or a new trial, the court stated that it found "certain aspects of [respondents'] conduct * * personally repugnant" but was bound to apply the law "in this unfortunate case." ISSUES I. Did the trial court err in applying the doctrine of official immunity to bar the police officers' liability for intentional infliction of emotional distress? II. Do other trial errors mandate reversal of the verdict? III. Did the trial court err in denying appellants' claims under the Minnesota Human Rights Act? IV. Should this court strike portions of appellants' brief and appendix? ANALYSIS I. The common law doctrine of official immunity protects government employees who may be subject to liability due to the performance of their work duties. Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn.App.1997), review denied (Minn. May 20, 1997). Official immunity protects an employee "`from the fear of personal liability that might deter independent action.'" Janklow v. Minnesota Bd. of Exam'rs for Nursing Home Adm'rs., 552 N.W.2d 711, 715 (Minn.1996) (quoting Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn.1988)). Under the doctrine, "individual governmental actors * * * remain immune only if they do not act maliciously or intentionally." Janklow, 552 N.W.2d at 716; see Rico v. State, 472 N.W.2d 100, 107 (Minn.1991) (conduct malicious or willful only if official intentionally commits act official "then has reason to believe is prohibited"). Official immunity protects actions "exercised on an operational rather than a policymaking level, and it requires something more than the performance of `ministerial' duties." Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn.1992). The usual duties of police officers are not purely "ministerial" and may have an "executive character involving the exercise of discretion." Id. (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937)). Police are "afforded a wide degree of discretion precisely because a more stringent standard could inhibit action." Elwood, 423 N.W.2d at 678. By the same token, [w]hile the doctrine of official immunity is intended to protect bona fide law enforcement practices, it is not intended to shield police brutality. Accordingly, liability will attach when a police officer intentionally commits an act which the officer, at the time of the act, has reason to believe is wrong. Baker v. Chaplin, 497 N.W.2d 314, 318 (Minn.App.1993) (summary judgment denied where police officer, claiming official immunity, allegedly used deadly force with baton on cooperative demonstrator) (citation omitted), aff'd, 517 N.W.2d 911 (Minn.1994), cert. denied, 513 U.S. 1077, 115 S.Ct. 723, 130 L.Ed.2d 628 (1995). "Whether an officer's conduct merits immunity * * * turns on the facts of each case." Elwood, 423 N.W.2d at 678. In Minnesota, the doctrine of official immunity has been applied at the summary judgment level to protect honest law enforcement actions or other actions where a plaintiff has failed to allege or show intent or malice by law enforcement. See Pletan, 494 N.W.2d at 40-41 (police officer immune from suit for deciding to engage in high-speed chase); Elwood, 423 N.W.2d at 678-79 (police officers immune from suit for entering home and momentarily restraining parents of person who threatened suicide and death to 377 spouse); Lommen v. City of East Grand Forks, 522 N.W.2d 148, 149 n. 1 (Minn.App.1994) (Minnesota police officer who collided with another motorist while pursuing suspect into North Dakota protected by official immunity); Leonzal v. Grogan, 516 N.W.2d 210, 214 (Minn.App.1994) (police officers immune from suit for consequences of responding to allegedly fabricated 911 call), review denied (Minn. July 27, 1994); Reuter v. City of New Hope, 449 N.W.2d 745, 751 (Minn.App.1990) (plaintiffs may not rely on bare allegations of malice to defeat application of official immunity and must "present specific facts evidencing bad faith"), review denied (Minn. Feb. 28, 1990). Summary judgment has been denied, however, where there are genuine issues of material fact regarding whether law enforcement acted maliciously. See State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 573 (Minn.1994) (police allegedly detained suspects for longer than necessary and lied to suspects about basis for traffic stop); Johnson v. Morris, 453 N.W.2d 31, 42 (Minn.1990) (police officer allegedly pointed revolver at defendant's head and threatened to shoot without proper basis for doing so); Soucek v. Banham, 503 N.W.2d 153, 160-61 (Minn.App.1993) (police allegedly shot dog that had wolf-life appearance, despite knowing it was a dog); Maras v. City of Brainerd, 502 N.W.2d 69, 77-78 (Minn.App.1993) (police officer shot and killed drunk suspect who threatened him with knife), review denied (Minn. Aug. 16, 1993); Gasparre v. City of St. Paul, 501 N.W.2d 683, 687 (Minn.App.1993) (police officer allegedly twisted and broke arm of non-threatening suspect); Carradine v. State, 494 N.W.2d 77, 81 (Minn.App.1992) (police officer allegedly fabricated and misrepresented circumstances surrounding suspect's arrest), aff'd in part, rev'd in part, 511 N.W.2d 733 (Minn.1994). Minnesota courts have addressed how malice in the official immunity doctrine relates to intent in tort law in the summary judgment context, but no reported case has applied these definitions on review of a jury verdict. The malice exception requires more than intent to do an act that a fact-finder later concludes is wrong; rather, "the exception anticipates liability only when an official intentionally commits an act that he or she then has reason to believe is prohibited." Rico, 472 N.W.2d at 107; see Greiner v. City of Champlin, 27 F.3d 1346, 1355 (8th Cir. 1994) (under Rico definition of malice, police officers officially immune from intentional tort claims at summary judgment stage because officers who injured partygoers while arresting them did not show malice). But see Carradine, 494 N.W.2d at 81 (malice in the official immunity doctrine linked with negligent infliction of emotional distress intent by this court). The trial court in this case granted immunity to the police officers because the jury found that the officers had not acted with malice in intentionally inflicting emotional distress on appellants. Jury instruction No. 36 included the following definition of intentional infliction of emotional distress: The intentional infliction of emotional distress requires proof of four elements: First, the conduct of [respondents] must be so extreme and outrageous that it passes the boundaries of decency and is utterly intolerable to the civilized community. Second, the conduct must be intentional or reckless. Third, that the intentional conduct must cause emotional distress to [appellants]. Fourth, the distress must be so severe that no reasonable person could be expected to endure it. Jury instruction No. 40 also included a definition of intent for intentional torts, as follows: Intentionally means that the actor either has a purpose to do the thing, or cause the result specified or believes that this act, if successful, will cause that result. Jury instruction No. 41 defined "malice" as "the intentional doing of a wrongful act without legal justification or excuse, or otherwise stated, the willful violation of a known right." These jury instructions are not individually erroneous and set out slight differences between the definitions of malice for official immunity purposes and intent for intentional torts. When read together and applied to the facts of this case, however, a finding of intentional infliction of emotional distress necessarily must lead to a finding of malice. 378 Unlike other intentional torts, such as assault, which may routinely occur during permissible police apprehension or arrest of a suspect, we cannot conceive of an example of proper police conduct that would include intentional infliction of emotional distress. See Minnesota Practice, CIVJIG 505 (1986) (definition of intentional infliction of emotional distress includes conduct "so extreme and outrageous that it passes the boundaries of decency and is utterly intolerable to the civilized community"). Almost invariably, conduct that fits this definition meets the definition of malice for official immunity purposes. Cf. Burns v. State, 570 N.W.2d 17, 20 (Minn.App.1997) (court anticipates "few circumstances where a public official would violate the Whistleblower Act without committing a malicious or willful wrong"). For this reason, we set aside the jury's finding of no malice. See Minn. R. Civ. P. 52.01. Further, we conclude that the trial court erred in characterizing the actions of Officers Wells and Roiger as discretionary for official immunity purposes. Actions of police officers responding to a police dispatch and making decisions based on their observations at the scene are generally discretionary and entitled to immunity. See, e.g., Elwood, 423 N.W.2d at 679 (police decision to enter home to apprehend suicidal person who threatened spouse discretionary); Leonzal, 516 N.W.2d at 214 (police officers immune from suit for consequences of responding to fabricated 911 call). The disproportionate response and gratuitous cruelty inflicted on Kelly and Deyo by Officers Wells and Roiger in this case, however, far exceeds any "discretionary conduct and is not subject to official immunity." See Baker, 497 N.W.2d at 318 ("official immunity is intended to protect bona fide law enforcement practices[;] it is not intended to shield police brutality").[2] For these reasons, we conclude official immunity is not available in this case. Cf. Wright v. M.B. Hagen Realty Co., 269 N.W.2d 62, 66 (Minn.1978) (where single jury finding is contrary to evidence and inconsistent with other jury findings supported by substantial evidence it will be set aside). Respondent City of Minneapolis filed a notice of review and claimed that the trial court erred in withholding a ruling on its motion for summary judgment because appellants failed to meet their burden of proof in establishing their intentional infliction of emotional distress claim. The trial court's ruling had the same effect as a denial of the city's summary judgment motion. As such, this ruling is not appealable. See Minn. R. Civ. App. P. 103.03 (enumerating appealable judgments and orders). II. Respondents assert that appellants' claim they were denied a fair trial may not be considered on appeal because it was not raised before the trial court. Only those matters specifically alleged in a new trial motion may be considered on appeal. Waldner v. Peterson, 447 N.W.2d 217, 219 (Minn.App.1989) (rationale for specificity rule is that it allows trial courts to correct errors). In appellants' motion for a new trial, they alleged "denial of the plaintiffs' right to a fair trial." Because this does not identify specific grounds that would justify a new trial, we affirm the order denying the motion. See Minn. R. Civ. P. 59.01 (setting out specific grounds for new trial motion). Further, in light of our decision regarding official immunity, we need not address the other issues appellants raised concerning the jury instructions, the special verdict form, and the denial of their motion for a posttrial Schwartz hearing. III. Appellants claim the trial court erred in adopting the jury's findings on discrimination. The Minnesota Human Rights Act requires discrimination cases to be "heard and determined by a judge sitting without a jury." Minn.Stat. § 363.14, subd. 2 379 (1996). Although a court may use an advisory jury and adopt its findings in discrimination cases, the court is required to make its own findings. See Doan v. Medtronic, Inc., 560 N.W.2d 100, 105 (Minn.App.1997), review denied (Minn. May 13, 1997); see also Minn. R. Civ. P. 39.02 (in all issues to be tried to court, court may sua sponte try issue with advisory jury); Minn. R. Civ. P. 52.01 (in action heard by advisory jury, court required to "find the facts specially"). Here, the discrimination issues were heard and decided by the jury, which found no discrimination by any of the police officers. In its memorandum of law attached to the posttrial order denying reconsideration of appellants' human rights claims, the court detailed the conflicting testimony regarding discrimination and stated: "[T]he Court finds that [appellants] have not shown by the greater weight of the evidence that they were discriminated against based on their race." In its order for judgment, the court also made 35 findings of fact supporting its ruling. These findings and the court's conclusion are supported by the evidence and are sufficient to support the trial court's decision.[3] IV. Respondents moved to strike pages 23-31 and 206-226 of appellants' appendix and any references to these documents in appellants' brief. "The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases." Minn. R. Civ.App. P. 110.01. Pages 206-226 consist of selections from the Minneapolis Police Department manual that were attached as an exhibit to appellants' "Supplemental Memorandum on the Issue of Ministerial and Discretionary Acts." This posttrial document was included in the trial court file. Some selections from the manual were also included as trial exhibits or exhibits attached to depositions that were filed with the court. Thus, they are part of the record. Page 23 is a selection from the Civilian Police Review Authority, which was produced by respondents in discovery and was included as an exhibit in appellants' motion in support of admission of certain police data. As such, it was part of the record. Pages 24-30 include portions of the report findings and conclusions of the Civilian Review Board with regard to police conduct in this incident and records of prior complaints against Officers Stocke, Roiger, and Wells. These documents are not included in the trial court record. Page 31 is Kelly's police record, which was not included in the record. Thus, pages 24-31 are stricken from appellants' appendix and any references to these documents are stricken from their brief. See Safeco Ins. Cos. v. Diaz, 385 N.W.2d 845, 847 (Minn.App.1986) (matters outside trial record may not be considered by appellate court and must be stricken), review denied (Minn. June 30, 1986). DECISION We reverse the trial court's application of the doctrine of official immunity to bar the police officers' liability for intentional infliction of emotional distress, and we set aside the jury finding of no malice. Other alleged trial errors do not mandate reversal of the verdict. Further, the trial court did not err in denying appellants' claims under the Minnesota Human Rights Act. Finally, pages 24-31 are stricken from appellants' appendix and any references to those pages are stricken from their appellate brief because they include matters outside the trial court record. Affirmed in part and reversed in part; motion granted in part, denied in part. NOTES [1] Another party attendee, Kenneth Dukes, was initially a plaintiff in this lawsuit, but his claims were later dismissed after he failed to respond to discovery requests. [2] In Greiner, the most analogous case factually to this case, the eighth circuit applied Minnesota law to an official immunity claim based on state law torts arising out of police response to a noisy party. 27 F.3d at 1355. While Greiner declined to infer "conscious [police] wrongdoing," the facts of this case are much more egregious and offer stronger evidence supporting intentional conduct on the part of police. [3] Respondents claim that this issue was not preserved for review because it was not raised in posttrial motions. In appellants' motion requesting posttrial relief, appellants ask "[f]or a finding in [their] favor * * under the Minnesota Human Rights Act." Thus, the issue was properly raised before the trial court.	{ "pile_set_name": "FreeLaw" }
340 So.2d 957 (1976) SUN LIFE INSURANCE COMPANY OF AMERICA, Appellant, v. Robert EVANS, Appellee (Two Cases). Nos. 75-1979, 75-1980. District Court of Appeal of Florida, Third District. December 14, 1976. 958 Stephens, Thornton & Schwartz and John Edward Herndon, Jr., Miami, for appellant. Koltun & Tobias, Coral Gables, for appellee. Before BARKDULL, C.J., and HENDRY and NATHAN, JJ. NATHAN, Judge. These are consolidated appeals by the defendant, Sun Life Insurance Company of America, from a final judgment on a directed verdict in favor of the plaintiff, Robert Evans, and an order awarding costs and attorneys fees in favor of the plaintiff, in an action to recover benefits claimed to be due Evans under a policy of disability insurance issued by Sun Life in 1969. The terms of the policy provide that in the event of total disability, Sun Life will pay to the insured $400.00 per month for a period of sixty (60) months. The record reflects that Evans was and is the owner of an air conditioning duct installation business. Evans previously did all of the duct installation work himself, with one helper to hand him tools and materials. However, in 1972, Evans sustained a serious knee injury in a motorcycle accident, and when he was able to return to work, he could act only in a supervisory capacity. He could no longer bend his left knee fully to perform duct installation work which in large part involves climbing ladders and crawling in attics and small spaces. His former helper now performs all installation work, and a new helper has been hired to assist him. Sun Life paid benefits to Evans for a number of months, and then refused to continue payments. Evans proceeded to file this suit. A jury trial was held, during which the judge determined that Evans was totally disabled, and at the close of the defendant's case, directed a verdict for plaintiff Evans and discharged the jury. The judge stated his reasons on the record: "The insurance policy which is sued upon in this case provides that the insured is entitled to recover for a total disability if he is unable to perform the usual functions of his occupation, or words to that effect. "The law of Florida is that if an insured cannot perform any material, important or substantial act, which he usually or ordinarily performed in the course of an occupation, then the terms of the policy are fulfilled. In this case, as you heard there was no dispute but that Mr. Evans could not perform probably the predominant portion of his usual occupation after the accident." Final judgment was entered on the directed verdict, awarding Evans the full total disability benefits due and owing from the date of the last payment, up to and including the trial date. Six days later, an order was entered taxing costs against Sun Life, and awarding attorneys fees to plaintiff's attorney. One of the defendant's points on appeal is that the trial court erred in directing a verdict in favor of plaintiff Evans on the issue of whether he was totally disabled as defined by the policy. We agree. In granting a motion for directed verdict, the court must determine that there is no evidence to support a jury finding for the party against whom the verdict is sought. Parsons v. Reyes, 238 So.2d 561 (Fla. 1970). In order to avoid any encroachment upon the right of a litigant to a jury trial, the authority to direct a verdict should be exercised with great caution; a case should never be withheld from the jury unless, as a 959 matter of law, no proper view of the evidence could possibly sustain a verdict in favor of the non-moving party. Shaw v. Massachusetts Mutual Life Insurance Company, 298 So.2d 183 (Fla.1st DCA 1974). This is not the situation shown in this case. In Equitable Life Assurance Society of United States v. Wiggins, 115 Fla. 136, 155 So. 327 (1934), the Florida Supreme Court followed the principle that the phrase "total disability" is a relative term, depending upon the character of the occupation, the capabilities of the insured and the circumstances of the particular case, so that ordinarily, any question involving application of the term total disability, is a question of fact for the jury. In our opinion, the evidence presented at the trial was sufficient to create different inferences on the question of total disability, and should have gone to the jury for determination. For example, the plaintiff's physician testified at the trial that the plaintiff was unable to perform those functions of his occupation which required his knee to be fully bent; but that no disability was present for those functions which did not require this movement, such as purchasing supplies, contracting jobs, driving a truck or supervising the work of his employees. It is necessary to look to the insured's occupation as a whole in order to determine whether the insured can no longer perform his occupational duties; total disability does not mean absolute helplessness, but contemplates a disability to perform all the substantial and material acts necessary to his usual occupation in a customary and usual manner. Lorber v. Aetna Insurance Company, 207 So.2d 305 (Fla.3rd DCA 1968). Based on the circumstances of this case, in the context of the applicable rules of law, we reverse both the final judgment on the directed verdict, and the order awarding attorneys fees and costs, and remand the cause to the trial court for a new trial. In view of the holding in this case, we need not pass on the other points raised on appeal by the defendant-appellant, Sun Life. Reversed and remanded.	{ "pile_set_name": "FreeLaw" }
23 So.3d 113 (2009) SHARPE v. STATE. No. 1D09-2537. District Court of Appeal of Florida, First District. December 3, 2009. Decision Without Published Opinion Affirmed.	{ "pile_set_name": "FreeLaw" }
110 Ariz. 188 (1973) 516 P.2d 324 William J. RAGER, Appellant, v. SUPERIOR COACH SALES AND SERVICE OF ARIZONA, a corporation, and Automotive Sales Company, a corporation, Appellees. No. 11080-PR. Supreme Court of Arizona, In Banc. December 3, 1973. Rehearing Denied January 8, 1974. 189 Carson, Messinger, Elliott, Laughlin & Ragan by Robert W. Holland, Phoenix, for appellant. Daughton, Feinstein & Wilson by Donald Daughton, Phoenix, for appellee Automotive Sales Co. O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by John H. Lyons, Phoenix, for appellee Superior Coach Sales. STRUCKMEYER, Justice. Appellant, William J. Rager, brought this action to recover damages for personal injuries suffered in an automobile accident with a Wilson School District bus. Joined as defendants were the School District, its board of trustees, the Superior Coach Sales and Service, the manufacturer of the bus, and the Automotive Sales Company, a business concern which had in the past undertaken to repair the brakes of the bus. At the trial, verdicts were directed by the trial judge in favor of the Automotive Sales Company and the Superior Coach Sales and Service, and the jury returned a verdict against the School District in the amount of $10,000.00, upon which verdict a judgment was duly entered. Rager, apparently dissatisfied with the judgment, brought this appeal to reverse the Superior Court's order directing verdicts favorable to the appellees, the Superior Coach Sales and Service and the Automotive Sales Company. Appellees thereafter moved to dismiss the appeal, and the 190 Court of Appeals, without stating any reason, entered its order granting the order to dismiss. We accepted review. Order of the Court of Appeals, dated October 12, 1972, granting the motion to dismiss is vacated. Appellant first questions the right of the Court of Appeals to order the dismissal of his appeal without stating the grounds for its decision. A.R.S. § 12-120.07 provides: "The decisions of a division or of a department of the court of appeals shall be in writing, the grounds stated, and shall be concurred in by a majority of a department if heard by a department or of the division if heard by the division." (Emphasis supplied.) A decision, in the broadest sense, can mean the act of deciding any step in a proceeding, but in legal contemplation it is usually used more restrictively as the equivalent of the judgment of the court. Erardi v. Krystofalski, 23 Conn.Sup. 476, 184 A.2d 676 (1962); State v. Meltzer, 4 Ohio App.2d 373, 212 N.E.2d 676 (1965); White Oak Common School v. Overstreet (Tex.Civ.App.) 397 S.W.2d 334 (1965). "The word `decision' refers to a final disposition of the case and does not comprehend interlocutory rulings which are not decisive of a case." Bennett v. School District of Royal Oak, 10 Mich. App. 265, 159 N.W.2d 245, 247 (1968). The Legislature has also treated the word "decision" and an order of dismissal as homologous for the purpose of rehearing, thereby suggesting that both connote a final disposition. A.R.S. § 12-120.24 provides: "A party against whom a decision has been rendered or against whom a motion for dismissal of the action has been granted in the court of appeals may file in such court a motion for rehearing after the rendition of the decision or order of dismissal, * * " We therefore hold that as used in § 12-120.07, the word "decision" means the act or ruling which, lacking further proceeding, finally decides the case. The order dismissing Rager's appeal, since it is determinative of the litigation, was a decision within the contemplation of the statute and required the grounds therefor to be stated. In further consideration of this appeal, we assume, as has appellant, that the basis for the dismissal was that presented in the appellees' motion. Consideration of appellees' motion requires a recitation of the facts in somewhat greater detail. After the entry of judgment in the Superior Court, the Home Insurance Company, insurance carrier for the Wilson School District, paid to plaintiff the sum of $11,205.48, an amount which is the equivalent of the $10,000.00 judgment, together with interest and taxable costs. Rager did not satisfy the judgment but, instead, covenanted with the School District and its trustees that he would not at any time nor would anyone for him or on his behalf levy or sue out an execution against the District or its trustees. It is appellees' position that Rager does not on appeal claim that the damages awarded by the trial jury were inadequate. Therefore, they argue that plaintiff's damages having been fixed by a jury and plaintiff having been paid those damages, they, as joint tort-feasors, are released from any liability. For that reason, any question on appeal is moot and the appeal was properly dismissed. With this, the Court of Appeals seemingly agreed. We, however, think otherwise. The rendition of a judgment in an action against one of two or more persons liable for a tort does not affect the claim against the other. Restatement, Judgments, § 94. Comment b thereof, expressly states that " * * a person is entitled to separate judgments for the full amount of his harm against any number of tort-feasors whose conduct contributes to the tort or who otherwise are responsible for it." 191 This, we believe, is the general rule in the United States. "The doctrine is well established that when separate actions are brought for a joint trespass the plaintiff can recover against one or all, though others be acquitted; and if separate judgments are obtained, he may make his election to take the larger judgment or pursue the solvent party, and when made, he is concluded. This is a privilege of which he cannot be deprived." Power v. Baker (C.C.D.Minn.), 27 F. 396, 397 (1886). While as between joint tort-feasors the recovery of a judgment against one does not bar an action against another, the satisfaction of the judgment obtained discharges the others from any liability. Trieschman v. Eaton, 224 Md. 111, 166 A.2d 892 (1961); Goines v. Pennsylvania Railroad Company, 6 A.D.2d 531, 179 N.Y.S.2d 960 (1958); appeal dismissed, 5 N.Y.2d 1002, 185 N.Y.S.2d 257, 158 N.E.2d 121 (1959); Weaver v. Stone (Fla.App.), 212 So.2d 80 (1968); Hime v. Sullivan, 188 Tenn. 605, 221 S.W.2d 893 (1949). The theory is that a plaintiff can have but one satisfaction of a joint wrong and if he recovers a judgment against one tort-feasor which is satisfied, this operates as a discharge of others. The cause of action is extinguished. Payne v. Bertman, 224 Mo. App. 690, 27 S.W.2d 28 (1930); Powell v. Troland, 212 Va. 205, 183 S.E.2d 184 (1971). " * * for one cause of action the plaintiff may have as many money judgments as there are tort-feasors, but may have but one satisfaction." Payne v. Bertman, supra, at 30 of 27 S.W.2d. By A.R.S. § 33-964(C): "A judgment of the justice court, superior court or United States court which has become a lien under the provisions of this article, shall, immediately upon the payment or satisfaction of the judgment, be discharged of record by the judgment creditor or his attorney by filing a satisfaction of judgment with the county recorder of the county in which the judgment is recorded, or by entering a satisfaction thereof upon the margin of the record in each county where the judgment or renewal is recorded. The judgment creditor or his attorney shall likewise enter a notation of satisfaction on the docket of the clerk of the superior court of each county where the judgment has been entered or docketed, and in like manner enter a notation of satisfaction on the docket of the clerk of the United States district court. As amended Laws 1971, Ch. 182, § 4. "`Satisfaction' is a technical term, and in its application to a judgment it means the payment of the money due on the judgment, which must be entered of record, and nothing but this is a legal satisfaction of the judgment." Armour Bros. Banking Co. v. Addington, 1 Ind. T. 304, 37 S.W. 100, 102 (1896). A copy of the instrument which Rager, the Wilson School District and its trustees executed, was submitted with the appellee's motion to dismiss. It cannot be considered as a satisfaction of a judgment. The instrument signed by Rager is entitled "Covenant not to Execute". It recites that it is the intent of the covenant that the defendants parties to the agreement, being the School District and its trustees, shall never at any time be held accountable in execution or any other legal process by reason of the judgment rendered in the suit between the parties. It states that nothing in it shall constitute a waiver or release of any claim or right of recovery in any form against any persons who are not parties and signators to the agreement. A covenant not to execute is certainly not a satisfaction, nor is it the same as a release. Its legal effect is similar to a covenant not to sue, in that it does not extinguish the plaintiff's cause of action and does not operate to release other joint tort-feasors. Pellett v. Sonotone Corp., 26 Cal.2d 705, 160 P.2d 783, 160 A.L.R. 863 (1945); Whittlesea v. Farmer, 86 Nev. 347, 469 P.2d 57 (1970). *192 The order of the Court of Appeals dismissing Rager's appeal is set aside and vacated without prejudice to either party, with directions to proceed in this Court with the appeal on its merits, the appellees being allowed thirty days from the date hereof to file their answering briefs. HAYS, C.J., CAMERON, V.C.J., and LOCKWOOD and HOLOHAN, JJ., concur.	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION MAY 27 2016 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DALIA CORRALES, as Personal No. 14-15122 Representative of the Estate of Fabian Corrales and ROSA MARIA CORRALES, D.C. No. 2:11-cv-00287-ROS individually and as natural mother of F.C., Plaintiffs - Appellants, MEMORANDUM* v. CLARK DAVID IMPASTATO, Phoenix Police Officer No. 9168, individually and in his official capacity and CITY OF PHOENIX, Arizona, Defendants - Appellees. Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, Senior District Judge, Presiding Argued and Submitted April 15, 2016 San Francisco, California Before: NOONAN, BEA, and CHRISTEN, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Fabian Corrales appeals the district court’s grant of summary judgment in favor of Police Officer Clark Impastato on Corrales’s claims arising under 42 U.S.C. § 1983 and the Arizona police deadly-force justification statute. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We review a district court’s grant of summary judgment de novo, Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994), viewing the facts and “draw[ing] reasonable inferences” in the light most favorable to the non-moving party “to the extent supportable by the record,” Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) (emphasis omitted). 1. Excessive force claims are governed by the Fourth Amendment’s “objective reasonableness standard,” which requires a “careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 388, 396 (1989) (internal quotation marks omitted). “An officer’s use of deadly force is reasonable only if ‘the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others,’” and a warning has been given where feasible. Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994) (quoting Tennessee v. Garner, 471 U.S. 1, 3 (1985)) (emphasis in original). We must judge the reasonableness of a particular use of 2 force “from the perspective of a reasonable officer on the scene.” Graham, 490 U.S. at 396. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396–97. Viewing the evidence in the light most favorable to Corrales, Officer Impastato first confronted Corrales while Officer Impastato was conducting an undercover drug deal. Corrales rushed toward Officer Impastato while pulling his previously concealed hand from his waistband and forming it into a fist with a single, hooked finger extended, in an attempt “to scare [Officer Impastato] into believing that [he] had a gun and [he was] going to try to kill [him].” Though Officer Impastato did not hear Corrales yell “I’m going to kill you,” he nevertheless reacted to the threat he reasonably believed Corrales posed—and that Corrales had intended to create—by immediately reaching for his gun and rapidly firing at Corrales. Officer Impastato stopped firing as soon as Corrales fell and he believed the threat to his life had been eliminated. The entire incident spanned only 3.3 seconds from the time Officer Impastato reached for his gun to the time Corrales was struck by the officer’s fifth and final bullet. 3 Officer Impastato’s use of deadly force under these circumstances was not objectively unreasonable. Faced with a tense and rapidly evolving situation, he had “probable cause to believe that [Corrales] pose[d] a significant threat of death or serious physical injury to [himself] or others,’” and was therefore justified in firing at Corrales to end the perceived threat. Scott, 39 F.3d at 914 (quoting Tennessee, 471 U.S. at 3). Because “[v]erbal warnings are not feasible when lives are in immediate danger and every second matters,” Officer Impastato was not required to issue a warning before firing at Corrales under the rapidly changing circumstances. Estate of Martinez v. City of Fed. Way, 105 F. App’x. 897, 899 (9th Cir. 2004). Officer Impastato was also not required to cease firing “until the threat [Corrales posed] ha[d] ended.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2022 (2014). Officer Impastato reasonably believed the threat posed by Corrales had been eliminated only after Corrales was struck by his final bullet and fell to the ground. Officer Impastato’s use of force was therefore reasonable. 2. Because we find that Officer Impastato’s use of deadly force did not violate Corrales’s Fourth Amendment rights, Officer Impastato is entitled to qualified immunity. Pearson v. Callahan, 555 U.S. 223, 232–33 (2009). We therefore need not consider whether such right was “clearly established.” Id. at 236. 4 3. Because Officer Impastato reasonably believed Corrales posed a threat of significant bodily harm or death, his actions are also justified under the reasonableness standard laid out in Arizona Revised Statute §§ 13-410(C) and 13- 410(C)(1). 4. Each party shall bear its own costs. AFFIRMED. 5	{ "pile_set_name": "FreeLaw" }
329 So.2d 283 (1976) Charles HAMILTON, III, Appellant, v. STATE of Florida, Appellee. No. 47480. Supreme Court of Florida. February 25, 1976. Rehearing Denied April 21, 1976. Philip J. Padovano of Ruiz & Padovano, St. Petersburg, for appellant. Robert L. Shevin, Atty. Gen., and Gerald L. Knight, Asst. Atty. Gen., for appellee. 284 BOYD, Justice. This cause is before us on a direct appeal from the County Court of Pinellas County. Appellant was charged with a violation of Section 509.151, Florida Statutes, which reads as follows: "509.151 Obtaining lodging with intent to defraud; penalty. Any person who shall obtain food, lodging or other accommodations at any public lodging or food service establishment, with intent to defraud the owner or operator thereof, shall be guilty of a misdemeanor of the second degree, punishable as provided in §§ 775.082 or 775.083; provided, that if any owner or operator of such establishment has probable cause to believe, and does believe, that any person has obtained food, lodging or other accommodations at such establishment with intent to defraud the owner or operator thereof, and upon demand for payment being made, and there being no dispute as to the amount owed, failure to make payment shall constitute prima facie evidence of intent to defraud; provided, further, that the provisions of this section shall not apply where there has been an agreement in writing for delay in payments." Initially, Appellant pled not guilty and filed a Motion to Dismiss in which he asserted the constitutional invalidity of the above-quoted section; in his supporting memorandum Appellant argued that both Section 509.151 ("Obtaining lodging with intent to defraud; penalty.") and Section 509.161 ("Rules of evidence in prosecutions."), Florida Statutes, were unconstitutional in that (1) they create an impermissible presumption violative of the Fourteenth Amendment of the federal constitution; (2) they violate the privilege against self-incrimination contained in the Fifth Amendment; and (3) they violate the constitutional proscription against imprisonment for non-payment of debt. In its order denying Appellant's motion the trial court specifically held both sections to be constitutional. Thereafter, Appellant changed his plea to nolo contendere, preserving his right to appeal the denial of his motion to dismiss. The court accepted the plea, adjudicated Appellant guilty and sentenced him; this direct appeal followed.[1] We recognize that in 1969 the United States Supreme Court stated in Leary v. United States:[2] "The upshot of Tot [v. United States],[3] [United States v.] Gainey[4] and [United States v.] Romano[5] is ... that a criminal statutory presumption must be regarded as `irrational' or `arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to follow from the proved fact on which it is made to depend... ." It is our view that Florida cases generally seem to be in agreement with the federal cases. In fact, this Court stated in State v. Kahler:[6] "Criminal acts declaring one fact prima facie evidence or presumption of another are frequent. Their purpose is not to relieve the State of the burden of proof, but to allow the establishment of a prima facie case. Constitutional guarantees are not violated as long as there is a rational connection between the fact proven and the ultimate fact presumed and reasonable opportunity is afforded to rebut the presumption." 285 Furthermore, this Court in Dirk v. State[7] considered whether prima facie evidence of fraudulent intent based solely on a check returned for insufficient funds was constitutional; in that instance we upheld the statutory presumption. Likewise, we note that the federal Supreme Court has upheld the inference arising from the unexplained possession of recently stolen property.[8] It is our view that the prima facie evidence of intent to defraud provided by Section 509.151, Florida Statutes, is no more of an incursion into the right against self-incrimination and the right to present proof beyond a reasonable doubt than the presumptions upheld in Dirk and Barnes, supra. In Section 509.151, Florida Statutes, there are four requirements of the evidence in order to provide the prima facie evidence of intent: (1) the owner or operator must be shown to have probable cause to believe that the accused obtained food, lodging, etc., with intent to defraud; (2) demand for payment must be made; (3) there must be no dispute about the amount owed; and (4) there must be a failure to make payment. Admittedly, this statute may be susceptible to unconstitutional enforcement on occasion; nevertheless, in light of the criteria specified therein, we find the statutory language of the presumption to be constitutional. We have examined Appellant's remaining points on appeal and find them to be without merit. The judgment of the trial court is affirmed. It is so ordered. ADKINS, C.J., and ROBERTS and OVERTON, JJ., concur. ENGLAND, SUNDBERG and HATCHETT, JJ., dissent. NOTES [1] Article V, Section 3(b)(1), Florida Constitution. [2] 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57 (1969). [3] 319 U.S. 463, 467, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). [4] 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). [5] 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965). [6] 232 So.2d 166, 168 (Fla. 1970). [7] 305 So.2d 187 (Fla. 1974). [8] Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).	{ "pile_set_name": "FreeLaw" }
92 Cal.App.3d 787 (1979) 155 Cal. Rptr. 152 THE PEOPLE, Plaintiff and Respondent, v. DENNIS WESLEY MORRISSON, Defendant and Appellant. Docket No. 17955. Court of Appeals of California, First District, Division Three. May 8, 1979. 788 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Clifton R. Jeffers, Chief Assistant State Public Defender, Robert P. Mason and Janet M. Lande, Deputy State Public Defenders, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Clifford K. Thompson, Jr., and Franklin D. Elia, Deputy Attorneys General, for Plaintiff and Respondent. OPINION WHITE, P.J. This is an appeal by defendant Dennis Morrisson from a judgment convicting him of violating section 10851 of the Vehicle Code (auto theft), in that defendant unlawfully drove and took a 1973 Volkswagen belonging to a Mr. Steven Welch. Appellant contends the trial court erred in failing to instruct sua sponte on the proper use of 789 uncharged criminal acts and on circumstantial evidence. We disagree and affirm the judgment. On October 2, 1977, at approximately 3 p.m., Mr. Steven Welch parked his 1973 Karman Ghia, license plate number 866 GKL in his driveway located at 604 Monticello Road in Napa. He left the car unlocked and the key in the ignition as was his custom. On October 3, 1977, at about 5 a.m., Officer Robert Burden of the Suisun Police Department observed a Karman Ghia being driven at an accelerated rate of speed. The officer followed the car and observed the car pull to the side of the road. He then saw the driver get out, bend down and look under the car and begin working on the car. The officer approached the vehicle and asked the driver the nature of the difficulty. The driver, appellant, replied that he was working on a gearshift lever. Having knowledge that this type of vehicle's gearshift lever could not be repaired from underneath the car, the officer requested identification from both appellant and the passenger in the car. When asked whether the car belonged to appellant, appellant responded that it did not, that it belonged to a person named Derrick. Appellant was unable to supply the last name of "Derrick" or his address. The license plate number of the vehicle was radioed to the Fairfield police and a warrant check was run on the car. The check came back clear. The officer then requested that the registered owner of the car be contacted to determine whether the car had been stolen. The registered owner, unaware of the car's absence prior to notification, told the police that he had not given anyone permission to use or drive his car. Appellant was placed under arrest, read his Miranda rights and waived those rights. He advised the police that he had received the car from someone named Derrick, that he was on his way to return the car to Derrick and that the car was to be returned to West Texas Street Park. Defense Appellant contended at trial that on October 2, he spent most of the afternoon and evening at the home of his ex-fiancee, Shirley McSwain, in Fairfield. Appellant said that although he made short trips to his friends' homes and his own residence, he was not out of the presence of Shirley or her sister, Cheryl, for any significant period of time. At approximately 1 a.m., on October 3, he left their company. Appellant testified that at about 6:30 p.m., he and Shirley went to the West Texas Street Park. While Shirley was in the restroom, he saw an old 790 school acquaintance whom he knew as "Derrick." Upon learning that appellant, having just been released from jail, was without transportation, Derrick offered to lend him his car. They agreed that Dennis would pick up the car at a certain corner. After returning to Shirley's house, appellant met Derrick on the prearranged corner at 2:30 a.m. on October 3. Contrary to appellant, Shirley testified that they did not go to the West Texas Street Park; nor did she see appellant with Derrick. A Derrick Smith called by the defense was given immunity by the prosecution and testified that he neither knew appellant nor owned, or ever claimed to own, a Volkswagen. (1) The Trial Court Did Not Err in Failing to Instruct Sua Sponte on the Proper Use of Uncharged Criminal Acts Appellant argues that the trial court committed prejudicial error in failing to instruct sua sponte on the limited purpose for which evidence of uncharged other offenses should be received by the jury (CALJIC No. 2.50). The uncharged other offenses were appellant's conviction for joyriding (a misdemeanor) and grand theft auto. These acts were brought out by defense counsel in direct examination of appellant. The district attorney elicited without objection the sentences received for each conviction, plus the occurrence of a probation violation for the auto theft. Appellant argues that once the evidence was admitted, it was imperative that the jury be instructed that evidence tending to show that the defendant had committed a crime other than the one for which he is on trial could be considered only for a specified purpose and could not be used to show that the defendant had a bad character or had a disposition to commit a crime. Appellant contends that in a criminal case, the trial court is under an affirmative duty to instruct, on its own motion, on "the general principles of law relevant to the issues raised by the evidence." (People v. Sedeno (1974) 10 Cal.3d 703, 715 [112 Cal. Rptr. 1, 518 P.2d 913].) The general principles are "`those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.'" (People v. Sedeno, supra, at p. 715.) This point, however, is not in controversy. People v. Harris (1977) 71 Cal. App.3d 959, 966 [139 Cal. Rptr. 778], holds that "the failure to request CALJIC No. 2.50 or similar limiting instruction as to prior acts or offenses constitutes a waiver to have such an instruction given. (People v. Beagle (1972) 6 Cal.3d 441, 456 ...; People v. Holbrook (1955) 45 Cal.2d 228, 233 ...; People v. Jackson (1975) 45 Cal. App.3d 67, 70 ...; People v. Williams (1970) 11 Cal. App.3d 970, 978....) If appellant ... desired a limiting instruction ... it was his duty to request it since the court had no sua 791 sponte duty to give such an instruction to begin with." People v. Holbrook (1955) 45 Cal.2d 228, 233 [288 P.2d 1], held that "[i]t is true that in some situations a court must, of its own motion, instruct upon the law relating to the facts of the case and upon matters vital to a proper consideration of the evidence (see People v. Yrigoyen, ante, pp. 46, 49 ...; People v. Buffum, 40 Cal.2d 709, 724 ...), but the court, in the absence of a request, was not required to give an instruction limiting the purposes for which the evidence could be considered." Respondent correctly notes that it was appellant who brought to the attention of the jury his past convictions for grand theft and joyriding. Therefore, appellant should have requested a limiting instruction. Appellant's failure in this regard constitutes a waiver. Accordingly, the trial court did not err. (2) It Was Not Error for the Court to Fail to Instruct Sua Sponte on Circumstantial Evidence Appellant argues that the failure of the court to give CALJIC No. 2.02 explaining the use of circumstantial evidence with respect to proof of mental state, in face of the obvious reliance by the prosecution upon such evidence constitutes error. It is appellant's contention that the prosecution was required to prove that appellant took Mr. Welch's car with the specific intent to deprive him of its use. However, since the vehicle was not observed being driven off and since appellant did not admit of any intent to deprive Mr. Welch of the car, appellant argues that the proof of these elements rested upon circumstantial evidence; i.e., that the car was driven without permission, that appellant was seen driving the car, and that he could not account realistically for its possession. The thrust of the argument can be restated as follows: (1) the crime of auto theft requires specific intent to deprive the victim of possession of the vehicle; (2) such an intent can only be proven by circumstantial evidence; and (3) therefore the failure to give an instruction on circumstantial evidence resulted in the jury misunderstanding the consideration it must accord such evidence. Appellant cites People v. Salas (1976) 58 Cal. App.3d 460, 472 [129 Cal. Rptr. 871], for the proposition that the circumstantial evidence instruction expresses the "well recognized principle of our criminal law that where the evidence offered to establish an element of a crime consists principally of circumstantial evidence, it is essential to justify a conviction that `"the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other 792 rational conclusion."'" Appellant next relies on People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [286 P.2d 1], where the court said, "the court on its own motion should have given an instruction embodying the principle that to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion." Although People v. Yrigoyen, supra, 45 Cal.2d 46 and People v. Salas, supra, 58 Cal. App.3d 460, are cited by appellant for the proposition that a circumstantial evidence instruction must be given as to the specific intent, they must be read in light of People v. Malbrough (1961) 55 Cal.2d 249 [10 Cal. Rptr. 632, 359 P.2d 30] and People v. Wiley (1976) 18 Cal.3d 162 [133 Cal. Rptr. 135, 554 P.2d 881]. In Yrigoyen, the defendant was charged with a violation of Penal Code section 476a, issuing a check with intent to defraud and with knowledge of insufficient funds for payment. The facts were that the defendant drew a check on October 7 in the sum of $11,260 in payment on the purchase price of certain cattle. On October 7 and on October 14, when the check was presented for payment, defendant had less than $1,100 on deposit in the bank upon which the check was drawn, nor had defendant and the bank entered into any credit arrangement to cover the check. It was a reasonable inference that defendant knew that he had insufficient funds for payment of the check at the time he drew it. Thus, it was reasonable to infer that the check was drawn with the intent to defraud. On the other hand, the evidence also showed that defendant had entered into an agreement to resell the same cattle on October 5, received an $8,000 check as part payment, which check had been delivered on October 5 to the bank for deposit but was not entered in the bank records until October 10. The evidence further showed that on October 9, defendant received a check for $5,566, the balance of the resale price, and that check was deposited on October 10. From this evidence, it could reasonably be inferred that defendant did not intend to defraud on October 7, but intended to cover the check he drew with the proceeds from his resale. As a matter of logic and human experience, then, two rational inferences could be drawn from the evidence, one pointing to the existence of the intent to defraud and the other to its absence. Clearly, in Yrigoyen the circumstantial evidence instruction would have been appropriate. In People v. Salas, supra, 58 Cal. App.3d 460, appellant was charged with robbery with intent to inflict injury. The victim testified that he went into the restroom of a bar. No one else was there. A few seconds later, appellant entered, struck the victim in the face, knocking him to the floor. Appellant continued to strike him and kick him. Appellant then took 793 $100 from the victim's pockets and left. The victim suffered a broken nose, had a tooth knocked out and required several sutures. The trial court gave CALJIC No. 2.02 with regard to the specific intent to permanently deprive the victim of his property but did not give the same instruction with regard to the specific intent to inflict great bodily injury. The court, relying on People v. Bender (1945) 27 Cal.2d 164 [163 P.2d 8] and People v. Yrigoyen, supra, 45 Cal.2d 46, held it prejudicial to fail to instruct on the effect of circumstantial evidence with regard to the specific intent to commit great bodily injury where the court had given that instruction with respect to the specific intent to permanently deprive the owner of his property. In Salas, it is arguable that two reasonable inferences could be drawn from the circumstances of the assault upon the victim. Clearly, the assailant intended no good to his victim but, arguably, he intended to commit injury but not great bodily injury. If Salas attempts to suggest that a circumstantial evidence instruction must be given merely because there exists an element of specific intent in the crime charged, it is not a proposition supported by the more current Supreme Court holding in People v. Wiley, supra, 18 Cal.3d 162. In People v. Malbrough, supra, 55 Cal.2d 249, the defendant was charged with robbery. Robbery requires the specific intent on the part of the perpetrator to permanently deprive the victim of the property taken. The evidence indicated that the defendant had been observed holding the victim while a confederate ran his hands through the victim's pockets. No circumstantial evidence instruction was given. The high court gave short shrift to the argument that the trial court should have, sua sponte, instructed on circumstantial evidence with regard to specific intent. Somewhat cryptically in Malbrough, the court simply said the evidence was primarily direct evidence. In People v. Wiley, supra, 18 Cal.3d 162, the court articulated a synthesis of what seemed to be disparate lines of cases. The court held that, "The fact that the elements of a charged offense include mental elements that must necessarily be proved by inferences drawn from circumstantial evidence does not alone require an instruction on the effect to be given such evidence however. The contrary is usually the rule." (18 Cal.3d at p. 175; italics added.) 794 In support of its position, the Wiley court cited People v. Malbrough, supra, 55 Cal.2d 249, People v. Gould (1960) 54 Cal.2d 621 [7 Cal. Rptr. 273, 354 P.2d 865], and other cases. The Wiley court went on to say that in Yrigoyen, circumstantial evidence was consistent with two rational conclusions, one pointing to innocence and the other to guilt and, therefore, the failure to give the instruction resulted in reversible error. The facts in Wiley were as follows: appellant had been charged with murder by torture. An element of the offense is the intent to cause the victim cruel pain and suffering. The evidence showed that appellant's brother hit the victim, who was appellant's husband, first, with a baseball bat and then with a hammer, each of which was handed over by appellant to her brother. Then appellant hit her husband a number of times with the bat. Appellant testified that she did not intend to hurt him. Appellant contended that, sua sponte, the trial court should have given a circumstantial evidence instruction. The court's response was "the evidence was not reasonably susceptible of an interpretation that there was no intent to cause cruel pain and suffering. Thus, it cannot be said that the People substantially relied on circumstantial evidence, or that the nature of the circumstantial evidence relied on was such that it was equally consistent with a reasonable conclusion that appellant was innocent of first degree murder on a murder by torture theory." (People v. Wiley, supra, 18 Cal.3d 162 at p. 176; italics added.) Returning to the facts of the instant case, the evidence does not support a suggestion that appellant's conduct in taking the car was susceptible of an intent other than to deprive its owner thereof. The facts elicited at trial showed that when appellant saw the police, he stopped the car and feigned a mechanical malfunction in the car's gearshift; and then when asked whom the car belonged to, he was unable to give the last name or the address of the party he claimed had loaned him the car. As stated previously, when the only inference to be drawn from circumstantial evidence points to the existence of a requisite mental state, a circumstantial evidence instruction need not be given sua sponte. We therefore conclude that the trial court did not commit error when it failed to instruct sua sponte on the proper use of uncharged criminal acts and sua sponte on circumstantial evidence. Assuming arguendo that the failure to instruct sua sponte was error, the standard which must be used to judge such error would be that articulated in People v. Watson (1956) 46 Cal.2d 818, 834 [299 P.2d 243]. "No judgment shall be set aside, or new trial granted, in any case, on the 795 ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Id.; italics omitted.) After careful examination of the entire record we conclude that there is no miscarriage of justice herein. The judgment is affirmed. Scott, J., and Feinberg, J., concurred. Appellant's petition for a hearing by the Supreme Court was denied July 5, 1979.	{ "pile_set_name": "FreeLaw" }
643 F.3d 622 (2011) UNITED STATES of America, Plaintiff-Appellee, v. Alvin EASON, Defendant-Appellant. No. 09-3464. United States Court of Appeals, Eighth Circuit. Submitted: February 14, 2011. Filed: July 7, 2011. 623 JoAnn Trog, St. Louis, MO, for appellant. Eliza Fryer Williams, AUSA, St. Louis, MO, for appellee. Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges. LOKEN, Circuit Judge. Alvin Eason pleaded guilty to four counts of bank robbery in violation of 18 U.S.C. § 2113(a). The Plea Agreement included a limited appeal waiver. Based on two prior burglary convictions, the district court[1] found that Eason is a career offender and sentenced him to 151 months in prison, the bottom of the resulting guidelines range. Eason appeals, arguing he was improperly sentenced as a career offender and the career-offender-enhanced sentence is substantively unreasonable because it is greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a). We reject the government's contention that the second issue falls within the appeal waiver, reject Eason's arguments on the merits, and affirm. I. The now-advisory Guidelines increase a defendant's offense level and criminal history category if he is a "career offender." U.S.S.G. § 4B1.1(b). An adult convicted of a felony crime of violence such as bank robbery is a "career offender" if he "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." § 4B1.1(a). On appeal, Eason argues, as he did in the district court, that he does not have two prior qualifying convictions because his 1997 Tennessee burglary conviction was not for a "crime of violence." We review application of the career offender enhancement de novo. United States v. Stymiest, 581 F.3d 759, 767 (8th Cir.2009), cert. denied, ___ U.S. ___, 130 S.Ct. 2364, 176 L.Ed.2d 573 (2010). A "crime of violence" is defined as including "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... (2) is burglary of a dwelling ... or otherwise involves conduct that presents a serious potential risk of physical injury to another." § 4B1.2(a). An offense that includes the elements of "generic burglary""unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime"is "burglary" for purposes of the nearly identical definition of "violent felony" in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B). Taylor v. United States, 495 U.S. 575, 598-99, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Thus, we have repeatedly held that "any generic burglary is a crime of violence" for purposes of 624 U.S.S.G. § 4B1.2(a)(2). Stymiest, 581 F.3d at 767-69; see United States v. Bell, 445 F.3d 1086, 1090 (8th Cir.2006).[2] In the 1997 offense at issue, Eason was convicted of committing "Burglary" in violation of Tenn.Code Ann. § 39-14-402. The statute at that time provided: (a) A person commits burglary who, without the effective consent of the property owner: (1) Enters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault; (2) Remains concealed, with the intent to commit a felony, theft or assault, in a building; (3) Enters a building and commits or attempts to commit a felony, theft or assault; or (4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault. Subparts (1)-(3) of this statute plainly set forth the elements of generic burglary as defined by the Supreme Court in Taylor.[3] Moreover, the Supreme Court of Tennessee has consistently defined the elements of burglary offenses as including unlawful entry into a building. See State v. James, 315 S.W.3d 440, 456 (Tenn.2010); State v. Langford, 994 S.W.2d 126, 127 (Tenn. 1999). Consistent with these decisions, the Sixth Circuit, whose jurisdiction includes Tennessee, has repeatedly held that Tennessee burglary convictions are violent felonies under the Armed Career Criminal Act. See United States v. Nance, 481 F.3d 882, 888 (6th Cir.), cert. denied, 552 U.S. 1052, 128 S.Ct. 680, 169 L.Ed.2d 532 (2007); United States v. Anderson, 923 F.2d 450, 454 (6th Cir.), cert. denied, 500 U.S. 936, 111 S.Ct. 2062, 114 L.Ed.2d 467 (1991). Eason argues, however, that the decision of the Tennessee Court of Criminal Appeals in Tennessee v. Fluellen, 2006 WL 288105 (Tenn.Crim.App. Feb. 7, 2006), established that a defendant may be convicted of burglary under Tenn.Code Ann. § 39-14-402 "simply by admitting that he obtained or exercise[d] control over property of another," which is the definition of theft found in Tenn.Code Ann. § 39-14-103. We disagree. The issue in Fluellen was whether the evidence was sufficient to convict defendant of violating § 39-14-402(a)(1). The Court first stated, in the passage upon which Eason relies, the State's burden of proof: To convict the Defendant of burglary, the State was required to prove that the Defendant "without the effective consent of the property owner: enter[ed] a building other than a habitation (or any portion thereof) not open to the public, with the intent to commit a felony, theft, or assault...." According to Tennessee 625 Code Annotated section 39-14-103 (2003), "A person commits theft of property if, with the intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner's effective consent." Fluellen, 2006 WL 288105, at 4. The Court carefully reviewed the trial evidence and concluded that "the trier of fact could reasonably infer that the Defendant had been inside the restaurant" and that "the Defendant entered the restaurant with the intent to commit theft." Id. at 5. Thus, properly read, Fluellen is entirely consistent with Supreme Court of Tennessee decisions stating that entry is an essential element of this burglary offense. We think it apparent that the language on which Eason relies merely recited one way to prove an additional element of generic burglaryentry for an unlawful purpose, in that case, intent to commit theft. Thus, Fluellen supports the Sixth Circuit decisions placing a violation of Tenn.Code Ann. § 39-14-402(a)(1)-(3) squarely within the U.S. Supreme Court's definition of generic burglary. For these reasons, the district court did not err in concluding that Eason's 1997 burglary conviction for violating Tenn. Code Ann. § 39-14-402 was a crime of violence under U.S.S.G. § 4B1.2(a)(2) and in determining that Eason's advisory guidelines sentencing range should therefore include a career offender enhancement. II. Eason further argues that his 151-month sentence is greater than necessary to achieve the goals advanced in § 3553(a)(2) and therefore substantively unreasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97 & n. 6, 169 L.Ed.2d 445 (2007). The government first responds that Eason waived the right to raise this issue on appeal. We disagree. The plea agreement included a limited appeal waiver: In the event the Court accepts the plea and, in sentencing the defendant, 1) applies the recommendations agreed to by the parties herein, and 2) after determining a Sentencing Guideline range, sentences the defendant within that range, then, as part of this agreement, both the defendant and the government hereby waive all rights to appeal all sentencing issues, including any issues relating to the determination of the Total Offense Level, except for the Criminal History Category, Career Offender Status and Armed Career Criminal Status. The Agreement also contained detailed "Guidelines Recommendations (Not Binding on the Court)" that included recommendations concerning the base offense level for each Count, Chapter 2 offense characteristics, Chapter 3 and other adjustments, and acceptance of responsibility. "Based on these recommendations," this section of the Agreement concluded, "the parties estimate that the Total Offense Level for Counts I, III and IV is 19. The Total Offense Level for Count II is 20." The district court at sentencing instead applied the career offender enhancement and determined a total offense level of 29. Thus, unlike United States v. Miller, 606 F.3d 969, 972 (8th Cir.2010), the court did not apply all of the recommendations agreed to by the parties. Eason may therefore appeal, not only his career offender status, as the Plea Agreement expressly allowed, but also the reasonableness of the court's refusal to vary down-ward from the career-offender-enhanced advisory guidelines range. Alternatively, the government argues that the district court did not abuse 626 its discretion when it imposed a sentence within the properly determined guidelines range. We agree. We may consider a within-range sentence presumptively reasonable on appeal, including a range enhanced by the career offender provisions. Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007). Moreover, "it will be the unusual case when we reverse a district court sentencewhether within, above, or below the applicable Guidelines rangeas substantively unreasonable." United States v. Feemster, 572 F.3d 455, 464 (8th Cir.2009) (en banc). Here, after weighing the mitigating circumstances argued in Eason's Sentencing Memorandum and at the sentencing hearing against the serious offense of convictionfour bank robberies in a one-year time spanand Eason's long history of crimes and substance abuse, the district court concluded that a sentence at the bottom of the advisory range was consistent with the sentencing factors set forth in 18 U.S.C. § 3553(a). That sentence was not substantively unreasonable. The judgment of the district court is affirmed. NOTES [1] The Honorable Henry E. Autrey, United States District Judge for the Eastern District of Missouri. [2] We have often noted that "violent felony" and "crime of violence" are virtually interchangeable in definition and interpretation. See United States v. Williams, 537 F.3d 969, 971 (8th Cir.2008). [3] This Tennessee statute "is potentially over-inclusive" because subpart (4) includes burglaries of automobiles, trucks, trailers, boats, and airplanes, which are not "buildings." Stymiest, 581 F.3d at 768, citing Taylor, 495 U.S. at 591, 599, 602, 110 S.Ct. 2143. However, as in Stymiest, Eason's PSR included a paragraph, to which he did not object, stating: "[c]ourt records indicate that on September 17, 1997 ... [Eason] knowingly and unlawfully entered a building not open to the public, without consent and with the intent to commit theft." "When a defendant fails to object to fact recitations in the PSR establishing that a prior offense was generic burglary, the government need not introduce at sentencing the documentary evidence" that might otherwise be required. Stymiest, 581 F.3d at 768 (quotation and citations omitted).	{ "pile_set_name": "FreeLaw" }
175 Cal.App.3d 1050 (1985) 221 Cal. Rptr. 342 SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT, Plaintiff and Appellant, v. WHEATLEY-JACOBSEN, INC., et al., Defendants and Respondents. Docket No. A021475. Court of Appeals of California, First District, Division Four. December 19, 1985. 1052 COUNSEL Richard Godino, Celia Ruiz and Breon, Galgani, Godino & O'Donnell for Plaintiff and Appellant. Danial J. McNamara, John Fioretta, McNamara, Houston, Dodge, McClure & Ney, Joel Shawn and Richard M. Marx for Defendant and Respondent. OPINION ANDERSON, P.J. FACTS On December 6, 1982, the superior court for Contra Costa County granted respondent Wheatley-Jacobsen, Inc.'s motion to dismiss the case brought 1053 against it by appellant San Ramon Valley Unified School District. Appellant contends that the order of dismissal should be reversed because the trial court abused its discretion. We reject this contention and affirm the judgment. On December 30, 1977, appellant filed a complaint against the general contractor (Wheatley-Jacobsen, Inc., hereafter respondents), architects, soil engineers and surety company who were involved in the construction of a high school gymnasium for appellant. The complaint alleged breach of contract for deficient architectural work, deficient engineering, and deficient construction and sought damages and declaratory relief. On March 20, 1978, the defendant architects filed a motion asking the court to order arbitration and to stay the proceedings against them. On April 11, 1978, the trial court ordered arbitration between appellant and defendant architects and stayed the proceedings as to the architects. The arbitration proceedings did not commence until June 1982. The arbitration resulted in a settlement between appellant and defendant architects on November 8, 1982. The only action appellant took in prosecuting its claim against the remaining defendants was one request to produce documents and four depositions. On November 9, 1982, more than four years and ten months after filing the original complaint, appellant moved to specially set the case for trial. On November 17, 1982, respondent filed a motion pursuant to Code of Civil Procedure section 583, subdivision (a),[1] to dismiss the case for failure to bring the action to trial within two years. On November 23, 1982, the trial court granted the motion to dismiss, rendering the motion to specially set the case for trial moot. Appellant then filed its notice of appeal. DISCUSSION Because appellant moved to specially set the case for trial within five years of filing the complaint, we are not concerned here with the mandatory dismissal provision of section 583, subdivision (b). The only issue on appeal is whether the trial court abused its discretion in dismissing appellant's action for want of prosecution pursuant to section 583, subdivision (a). (1a) Before deciding this issue we must first determine the level of appellate scrutiny to be applied in reviewing a trial court's order of dismissal made pursuant to section 583, subdivision (a). 1054 In the 1983 case of Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554 [194 Cal. Rptr. 773, 669 P.2d 9], the Supreme Court discussed the standards that apply in reviewing motions to specially set a case for trial and motions to dismiss for lack of prosecution. (2) The high court, citing Beswick v. Palo Verde Hospital Assn. (1961) 188 Cal. App.2d 254 [10 Cal. Rptr. 314], held that the action of a court in passing upon a motion for early and preferential trial setting "`is tantamount to action upon a motion to dismiss for failure to prosecute within the two-year period prescribed by section 583 of the Code of Civil Procedure; in each instance the motion is addressed to its sound legal discretion; the motivating factors in the exercise of that discretion would be pertinent to both motions; and its decision "will be disturbed only in cases of manifest abuse."'" (Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d at p. 561, italics added, original italics omitted.) (1b) We read the last part of this sentence to mean that an appellate court should give the trial court's ruling on these motions substantial deference. A different standard of review was recently enunciated by the Fourth Appellate District in Hurtado v. Statewide Home Loan Co. (1985) 167 Cal. App.3d 1019 [213 Cal. Rptr. 712], review denied August 29, 1985. The court in Hurtado opined that the abuse of discretion standard is "virtually useless as an analytical tool." (At p. 1022.) The court went on to say that the standard refers to "the amount of deference which appellate courts accord to trial court determinations." (Ibid.) The court concluded that an appellate court is in just as good a position as the trial court to review a section 583, subdivision (a), motion to dismiss and therefore the appellate court should not give deference to the trial court's ruling, but instead should exercise "plenary appellate scrutiny." (Id., at pp. 1026-1027.) The court based its conclusion on the fact that a section 583 motion is based in part on declarations that are equally available to both the trial and appellate courts and the premise that in the usual case there is no "serious factual controversy." (Id., at p. 1026.) We believe that the level of appellate scrutiny that the Hurtado court applied and set forth as controlling in the review of decisions on section 583, subdivision (a), motions is inconsistent with the standard of review enunciated by the Supreme Court in the Sunshine Meat case. We read the holding of Sunshine Meat to mandate our deference to the trial court's ruling on this motion. (3) When faced with a conflict in authority between an appellate court decision and a Supreme Court decision we are bound to follow the precedent set by the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937].) (1c) Accordingly, we cannot reverse the trial court's decision to 1055 grant respondents' section 583, subdivision (a), motion to dismiss unless we determine that there was a "manifest abuse of discretion." (Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d at p. 561, emphasis added; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 331 [216 Cal. Rptr. 718, 703 P.2d 58].) (4a) Turning to the ruling of the superior court granting respondents' motion to dismiss, we note that the California Rules of Court set forth the factors which the trial court must consider when ruling on a section 583, subdivision (a), motion.[2] Appellant contends that "[a] review of the record filed herein amply reveals that the trial court failed to adequately consider these mandatory factors or make an adequate record on this point." (5) Contrary to the implication of appellant's argument, the California Rules of Court do "not require the court to designate the basis for its decision orally or in writing. Nor does it require the court to recite that it considered all relevant matters or each of the listed factors." (Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d at p. 562.) "Moreover, it is presumed that the court followed the law.... `"A judgment ... of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, ..."' [Citation.] The mere fact that the court did not explicitly refer to rule [373(e)], when the statute contains no such requirement does not support the conclusion that it was ignored." (Id., at p. 563, original italics.) (4b) Here, as in Sunshine Meat, the record supports the trial court's decision. The declarations established that over a four-year ten-month period, the only pretrial discovery that appellant pursued with respect to the nonarchitect defendants was one request to produce documents and four depositions. The fact that appellant was participating in arbitration proceedings 1056 with the architects does not excuse its lack of diligence in prosecuting its case against the other defendants. Given the nature and complexity of the case, it would have been unjust to require respondents to prepare for trial in less than two months when appellant had the benefit of information learned through the arbitration proceedings to which respondents were neither invited, nor about which were they briefed. While appellant is correct in asserting that the trial court could have required appellant to fully disclose all information regarding the case to respondents as a condition of denying the 583, subdivision (a), motion, the prejudice in forcing respondents to trial on such quick and unexpected notice would still exist. Moreover, there is ample evidence in the record to support the trial court's ruling,[3] and thus appellant has failed to affirmatively show error. In addition to the factors listed in California Rules of Court, rule 373(e), recent cases have also considered both the prejudice to the defendant that results from the plaintiff's failure to diligently prosecute the action and any excuse offered by the plaintiff to explain his lack of diligence. (Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d 554; Hocharian v. Superior Court (1981) 28 Cal.3d 714 [170 Cal. Rptr. 790, 621 P.2d 829]; Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406 [134 Cal. Rptr. 402, 556 P.2d 764]; Denham v. Superior Court (1970) 2 Cal.3d 557 [86 Cal. Rptr. 65, 468 P.2d 193].) Because of the conflict between the underlying policy of section 583, subdivision (a), to promote due diligence on the part of the plaintiff and the policy favoring resolution of disputes by a trial on the merits, it is not clear which, if any, party has the burden of proof on a section 583, subdivision (a), motion. In 1970 the Supreme Court held that "[t]he statute places no restrictions on the exercise of the trial court's discretion, and in particular there is no requirement that the motion to dismiss must be granted unless opposed by an adequate showing of diligence or excuse for delay." (Denham v. Superior Court, supra, 2 Cal.3d at p. 563.) The court in Denham went on to 1057 say that "[a]lthough a defendant is entitled to the weight of the policy underlying the dismissal statute, which seeks to prevent unreasonable delays in litigation, the policy is less powerful than that which seeks to dispose of litigation on the merits rather than on procedural grounds." (Id., at p. 566.) In the 1976 case of Sanborn v. Chronicle Pub. Co., supra, 18 Cal.3d 406, the Supreme Court held that "[t]he plaintiff has failed to meet his burden of showing excusable delay." (At p. 418, italics added.) In 1981 the Supreme Court stated that "the burden is on the defendant to show that dismissal is warranted" when discussing the requirements imposed by section 583, subdivision (a). (Hocharian v. Superior Court, supra, 28 Cal.3d at pp. 722-723, fn. 7, original italics.) Finally, in 1983 the Supreme Court in the Sunshine Meat case reiterated that the policy favoring litigation on the merits was stronger than that underlying section 583, subdivision (a). (Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d at p. 562.) The court went on to say "[n]evertheless, an alleged wrong, without more, is obviously not sufficient to undermine the policy of section 583, subdivision (a). The more compelling policy favoring resolution on the merits will only prevail where plaintiff makes some showing of excusable delay. [Citation.]" (Id., at pp. 562-563, original italics.) The court in Sunshine Meat then noted that the plaintiff had not shown excusable delay but the defendant had shown prejudice. (Id., at p. 563.) (6) In our view the only consistent reading of these four Supreme Court cases is that section 583, subdivision (a), places a burden on the defendant to show that a dismissal is warranted through a showing of some prejudice or the presence of factors enumerated in the California Rules of Court which when viewed together militate in favor of dismissal, and that when such a showing has been made, the burden shifts to the plaintiff to show excusable delay. (4c) In applying this standard to the case at bar we find support for the judgment. Here, as in Sunshine Meat, respondents have convincingly shown that the California Rules of Court criteria speak in favor of their dismissal and that they have been prejudiced. Appellant, on the other hand, has utterly failed to excuse his delay in waiting over four years and ten months to file his application for order shortening time and motion to specially set case for trial.[4] *1058 Upon consideration of the factors listed in the California Rules of Court and the standards enunciated by the Supreme Court, we do not find that the superior court abused its discretion in granting respondents' motion to dismiss pursuant to section 583, subdivision (a). The judgment is affirmed. Poche, J., and Sabraw, J., concurred. NOTES [1] Unless otherwise indicated, all statutory references are to the Code of Civil Procedure. These dismissal sections were renumbered and reorganized by Statutes 1984, chapter 1705 and appear now in sections 583.110-583.410. [2] California Rules of Court, rule 373(e), now provides: "[Relevant matters] In ruling on the motion the court shall consider all matters relevant to a proper determination of the motion, including the court's file in the case and the affidavits and declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process; the extent to which the parties engaged in any settlement negotiations or discussions; the diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party; the nature and complexity of the case; the law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case; the nature of any extensions of time or other delay attributable to either party; the condition of the court's calendar and the availability of an earlier trial date if the matter was ready for trial; whether the interests of justice are best served by dismissal or trial of the case or by imposing conditions on its dismissal or trial; and any other fact or circumstance relevant to a fair determination of the issue." (Note that at time of hearing on this motion the applicable rule was numbered 203.5(e); that was repealed effective Jan. 1, 1984, when rule 373(e) became effective: Rule 373(e) simply restated rule 203.5(e) with the addition of the italicized language.) [3] Respondents' notice of motion and motion to dismiss for failure to bring action to trial within two years discusses the facts relative to each of the criteria enumerated in the rule: (1) over four years from answers by all defendants to plaintiffs at-issue memorandum; (2) settlement discussions only with architects (reached Nov. 8, 1982, for $65,000); (3) a lack of diligence by plaintiff in pursuing very limited discovery in the four years ten months prior to its motion to set specially (only a motion to produce and four depositions, no interrogatories, no request for admissions and no request for nor disclosure of experts); (4) the complex nature of the case (multiple parties, cross actions by general contractor against sub-contractors, the damages claimed based on said movement involving alleged architectural, engineering, soil evaluation and constructional negligence); (5) the complexity of the law applicable to the case (nine separate affirmative defenses); (6) the delay is solely attributable to plaintiff; and (7) the crowded condition of the court's calendar due to "recent crush of criminal litigation" makes a shortage of departments for this 10-day trial. [4] No reason for delay is cited in appellant's declaration in support of motion to specially set case for trial filed November 9, 1982, other than a recitation that the complaint was filed December 30, 1977, and that pursuant to section 583, subdivision (b), "[t]his action must be brought to trial before December 30, 1982...." The only facts that could possibly be construed as a reason for excusable delay are found in the memorandum of points and authorities in support of motion to specially set case for trial. That document recites the court ordered arbitration between appellant and the architects and incorrectly implies that these (i.e., complaint against the general contractor, architects, soils engineer and surety) were all stayed pending resolution of these arbitration proceedings.	{ "pile_set_name": "FreeLaw" }
755 F.2d 171 Williamsonv.McCarty-Holman Co. 84-4164 United States Court of Appeals,Fifth Circuit. 2/4/85 1 S.D.Miss. DISMISSED 2 --------------- Fed.R.App.P. 34(a); 5th Cir.R. 34.2.	{ "pile_set_name": "FreeLaw" }
FOR PUBLICATION Feb 26 2014, 6:03 am ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: SUZY ST. JOHN GREGORY F. ZOELLER Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA ROBIN HARPER, ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-1305-CR-222 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. ) APPEAL FROM THE MARION SUPERIOR COURT The Honorable Steven Rubick, Magistrate Cause No. 49F19-1212-CM-081628 February 26, 2014 OPINION – FOR PUBLICATION MATHIAS, Judge In emergencies, law enforcement officers are often called upon to make split- second judgments as they do the dangerous work of protecting us all, judgments that we in a civil society endeavor to support as much as possible. But when, without any exigent circumstances, and after being denied consensual entry, a law enforcement officer lies to gain entry into someone’s home, is that officer “. . . lawfully engaged in the execution of the officer’s duties . . .” so as to justify the arrest of the owner or renter of the home and to charge her with the crime of resisting law enforcement? We answer this question in the negative and reverse Robin Harper’s Class A misdemeanor resisting law enforcement conviction. Facts and Procedural History On December 3, 2012, defendant Robin Harper (“Harper”) called the police to report a domestic dispute with her husband, Christian (“Christian”). Indianapolis Metropolitan Police Department Officer James Gillespie (“Officer Gillespie”) responded to the call. When Officer Gillespie arrived at Harper’s home, Harper met him on the street in front of her house and told him that she and Christian had been arguing and the argument escalated into a shoving match. Harper informed the officer that she was not in pain and that Christian had left the home. From previous experience, Officer Gillespie was aware that this was “an on-going issue with Miss Harper and her husband.” Tr. p. 8. Officer Gillespie then began to look for Christian. At approximately the same time, Christian called 911 and gave his location, which was two blocks away from Harper’s residence. Officer Scott Hartman (“Officer Hartman”) separately responded to Christian’s 911 call. Officers Gillespie and Hartman met Christian at his location and 2 observed that he had two small scratches on his head, a swollen left eye, and what appeared to be a small puncture wound in his abdomen. Christian told the officers that Harper had attacked him with scissors and had struck him multiple times with her fist. The officers returned to Harper’s residence intending to arrest her for domestic battery. After Officers Gillespie and Hartman returned to Harper’s residence, they “attempted to make contact with Miss Harper[.]” Tr. p. 10. According to Officer Gillespie [s]he was reluctant to come to the door, but she did come to the door, spoke to us through the door and then opened it so that the screen door was still there and closed. We asked if she could step outside to talk to us. She said that she did not want to go outside due to the fact that it was cold. At that point in time we asked if we could step inside to speak with her and she said that we didn’t need to come inside. . . . [I]n order to get a hold of Miss Harper, I then asked her if she would sign a document for a protective order, to start some kind of protective order paperwork. At which time she opened the screen door and we stepped in to affect [sic] an arrest. Tr. pp. 10-11. So, even though Harper expressly told the officers that they could not enter her home and had no reason to be inside her house, when Harper took Officer Gillespie’s clipboard, the two officers entered the home. After Harper returned the clipboard to the officers, Officer Gillespie immediately placed her in handcuffs, with her hands behind her back. Harper was not wearing any shoes at the time of her arrest, so Officer Hartman accompanied her to her kitchen to retrieve them. While standing behind Harper and without any warning to Harper concerning what he was about to do, Officer Hartman attempted to remove Harper’s wedding ring from her finger. In response, Harper immediately and “violently thrusted her shoulders forward . . . [p]ulling away from 3 [Officer Hartman] causing [him] to lose the grip [he] had on her.” Tr. p. 46; see also Tr. p. 49 (stating “she kind of took a half step forward, rotating her shoulders in a violently quick action movement”). She then “took a stance toward Officer Hartman.” Tr. p. 29. Officer Gillespie saw Harper pull away from Officer Hartman, and went into the kitchen to assist him.1 The officers placed their hands on Harper’s shoulders, forcibly sat her down in a kitchen chair and proceeded to remove Harper’s ring. Officer Hartman did so because “anything that could be taken off the body has to be taken off” before transporting the individual to the Adult Processing Center at the jail in Marion County. Tr. p. 51. Neither officer explained this policy to Harper prior to attempting to remove her wedding ring. As a result of this series of events, Harper was subsequently charged only with Class A misdemeanor resisting law enforcement; she was not charged with domestic battery. Harper waived her right to a jury trial, and a bench trial was held on April 15, 2013. The trial court specifically found that the officers used a “ruse” to enter her home, but concluded that Harper consented to the officers’ entry when she opened her door to them. Tr. p. 75. The trial court then found Harper guilty as charged and ordered her to serve 365 days. She received credit for ten days already served and the remainder of her sentence was suspended without probation. Harper now appeals.2 Standard of Review 1 Officer Hartman testified that he did not know if Officer Gillespie “actually helped” him. Tr. pp. 49-50 2 We held oral argument in this appeal on February 3, 2014, at Fishers High School in Fishers, Indiana. We extend our gratitude to the faculty, staff, and students for their hospitality. We also commend the Fishers High School State Championship We the People Team and wish them well at the National Competition. 4 When we review a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Chappell v. State, 966 N.E.2d 124, 129 (Ind. Ct. App. 2012) (citing McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. Rather, we consider only the probative evidence supporting the conviction and the reasonable inferences to be drawn therefrom. Id. If there is substantial evidence of probative value from which a reasonable trier of fact could have drawn the conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt, then the judgment will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). The Resisting Law Enforcement Statute Indiana Code section 35-44.1-3-1 provides in pertinent part: “A person who knowingly or intentionally . . . forcibly resists, obstructs, or interferes with a law enforcement officer . . . while the officer is lawfully engaged in the execution of the officer’s duties” commits Class A misdemeanor resisting law enforcement. (Emphasis added). As shown by the facts before us, and as our supreme court recently observed, this “seemingly simple statute . . . has proven to be complex and nuanced in its application.” Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). Discussion and Decision At the outset of its argument that our court should affirm Harper’s conviction, the State urges us to conclude that the “ruse” perpetrated by Officer Gillespie to gain entry to Harper’s home is not significant to the outcome of this appeal. We do not agree. Indeed, the manner in which the officers gained entry to Harper’s home is at the core of our 5 concern and holding. Public trust and confidence in law enforcement officers would surely be eroded if we were to sanction an officer’s fraudulent statements or activity in order to enter a residence when there were no exigent circumstances to justify such conduct. Implicitly acknowledging this public policy concern, our courts have held that “[c]onsent to entry is generally valid except when it is procured by fraud, duress, fear, intimidation, or when it is merely a submission to the supremacy of the law.” Phillips v. State, 492 N.E.2d 10, 18 (Ind. 1986) rev’d on other grounds by Moore v. State, 498 N.E.2d 1 (Ind. 1986); Smith v. State, 505 N.E.2d 81, 84 (Ind. Ct. App. 1987); see also Croker v. State, 989 N.E.2d 812, 820 (Ind. Ct. App. 2013) (stating “[a] consent to search is valid except where it is procured by fraud, duress, fear, intimidation, or where it is merely a submission to the supremacy of the law”), trans. denied. In this case, Harper came to the door of her residence in response to the officer’s knock. After Officer Gillespie asked to come inside, Harper expressly denied the officers entry to her residence and told them they had no reason to be inside her home. Therefore, to induce Harper to open her screen door to the officers, Officer Gillespie lied to Harper and told her that he needed her to sign protective order documents against her husband. Harper opened her screen door to take the documents from Officer Gillespie, and the officers entered her residence. Under the Fourth Amendment,3 “searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). “[T]he physical entry of the home is the chief evil against which the wording of 3 Harper does not raise any argument under the Indiana Constitution. 6 the Fourth Amendment is directed.” Id. at 585; see also Ind. Code § 35-41-3-2 (stating “it is the policy of this state to recognize the unique character of a citizen’s home and to ensure that a citizen feels secure in his or her own home against unlawful intrusion by another individual or a public servant”). “‘The warrantless arrest of a person in his or her home requires both probable cause and ‘exigent circumstances . . . that make it impracticable to obtain a warrant first.’’”4 Paul v. State, 971 N.E.2d 172, 176 (Ind. Ct. App. 2012) (quoting Sapen v. State, 869 N.E.2d 1273, 1277 (Ind. Ct. App. 2007), trans. denied (quoting Adkisson v. State, 728 N.E.2d 175, 177 (Ind. Ct. App. 2000))). Although Officer Gillespie’s purpose for entering Harper’s home was to arrest her, he was still required to obtain an arrest warrant before entering her private residence. This was not a situation of hot pursuit or a crime committed in the presence of the officer. The State does not argue any other exigent circumstances, or any reason at all, that would have made it impracticable for Officer Gillespie to obtain an arrest warrant.5 Despite these facts and circumstances, the State posits that Officers Gillespie and Hartman lawfully entered Harper’s residence because they “arrested [her] at the threshold of her residence after Harper had voluntarily opened the door[.]” Appellee’s Br. at 7. In support of that argument, the State relies on United States v. Santana, 427 U.S. 38 (1976). In that case, officers investigating illegal drug buys observed Santana standing in the doorway of her house with a brown paper bag in her hand. When the officers were within fifteen feet of Santana, they got out of their van, shouted “police,” and displayed 4 Harper concedes that the officers had probable cause to arrest her for domestic battery. 5 Officer Gillespie or Officer Hartman could have, at a minimum, requested an arrest warrant either by telephone or radio pursuant to Indiana Code section 35-33-5-8 and waited at the scene for it. 7 their identification. As the officers approached, Santana retreated into the vestibule of her house. The Supreme Court observed that because Santana was at the threshold of her dwelling, she was in a public place and did not have an expectation of privacy. “She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house.” 427 U.S. at 42. The State’s “threshold” argument and citation to Santana are unavailing because the facts and circumstances before us are markedly different. Harper’s citation to Adkisson v. State, 728 N.E.2d 175 (Ind. Ct. App. 2000) is more persuasive. In Adkisson, police officers were dispatched to an apartment complex to investigate a domestic disturbance between neighbors. The officers were told that Adkisson struck her neighbors and injured them. When the officers proceeded to Adkisson’s apartment to discuss the incident, Adkisson refused them entry, and therefore, they proceeded to question her from outside her door. Eventually, Adkisson attempted to shut her door, but an officer placed his foot in her doorway to prevent her from doing so. The officer then informed her that she was being arrested for battery and followed her into the residence. As the officer entered Adkisson’s apartment, she pushed him and ran down the hallway. Adkisson struggled with the officers until she was sprayed with Mace three times, and was thereby subdued and then handcuffed. Adkisson was convicted of Class A misdemeanor resisting law enforcement, and she appealed her conviction arguing insufficient evidence. Adkission asserted that the arresting officer was not lawfully engaged in the execution of his duties because his forcible entry into her home to arrest her was not lawful. 8 Our court observed that although the arresting officer had probable cause to arrest Adkission for battery, the record did not reveal, and the State did not argue, any exigent circumstances justifying the deputy’s warrantless entry into Adkisson’s apartment. Id. at 177. Our court also rejected the State’s citation to Santana in support of its argument that exigent circumstances were not required because Adkisson was in the threshold of her home when the officer initiated the arrest. Adkisson was not in a public place when the police officer initiated the arrest, but came to the threshold of her apartment in response to the officer’s knock on her door. Also, the arresting officer did not inform Adkisson that she was under arrest until after he crossed the threshold of her apartment. Id. at 178. We therefore held that the arresting officer was not lawfully engaged in the execution of his duties as a law enforcement officer and concluded that the evidence was insufficient to support Adkisson’s conviction for resisting law enforcement. Id. Here, Officer’s Gillespie’s use of a “ruse” to enter Harper’s home is the equivalent of the Adkisson’s deputy’s decision to place his foot in Adkisson’s doorway to prevent her from closing her door. Harper came to the front door of her residence in response to Officer Gillespie’s knock on her door and opened the prime, front door, leaving a screen door between her and the officers. This is a common courtesy in our civil society and does not indicate to someone on the outside of the screen door the owner’s consent to enter into the home. Our supreme court acknowledged this principle in Cox v. State, 696 N.E.2d 853, 858 (Ind. 1998): Opening the door to ascertain the purpose of an interruption to the private enjoyment of the home is not an invitation to enter, but rather is a common courtesy of civilized society. Attendant to this courtesy is the ability to 9 exclude those who are knocking and preserve the integrity of the physical boundaries of the home. See, e.g., United States v. Berkowitz, 927 F.2d 1376, 1387 (7th Cir. 1991) (“A person does not abandon [the] privacy interest in his home by opening his door ... to answer a knock.... [This] is not an invitation to [enter].”). This is particularly true where an intervening screen or storm door remains closed. In the case before us, Harper never abandoned the privacy interest in her home. She simply opened her front, prime door to answer Officer Gillespie’s knock, and after she did so, she stood behind the closed screen door to speak with him. Harper never crossed the threshold of her residence onto her stoop or porch. In addition, Harper expressly denied the officers entry to her home, and rather than obtain a standard warrant for her arrest, Officer Gillespie chose to use fraud to enter the residence to arrest her. For all of these reasons, we conclude that Officers Gillespie and Hartman unlawfully entered Harper’s residence, and therefore, the officers were not engaged in the lawful execution of their duties at the time they arrested Harper and then attempted to remove her wedding ring in preparation for booking. Accordingly, the evidence is insufficient to support Harper’s conviction for Class A misdemeanor resisting law enforcement, and we reverse that conviction.6 Reversed. BRADFORD, J., and PYLE, J., concur. 6 We need not reach Harper’s second argument that the State failed to prove that she forcibly resisted. 10	{ "pile_set_name": "FreeLaw" }
717 S.E.2d 387 (2011) STATE of North Carolina v. Jasen Derrick JOHNSON. No. 252P11. Supreme Court of North Carolina. August 25, 2011. Kathleen N. Bolton, Assistant Attorney General, for State of North Carolina. Jasen Derrick Johnson, for Johnson, Jasen Derrick. Garry W. Frank, District Attorney, for State of North Carolina. ORDER Upon consideration of the petition filed by Defendant on the 20th of June 2011 in this matter for a writ of certiorari to review the order of the North Carolina Court of Appeals, the following order was entered and is hereby certified to the North Carolina Court of Appeals: "Dismissed by order of the Court in conference, this the 25th of August 2011."	{ "pile_set_name": "FreeLaw" }
Case: 15-40448 Document: 00513371016 Page: 1 Date Filed: 02/05/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-40448 Summary Calendar United States Court of Appeals Fifth Circuit FILED February 5, 2016 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff-Appellee v. ALFREDO GUERRERO, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:14-CR-1636-1 Before WIENER, HIGGINSON, and COSTA, Circuit Judges. PER CURIAM: * Alfredo Guerrero appeals his 30-month sentence for knowingly transporting an illegal alien for the purpose of financial gain. The sentence constituted a nine-month increase from the applicable guidelines range of 15- 21 months, which the district court stated was an upward departure pursuant to two sections of the Sentencing Guidelines. The district court’s statements at sentencing reflected concern that Guerrero had a prior conviction for the * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 15-40448 Document: 00513371016 Page: 2 Date Filed: 02/05/2016 No. 15-40448 same offense for which he had received a 20-month sentence, only one month below the top of the current guidelines range. On appeal, Guerrero asserts that the district court abused its discretion by imposing the upward departure. He contends that the departure may not be justified under § 5K2.0, which covers aggravating or mitigating circumstances, because the commentary to this policy statement states that departures based on criminal history should be considered under § 4A1.3. But, he maintains, the court could not rely on § 4A1.3 to support the departure because nothing in that section’s policy statement authorizes an upward departure based on the similarity of the instant offense to the conduct underlying a prior conviction. The Government asserts that we should review Guerrero’s claims for plain error because he did not raise these grounds in the district court. We need not resolve the proper standard of review, as Guerrero’s claims fail even under the more onerous abuse-of-discretion standard. See United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). This court has upheld an upward departure based on the similarity between the defendant’s prior and current convictions under each of the policy statements relied upon by the district court. See United States v. Schmeltzer, 20 F.3d 610, 613 (5th Cir. 1994) (§ 5K2.0); United States v. De Luna-Trujillo, 868 F.2d 122, 124-25 (5th Cir. 1989) (§ 4A1.3). Consequently, the judgment of the district court is AFFIRMED. 2	{ "pile_set_name": "FreeLaw" }
164 Ill. App.3d 362 (1987) 517 N.E.2d 1169 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH WITHERSPOON, Defendant-Appellant. No. 2-86-0640. Illinois Appellate Court Second District. Opinion filed December 30, 1987. 363 G. Joseph Weller and Robert C. Cooper, both of State Appellate Defender's Office, of Elgin, for appellant. Paul A. Logli, State's Attorney, of Rockford (William L. Browers and Martin P. Moltz, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People. Order affirmed. JUSTICE INGLIS delivered the opinion of the court: Defendant, Keith Witherspoon, appeals from the trial court's order denying an amended post-conviction petition without an evidentiary hearing. Defendant pleaded guilty to a charge of murder in exchange for a 30-year term of imprisonment and dismissal of a theft charge in accordance with a plea agreement. On appeal, defendant contends that the trial court abused its discretion by failing to conduct an evidentiary hearing on his claim that a motion to suppress testimony was improperly granted and his plea of guilty was involuntary where his counsel rendered ineffective assistance. We affirm. The record reveals that the defendant did not directly appeal his conviction or move to vacate his plea of guilty; instead, he filed a petition for post-conviction relief. Defendant's petition alleged that the trial court's denial of his motion to suppress testimony infringed on his constitutional rights and that due to the ineffective assistance of his counsel, he pleaded guilty involuntarily. Defendant's claims are based in part on the fact that his original counsel, Randolph Cook, discontinued his representation when he became a witness for the prosecution against the defendant. After Thomas Milani's appointment as counsel for the defendant, the defendant moved to suppress Cook's testimony on the basis of an attorney-client privilege which the court deemed waived due to the presence of a third party during the conversations. The transcript of the hearing on the motion to suppress is not contained in the record on appeal. Immediately after the denial of the motion to suppress, according 364 to the petition, Cook and Milani met with the defendant at the Winnebago County jail and induced him to plead guilty. Defendant alleged that Cook's presence at the conference was improper since he was a witness for the prosecution. Further, defendant reported that Milani told him that in light of the adverse ruling, he could present no defense and that "[i]f I went in [the courtroom] with it [the case], I couldn't do anything for you I'd just sit there like a bump on a log." Defendant submitted an affidavit which averred the truth of the petition. The record reveals that after the conference, on February 21, 1984, defendant pleaded guilty to the charge of murder. The trial court accepted his guilty plea after hearing the State's factual basis. The trial court also fully advised the defendant of the consequences of his guilty plea and determined that his plea was voluntary. Pursuant to the agreement, defendant received a 30-year term of imprisonment. Defendant filed his amended post-conviction petition on March 15, 1985. The trial court denied the State's motion to dismiss the petition on August 15, 1985. Thereafter, the State filed its answer to the petition, attaching affidavits from Milani and Cook. In substance, Cook's affidavit provided that Milani had contacted him indicating that the defendant desired to meet with him regarding Cook's testimony at the suppression hearing. Cook attended the meeting with defendant and Milani. Cook purportedly advised defendant that he was not acting as his attorney and would not advise defendant regarding the proposed plea agreement. Further, the affidavit denied that Cook or Milani exerted any pressure on defendant to plead guilty. Milani similarly submitted an affidavit providing that he never refused to defend defendant to the best of his ability. According to Milani, immediately following the suppression hearing on December 16, 1984, defendant indicated that he would accept the plea agreement. Defendant indicated that he wanted to speak with Cook even after his decision to plead guilty. Allegedly, Milani warned defendant before-hand not to divulge any circumstances regarding the case as Cook could be called as a witness against him. Milani denied that he or Cook attempted to exert pressure on defendant to plead guilty, nor did he refuse to present a complete defense if defendant chose to proceed to trial. 1 Defendant contends on appeal that the trial court abused its discretion in failing to conduct an evidentiary hearing on his constitutional claims. Defendant also argues that the State's affidavits do not adequately refute his claims in the petition. For that reason, defendant 365 asserts that an evidentiary hearing is warranted. We disagree. "Dismissal of a post-conviction petition is a matter within the trial court's discretion; the petitioner is not entitled to an evidentiary hearing as a matter of right. [Citation.] Only when the petitioner makes a substantial showing of a constitutional violation is an evidentiary hearing necessary. [Citation.] Conclusory allegations are not sufficient. [Citation.]." (People v. Robinson (1987), 160 Ill. App.3d 366, 368.) Generally, an evidentiary hearing is necessary to determine the truth or falsity of conflicting affidavits. (People v. Wegner (1968), 40 Ill.2d 28, 32; People v. Brumas (1986), 142 Ill. App.3d 178, 180.) However, even construing the allegations liberally in favor of the defendant and as set forth in light of the record and transcript (see People v. Redmond (1986), 146 Ill. App.3d 259, 262), we conclude that the allegations in the petition are not legally sufficient to constitute a constitutional claim. 2 Assuming the facts set out in the petition are true, we conclude that the defendant has not presented substantial constitutional claims warranting a post-conviction hearing. Defendant claimed that Cook's presence at a conference with Milani induced him into pleading guilty against his will. However, these allegations are merely conclusory and, as such, are insufficient to warrant an evidentiary hearing. (See People v. Robinson (1987), 160 Ill. App.3d 366, 368.) Defendant's claim is insufficient as he has failed to state why Cook's presence was coercive. There are no allegations that Cook made statements or acted in any manner that would render defendant under duress in his decision to plead guilty. We also find that a statement allegedly made by Milani is insufficient to show that defendant's plea was involuntary. Defendant's petition stated that Milani told defendant that "because of the Judge's ruling he could present no defense and stated `If I went in [the courtroom] with it [the case], I couldn't do anything for you I'd just sit there like a bump on a log.'" Milani's statement by itself does not amount to ineffective assistance of counsel or coercion. What Milani was essentially telling defendant was that due to the posture of the case, he did not believe that a guilty verdict could be avoided. We are of the opinion that a defense attorney's honest assessment of a case cannot be the basis for holding that a defendant's guilty plea was involuntary. See People v. Edwards (1971), 49 Ill.2d 522, 525 (plea not coerced where defendant's attorney advised him he would receive a shorter sentence if he pleaded guilty); People v. Covington (1970), 45 Ill.2d 105, 110 (following counsel's advice would not render guilty 366 plea involuntary). Accordingly, the trial court's order denying the petition without an evidentiary hearing is affirmed. Affirmed. LINDBERG, P.J., and UNVERZAGT, J., concur.	{ "pile_set_name": "FreeLaw" }
[Cite as State v. Johnson, 2012-Ohio-2508.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 97579 STATE OF OHIO PLAINTIFF-APPELLEE vs. ANTHONY JOHNSON DEFENDANT-APPELLANT JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-553734 BEFORE: Boyle, J., Stewart, P.J., and Rocco, J. RELEASED AND JOURNALIZED: June 7, 2012 ATTORNEY FOR APPELLANT David K. Greer 1150 Morse Road Suite 230 Columbus, Ohio 43229-6327 ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor BY: Mary McGrath Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, J.: {¶1} Defendant-appellant, Anthony Johnson, appeals his sentence, raising the following two assignments of error: “I. The trial court erred in sentencing appellant to consecutive prison terms, without making the findings required by R.C. 2929.14(C)(4). “II. The trial court erred in imposing a maximum prison sentence on the attempted assault count.” {¶2} We find Johnson’s arguments unpersuasive and affirm. Procedural History and Facts {¶3} In August 2011, Johnson was indicted on three counts: (1) assault on a peace officer, in violation of R.C. 2903.13(A); (2) harassment by inmate, in violation of R.C. 2921.38(B); and (3) resisting arrest, in violation of R.C. 2921.33(A). The allegations giving rise to the indictment were that Johnson, who was severely intoxicated at the time, attempted to kick Detective Gerald Sowul when Detective Sowul placed him under arrest for disorderly conduct. Then, while being booked on charges, Johnson later spit at Lieutenant Thomas Dillon. Johnson ultimately pleaded guilty to the lesser offense of attempted assault on Count 1 and to the charge of harassment by inmate as charged in Count 2. The remaining count of the indictment was nolled. {¶4} Following Johnson’s guilty plea, the trial court immediately proceeded to sentencing. After detailing Johnson’s extensive criminal history, i.e., 15 juvenile court cases, an assault on a peace officer, four drug trafficking cases, one robbery case, a carrying a concealed weapon and having a weapon while under disability case, and an assault on an EMS worker — the trial court found that “society is better off with [Johnson] in jail than out of jail.” The trial court sentenced Johnson to 12 months on the attempted assault on a peace officer count and 11 months on the harassment by inmate count, each to run consecutive, for a total of 23 months in prison. {¶5} From this order, Johnson now appeals. Standard of Review {¶6} An appellate court must conduct a meaningful review of the trial court’s sentencing decision. State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 7. Specifically, R.C. 2953.08(G)(2) provides the following regarding an appellate court’s review of a sentence on appeal: The court hearing an appeal * * * shall review the record, including the findings underlying the sentence or modification given by the sentencing court. The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law. {¶7} Additionally, a sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing: (1) “to protect the public from future crime by the offender and others,” and (2) “to punish the offender using the minimum sanctions that the court determines accomplish those purposes.” R.C. 2929.11(A). The sentence imposed shall also be “commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.” R.C. 2929.11(B). Consecutive Sentences {¶8} In his first assignment of error, Johnson argues that the trial court failed to make the necessary findings required under R.C. 2929.14(C) for the imposition of consecutive sentences. We disagree. {¶9} The General Assembly, through the enactment of H.B. 86, recently amended Ohio’s sentencing statutes. Because H.B. 86 took effect on September 30, 2011, and Johnson was sentenced on October 17, 2011, the trial court was required to sentence Johnson under the new provisions. Pertinent to this appeal, the revisions under H.B. 86 now require a trial court to make specific findings when imposing consecutive sentences. Specifically, R.C. 2929.14(C)(4) provides as follows: (4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct. (c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. {¶10} Johnson argues that the trial court failed to make all three of the required findings and failed to correlate the findings to the specific facts of this case. He contends that the trial court focused solely on his criminal history and that this single factor does not allow the imposition of consecutive sentences. He further contends that the trial judge misquoted the statute, confusing the disproportionate standard as contained in R.C. 2929.11, i.e., “are not disproportionate to other sentences,” with the required finding of “are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public.” {¶11} The trial court’s specific findings prior to imposing consecutive sentences are as follows: Mr. Johnson, it’s clear that society is better off with you in jail than out of jail despite its costs. This is your third case where you either assaulted a peace officer or EMS worker. When you are free, you seem to spend your time trafficking in drugs. Most of your juvenile court cases are theft cases. Let’s see. We have a new sentencing statute that indicates that there is a presumption of concurrent terms; the Court must find that the offender’s — that the consecutive sentences are necessary to punish the offender and protect the public and are not disproportionate to other sentences and must find also that the offender’s criminal history shows that consecutive terms are needed to protect the public. I also find this offense occurred while on probation to municipal court. So, the facts are that you assaulted a police officer and then spit on another one. This is again in line with a long history of doing this. You did it to an EMS worker and you did it to another police officer in the past. And it’s clear that you are at great risk to reoffend. Once free it doesn’t take you long to find trouble. So, it is necessary to protect the public against future crimes to impose consecutive sentences. {¶12} Contrary to Johnson’s assertion, we find that the trial court complied with the dictates of the newly amended R.C. 2929.14(C)(4) and made all the required findings to support the imposition of consecutive sentences. While we acknowledge that the trial judge mis-spoke in his exact language in discussing the disproportionate standard, we nonetheless find that the trial judge found that the imposition of consecutive sentences would not be disproportionate to the seriousness of Johnson’s conduct and to the danger that he poses to the public. It is obvious by the trial judge’s reference to the amended statute and supporting statements, i.e., Johnson’s specific conduct in this case and Johnson’s repeated engagement in criminal activity, that the trial court found that consecutive sentences were not disproportionate to Johnson’s conduct and the threat he poses. Indeed, the trial judge emphasized more than once that this is Johnson’s third case involving disrespect and violence toward a peace officer. {¶13} We further disagree that the trial judge only focused on Johnson’s past criminal history in imposing consecutive sentences. As discussed above, the trial judge discussed the specific facts of the underlying case in support of its imposition of consecutive sentences. But nonetheless Johnson’s criminal history was a significant factor supporting the trial court’s findings, especially given that consecutive sentences are necessary to protect the public from future crime by Johnson. {¶14} Accordingly, we overrule the first assignment of error. Maximum Sentences {¶15} In his second assignment of error, Johnson argues that the trial court erred in imposing a maximum sentence on Count 1 because “none of the statutory aggravating factors apply to justify a maximum sentence” under R.C. 2929.12(B). But the factors listed under R.C. 2929.12(B) are not exhaustive. Nor is the trial court prohibited from imposing a maximum sentence if it does not find that one of the specific factors listed under R.C. 2929.12(B) apply. Indeed, the statute specifically states that the trial court shall consider “any other relevant factors.” {¶16} Further, Johnson’s argument ignores the other provisions under R.C. 2929.12, namely, subsections (D) and (E) relating to the offender’s likelihood of recidivism, that the trial court must also consider in order to achieve the overriding purposes of protecting the public from future crime and punishing the offender. Those factors, i.e., that Johnson was on probation at the time of his offense, his extensive criminal history and failure to respond favorably to past sanctions, and his repeated pattern of the same activity giving rise to the underlying offense, supported the trial court’s decision to impose the maximum term of one year on Count 1. {¶17} The second assignment of error is overruled. {¶18} Judgment affirmed. It is ordered that appellee recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MARY J. BOYLE, JUDGE MELODY J. STEWART, P.J., and KENNETH A. ROCCO, J., CONCUR	{ "pile_set_name": "FreeLaw" }
466 S.W.2d 354 (1971) CLARK'S TEXAS, INC., et al., Appellants, v. Mary STEWART, Appellee. No. 5004. Court of Civil Appeals of Texas, Waco. April 15, 1971. Rehearing Denied May 6, 1971. 355 Berman, Fichtner & Mitchell, Abney & Burleson, Dallas, for appellants. Matthews & Thorp, Dallas, for appellee. OPINION HALL, Justice. Appellee, Mary Stewart, brought this action to enjoin an asserted violation of Article 286a, Vernon's Annotated Texas Penal Code. There are two individual defendants: Robert Ward and Charles Frum; and there are six corporate defendants: Clark's Texas, Inc., Cook United of Texas, 356 Inc., Sundaco, Inc., Clark's Arlington, Inc., Cook United, Inc., and M. N. Landau Stores, Inc. It is alleged in plaintiff's petition that the last two defendants named are doing business as "Cook's Discount Department Store" and "Cook's Department Store." The trial court granted a restraining order, and, after hearing, granted the temporary injunction sought by plaintiff. Hence this appeal by all of the defendants. In the beginning we are called upon to decide appellee's motion to dismiss the appeal as to some, or all, of the appellants. She seeks dismissal as to three of the corporate appellants because of their failure to give notice of appeal from the order of temporary injunction. Rule 385, Texas Rules of Civil Procedure, prescribes the procedure for taking an appeal from an interlocutory order, and notice of appeal is not required. Crow v. Batchelor, (Tex.Sup., 1970) 453 S.W.2d 297, 298. The order granting the temporary injunction was rendered on December 5, 1970. On December 10, 1970, all of the appellants in this case jointly filed a motion to dissolve the injunction. The motion to dissolve was heard on December 11th and overruled on December 16th. Appellee asks that the appeal be dismissed as to all appellants, contending that they have "elected to proceed by motion to dissolve injunction, which is a separate remedy, inconsistent with an appeal from the order granting temporary injunction" and that, having made an election, "they are bound thereby." There is authority for the principle that "where an appeal is taken from an order overruling a motion to dissolve a temporary injunction it constitutes an election to waive the right to appeal from the order granting the injunction, and vice versa." See Plateau Oil Co. v. Choate Oil Corporation, (Tex. Civ.App., 1921, writ dism.) 235 S.W. 686; Lowe and Archer, 6 Texas Practice 387-8, Injunctions And Other Extraordinary Proceedings, Sec. 363, and cases cited therein. Nevertheless, we do not believe that rule has application, here. The only matters in the record relating to the motion to dissolve are contained in a supplemental transcript filed by the appellants. It does not contain an appeal bond or supersedeas bond, relating to the motion, as required by Rule 385. Therefore, appellants have failed to perfect an appeal from the order overruling the motion to dissolve injunction; and, though they base two points of error on the order, they cannot be heard to complain about it. We agree with appellants that the purpose of the general rule prohibiting an appeal from both an order of temporary injunction and an order overruling a motion to dissolve the injunction is not to deny a litigant his right of review, but, rather, is to prevent a review of the same matter twice. Appellee's motion to dismiss is overruled. Appellants have four points of error devoted to the proposition that the injunction should be set aside insofar as it relates to appellants Sundaco, Inc., M. N. Landau Stores, Inc., and Cook United, Inc., because they were not served with citation or other sufficient notice of the hearing on the temporary injunction, and were not, therefore, properly before the court. If this contention was arguable when the trial began, (which, under the record, we doubt) it became moot with the filing of the motion to dissolve injunction. That motion recites that it is filed by "all of the defendants" in the case, and is signed by the attorney who now insists that Sundaco, Inc., M. N. Landau Stores, Inc., and Cook United, Inc., were not properly before the court. We overrule that contention. Insofar as the record shows, the motion was filed while the temporary injunction was still pending in the trial court. If, as they claim, these appellants had not been served with notice, 357 then their joinder with the other defendants in filing the motion to dissolve injunction at a time when the matter was still before the court constituted a general appearance by them in the case; gave them notice of the injunction; and rendered them amenable to its provisions if it is otherwise valid. Article 286a of the Penal Code provides in part that it is unlawful and a public nuisance (with certain exceptions) for any individual, partnership, or corporation to sell or offer for sale, or compel or force or oblige their employees to sell, certain named items of merchandise "on both the two (2) consecutive days of Saturday and Sunday." The article authorizes any person to apply to any court of competent jurisdiction for and obtain an injunction restraining a violation of its provisions. In her petition for injunction, appellee alleged that the defendants "are not separate entities in truth and in fact, but have been made to appear as such for purposes of circumventing the laws of the State of Texas;" that the defendants "separately and in active concert with each other," violated article 286a in the manner particularized in her pleading; that the violations did not fall within any exceptions to the article; and that the defendants are "scheming and conspiring together" to continue violating article 286a. In the order granting the temporary injunction, the court found that "the conduct of defendants is such that the separate corporate entities of the corporate defendants have not been respected and maintained; that all of said defendants are under common control and that each defendant has and is acting in concert each with the other" in "knowing violation" of article 286a; and that the corporate defendants have been and are doing business an Cook's Discount Department Store. By several points of error, the defendants contend there is no evidence to support these findings. We overrule these contentions. There is probative evidence in the record that M. N. Landau Stores, Inc., owns Clark's Arlington, Inc., Clark's Texas, Inc., and Cook United of Texas, Inc.; or that M. N. Landau Stores, Inc., and Cook United, Inc., own Clark's Texas, Inc., and Clark's Arlington, Inc.; that the home offices of M. N. Landau Stores, Inc., and Cook United, Inc., are in Cleveland, Ohio; that an officer and director of M. N. Landau Stores, Inc., owns at least one-third of Sundaco, Inc.; that, according to state store license applications, the addresses of Sundaco's stores are identical with those of Cook United of Texas, Inc., and Clark's Arlington, Inc., and with those of stores of Clark's Texas, Inc., situated across the state; that the defendants Ward and Frum are managers of stores owned by Cook's United, Inc.; that these stores have large immovable signs outside advertising them as "Cook's Discount Department Store" at all times; that checks given to Cook's Discount Department Stores are indorsed for deposit by Cook United of Texas, Inc.; that every Sunday a large sign is placed on the front door of these stores and smaller signs are "scattered throughout the stores" advertising them as "Sundaco" stores; that the "Sundaco" signs are not exhibited on any other day of the week; that, as between Sundaco and the other stores there is the use of common employees, the commingling and common use of cash register funds, the display and sale of the same merchandise in the same stores on Saturdays and Sundays, the making available of keys to the premises, the preparation of bank deposits for Sundaco by Cook United employees, the payment of wages to Sundaco by Cook United employees, pursuant to checks delivered to Cook United employees, the preparation of sales records for Sundaco by Cook United employees, and the giving of cash refunds during the week by Cook United employees for merchandise purchased on Sunday from Sundaco; that all cash registers in all stores make a "data" tapea punched tape which is made to be inserted into a computer which registers each sale made and the department in the store from which the merchandise was sold; and that these tapes are made every day of the week, including 358 Sunday, and then sent to the home office of Cook United, Inc., in Cleveland, Ohio. Ward testified that no new merchandise is brought into the stores on Sunday by Sundaco, and that none is taken out by Sundaco at the end of the day on Sunday. He testified that "no inventory is made of the goods that are left in the stores on Saturday for Sundaco to sell on Sunday," and that "no inventory is made of the goods that are left at the end of Sunday to be used on Monday." We hold that the evidence we have recited is legally sufficient to support the trial court's findings. Appellants seek reversal on the grounds that appellee "had no standing before the court to bring such action;" and that there is no evidence of injury or prospective injury peculiar to her. We overrule these points. Article 286a clearly authorizes "any person" to seek an injunction restraining a violation of its provisions. Moreover, "this statute itself declares the injury," stamps a violation thereof a public nuisance, and "the finding of the violation is itself a finding of injury." The State of Texas v. Cook United, Inc., (Tex.Sup., 1971) 464 S.W.2d 105, 107. The appellants Ward and Frum complain that there is no evidence that either of them, individually, violated article 286a. Whether or not they did so does not affect the issuance of the injunction. Rule 683, Texas Rules of Civil Procedure, expressly provides that an order granting an injunction is binding "upon the parties to the action, their officers, agents, servants, employees * * *." Ward and Frum are admitted employees of Cook United, Inc. They are answerable to the temporary injunction and have suffered no prejudice by being named in it. To secure the temporary injunction, appellee was not required to show an absolute right to prevail; it was necessary that she show a probable right to permanent relief and probable injury to that right without the injunction during the pendency of the suit. The State of Texas v. Cook United, Inc., supra. The record supports the conclusion that appellee has met her burden. The remaining points and contentions of the appellants have been duly considered, found to be immaterial or without merit, and are overruled. The judgment is affirmed.	{ "pile_set_name": "FreeLaw" }
208 Pa. Superior Ct. 365 (1966) Lewandowski, Appellant, v. Crawford. Superior Court of Pennsylvania. Argued June 20, 1966. September 15, 1966. Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ. Joseph Patrick Gorham, for appellant. Joseph G. Manta, with him James M. Marsh, and LaBrum and Doak, for appellee. OPINION BY MONTGOMERY, J., September 15, 1966: This is an appeal by the plaintiff from a judgment entered in defendant's favor on the pleadings. *366 The action in trespass was commenced by summons. Subsequently a complaint duly endorsed with notice to defendant to answer within twenty days was filed and served. The defendant answered and under new matter set forth a release but did not endorse his pleading with notice to plaintiff to answer the new matter. Within twenty days after this pleading was filed the plaintiff ordered the case on the trial list without filing an answer to the new matter. Three years later defendant moved for judgment on the pleadings because of plaintiff's failure to deny the release which had been pleaded in the new matter of the answer. After argument the lower court granted the motion. This was error. Failure to endorse a pleading with notice to answer relieves the opposite party of the obligation to file a responsive pleading, and in consequence, no default judgment can be entered against him, R.C.P. 1026; Phillips v. Evans, 164 Pa. Superior Ct. 410, 65 A. 2d 423 (1949). Judgment reversed with a procedendo to trial.	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-51226 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EDGAR VALENZUELA-GOMEZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-81-ALL-DB -------------------- August 21, 2002 Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges. PER CURIAM:* Court-appointed counsel for Edgar Valenzuela-Gomez has moved for leave to withdraw and has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Valenzuela has received a copy of counsel's motion and brief, but he has not filed a pro se brief of his own. Our review of the brief filed by counsel and of the record discloses no nonfrivolous issue for appeal. Accordingly, the motion for leave to withdraw is * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-51226 -2- GRANTED, counsel is excused from further responsibilities, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.	{ "pile_set_name": "FreeLaw" }
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________ ) UNITED STATES OF AMERICA, ) ) v. ) Crim. Action No. 00-254 (RWR) ) WAYNE FELDER, ) ) Defendant. ) ____________________________ ) MEMORANDUM ORDER Petitioner Wayne Felder filed a motion under 28 U.S.C. § 2255 to vacate his sentence, arguing that his counsel provided ineffective assistance by not filing an appeal, by not adequately contesting an improper role enhancement under the sentencing guidelines, and by advising him to plead guilty without warning him about the role enhancements; that an unconstitutional prior conviction was used to enhance his criminal history; and that his sentence was unconstitutional under United States v. Booker, 543 U.S. 220 (2005). On June 24, 2008, the petitioner’s motion was denied with respect to all of his claims except for the claim that his attorney failed to appeal when requested. See United States v. Felder, 563 F. Supp. 2d 160, 169 (D.D.C. 2008) (“2008 Memorandum and Order”). An evidentiary hearing was ordered to resolve the sole remaining issue of whether the petitioner asked his attorney to file an appeal. Id. Before the hearing was - 2 - held, the petitioner filed a motion under 18 U.S.C. § 3583(c)(2) to reduce his sentence. The parties conferred and reached a stipulated disposition of both the petitioner’s motion to vacate and his motion to reduce his sentence. The disposition was accepted, the petitioner was resentenced to the stipulated term of imprisonment of 135 months, and the petitioner agreed in his stipulated disposition that he would refrain from appealing the sentence. After an order effectuating the stipulated disposition was entered, the petitioner –– although represented by counsel –– filed pro se a notice of appeal. The court of appeals ordered the appeal to be held in abeyance until this Court determines in the first instance whether a certificate of appealability is warranted. The petitioner argues that a certificate of appealability is warranted notwithstanding the stipulated disposition because “the disposition does not by its terms apply” to any of the ineffective assistance of counsel issues that were resolved in the 2008 Memorandum and Order denying in part the petitioner’s motion to vacate. (Pet’r’s Suppl. to Appl. for Certificate of Appealability at 2.) However, the stipulated disposition provides for “a full disposition of the [petitioner]’s ineffective assistance of counsel claims with respect to his - 3 - former trial counsel” (Stipulated Disposition at 1 (emphasis added)), not merely a resolution of the sole ineffective assistance issue outstanding at the time the disposition was entered. Because the petitioner agreed “to refrain from appealing from this stipulated disposition or the Court’s resentencing of the [petitioner] pursuant to this stipulated disposition” (id.), he waived his right to appeal his sentence on the basis of any of the issues he raised in his motion to vacate, including those that were resolved in the 2008 Memorandum and Order. “A defendant may waive his right to appeal his sentence as long as his decision is knowing, intelligent, and voluntary.” United States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009). Even an anticipatory waiver of a defendant’s right to appeal –– one made before the defendant knows what his sentence will be –– is “a knowing waiver if the defendant is aware of and understands the risks involved in his decision.” Id. However, “a waiver should not be enforced insofar as the defendant makes a colorable claim that he received ineffective assistance of counsel in agreeing to the waiver[.]”1 Id. at 530. 1 The petitioner has raised no such claim here. - 4 - In the stipulated disposition, which the petitioner signed, the petitioner said: I have read this Stipulated Disposition and have discussed it with my attorney . . . . I fully understand the terms of this Stipulated Disposition and agree to it without reservation. I do this voluntarily and of my own free will, intending to be legally bound in the event the Court accepts this Stipulated Disposition. No threats have been made to me nor am I under the influence of anything that could impede my ability to understand this Stipulated Disposition fully. I reaffirm that absolutely no promises, agreements, understandings, or conditions have been made or entered into in connection with my decision to enter into this Stipulated Disposition except those set forth in the Stipulated Disposition. I am satisfied with the legal services provided by my attorney in connection with this Stipulated Disposition and matters related to it. (Stipulated Disposition at 4.) The petitioner has provided no basis for challenging these representations, which establish that his decision to enter into the Stipulated Disposition was knowing, intelligent, and voluntary. Moreover, the petitioner does not argue that he was unaware of or failed to understand the risks associated with entering into the Stipulated Disposition. Because “plea bargaining does not violate the Constitution even though” a defendant may in so doing agree to “waive[] important constitutional rights[,]” Town of Newton v. Rumery, 480 - 5 - U.S. 386, 393 (1987), the petitioner is not entitled to a certificate of appealability merely because he waived his ability to continue to pursue his ineffective assistance of counsel claims. See 28 U.S.C. § 2253(c)(2) (“A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.”). Accordingly, it is hereby ORDERED that the petitioner’s motion [114] for a certificate of appealability be, and hereby is, DENIED. SIGNED this 23rd day of May, 2011. __________/s/_______________ RICHARD W. ROBERTS United States District Judge	{ "pile_set_name": "FreeLaw" }

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