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IN THE SUPREME COURT OF THE STATE OF DELAWARE
JOSEPH M. WALLS, §
§ No. 193, 2019
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 86001399DI (N)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: October 14, 2019
Decided: December 6, 2019
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
ORDER
Upon consideration of the appellant’s opening brief, the appellee’s motion to
affirm, and the record below, it appears to the Court that:
(1) The appellant, Joseph M. Walls, filed this appeal from the Superior
Court’s denial of his motion requesting resentencing under 11 Del. C. § 4216(d) and
denial of his request for transfer to the Veterans Administration hospital for
treatment of certain mental health conditions. The State has moved to affirm the
judgment below on the ground that it is manifest on the face of Walls’s opening brief
that his appeal is without merit. We agree and affirm.
(2) On November 17, 1987, a Superior Court jury found Walls guilty of
various offenses arising from a home invasion. On March 18, 1988, the Superior
Court sentenced Walls and entered an order of judgment. Walls appealed. This
Court affirmed the Superior Court’s judgment on February 8, 1990 and issued a
mandate on March 1, 1990.1
(3) In November 2018, Walls filed a “Motion for TIS Resentencing,” in
which he argued that he is entitled to resentencing under 11 Del. C. § 4216(d). In
March 2019, Walls sent the Superior Court a letter requesting that he be transferred
to the Veterans Administration hospital for treatment for posttraumatic stress
disorder and traumatic brain injury that resulted from his military service. On April
11, 2019, the Superior Court denied Walls’s requests for relief. This appeal
followed.
(4) Walls’s first argument on appeal is that he is entitled to resentencing
under the Truth in Sentencing Act of 1989 (the “TIS Act”) because his conviction
was not “final” until this Court issued the mandate in his direct appeal on March 1,
1990. “The General Assembly passed the Truth in Sentencing Act on July 17, 1989,
1
Walls v. State, 1990 WL 17759 (Del. Feb. 8, 1990). Walls was convicted in 1986 of charges
relating to a different home invasion. Walls v. State, 560 A.2d 1038 (Del. 1989). Walls has
brought numerous motions challenging his convictions and sentences and has filed litigation
asserting claims against various state officials. See, e.g., Walls v. State, 2018 WL 2727579 (Del.
June 5, 2018); Walls v. State, 2017 WL 961802 (Del. Mar. 10, 2017); Walls v. Coupe, 2015 WL
1124612 (Del. Mar. 10, 2015); Walls v. Phelps, 2014 WL 279472 (Del. Jan. 23, 2014); Walls v.
State, 2013 WL 4505818 (Del. Aug. 20, 2013); Walls v. Little, 2012 WL 1415582 (Del. Apr. 23,
2012); Walls v. State, 2011 WL 2893027 (Del. July 20, 2011); Walls v. State, 2010 WL 5393996
(Del. Dec. 28, 2010); Walls v. State, 2009 WL 1058731 (Del. Apr. 21, 2009); Walls v. State, 2008
WL 187948 (Del. Jan. 7, 2008); Walls v. State, 2004 WL 2421198 (Del. Oct. 15, 2004); Walls v.
State, 1996 WL 21036 (Del. Jan. 4, 1996); Walls v. State, 1994 WL 605506 (Del. Oct. 25, 1994);
Walls v. Delaware State Police, 1989 WL 88651 (Del. July 17, 1989).
2
to provide more certainty about the length of sentences to be served by criminal
defendants.”2 The TIS Act repealed certain provisions of Titles 11 and 16 of the
Delaware Code, but provided that the repealed provisions “shall remain in force and
effect for the purpose of trial and sentencing for all crimes which occur prior to 12:01
a.m., June 30, 1990.”3 The TIS Act, as amended in 1990, also provided that “[a]ny
individual convicted of a crime on or after January 1, 1990, which crime occurred
prior to June 30, 1990, may elect to be sentenced under the provisions of the Truth
in Sentencing Act of 1989 rather than under the prior provisions of this title.”4 Walls
bases his claim that he is entitled to resentencing on this provision, which was
codified as 11 Del. C. § 4216(d).
(5) Walls contends that he was entitled to elect sentencing under the TIS
Act because his conviction did not become final until March 1, 1990, when this
Court entered its mandate in his direct appeal. We conclude that the Superior Court
did not err in determining that Walls is not entitled to resentencing. Walls was
“convicted” within the meaning of Section 4216(d) when the jury found him guilty
on November 17, 1987.5 Walls’s attempt to import the “finality” concept from
Superior Court Criminal Rule 61 into Section 4216(d) is unavailing. Neither the
2
State v. Barnes, 116 A.3d 883, 884 (Del. 2015).
3
67 Del. Laws ch. 130 § 4.
4
67 Del. Laws ch. 350 § 3, codified as 11 Del. C. § 4216(d).
5
See 11 Del. C. § 222(3) (“When used in this Criminal Code . . . . ‘Conviction’ means a verdict of
guilty by the trier of fact, whether judge or jury, or a plea of guilty or a plea of nolo contendere
accepted by the court.”).
3
word “final” nor the finality concept appears in Section 4216(d). Indeed, the fact
that Rule 61 defines when a conviction becomes final indicates that the words
“conviction” or “convicted,” standing alone, do not encompass the concept of
finality.6 Moreover, Walls’s reliance on federal case law applying federal statutes
or addressing nonstatutory principles of retroactivity is misplaced.
(6) Walls’s second argument on appeal is that 16 Del. C. § 5021 entitles
him to be transferred to the Veterans Administration hospital for treatment for
posttraumatic stress disorder and traumatic brain injury that resulted from his
military service. Section 5021 appears in a chapter of the Delaware Code governing
the involuntary commitment of persons with mental conditions and provides:
The provisions in the Delaware Code pertaining to the admission,
commitment, care and discharge of persons diagnosed with a mental
condition at state institutions shall apply with the same force and effect
to persons entitled to the services of hospitals for people with a mental
condition operated by the Veterans Administration. Persons so entitled
may be transferred from state institutions to such Veterans
Administration hospitals subject to the statutory provisions affording
interested parties the right to have the status of the person with a mental
condition determined as provided by law.7
The plain language of Section 5021 provides no basis for concluding that it provides
a person in the custody of the Department of Correction with a right to obtain a
6
See DEL. SUPER. CT. CRIM. R. 61(i)(1) (“A motion for postconviction relief may not be filed more
than one year after the judgment of conviction is final . . . .”); id. R. 61(m) (defining when a
judgment of conviction becomes final for purposes of Rule 61).
7
16 Del. C. § 5021.
4
transfer to the Veterans Administration hospital. Moreover, Walls’s argument that
“may be transferred” means “shall be transferred” or “must be transferred” is
inconsistent with the permissive, and not mandatory, meaning of the word “may.” 8
(7) Finally, Walls argues that the “judges appointed to all Delaware courts”
under Article IV, Sections 1-5 of the Delaware Constitution “were appointed in
violation of the U.S. Constitution” and in “bad faith,” and Walls is therefore entitled
to a new hearing before a properly appointed judge. Walls did not present this issue
to the Superior Court, and we will not consider it for the first time on appeal.9
NOW, THEREFORE, IT IS ORDERED that the Motion to Affirm is
GRANTED and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura
Justice
8
See generally City of Lewes v. Nepa, 212 A.3d 270, 279 (Del. 2019) (holding that statute
providing that a board of adjustment “may” grant a variance did not create a statutory obligation
to grant a variance, and contrasting permissive meaning of “may” with mandatory meaning of
“shall”).
9
DEL. SUPR. CT. R. 8.
5
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6286
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRAVIS LE-RON CARRINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:00-cr-00388-JRS-2)
Submitted: May 7, 2012 Decided: May 16, 2012
Before GREGORY, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Travis Le-Ron Carrington, Appellant Pro Se. Stephen Wiley
Miller, Assistant United States Attorney, Nicholas Stephan
Altimari, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Travis Le-Ron Carrington appeals the district court’s
order denying a reduction in his sentence under 18 U.S.C.
§ 3582(c)(2) (2006). We have reviewed the record and find no
reversible error. Accordingly, we affirm for the reasons stated
by the district court. See United States v. Carrington, No.
3:00-cr-00388-JRS-2 (E.D. Va. Jan. 24, 2012). We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL D. CULBERSON,
Plaintiff-Appellant,
v. No. 95-2068
H. E. WARREN,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CA-95-92-2)
Submitted: May 14, 1996
Decided: May 29, 1996
Before HAMILTON and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Stephen J. Burgess, STEINGOLD & BURGESS, Virginia Beach,
Virginia, for Appellant. Michael F. Imprevento, SACKS, SACKS &
IMPREVENTO, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael D. Culberson filed a 42 U.S.C. § 1983 (1988) action alleg-
ing that H.E. Warren, the Defendant, arrested him without probable
cause on August 30, 1992. On that date Culberson and three friends
entered a Denny's restaurant around 2:00 a.m. and ordered drinks and
meals. Culberson claims that the service was poor and that his party
did not receive the meals ordered. Culberson complained to the man-
ager and attempted to pay only for the drinks. The restaurant manager
insisted that Culberson pay for the meals. Culberson refused and the
Defendant, a part-time police officer, was called over and Culberson
was arrested. Culberson contends that the Defendant charged him
with defrauding an innkeeper and when the state court magistrate
refused to issue a warrant on those grounds the Defendant changed
the charge to public intoxication and a warrant was issued.
The district court granted summary judgment to the Defendant on
the grounds that he acted pursuant to a valid warrant. Culberson
argues that the subsequently issued warrant is irrelevant in determin-
ing whether there was probable cause to arrest him. Regardless of the
issuance of a warrant, probable cause existed at the time of the arrest.
The Defendant stated in an affidavit that he smelled alcohol on Cul-
berson's breath and about his person, noticed that his eyes were
bloodshot, that he was unsteady on his feet and that he was acting bel-
ligerent. Culberson did not deny the allegation that he was drunk.
Thus, the district court properly granted summary judgment on the
issue of whether probable cause existed to arrest Culberson for being
drunk in public. We reject Culberson's argument that the district court
should have determined whether probable cause existed to arrest him
for defrauding an innkeeper because it was not squarely presented to
the court. Moreover, the argument has no merit because probable
cause existed for the sufficiently related charge of being drunk in pub-
lic. See, e.g. Trejo v. Perez, 693 F.2d 482, 486 (5th Cir. 1982). We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
2
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82 So.2d 698 (1955)
228 La. 423
ENGLISH REALTY COMPANY, Inc.
v.
Mrs. Helene Rabe MEYER et al.
No. 42032.
Supreme Court of Louisiana.
June 30, 1955.
Rehearing Denied October 4, 1955.
Simon Herold, Dimick & Hamilton, Shreveport, for defendants-appellants.
Cook, Clark, Egan, Yancey & King, Shreveport, for plaintiff-appellee.
John Gallagher, Shreveport, for defendant-appellee.
McCALEB, Justice.
Plaintiff, a holding company for a common carrier known as Red Ball Freight Lines, instituted this suit under Article 699 of the Civil Code to obtain a right of passage across certain land, located in the city of Shreveport, owned in indivision by defendants, S. L. Meyer, J. M. Meyer, Mrs. Helene R. Meyer and C. E. Meyer, Jr. The salient facts upon which the cause of action is founded are as follows:
In December of 1950, plaintiff bought for $120,000 an 18-acre tract lying immediately southwest of the right-of-way of the AllenDalzell-Linwood *699 Overpass. This property is bordered on the west by the Texas & Pacific Railroad, which runs in a northerly direction turning east, and fronts on Linwood Avenue, which likewise runs in a northerly direction and then curves west passing over the Texas & Pacific Railroad. Prior to 1953, plaintiff sold to various persons parts of the 18 acres of land, retaining only 4.94 acres situated at the extreme north end of the original 18-acre tract. This acreage forms a triangle, bounded by the railroad right-of-way on one side and the Linwood Avenue approach to the viaduct on the other, and abuts on the south a four-acre tract which plaintiffs sold to defendants [1] for $32,000 on July 26, 1952.
Plaintiff's land has 700 front feet on Linwood Avenue, most of which is below the level of the ramp leading over the viaduct. However, there are approximately 43 front feet at the southern end of the property which are virtually on the same ground level as the adjacent highway.
In its petition, plaintiff sets forth that its property is enclosed and that it has no access to a public road, the nearest public road being Linwood Avenue. It is averred that the only practical way to reach Linwood Avenue is over and through defendants' property and that the governing authorities of the City of Shreveport have decreed that it may not enter Linwood Avenue at any point north of the center line of Dalzell Street (which connects perpendicularly with Linwood Avenue at a point approximately 200 feet south of the division line between plaintiff's and defendants' land). The prayer was for judgment granting a right of passage 30 feet wide (coupled with the right to build and pave a road over same) across the front of defendants' property bordering on Linwood Avenue [2] and, in the alternative, for some other right of passage to be fixed by the court. It was stated in the petition that the granting of the servitude would not damage defendants' property but, if it be found otherwise, then the damages should be fixed and assessed by the court.
Defendants pleaded that plaintiff does not state a cause of action because its land was not enclosed as adequate frontage was available to it for access along Linwood Avenue, on the east, and along the railroad right-of-way on the west of its property and, furthermore, that it had not been prevented by any legally constituted authority from making an entrance into its property from Linwood Avenue. Before this exception was heard, plaintiff amended its petition and joined the City of Shreveport as a party defendant so that the city might be bound by any decision of the court with respect to its denial to plaintiff of the right of access to and use of Linwood Avenue from its property.
Defendants thereupon filed an exception of misjoinder of parties, an exception of prematurity and another exception of no cause of action. These exceptions were overruled and the City of Shreveport answered, stating that it would not allow plaintiff to enter Linwood Avenue at any point north of the center line of Dalzell Street. Defendants then answered, denying plaintiff's right to a servitude across their property and alternatively seeking $40,000 as damages in the event the right of passage was granted.
Following a hearing on the issues thus formed by the pleadings, the trial judge granted plaintiff a servitude 30 feet wide across the front of defendants' property parallel to and adjoining Linwood Avenue and extending from the north boundary of the property to the south line of the intersection of Dalzell Street, subject to the conditions (1) that plaintiff pay defendants damages in the sum of $1,699.47, (2) that plaintiff pave the right-of-way and (3) that said right-of-way be kept open for the use of the public. All of the Meyers *700 have appealed and the City of Shreveport, assuming the position of defendant-appellee, requests that the judgment be affirmed.
We address our immediate attention to the exception of no cause of action filed by defendants.
Article 699 of the Civil Code, upon which plaintiff's action is founded, is the first article of Section 5 of Chapter 3 of Title IV, which pertains to Predial Servitudes. Chapter 3 treats of the servitudes which are imposed by law and Section 5 thereof is specially devoted to the servitude of passage and of way. Article 699, as amended by Act 197 of 1916, provides:
"The owner whose estate is enclosed, and who has no way to a public road, a railroad, a tramroad or a water course may claim the right of passage on the estate of his neighbor or neighbors to the nearest public road, railroad, tramroad or water course and shall have the right to construct a road, railroad or tramway according to circumstances and as the exigencies of the case may acquire [require], over the land of his neighbor or neighbors for the purpose of getting the products of his said enclosed land to such public road, railroad, tramroad or water course, or for the cultivation of his estate, but he shall be bound to indemnify his neighbor or neighbors in proportion to the damage he may occasion." (Italics ours.)
Under their exception of no cause of action, defendants contend that the quoted Article is inapplicable to the case at bar for the reason, among others, that plaintiff's land is not enclosed, as it fronts on a public road, Linwood Avenue, and is bordered on the other side by a railroad right-of-way.
The point appears to be well taken, for, even if it be assumed that defendants are incorrect in their position that the abutment of the land to the railroad property renders the codal article irrelevant to the case, it is difficult to perceive how the property can be adjudged to be "inclosed" when it fronts on Linwood Avenue, a public road. Enclosed estates, as envisioned by the Articles of the Code embraced in Section 5 of Chapter 3 of the Title "Predial Servitudes", means lands shut off from access to public roads and the like by reason of their being entirely surrounded by other lands. This is made clear by Article 700, which provides for the manner in which the right of passage is to be located. It states "The owner of the estate, which is surrounded by other lands, * * *" and Article 702 declares that "A passage must be furnished to the owner of the land surrounded by other lands * * *." Thus, lands abutting a public road cannot be regarded as being within the purview of Article 699.
Counsel for plaintiff profess that the codal article can nonetheless be utilized in this case because the City of Shreveport has designated Linwood Avenue as part of an expressway or as a limited access highway and has denied plaintiff access thereto from its property. It is further contended that, since most of the abutting frontage of 700 fee comprises a ramp or a gradual embankment leading to the overpass and since the remaining 43 feet of the frontage, level with the street, is so near to the elevated portion that use of that frontage for ingress and egress of the Red Ball trucks would create a serious traffic hazard, the refusal of the city to grant plaintiff access to the public road is entirely justified and makes necessary the application of Article 699, as the land is enclosed for all intents and purposes.
These postulations are not impressive. First of all, they would apparently disregard the well-settled jurisprudence that neither the State nor its political subdivisions has the legal right to deny an abutting property owner all access to the adjoining highway.
In State ex rel. Gebelin v. Department of Highways, 200 La. 409, 8 So.2d 71, 75, this court had before it a suit by the owners of land contiguous to the Jefferson Highway to compel the Department of Highways to grant them access from their land to the *701 highway. The lower court had ordered that six places of entrance be provided on the north side and four places on the south side and it was asserted, inter alia, on appeal that the Department of Highways had the right to refuse all access to the adjoining property. But this contention was rejected, the court citing as its authority the pronouncements of the Supreme Court of the United States and the courts of last resort of many States, and quoting approvingly the rule of law as stated in the case of Genazzi v. Marin County, 88 Cal.App. 545, 263 P. 825, 826, thus:
"`Generally speaking, an abutting landowner on a public highway has a special right of easement and user in the public road for access purposes, and this is a property right of easement which cannot be damaged or taken from him without due compensation. But an owner is not entitled, as against the public, to access to his land at all points in the boundary between it and the highway, although entire access cannot be cut off. If he has free and convenient access to his property, and his means of ingress and egress are not substantially interfered with by the public, he has no cause of complaint.'" (Italics ours.)
The foregoing demonstrates, we believe, the unsuitability of Article 699 in any case wherein the land alleged to be enclosed borders on a public road. In such matters, the abutting proprietor has his remedy against the public authority and its refusal to accede to a demand for access, even if justified, does not warrant the invocation of Article 699 of the Code on the theory that such denial of access creates an enclosure and that, therefore, the adjoining land must be burdened with a servitude in order that passage to the same public road may be assured.
In the case at bar, the record indicates that the purchase of the original 18 acres of land by plaintiff in 1950 was subsequent to the erection of the overpass and the embankment leading to it on Linwood Avenue. When it held that acreage, plaintiff had unhampered access to the public road as it is to be presumed that the City of Shreveport would have accorded it suitable entrance and exits to and from its property even though Linwood Avenue is a limited access facility. However, if plaintiff, by reason of the various property sales it has made, now finds itself in the position of holding acreage fronting that part of the overpass approach to which the City of Shreveport might be justified in refusing to grant it access from its property, it is nevertheless not entitled to claim passage over defendants' property as the situation respecting access of which it now complains was wholly created by its own act. Such circumstances, even if actual enclavement results, do not warrant the application of Article 699 of the Code as the property still borders on a public road and its enclosure is not a direct consequence of the location of the land but of the act of the party seeking the relief.
It is our opinion that the exception of no cause of action is well founded and it is now sustained.
The judgment appealed from is reversed and plaintiff's suit is dismissed at its costs.
NOTES
[1] Charlton E. Meyer, one of the original purchasers, died in 1953 and the defendants, Mrs. Helene R. Meyer and C. E. Meyer, Jr., are his successors.
[2] Plaintiff intends to have Red Ball Motor Freight Lines operate a truck terminal on the premises. This enterprise will require a spacious entrance and exit to accommodate the large trucks engaged in freight hauling.
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524 Pa. 34 (1990)
568 A.2d 1235
COMMONWEALTH of Pennsylvania, Appellant,
v.
Leslie C.X. BEASLEY, Appellee.
Supreme Court of Pennsylvania.
Argued October 26, 1989.
Decided January 26, 1990.
*35 Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Helen Kane, for appellant.
Hugh C. Clark, Philadelphia, for appellee.
Before LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.
OPINION OF THE COURT
LARSEN, Justice.
The issue presented in this case is whether the Superior Court erred in setting aside the appellee's sentence of death, because of prosecutorial remarks about the appellate process made in closing argument during the penalty phase of the trial.
Appellee, Leslie Beasley, was convicted by a jury of first degree murder and sentenced to death. On direct appeal this Court affirmed the judgment of sentence. Commonwealth v. Beasley, 504 Pa. 485, 475 A.2d 730 (1984). On August 26, 1984, Beasley filed a collateral appeal under the post conviction hearing act (PCHA) which was denied by the *36 trial court. Beasley appealed the trial court's order to the Superior Court.[1] Upon determining that defense counsel was ineffective in failing to object to the prosecutor's remarks about the appellate process, and that such remarks were "inherently prejudicial", Superior Court, 377 Pa.Super. 64, 541 A.2d 1148, set aside Beasley's sentence of death. The Commonwealth petitioned this Court for allowance of appeal. We granted allocatur and now reverse.
In his appeal to the Superior Court, Beasley argued that the following remarks of the prosecutor were objectionable:
Now, considering that, that is all I ask you to do and I ask you to remember this. The same law, the very same law that I was held and restricted and guided by in order to put my evidence, on, in order to in fact, which prevented the introduction of that murder, the same law that will provide this particular defendant with merit, with numerous, with almost endless appeals to all levels in the court system in this case, and he has a right to all of those appeals, an absolute right to all of them, when, can you remember was the last to let you know now about the appeals, when, can you remember was the last person who was executed in Pennsylvania? When?
N.T. April 6, 1981, pp. 1694-1695.
In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) the United States Supreme Court set forth a standard for determining when remarks about the appellate process, made during the penalty phase in a capital case, constitute reversible error. That Court concluded that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere". Id. at 328-329, 105 S.Ct. at 2639-40.
*37 Relying upon the United States Supreme Court's holding in Caldwell, this Court in Commonwealth v. Baker, 511 Pa. 1, 511 A.2d 777 (1986) held that prosecutorial remarks that "minimize the jury's sense of responsibility for a verdict of death" and "minimize their expectations that such a verdict would ever be carried out" constitute reversible error. Id., 511 Pa. at 20, 511 A.2d at 787.
In Baker the prosecutor made the following objectionable remarks:
Let me give you an example when I say capital punishment and the rights of the individual. The last person that was executed in this state was Elmo Smith and his crime was in 1959; Mary Anne Mitchell in 1959, in Manyunk. Remember it? Well, it was in the newspapers. He was the last person that was executed in 1963. You get an appeal after appeal after appeal, if you think the Supreme Court is going to let anybody get executed until they're absolutely sure that that man has a fair trial make no mistake about that. I'm not going to go any further.
I just want you to understand that once you leave, that this man is not going to have the switch pulled in a matter of hours. That just doesn't happen. It goes on and on and on. I'm not going to sit here and tell you what the system is all about.
. . . but just understand this, no matter what your decision is, ladies and gentlemen, it will be and I can assure you as much as I am standing here right now, there will be considerable time and considerable appeals to be before any kind of finality occurs in this particular action.
Id., 511 Pa. at 20-21, 511 A.2d at 787 (emphasis added). In Baker we concluded that since the jury had reported that it was hopelessly deadlocked and later, but before the verdict had been rendered, had asked the trial judge whether aggravating and mitigating circumstances had to be weighed in considering a life sentence, the reluctant jurors might well have been swayed toward the death penalty *38 because of the remarks of counsel for the Commonwealth. Thus, we set aside the death penalty and remanded the case to the trial court for the imposition of a life sentence.
Subsequent to our decision in Baker, this court addressed this same issue in Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989). In Abu-Jamal, we held that the following remarks "did not create a risk that the jury would abdicate `the awesome responsibility' of deciding the appropriateness of the sentence of death" and thus, affirmed the sentence of death. Id., 521 Pa. at 210, 555 A.2d at 854. The prosecutor in Abu-Jamal stated as follows:
[Y]ou as a unit are in a position of deliberating and reaching a decision and a decision of finality to a certain degree. If your decision of course were to acquit, to allow the Defendant to walk out, that is fine. There is nothing I can do and there is nothing that the judge or anyone could do that would affect that in any way.
If you would find the defendant guilty of course there would be appeal after appeal and perhaps there could be a reversal of the case, or whatever, so that may not be final. Nonetheless the action which you have is immense, extremely important.
Id., 521 Pa. at 206, 555 A.2d 854. In Abu-Jamal we determined that each case involving prosecutorial remarks about the appellate process must be evaluated in light of the circumstances peculiar to that case. In so evaluating Abu-Jamal we distinguished it from Baker on three bases:
1) Absent from the remarks in Abu-Jamal were statements that the Supreme Court would not let anyone be executed until absolutely certain that the defendant received a fair trial.
2) In Abu-Jamal, unlike Baker, the remarks were invited by the defense counsel's argument, were within the bounds of proper response and did no more than suggest that the jury's decision, was part of the law that governs the case.
3) In Abu-Jamal unlike Baker the jury did not report that it was "hopelessly deadlocked" on the proper sentence, *39 did not indicate confusion concerning aggravating and mitigating circumstances and thus the "potential was not great that a wavering juror might assent to a verdict" because he believed the Supreme Court would re-examine it.
In evaluating the prosecutor's remarks in the present case,[2] in light of its particular circumstances, it is clear that the Superior Court erred in setting aside the sentence of death. Although the remark that Beasley would have "endless appeals to all levels of the court system," and the reference to the last execution in Pennsylvania, were irrelevant and unnecessary, they did not lessen the jury's sense of responsibility as the ultimate arbiter of the sentence to be imposed. Like Abu-Jamal, the present case is distinguishable from Baker.
First, the prosecutor here did not suggest that this court would make the final decision concerning the sentence to be imposed. Instead the prosecutor referred to the appeal process in general as it relates to the law that guides and governs the case. In fact, the prosecutor reminded the jury that the fact that Beasley had the right to appeal the case did not mean "that the effect of [its] vote is any less". N.T. April 6, 1981, p. 1695.
Second, the trial judge, in his charge, impressed upon the jury that it was not merely recommending a punishment but was "fixing the punishment at death or life imprisonment":
Now the verdict is for you, members of the jury. Remember that you are not merely recommending a punishment. The verdict you return will actually fix the punishment at death or life imprisonment.
N.T. April 6, 1981, p. 1719.
Third, the prosecutor's remarks could not have affected the verdict. Following closing arguments, the jury deliberated and unanimously found no mitigating circumstances and two aggravating circumstances: (1) that the victim was *40 a police officer killed in the performance of his duties, 42 Pa.C.S.A. § 9711(d)(1); and (2) that the defendant had a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S.A. § 9711(d)(10). (This would mark Beasley's third conviction for homicide and second death sentence.) Under this scenario, the sentence of death was mandated by statute the jury having never engaged in the weighing process, required by statute, in a case where the jury finds both aggravating and mitigating circumstances.[3] Moreover, this is not a case like Baker where the jury displayed confusion as to whether aggravating or mitigating circumstances had to be weighed in considering a life sentence and where the chance was great that a hesitant juror may have acquiesced in the imposition of the death penalty.[4]
We reverse the order of the Superior Court and reinstate the sentence of death.
NIX, C.J., did not participate in the consideration or decision of this case.
ZAPPALA, J., filed a concurring opinion.
*41 ZAPPALA, Justice, concurring.
I concur in the judgment.
In Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989), we went to some lengths to demonstrate that the prosecutor's remarks were reasonable response to defense counsel's arguments. I find no similar circumstance here. In Abu-Jamal we further found that the prosecutor's argument, as a whole and in context, did not create a risk that the jury would abdicate to the reviewing courts its responsibility to determine sentence. Here, the prosecutor's argument was tainted throughout, even incorrectly suggesting to the jury that a life sentence carried the possibility of parole. Nevertheless, because the jury ultimately found two aggravating circumstances, which were incontestable matters of fact, and no mitigating circumstances, the sentence of death was required under 42 Pa.C.S. § 9711(c)(iv), and cannot be said to be a product of the prosecutor's improper remarks. See Commonwealth v. Crawley, 514 Pa. 539, 559-60, 526 A.2d 334, 344-45 (1987).
NOTES
[1] The Post Conviction Hearing Act (PCHA) has since been repealed and re-enacted as the Post Conviction Relief Act. (PCRA) P.L. 336, No. 47 § 3, 42 Pa.C.S.A. § 9541 et seq. as amended, April 13, 1988. A final order under the PCRA in a death penalty case is no longer appealed to the Superior Court but is appealed directly to the Supreme Court. 42 Pa.C.S.A. § 9546(d).
[2] We note that the prosecutor in this case was the same prosecutor in both Baker and Abu-Jamal.
[3] Our Sentencing Code provides as follows:
The verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstances or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases.
42 Pa.C.S.A. § 9711(c)(iv).
[4] Notwithstanding the fact that there was no prejudice in this case, we find that comments about the appellate process directed to the jury during a criminal trial are totally irrelevant to any issue involved in such proceeding. Whether prosecutorial remarks result in a finding of prejudice in some cases and not in others, appellate review is nevertheless, necessitated each time a prosecutor utters a remark about the appeal process. This wastes judicial time, and resources all for naught. Therefore, we now, pursuant to our supervisory powers, adopt a per se rule precluding all remarks about the appellate process in all future trials. We do so in the interest of justice, judicial economy and integrity of the system and to provide clear-cut guidance to trial judges and members of the bar.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6848
JAMARR DURAN BRINKLEY,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director of Virginia Department of
Corrections,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Norman K. Moon, Senior
District Judge. (7:14-cv-00318-NKM-RSB)
Submitted: October 15, 2015 Decided: October 19, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jamarr Duran Brinkley, Appellant Pro Se. Craig Stallard,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jamarr Duran Brinkley seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2254 (2012) petition.
The order is not appealable unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(A) (2012). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
We have independently reviewed the record and conclude that
Brinkley has not made the requisite showing. Accordingly, we
deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
2
presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED
3
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United States Court of Appeals
for the Federal Circuit
__________________________
ASHBURN BYWATERS, CARL LANCASTER,
BETTY L. HOHENBERGER, ORMAN RODERICK,
JUNE RODERICK, AND NAN O. BEELER,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2011-1032
__________________________
Appeal from the United States District Court for the
Eastern District of Texas in case no. 99-CV-0451, Judge
Leonard Davis.
___________________________
Decided: March 1, 2012
___________________________
KATHLEEN C. KAUFFMAN, Ackerson Kauffman Fex,
PC, of Washington, DC, argued for plaintiffs-appellants.
On the brief was CECILIA FEX.
ELLEN J. DURKEE, Attorney, Appellate Section, Envi-
ronment & Natural Resources Division, United States
Department of Justice, of Washington, DC, argued for
defendant-appellee. With her on the brief was IGNACIA S.
MORENO, Assistant Attorney General.
BYWATERS v. US 2
__________________________
Before RADER, Chief Judge, PLAGER and DYK, Circuit
Judges.
Opinion for the court filed by Circuit Judge DYK. Dissent-
ing opinion filed by Circuit Judge PLAGER.
DYK, Circuit Judge.
This case presents the question of when a district
court may reduce the “lodestar” calculation of reasonable
attorneys’ fees to account for the “amount involved and
results obtained” or other factors. Although the district
court here did an exemplary job, we conclude that two
errors require a remand. First, while the district court
may reduce the lodestar figure to account for the “amount
involved and results obtained” and other factors in rare
and exceptional circumstances, we conclude that the
district court erred here by taking these factors into
account after calculating the lodestar figure, rather than
as a part of the lodestar calculation itself. We also hold
that the district court should have used forum rates in
determining the reasonable hourly rate for the lodestar
calculation. Accordingly, we vacate and remand for
further proceedings consistent with this opinion.
BACKGROUND
The United States has waived its sovereign immunity
with respect to constitutional claims, including govern-
ment takings claims arising under the Fifth Amendment.
See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1). The United States
Court of Federal Claims has exclusive jurisdiction over
such claims where the amount in controversy is greater
than $10,000, § 1491(a)(1) (the “Tucker Act”), but shares
jurisdiction with the district courts where the amount in
controversy does not exceed $10,000, § 1346(a)(2) (the
3 BYWATERS v. US
“Little Tucker Act”). In actions brought under the Tucker
Act or the Little Tucker Act in which a plaintiff is
awarded compensation for the taking of property, the
Uniform Relocation Assistance and Real Property Acqui-
sition Policies Act of 1970 (“URA”) provides for the recov-
ery of “such sum as will in the opinion of the court or the
Attorney General reimburse such plaintiff for his reason-
able costs, disbursements, and expenses, including rea-
sonable attorney . . . fees, actually incurred because of
such proceeding.” 42 U.S.C. § 4654(c).1
This case involves takings compensation claims
brought by appellants against the United States. On May
23, 2000, following the transfer of their compensation
claims to the United States District Court for the Eastern
District of Texas, Plaintiff-Appellant Ashburn Bywaters
and other named plaintiffs (collectively, “appellants”),
represented by counsel based in Washington, DC, filed an
amended class action complaint on behalf of themselves
and all others similarly situated, alleging that they were
the owners of interests in land constituting part of a
railroad corridor (the “Chaparral rail corridor”) that had
been converted for trail use by the Interstate Commerce
Commission pursuant to the National Trails System Act
1 42 U.S.C. § 4654(c) provides, in its entirety: “The
court rendering a judgment for the plaintiff in a proceed-
ing brought under section 1346(a)(2) or 1491 of Title 28,
awarding compensation for the taking of property by a
Federal agency, or the Attorney General effecting a set-
tlement of any such proceeding, shall determine and
award or allow to such plaintiff, as a part of such judg-
ment or settlement, such sum as will in the opinion of the
court or the Attorney General reimburse such plaintiff for
his reasonable costs, disbursements, and expenses, in-
cluding reasonable attorney, appraisal, and engineering
fees, actually incurred because of such proceeding.”
BYWATERS v. US 4
(“Trails Act”), 16 U.S.C. § 1247(d). 2 The Trails Act is
designed to preserve railroad rights-of-way by converting
them into recreational trails. Actions by the government
pursuant to the Trails Act can result in takings liability
where the railroad acquired an easement from the prop-
erty owner, the railroad’s use of the property ceased, and
the government’s action under the Trails Act prevented
reversion of the property to the original owner. See
Preseault v. United States, 100 F.3d 1525, 1550-52 (Fed.
Cir. 1996) (en banc); see also Caldwell v. United States,
391 F.3d 1226, 1228 (Fed. Cir. 2004).
On August 25, 2000, the district court certified a class
consisting of all persons who owned an interest in land
constituting the Chaparral rail corridor extending from
Farmersville, Texas, to Paris, Texas, that was converted
to trail use pursuant to the Trails Act, and whose claims
did not exceed $10,000 per claim. On April 17, 2003, the
government stipulated to takings liability with respect to
those claims for segments of the Chaparral rail corridor in
which the railroad acquired only an easement. 3 From
2 16 U.S.C. § 1247(d) provides, in relevant part:
“Consistent with the purposes of [the Railroad Revitaliza-
tion and Regulatory Reform Act of 1976], and in further-
ance of the national policy to preserve established
railroad rights-of-way for future reactivation of rail ser-
vice, to protect rail transportation corridors, and to en-
courage energy efficient transportation use, in the case of
interim use of any established railroad rights-of-way . . . ,
such interim use shall not be treated, for purposes of any
law or rule of law, as an abandonment of the use of such
rights-of-way for railroad purposes.”
3 The agreement between the parties recognized
that there was no takings liability where the original
owner had conveyed the property to the railroad in fee
simple. See Preseault, 100 F.3d at 1533.
5 BYWATERS v. US
2003 to 2009, the parties cooperated to determine the
amount of just compensation to be paid to the members of
the class.
On July 31, 2009, the parties proposed a settlement
agreement that resolved all issues in the case, except for
the amount of attorneys’ fees and costs to be awarded
under the URA. The district court approved the proposed
settlement after finding that the proposed settlement
would secure 100% of the just compensation due to class
members with eligible claims, subject to the $10,000
jurisdictional cap of the Little Tucker Act. Under the
settlement, appellants’ total recovery was $1,241,385.36,
including pre-judgment interest.
Following settlement, appellants filed a claim for at-
torneys’ fees under the URA, requesting attorneys’ fees in
the amount of $832,674.99, which included 2,119.69 hours
of work from August 1999, when the case was transferred
to the Eastern District of Texas, to December 2009.
Appellants also urged the district court to determine the
appropriate amount of attorneys’ fees by applying market
rates for the District of Columbia, where appellants’
counsel practiced, rather than rates charged by attorneys
in the forum where the case was brought (the Eastern
District of Texas). In response, the government argued
for application of the forum rule. The government also
argued for the reduction of the fees claimed based on
various grounds, including that the hours claimed were
unreasonable in light of the government’s stipulation to
liability early in the case, and the fact that a fee agree-
ment between appellants and their counsel provided for
the award of attorneys’ fees calculated at the greater of
counsel’s regular hourly rate or one third of appellants’
total recovery.
BYWATERS v. US 6
The district court, applying Federal Circuit law, de-
termined the amount of attorneys’ fees to be awarded
under the “lodestar” approach, i.e., by multiplying the
number of hours reasonably expended by a reasonable
hourly rate. In determining the lodestar figure, the
district court first considered the hours requested by
appellants and the government’s objections and deter-
mined that only 18.2 hours spent drafting and filing an
amicus brief were unreasonable. Accordingly, the court
reduced the amount of hours requested by appellants by
18.2 hours. The court next determined that the relevant
market for determining the reasonable hourly rate was
the District of Columbia and applied the Updated Laffey
Matrix 4 to determine the reasonable hourly rates for
complex litigation. Accordingly, the district court deter-
mined that “multiplying the number of hours reasonably
expended by the reasonable hourly rate using the Up-
dated Laffey Matrix” yielded a lodestar figure of
$826,044.19. Bywaters v. United States, No. 6:99-CV-451,
2010 WL 3212124, at *4 (E.D. Tex. Aug. 12, 2010) (here-
inafter “Attorneys’ Fees Order”).
However, calculation of the lodestar figure did not end
the district court’s inquiry. The district court found that
4 The “Updated Laffey Matrix” is a billing survey of
District of Columbia market rates. The survey was
conducted in 1988-1989 and has been recalculated in
subsequent years using a methodology advocated by
economist Dr. Michael Kavanaugh. The Updated Laffey
Matrix has been used by the United States District Court
for the District of Columbia to determine the amount of a
reasonable attorney fee on several occasions. See, e.g.,
Salazar v. District of Columbia, 123 F. Supp. 2d 8, 15
(D.D.C. 2000) (“[T]he Court concludes that the updated
Laffey matrix more accurately reflects the prevailing rates
for legal services in the D.C. community.”).
7 BYWATERS v. US
the factor of “amount involved and results obtained” was
not adequately taken into account in determining a
reasonable fee. The district court reasoned that the
lodestar figure would yield an award of attorneys’ fees
that was 66.5% of the total relief awarded to appellants,
which was “extremely high considering the amount at
stake in this case and the actual results obtained.” Id.
The district court observed that “[o]verlooking the large
disparity between Plaintiffs’ award and the lodestar
figure would only encourage protracted litigation.” Id.
The court also concluded that the work performed by
appellants’ counsel was “administrative in nature and did
not require a high level of legal skill.” Id. Finally, the
court noted that the lodestar figure exceeded the amount
calculated under the contingent-fee option in the fee
agreement between appellants and their counsel, which
provided that appellants’ counsel would be compensated
at either “the value of [their] professional services at
[their] regular hourly rate or by multiplying by one third
the amount recovered for the plaintiff class as damages,
whichever is greater.” Id. The court reduced the calcu-
lated lodestar figure by 50%, awarding attorneys’ fees in
the amount of $413,022.10.
Appellants timely appealed the district court’s award
of attorneys’ fees. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(2).
DISCUSSION
Generally, our legal system adheres to the “American
Rule” under which “each party in a lawsuit ordinarily
shall bear its own attorney’s fees.” Hensley v. Eckerhart,
461 U.S. 424, 429 (1983). However, in certain categories
of cases Congress has carved out exceptions to the Ameri-
can Rule and allowed for recovery of attorneys’ fees. See
Pennsylvania v. Del. Valley Citizens’ Council for Clean
BYWATERS v. US 8
Air, 478 U.S. 546, 561-62 (1986). The fee-shifting provi-
sions of the URA are one such example. See 42 U.S.C.
§ 4654. We have not yet had an occasion to interpret the
fee-shifting provisions of the URA.
I
As a threshold matter we must first determine
whether, in calculating the amount of reasonable attor-
neys’ fees under the URA, we should apply our law or the
law of the regional circuit—here, the Fifth Circuit. Not-
withstanding this court’s exclusive jurisdiction over
Tucker Act and Little Tucker Act appeals, see 28 U.S.C.
§ 1295(a)(2), the government contends that we should
apply Fifth Circuit law in reviewing the district court’s
grant of attorneys’ fees under the URA. Specifically, the
government argues that the district court’s award of
attorneys’ fees is “entirely dependent on Fed. R. Civ. P.
23” and thus implicates procedural issues, rather than the
merits of a takings claim under the Tucker Act. Appel-
lee’s Br. 41. The district court’s award of attorneys’ fees
in this case was quite clearly based upon the mandatory
fee-shifting provision of the URA. Compare Fed. R. Civ.
P. 23(h) (“[T]he court may award reasonable attorney's
fees . . . .” (emphasis added)), with 42 U.S.C. § 4654(c)
(“The court . . . shall determine and award . . . reasonable
attorney . . . fees . . . .” (emphasis added)). The award of
fees thus depends on construction of the URA and not
Rule 23.
Additionally, the government argues that because we
do not have exclusive jurisdiction over all claims arising
under the URA generally, Federal Circuit law should not
apply. The URA provides for the award of “reasonable”
attorneys’ fees in two separate circumstances. First,
attorneys’ fees may be awarded where the government
initiates a condemnation proceeding that results in either
9 BYWATERS v. US
a final judgment that the government may not acquire the
property by condemnation or abandonment of the proceed-
ing by the government. § 4654(a). Such cases are liti-
gated in the district courts and appealed to the regional
circuits. See, e.g., United States v. 122.00 Acres of Land,
856 F.2d 56, 58-59 (8th Cir. 1988) (reviewing a district
court’s award of fees pursuant to section 4654(a)). Sec-
ond, attorneys’ fees may also be awarded where, as in this
case, a property owner brings an inverse condemnation
action under the Tucker Act or the Little Tucker Act
alleging a government taking under the Fifth Amendment
and that action results in an award of compensation for
the taking. § 4654(c). We have exclusive appellate juris-
diction in such cases. See 28 U.S.C. § 1295(a)(2). We are
concerned here only with the second provision, section
4654(c).
While we do not have exclusive jurisdiction in all
cases arising under section 4654 of the URA, the fee-
shifting provision at issue here—section 4654(c)—is
applicable only to government takings claims brought
under the Tucker Act or the Little Tucker Act, cases that
are within our exclusive jurisdiction. In Heisig v. United
States, 719 F.2d 1153 (Fed. Cir. 1983), we held that
district courts adjudicating claims under the Little Tucker
Act should apply the law of the Federal Circuit, rather
than regional circuit law. We noted that “[l]ogic, as well
as the express congressional desire for uniformity, dictate
that similar standards of review and the precedents of
this circuit should obtain in a proceeding in a district
court that is substantially identical, except for jurisdic-
tional amount, to one in the Claims Court.” Id. at 1156;
see also United States v. Hohri, 482 U.S. 64, 71 (1987) (“A
motivating concern of Congress in creating the Federal
Circuit was the special need for nationwide uniformity in
certain areas of the law.” (internal quotation marks
BYWATERS v. US 10
omitted)). Furthermore, we have consistently applied our
law to claims for attorneys’ fees under section 285 of the
Patent Act because section 285 relates to an area of
substantive law within our exclusive jurisdiction. See,
e.g., Q-Pharma, Inc. v. Andrew Jergens Co., 360 F.3d
1295, 1299 (Fed. Cir. 2004); see also 35 U.S.C. § 285.
Here too attorneys’ fees were awarded pursuant to a
statutory fee-shifting provision that relates only to cases
brought pursuant to the Tucker Act and the Little Tucker
Act, an area within our exclusive jurisdiction. In light of
“the evident congressional desire for uniform adjudication
of Little Tucker Act claims” and Tucker Act claims, Hohri,
482 U.S. at 73, we hold that our law, rather than the law
of the regional circuit, should apply to an award of attor-
neys’ fees under section 4654(c).
II
While we have not yet interpreted section 4654(c), the
Supreme Court has advised that all federal fee-shifting
statutes calling for an award of “reasonable” attorneys’ fee
should be construed “uniformly.” City of Burlington v.
Dague, 505 U.S. 557, 562 (1992); see also Indep. Fed’n of
Flight Attendants v. Zipes, 491 U.S. 754, 758 n.2 (1989)
(“We have stated in the past that fee-shifting statutes’
similar language is ‘a strong indication’ that they are to
be interpreted alike.” (quoting Northcross v. Memphis Bd.
of Educ., 412 U.S. 427, 428 (1973))); Hubbard v. United
States, 480 F.3d 1327, 1333 (Fed. Cir. 2007). Nothing in
the language or legislative history of the URA suggests
that it should receive a different construction than other
fee-shifting statutes.
Generally, in determining the amount of reasonable
attorneys’ fees to award under federal fee-shifting stat-
utes, the district court is afforded considerable discretion.
See Hensley, 461 U.S. at 437; see also 42 U.S.C. § 4654(c)
11 BYWATERS v. US
(providing for an award of attorney fees that will “in the
opinion of the court” reimburse plaintiffs for reasonable
expenses actually incurred (emphasis added)). This
deference results from “the district court’s superior un-
derstanding of the litigation and the desirability of avoid-
ing frequent appellate review of what essentially are
factual matters.” Hensley, 461 U.S. at 437. In this case,
the district court carefully and thoughtfully considered
the submissions of the parties, including over forty pages
of billing records submitted by appellants in support of
their fee application. In calculating the lodestar figure
and subsequently reducing that figure, the district court
candidly acknowledged the reasons for its decision. It
may well be that the amount awarded by the district
court will turn out to be the correct amount. While we
think the district court’s approach was largely correct, we
think a remand is nonetheless required because the
district court’s analysis was incorrect in two respects.
First, the district court should have considered the
“amount involved and results obtained” as well as the
administrative nature of the work and the fee agreement
in determining the lodestar figure, rather than applying
these factors after calculation of the lodestar figure.
Second, the district court was required to apply the forum
rule in determining the reasonable hourly rate for the
relevant market.
III
We first consider the district court’s adjustment to the
lodestar figure. In determining the amount of reasonable
attorneys’ fees under federal fee-shifting statutes, the
Supreme Court has consistently upheld the lodestar
calculation as the “guiding light of [its] fee-shifting juris-
prudence.” Perdue v. Kenny A. ex rel. Winn, 130 S. Ct.
1662, 1672 (2010) (quoting Gisbrecht v. Barnhart, 535
U.S. 789, 801 (2002)). Although there is a “strong pre-
BYWATERS v. US 12
sumption” that the lodestar figure represents a “reason-
able” attorney fee, Dague, 505 U.S. at 562, the Supreme
Court has recognized a district court’s discretion to adjust
the lodestar figure “upward or downward” based upon
other considerations, Del. Valley, 478 U.S. at 564 (quoting
Hensley, 461 U.S. at 434). However, adjustments to the
lodestar figure “are proper only in certain ‘rare’ and
‘exceptional’ cases, supported by both ‘specific evidence’ on
the record and detailed findings by the lower courts.” Id.
at 565; see also Perdue, 130 S. Ct. at 1673 (reaffirming
that enhancements to the lodestar figure may be awarded
in only “rare” and “exceptional” circumstances). Adjust-
ments are warranted only where the lodestar figure fails
to take into account a relevant consideration. As the
Supreme Court recently stated, “an enhancement may not
be awarded based on a factor that is subsumed in the
lodestar calculation.” Perdue, 130 S. Ct. at 1673 (citations
omitted). The question is whether the “amount involved
and results obtained” in this case warranted an adjust-
ment.
We note initially that the Supreme Court has not al-
ways been clear about what is encompassed within the
category of “amount involved and results obtained”—that
is, whether it refers to the absolute level of success or the
proportionate level of success (percentage of recovery on
the initial claim). In truth, even though this case involves
an adjustment for the absolute level of success, it seems to
make little difference in the mandated approach. As the
Supreme Court standards have evolved, neither an ad-
justment for the absolute or proportionate level of success
is appropriate absent unusual circumstances. The
“amount involved and results obtained” factor was first
identified as relevant to the attorney fee inquiry as one of
twelve factors—the so-called “Johnson factors”—
considered by the Fifth Circuit in Johnson v. Georgia
13 BYWATERS v. US
Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). 5 In
1983, citing Johnson, the Court initially opined in Hensley
that the district court could, in its discretion, adjust the
lodestar figure “upward or downward” to account for the
“crucial” factor of the “results obtained.” 461 U.S. at 434.
Specifically, the Court noted that in considering this
factor, the district court should “focus on the significance
of the overall relief obtained by the plaintiff in relation to
the hours reasonably expended on the litigation,” but that
there was “no precise rule or formula” for taking this
factor into consideration. Id. at 435-36.
In the years since Hensley, the Supreme Court’s view
on the degree of discretion afforded district courts in
adjusting the lodestar figure has undergone change, thus
cabining the district court’s ability to adjust the lodestar
figure to only “rare” and “exceptional” cases. See Perdue,
130 S. Ct. at 1673. Later cases have made clear that
while the “amount involved and results obtained” remains
a factor to be considered in determining a reasonable
attorney fee, it cannot be a basis for reducing the lodestar
figure where it could have been taken into account in
calculating the lodestar figure in the first instance. In
Blum v. Stenson, 465 U.S. 886 (1984), decided just one
5 The twelve Johnson factors are: (1) the time and
labor required; (2) the novelty and difficulty of the ques-
tions; (3) the skill requisite to perform the legal service
properly; (4) the preclusion of other employment by the
attorney due to acceptance of the case; (5) the customary
fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8)
the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10)
the “undesirability” of the case; (11) the nature and length
of the professional relationship with the client; and (12)
awards in similar cases. Johnson, 488 F.2d at 717-19.
BYWATERS v. US 14
year after Hensley, the Court clarified that while “there
may be circumstances in which the basic standard of
reasonable rates multiplied by reasonably expended hours
results in a fee that is either unreasonably low or unrea-
sonably high,” the lodestar figure is “presumed” to be
reasonable. Id. at 897. The Court also cautioned against
“double counting” factors such as the “amount involved
and results obtained” by adjusting the lodestar figure
where those factors are fully reflected in the reasonable
hourly rate of the attorneys and the reasonable number of
hours expended. Id. at 899-900; see also Dague, 505 U.S.
at 562-63. In particular, the Court noted that “[b]ecause
acknowledgment of the ‘results obtained’ generally will be
subsumed within other factors used to calculate a reason-
able fee, it normally should not provide an independent
basis for increasing the fee award.” Blum, 465 U.S. at
900; see also City of Riverside v. Rivera, 477 U.S. 561, 568-
69 (1986) (plurality opinion) (recognizing that while the
“amount involved and results obtained” may be consid-
ered in determining a reasonable attorney fee, a district
court is not free to mechanically adjust the lodestar figure
downward based on this factor).
Most recently, the Court considered the principles
governing the district court’s authority to adjust the
lodestar figure in Perdue, 130 S. Ct. 1662. In Perdue, the
Court once again endorsed the lodestar method, noting
that it is “readily administrable; and unlike the Johnson
approach, the lodestar calculation is ‘objective,’ and thus
cabins the discretion of trial judges, permits meaningful
judicial review, and produces reasonably predictable
results.” Id. at 1672 (internal citations omitted). Quoting
Blum with approval, the Court also held that as a rule,
the lodestar figure should only be adjusted in “rare” and
“exceptional” cases and may not be adjusted “based on a
factor that is subsumed in the lodestar calculation.” Id. at
15 BYWATERS v. US
1673. A district court seeking to adjust the lodestar
figure must justify its deviation with “specific evidence”
demonstrating that the factors considered are not ade-
quately subsumed within the lodestar calculation. See
Blum, 465 U.S. at 898-900; see also Perdue, 130 S. Ct. at
1676 (“It is essential that the judge provide a reasonably
specific explanation for all aspects of a fee determination,
including any award of an enhancement.”); Del. Valley,
478 U.S. at 565 (noting that modifications of the lodestar
figure should be supported by “detailed findings” by the
lower court). In Perdue, the Court held that the upward
adjustment for “results obtained” was not permissible.
130 S. Ct. at 1676. We see no basis for distinguishing
between an upward adjustment and a downward adjust-
ment for “results obtained.” Neither is permissible absent
unusual circumstances.
Applying the standards set forth in Hensley and later
cases, we find that this case does not present the sort of
“rare” and “exceptional” circumstance where the factor of
“amount involved and results obtained” should be consid-
ered as a basis for departure from the lodestar figure.
The mere fact that the recovery is small in amount is not
a circumstance justifying a reduced fee award. See Millea
v. Metro-North R.R. Co., 658 F.3d 154, 168 (2d Cir. 2011).
The district court’s conclusory statement that the
“‘amount involved and results obtained’ factor [was] not
adequately taken into account” in determining a reason-
able fee, Attorneys’ Fees Order, 2010 WL 3212124, at *4, is
also not sufficient, standing alone, to support a departure
from the lodestar figure. While it is legitimate to consider
the “amount involved and results obtained” in determin-
ing a reasonable attorney fee award, the district court
should have considered this factor when determining the
reasonable number of hours expended and the reasonable
hourly rates of the attorneys. It is axiomatic that attor-
BYWATERS v. US 16
neys almost inevitably consider the amount involved in a
particular case when determining a reasonable number of
hours to expend on any given issue or when allocating
personnel resources based upon the expertise or experi-
ence required. Where only a small amount is at stake, it
certainly would not be reasonable to expend countless
hours on such a small claim or to commit the most experi-
enced or valued attorney in the firm to work on the case.
Thus where the amount involved is small, reductions in
the reasonable number of hours expended or the reason-
able hourly rate can easily be made to reflect this fact. It
is for this reason that the Supreme Court has held that
the “results obtained” factor is generally subsumed within
the lodestar calculation and thus normally should not
provide an independent basis for a departure from the
lodestar figure. Blum, 465 U.S. at 900; see also Perdue,
130 S. Ct. at 1674.
Just as the “amount involved and results obtained”
can readily be incorporated into the lodestar figure, so too
can the administrative nature of the work and the low
level of skill involved, which the district court identified
as alternative bases for reducing the lodestar figure. 6 The
district court’s findings with respect to these factors can
be fairly reflected by reducing the number of hours rea-
sonably expended and the appropriate hourly rates of the
attorneys. See Del. Valley, 478 U.S. at 566 (“Because
considerations concerning the quality of a prevailing
6 We reject appellants’ contention that the work
was not significantly “administrative” in nature. The
district court could properly consider the fact that 917.85
hours of the total 2,119.69 hours requested by appellants
accrued after the government’s stipulation to takings
liability in determining the reasonableness of the number
of hours requested and the appropriate hourly rates of the
attorneys.
17 BYWATERS v. US
party’s counsel’s representation normally are reflected in
the reasonable hourly rate, the overall quality of perform-
ance ordinarily should not be used to adjust the lodestar .
. . .”); Blum, 465 U.S. at 898-99 (“The novelty and com-
plexity of the issues presumably were fully reflected in
the number of billable hours recorded by counsel and thus
do not warrant an . . . adjustment. . . . Neither complexity
nor novelty of the issues, therefore, is an appropriate
factor in determining whether to increase the basic fee
award.”).
Finally, the fee agreement between appellants and
their counsel in this case is not a proper basis for reducing
the lodestar figure, though it may be taken into account in
the lodestar calculation. Unlike many contingent-fee
agreements, the agreement here provides for appellants’
counsel to seek attorneys’ fees calculated as the greater of
either “the value of [their] professional services at [their]
regular hourly rates or by multiplying by one third the
amount recovered for the plaintiff class as damages.” J.A.
602. Thus, the fee agreement did not cap attorneys’ fees
as a percentage of the recovery, and cannot be used to
limit the recovery of attorneys’ fees after determining the
lodestar figure. 7 We nonetheless think that the agree-
ment may be considered in calculating the lodestar figure.
7 In Blanchard v. Bergeron, 489 U.S. 87 (1989), the
Supreme Court construed the language of the fee-shifting
provision of the Civil Rights Act, 42 U.S.C. § 1988, which
provides for recovery of “a reasonable attorney’s fee” to
the prevailing party. The Court held that although the
existence of a contingent-fee agreement could “aid in
determining reasonableness,” such an agreement does not
impose an “automatic ceiling” on an award of attorneys’
fees. Id. at 93. The Court specifically reasoned that
“[s]hould a fee agreement provide less than a reasonable
fee calculated [using the lodestar method], the defendant
should nevertheless be required to pay the higher
BYWATERS v. US 18
In conclusion, the district court should have consid-
ered the “amount involved and results obtained,” as well
as the administrative nature of the work and the fee
agreement, in determining the reasonable number of
hours expended or the reasonable hourly rate. A remand
is therefore necessary. On remand, the district court must
determine the amount of attorneys’ fees, taking into
account the “amount involved and results obtained,” the
administrative nature of the work and the low level of
skill involved, and the fee agreement in calculating the
lodestar figure rather than by reducing the lodestar figure
itself. 8
amount.” Id. However, in Marre v. United States, 38 F.3d
823 (5th Cir. 1994), the Fifth Circuit construed 26 U.S.C.
§ 7430, which provides for the recovery of “reasonable fees
paid or incurred for the services of attorneys” to the
prevailing party in a tax dispute against the United
States. Distinguishing Blanchard based on the differing
statutory language, the Fifth Circuit held that section
7430’s requirement that the fees be “incurred” meant that
an award of attorneys’ fees was limited to that provided
for in a contingent-fee agreement. Marre, 38 F.3d at 829.
We need not decide in this case whether a contingent-fee
agreement providing for fees based on a percentage of the
appellants’ recovery would impose a limit on recovery of
attorneys’ fees under the URA, which similarly requires
that the attorneys’ fees be “actually incurred.” 42 U.S.C.
§ 4654(c).
8 To be clear, the remand is not designed to give the
district court a second chance to adjust the lodestar
amount, but rather to give the district court the opportu-
nity to recalculate the lodestar amount itself to take into
account the factors that the district court mistakenly used
to support the reduction of the lodestar amount.
19 BYWATERS v. US
IV
The second issue in this case is whether the district
court properly applied hourly rates representative of
those charged in the District of Columbia, where appel-
lants’ counsel’s office was located, rather than applying
hourly rates in the forum where the case was brought, the
Eastern District of Texas. The Supreme Court has indi-
cated that the reasonable hourly rates to be applied in
determining the lodestar figure are the “prevailing mar-
ket rates in the relevant community.” Blum, 465 U.S. at
895. However, the Supreme Court has been silent on how
to determine the “relevant community” under the URA or
any other fee-shifting statute. The district court found
that the “relevant community” in this case was the Dis-
trict of Columbia. We disagree.
As we have recognized, “the courts of appeals have
uniformly concluded that, in general, forum rates should
be used to calculate attorneys' fee awards under other fee-
shifting statutes.” Avera v. Sec’y of Health & Human
Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). 9 In Avera,
we considered whether, in awarding attorneys’ fees under
the National Vaccine Injury Compensation Program, 42
U.S.C. § 300aa–10 to –34 (2000), the relevant community
should be based upon “the prevailing market rate of the
forum court . . . or the prevailing market rate of the
geographic location where the attorney is based.” Id. We
9 See also Alan Hirsch & Diane Sheehey, Awarding
Attorneys’ Fees and Managing Fee Litigation 24 (Fed.
Judicial Ctr. ed., 2d ed. 2005), available at
http://www.fjc.gov/public/pdf.nsf/lookup/attfees2.pdf/$file/
attfees2.pdf (“Most courts consider the forum community
the proper yardstick, so an award for out-of-town counsel
will not be based on the rates in their usual place of
work.”).
BYWATERS v. US 20
held that “to determine an award of attorneys’ fees, a
court in general should use the forum rate in the lodestar
calculation.” Id. at 1349. However, we recognized a
narrow exception to the “forum rule” where “the bulk of
the work is done outside of the [forum] in a legal market
where the prevailing attorneys’ rates are substantially
lower.” Id.
Contrary to appellants’ contention, nothing in Avera
suggests that the forum rate should be disregarded when
plaintiffs elect to retain counsel who are located outside
the forum in a jurisdiction that charges higher rates than
the forum rates. In that situation, the forum rate applies
absent some unusual justification for departing from it.
While we have not yet squarely addressed the issue, we
recognize that several circuits have acknowledged an
exception to the forum rule where local counsel is either
unwilling or unable to take the case. 10 We agree that
10 See, e.g., McClain v. Lufkin Indus., Inc., 649 F.3d
374, 382 (5th Cir. 2011) (“[W]e hold that where . . . abun-
dant and uncontradicted evidence proved the necessity of
[] turning to out-of-district counsel, the co-counsel's ‘home’
rates should be considered as a starting point for calculat-
ing the lodestar amount.”); Interfaith Cmty. Org. v. Hon-
eywell Int’l, Inc., 426 F.3d 694, 705-07 (3d Cir. 2005)
(recognizing two exceptions to the forum rule where (1)
local counsel do not possess the “special expertise” neces-
sary to handle the case; and (2) local counsel is unwilling
to take the case); Rum Creek Coal Sales, Inc. v. Caperton,
31 F.3d 169, 179 (4th Cir. 1994) (allowing for award of
out-of-district rates where “‘the complexity and special-
ized nature of a case may mean that no attorney, with the
required skills, is available locally,’ and the party choos-
ing the attorney from elsewhere acted reasonably in
making the choice”); Gates v. Deukmejian, 987 F.2d 1392,
1405 (9th Cir. 1992) (holding that the district court did
not abuse its discretion by applying exception to the
forum rule where local counsel were unavailable); Polk v.
N.Y. State Dep’t of Corr. Servs., 722 F.2d 23, 25 (2d Cir.
21 BYWATERS v. US
such an exception is appropriate, but we also agree that it
is applicable only in unusual situations. Such exceptions
are permissible only where supported by specific evidence
that no local attorneys possess the “special expertise”
necessary to take the case or that no local attorneys were
willing to take the case. See McClain, 649 F.3d at 382
(application of out-of-district rates appropriate only where
supported by “abundant and uncontradicted evidence”
that out-of-district counsel were necessary); Interfaith
Cmty., 426 F.3d at 705-06; Barjon v. Dalton, 132 F.3d 496,
501-02 (9th Cir. 1997); see also Arbor Hill Concerned
1983) (noting an exception to the forum rule “upon a
showing that the special expertise of counsel from a
distant district is required”); Maceira v. Pagan, 698 F.2d
38, 40 (1st Cir. 1983) (“If a local attorney could perform
the service, a well-informed private client, paying his own
fees, would probably hire local counsel at the local, aver-
age rate. . . . But, if the client needs to go to a different
city to find that specialist, he will expect to pay the rate
prevailing in that city. In such a case, there is no basis for
concluding that the specialist’s ordinary rate is unrea-
sonably high.”); Chrapliwy v. Uniroyal, Inc., 670 F.2d 760,
768 (7th Cir. 1982) (“If a high priced, out of town attorney
renders services which local attorneys could do as well,
and there is no other reason to have them performed by
the former, then the judge, in his discretion, might allow
only an hourly rate which local attorneys would have
charged for the same service. On the other hand, there
are undoubtedly services which a local attorney may not
be willing or able to perform. The complexity and special-
ized nature of a case may mean that no attorney, with the
required skills, is available locally.”); Avalon Cinema
Corp. v. Thompson, 689 F.2d 137, 140-41 (8th Cir. 1982)
(“If a plaintiff can show he has been unable through
diligent, good faith efforts to retain local counsel, attor-
ney's fees . . . are not limited to the prevailing rate in the
district where the case is tried.” (internal quotation marks
omitted)).
BYWATERS v. US 22
Citizens Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d
182, 191 (2d Cir. 2008) (holding that the presumption that
the forum rule should be applied may be rebutted “only in
the unusual case”).
In this case, the only evidence to suggest that an ex-
ception to the forum rule was applicable is Bywaters’s
declaration indicating that the local attorney that he had
originally hired to represent him was unable to help him
in a “complex, specialized area of law” and that the only
attorney he could find to represent him “in the whole
country” was his current District of Columbia-based
counsel. J.A. 539-40. We find Bywaters’s conclusory
declaration to be insufficient. See Schwarz v. Sec’y of
Health & Human Servs., 73 F.3d 895, 907 (9th Cir. 1995)
(holding that exception to forum rule was inapplicable
where the plaintiff’s own declaration, the only evidence in
support of an exception, showed only that she had diffi-
culty obtaining local counsel). 11 There is no evidence to
suggest that no local attorneys were competent to handle
Bywaters’s case. Nor is there any indication that By-
waters conducted a reasonable search for local counsel to
handle his case. While appellants were free to engage
out-of-district counsel to represent them, the government
should not be required to subsidize their decision to do so
under these circumstances. See 10 James Wm. Moore et
al., Moore’s Federal Practice § 54.190[2][b][i][E] (3d ed.
1997 & Supp. 2011). Thus, we hold that an exception to
11 Compare Schwarz, 73 F.3d at 907, with McClain,
649 F.3d at 383 (applying exception where the “the record
[was] replete with affidavits from a variety of expert
employment lawyers who swore that no Texas attorneys
were willing and able to assist in such a large case”).
23 BYWATERS v. US
the forum rule was not warranted in this case. 12 On
remand, the district court should apply the forum rule to
determine the reasonable hourly rate, bearing in mind
appellants’ burden “to produce satisfactory evidence . . .
that the requested rates are in line with those prevailing”
in the forum “for similar services by lawyers of reasonably
comparable skill, experience and reputation.” Blum, 465
U.S. at 896 n.11.
CONCLUSION
For the foregoing reasons, the district court’s award of
attorneys’ fees is vacated and the matter is remanded for
further proceedings consistent with this opinion.
VACATED and REMANDED.
12 Contrary to the dissent, the district court’s choice
of Washington, DC as the relevant community did not
represent fact-finding, but a misunderstanding of this
court’s law. See Attorneys’ Fees Order, 2010 WL 3212124,
at *3 (“Although [the forum rule] may be the law in the
Fifth Circuit, Federal Circuit law is not so restrictive.”).
The plaintiffs of course have the absolute right to choose
their own counsel; what they do not have is the right to
recover Washington, DC rates where competent local
counsel are available.
United States Court of Appeals
for the Federal Circuit
__________________________
ASHBURN BYWATERS, CARL LANCASTER,
BETTY L. HOHENBERGER, ORMAN RODERICK,
JUNE RODERICK, AND NAN O. BEELER,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2011-1032
__________________________
Appeal from the United States District Court for the
Eastern District of Texas in case no. 99-CV-0451, Judge
Leonard C. Davis.
__________________________
PLAGER, Circuit Judge, dissenting.
The majority opinion focuses on two issues in this ap-
peal 1 —first, whether the trial court correctly determined
the amount of attorney fees to which the plaintiffs are
entitled; and second, a subset of that question, was the
trial court correct in using as the relevant market for
pricing attorney services the District of Columbia, rather
than Texas. On the first issue, I agree with the majority
1 The preliminary question addressed by the major-
ity--whose law to apply to the case—seems indisputable; I
concur in their conclusion.
BYWATERS v. US 2
that the trial judge erred in his final calculation of the
amount of reimbursable attorney fees; where we differ is
on what to do about it. On the second issue, I disagree
with the majority’s overriding of the trial court’s factual
determination that the relevant market for these particu-
lar attorney services is the home base of these particular
attorneys.
With regard to the first issue—whether the trial court
correctly determined the amount of reimbursable attorney
fees under this fee-shifting statute—the majority ac-
knowledges the generally fine job the trial court did in
sorting through the evidence, with which I agree; the
majority recites the applicable law; and the majority
concludes that the trial court did err in its final figure. To
that point we are in agreement. How that error should be
corrected, however, is a matter of dispute between us.
Simply stated, the trial court correctly invoked the
controlling lodestar formula; made the required detailed
findings regarding the number of hours reasonably ex-
pended by the plaintiffs’ attorneys; multiplied that by the
reasonable hourly rate using the “Updated Laffey Matrix”
applicable to District of Columbia attorney services; and
came up with a lodestar figure.
The record is undisputed that the trial court deter-
mined that the hours claimed (and awarded with small
adjustment) were reasonable; the court specifically so
found. The trial court properly multiplied those hours by
the reasonable rates it had determined, and then arrived
at what on the record is a reasonable and correct lodestar
award.
Had the trial court stopped there, it would have been
fine. Inexplicably, at least to me, the trial court then
reduced the lodestar award by 50%. Other than noting
that the fee seemed to be “extremely high” in contrast to
3 BYWATERS v. US
the overall award on the merits, the only substantive
basis for such a reduction the trial court mentioned was
the existence of a fee agreement between the plaintiffs
and their attorneys that included a contingent fee option.
Otherwise there is nothing to suggest or support the
reduction in the award.
I agree with my colleagues that “the fee agreement
between appellants and their counsel in this case is not a
proper basis for reducing the lodestar . . . .” Maj. op. at
17. The fee agreement expressly stated that the attor-
neys’ fee could be based on either regular billing hours or
a contingent fee, whichever was greater. We need not
spend undue time reciting the obscure law on contingent
fee considerations to simply acknowledge that under such
an agreement, the possibility of a contingent fee does not
serve as the benchmark for the fee award.
The Supreme Court in Perdue stated that any depar-
ture from the lodestar by the trial court must evidence “a
method [for a different calculation] that is reasonable,
objective, and capable of being reviewed on appeal . . . .”
Purdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1674
(2010). Once the contingent fee is removed from the
calculation, there is nothing in the trial court’s opinion
that meets any of those criteria. More importantly, on the
record in this case I see no reasoned basis for departing
from the lodestar. The attorneys won virtually everything
they set out to win. This is the kind of case that fee
shifting is intended to encourage—many plaintiffs with
small individual claims but a common transgression by
the Government. Congress has made clear that the
award is to be of the “reasonable attorney . . . fees, actu-
ally incurred . . . .” 42 U.S.C. § 4654(c). That the award is
substantial when compared to the total recovery is nei-
ther surprising nor unusual. See Reply Br. 11. Once the
hours expended and fees earned were found reasonable,
BYWATERS v. US 4
the trial court’s work in this phase of the litigation was
concluded. By summarily halving the award, the trial
court misunderstood its job under the statute, and by
acting contrary to law exceeded its authority.
The Supreme Court has wisely said, “[a] request for
attorney’s fees should not result in a second major litiga-
tion. Nor should it lead to years of protracted appellate
review.” Perdue at 1684 (Kennedy, J., dissenting) (citing
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). I would
simply reverse and reinstate the lodestar award, and not
put the trial court to the task of further hearings and this
court to the inevitable further appeals.
Regrettably, the majority proposes instead to remand
the issue to the trial court to again undertake a calcula-
tion of the lodestar, this time however to consider the
“amount involved and results obtained” as part of the
initial lodestar calculation, rather than as an after-
thought. But that won’t work either. As the majority
itself acknowledges, the Supreme Court has made it
abundantly clear that the lodestar controls absent “rare
and exceptional circumstances.” Maj. op. at 2. There is
nothing rare or exceptional about these circumstances,
beyond the trial court’s unfortunate abuse of its discretion
in arbitrarily reducing the lodestar award which it had
determined to be reasonable. On remand, the same
lodestar figure, absent the halving, is the only outcome
the record could support. To remand is just to make work
for the trial court, which it does not need, and to provide
an opportunity for another appeal here, likely of little if
any value to any one. Accordingly, from the decision to
remand for no good purpose I respectfully dissent.
With regard to the second issue--was the trial court
correct in using as the relevant market for pricing these
attorney services the District of Columbia, rather than
5 BYWATERS v. US
Texas--I agree with my colleagues that “in determining
the amount of reasonable attorneys’ fees to award under
federal fee-shifting statutes, the district court is afforded
considerable discretion.” Maj. op. at 10. We defer to the
trial court in so far as possible, and particularly in its fact
finding, given that the trial court is closest to the parties
and to the ebb and flow of the litigation, and given the
legal standard on appeal: we must find an abuse of
discretion to overturn the trial court’s determinations.
At the trial, the plaintiffs explained fully about their
search for the best counsel for this type of specialized
takings litigation. There is no showing that their choice
of this particular counsel, located in Washington D.C.,
was motivated by anything other than a desire to get the
best qualified representation. Under the circumstances,
particularly when much of the legal work was office work
done at the attorneys’ home offices, the simple economic
notion of opportunity-cost would justify using the attor-
neys’ hometown rates. The trial court made that deter-
mination, and found such rates to be reasonable under
the fee-shifting statute. When parties seek justice in the
courts, especially when the Government is the defendant,
neither we nor the Government should be in a position to
challenge a plaintiff’s reasoned choice of private counsel.
In holding to the contrary, the majority fails to grant
the trial court the discretion in fact-finding that the law
provides, and, from the rarified heights of an appellate
court and a distance of a thousand miles, denies these
plaintiffs the right to seek out and employ the best law-
yers they could find to handle a complex class-action
litigation that has now been in dispute for over ten years.
The majority explains this by saying that this is not fact-
finding but a misunderstanding of law, and adding, “[t]he
plaintiffs of course have the absolute right to choose their
own counsel; what they do not have is the right to recover
BYWATERS v. US 6
Washington, D.C. rates where competent local counsel are
available.” Maj. op. at 23, n. 12. One might have thought
that the trial judge was in the best position to ascertain
whether there were local lawyers available with equiva-
lent competencies to the plaintiffs’ chosen lawyers in this
particular field of litigation; ruling that all lawyers are
fungible as a matter of law is for me carrying egalitarian-
ism a bit too far.
Contrary to my colleagues’ position, I would affirm the
trial court’s decision that the basis for determining a
reasonable fee for the services rendered should be the fees
charged in the hometown of the plaintiffs’ chosen attor-
neys (Washington, D.C.) and not what some lawyers
might charge for services rendered at the forum (in this
case Texas). From the majority’s contrary holding, I must
respectfully dissent.
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718 F.2d 1089
Colev.Parlett
83-8129
UNITED STATES COURT OF APPEALS Fourth Circuit
9/19/83
1
E.D.Va.
CPC DENIED--DISMISSED
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275 Pa. Superior Ct. 1 (1980)
418 A.2d 580
COMMONWEALTH of Pennsylvania
v.
Elta SHOWALTER, Appellant.
Superior Court of Pennsylvania.
Submitted April 12, 1979.
Filed February 6, 1980.
*2 Ross E. Cardas, Assistant Public Defender, Mercer, for appellant.
David B. Douds, Assistant District Attorney, Mercer, for Commonwealth, appellee.
Before VAN der VOORT, SPAETH and WATKINS, JJ.
VAN der VOORT, Judge:
Appellant Elta Showalter was charged with aggravated assault[1] as a result of an altercation with Mrs. Stella K. on October 16, 1977. The subject of the altercation was Mrs. K.'s husband. Appellant was tried by a jury, was found guilty of simple assault,[2] and took this direct appeal to our Court. The sole issue for our consideration is whether the lower court erred in refusing to charge the jury on harassment,[3] a crime which appellant argues is a lesser included offense of assault.
At the trial, the victim, Mrs. Stella K., testified that on the evening of October 16, 1977, she went to the apartment of Elta Showalter, where she found Mr. K.'s automobile parked. Mr. K. had been seeing Mrs. Showalter, but prior to *3 this date had promised his wife that he would terminate the relationship. When confronted by his wife upon leaving the apartment, Mr. K. claimed that he had stopped to pick up his clothes, but that appellant had refused to give them to him. Mr. K. proceeded on to work, and Mrs. K. entered the Showalter apartment and requested her husband's clothes. Mrs. Showalter (5' 9" tall, 180 lbs.) refused to give up the clothes, and began to verbally and physically abuse the smaller (5' 4 1/2" tall, 100 lbs.) Mrs. K. When Mrs. K. attempted to leave, appellant blocked the way. Mrs. K. managed to get outside, losing a handful of hair in the process, and managed to descend one flight of stairs without further injury. At a small landing at the bottom of the first flight of outdoor stairs, Mrs. K.'s jacket caught on the railing. Appellant bent Mrs. K. over the railing, putting her knee in the victim's ribs, breaking three of the ribs and puncturing a lung. Mrs. K. testified that appellant, upon being told that she had hurt Mrs. K., replied "Well I'm sorry I didn't finish you off." Mrs. K.'s clothes, with black marks from the railing across the back of the jacket, were exhibited to the jury.
Appellant's version of the incident was slightly different. According to appellant's testimony, Mrs. K. entered appellant's apartment and demanded her husband's clothes. When appellant stated that Mrs. K.'s husband could pick up the clothes himself, Mrs. K. sat down in a chair and refused to leave. Appellant thereupon pulled Mrs. K. out of the chair and down the steps which led to an outer door. While going through this doorway, the victim attempted to kick appellant, and the two women then "went rolling down the stairs." Upon hearing that Mrs. K. was hurt, appellant replied, "I'm sorry, just leave." The jury obviously believed the victim's version of the incident.
Both before and during the trial, counsel for appellant requested that the lower court charge the jury on harassment. The lower court instructed the jury on aggravated assault, simple assault, and assault committed while engaged *4 in a fight or scuffle entered into by mutual consent,[4] but refused to charge the jury on harassment. Appellant raised the issue in written post-trial motions and has thereby preserved the issue for appeal.
There is no duty on the part of a trial judge to charge upon law which has no applicability to presented facts. Commonwealth v. Jordan, 407 Pa. 575, 584, 181 A.2d 310 (1962). If under the evidence presented in a criminal case the defendant must be found guilty of the offense charged or be entitled to an acquittal, the jury need not be instructed as to lower grades to which the evidence does not relate. Commonwealth v. Melnyczenko, 238 Pa.Super. 203, 208, 358 A.2d 98 (1976); Commonwealth v. Dessus, 214 Pa.Super. 347, 363-64, 257 A.2d 867 (1969), allocatur refused. In Melnyczenko, the appellant had burglarized a home and had taken two rings and some change. At trial, the court refused a request to charge the jury on the lesser offense of illegal entry. On appeal, our court upheld the lower court's decision, noting that the mere possibility that a jury might believe part but not all of the testimony of a prosecuting witness is not sufficient to require a court to submit to the jury the issue of a defendant's guilt or innocence of a lesser offense than that which the prosecuting witness testifies has been committed. 238 Pa.Super. at 208-9, 358 A.2d 98.
In the case before us, the evidence indicates that the victim suffered three broken ribs, a punctured lung, and loss of some hair, as a result of an altercation with appellant. The victim's version of the incident indicates that the injuries were caused by appellant intentionally, knowingly, or at the very least, recklessly. Appellant's version is that the injuries were caused accidently as she attempted to get Mrs. K. out of the apartment. Neither version indicates any intent on the part of appellant to "harass, annoy or alarm" the victim. We therefore find no error in the lower court's refusal to charge the jury on the crime of harassment. Melnyczenko, supra.
Judgment of sentence affirmed.
NOTES
[1] 18 Pa.C.S. § 2702.
[2] 18 Pa.C.S. § 2701.
[3] 18 Pa.C.S. § 2709.
[4] 18 Pa.C.S. § 2701(b).
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498 So.2d 616 (1986)
Kenneth Wayne PROCTOR, Appellant,
v.
SWING SET DAY CARE CENTER & SEIBELS, Bruce Group, Appellees.
No. BK-87.
District Court of Appeal of Florida, First District.
December 5, 1986.
*617 Kenneth Wayne Proctor, pro se.
B.C. Pyle, Orlando, for appellees.
WENTWORTH, Judge.
Appellant seeks review of a 10/30/85 workers' compensation order denying temporary total disability (TTD) or temporary partial disability (TPD) benefits from 1977, and denying rehabilitation, on the ground that his claim was barred by the statute of limitations in section 440.28, Florida Statutes.
Appellant contends the true nature and full extent of a back injury he sustained in 1977 was not detected until seven years after the date of the injury. We find that appellant's claim was a subsequent claim for additional compensation governed by section 440.19(2)(a), Florida Statutes, rather than a petition for modification of a prior order under section 440.28, Florida Statutes. As such, the claim was not barred by the two year statute of limitations under section 440.28. We therefore reverse the order.
Appellant in 1977 injured his back while moving furniture and carpeting. A June 12, 1978 order awarded appellant temporary total disability benefits, medical reimbursements, costs and attorney's fees. Appellant on March 3, 1979 received a lump sum payment pursuant to that order. He received no further compensation payments after that date.
Appellant continued to experience back and leg pain from 1977 through 1984, when Dr. Robert Mozingo found appellant to have a herniated disc and recommended surgery. A microdiskectomy and hemilaneotomy were performed in March 1985, and a second diskectomy was performed in April 1986.
Appellant on August 16, 1984 filed a claim or a petition for modification. Appellant's attorney dismissed that claim without a hearing. Appellant, representing himself, on June 11, 1985, again filed a claim designated for "modification", but seeking TTD or TPD benefits and rehabilitation. The employer/carrier voluntarily authorized and offered medical treatment from June 11, 1985 until September 17, 1985, the date of the hearing.
Because the award of compensation in 1978 was limited to temporary disability benefits, appellant's June 1985 claim was not substantively a petition for modification of a prior order. Appellant was not requesting benefits that were specifically denied by or were inconsistent with the prior order, but was instead claiming additional compensation.
Section 440.19(2)(a), Florida Statutes, applies to initial or subsequent claims for compensation. Under that section, a claim must be filed within two years of an injury, except where payment of compensation has been made or remedial treatment has been furnished by the employer without an award, in which case a claim may be filed within two years after the date of the last payment of compensation, or after the date of the last remedial treatment furnished by the employer.
In this case, the employer authorized and provided medical treatment from June 11, 1985 until September 17, 1985, a period clearly not covered by the 1978 order. Under the language of section 440.19(2)(a), as most recently construed, the voluntary payment of compensation or remedial treatment revives the two year limitation period, *618 even if an accrued defense existed at the time of such payment. Daniel v. Holmes Lumber Co., 490 So.2d 1252 (Fla. 1986). Appellant's claim was therefore not barred by the statute.
Reversed.
BOOTH, C.J., and MILLS, J., concur.
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540 So.2d 732 (1989)
SOUTHERN GUARANTY INSURANCE COMPANY
v.
FIRST ALABAMA BANK.
87-604.
Supreme Court of Alabama.
February 10, 1989.
*733 J. Stuart Wallace of Nettles, Barker, Janecky & Copeland, Mobile, for appellant.
Richard T. Dormand and Michael C. White, Johnstone, Adams, Bailey, Gordon & Harris, Mobile, for appellee.
SHORES, Justice.
This case presents a question not previously addressed by this Court, involving Article 4 of our enactment of the Uniform Commercial Code, entitled "Bank Deposits and Collections." The plaintiff, Southern Guaranty Insurance Company (hereinafter "Southern"), appeals from a partial summary judgment in favor of the defendant, First Alabama Bank (hereinafter "FAB").
Southern issued an insurance policy to Bay Paper Company (hereinafter "Bay Paper") insuring it against, among other things, loss from employee dishonesty. Southern brought this action as subrogee of the insured, Bay Paper.
In March 1984, Bay Paper's president, Alan Hirsch, hired Sue Russell as Bay Paper's bookkeeper. Bay Paper did not, as part of the hiring process, perform an extensive background check on Ms. Russell, nor was she a bonded employee. Ms. Russell worked on Bay Paper's payroll account, kept the general ledger, and maintained Bay Paper's payables checkbook. She was solely responsible for Bay Paper's payroll and checking procedures, and she was solely responsible for reviewing the company's bank statements and cancelled checks. Further, she was the only Bay Paper employee responsible for reconciling the company's bank statements with the checking and payroll records.
Bay Paper maintained a payroll checking account at FAB. On April 12, 1985, Ms. Russell opened a personal checking account at FAB. Her signature card indicated that she was employed as Bay Paper's bookkeeper. Beginning in October 1985, Ms. Russell embarked upon a scheme of writing duplicate payroll checks drawn on Bay Paper's payroll account at FAB and made payable to existing Bay Paper employees. Ms. Russell forged the signature of Alan Hirsch, president of Bay Paper, and then forged the indorsements of the payees. She then deposited the checks into her personal checking account.
The first item bearing a forged drawer's signature and a forged indorsement was deposited by Sue Russell on October 20, 1985; FAB included that item in the bank statement made available to Bay Paper on October 31, 1985. Within 14 days following the October 31, 1985, bank statement, Russell deposited one other item bearing a forged drawer's signature and a forged indorsement. The two items totaled $1,430.16. Ms. Russell continued forging Mr. Hirsch's signature and employee indorsements on Bay Paper's payroll checks from October 1985 through April 1986. In all, she deposited $19,045.97 of Bay Paper funds into her personal account at FAB. Neither party disputes that FAB credited Sue Russell's account with the amounts represented by these forged checks, nor that FAB deducted these amounts from Bay Paper's account.
FAB guidelines require tellers to ensure that the indorsement on a check accepted for deposit is the indorsement of the person into whose account the check is being deposited. Neither party disputes that only one of the 25 checks that FAB's tellers accepted for deposit into Ms. Russell's account bore her indorsement. Moreover, 11 of the forged checks that FAB accepted for deposit into Sue Russell's account, including the first two forged checks she deposited, bore restrictive indorsements restricting the checks to deposit for credit of the named payee; nevertheless, FAB accepted these checks for deposit into Ms. Russell's account.
*734 Southern sued FAB in December 1986, alleging two causes of action. First, Southern claimed that FAB was negligent in failing to follow established banking practices, failing to act in a commercially reasonable manner, failing to detect the forged signatures on Bay Paper's checks, and failing to detect forged indorsements, and that its negligence had proximately caused Southern to sustain damages. Second, Southern alleged that FAB had failed to follow established banking procedures, had paid items that were not properly payable, and had failed to act in accordance with commercially reasonable standards applicable to the banking business, and was therefore liable in conversion for the total amount of Southern's loss, $19,045.97.
FAB moved for summary judgment, and the trial judge granted that motion with respect to all of Southern's claims except for the sum of $1,430.16, representing the first two checks, which he awarded Southern. Southern appealed.
Whether FAB's summary judgment was proper turns upon whether a drawee bank is liable to a customer, despite that customer's negligence, when the drawee fails to exercise ordinary care in making payment on forged checks.
In reviewing a summary judgment, we employ the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact. Chiniche v. Smith, 374 So.2d 872 (Ala.1979). Garrigan v. Hinton Beef & Provision Co., 425 So.2d 1091 (Ala.1983). Where there is no genuine issue of material fact and the moving party is entitled to a judgment on the matter, summary judgment is proper; but where evidence is produced that supports the position of the non-moving party, summary judgment can not be granted. Rule 56(c), Ala.R.Civ.P.; Cole v. First Nat. Bank of Tuskaloosa, 485 So.2d 717, 719 (Ala.1986).
Under Alabama's commercial code, a bank may charge a customer's account only when an item is deemed "properly payable." Ala.Code 1975, § 7-4-401. Thus, by negative implication, § 7-4-401 imposes liability on a drawee bank that charges a customer's account for items not properly payable. White & Summers, Handbook of the Law Under the Uniform Commercial Code, § 15-3 (2d ed. 1980). The crux of the plaintiff's claim is that FAB improperly paid those items forged by Ms. Russell, and, therefore, that Southern is entitled to recover from FAB the funds it reimbursed Bay Paper.
Alabama's commercial code, however, imposes certain duties not only upon the bank, but upon the bank customer as well. Section 7-4-406(1) provides:
"When a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries or holds the statement and items pursuant to a request or instructions of its customer or otherwise in a reasonable manner makes the statement and items available to the customer, the customer must exercise reasonable care and promptness to examine the statement and items to discover his unauthorized signature or any alteration on an item and must notify the bank promptly after discovery thereof."
The record reflects, without contradiction, that Bay Paper's bookkeeper, Ms. Russell, worked on Bay Paper's payroll account, kept the general ledger, and maintained Bay Paper's payables checkbook. She was solely responsible for Bay Paper's payroll and checking procedures, and she was solely responsible for reviewing the company's bank statements and cancelled checks. Moreover, she was the only Bay Paper employee responsible for reconciling the company's bank statements with the checking and payroll records. This evidence is sufficient to warrant the conclusion that Bay Paper failed to exercise reasonable care as required under § 7-4-406(1). See Industrial Systems of Huntsville, Inc. v. American Nat. Bank of Huntsville, 376 So.2d 742 (Ala.Civ.App.1979).
A customer's failure to comply with § 7-4-406(1) is dealt with by § 7-4-406(2):
"If the bank establishes that the customer failed with respect to an item to comply with the duties imposed on the customer *735 by subsection (1) the customer is precluded from asserting against the bank:
"(a) His unauthorized signature or any alteration on the item if the bank also establishes that it suffered a loss by reason of such failure; and
"(b) An unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank after the first item and statement was available to the customer for a reasonable period not exceeding 14 calendar days and before the bank receives notification from the customer of any such unauthorized signature or alteration."
FAB asserted in its motion for summary judgment that § 7-4-406(2) precluded its liability under § 7-4-401. The trial court agreed, awarding Southern only $1,430.16, which represents that portion of the claim that accrued during the 14-day period following the date upon which the first item bearing an unauthorized signature and a statement reflecting that item were made available to Bay Paper.
A third subsection, however, also bears upon the issue in this case. Section 7-4-406(3) states that "[t]he preclusion under subsection (2) does not apply if the customer establishes lack of ordinary care on the part of the bank in paying the item(s)." Our Court of Civil Appeals has held that under this section the bank is not required to establish that it exercised ordinary care, but that the plaintiff has the burden of establishing the bank's lack of ordinary care. Industrial Systems, at 745. We agree. Thus, we now look to determine whether the plaintiff adduced any evidence that would permit a finding that the bank failed to exercise ordinary care when it deposited forged checks into Ms. Russell's account.
FAB's failure to require Ms. Russell to indorse the checks she presented for deposit, and FAB's acceptance of checks for deposit into Ms. Russell's account despite the presence of restrictive indorsements constitutes some evidence from which the jury could find that FAB failed to exercise ordinary care in paying forged Bay Paper checks.
FAB argues, however, that checks involving "double forgeries," that is, cases where both the drawer's signature and the indorsement are forged, are regarded as forged checks only, and that, therefore, any negligence of the drawee bank with regard to indorsements is irrelevant. See, Perini Corp. v. First Nat'l Bank, 553 F.2d 398 (5th Cir.1977).
We do not believe the "double forgery" issue as addressed in Perini is implicated under the present facts, and, therefore, we neither adopt nor reject the view represented by that case. The Perini court dealt with the question of where to allocate loss as between a drawee bank and a depository bank; the question before this Court addresses where to allocate loss as between the drawee bank and the customer. We further note that, under the present facts, FAB acted as both the drawee bank and the depository bank; thus, there can be no question as to where the loss will be allocated as between the drawee bank and the depository bank.
It is true that other courts have held that, where a "double forgery" exists, the customer's cause of action against the drawee bank is based upon the forged drawer's signature, and not upon the forged indorsement. Id. However, the fact that the customer does not have a cause of action based upon the forged indorsement when there is a "double forgery" does not mean that the drawee bank's failure to exercise ordinary care with regard to indorsements is irrelevant for purposes of imposing liability on the drawee bank based upon its payment of a check with a forged drawer's signature. Section 7-4-406(3) requires the bank to exercise ordinary care in paying items. The language of § 7-4-406(3) is unqualified. The statute does not distinguish between items bearing forged drawer's signatures and items bearing forged indorsements, but requires the exercise of ordinary care as to all items. Therefore, one can not, as FAB suggests, selectively exercise ordinary care with regard to the drawer's signature *736 and remain true to the clear mandate of the statute; rather, the statute requires the exercise of ordinary care with regard to the item as a whole. To rule otherwise, we believe, would narrow the scope of the provision beyond what we think the drafters intended.
We are impressed with the reasoning of the Supreme Court of North Dakota in a case involving the exact issue before us. There, the plaintiff customer brought suit against the drawee bank for payment of checks drawn on the customer's account which bore forged drawer's signatures. The drawee bank asserted that the customer was precluded from recovering on these checks under § 4-406(2) of the UCC. The customer contended that the preclusion of § 4-406(2) did not apply because the drawee bank, in paying the checks, had failed to exercise "ordinary care" within the meaning of § 4-406(3) because the indorsements on the checks were defective. The issue before the court was whether the drawee bank, in making payment on the forged checks, had failed to exercise ordinary care within the meaning of § 4-406(3) of the UCC. The Supreme Court of North Dakota stated:
"Each of the nine forged checks at issue on this appeal has Wayne Anderson's signature forged as drawer of the check by Averill Anderson. All nine checks are payable to the order of Wayne Anderson as payee; however, none of the checks is endorsed with Wayne Anderson's signature, either genuine or forged. In our determination of whether or not the trial court erred in finding that Citizens failed to exercise ordinary care in making payment on the forged checks we must scrutinize Citizens' payment of each check with respect to:
(1) the drawer's signature on the check, and
(2) the endorsement(s) on the check."
Thoreson v. Citizens State Bank, 294 N.W.2d 397, 400 (N.D.1980).
We hold, therefore, that the drawee bank's negligence with regard to the indorsements on checks is relevant for purposes of § 7-4-406(3).[1]
Because material evidence exists supporting the position of the non-moving party, we must reverse FAB's summary judgment.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, ADAMS, STEAGALL and KENNEDY, JJ., concur.
NOTES
[1] We offer a caveat regarding this general holding: a factual similarity between the case presently before the Court and the case of J. Gordon Neely Enterprises, Inc. v. American Nat'l Bank of Huntsville, 403 So.2d 887 (Ala.1981), exists. However, the parties in J. Gordon Neely asserted § 7-3-406, "Negligence contributing to alteration or unauthorized signature," not § 7-4-406, "Customer's duty to discover and report unauthorized signature or alteration." Section 7-3-406 provides in pertinent part:
"Any person who by his negligence substantially contributes to ... the making of an unauthorized signature is precluded from asserting... lack of authority against ... a drawee ... who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee's or payor's business."
Because this case, in its present posture, does not present the question of whether Bay Paper's supervision of Sue Russell substantially contributed to the forged checks, or whether FAB paid Bay Paper's checks in accordance with reasonable commercial standards, we do not here address those issues.
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Filed 4/14/14 In re Christopher R. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re CHRISTOPHER R. et al., Persons B250806
Coming Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK99150)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
CRYSTAL R. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles County, Marilyn
Kading Martinez, Juvenile Court Referee. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant, Crystal R.
Janette Freeman Cochran, under appointment by the Court of Appeal, for
Defendant and Appellant, Frank G.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
Crystal R., the mother of seven-year-old Christopher R., six-year-old Natalie M.,
three-year-old Francisco M., and infant Brianna G., and Frank G., the presumed father of
Brianna, appeal from the jurisdiction findings and disposition orders declaring the
children dependents of the juvenile court after the court sustained a petition pursuant to
1
Welfare and Institutions Code section 300, subdivision (b), alleging that Crystal had a
seven-year history of substance abuse and was a current abuser of cocaine rendering her
unable to provide regular care and supervision of her four children and that Frank had a
history of illicit drug abuse and was a current abuser of marijuana rendering him unable
to provide regular care and supervision of Brianna. Crystal does not seriously challenge
the findings and order as to Brianna, who tested positive for cocaine, amphetamine and
methamphetamine at birth, but argues the evidence was insufficient to establish
jurisdiction over her other children or to remove them from her custody. Frank, who is
2
the father only of Brianna, likewise does not challenge the court’s findings with respect
to Crystal and Brianna, but contends the evidence of his past marijuana use and criminal
history is insufficient to show he is unable to provide regular care for his child. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Los Angeles County Department of Children and Family Services
(Department) received a child abuse referral after both Crystal and Brianna tested
positive for cocaine at Brianna’s birth. Brianna also tested positive for amphetamine and
methamphetamine. Crystal admitted she had started using cocaine when she was
16 years old (seven years before the filing of the dependency petition in this case) but
1
Statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
2
Crystal identified Frank M. as the father of Francisco and Natalie and reported he
was living in Mexico and, as of their detention in April 2013, had not seen them in two
years. She said she had no address or telephone number for Frank M. Crystal, who was
17 years old when Christopher was born, told the social worker she did not know who
Christopher’s father was and could not give her any possible names.
2
insisted she had stopped when she was 17 and had not used the drug since that time. She
denied using cocaine during her pregnancy and could not explain how she and Brianna
had tested positive. Subsequently Crystal claimed she had picked up a small container of
cocaine for someone else during her eighth month of pregnancy and had tasted it to be
sure it was cocaine. Brianna was born three days later, approximately one month before
Crystal’s due date.
Brianna weighed five pounds one ounce when born and, because of respiratory
issues, had to be fed intravenously and was on oxygen. She remained in the hospital for
25 days but did not have any withdrawal symptoms and no ongoing health issues.
At the time of the child abuse report Crystal, Christopher (then six years old) and
Francisco (then two years old) were living with a cousin, Estella, and Estella’s family in
Bellflower. Crystal, however, did not know Estella’s address or telephone number.
Natalie (then five years old) was living with a maternal great aunt in Las Vegas. All
three children appeared healthy and had no marks, bruises or other visible signs of abuse.
Estella watched the two boys when Crystal went out—sometimes returning the
same day; sometimes not until the following day. Crystal did not let Estella know where
she was going when she left the children in her care. Estella told the Department’s social
worker she had no knowledge whether Crystal had a drug problem but confirmed that
Frank, also a relative of hers, smoked marijuana.
Crystal and Frank had had an “off and on” relationship for 18 months to two years.
Frank said he and Crystal had been separated for approximately six months; he was not
with her when she was pregnant and did not know what she was doing. Apparently when
not with Crystal, Frank lived with his father (Brianna’s paternal grandfather).
Frank said he was unaware that Crystal used drugs and denied that they had used
cocaine or smoked marijuana together. However, Frank acknowledged he had smoked
marijuana since he was 14 or 15 years old and his use had increased over time to once or
twice each day. He explained he had been shot in the back and smoking marijuana
relaxed him. (Frank had unsuccessfully attempted to obtain a medical marijuana card.)
3
However, Frank said he had completely stopped two weeks prior to Brianna’s birth
because he was going to have a baby soon. Notwithstanding that explanation, Frank was
unsure if he was Brianna’s father and asked for a paternity test. Frank also told the social
worker he was a former gang member and was on probation for vandalism (actually,
post-release community supervision, a form of parole supervised by the probation
department). According to his probation officer, Frank was not in full compliance with
the terms of his release: He had enrolled in a substance abuse program, but not
completed it, and had tested positive for marijuana but no other drugs.
While Brianna remained in the hospital and Natalie was in Las Vegas, the
Department detained the other two children and filed a dependency petition on behalf of
all four of them on April 24, 2013. The juvenile court found a prima facie case had been
established the children were described by section 300, subdivision (b) (inability of
parent to provide regular care for the child due to substance abuse), and ordered them
detained.
At the July 17, 2013 jurisdiction and disposition hearing the court sustained the
petition, amended slightly by interlineation, and found the children were described by
section 300, subdivision (b). As sustained, count b-1 provides, “[Crystal] has a seven
year history of substance abuse, and is a current abuser of cocaine, which renders the
mother unable to provide regular care and supervision of the child. The mother used
illicit drugs, during the mother’s pregnancy with [Brianna], and had a positive toxicology
screen for cocaine . . . at the child’s birth. The mother’s substance abuse endangers the
[children’s] physical health and safety, creates a detrimental home environment, and
places the children at risk of physical harm and danger.” As sustained, count b-2
provides, “[Frank] has a history of illicit drug abuse, and is a current abuser of marijuana,
which renders the father unable to provide regular care and supervision of the child. The
father’s abuse of illicit drugs endangers the child’s physical health and safety, and places
the child at risk of physical harm and danger.”
4
Proceeding to disposition, the court found by clear and convincing evidence that a
substantial danger existed to the children and there were no reasonable means to protect
them without removing them from their parents’ custody. The court ordered the children
committed to the care, custody and control of the Department for suitable placement and
directed the Department to provide reunification services to all four children and Crystal
and to Brianna and Frank. Services for the parents were to include substance abuse
treatment and drug testing, parenting classes, individual counseling and monitored
visitation.
Both Crystal and Frank filed timely notices of appeal from the jurisdiction
findings and disposition orders.
CONTENTIONS
Essentially conceding dependency jurisdiction was proper as to Brianna, who was
3
born with a positive toxicology screen for cocaine and other illicit drugs, Crystal
contends the evidence of her sporadic drug use was insufficient to support the findings
she was a current substance abuser and Christopher, Natalie and Francisco were at
substantial risk of serious physical harm justifying the exercise of the juvenile court’s
jurisdiction. In addition, even if jurisdiction was appropriately extended over all four
children, Crystal argues in-home support services could have been provided and there
was insufficient evidence that removal of the three older children was necessary for their
protection. Frank contends the evidence of his past marijuana use and criminal history
was insufficient to support the finding he could not care for Brianna or to justify
3 In the introduction to her opening brief Crystal asserts, “The children in this case
were not similarly situated; if this Court finds that Brianna was at risk because she was an
infant, that does not mean the other children were necessarily at a similar risk.” Then, in
the first paragraph of the argument section of her brief, Crystal states, “Here, there was
no showing of any kind that Crystal’s sporadic drug use negatively impacted her
parenting to the point where her children, apart from Brianna, were at substantial risk of
serious physical harm and that juvenile court jurisdiction was necessary.” Crystal does
not otherwise address the evidence at the jurisdiction and disposition hearing as it relates
to Brianna.
5
removing her from his custody. Frank also contends the court lacked an adequate basis
for ordering him to participate in a full substance abuse program or individual counseling
or to restrict him to monitored visits.
DISCUSSION
1. The Governing Statute and Standard of Review
The purpose of section 300 “is to provide maximum safety and protection for
children who are currently being physically, sexually, or emotionally abused, being
neglected, or being exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.” (§ 300.2; see In re
Giovanni F. (2010) 184 Cal.App.4th 594, 599.) Section 300, subdivision (b), allows a
child to be adjudged a dependent of the juvenile court when “[t]he child has suffered, or
there is a substantial risk that the child will suffer, serious physical harm or illness, as a
result of the failure or inability of his or her parent or guardian to adequately supervise or
protect the child . . . or by the inability of the parent or guardian to provide regular care
for the child due to the parent’s or guardian’s mental illness, developmental disability, or
substance abuse.”
Although section 300 generally requires proof the child is subject to the defined
risk of harm at the time of the jurisdiction hearing (In re Savannah M. (2005)
131 Cal.App.4th 1387, 1396; In re Rocco M. (1991) 1 Cal.App.4th 814, 824 (Rocco M.)),
the court need not wait until a child is seriously abused or injured to assume jurisdiction
and take steps necessary to protect the child. (In re N.M. (2011) 197 Cal.App.4th 159,
165.) The court may consider past events in deciding whether a child presently needs the
court’s protection. (Ibid.) A parent’s “‘[p]ast conduct may be probative of current
conditions’ if there is reason to believe that the conduct will continue.” (In re S.O.
(2002) 103 Cal.App.4th 453, 461.)
In addition, the Legislature has declared, “The provision of a home environment
free from the negative effects of substance abuse is a necessary condition for the safety,
protection and physical and emotional well-being of the child. Successful participation in
6
a treatment program for substance abuse may be considered in evaluating the home
environment.” (§ 300.2.) Exercise of dependency court jurisdiction under section 300,
subdivision (b), is proper when a child is “of such tender years that the absence of
adequate supervision and care poses an inherent risk to [his or her] health and safety.”
(Rocco M., supra, 1 Cal.App.4th at p. 824.)
We review the juvenile court’s jurisdictional findings and disposition orders for
substantial evidence. (Los Angeles County Dept. of Children & Family Services v.
Superior Court (2013) 215 Cal.App.4th 962, 966; In re R.C. (2012) 210 Cal.App.4th 930,
940.)4 Under this standard “[w]e review the record to determine whether there is any
substantial evidence to support the juvenile court’s conclusions, and we resolve all
conflicts and make all reasonable inferences from the evidence to uphold the court’s
orders, if possible.” (In re David M. (2005) 134 Cal.App.4th 822, 828; accord, In re
Drake M. (2012) 211 Cal.App.4th 754, 763 (Drake M.); In re Savannah M., supra,
131 Cal.App.4th at p. 1393.)
2. Substantial Evidence Supports the Count b-1 Jurisdiction Findings and
Disposition Order with Regard to Crystal
Crystal used cocaine (and, based on the positive toxicology screen for Brianna at
birth, amphetamine and methamphetamine) while she was pregnant, unquestionably
endangering the health and safety of her unborn child. She also admitted she had used
cocaine in the past although claiming she had stopped using when she was 17 years old.
4
The burden of proof at the jurisdiction phase in the juvenile court is preponderance
of the evidence; the burden of proof at disposition is clear and convincing evidence.
(§ 355, subd. (a) [jurisdiction findings by preponderance of evidence]; § 361, subd. (c)
[disposition findings by clear and convincing evidence].) Nonetheless, we review both
jurisdiction findings and the disposition order for substantial evidence. (See Sheila S. v.
Superior Court (2000) 84 Cal.App.4th 872, 880-881 [“The ‘clear and convincing’
standard . . . is for the edification and guidance of the trial court and not a standard for
appellant review. [Citations.] ‘“The sufficiency of evidence to establish a given fact,
where the law requires proof of the fact to be clear and convincing, is primarily a
question for the trial court to determine, and if there is substantial evidence to support its
conclusion, the determination is not open to review on appeal.”’”]; see also Crail v.
Blakely (1973) 8 Cal.3d 744, 750; In re I.W. (2009) 180 Cal.App.4th 1517, 1525-1526.)
7
Given her initial false denial of any cocaine use in the days before Brianna was born, the
juvenile court reasonably disbelieved Crystal’s portrayal of limited, sporadic drug use. In
addition, following the children’s detention Crystal missed one drug test, properly
5
considered the equivalent of a positive test result, and failed to enroll in a substance
abuse program or any other recommended programs. This evidence, taken together with
Crystal’s unstable lifestyle and cavalier attitude toward childcare —she left the children
with her cousin Estella while she went out, sometimes for the entire night, without telling
Estella where she was going or when she would return—fully supports the juvenile
court’s finding that Crystal’s substance abuse endangered all four children’s health and
safety.
The analysis in Drake M., supra, 211 Cal.App.4th 754 by our colleagues in
Division Three of this court does not compel a different conclusion. As the Drake M.
court explained, when the Legislature rewrote section 300, subdivision (b), in 1987 to
include as a basis for dependency jurisdiction a parent’s inability to provide regular care
for his or her child due to substance abuse, it included no definition of the term
“substance abuse” in the statute. (Id. at p. 765.) Similarly, the legislative history
revealed no specific discussion of how the term should be defined in practice. As a
result, “[d]ependency cases have varied widely in the kinds of parental actions labeled
‘substance abuse.’” (Ibid.)
To avoid inconsistencies, the Drake M. court proposed a definition of substance
abuse based on the American Psychiatric Association’s Diagnostic and Statistical Manual
of Mental Disorders (4th rev. ed. 2000) (DSM-IV-TR), a definition that had also been
used in an earlier dependency decision involving a somewhat different issue, Jennifer A.
v. Superior Court (2004) 117 Cal.App.4th 1322. (See Drake M., supra, 211 Cal.App.4th
at p. 765.) Following Jennifer A., the Drake M. court held “a finding of substance abuse
for purposes of section 300, subdivision (b), must be based on evidence sufficient to
5
Crystal did have three negative tests during this period.
8
(1) show that the parent or guardian at issue had been diagnosed as having a current
substance abuse problem by a medical professional or (2) establish that the parent or
guardian at issue has a current substance abuse problem as defined in the DSM-IV-TR.
The full definition of ‘substance abuse’ found in the DSM-IV-TR describes the condition
as ‘[a] maladaptive pattern of substance use leading to clinically significant impairment
or distress, as manifested by one (or more) of the following, occurring within a 12-month
period: [¶] (1) recurrent substance use resulting in a failure to fulfill major role
obligations at work, school, or home (e.g., repeated absences or poor work performance
related to substance use; substance-related absences, suspensions, or expulsions from
school; neglect of children or household)[; ¶] (2) recurrent substance use in situations in
which it is physically hazardous (e.g., driving an automobile or operating a machine
when impaired by substance use)[; ¶] (3) recurrent substance-related legal problems
(e.g., arrests for substance-related disorderly conduct)[; and ¶] (4) continued substance
use despite having persistent or recurrent social or interpersonal problems caused or
exacerbated by the effects of the substance (e.g., arguments with spouse about
consequences of intoxication, physical fights).’ (DSM-IV-TR, at p. 199.)” (Drake M., at
p. 766.)
We recognize the Drake M. formulation as a generally useful and workable
definition of substance abuse for purposes of section 300, subdivision (b). But it is not a
comprehensive, exclusive definition mandated by either the Legislature or the Supreme
Court, and we are unwilling to accept Crystal’s argument that only someone who has
been diagnosed by a medical professional or who falls within one of the specific DSM-
IV-TR categories can be found to be a current substance abuser. (See Jessen v. Mentor
Corp. (2008) 158 Cal.App.4th 1480, 1490, fn. 10 [there is no “horizontal stare decisis” in
the Court of Appeal; “we are not bound by the contrary decision by Division One of this
6
court”]; In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409 [same].) Here, we
6
Not only are we not bound by Division Three’s adoption of the DSM-IV-TR’s
definition of “substance abuse” but also that definition has been replaced in the more
9
believe Crystal’s repeated use of cocaine and her ingestion of that drug while pregnant
constitutes recurrent substance use that resulted in her failure to fulfill a major role
obligation within the meaning of DSM-IV-TR. But even if Crystal’s conduct fell outside
one of the DSM-IV-TR categories, we have no doubt her use of cocaine while in the final
stage of her pregnancy, combined with her admitted use of the drug in the past and her
failure to consistently test or enroll in a drug abuse program, justified the juvenile court’s
exercise of dependency jurisdiction over her children.
In addition, because the children were six years old or younger at the time of the
jurisdiction hearing—children of “tender years” in the language of Rocco M.—“the
finding of substance abuse is prima facie evidence of the inability of a parent or guardian
to provide regular care resulting in a substantial risk of harm.” (Drake M., supra,
211 Cal.App.4th at p. 767; accord, Rocco M., supra, 1 Cal.App.4th at p. 824.) Crystal
did not adequately rebut that evidence. Indeed, her use of cocaine during the last months
of her pregnancy confirmed her poor judgment and willingness to endanger her children’s
safety due to substance abuse. Thus, the decision to remove the children from her care
and custody was supported by substantial evidence.
recent Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5),
published in May 2013 after the decision in Drake M, by a more broadly defined
classification of “substance abuse disorders,” which combines substance abuse and
dependence. DSM-5 identifies 11 relevant criteria, including cravings and urges to use
the substance; spending a lot of time getting, using or recovering from use of the
substance; giving up important social, occupational or recreational activities because of
substance use; and not managing to do what one should at work, home or school because
of substance use. The presence of two or three of the 11 specified criteria indicates a
mild substance use disorder; four or five indicate a moderate substance use disorder; and
six or more a severe substance use disorder. (American Psychiatric Association,
Highlights of Changes from DSM-IV-TR to DSM-5
<http://www.dsm5.org/Documents/changes%20from%20dsm-iv-tr%20to%20dsm-
5.pdf>as of April 14, 2014.)
10
3. The Count B-2 Jurisdiction Finding as to Frank Is Supported by
7
Substantial Evidence
Frank, an unemployed, 22-year-old, former gang member, has been a daily user of
marijuana for a number of years. The court reasonably disbelieved his claim he had
stopped using marijuana two weeks before Brianna’s birth because he was going to be a
father, based in part on his initial request for a paternity test, plainly suggesting
impending parenthood was not something he was planning for, and in part on his
explanation he needed to use marijuana in the aftermath of being shot and his purported
failed efforts to obtain a medical marijuana card. In addition, Frank was in violation of
the terms of his parole because he was not drug testing regularly and had tested positive
for marijuana.
Although Frank does not deny his regular, on-going use of marijuana, he cites
several cases for the proposition that a parent’s use of marijuana alone does not justify
the juvenile court’s exercise of jurisdiction over his or her child. (See, e.g., In re
Destiny S. (2012) 210 Cal.App.4th 999, 1003 [“[i]t is undisputed that a parent’s use of
marijuana ‘without more,’ does not bring a minor within the jurisdiction of the
dependency court”]; In re Alexis E. (2009) 171 Cal.App.4th 438, 453 [use of medical
marijuana, without more, cannot support a jurisdiction finding].) But as the Court of
Appeal explained in Rocco M., supra, 1 Cal.App.4th 814, cases finding a substantial
7
“‘When a dependency petition alleges multiple grounds for its assertion that a
minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the
[trial] court’s finding of jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by substantial evidence.’”
(Drake M., supra, 211 Cal.App.4th at p. 762.) Frank does challenge the juvenile court’s
section 300, subdivision (b), findings as to Crystal and, accordingly, acknowledges
Brianna is properly subject to dependency court jurisdiction. Nonetheless, Frank
contends, and we agree, the merits of his appeal should be addressed because the
jurisdiction findings in count b-2 as to him could adversely affect a future dependency or
family law proceeding in which he may be involved. (See Drake M., at p. 762; see also
In re I.A. (2011) 201 Cal.App.4th 1484, 1494 [jurisdiction finding not reviewed in light
of father’s failure to suggest any way in which it could actually affect a future
dependency or family law proceeding].)
11
physical danger to a child “tend to fall into two factual patterns. One group involves an
identified, specific hazard in the child’s environment—typically an adult with a proven
record of abusiveness. [Citations.] The second group involves children of such tender
years that the absence of adequate supervision and care poses an inherent risk to their
physical health and safety.” (Id. at p. 824 [citing to cases involving an infant, a two year
old and a child under three years old].) Referring to the second category of cases
identified in Rocco M., the court in Drake M., supra, 211 Cal.App.4th at page 767 held,
to support jurisdiction over a 14-month-old child, the Department needed only to produce
sufficient evidence that the father was a substance abuser—a showing it failed to make.
Here, Brianna was even younger: less than two weeks old when the dependency petition
was filed, and only three months old at the jurisdiction/disposition hearing. Whether or
not Frank’s unemployment and repeated scrapes with the law were directly related to his
chronic marijuana use, on this record the juvenile court properly found Frank’s persistent
and illegal use of marijuana demonstrated an inability to provide regular care for infant
Brianna.
4. The Disposition Orders as to Frank Were Proper
As was true with respect to Crystal, because Brianna is an infant, “the finding of
substance abuse [by Frank] is prima facie evidence of the inability of a parent or guardian
to provide regular care resulting in a substantial risk of harm.” (Drake M., supra,
211 Cal.App.4th at p. 767; accord, Rocco M., supra, 1 Cal.App.4th at p. 824.) In
addition, as the juvenile court observed, Frank was not in compliance with the terms of
his parole; Brianna had never lived with him; the paternal grandfather, with whom Frank
was living, had not agreed to have the child placed in his home; and there had not been
cooperation with the Department to have that home evaluated for safety. Under these
circumstances the decision not to place Brianna with Frank was proper.
Frank’s additional objection to portions of the case plan—a full substance abuse
program, individual counseling to address case issues and monitored visitation—
similarly lacks merit. Section 362, subdivision (d), provides: “The juvenile court may
12
direct any reasonable orders to the parents or guardians of the child who is the subject of
any proceedings under this chapter as the court deems necessary and proper to carry out
this section, . . . [including] a direction to participate in a counseling or education
program . . . .” (§ 362, subd. (d).) Under section 362, subdivision (d), “[t]he juvenile
court has broad discretion to determine what would best serve and protect the child’s
interests and to fashion a disposition order accordingly.” (In re A.E. (2008)
168 Cal.App.4th 1, 4.) On appeal, “‘this determination cannot be reversed absent a clear
abuse of discretion.’” (Ibid.) Given Frank’s daily use of marijuana and his failure to
fulfill his responsibilities to meet the terms of parole, requiring participation in a drug
abuse program and counseling, as well as monitored visitation, was well within the
8
court’s ample discretion.
DISPOSITION
The juvenile court’s findings and orders are affirmed.
PERLUSS, P. J.
We concur:
WOODS, J.
ZELON, J.
8
Minute orders from the section 366.21, subdivision (e), six-month review hearings
on January 15, 2014 and February 28, 2014 indicate Frank is currently in custody,
effectively mooting his challenge to the order requiring monitored visitation. As we
advised the parties in a letter dated March 3, 2014, we take judicial notice of those two
minutes orders pursuant to Evidence Code sections 452, subdivision (d), and 459.
13
| {
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} |
03-4803-ag
Gui Yin Liu v. INS
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4 _______________
5
6 August Term, 2004
7
8 (Submitted: November 18, 2004 Decided: January 30, 2007
9 Opinion Revised: November 30, 2007)
10
11 Docket No. 03-4803-ag
12 _______________
13
14 GUI YIN LIU ,
15 Petitioner,
16
17 —v.—
18
19 IMMIGRATION AND NATURALIZATION SERVICE,
20 Respondent.
21 _______________
22
23 Before:
24
25 CALABRESI and STRAUB, Circuit Judges.1
26
27 _______________
28 Petition for rehearing of our January 30, 2007 decision, in which we held, inter alia, that
29 we had jurisdiction to review the Immigration Judge’s determination that petitioner’s asylum
30 application was not timely filed. We grant the petition for rehearing and now hold that we lack
31 jurisdiction to review that determination. The petition for review of the denial of asylum is
1
The Honorable James L. Oakes, who was originally a member of this panel, retired after
this case was originally decided. The remaining two panel members, who agree on the
disposition, decide the petition for rehearing pursuant to Local Rule § 0.14(b).
1 dismissed for lack of jurisdiction, and the petition for review of the withholding of removal and
2 CAT claims is granted.
3 _______________
4
5 Gui Yin Liu, Petitioner, pro se.
6
7 Michael J. Garcia, United States Attorney for the Southern District of New York, Benjamin H.
8 Torrance, James L. Cott, David S. Jones, Assistant United States Attorneys, New York, NY,
9 for Respondent.
10
11 Lee Gelernt, American Civil Liberties Union Foundation, Immigrants’ Rights Project, New
12 York, NY, Lucas Guttentag, Jennifer Chang, American Civil Liberties Foundation, Immigrants’
13 Rights Project, San Francisco, CA, Amicus Curiae in Support of Petitioner.
14
15 C. Mario Russell, Mark R. Von Sternberg, Catholic Charities Community Services, New York,
16 NY, Amicus Curiae in Support of Petitioner.
17
18 _______________
19
20 PER CURIAM :
21 FACTS AND PROCEDURAL HISTORY
22 A. Original Appeal
23 Petitioner Gui Yin Liu, a native and citizen of the People’s Republic of China, seeks
24 review of an April 2, 2003 order of the Board of Immigration Appeals (“BIA”) affirming the May
25 2, 2001 decision of Immigration Judge (“IJ”) Philip L. Morace denying Liu’s application for
26 asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re
27 Gui Yin Liu, No. A 78 208 279 (B.I.A. Apr. 2, 2003), aff’g No. A 78 208 279 (Immig. Ct. N.Y.
28 City May 2, 2001). Liu claims that he fled China in 1999 after government officials forced his
29 wife to undergo a forcible sterilization procedure, and that he has a well founded fear of future
30 persecution. The IJ concluded that Liu’s asylum application was barred as untimely because Liu
31 had failed to demonstrate by clear and convincing evidence that the application was filed within
2
1 one year of his arrival in the United States, as required by Title 8, Section 1158(a)(2)(B) of the
2 United States Code.2 As part of his application, Liu had submitted a police record which stated, in
3 relevant part: “This is to certify that Liu Gui Yin (male, born on January 4, 1959, currently
4 residing in the USA) had no record of committing offenses against the criminal law up to the date
5 when he left China on June 28, 1999, during his residence in China.” Liu’s application for asylum
6 was received on June 27, 2000. After recognizing that it was Liu’s burden to show by “clear and
7 convincing” evidence that he applied for asylum within one year of his arrival in the United
8 States, the IJ found that the police record was insufficient to meet the clear and convincing
9 standard. The IJ explained: “[T]he document is not a contemporaneously produced document, nor
10 is it a document which indicates for certain that the respondent was indeed there during the
11 aforementioned period.” The IJ further reasoned:
12 For instance, if it was a record to show that he was in the police department on a
13 particular day, or had a receipt in China for a particular reason, or a medical record
14 in China on that date, then it would be more probative to establish that he was indeed
15 still in China as late as 1999. But that document doesn’t purport to be any of those
16 things. . . . [I]t does not demonstrate what the respondent hopes that it would have
17 demonstrated and that is to establish that he was indeed in China in 1999.
18
19 The IJ then went on to address the other piece of evidence submitted in support of the proposition
20 that Liu applied for asylum within one year of arriving in the US:
21 The respondent has submitted an affidavit from his sister-in-law’s husband. That
22 affidavit just indicates that the brother-in-law, if you will, received a phone call from
23 the respondent on July 7, 1999 to pick him up at the Yi Dong (phonetic sp.)
24 Restaurant here in New York City. It does not really demonstrate as to when the
25 respondent came to the United States. The affidavit itself contains a few details and
2
Subject to certain exceptions not at issue here, an asylum applicant must “demonstrate[]
by clear and convincing evidence that the application has been filed within 1 year after the date
of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B).
3
1 the affiant, although in the United States, chose not to appear for examination today.
2
3 Finally, the IJ addressed Liu’s own testimony with respect to this issue:
4 With regard to the respondent’s own testimony on this issue of the one year bar,
5 unfortunately I find that it was not at all credible. He was very vague throughout this
6 testimony on this issue, very journalized, non-responsive. . . . The plausibility of
7 some of his responses also was a concern. He indicates for instance, that he had snake
8 heads help him get from the People’s Republic of China to Hong Kong and then put[]
9 him on a plane, but then he was put on a plane apparently, according to the
10 respondent’s testimony, with no other documentation and no other instructions as to
11 what to do once he arrived at the airport in Los Angeles, California on or about July
12 5 of 1999, according to the respondent. Again, this seems to defy plausibility.
13 Respondent was very, very vague as to what happened once he got off the airplane.
14 He says he got on the line, then he says he got off the line, then he says he made it to
15 the front of the counter. He indicated that nobody was at the counter. So it’s not
16 entirely clear, but suddenly he’s outside the airport, apparently without inspection.
17 Again, providing us with very few details or specifics as to how that could have
18 happened. He went to a hotel. First, he could not recall how he got there. Later on,
19 . . . he recalled that a Mandarin speaking cab driver helped him get to the hotel and
20 check in. But the next day he’s back at the airport purchasing a ticket and once again,
21 it’s not clear how he was able to purchase the ticket. He doesn’t remember when he
22 boarded the plane . . . from Los Angeles to New York. He’s not certain of the date
23 that he arrived in New York, but he does remember getting there sometime in the
24 morning. . . .
25
26 The IJ accordingly found that Liu had not met his burden of demonstrating by clear and
27 convincing evidence that he had applied for asylum within one year of his arrival in the United
28 States and was therefore ineligible for asylum.
29 The IJ also denied Liu’s claims for withholding of removal and CAT relief, finding Liu's
30 testimony regarding the alleged persecution similarly vague and nonresponsive.
31 The BIA affirmed the IJ’s decision without opinion. On January 30, 2007, we issued a per
32 curiam opinion granting the petition for review and remanding the case to the BIA. Gui Yin Liu v.
33 INS, 475 F.3d 135 (2d Cir. 2007) (per curiam). We determined that the agency erred in finding
34 that the asylum application was untimely. Although we recognized that, pursuant to 8 U.S.C. §
4
1 1158(a)(3) and 8 U.S.C. § 1252(a)(2)(D), our jurisdiction over such discretionary determinations
2 was limited to “questions of law,” we cited Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315,
3 327 (2d Cir. 2006), for the proposition that jurisdiction may arise in the case of “fact-finding
4 which is flawed by an error of law, such as might arise where the IJ states that his decision was
5 based on petitioner’s failure to testify to some pertinent fact when the record of the hearing reveals
6 unambiguously that the petitioner did testify to that fact.” Id. at 331 (citing Tian-Yong Chen v.
7 INS, 359 F.3d 121, 127 (2d Cir. 2004)).
8 We then vacated the IJ’s determination regarding the timeliness of the asylum application,
9 concluding that we had jurisdiction over the issue because the IJ “unambiguously
10 mischaracterized a central element of the record: Liu’s record with the Chinese police.” Gui Yin
11 Liu, 475 F.3d at 138. We reasoned that the police record “expressly stated that Liu ‘had no record
12 of committing offenses against the criminal law up to the date when he left China on June 28,
13 1999, during his residence in China,’” and “[t]he IJ’s unambiguous mischaracterization of the
14 record raises a question of law.” Id. (emphasis in original). We further concluded that the IJ’s
15 adverse credibility determination with respect to the asylum, withholding of removal, and CAT
16 claims was not supported by substantial evidence. Id. at 138-39. Accordingly, we remanded the
17 case to the BIA for reconsideration of Liu’s asylum, withholding of removal, and CAT claims.
18 B. Government’s Petition for Rehearing
19 The government petitions for rehearing, challenging only our determination that we had
20 jurisdiction over the timeliness finding. The government argues that the REAL ID Act permits
21 review of otherwise-barred determinations when “constitutional claims or questions of law” are
22 presented, but that this case involves “essentially a quarrel about fact-finding.” The government
5
1 also argues that the passage in Xiao Ji Chen relied upon by this Court for the proposition that
2 “[t]he IJ’s unambiguous mischaracterization of the record raises a question of law,” Gui Yin Liu,
3 475 F.3d at 138, is dicta, but that, in any event, the IJ in this case did not unambiguously
4 mischaracterize the record.
5 We appointed Lee Gelernt of the American Civil Liberties Union’s Immigrants’ Rights
6 Project (“IRP”) as amicus curiae on behalf of petitioner. Subsequently, Mario Russell of Catholic
7 Charities Community Services (“Catholic Charities”), who had previously served in this case as
8 amicus, moved to appear as amicus as well, and we granted that motion. Amicus IRP argues that
9 Xiao Ji Chen was correctly decided, and that this Court was correct in stating that an unambiguous
10 mischaracterization of the record amounts to a “question of law,” because “[u]nder longstanding
11 doctrine, a factual error amounts to a due process violation where there is not even ‘some
12 evidence’ to support the finding.” IRP takes no position on whether the IJ’s findings with respect
13 to the police report amounted to an unambiguous mischaracterization of the record. Amicus
14 Catholic Charities makes similar arguments, but also argues in a conclusory fashion that the IJ
15 made an unambiguous mischaracterization of the record because “[t]hat the police record . . .
16 unambiguously stated Petitioner had left China on a particular date cannot be disputed.”
17 DISCUSSION
18 A. Asylum Claim
19 Title 8, Section 1158(a)(3) of the United States Code provides that this Court lacks
20 jurisdiction to review the agency’s determinations under 8 U.S.C. § 1158(a)(2)(B).
21 Notwithstanding that provision, however, this Court retains jurisdiction to review “constitutional
22 claims” and “questions of law.” 8 U.S.C. § 1252(a)(2)(D). In Xiao Ji Chen, we stated that
6
1 “although the REAL ID Act restores our jurisdiction to review ‘constitutional claims or questions
2 of law,’ 8 U.S.C. § 1252(a)(2)(D), we remain deprived of jurisdiction to review decisions under
3 the INA when the petition for review essentially disputes the correctness of an IJ’s fact-finding or
4 the wisdom of his exercise of discretion and raises neither a constitutional claim nor a question of
5 law.” 471 F.3d at 329. Although in Xiao Ji Chen we declined to “determine the precise outer
6 limits of the term ‘questions of law,’” id. at 328, we stated that a question of law may “arise for
7 example in fact-finding which is flawed by an error of law” or “where a discretionary decision is
8 argued to be an abuse of discretion because it was made without rational justification or based on
9 a legally erroneous standard,” id. at 329; however, in Xiao Ji Chen we also made clear that a
10 petitioner cannot “us[e] the rhetoric of a ‘constitutional claim’ or ‘question of law’ to disguise
11 what is essentially a quarrel about fact-finding or the exercise of discretion,” id. at 330.
12 In the initial briefing regarding the petition for review, Liu and amicus Catholic Charities
13 argued that the IJ failed to “take into account [Liu’s] full testimony and the circumstances
14 surrounding [his] filing of an asylum application,” mischaracterized the police record, and failed
15 to assess the evidence Liu presented with respect to the one-year deadline in its totality. These
16 arguments amount to “essentially a quarrel about [the IJ’s] fact-finding” with respect to the one-
17 year deadline determination, and we accordingly lack jurisdiction to review that determination. Id.
18 at 330.
19 This is not to say that this Court could never have jurisdiction over a timeliness
20 determination. For example, a petitioner could raise a reviewable “question of law” by arguing
21 that the IJ used the wrong legal standard in coming to his determination. See Ilyas Khan v.
22 Gonzales, 495 F.3d 31, 35 (2d Cir. 2007) (finding jurisdiction where “Khan[] argu[ed] that the IJ
7
1 applied the wrong legal standard”). In this case, Liu does not and could not raise such an
2 argument, because the IJ clearly articulated the “clear and convincing” evidence standard when
3 rendering his timeliness determination.
4 Moreover, even in such cases where the IJ states the correct legal standard, there might
5 arise instances where the evidence presented by an applicant so obviously meets the clear and
6 convincing standard that it becomes evident that although the IJ articulated the correct standard,
7 he erroneously applied a heightened standard. Such an argument could constitute a “question of
8 law” over which this Court has jurisdiction. See id.3 Again, Liu does not and could not raise such
9 an argument here because the IJ in this case set forth the correct standard and then thoroughly
10 stated his reasons for determining that Liu had not met his burden. For example, although we
11 originally interpreted the police report as “expressly stat[ing]” that Liu was in China until June 28,
12 1999, Gui Yin Liu, 475 F.3d at 138, the report was certainly open to other interpretations,
13 including that of the IJ, who apparently found that the police record assumed, but did not
14 affirmatively prove, Liu’s date of departure. The IJ also found that the brother-in-law’s affidavit,
3
In Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007), the Ninth Circuit Court of
Appeals held that “questions of law . . . extends to questions involving the application of statutes
or regulations to undisputed facts, sometimes referred to as mixed questions of fact and law.” Id.
at 650 (internal quotation marks omitted). Accordingly, the court found jurisdiction “to review
Ramadan’s challenge to the IJ’s determination that Ramadan filed to show changed
circumstances to excuse the untimely filing of her application for asylum.” Id. at 648. However,
in Xiao Ji Chen, we made clear that in the REAL ID Act jurisdiction context, “‘[w]hen a court is
presented with a mixed question of law and fact, the court should analyze it to the extent there
are legal elements, but should not review any factual elements.’” Id. at 329 n.7, quoting H.R.
Rep. No. 109-72, at 175, U.S. Code Cong. & Admin. News 2005, at 300. This statement lends
further support to the conclusion that when an IJ has not articulated or applied an incorrect legal
standard, the factual determinations are unreviewable; however, when an IJ makes a
determination that evinces application of an incorrect legal standard, the determination is
reviewable.
8
1 which stated only that Liu asked him to pick him up from a restaurant in New York City on July
2 7, 1999, was not probative of Liu’s date of arrival in the US. We cannot conclude on the record
3 before us that the IJ’s interpretation of the facts indicated an erroneous application of a heightened
4 legal standard, and so a question of law has not been raised.
5 Finally, in Xiao Ji Chen we also left open the possibility that a question of law could arise
6 “in fact-finding which is flawed by an error of law, such as might arise where the IJ states that his
7 decision was based on petitioner’s failure to testify to some pertinent fact when the record of the
8 hearing reveals unambiguously that the petitioner did testify to that fact.” Id. at 329 (emphasis
9 added). In our prior decision in this case, we determined, relying on this passage from Xiao Ji
10 Chen, that the IJ “unambiguously mischaracterized a central element of the record: Liu’s record
11 with the Chinese police.” Gui Yin Liu, 475 F.3d at 138. Accordingly, we concluded that “[t]he IJ’s
12 unambiguous mischaracterization of the record raises a question of law.” Id.
13 Upon reconsideration, we conclude that the IJ did not “unambiguous[ly]
14 mischaracteriz[e]” the record in this case. As stated above, the IJ found that the report was not
15 probative as to Liu’s departure date from China, and he gave several persuasive reasons for this
16 finding, including that the report was not contemporaneously produced and did not affirmatively
17 state that Liu was in China on that date. While we may not ultimately agree with the IJ’s
18 characterization of the police report, it cannot be deemed an “unambiguous mischaracterization.”
19 Any jurisdictional exception set forth in Xiao Ji Chen for unambiguous mischaracterizations of
20 the record simply does not apply in this case, and we need not disturb it or any other holding in
21 Xiao Ji Chen.
22 Accordingly, we now conclude that we do not have jurisdiction to review the timeliness
9
1 determination and that the asylum claim must be dismissed for lack of jurisdiction.
2 B. Withholding of Removal and CAT Claims
3 Although the timeliness issue is dispositive of Liu’s asylum claim, his withholding of
4 removal and CAT claims are unaffected by that determination. In our prior opinion, we remanded
5 all of the claims, concluding that the IJ’s adverse credibility determination was not supported by
6 substantial evidence because the IJ’s finding that Liu’s testimony was insufficiently detailed was
7 flawed. Gui Yin Liu, 475 F.3d at 138-39; see also Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d
8 517, 523 (2d Cir. 2007) (“The IJ’s factual findings, including adverse credibility findings, are
9 reviewed under the substantial evidence standard of 8 U.S.C. § 1252(b)(4)(B).”). The government
10 did not challenge that conclusion in its petition for rehearing. Accordingly, our conclusion that
11 substantial evidence did not support the adverse credibility determination stands as to the
12 withholding of removal and CAT claims.4
13 However, since our original opinion in this case was published, this Court decided Shi
14 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (en banc), in which we held that
15 under the plain language of 8 U.S.C. § 1101(a)(42), a claim of persecution based solely on a
16 forced abortion or sterilization procedure can only be brought by the individual who has
4
We recognize the apparent inconsistency between, on the one hand, rejecting the IJ’s
adverse credibility determination as to the withholding of removal and CAT claims, and, on the
other, upholding the timeliness determination with respect to the asylum claim, which was based
in part on the adverse credibility determination. However, as stated above, while an IJ’s adverse
credibility finding, which is a factual determination, is reviewed under the substantial evidence
standard, we are without jurisdiction to review an IJ’s timeliness determination, which is also a
factual finding, unless the finding was flawed by an error of law. Although we now hold that the
IJ’s timeliness determination did not raise a legal issue, and we thus lack jurisdiction to review
that finding, we are not barred from reviewing the adverse credibility determination with respect
to the withholding of removal and CAT claims and concluding that it was not supported by
substantial evidence in the record.
10
1 undergone the procedure. Id. at 309-310 (stating that spouses or other partners “must turn to the
2 two remaining categories of § 601(a), which provide protection to petitioners who demonstrate
3 ‘other resistance to a coercive population control program’ or ‘a well founded fear that he or she
4 will be . . . subject to persecution for such . . . resistance. . . .’” ) (ellipses in original).
5 Accordingly, Liu’s withholding of removal claim, to the extent it is based only on his wife’s
6 forced sterilization, is doomed.
7 However, Liu’s claims are not based solely on his wife’s forced sterilization. Indeed, even
8 before our decision in Shi Liang Lin was handed down, Liu claimed, inter alia, that he “possesses
9 a well-founded fear of future persecution at the hands of the family planning cadres, should he
10 return to China, because there is a reasonable possibility that he will be harmed” (internal
11 quotation marks omitted); that he suffered persecution “pursuant to the Chinese population
12 control policy and [fears] persecution . . . on return to China for his resistance to that policy”; and
13 that he “has demonstrated that he is eligible for withholding of removal . . . , since his freedom
14 would be threatened upon return to China on account of his political opinions.”5
15 Accordingly, on remand, the BIA should decide in the first instance whether Liu’s
16 withholding of removal claim survives Shi Liang Lin, including, if necessary, by remanding to the
17 IJ for additional proceedings so that the record with respect to Liu’s other resistance and well-
18 founded fear claims can be adequately developed. See Qun Yang v. McElroy, 277 F.3d 158, 162
19 (2d Cir. 2002) (“[T]he IJ . . . , unlike an Article III judge, is not merely the fact finder and
5
Indeed, the IJ appeared to recognize that Liu’s claims were not based solely on his wife’s
forced sterilization, stating in his decision that the adverse credibility determination compels a
finding that “it is [not] more likely than not that the respondent would be persecuted in China
upon return to that country.”
11
1 adjudicator but also has an obligation to establish the record.”).6
2 CONCLUSION
3 For the foregoing reasons, the petition for rehearing of our January 30, 2007 decision in
4 this case is GRANTED, and that decision is VACATED in part. The petition for review of the
5 denial of asylum is DISMISSED for lack of jurisdiction, and the petition for review of the
6 withholding of removal and CAT claims is GRANTED. The BIA’s order is VACATED in part
7 and REMANDED in part for further proceedings consistent with this opinion. Having completed
8 our review, the stay of removal that the Court previously granted in this petition is VACATED.
6
As we stated in our earlier opinion, because Liu failed to argue before either this Court or
the BIA his claims for relief based on the illegal nature of his departure from China, we consider
that basis for relief abandoned. See 8 U.S.C. § 1252(d)(1); Yueqing Zhang v. Gonzales, 426 F.3d
540, 545 n.7 (2d Cir. 2005).
12
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6 F.3d 1355
72 A.F.T.R.2d 93-6272, 93-2 USTC P 50,630
E.J. FRIEDMAN COMPANY, INC., Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 92-55572.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Aug. 4, 1993.Decided Sept. 29, 1993.
William W. Holcomb and Robert H. Horn, Tyre, Kamins, Katz & Granof, Los Angeles, CA, for plaintiff-appellant.
Sally J. Schornstheimer and Gary R. Allen, U.S. Dept. of Justice, Washington, DC, for defendant-appellee.
Appeal from the United States District Court for the Central District of California.
Before: NORRIS, WIGGINS, O'SCANNLAIN, Circuit Judges.
WIGGINS, Circuit Judge:
OVERVIEW
1
E.J. Friedman Company, Inc. ("Friedman")1 brought an action in district court to compel the United States to discharge a federal tax lien encumbering several parcels of property. Friedman advanced several theories to support its request for relief. The district court dismissed all of Friedman's claims. Friedman appeals, and we affirm.
FACTS AND PRIOR PROCEEDINGS
2
Berkshire Dallas, Inc. ("Berkshire") purchased a parcel of property on which it planned to build 56 homes in two phases. Sterling Savings and Loan Association ("Sterling") made two loans to Berkshire, one in the amount of $695,000 ("Land Loan"), which partially financed Berkshire's purchase of the property, and another in the amount of $2,083,000 ("Construction Loan"), which was to finance construction of the first twenty-six homes in the project. The loans were secured by first and second deeds of trust on the property.
3
Friedman also made two loans to Berkshire. The first, in the amount of $470,000, was for purchase of the property. Later, Friedman loaned Berkshire an additional $200,000. Both loans were secured by deeds of trust on the property, which were subordinate to Sterling's deeds of trust.
4
Subsequent to the recording of all the trust deeds, the IRS recorded a federal tax lien against the real property owned by Berkshire, including all the property at issue here. On the date the tax lien was recorded, Berkshire was in default on all of the loans, and numerous mechanics' liens and stop notice claims had been filed against Berkshire's development property. After the tax lien was recorded, Sterling informed Friedman that it intended to foreclose on the property, eliminating all junior interests including Friedman's. To this point, fourteen homes had been completed and sold. The remaining twelve homes were either in escrow or subject to binding contracts of sale pending the completion of construction.
5
In an effort to avoid having its interest in the property foreclosed, Friedman began negotiating a workout agreement with Sterling. Friedman contacted an IRS agent to discuss the possibility of securing a release of the tax lien under 26 U.S.C. Sec. 6325 on the ground that the Berkshire had no equity in the property. Based on the conversation with the agent, Friedman determined that it would not seek a release of the tax lien at that time because it would take too long. Instead, Friedman, Sterling, and Ticor Title Insurance Co. ("Ticor") agreed to the following workout arrangement.
6
Friedman convinced Sterling and Ticor to proceed with sales of the remaining twelve homes. Ticor would insure over the tax liens and not show the lien as an exception on the title policies. Proceeds of the sales would go to Sterling to pay down its senior loans. After the homes were sold, Friedman would purchase the rest of Sterling's loans. Friedman agreed to indemnify Ticor and Sterling against the tax lien. Eleven of the homes were sold pursuant to this agreement. Berkshire sold the other home for cash outside of escrow and misappropriated the funds.
7
Following the home sales, Friedman purchased Sterling's Land Loan, which was secured by the unbuilt portion of the development and the house that was sold by Berkshire. Friedman and Sterling released their trust deeds on the eleven homes sold under the workout agreement. Friedman foreclosed on the unbuilt portion of the development, and the IRS declined to exercise its rights of redemption. Friedman still retains the Land Loan deeds of trust, which encumber the lot and house improperly sold by Berkshire.
8
Subsequently, Friedman applied for a discharge of the tax lien. The IRS refused to release the lien, and Friedman filed this action. Friedman seeks a discharge of the tax lien encumbering the eleven homes sold under the workout agreement and the home sold by Berkshire.
STANDARDS OF REVIEW
9
"Whether the United States waived its sovereign immunity is a question of law reviewed de novo." Arford v. United States, 934 F.2d 229, 231 (9th Cir.1991) (emphasis deleted). Waivers of sovereign immunity must be strictly construed in favor of the government. See Campbell v. United States, 835 F.2d 193, 195 (9th Cir.1987). Interpretation of a statute also presents a question of law reviewed de novo. See Home Sav. Bank v. Gillam, 952 F.2d 1152, 1156 (9th Cir.1991).
DISCUSSION
10
First, we must determine whether the United States has waived its sovereign immunity to this action. This court has stated that "[i]n an action against the United States, in addition to statutory authority granting subject matter jurisdiction, there must be a waiver of sovereign immunity." Arford, 934 F.2d at 231. While, 28 U.S.C. Sec. 1340 provides statutory authority for subject matter jurisdiction over Friedman's claims, see Arford, 934 F.2d at 231, Friedman must still clear the second jurisdictional hurdle by pointing to a waiver of sovereign immunity before we can conclude that the district court had subject matter jurisdiction. See id.; Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985).
11
Friedman argues that 28 U.S.C. Sec. 2410, 28 U.S.C. Sec. 2201, and 5 U.S.C. Sec. 702 waive sovereign immunity in this case. We disagree.
I.
12
First, Friedman argues that it can bring this action under 28 U.S.C. Sec. 2410. Section 2410 provides that "the United States may be named a party in any civil action or suit in any district court ... to quiet title to ... real or personal property on which the United States has or claims a mortgage or other lien." 28 U.S.C. Sec. 2410 (1993). On its face, it would appear that this statute permits Friedman to bring this claim for relief. The government contends, however, that Friedman does not have a sufficient interest in the property to bring this action. Moreover, there is some question as to whether this kind of action is cognizable under Sec. 2410.
13
In Shaw v. United States, 331 F.2d 493 (9th Cir.1964), this court dismissed an action to quiet title brought by the wife of a taxpayer against whom the IRS had filed a notice of tax lien. The court indicated that because the wife's complaint showed no invasion of any property interest of her own, she had failed to state a claim under Sec. 2410. Id. at 496-98. Thus, Shaw indicates that a party must have some "property interest of [its] own" to be able to bring a quiet title action under Sec. 2410.
14
Friedman argues that its interest in the various properties is sufficient. We agree in part and disagree in part. Under the stipulated facts, Friedman still holds a trust deed on the lot and home Berkshire sold for cash. Thus, Friedman has an interest of its own in this property that would permit it to bring an action to quiet title. Friedman also seeks to quiet title to the eleven homes sold under the workout agreement. However, Friedman has "no property interest of [its] own" in these properties. Accordingly, Sec. 2410 does not permit Friedman to bring an action to quiet title to the homes sold under the workout agreement. See id.; see also Raulerson v. United States, 786 F.2d 1090, 1091 (11th Cir.1986) (indicating that an action to quiet title under Sec. 2410 cannot be brought by a party that has forfeited its rights in the property); Commonwealth Land Title Ins. Co. v. United States, 759 F.Supp. 87, 92-94 (D.Conn.1991) (indicating that a title company did not have a sufficient interest in property it insured to bring a Sec. 2410 action).
15
Notwithstanding the fact that Friedman's interest in the home Berkshire sold for cash is probably sufficient to support an action under Sec. 2410, we conclude that Friedman's action is not cognizable under that section. This court has stated that Sec. 2410 permits "quiet title actions challenging the procedural aspects of tax liens, but not the merits of the underlying tax assessments." Arford, 934 F.2d at 232. Here, Friedman's claim is not easily classified as either. Friedman does not argue that any procedural violations occurred in connection with this lien. On the other hand, he does not challenge the merits of the assessment underlying the lien either. What he seeks is a declaration that the property is not encumbered by the tax lien because the lien is worthless. We conclude that such a claim simply does not fall within the scope of Sec. 2410.
16
This court has indicated that Sec. 2410 permits only claims that are procedural. See Elias v. Connett, 908 F.2d 521, 527 (9th Cir.1990) (stating that a "taxpayer may only contest the procedural validity of a tax lien" under Sec. 2410); see also Johnson v. United States, 990 F.2d 41, 43 (2nd Cir.1993) (indicating that Johnson's claim could be maintained under Sec. 2410 because it was procedural in nature). Moreover, the IRS has specifically provided a procedure for discharging a lien when the interest of the United States is valueless. See 26 U.S.C. Sec. 6325(b)(2)(B) (1993). Section 6325 permits the Secretary to release tax liens that are valueless. However, the section leaves the determination to the discretion of the Secretary. See United States v. Polk, 822 F.2d 871, 874 (9th Cir.1987). To permit a party to discharge a "valueless" lien in a quiet title action under Sec. 2410 would be contrary to the provisions of Sec. 6325(b)(2)(B) and would rob the Secretary of the discretion granted him by Congress. Cf. Polk, 822 F.2d at 874. Accordingly, we conclude that this action is not cognizable under Sec. 2410 and therefore that Sec. 2410 does not serve as a waiver of immunity in this case.2 See Elias, 908 F.2d at 528 ("Because Elias failed to state a 28 U.S.C. Sec. 2410(a) cause of action, the United States did not waive its sovereign immunity to suit.").
II.
17
We also reject Friedman's argument that 28 U.S.C. Sec. 2201 waives the sovereign immunity of the United States to this action. Friedman seeks a declaratory judgment with respect to the interests that exist in the property subject to the federal tax lien. While Sec. 2201 grants jurisdiction to the district court over cases seeking declaratory relief, a "specific exception exists ... for disputes 'with respect to Federal taxes.' " Hughes v. United States, 953 F.2d 531, 536-37 (9th Cir.1992) (quoting 28 U.S.C. Sec. 2201 (1993)). Because the case at bar involves federal taxes, declaratory relief is unavailable, and Sec. 2201 cannot serve as a waiver of sovereign immunity. Id.
III.
18
Finally, Friedman argues that the Secretary's refusal to discharge the lien under 26 U.S.C. Sec. 6325(b) is reviewable under the Administrative Procedure Act, 5 U.S.C. Secs. 701-706 ("APA").3 This question has not been addressed directly by this court or any other circuit.4 We conclude that the IRS's refusal to discharge the lien under Sec. 6325(b) is not reviewable under the APA.
19
Under the APA a party " 'adversely affected or aggrieved' by agency action" can obtain judicial review thereof, "so long as the decision challenged represents a 'final agency action for which there is no other adequate remedy in a court.' " Webster v. Doe, 486 U.S. 592, 599, 108 S.Ct. 2047, 2051, 100 L.Ed.2d 632 (1988) (quoting 5 U.S.C. Secs. 702 & 704 (1988)). The standards to be applied on review are outlined in Sec. 706 of the APA. Section 701(a)(2), however, indicates that the APA does not apply to agency actions committed to agency discretion by law. Indeed, the Supreme Court has indicated that the Sec. 701(a) hurdle must be cleared "before any review at all may be had" under the APA. Heckler v. Chaney, 470 U.S. 821, 828, 105 S.Ct. 1649, 1654, 84 L.Ed.2d 714 (1985).
20
In Heckler, the Supreme Court indicated that review cannot be had if a statute commits agency action to agency discretion and "the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." 470 U.S. at 830, 105 S.Ct. at 1655; see also 5 U.S.C. Sec. 701(a)(2) (1993); County of Esmeralda v. United States, 925 F.2d 1216, 1218 (9th Cir.1991). Here, the statutes and regulations provide that the IRS may, in its discretion, issue a certificate of discharge if it determines that the interest of the United States in the property to be discharged has no value. See 26 U.S.C. Sec. 6325(b); 26 C.F.R. Sec. 301.6325-1(b)(2) (1993). While Sec. 701(a)(2) is a narrow exception, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971), we cannot escape the conclusion that the decision to discharge a lien under Sec. 6325(b) falls squarely within its scope. The section commits the decision to discharge a lien to agency discretion, see Polk, 822 F.2d at 874 (indicating that the IRS did not abuse the discretion granted it by the statute); see also Adams v. FAA, 1 F.3d 955, 956-57 (9th Cir.1993) (per curiam), and the statute is drawn such that there is no standard against which to judge the IRS's exercise of discretion. Accordingly, we hold that a refusal to discharge a lien under Sec. 6325(b) is not reviewable under the APA. Thus, the APA also does not serve as a waiver of sovereign immunity here. Without a valid waiver of sovereign immunity, the district court did not have subject matter jurisdiction over this matter. See Gilbert, 756 F.2d at 1458-59.
21
AFFIRMED.
1
Friedman is the successor in interest by merger to Frieburke, Inc., the actual entity involved in the subject transactions. To avoid confusion, we refer to Frieburke, Inc. as Friedman
2
We point out that this is not a case in which a taxpayer seeks to compel the IRS to release a lien after complying with the provisions of 26 U.S.C. Sec. 6325(a) and 26 C.F.R. Sec. 301.6325-1(a). As discussed below, that section does not apply in this matter. See supra note 3. Were this an action brought by a taxpayer that had complied with the provisions of Sec. 6325(a) and the regulations promulgated thereunder, the taxpayer may be able to compel the IRS to discharge the lien under 28 U.S.C. Secs. 1361 or 2410, see Overton v. United States, 925 F.2d 1282, 1285 & n. 1 (10th Cir.1991), or bring an action for damages under 26 U.S.C. Sec. 7432. See McMillen v. United States, 960 F.2d 187, 190 (1st Cir.1991)
3
Friedman also argues that the IRS should have discharged the lien under the mandatory provisions of Sec. 6325(a). However, we need not decide whether refusal to discharge a lien under Sec. 6325(a) is reviewable under the APA because Sec. 6325(a) clearly does not apply to Friedman's request for a discharge of the lien
Section 6325(a) requires the IRS to release a lien if "the liability for the amount assessed ... has been fully satisfied or has become legally unenforceable." The regulations promulgated pursuant to the specific authority in the statute indicate that the entire liability must have been satisfied or become "unenforceable as a matter of law (not merely uncollectible or unenforceable as a matter of fact)." 26 C.F.R. Sec. 310.6325-1(a)(1) (1993). Here, Friedman does not claim that the liability has become legally unenforceable; he maintains that the lien is valueless or "merely uncollectible or unenforceable as a matter of fact." Thus, Friedman's claim is not governed by the mandatory provisions of Sec. 6325(a), and Friedman can claim no relief under that section.
4
The only reported cases even remotely to address this question are Polk and Simon v. United States, 756 F.2d 696, 699 (9th Cir.1985). In both cases, this court failed to discuss whether the IRS's refusal to discharge a lien was reviewable under the APA, but instead indicated that particular refusals to discharge liens under Sec. 6325 were not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Simon, 756 F.2d at 699 (quoting 5 U.S.C. Sec. 706(2)(A) (1976)); see also Polk, 822 F.2d at 874
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ZACHARY C. DIXON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-2987
[June 24, 2015]
Appeal of order denying rule 3.800 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Karen M. Miller, Judge;
L.T. Case No. 501999CF003976AXXX-MB.
Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mark John
Hamel, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
We reverse the trial court’s order denying appellant’s motion for
postconviction relief and remand this matter for further proceedings
consistent with Falcon v. State, 40 Fla. L. Weekly S151 (Fla. Mar. 19,
2015), and Horsley v. State, 160 So. 3d 393 (Fla. 2015).
DAMOORGIAN, C.J., GROSS and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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FILED
NOT FOR PUBLICATION APR 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10412
Plaintiff - Appellee, D.C. No. 1:07-cr-00049-AWI
v.
MEMORANDUM*
KENNETH HENRY McDONALD, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted April 16, 2013**
Before: CANBY, IKUTA, and WATFORD, Circuit Judges.
Kenneth Henry McDonald, Jr. appeals from the district court’s revocation of
supervised release and the nine-month sentence imposed upon revocation. We
have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
McDonald contends, and the government agrees, that the district court
improperly delegated judicial authority by construing Standard Condition 3 to
permit the probation officer to prohibit McDonald from possessing certain types of
cell phones and images of minors. A district court may only “delegate to the
probation officer the details of where and when the condition will be satisfied.”
United States v. Stephens, 424 F.3d 876, 880 (9th Cir. 2005). Here, construing
Standard Condition 3 to allow the probation officer to impose new substantive
conditions was an improper delegation regarding the “primary decision” of what
supervised release conditions should be imposed. See id. at 882. Accordingly, we
vacate the judgment and remand for resentencing solely on the basis of
McDonald’s violation of Special Condition 8.
VACATED and REMANDED.
2 12-10412
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82 N.W.2d 578 (1957)
164 Neb. 435
Herbert F. BULLER et al., Appellants,
v.
The CITY OF OMAHA et al., Appellees.
No. 34167.
Supreme Court of Nebraska.
April 19, 1957.
*579 A. Clark Murdock, Harry B. Otis, Geo. B. Boland, Omaha, for appellants.
Edward F. Fogarty, City Atty., Bernard E. Vinardi, Asst. City Atty., Neal H. Hilmes, Asst. City Atty., Irving B. Epstein, Asst. City Atty., Eugene F. Fitzgerald, County Atty., John C. Burke, Deputy County Atty., Omaha, for appellees.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
CHAPPELL, Justice.
Plaintiffs, Herbert F. Buller, Robert F. Clauss, Max E. Freeman, and Robert E. Wear, for themselves and others similarly situated, brought this action against defendants, City of Omaha, a municipal corporation of the metropolitan class located in Douglas County, its named mayor and city councilmen, the named county commissioners, county clerk, and county assessor of Douglas County, and the named treasurer of said city and county, seeking to have annexation ordinance No. 18906, enacted by the city council, declared to be unconstitutional and void as in violation of Article III, section 5, Constitution of Nebraska.
*580 In such respect, plaintiffs' theory was that "although otherwise lawful," the ordinance allegedly changed the territorial boundaries of legislative districts Nos. 9 and 10 in which the annexed lands lie. Plaintiffs also sought to enjoin enforcement of said ordinance and obtain general equitable relief. Defendants filed general demurrers to plaintiffs' petition, which the trial court sustained. Thereupon plaintiffs elected to stand upon their petition and, having refused to further plead, the trial court dismissed their petition. Thereafter, plaintiffs' motion for new trial was overruled and they appealed, assigning that the trial court erred in sustaining defendants' demurrers and dismissing their petition. We conclude that the assignment has no merit.
Plaintiffs' petition may be summarized as follows: They alleged that plaintiffs were residents of Douglas County and owners in possession of real estate within the area described in annexation ordinance No. 18906, a copy of which was attached to and made a part of their petition, and that this action was brought on behalf of themselves and all other persons similarly situated.
They alleged that defendant city of Omaha was a city of the metropolitan class, located in Douglas County, and that the other named defendants were respectively mayor and city councilmen of Omaha, county commissioners, county clerk, and county assessor of Douglas County, and treasurer of Douglas County and the city of Omaha. They alleged that said city is governed by a home rule charter under the Constitution and laws of Nebraska, which charter, with the exception of immaterial amendments, is found in Chapter 14, R.R.S.1943, wherein the sections relating to the power and authority of defendant city and its council in the matter of extending its corporate limits by annexation of territory will be found.
Plaintiffs alleged that on July 3, 1956, defendant city council purported to pass annexation ordinance No. 18906; that defendants and each of them contend that said ordinance was duly passed and is a valid and subsisting ordinance of defendant city; and that unless restrained and enjoined, they will enforce same upon the area therein described, and such area will be considered and dealt with as a part of the city of Omaha.
Plaintiffs' petition then recited the provisions of Article III, section 5, Constitution of Nebraska, and alleged that pursuant thereto the Nebraska State Legislature at its 1935 session enacted applicable section 5-104, R.R.S.1943, which divided the State of Nebraska into 43 legislative districts, each consisting of certain described territory, and provided that each legislative district should be entitled to one member.
Thereafter, plaintiffs recited the provisions of said section, which legislatively described the territory included in legislative districts Nos. 9 and 10, and alleged that purported ordinance No. 18906 violated the integrity of such legislative districts by changing the corporate limits of the city of Omaha between Pacific Street and Howard Street, and between Pacific Street and Charles Street, and in so doing, it changed the territorial boundaries of legislative districts Nos. 9 and 10 in direct violation of Article III, section 5, Constitution of Nebraska, and laws of the state, which deprived plaintiffs of the right to vote for the legislative candidate for legislative district No. 10, a privilege theretofore enjoyed by them.
In Cacek v. Munson, 160 Neb. 187, 69 N.W.2d 692, 695, we reaffirmed that:
"A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.
"In passing on a demurrer to a petition, the court will consider an exhibit attached thereto and made a part thereof, if the allegations stated therein *581 either aid the petition in stating a cause of action or charge facts going to avoid liability on the part of the defendant."
The exclusive mandate requiring the Legislature to divide the state into legislative districts and prescribing the time and manner of their creation is found in Article 111, section 5, Constitution of Nebraska, which provides as follows:
"At the regular session of the Legislature held in the year nineteen hundred and thirty-five the Legislature shall be law determine the number of members to be elected and divide the state into Legislative Districts. In the creation of such Districts, any county that contains population sufficient to entitle it to two or more members of the Legislature shall be divided into separate and distinct Legislative Districts, as nearly equal in population as may be and composed of contiguous and compact territory. After the creation of such districts, beginning in nineteen hundred and thirty-six and every two years thereafter, one member of the Legislature shall be elected from each such District. The basis of apportionment shall be the population excluding aliens, as shown by next preceding federal census. In like manner, when necessary to a correction of inequalities in the population of such districts, the state may be redistricted from time to time, but no oftener than once in ten years."
Pursuant to that concededly exclusive power and authority, the Legislature proceeded to divide the state into legislative districts by enacting Laws 1935, chapter 109, section 1, page 350, which is now section 5-104, R.R.S.1943.
As here involved, that section provides:
"District No. 9. Includes the following territory in the county of Douglas and the city of Omaha: North from Pacific to Howard, between the western corporate limits and 60th Street; north from Pacific to Dodge, between 56th and 60th Streets; north from Pacific to Charles, between the western corporate limits and 56th Avenue; north from Leavenworth to Charles, between 46th Avenue and 36th Street; north from Leavenworth to Cuming, between 30th and 36th Streets; north from Leavenworth to Farnam, between 30th and Park Avenue.
"District No. 10. Includes the following territory in the county of Douglas and the city of Omaha: North from Charles to Blondo, between western corporate limits and 49th Street; north from Blondo to Lake, between 66th Street and 50th Street; all north of Lake between 72nd Street and 48th Street; and all of the rural precincts."
Annexation ordinance No. 18906, as authorized by section 14-117, R.R.S.1943, extended the corporate limits of the city of Omaha over certain extensively described lands in Douglas County. It incorporated such lands into and made same a part of the city of Omaha, and repealed any and all ordinances insofar as they conflicted with that ordinance. Its provisions are too verbose to recite in this opinion. It is sufficient for us to say that its provisions made no reference whatever to and in no manner attempted either directly or indirectly to change the boundaries of territory legislatively included in the legislative districts as prescribed aforesaid by section 5-104, R.R.S.1943.
We find no essential connection between annexation ordinance No. 18906 and section 5-104, R.R.S.1943, which defines and fixes the territory included in legislative districts Nos. 9 and 10. Any reference in the latter to "corporate limits" is simply descriptive and casual but fixes their permanent legislative territorial boundary lines. To hold otherwise would require us to read into section 5-104, R.R. S.1943, a legislative intention to bar annexation under previously enacted section *582 14-117, R.R.S.1943, beyond the lines at which the "corporate limits" form a common boundary. We find no such legislative intention. The two statutes are not conflicting but may be harmonized by logically concluding that the Legislature had no intention by using the expression "corporate limits" to limit the annexation statutes beyond any possibility of reasonable operation which would lead to palpable injustice or absurdity. In Kelley v. Gage County, 67 Neb. 6, 93 N.W. 194, affirmed on rehearing at 67 Neb. 11, 99 N.W. 524, and reaffirmed in State ex rel. Reed v. Grimes, 98 Neb. 762, 154 N.W. 544, this court stated the applicable rule as follows: "In the exposition of statutes, the reason and intention of the lawgiver will control the strict letter of the law when the latter would lead to palpable injustice or absurdity."
Article III, section 5, Constitution of Nebraska, requires that legislative districts shall be "separate and distinct." Those words require that the boundaries of a legislative district shall be fixed boundaries and the only manner in which such boundaries can be changed is by legislative action and then "no oftener than once in ten years." Therefore, when the Legislature fixed the boundary lines of legislative district No. 9 in part as "North from Pacific to Howard, between the western corporate limits and 60th Street" (italics supplied) in the city of Omaha, and the boundary lines of legislative district No. 10 in part as "North from Charles to Blondo, between western corporate limits and 49th Street" (italics supplied) in the city of Omaha, they must be construed to mean the corporate limits of the city as they existed at the time of the adoption of section 5-104, R.R.S.1943, until further appropriate action is taken by the Legislature as authorized by Article III, section 5, Constitution of Nebraska. In other words, the boundaries of legislative districts Nos. 9 and 10 in Douglas County and the city of Omaha must remain as originally established until changed by the Legislature in the manner provided by Article III, section 5, Constitution of Nebraska, and they cannot be changed or affected in any manner by any changes in the corporate limits of the city of Omaha by its annexation ordinances.
As stated in 50 Am.Jur., Statutes, § 236, p. 224: "Because it is easy to be wise after one sees the results of experience, there is always a tendency, it has been said, to construe the language of a statute in the light in which it appears when the construction is given. Such an approach to the question is erroneous. Since, in determining the meaning of the terms of a statute, the aim is to discover the connotation which the legislature attached to the words, phrases, and clauses employed, the words of a statute must be taken in the sense in which they were understood at the time when the statute was enacted, and the statute must be construed as it was intended to be understood when it was passed." That statement has application here.
Issues comparable with those presented in the case at bar were raised and like conclusions were reached in the recent case of Fish Creek Park Co. v. Village of Bayside, 274 Wis. 533, 80 N.W.2d 437, 440. In that opinion, quoting from Town of Greenfield v. City of Milwaukee, 273 Wis. 484, 78 N.W.2d 909, the court said: "`Another immediate answer to the Town's argument is that the effect of its argument, if good, would only render void the changed boundaries of the legislative districts. It would not invalidate the annexation, which is the question now before us.'" Thereafter, the opinion went on to say: "That determines the question before us. We affirm the trial court's determination that the annexation proceedings were valid and that the annexed area in the town of Mequon remains a part of the Ozaukee county assembly district. Provision will have to be made by the village so that persons residing in the annexed area may vote for candidates for the assembly in the Ozaukee county district."
That precedent has logical application here. By analogy, ordinance No. 18906, *583 which is otherwise concededly valid, is not unconstitutional as in violation of Article III, section 5, Constitution of Nebraska, because the territory thereby annexed to the city of Omaha remains a part of the legislative districts prescribed by section 5-104, R.R.S.1943. Lawful provision will have to be made so that persons residing in such annexed territory may vote for legislative candidates in such districts. In that connection, authorities relied upon by plaintiffs are entirely distinguishable upon the facts, applicable statutes, and constitutional provisions unlike our own.
For reasons heretofore stated, we conclude that the judgment of the trial court should be and hereby is affirmed. All costs are taxed to plaintiffs.
Affirmed.
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949 P.2d 847 (1998)
STATE of Washington, Respondent,
v.
Anna E. HUNNEL, Appellant.
No. 21176-9-II.
Court of Appeals of Washington, Division 2.
January 23, 1998.
*848 David R. Johnson, (Court Appointed), Olympia, for Appellant.
Pamela Beth Loginsky, Kitsap County Deputy Prosecuting Attorney, Port Orchard, for Respondent.
ARMSTRONG, Judge.
Anna E. Hunnel appeals her Kitsap County Superior Court conviction of unlawful possession of a controlled substance, RCW 69.50.401(d). She contends that the police illegally searched her purse after arresting the driver of the automobile in which she was a passenger. Specifically, Hunnel argues that her right to privacy was violated when the police ordered her to exit the vehicle but leave her purse, which was on the floor beneath the passenger's front seat. We affirm, holding that the officer's order was lawful because the police had authority to search the purse under the "bright-line" rule enunciated in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and State v. Stroud, 106 Wash.2d 144, 720 P.2d 436 (1986).
FACTS
While on routine patrol, Deputy Earl Smith saw John Hunnel driving a car. Aware of an outstanding arrest warrant for Hunnel, the deputy stopped the car. As he approached the car, Deputy Smith saw Anna Hunnel sitting in the front passenger seat and three children sitting in the back seat. The deputy asked Anna Hunnel for identification, and he saw her produce an identification card from her purse.
Deputy Smith verified that Mr. Hunnel had outstanding arrest warrants and also learned that his driver's license was suspended in the third degree. The deputy asked Mr. Hunnel to exit the car, advised him he was under arrest, and handcuffed him. Deputy Smith then asked Anna Hunnel to step away from the car while he searched the interior of the car. Anna Hunnel tried to take her purse with her, but the deputy told her to leave it in the car.
During his search of Anna Hunnel's unlocked purse, which was on the passenger-side floor, Deputy Smith found a match holder containing two small plastic bags with a white powdery substance. Believing the substance to be methamphetamine, the deputy arrested Anna Hunnel and advised her of her Miranda rights. Anna Hunnel agreed to speak with Deputy Smith. She told him that she had the methamphetamine in her purse for about a month, that it was for her personal consumption, and that she snorts it once a week.
Following a suppression hearing, the court concluded that: (1) prior to her arrest, Anna Hunnel was in a "non-custodial setting"; (2) Deputy Smith conducted a lawful search of the vehicle incident to John Hunnel's arrest; and (3) Deputy Smith had legal authority to search the unlocked purse that remained in the car after John Hunnel's arrest. The court admitted the drugs and Anna Hunnel's statements at trial. Anna Hunnel was convicted by bench trial on stipulated facts of one count of possession of a controlled substance, RCW 69.50.401(d).
*849 ANALYSIS
Hunnel argues that the officer's instruction to the passenger not to remove anything from the car was an unlawful, warrantless seizure of her purse. Whether the officer's seizure was lawful depends upon whether, at the time, the officer had the right to search the purse. If he did, he necessarily had the right to seize the purse. We, therefore, first consider whether the officer had the right to search the purse at the time he ordered Hunnel to leave it in the car.
In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, the Supreme Court set forth a "bright-line" rule establishing the scope of a search incident to the arrest of an occupant of an automobile. Belton involved the search of a passenger's purse left in an automobile after the passenger had been arrested for possession of marijuana. Belton held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Belton, 453 U.S. at 460, 101 S.Ct. at 2864. The rationale for this search, as recognized in Belton, is "the need `to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape,' and the need to prevent the concealment or destruction of evidence." Belton, 453 U.S. at 457, 101 S.Ct. at 2862 (quoting Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969)).
Belton included within the scope of such a search all containers located in the passenger compartment, defining "container" as "any object capable of holding another object." Belton, 453 U.S. at 461 n. 4, 101 S.Ct. at 2864 n. 4. Hunnel's purse meets the definition of a container under Belton.
Washington followed the Belton "bright-line" rule in State v. Stroud, 106 Wash.2d 144, 720 P.2d 436.[1]Stroud specifically held that "[w]eighing the `totality of circumstances' is too much of a burden to put on police officers who must make a decision to search with little more than a moment's reflection." Stroud, 106 Wash.2d at 151, 720 P.2d 436. Recognizing that the Washington State Constitution, article 1, section 7, grants privacy rights beyond those of the United States Constitution, the court held that locked containers or compartments in the passenger compartment of a vehicle are still protected. Stroud, 106 Wash.2d at 150-52, 720 P.2d 436.
Since Stroud, Washington courts have held that the arrest of a passenger in an automobile justifies a search of the passenger compartment. State v. Cass, 62 Wash.App. 793, 816 P.2d 57 (1991). Officers may search purses left in a vehicle by either the driver, State v. Fladebo, 113 Wash.2d 388, 779 P.2d 707 (1989), or the passenger, State v. Parker, 88 Wash.App. 273, 944 P.2d 1081 (1997). And the search of the passenger compartment can occur after the driver and passengers have been removed from the vehicle, so long as the search is performed immediately thereafter. State v. Mitzlaff, 80 Wash.App. 184, 187, 907 P.2d 328 (1995) review denied, 129 Wash.2d 1015, 917 P.2d 575 (1996) (citing Fladebo, 113 Wash.2d at 395-97, 779 P.2d 707). But, incident to the arrest of a vehicle's driver, an officer may not search the purse of a passenger who has exited the vehicle and removed her purse from the vehicle. State v. Seitz, 86 Wash.App. 865, 941 P.2d 5 (1997). We conclude that Hunnel's purse was a searchable container in the car under the rules of Belton and Stroud.
But Hunnel places great emphasis on the trial court's determination that the officer knew Hunnel owned the purse. Neither Belton nor Stroud, however, discussed ownership or limited the search of containers to those owned by the arrested person. Indeed, requiring the officer to ascertain the ownership of containers in the vehicle would so blur the Belton-Stroud "bright-line" rule as to make it unworkable. Moreover, Hunnel's *850 ownership of the purse is irrelevant to the rationale of Belton-Stroud:
Third-party ownership of the auto or "containers" therein would not necessarily prevent the arrestee from gaining access to those items. It should not, therefore, bar the police from searching them in the same manner as if they were owned by the arrestee.
Staten v. United States, 562 A.2d 90, 92 (D.C.App.1989).
We recognize that Division III of this court has recently held unlawful the search of a driver's purse following the passenger's arrest. State v. Nelson, 948 P.2d 1314 (Wash.Ct.App.1997). The court distinguished Parker[2] and Seitz by the "amount of control the non-arrested person maintains over his or her personal property," Nelson, 948 P.2d at 1316, and held that "[w]hen the person maintains control over the personal property and there are no furtive movements indicating he or she is trying to hide something, the police are not allowed to search the property." Nelson, 948 P.2d at 1316. We disagree with this analysis.
Belton held that, for purposes of a workable "bright-line" rule, all containers within the passenger compartment of an automobile are accessible to an arrestee. Belton, 453 U.S. at 460, 101 S.Ct. at 2864. Thus, for purposes of a search incident to an arrest, all such containers are under the "control" of that arrestee. Belton did not require the police to ascertain that the arrestee be in actual control, either exclusive or joint, of a container before it could be searched. Similarly, Stroud did not limit container searches to those under the control of the arrestee. To do so, would blur the "bright-line" rule, and return the police to "[w]eighing the totality of circumstances," the notion found unworkable in Stroud. Stroud, 106 Wash.2d at 151, 720 P.2d 436. Furthermore, even a purse under the control of a non-arrested occupant of the car is, under the Belton-Stroud rationale, accessible to the arrested occupant for weapons or to hide evidence. Thus, we conclude that "control" is irrelevant to the issue of what is a searchable container under Belton and Stroud.
We recognize that the "bright-line" rule encroaches upon the privacy rights of innocent passengers. But the Washington State Supreme Court has acknowledged that the privacy rights of such passengers must yield to the needs of law enforcement in car-stop situations. State v. Kennedy, 107 Wash.2d 1, 11-13, 726 P.2d 445 (1986).
Anna Hunnel also contends that she was illegally seized when Deputy Smith retained her identification card by ordering her to keep her purse in the car. She is correct that the seizure of her identification card was an "immobilization" or detention. State v. Dudas, 52 Wash.App. 832, 834-35, 764 P.2d 1012 (1988) (seizure after deputy retains pedestrian's identification card for four minutes); State v. Aranguren, 42 Wash. App. 452, 456-57, 711 P.2d 1096 (1985) (seizure after deputy retains bicyclists' identification cards to check warrants). But, as we have already discussed, if Deputy Smith had the right to search Anna Hunnel's purse incident to the arrest of Mr. Hunnel, the deputy necessarily had the right to seize the purse immediately following that arrest. Moreover, the incidental seizure of Anna Hunnel's identification card caused no harm to her beyond that caused by the seizure of her purse. The drugs in her purse were not found as the result of the seizure of her identification card, but of the purse. Thus, any additional detention of Anna Hunnel by the seizure of her identification card caused no harm. Dudas, 52 Wash.App. at 835, 764 P.2d 1012.
In conclusion, we hold that Hunnel's purse was a searchable container in the car pursuant to Belton and Stroud, that the officer's right to search the purse arose at the time of the arrest, and, therefore, the officer's seizure of the purse by ordering it left in the car was proper.
Affirmed.
BRIDGEWATER, Acting C.J., and HUNT, J., concur.
NOTES
[1] Both Belton and Stroud quoted LaFave with approval: "A highly sophisticated set of rules ... requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be `literally impossible of application by the officer in the field.'" WAYNE R. LAFAVE, "Case-By-Case Adjudication" Versus "Standardized Procedures": The Robinson Dilemma, 1974 S.Ct.Rev. 127, 142 (quoted in Belton, 453 U.S. at 458, 101 S.Ct. at 2863) (also quoted in Stroud, 106 Wash.2d at 151, 720 P.2d 436).
[2] Parker held valid the search of a passenger's purse, still in the car, following the arrest of the driver. Parker, 88 Wash.App. 273, 944 P.2d 1081.
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993 So.2d 516 (2008)
CORBETT
v.
STATE.
No. 1D08-2439.
District Court of Appeal of Florida, First District.
November 10, 2008.
Decision without published opinion. Affirmed.
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562 S.E.2d 699 (2002)
38 Va. App. 206
James Edmond WATTS, a/k/a Jimmy Brennan Dobson
v.
COMMONWEALTH of Virginia.
Record No. 2816-00-3.
Court of Appeals of Virginia, Salem.
April 30, 2002.
*700 Richard L. Derrico (Copenhaver, Ellett, Cornelison & Derrico, on brief), Roanoke, for appellant.
Margaret W. Reed, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
Present: FITZPATRICK, C.J., and ELDER and AGEE, JJ.
AGEE, Judge.
James Edward Watts (Watts) was convicted in a Roanoke City Circuit Court bench trial of forging a public document in violation of Code 18.2-168. He was sentenced to serve a term of eight months incarceration. On appeal, he contends the trial court erred in failing to suppress statements he made to sheriffs deputies while in custody. He alleges the statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). For the following reasons, we affirm the decision of the trial court.
I. BACKGROUND
On January 28, 2000, Watts was arrested on warrants for kidnapping and abduction, and a magistrate committed him to the Roanoke City Jail where Deputies banning, Allman and Watkins were on duty.
Upon Watts' arrival at the jail, Deputy banning did the initial intake. Deputy Lanning *701 entered identifying information on Watts, which he received from the arresting officer and the arrest warrants, into the jail's computer database, and fingerprinted Watts using a computerized fingerprinting system. This process is standard operating procedure for all inmates upon admittance to the jail. Deputy Lanning generated a fingerprint card with the name "James Edmond Watts" printed at the top and asked Watts to sign his name to the card.
Watts reviewed the card and informed the deputy, "That is not my name." In response, Deputy Lanning instructed Watts to "sign your true name." Watts proceeded to sign the card, in the presence of Deputies Lanning and Allman, "___ Dobson" (the first name being illegible). Deputy Lanning noticed the discrepancy and informed others in his department and the police that the suspect had signed a name that was "different than what had been printed out." Deputy Lanning had no further personal interaction with Watts.
Watts was then directed to Deputy Watkins to be "classif[ied] . . . into the general population of the jail," which is also a standard operating procedure for all inmates upon admittance to the jail. When Watts arrived at Deputy Watkins' duty station, the deputy had a committal card, which noted Watts was to be held by the Roanoke City Jail, and a jail card which contained the name James Edmond Watts, an address, an abbreviation of the charges against him, and a section to be filled in on "jail housing."
Deputy Watkins' duty is to "determine what the safest housing is for [the] inmate." This required him to "get a background history, check on [his] record, check on [his] name, stuff like that, get [] personal information, next of kin." The questions to be asked are provided on a standard form, which the deputy fills out. "The purpose of the questions is [the Roanoke City Jail has] several housing areas in the jail, and we put people into those housing areas based on, you know, . . . what kind of security risk they are, or whether they have any things that we need to protect them from. . . ."
As. Deputy Watkins began this procedure, he "had the information that there was a question about [Watts'] identity." However, he did not know there was a problem with the fingerprint card; in fact, he did not know for certain that Watts had already been fingerprinted. Deputy Watkins testified that he was not investigating a crime when he obtained answers from Watts for the standard jail housing form.
When Deputy Watkins asked Watts for his name, Watts replied, "Jimmy Brennan Dobson." He also gave the deputy a birthdate, place of birth and criminal history that were inconsistent with the record on file for "James Edmond Watts."
After completing all the questions on the standard form, Deputy Watkins asked Watts to sign his name to the form that contained the background information. Watts stated to Deputy Watkins that "he was not James Watts." Watts then informed Deputy Watkins that other deputies were telling him to say that he was James Watts and asked the deputy "what he should do." Deputy Watkins "told him he should sign whatever his true, legal name was, and [Watts] signed Jimmy [B.] Dobson, and he corrected [the deputy's] spelling of the name."
Deputy Watkins then completed the classification process by entering the name "James Dobson" into the jail's computer database. Watching him, Watts asked the deputy what he was doing. The deputy informed Watts that he "was going to put the alias that he gave . . . in the computer, and . . . [he] was going to have . . . [the] security staff confirm what his identity was." Watts then said, "No, no, my name is James Watts. Let me go on and sign it that way." Deputy Watkins refused to allow Watts to amend the signature and turned the matter "over to the Security Staff to run [Watts'] fingerprints again."[1]
*702 Deputy Watkins never informed Watts that he did not have to sign the form or participate in the classification procedures. Deputy Watkins also never informed Watts that "he would get in trouble if he signed a false name to [the] form," nor did he give Watts the Miranda warnings at any time.
The next day, January 29, 2000, Watts was charged with forgery of a public document: the January 28, 2000 fingerprint card created by Deputy Lanning upon Watts' arrest for abduction and kidnapping. Watts was then fingerprinted by Deputy Allman on the new charge. Deputy Allman instructed Watts to sign this additional fingerprint card. The deputy did not ask any questions of Watts nor did he have any further contact with him. This second card bore the name "James Watts," and Watts signed it as "James Watts."
Deputy Allman, who was aware of the circumstances giving rise to the forgery charge, did not inform Watts that he had the right to refuse to sign the fingerprint card nor did he provide Watts with the Miranda warnings before asking Watts to sign the card. Watts did not object to signing the card nor did he challenge the printed name on the card.
Prior to trial on the charge of forgery of a public document, Watts sought to suppress (1) the fingerprint card executed on January 29, 2000, before Deputy Allman; (2) his response to Deputy Watkins' question, "What is your name?"; (3) the jail classification form completed by Deputy Watkins and signed by Watts as "Jimmy B. Dobson"; (4) Watts' statement to Deputy Watkins that other deputies were telling him to say that he was James Watts; (5) his inquiry on "what he should do"; and (6) his statement to Deputy Watkins that he was "James Watts." Watts averred suppression of all the foregoing was required because the deputies failed to advise him of his rights pursuant to Miranda before obtaining the information.
The trial court granted Watts' motion to suppress the January 29, 2000 fingerprint card, but otherwise denied his motion. The trial court specifically held "there is a routine booking question exception in Virginia." Its ruling to deny Watts' motion was based on that exception and a finding that certain of Watts' statements were voluntary and spontaneous utterances and, therefore, outside the scope of Miranda.
Subsequently, Watts was convicted of forging the January 28, 2000 fingerprint card, a public record under Code § 18.2-168. Watts did not object to the testimony of Deputy Lanning regarding what occurred during the January 28, 2000 fingerprinting or to the introduction into evidence of the signature on the January 28, 2000 fingerprint card.
On November 13, 2000, the same day as Watts' sentencing hearing, Watts filed a "Motion for Judgment of Acquittal and Incorporated Memorandum," in which he argued for "a judgment of acquittal based on the admission of evidence that should, respectfully, have been suppressed." In this motion, Watts argued that the trial court should have suppressed the January 28, 2000 fingerprint card. Watts contended that because the deputy knew, or should have known, that Watts was about to lie regarding his identity the deputy should have given him the Miranda warnings. The trial court denied the motion for acquittal and imposed sentence.
On appeal, Watts argues the trial court erred (1) in denying his motion to suppress the jail classification documents and statements made during the classification procedure and (2) the January 28, 2000 fingerprint card and statements made during that fingerprint procedure raised in his motion for judgment of acquittal. Watts cites the failure of the deputies to give him the Miranda warnings as the error requiring reversal. We disagree and affirm the decisions of the trial court for the following reasons.
II. STANDARD OF REVIEW
In reviewing a trial court's denial of a motion to suppress, we view the evidence in the light most favorable to the Commonwealth as the party that prevailed below, and grant to its evidence "all reasonable inferences deducible therefrom." Giles v. Commonwealth, 28 Va.App. 527, 532, 507 S.E.2d 102, 105 (1998) (citation omitted). In addition, *703 we review the trial court's findings of historical fact only for "clear error," but we review de novo the trial court's application of defined legal standards to the particular facts of a case. See Ford v. Commonwealth, 28 Va.App. 249, 255, 503 S.E.2d 803, 805 (1998); see also Ornelas v. United States, 517 U.S. 690, 700, 116 S.Ct. 1657, 1663-1664, 134 L.Ed.2d 911 (1996).
III. ANALYSIS
The Fifth Amendment protection against self-incrimination
serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.
Miranda, 384 U.S. at 467, 86 S.Ct. 1602.
The safeguards, now commonly known as "Miranda warnings," are required only when a suspect is both in custody and subjected to interrogation; the warnings are not required where an individual is simply in custody. Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S.Ct. 1602. The term "interrogation" means either express questioning or its functional equivalent. See Jenkins v. Commonwealth, 244 Va. 445, 452-53, 423 S.E.2d 360, 365 (1992). The "functional equivalent" of an interrogation is "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Innis, 446 U.S. at 301, 100 S.Ct. 1682 (emphasis added).
Citing the emphasized language in Innis, we held in Wright v. Commonwealth, 2 Va. App. 743, 348 S.E.2d 9 (1986), that law enforcement officers need not administer Miranda warnings prior to obtaining biographical information for a fingerprint card:
Under the facts presented here, we believe that [the defendant's] statement concerning his address [made on a fingerprint card] was obtained as a result of conduct normally attendant to arrest and custody. We also note the total absence of any evidence that the questioning here was intended or designed to produce an incriminating response. For these reasons, Miranda warnings were unnecessary.
Id. at 746, 348 S.E.2d at 12.
In Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), a four-justice plurality of the United States Supreme Court found that the answers to biographical questions asked during booking "fall within a `routine booking question' exception which exempts from Miranda's coverage questions to secure the `"biographical data necessary to complete booking or pretrial services."'" Id. at 601, 110 S.Ct. 2638. In a footnote, the plurality expounded on this concept: "`[R]ecognizing a "booking exception" to Miranda does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.'" Id. at 602, n. 14, 110 S.Ct. 2638 (plurality opinion).
Subsequent to Muniz, we held in Timbers v. Commonwealth, 28 Va.App. 187, 503 S.E.2d 233 (1998), that "[a]ssuming without deciding that a routine booking exception exists in Virginia," the facts on that record took the custodial interrogation outside the exception. Id. at 199, 503 S.E.2d at 238.
With this precedential background in mind, we now examine each of the claimed Miranda violations alleged by Watts.
*704 A. THE JANUARY 28, 2000 FINGERPRINT CARD
Watts alleges the January 28, 2000 fingerprint card, the public document he was convicted of forging, should have been suppressed by the trial court because he had not been given the Miranda warnings prior to signing the card. We disagree.
Although our decision in Wright preceded the United States Supreme Court's decision in Muniz, which used the phrase "routine booking question exception," it is clear we were describing the same principle: "`Police words or actions "normally attendant to arrest and custody" do not constitute interrogation.'" Wright, 2 Va.App. at 746, 348 S.E.2d at 12 (quoting South, Dakota v. Neville, 459 U.S. 553, 564 n. 15, 103 S.Ct. 916, 922-923, 74 L.Ed.2d 748 (1983)). Accordingly, we hold there is a routine booking question exception in Virginia, "which exempts from Miranda's coverage questions to secure the biographical data necessary to complete booking or pretrial services." Muniz, 496 U.S. at 601, 110 S.Ct. 2638. The correctional system requires the collection of such routine biographical information in order to function at even the most basic level and avoid chaos while administering some of society's most dangerous individuals. However, the routine booking question exception "does not mean . . . that any question asked during the booking process falls within that exception. . . . [T]he police may not ask questions, even during booking, that are designed to elicit incriminatory admissions." Id. at 602, n. 14, 110 S.Ct. 2638.
Deputy Lanning generated the January 28, 2000 fingerprint card during the "booking" procedure upon Watts' arrival at the city jail on the charges of kidnapping and abduction. There is nothing in the record to suggest this process was anything but routine and universal for all inmates. Deputy Lanning simply fingerprinted Watts and instructed him to sign the fingerprint card.
A review of the record clearly reveals that Deputy Lanning did not subject Watts to any form of express questioning or its functional equivalent. The deputy subsequently spoke to Watts only when Watts asked him what name he should sign. Deputy Lanning instructed Watts to sign "his true name." Deputy Lanning's response was not designed to elicit an incriminating statement from Watts.[2]
Wright clearly supports the finding that the fingerprint card, including Watts' forged signature, and Watts' inquiry to Deputy Lanning, were admissible in evidence without prior Miranda warnings under the routine booking question exception. Moreover, even if the exception did not apply, the Miranda warnings were not required because neither Deputy Lanning's execution of the fingerprint card nor his direction to Watts to sign the card were actions designed to elicit an incriminating admission. The trial court correctly denied Watts' motion for judgment of acquittal regarding the statements made to Deputy Lanning and properly admitted the fingerprint card into evidence.
B. STATEMENTS TO DEPUTY WATKINS
Watts also contends the admission of the jail classification form bearing his false signature and his statements to Deputy Watkins should have been suppressed for lack of Miranda warnings. Yet, the classification form and Watts' statements to Deputy Watkins were either in response to routine questions asked during the booking procedure or those he made spontaneously. Therefore, we affirm the decision of the trial court.
The absence of Miranda warnings during the inmate classification procedure does not require suppression of the statements unless the questions asked were designed to elicit an incriminatory admission. Our review, therefore, requires us to determine whether Deputy Watkins interrogated Watts, whether expressly or by its functional equivalent. See Timbers, 28 Va.App. at 194, *705 503 S.E.2d at 236 (citing Innis, 446 U.S. at 300-01, 100 S.Ct. at 1689-90).
The test is "`whether an objective observer would view an officer's words or actions as designed to elicit an incriminating response.'" Timbers[], 28 Va.App. [at] 196, 503 S.E.2d [at] 238[] (quoting Blain v. Commonwealth, 7 Va.App. 10, 16, 371 S.E.2d 838, 841 (1988)). If a statement is "not foreseeable, then it is volunteered." Blain, 7 Va.App. at 15, 371 S.E.2d at 841.
Gates v. Commonwealth, 30 Va.App. 352, 355-56, 516 S.E.2d 731, 733 (1999). Pursuant to this standard, we hold that Deputy Watkins did not interrogate Watts and, therefore, the trial court was not required to suppress Watts' statements or the jail classification form.
Deputy Watkins merely asked Watts standard biographical questions contained on a procedural form related to his arrest, custody, and placement in inmate housing, a universal incarceration procedure. The questions were not designed to elicit an incriminating response, but to ascertain the most suitable division of the jail in which to place Watts for his and others' protection. There is no evidence in the record that Deputy Watkins acted in any way other than to "book" Watts. At the time of his interaction with Watts, Deputy Watkins knew a question had arisen at some point as to Watts' true identity. However, he did not know that the suspect had forged the fingerprinting card taken by Deputy Lanning.
The inquiries and admission made by Watts were made voluntarily, without prompting, and not made in response to any interrogation by Deputy Watkins within the meaning of the Miranda decision. Watts' offer to re-sign the jail classification form with the name "James Watts" was also a spontaneous remark not made in response to anything asked by Watkins. Where a suspect in custody makes spontaneous admissions, which are not a product of interrogation, the statements are admissible and their admission does not violate the suspect's right against self-incrimination. See Bradshaw v. Commonwealth, 228 Va. 484, 490, 323 S.E.2d 567, 570-71 (1984).
We are not persuaded by Watts' argument that Timbers, 28 Va.App. 187, 503 S.E.2d 233, requires us to reverse the trial court's decision. Timbers is clearly distinguishable from the case at bar.
In Timbers, the defendant was arrested for possession of cocaine and was taken to the sheriffs office where Deputy MacFall asked her for identifying information, including her name, birthdate and Social Security number. The defendant informed the deputy that her name was "Gwendolyn Ann Timbers." After being fingerprinted, the defendant signed the name "Gwendy Timbers," to the fingerprint card and a Central Criminal Records Exchange (CCRE) form. Subsequently, while Timbers was in a holding cell, a woman came into the lobby of the sheriff's office and left an item of clothing for "Kelly Timbers." Deputy MacFall testified that he immediately went
"to the holding cell where we had Ms. Timbers and questioned her as to what her real identity was." When asked to specify his actions, [Deputy] MacFall testified as follows: "I went to the holding cell door, I called her by the name of Kelly Timbers and she looked at me. And I told her if she was Kelly Timbers, that she needed to come forth with that information."
Id. at 191, 503 S.E.2d at 235. Timbers acknowledged that she was actually "Kelly Timbers." She was not advised of the Miranda warnings at any point prior to this acknowledgement. Timbers was then charged with forgery of the fingerprint card and the CCRE form, and of giving false information to a police officer. Id. at 192, 503 S.E.2d at 235.
Applying the objective person standard from Blain, 7 Va.App. 10, 371 S.E.2d 838, we held the deputy's statements to Timbers while in the holding cell constituted interrogation. After learning that Timbers' real name was probably Kelly Timbers rather than "Gwendolyn Timbers," the deputy intentionally went to the holding cell door and called her by the name "Kelly Timbers." He sought to investigate what he believed to be a false information crime.
*706 In the first testimony he gave on the issue, [Deputy] MacFall described this exchange as "question[ing] her as to what her real identity was." After appellant looked at [Deputy] MacFall, [Deputy] MacFall told her that if she was Kelly Timbers, she needed to admit that fact. [Deputy] MacFall testified that in response to these statements, [Timbers] "came clean to me and said that she was actually Kelly Yvette Timbers." A reasonable observer would view [Deputy] MacFall's statements as designed to elicit [Timbers'] incriminating statement that she was, in fact, Kelly Timbers.
Timbers, 28 Va.App. at 197, 503 S.E.2d at 237. We, therefore, held her admission to being Kelly Timbers should have been suppressed.
Deputy MacFall's inquiries to Timbers constituted interrogation in violation of Miranda because the officer was clearly investigating a prior criminal act and intended to elicit an incriminating response from Timbers. Deputy MacFall's inquiries to Timbers were not those to which all inmates were subjected as a matter of course for basic inmate processing. By contrast, Deputy Watkins' inquiries to Watts were all routine booking questions common to all inmates and necessitated as a matter of course in order to operate the jail and make adequate arrangements for the inmate's incarceration. Deputy Watkins was not in the process of investigating a crime, but simply trying to classify Watts into the inmate population.
Since Watts was not subjected to a custodial interrogation, the Miranda decision does not protect his answers during the booking process and his spontaneous remarks. The trial court did not err in refusing to suppress them.
Accordingly, the decision of the trial court is affirmed.
Affirmed
NOTES
[1] Deputy Watkins assumed Watts had been fingerprinted prior to being escorted to his desk; however, he was not positive that is how the processing procedure transpired. There was no evidence that Deputy Watkins was aware that Deputy Lanning had fingerprinted Watts or of what events had occurred prior to this time between Watts and other members of the jail staff.
[2] In fact, Watts did not incriminate himself in any crime by forging the card; rather he committed a crime. The purpose of advising a suspect of the Miranda warnings is to protect that suspect from unwarily incriminating himself based on prior acts, not for the purpose of advising a suspect that he should avoid committing a crime.
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142 N.W.2d 294 (1966)
STATE of Minnesota ex rel. Blaine Lynne ATKINSON, Appellant,
v.
Ralph H. TAHASH, Warden Minnesota State Prison, Respondent.
No. 39765.
Supreme Court of Minnesota.
April 29, 1966.
*296 Irving Nemerov, Minneapolis, for appellant.
Robert W. Mattson, Atty. Gen., Gerard W. Snell, Sol. Gen., St. Paul, for respondent.
MURPHY, Justice.
This is an appeal from an order of the district court discharging a writ of habeas corpus. It is contended that the trial court erred in finding defendant's sentence as a habitual criminal was valid; that the information charging the prior conviction was defective and not timely filed; that the proceedings by which he was sentenced did not comply with the applicable statutes; and that the Adult Corrections Commission, rather than the courts, had determined his length of confinement.
It appears that the defendant, who is now 32 years of age, is a product of a broken home and has had a long history of law violations, including juvenile offenses. At an early age he was placed in foster homes where he grew up, as were his five half brothers and sisters. The series of offenses with which we are here concerned originated in October 1954, when the defendant and two others burglarized a tavern and stole approximately $75 in merchandise and money. For this offense he was charged with second-degree grand larceny to which he entered a plea of guilty and was given an indeterminate sentence on January 13, 1955. His next offense occurred on August 18, 1957, while he was on parole. At that time, with two others, he broke into a hardware store and stole merchandise of the approximate value of $400. He entered a plea of guilty to an information charging him with this offense and on October 7, 1957, was sentenced to an indeterminate term in the state reformatory at St. Cloud.
Thereafter, on October 29, 1957, the county attorney, as required by Minn.St. 1961, § 610.31, filed an information charging the defendant as a habitual criminal by reason of the 1955 conviction. In that proceeding the trial court vacated the sentence imposed on October 7, 1957, and after the defendant entered a plea of guilty to the supplemental information, the trial court imposed an increased sentence as provided by habitual criminal statutes then in effect, Minn.St.1961, §§ 610.28 and 610.31. The defendant was sentenced to not more than 10 years in the state reformatory at St. Cloud. On December 6, 1960, the defendant was paroled from the State Prison at Stillwater, he having been transferred to that institution from the St. Cloud Reformatory in July 1958. After parole, the defendant again violated the law by committing another burglary. On March 16, 1961, an information was filed charging the defendant with third-degree burglary in violation of Minn.St.1961, § 621.10. Upon arraignment he entered a plea of guilty and was given an indeterminate sentence to the State Prison at Stillwater. On the basis of the three sentences imposed, he had an aggregate maximum term of 20 years as of the date of the trial court's order discharging the writ of habeas corpus. On May 31, 1965, the defendant was again released on parole and, so far as the record discloses, is now at liberty.
1. The assignments of error are principally directed to the proceedings which occurred when the defendant was sentenced as a habitual criminal on October 29, 1957. It is contended that the proceedings by which the increased penalty was imposed were invalid because the supplemental information did not inform the defendant of the character and nature of the proceedings. We have examined the information, and while it appears that it is not carefully drawn and might well have stated the prior offense with more particularity, we are not satisfied that it is so defective as not to meet the statutory requirements for imposition of increased penalty under the provisions of the Habitual Criminal Act then in effect. On arraignment to the supplemental charge the court inquired of the defendant, "You understand that you are being accused as an habitual offender under that [the information]" and explained that the effect *297 of it would be to increase his sentence. After he entered a plea of guilty the trial court said, "So that there may be no misunderstanding, the State has stated that on the 13th of January, 1955, you were convicted in this court for the crime of grand larceny in the second degree." The defendant admitted serving time for that offense.
The objection that the proceedings by which the increased penalty was imposed were invalid because the supplemental information did not fully inform the defendant of the character and nature of the proceedings may be disposed of by observing that in proceedings to impose increased penalty under the habitual criminal statute, the state is not required to allege the elements of the prior offense with the same particularity required in the original indictment, it being sufficient to allege such matters in the supplemental information which establish the defendant as a habitual criminal within the purview of the statute. State ex rel. O'Neill v. Tahash, 265 Minn. 407, 122 N.W.2d 165, certiorari denied, 375 U.S. 887, 84 S.Ct. 166, 11 L.Ed.2d 118; 25 Am. Jur., Habitual Criminals, § 26; Annotation, 80 A.L.R.2d 1196. See, State v. Kopetka, 265 Minn. 371, 121 N.W.2d 783. From an examination of the record, it appears to us that the defendant was adequately informed of the nature of the supplementary proceeding, he was represented by counsel, and the court explained to him that the purpose and effect of the supplementary proceeding was to impose increased punishment.
2. It is next contended that the prosecuting attorney was aware of the prior conviction in 1955 at the time sentence was imposed for the second offense on October 7, 1957, and that his failure to charge the defendant as a recidivist until some time later prevents the imposition of the increased sentence. The defendant claims that under the provisions of §§ 610.28 and 610.31 such action on the part of the prosecuting attorney constitutes a waiver which gives the defendant immunity from additional punishment. In support of this contention defendant relies on certain language found in State ex rel. Hines v. Tahash, 263 Minn. 217, 116 N.W.2d 399. We find nothing in the statute which would permit us to hold that enhanced punishment under the Habitual Criminal Act is waived if the county attorney knows of the prior conviction and fails to inform the court of it at or before the time of sentence. The provisions of § 610.31 do not lend themselves to any such interpretation. That statute, so far as applicable here, states:
"If at any time before sentence, or at any time after sentence but before such sentence is fully executed, it shall appear that a person convicted of a felony, or an attempt to commit a felony, has been previously convicted of any crime so as to render him liable to increased punishment by reason thereof under any law of this state, it shall be the duty of the county attorney of the county in which such conviction was had to file an information with the court wherein the conviction was had accusing such person of such previous convictions * * *." (Italics supplied.)[1]
The procedure under the Habitual Criminal Act in force at the time the defendant was sentenced was outlined in State v. Zywicki, 175 Minn. 508, 514, 221 N.W. 900, 903, and it was pointed out:
"* * * It [the Habitual Criminal Act] contains mandatory provisions requiring the county attorney to proceed thereunder when it shall appear that the defendant has been previously convicted.
*298 The matter of the increased punishment is to be determined after defendant has been convicted of the crime with which he is then charged. The essential requirements to bring about the increased sentence are: First, that defendant then stands convicted of a felony or an attempt to commit a felony, sentence for which has either not been imposed, or, if imposed, has not been fully executed; second, that after such conviction the defendant has been found guilty of a prior conviction or convictions for felony, or attempt to commit felony. It is then mandatory upon the court to impose the increased penalty provided."
We cannot agree that the statute warrants the interpretation for which the petitioner argues. On the contrary, the statute clearly provides that the supplemental charge may be presented to the court either before or after sentence is imposed so long as the term of the sentence is not fully executed. The fact that the statutes here cited are no longer in effect and experience has shown that they have been unevenly applied in the past does not change their force where they find expression in a valid sentence.[2] Relief from the rigorous provisions of the Habitual Criminal Act should be sought from the Adult Corrections Commission, which has the duty under the law[3] of limiting the term of imprisonment where circumstances warrant it. The commission may be expected to intelligently and fairly perform its administrative duties and, indeed, the record indicates this duty has been performed by the action of the commission in placing the defendant on parole on three occasions.
3. It is next suggested that since the defendant is on parole habeas corpus is not the proper remedy and that this court is without jurisdiction to pass upon the issues presented. In State ex rel. Koalska v. Rigg, 247 Minn. 149, 76 N.W.2d 504, we said that a petitioner, having accepted his liberty subject to parole authorities, is no longer restrained of his liberty to such an extent that habeas corpus will lie. The United States Supreme Court, however, has expressed a contrary view in Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285, 291, 92 A.L.R.2d 675, 681, which holds that the broadened scope of habeas corpus goes beyond protection of a person in actual physical custody and reaches those who are subject to wrongful restraints upon their liberty while on parole, pointing out that the writ of habeas corpus is not "a static, narrow, formalistic remedy; its scope has grown to achieve its grand purposethe protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty. While petitioner's parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the `custody' of the members of the * * * Parole Board within the meaning of the [Federal] habeas corpus statute; * * *."
We accordingly hold that a state prisoner, released from a state institution *299 and in custody of the Adult Corrections Commission under conditions imposed by that body and subject to revocation, is entitled to the remedy of habeas corpus as used under the practice in this state as a postconviction remedy. In so far as this determination conflicts with State ex rel. Koalska v. Rigg, supra; State ex rel. Ferrario v. Rigg, 259 Minn. 565, 108 N.W.2d 309; and State ex rel. Lezer v. Tahash, 268 Minn. 571, 128 N.W.2d 708, they are reversed or modified to conform with Jones v. Cunningham, supra.
Affirmed.
NOTES
[1] These mandatory and automatic provisions of the Habitual Criminal Act have been eliminated by the provisions of Minn. St. 609.155 (L.1963, c. 753, § 609.155) which provide for "Extended term for dangerous offenders." The new procedure as set forth in § 609.16 (L.1963, c. 753, § 609.16) provides that the defendant "may" be sentenced to an extended term where the circumstances warrant it and where definite procedural steps are taken, which may be initiated by the prosecuting attorney or by the court on its own motion.
[2] See, Advisory Committee Comment, 40 M.S.A. p. 149.
[3] Minn.St. 241.03, subd. 1, Minn.St. 243.05, 243.06, 243.07, 243.12, and Minn.St. 609.105 and 609.12 (L.1963, c. 753, §§ 609.105 and 609.12) authorize the administrative authorities to determine the time a prisoner should be credited on his sentence and when he should be paroled or discharged. Moreover, it should be noted that the defendant here was given in each instance an indeterminate sentence (one of which was vacated) which operates as a sentence for the maximum term prescribed for the offense committed. State ex rel. Soward v. Rigg, 256 Minn. 140, 97 N.W.2d 468, and State ex rel. Petcoff v. Reed, 138 Minn. 465, 467, 163 N.W. 984, 985, where we said:
"The rulings are to the effect that an indeterminate sentence, imposed under a law authorizing such sentences, is a sentence for the maximum term prescribed for the offense committed, coupled with a provision which permits but does not require an earlier release; that, as an earlier release cannot be demanded as of right, the sentence necessarily operates as a sentence for the maximum term."
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ACCEPTED
03-13-00526-CV
3712698
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/9/2015 12:35:22 PM
JEFFREY D. KYLE
CLERK
NO.03-13-00526-CV
IN THE COURT OF APPEALS RECEIVED IN
3rd COURT OF APPEALS
THIRD COURT OF APPEALS DISTRICT AUSTIN, TEXAS
1/9/2015 12:35:22 PM
PHARMSERV, INC., Appellant JEFFREY D. KYLE
Clerk
V.
THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION and
OFFICE OF INSPECTOR GENERAL OF THE TEXAS HEALTH AND
HUMAN SERVICES COMMISSION, ET AL
Appelles
On Appeal from the 261 sf Judicial District Court of Travis County, Texas
Cause No. D-I-GN 12-00107-CV
TexasTruecare's Amicus Curiae Brief
Respectfully submitted,
RIGGS ALESHIRE & RAY, P.C.
Jennifer S. Riggs
Bar No. 16922300
700 Lavaca St., Suite 920
Austin, Texas 78701
(512) 457-9806 Telephone
(512) 457-9066 Facsimile
[email protected]
TABLE OF CONTENTS
Table of Contents .i
Index of Authorities ii
Disclosure of Interest iv
Summary of the Argument. 1
Argument and Authorities 3
1. Due Process 3
II. Statutory Authority: Payment holds and hearings to challenge them S
III. Separation of Powers 9
IV. A sanction by any other name is still a sanction 12
Prayer 14
Certificate of Compliance 14
Certificate of Service 15
Texas TrueCare Amicus Brief - Page i
INDEX OF AUTHORITIES
Cases
Grounds v. Tolar Independent School Dist.,
856 S.W.2d 417 (Tex. 1993) 3, 4
Harlingen Family Dentistry, Pc. v. Texas Health and Human Services
Commission , --- S.
W 3d
.----, 2014 WL 6844947 ,
(Tex. App.-Austin, Nov 25,2014, no pet. hist.)
(NO. 03-14-00069-CV) 8, 12
McAllen Hospitals, L.P. v. Suehs,
426 S.W.3d 304 (Tex. App.-Amarillo, 2014, no pet.) .4
State v. Flag-Redfern Oil Co., 852 S.W.2d 480 (Tex. 1993) 10
Stratton v. Austin Independent School Dist.,
8 S.W.3d 26,29 (Tex. App.-Austin 1999, no writ) 3
Texas Dept. ofHuman Services v. Christian Care Centers, Inc.,
826 S.W.2d 715 (Tex. App.-Austin, 1992, writ denied) 8, 9
Texas Constitution
TEX. CONST. Art. I, section 13. 11
TEX. CONST. Art. II, section 1. 10
Texas Statutes
TEX. GOV'T CODE § 2260 11
TEX. GOV'T CODE ANN. § 53 l.l02(a) 6,7,12
TEX GOV'T CODE §531.1101(1) 6
TEX HUMAN RESOURCES CODE § 32.0291 5, 6, 7,12
Texas TrueCare Amicus Brief - Page ii
Administrative Rules
1 TAC. §354.1811 13
1 TAC. §354.1891. 5, 12, 13
1 TAC. §371.1667 5, 7,12
Texas TrueCare Amicus Brief - Page iii
DISCLOSURE OF INTEREST
(COMPLIANCE WITH TRAP 11)
This amicus curiae brief is submitted on behalf of Pharmacy Buying
Association, Inc., d/b/a Texas TrueCare and PBA Health. Texas TrueCare is a
Pharmacy Services Administration Organization CPSAO") recognized by federal
govermnent as an agent authorized to negotiate and/or sign contracts on behalf of
providers in the Medicaid program. See CMS Standard Operating Procedures
§50.8.l CSome pharmacies, particularly independent pharmacies, work with agents
or Pharmacy Services Administration Organizations (PSAO) for purposes of
negotiating and/or signing contracts with Part D sponsors."). Texas TrueCare is a
membership-based organization with over 600 member independent pharmacies in
Texas. Texas TrueCare keeps its members informed of potential changes in law or
regulations that may affect their businesses and their patients. Texas TrueCare has
been closely following this case due to the tremendous impact it could have on its
member pharmacies and their patients.
Texas TrueCare is paying the fee for the preparation of this amius curiae
brief.
This brief contains a certificate of service, as required by TRAP 11 (c).
Texas TrueCare Amicus Brief - Page iv
SUMMARY OF ARGUMENT
The Texas Health and Human Services Commission and its Office of
Inspector General (collectively HHSC-OIG) take the position that a provider of
pharmacy services under contract with the HHSC to provide services in the Texas
Medicaid program simply has no right to judicial review. The HHSC-OIG
contends (1) that the due process clauses of the Texas Constitution, Article I,
sections 13 and/or 19, do not confer such rights; (2) that section 32.029lof the
Texas Human Resources Code does not confer such rights because it does not
apply; (3) that 1 T.A.C. §371.1667 does not confer such rights because it applies
only to "sanctions" and a pharmacy audit recoupment is not a "sanction"; (4) that 1
T.A.C. §354.l89l(c) does apply but does not provide for a hearing and judicial
review; and (5) that the HHSC Medicaid contract itself does not create a right to a
hearing and judicial review.
The simple resolution of this matter is that a sanction by any other name is
still a sanction. The HHSC cannot avoid the consequences of its actions simply by
labeling its action an "audit," as opposed to a sanction. As noted in Harlingen II,
affording a provider a full adjudicative hearing on alleged fraud and abuse while
providing no hearing and no judicial review on simple program violations makes
no sense.
Texas TrueCare Amicus Brief - Page 1
The HHSC-OIG, however, contends that program violations subject to audit
that do not involve fraud and abuse are fundamentally different. That may well be
true - the essence of an adverse audit finding is that the provider has breached its
agreement with the HHSC. What the HHSC-OIG glosses over, however, is the
complete absence of statutory authority to exercise self-help by withholding future
payments to remedy alleged past breaches of the Medicaid contract. It is the
statutes that afford a provider a hearing and judicial review that confer the
authority to withhold funds from providers. If the hearing and judicial review
provisions of such legislation do not apply then neither does the authority to
withhold pending hearing and judicial review.
At issue here is not just the jurisdiction of the courts, but the jurisdiction of
the HHSC. The HHSC has no authority to adjudicate contract rights. When the
HHSC withholds money under its contracts with pharmacy providers to enforce
audit findings, it is effectively adjudicating contract rights. The fact that the
doctrine of sovereign immunity may prevent a pharmacy provider from suing the
HHSC for breach of contract does not mean that the HHSC may effectively sue the
pharmacy provider for breach of contract without doing so in court. There are two
sides to that coin. Absent a legislative scheme that transfers the contract remedy to
an agency, a pharmacy provider has the right to defend alleged breach of contract
claims in court.
Texas TrueCare Amicus Brief - Page 2
As a result, the HHSC-OIG lacks authority to withhold the funds at issue
until and unless it files a breach of contract claim in district court. The district
court has the jurisdiction to consider its failure to do so.
ARGUMENT AND AUTHORITIES
I. Due Process
The HHSC-OIG appears to acknowledge that a statute, agency rule or
contract can confer rights that are protected by due process, depending on its
terms. (Appellees' Brief, pp. 16-19, can depend on parties "understanding") It is
not necessary, however, that such a statute or contract expressly provide the right
to a due process hearing. For example, in Grounds v. Tolar Independent School
Dist., 856 S.W.2d 417 (Tex. 1993), the Court addressed the Term Contract
Nomenewal Act (TCNA), which required that a school district have reasons not to
renew a contract, and held "that this limit on the school district's discretion is
sufficient to create a property interest entitled to due process protection." Grounds,
856 S.W.2d at 420. Although subsequent amendments to the TCNA expressly
disclaimed any such due process interest, see Stratton v. Austin Independent School
Dist., 8 S.W.3d 26, 29 (Tex. App.-Austin 1999, no writ), the initial constitutional
basis in Grounds for finding a due process interest remains.
Texas TrueCare Amicus Brief - Page 3
Grounds was based on a long line of decisions from the United States
Supreme Court and other federal courts. For example,
The United States Supreme Court defined a constitutionally protected
property interest in Logan v. Zimmerman Brush Co. as "an individual
entitlement grounded in state law, which cannot be removed except 'for
cause'." 455 U.S. 422, 430, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (quoting
Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12,98 S.Ct.
1554, 1561-62,56 L.Ed.2d 30 (1978» (other citations omitted). The "for
cause" requirement discussed in Logan constitutes a substantive limit on the
State's discretion creating a property interest. Likewise, the TCNA
requirement of pre-established reasons for nomenewal constitutes a
substantive limit on the State's discretion creating a property interest.
Grounds, 856 S. W.2d at 418.
The decision in McAllen Hospitals, L.P. v. Suehs, 426 S.W.3d 304 (Tex.
App.-Amarillo, 2014, no pet.), with respect to due process is not to the contrary.
The property interest necessary to sustain a "takings" claim for inverse
condemnation of property is not the same property interest that triggers procedural
due process protection. In McAllen Hospitals, the Amarillo Court of Appeals noted
that the hospitals had not availed themselves of all available remedies, hence they
had no viable due process claim. McAllen Hospitals, 426 S.W.3d at 313. The same
considerations do not apply here, where all administrative remedies made available
by the HHSC-OIG were exhausted.
Certainly the HHSC-OIG cannot contend that it may withhold contract
payments for any reason, no matter how arbitrary, or no reason at all. The HHSC-
OIG has only the powers granted to it expressly or by necessary implication. As a
Texas TrueCare Amicus Brief - Page 4
result, it ca=ot withhold contract payments on a basis for which it lacks authority.
The HHSC-OIG rules themselves require that there be some basis for the audit
findings. See, e.g., 1 TAC. §354.l891.
Likewise, the Medicaid contract itself requires compliance with Medicaid
program requirements. It would strain credulity to argue that the contract does not
create a legitimate expectation of payment if program requirements are met.
For these reasons, the HHSC ca=ot withhold contract payments absent
some legitimate reason. Those regulatory and contractual limits themselves create
a property interest entitled to due process protection.
II. Statutory Authority: Payment holds and hearings to challenge them
The HHSC-OIG contends that section 32.029lof the Texas Human
Resources Code and 1 T.AC. §371.l667 do not confer on pharmacy providers the
right to a hearing and judicial review because those provisions do not apply to
pharmacy providers subject to performance audit reviews, which do not involve
fraud and abuse.
Section 32.0291 provides as follows:
(a) Notwithstanding any other law, the department may:
(1) perform a prepayment review of a claim for reimbursement under
the medical assistance program to determine whether the claim
involves fraud or abuse; and
Texas TrueCare Amicus Brief - Page 5
(2) as necessary to perform that review, withhold payment ofthe claim
for not more than five working days without notice to the person
submitting the claim.
(b) Subject to Section 531.1 02, Govermnent Code, and notwithstanding any
other law, the department may impose a payment hold on future claims
submitted by a provider.
(c) A payment hold authorized by this section is governed by the
requirements and procedures specified for a payment hold under Section
531.102, Govermnent Code, including the notice requirements under
Subsection (g) ofthat section.
TEX HUMAN RESOURCES CODE §32.0291 (emphasis added).
As a preliminary matter, section 32.0291 expressly references section
531.102 of the Texas Govermnent Code. Chapter 531 of the Texas Govermnent
Code governs "Medicaid and Other Health and Human Services Fraud, Abuse, or
Overcharges." In the 2013, the HHSC sought and obtained from the Texas
Legislature a very broad definition of "abuse":
(1) "Abuse" means:
(A) a practice by a provider that is inconsistent with sound fiscal, business,
or medical practices and that results in:
(i) an unnecessary cost to the Medicaid program; or
(ii) the reimbursement of services that are not medically necessary or
that fail to meet professionally recognized standards for health care; or
(B) a practice by a recipient that results in an unnecessary cost to the
Medicaid program.
TEX GOV'T CODE §531.110l(1) (Vernon Supp. 2013).
Abuse, as defined in this section is not limited to fraud and is broad enough
to encompass simple program violations. For policy reasons, perhaps it should not.
Texas TrueCare Amicus Brief - Page 6
But the language supports applying all of the provisions of Chapter 531, if any of
them apply. As a result, if the payment hold provisions of section 531.102, to
which this definition applies, apply to authorize a temporary payment hold, then
so, too, do the hearing provisions of section 531.102. The fact that the
"unnecessary cost" is actually determined through a process called an "audit" as
opposed to an investigation makes no substantive difference.
The definition of a "provider" that is subject to section 531.102 (and,
therefore, to section 32.0291), is likewise broad:
(10) "Provider" means a person, firm, partnership, corporation, agency,
association, institution, or other entity that was or is approved by the
commission to:
(A) provide medical assistance under contract or provider agreement with
the commission; or
(B) provide third-party billing vendor services under a contract or provider
agreement with the commission.
TEX GOV'T CODE §531.110l(1O) (Vernon Supp. 2013).
Pharmacy providers clearly fall within this broad definition. The HHSC
cannot identify any laws, because there are none, that authorizes the HHSC to label
a pharmacy provider as an "audited entity" simply to evade the notice and hearing
requirements of Chapter 531.
As a result, sections 32.0291 and rule 371.1667 do apply to pharmacy
providers. On the other hand, if section 32.0291 and rule 371.1667 do not apply,
then the HHSC-OIG likewise lacks authority to impose a temporary payment hold,
Texas TrueCare Amicus Brief - Page 7
much less a permanent payment hold. The HHSC-OIG glosses over the complete
absence of any other statutory authority to exercise self-help by withholding future
payments to remedy alleged past breaches ofthe Medicaid contract.
As noted by this Court in Harlingen Family Dentistry, Pc. v. Texas Health
and Human Services Commission, --- S.W.3d ----, 2014 WL 6844947 (Tex. App.-
Austin, Nov 25, 2014, no pet. hist.) (NO. 03-l4-00069-CV):
Through the challenged rules, HHSC grants the OIG authority, and assumes
authority for itself, to impose a payment hold whenever it believes a
provider has committed any program violation, no matter how minor and
irrespective of whether there is any indication of fraud or other intentional
abuse. As noted above, the rules significantly expand the circumstances
under which a pre-notice payment hold can be imposed beyond those
enumerated in Govermnent Code section 53 1.021(g)(2). Thus, the
challenged rules are inconsistent with the legislature's directives related to
those payment holds that it has expressly authorized,
Harlingen Family Dentistry, 2014 WL 6844947, *5. This Court also noted the
anomalous result of affording a hearing to a provider accused of fraud, but not to
one accused "only" of program violations. Id.
This Court's decision in Texas Dept. of Human Services v. Christian Care
Centers, Inc., 826 S.W.2d 715 (Tex. App.-Austin, 1992, writ denied) is also
instructive here. In Christian Care, this Court held that the predecessor to the
HHSC exceeded its statutory authority in promulgating a rule providing for the
permanent withholding of payments for services actually rendered to qualified
Texas TrueCare Amicus Brief - Page 8
Medicaid patients, based on nursing homes' failure to timely submit "level of care"
forms:
TDHS is required to pay for qualified services made to eligible patients or
give notice before finding patients ineligible, so that disqualified patients
may exercise their due-process right to appeal eligibility decisions. See
Tex.Hum.Res.Code A=. § 32.035 (1990); 42 U.S.C. § 1396a(a)(3) and (10)
(1988 & Supp.I.1989); 42 C.F.R. § 431.200-.250 (1991); see also Goldberg,
397 U.S. 254, 90 S.Ct. 1011. By providing that a "Level of Care ceases to
exist," rather than declaring a patient medically ineligible, TDHS seeks to
avoid these due-process notice and appeal requirements. We find that use of
this grammatical fiction circumvents the primary intent of the Medicaid
statute; to provide continuous payment for necessary services to eligible
individuals. Implied authority is not authority to depart from the intent of the
statute. Sexton, 720 S.W.2d at 137; see also Texas Ed. ofDental Examiners
v. Prichard, 446 S. W.2d 905, 909 (Tex.Civ.App.1969, writ rei'd n.r.e.).
One of the key determinants of whether a rule is within an agency's implied
authority is whether the rule harmonizes with the purpose of the agency's
governing statute, in all of its provisions. See Gerst v. Oak CliffSav. & Loan
Ass'n, 432 S.W.2d 702, 706 (Tex. 1968); see also State Ed. of Ins. v.
DefJebach, 631 S.W.2d 794, 798 (Tex.App.1982, writ rei'd n.r.e.); Jefco,
Inc. v. Lewis, 520 S.W.2d 915,921 (Tex.Civ.App.1975, writ rei'd n.r.e.). It
would be inconsistent with the overall purposes of the Medical Assistance
statute, i.e. providing quality nursing services to Medicaid qualified patients,
to give TDHS the authority to withholdfunds permanently, merely for failure
to file updated records timely.
Christian Care Centers, Inc., 826 S.W.2d at 721 (emphasis added).
III. Separation of Powers
In determining the scope of the HHSC-OIG authority, this Court looks to
powers granted expressly or by necessary implication in statutes. In evaluating the
HHSC-OIG's contentions regarding the scope of its authority, the Court must also
consider any constitutional limits on such grants of authority and interpret the
Texas TrueCare Amicus Brief - Page 9
authority in ma=er that renders it constitutional. Article II, section 1, of the Texas
Constitution, the Separation of Powers provision, imposes limits on the authority
that may be exercised by agencies in the Executive Department of Govermnent.
TEX. CONST. Art. II, §1.
The essence of an HHSC-OIG adverse audit finding is that the provider has
breached its agreement with the HHSC. The HHSC, however, has no authority to
adjudicate contract rights. See State v. Flag-Redfern Oil Co., 852 S.W.2d 480
(Tex. 1993). In Flag-Redfern, a group of mineral lessees challenged the authority
of the General Land Office (GLO) to adjudicate contract rights. At issue was a
statutory scheme under which the GLO audited the leases retrospectively and
withheld payments due prospectively to remedy what the GLO deemed to be
violations of the lease. The Court held that although the GLO does not have
authority to adjudicate the contract rights of parties to state mineral leases, the
GLO may conduct audits to reassess the GLO's position under such contracts.
Flag-Redfern Oil Co., 852 S.W.2d at 484.
The Flag-Redfern Court stated:
To the extent that section 52.135 merely allows the State to reassess its
position with regard to state mineral leases, rather than to subject
participants to binding judgments, we hold that the statute does not offend
article II, section 1 of the Texas Constitution. See Fristoe v. Blum, 92 Tex.
76,85,45 S.W. 998, 1002 (1898).
Texas TrueCare Amicus Brief - Page 10
Flag-Redfern Oil Co., 852 S.W.2d at 484. The implications of the case are clear-
if the statute had allowed the GLO to render what amOlmted to a binding judgment,
such action would have violated article II, section 1.
When the HHSC-OIG withholds money llllder its contracts with pharmacy
providers to enforce audit findings, it is effectively adjudicating contract rights.
Because the HHSC-OIG withholds money it alleges the pharmacy providers owe
llllder their provider agreements, with no opportllllity for judicial review, much less
a hearing, the effect of the action is that of a binding judgment. As a result, its
action violates article II, section 1, ofthe Texas Constitution.
The Flag-Redfern Court further held that the requirement that state mineral
lessees pay any disputed royalties before seeking judicial review of the GLO audit
violated the lessees' constitutional right to access to courts under article I, section
13, of the Texas Constitution. PharmServ raised the applicability of article I,
section 13, in this case.
The fact that the doctrine of sovereign immllllity may prevent a pharmacy
provider from suing the HHSC for breach of contract does not mean that the
HHSC may effectively sue the pharmacy provider for breach of contract without
doing so in court. There are two sides to the breach of contract coin. Absent a
legislative scheme that transfers the contract remedy to an agency, such as Chapter
2260 of the Texas Government Code, a pharmacy provider has the right to defend
Texas TrueCare Amicus Brief - Page 11
alleged breach of contract claims in court. The trial court had the jurisdiction to
consider such claims.
IV. A sanction by any other name is still a sanction
The HHSC cannot avoid the consequences of its actions simply by labeling
its action an "audit," as opposed to a "sanction." The HHSC-OIG's position is that
1 T.A.C. §371.1667 does not confer the right to a hearing because it applies only to
"sanctions" and a pharmacy audit recoupment is not a "sanction." The HHSC-OIG
further urges that 1 TAC. §354.l89l(c) applies instead and that §354.l89l(c)
does not expressly provide for a hearing and judicial review. The trial court had
jurisdiction to consider whether §354.l89l means what the HHSC-OIG says it
means and, if it does, whether it is invalid as inconsistent with the overall statutory
scheme for the Medicaid program and/or the due process clauses of the Texas
Constitution.
In evaluating the HHSC-OIG's position regarding §354.l89l, the Court
must consider the rule in context. Section 354.1891 must be considered in the
context of the overall Medicaid program. See Harlingen II, 2014 WL 6844947, *5;
Christian Care, 826 S.W.2d at 721. In addition, that means reconciling the rule
with sections 32.0291 of the Human Resources Code and its incorporation of
section 531.102 of the Texas Govermnent Code and the definitions, discussed
Texas TrueCare Amicus Brief - Page 12
above, that apply to that section. Finally, interpreting the rule in context requires
consideration ofthe rest of Chapter 345 of the HHSC rules.
The HHSC-OIG fails to reconcile its position regarding §354.l89l with 1
T.A.C. §354.l8ll. Section 354.1811, which is entitled simply "Sanctions,"
provides as follows:
(a) The Health and Human Services Commission (HHSC) reserves the right
to impose administrative sanctions on a pharmacy provider who conducts
pharmaceutical practices in violation of the ethics adopted by the profession,
any applicable federal or state laws, or the criteria ofHHSC's Vendor Drug
Program. Sanctions include, but are not limited to, termination or
suspension from participation, suspension of payments, and recoupment of
overpayments.
(b) On receipt of a written request, HHSC provides an appeal to a pharmacy
provider on whom HHSC sanctions have been placed for a violation
described in subsection (a) of this section.
1 TAC. §354.l8ll (emphasis added).
The HHSC's own rules describe recoupment of an overpayment for
violations of the criteria of the Vendor Drug Program or any applicable federal or
state law as "sanctions." As a result, the HHSC-OIG's argument that rule 371.1667
does not apply lack merit. Pharmacy providers are entitled to a hearing and judicial
revIew.
Texas TrueCare Amicus Brief - Page 13
PRAYER
FOR THESE REASONS, Texas TrueCare, as Amicus Curiae urges this
Court to reverse the order dismissing this case for lack of jurisdiction and to
remand the case for further proceedings consistent with the Court's opinion.
Respectfully submitted,
/s/ Jennifer S. Riggs
Jennifer S. Riggs
RlGGS ALESHIRE & RAY, P.C.
Bar No. 16922300
700 Lavaca St., Suite 920
Austin, Texas 78701
(512) 457-9806 Telephone
(512) 457-9066 Facsimile
[email protected]
CERTIFICATE OF COMPLIANCE UNDER RULE 9.4(i)(3)
OF THE TX. RULES OF APPELLATE PROCEDURE
By my signature below I certify that a computer assisted word count of the
portions of this brief per Rule 9.4(i) (3) Tx. Rules of Appellate Procedure indicates
that the number of countable words is 3,185, from the beginning of the Summary
at page number 1 through the Prayer.
/s/ Jennifer S. Riggs
Jennifer S. Riggs
Texas TrueCare Amicus Brief - Page 14
CERTIFICATE OF SERVICE
By my signature below I certify that a true and correct copy of the above and
foregoing document was served on the following by hand delivery and/or
electronic filing on January 9, 2015.
Jeff Avant
AVANT & MITCHELL, L.P.
700 Lavaca, Suite 1400
Austin, Texas 78701
[email protected]
Hugh M. Barton, P.C.
603 West 13 th St., Suite lB
Austin, TX 78701
[email protected]
Ann Hartley, Assistant Attorney General
Financial, Tax and Litigation Section
Office of the Attorney General
300 West 15 th, 6th Floor
Austin, TX 78711
[email protected]
/s/ Jennifer S. Riggs
Jennifer S. Riggs
Texas TrueCare Amicus Brief - Page 15
| {
"pile_set_name": "FreeLaw"
} |
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1602
MARVIN F. TYRER,
Plaintiff-Appellant,
v.
CITY OF SOUTH BELOIT,
ILLINOIS,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 04 C 50353—Philip G. Reinhard, Judge.
____________
ARGUED JANUARY 4, 2006—DECIDED AUGUST 2, 2006
____________
Before CUDAHY, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. In August 2004, Marvin Tyrer
brought this action against the City of South Beloit, Illi-
nois (“City”). He alleged that the City demolished his house
without affording him due process of law. In October 2004,
the City filed a motion asking the district court to dismiss
the action or, in the alternative, to abstain in light of pend-
ing parallel state court proceedings. The district court
denied the City’s motion to dismiss, but granted the motion
to abstain pending final disposition of the state court action.
See Colorado River Water Conservation Dist. v. United States,
2 No. 05-1602
424 U.S. 800 (1976). Mr. Tyrer now appeals this decision. He
submits that the court abused its discretion in determining
that his federal and state actions are parallel proceedings
and that his case presents an “exceptional circumstance”
that warrants invocation of the Colorado River abstention
doctrine. Id. at 813 (internal quotation marks omitted). For
the reasons set forth in the following opinion, we affirm the
judgment of the district court.
I
BACKGROUND
A. Facts
In September 1997, Mr. Tyrer purchased residential
property in the City of South Beloit, Illinois.1 The house on
this property was built in the early 1900s, prior to the
enactment of city ordinances regulating minimum lot
size and mandating a front-yard setback. Additionally, after
the house was built, the City adopted a Flood Plain Ordi-
nance, which imposes minimum elevation requirements.
Although the house does not comply with these regulations,
it was deemed by the City to be a “legally non-conforming
structure” because it lawfully existed prior to the passage of
the ordinances. App. at 12.2
The City’s zoning ordinances provide that, if a legally
non-conforming structure is damaged, destroyed or
changed to an extent of 50% or more of its replacement
1
The address of this premises is 531 Hayes Avenue, South Beloit,
Illinois; it also is described as Lot 15 in Block 1 of the Hayes
Addition to the City of South Beloit.
2
Because of the disorganized and incomplete state of the record,
we shall refer to the Appellant’s Appendix.
No. 05-1602 3
value, it no longer is exempted from current zoning laws.
Under these circumstances, the owner must apply for a
variance. See South Beloit, Zoning Ordinance, Art.V, § 505,
Damage and Destruction; id., Art.XVI, Variation. Shortly
before Mr. Tyrer purchased the property, its previous owner
applied for a petition for variance in order to remodel the
house, to construct a 20’ x 14’ addition to the house, and to
construct a 20’ x 20’ non-attached garage. The Zoning Board
of Appeals of South Beloit heard testimony on November
11, 1996, and voted to grant the variance; it found that the
remodeling, the addition to the home and the garage would
improve the appearance of the property.3
When Mr. Tyrer purchased the property in September
1997, no work yet had begun on these projects. With the
intent of carrying out the previous owner’s building
plans, Mr. Tyrer applied for and obtained the required
building permit from the Winnebago County Building
Department in April 1998. According to the permit, the
garage, as a new structure, had to be built at an elevation of
741.5 feet, 1 foot above the 100-year flood level. This
requirement also applied to the 20’ x 14’ addition; thus,
Mr. Tyrer was required to raise the existing structure by
4.5 feet.
Construction began in the spring or summer of 1998;
Mr. Tyrer installed the walls, footings and foundation for
the addition, as well as the garage floor. According to
Mr. Tyrer, he was approached by John Hunt of the
Winnebago County Building Inspector’s Office in May or
June 1998. Hunt informed Mr. Tyrer that, to be in com-
3
To comply with relevant city ordinances, the prior owner
was required to obtain an elevation survey, which was completed
in December 1996.
4 No. 05-1602
pliance with city ordinances, he would have to obtain
additional fill for the purpose of covering the garage
footings by ten inches above the frost line. Mr. Tyrer
complied with this request. However, when Hunt re-
turned to Mr. Tyrer’s property in November 1998, he
noticed that the additional fill was causing excess run-off
and that Mr. Tyrer had exceeded the scope of his work
permit.
The City Clerk issued a cease and desist order in No-
vember 1998. This order stated that the construction vio-
lated the Flood Plain Ordinance and exceeded the scope of
Mr. Tyrer’s work permit. Mr. Tyrer protested the order; the
parties attempted to resolve their differences amicably;
these efforts were not successful. Mr. Tyrer thereafter halted
construction. Since November 1998, no additional work has
been done on the property.4
Notice of demolition was issued by the City to Mr. Tyrer
on January 4, 2000, pursuant to 65 ILCS 5/11-31-1.5 Sub-
4
Additional work on the property may not commence until a
variance is granted by the City, finding that the proposed
construction satisfies the requirements of the Flood Plain
Ordinance and other applicable city ordinances.
5
In pertinent part, 65 ILCS 5/11-31-1 provides that a municipal-
ity may demolish “dangerous and unsafe buildings” within its
territory provided that it
apply to the circuit court of the county in which the building
is located . . . for an order authorizing action to be taken with
respect to a building if the owner or owners of the building,
including the lien holders of record, after at least 15 days’
written notice by mail so to do, have failed to put the
building in a safe condition or to demolish it . . . .
(continued...)
No. 05-1602 5
sequently, on January 27, 2000, the parties met at City
Hall and attempted to resolve their dispute. At this meeting,
Mr. Tyrer’s architect, Dave Jenkins, presented build-
ing plans that he claimed would resolve the run-off problem
and would bring the building into compliance with city
ordinances. The City disputed this claim. Its architect
opined that the proposed plans would not eliminate the
excess drainage on neighboring properties and that, instead,
the entire structure must be torn down and the fill removed.
The Zoning Board of Appeals ultimately rejected Jenkins’
architectural plans, as well as Mr. Tyrer’s subsequent
petition for a variance. Notice of demolition was issued to
Mr. Tyrer’s mortgage company, First American Credit
Union, on March 28, 2000.
B. State Court Proceedings
In April 2000, Mr. Tyrer filed suit against the City of South
Beloit in the Circuit Court of Winnebago County, Illinois.
He alleged that the cease and desist order and the demoli-
tion order deprived him of a property interest without due
process of law; he sought to enjoin the City from demolish-
ing or further interfering with the use of his property. The
complaint was amended in September 2001 to add a second
count alleging that the City’s actions constituted a regula-
tory or temporary taking of his property that warranted just
compensation under the Fifth and Fourteenth Amendments.
In August 2000, the City filed an answer and a counter-
claim, seeking authorization to demolish the house on
(...continued)
65 ILCS 5/11-31-1(a). The statute also sets forth what constitutes
appropriate notice to the property owner.
6 No. 05-1602
Mr. Tyrer’s property. In May 2001, the City filed a motion
for summary judgment on this counterclaim. It contended
that no work had been done on the house since the begin-
ning of the dispute between the City and Mr. Tyrer and that
run-off from the fill now was draining into the yards of
neighbors. In its view, because the house was in a “danger-
ous condition,” demolition was proper under 65 ILCS 5/11-
31-1. The City also submitted, however, that, if Mr. Tyrer
would agree to remove the fill, it would permit him to
continue with construction even though the project ex-
ceeded the scope of the original permit. Mr. Tyrer did not
acknowledge this offer, but instead filed his own motion for
summary judgment on his Fifth and Fourteenth Amend-
ment takings claim.
On May 21, 2002, the state trial court denied Mr. Tyrer’s
motion for summary judgment on the takings claim and
granted the City summary judgment on its demolition
counterclaim. The court determined that the structure had
lost its legal non-conforming status and that it did not
meet City building requirements. It invited Mr. Tyrer to
submit a plan for demolition “if he wishe[d] to do so,” and
noted that, if he did not, it would “enter an order for the city
to demolish.” App. at 17. Mr. Tyrer did not submit such a
plan and, on August 29, 2002, the court issued a final order
authorizing demolition. The house actually was demolished
sometime in July 2002—before the entry of the August 29th
order.
Mr. Tyrer appealed the judgment of the state trial court.
He challenged both the trial court’s demolition order and its
denial of summary judgment on his takings claim. Noting
that Mr. Tyrer had failed to “file a motion to stay the
enforcement of the trial court’s memorandum of decision
granting the defendant’s motion for summary judgment for
No. 05-1602 7
demolition,” the Appellate Court of Illinois held that Mr.
Tyrer’s challenge to the trial court’s demolition order was
moot because the house already had been destroyed;
therefore, effective relief was precluded. Id. at 20. The court
remarked, however, that the demolition raises other legal
issues, which “may be presented by another proceeding.”
Id. at 21 (noting that the present matter “will not be res
judicata as to whether the defendant had proper grounds to
demolish the plaintiff’s home, since there is no judgment on
the merits”).
The state appellate court also affirmed the trial court’s
denial of summary judgment on Mr. Tyrer’s takings claim.
It held that there was a genuine issue of material fact
concerning whether the plaintiff’s architectural plans, as
presented to the City Council, “would have resolved the
alleged runoff problem and complied with the defendant’s
zoning ordinances.” Id. at 23. The court remanded for
further proceedings consistent with the opinion.
Very little of substance has taken place in Mr. Tyrer’s state
action since the case was remanded to the trial court. A few
depositions appear to have been taken; no orders since have
been entered.6 Most significant to this appeal, after remand,
Mr. Tyrer amended his complaint, adding a third count.
This new count adds as defendants City Council members
in their individual capacities. It alleges that the actions of
the City and its Council members “deprived the plaintiff of
the use of his property from the date of the cease and desist
order,” in violation of the Fifth Amendment Takings Clause
6
In fact, inactivity in the state court action prompted the state
court in 2004 to ask the parties to address whether the case ought
to be dismissed for want of prosecution. The court, after hearing
from Mr. Tyrer, apparently took no further action.
8 No. 05-1602
and the Illinois Constitution. Contrary to the City’s asser-
tion, this new count does not mention specifically the
demolition of Mr. Tyrer’s property as grounds for liability.
C. District Court Proceedings
In August 2004, Mr. Tyrer filed the present action against
the City in the United States District Court for the North-
ern District of Illinois. He alleged that the City’s demolition
of his house lacked legal authorization and violated the
Fifth and Fourteenth Amendment’s Due Process Clauses.
See App. at 25-28.
In October 2004, the City filed a motion to dismiss,
contending that the district court lacked subject matter
jurisdiction under the Rooker-Feldman doctrine to review the
state court’s order authorizing demolition. See Rooker v. Fid.
Trust Co., 263 U.S. 413 (1923); District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983). In the alternative, the
City contended that the district court should abstain under
the Colorado River doctrine, see 424 U.S. 800, or other absten-
tion doctrines, see Louisiana Power & Light Co. v. City of
Thibodaux, 360 U.S. 25 (1959); Burford v. Sun Oil Co., 319 U.S.
315 (1943); R.R. Comm’n of Texas v. Pullman Co., 312 U.S. 496
(1941). The district court denied the City’s motion to
dismiss. It held that Rooker-Feldman does not apply to the
facts of this case. See App. at 40 (“[P]laintiff’s complaint
does not directly challenge any state court judgment. Nor is
it inextricably intertwined.”). The district court also rejected
the City’s contention that abstention was warranted under
Pullman, see id. (“[T]here is no substantial uncertainty as to
the meaning of state law and there is no reasonable proba-
bility that the state court’s clarification of state law might
obviate the need for a federal constitutional ruling.”), under
No. 05-1602 9
Burford, see id. (“[T]he law governing plaintiff’s claims in
state court is well-settled and clear.”), or under Thibodaux,
see id. (same).
However, the district court held that abstention was
proper under the Colorado River doctrine. Turning to the first
Colorado River prong, whether the federal and state proceed-
ings are parallel, it found that “both cases arise out of
substantially the same set of facts, and the legal issues are
substantially the same.” Id. (also noting that “the parties are
substantially the same”). The court then considered whether
the case involves the requisite exceptional circumstances.
Noting that the state proceedings had been ongoing for
more than four years and that allowing both suits to
proceed concurrently would “promote piecemeal and
duplicative litigation,” the court concluded that “there is no
reason that [the plaintiff] cannot litigate those claims in state
court that he seeks to assert here.” Id.7 Therefore, the district
court stayed the federal proceedings pending final disposi-
tion of the state court action.
II
DISCUSSION
In Colorado River, the Supreme Court emphasized the
“virtually unflagging obligation of the federal courts to
exercise the jurisdiction given them.” Colorado River, 424
U.S. at 817. “Abstention from the exercise of federal jurisdic-
tion is the exception, not the rule: The doctrine of absten-
tion, under which a District Court may decline to exercise or
postpone the exercise of its jurisdiction, is an extraordinary
7
The district court denied the plaintiff’s motion to reconsider its
decision on February 10, 2005. See App. at 47.
10 No. 05-1602
and narrow exception to the duty of a District Court to
adjudicate a controversy properly before it.” Id. at 813
(internal quotation marks omitted). The “clearest of justifi-
cations” must be present for a federal court to stay a
proceeding pending completion of a state action. Id. at 819.
To determine whether a stay is appropriate under the
Colorado River doctrine, the district court must undertake a
two-part inquiry. First, the court must determine whether
“the concurrent state and federal actions are actually
parallel. Then, once it is established that the suits are
parallel, the court must consider a number of non-exclusive
factors that might demonstrate the existence of ‘exceptional
circumstances.’ ” Clark v. Lacy, 376 F.3d 682, 685 (7th Cir.
2004) (internal quotation marks and citations omitted).
In Colorado River, the Supreme Court set forth four such
factors for a district court’s consideration: the difficulties
posed when a state and federal court concurrently assume
jurisdiction over the same res; the inconvenience of the
federal forum; the desirability of avoiding piecemeal
litigation; and the order in which the state and federal
proceedings were filed. See 424 U.S. at 818-19. In Moses H.
Cone, the Court identified two additional factors relevant to
the Colorado River inquiry: whether state or federal law
provides the rule of decision; and whether the state action
will adequately protect the federal plaintiff’s rights. See
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 23-27 (1983). In applying these requirements, there is a
“general presumption against abstention.” AXA Corporate
Solutions v. Underwriters Reins. Corp., 347 F.3d 272, 278 (7th
Cir. 2003).
In this case, the district court concluded that both the
parallel-actions and the exceptional-circumstances re-
quirements had been fulfilled and stayed Mr. Tyrer’s federal
No. 05-1602 11
suit “pending final disposition of the state court action.”
App. at 40. We review a district court’s ruling on a motion
to stay under the Colorado River doctrine for abuse of
discretion. See Sverdrup Corp. v. Edwardsville Cmty. Unit Sch.
Dist. #7, 125 F.3d 546, 548-49 (7th Cir. 1997); see also CIGNA
HealthCare of St. Louis, Inc. v. Kaiser, 294 F.3d 849, 852 (7th
Cir. 2002) (“[T]he close relation between the decision to
abstain and normal docket control (a district judge is
routinely required to decide how fast to move particular
cases along) makes it appropriate to give at least some
weight to the judge’s decision to abstain.”).
A. Parallel Actions
Mr. Tyrer first contends that the district court abused its
discretion by determining that his state and federal actions
are parallel. According to Mr. Tyrer, that finding was
improper because “the issues presented to the state
court differ significantly from those presented to the federal
district court in the instant matter.” Appellant’s Br. at 16. In
state court, according to Mr. Tyrer, he challenges the
constitutionality of the events leading up to demolition,
including the application of city ordinances to his case
and the City Council’s cease and desist order. In the fed-
eral action, by contrast, he challenges the constitutionality
of the “actual demolition of the structures that existed on his
property.” Id. at 17 (emphasis added). Thus, while the
parties and operative facts are identical, Mr. Tyrer sub-
mits that the “ultimate issues to be resolved in each forum
diverge.” Id. at 12.
To be parallel, however, “it is not necessary that there be
formal symmetry between the two actions.” Clark, 376 F.3d
at 686 (internal quotation marks omitted). Generally, a “suit
12 No. 05-1602
is parallel when substantially the same parties are contem-
poraneously litigating substantially the same issues in
another forum.” Interstate Material Corp. v. City of Chicago,
847 F.2d 1285, 1288 (7th Cir. 1988) (internal quotation marks
omitted). Among other things, to determine whether two
suits are parallel, a district court should examine whether
the suits involve the same parties, arise out of the same facts
and raise similar factual and legal issues. See Clark, 376 F.3d
at 686.
The district court’s brief examination of whether Mr.
Tyrer’s suits are parallel was far from the “painstaking
comparison of the federal and state complaints” that we
previously have praised in similar cases. See, e.g., Interstate
Material, 847 F.2d at 1288 (internal quotation marks omit-
ted). The district court, in a single sentence, simply
stated that Mr. Tyrer’s state and federal actions raise the
same factual and legal issues. See App. at 40. The court did
not articulate the issues it believed to be identical; nor did
it examine the differences between the two actions. Al-
though we do not require the “rote application” of any of
the Colorado River factors, Sverdrup, 125 F.3d at 550, we
previously have noted that district courts should consider
the relevant requirements and weigh the relevant factors “in
a way that allows this court to review it,” id. (internal
quotation marks omitted).
Although the district court’s review of the parallel-actions
requirement was less comprehensive than we would like,
we must conclude that the record before us makes “obvious
the path of decision followed by the district court.” Id. After
reviewing the two complaints, it is clear that Mr. Tyrer’s
two suits are parallel. First, Mr. Tyrer raises the same due
process claim in both the state and the federal action. In
both suits, he alleges that the City of South Beloit arbitrarily
No. 05-1602 13
or without legal authorization interfered with the use of his
property, thus “depriv[ing] [him] of his property without
due process of law.”8 State Complaint, App. at 10; Federal
Complaint, id. at 26 (internal quotation marks omitted).
Indeed, the parties in both cases cite the same statutes and
cases to define the scope of the City Council and the Zoning
Board’s authority to order demolition and to define the
requisite protections and procedures to be followed in the
course of carrying out this order. Second, the parties in the
federal suit—Mr. Tyrer and the City—are also parties to the
state suit.9 Lastly, the facts alleged in both complaints are
identical; the two suits will be resolved largely by reference
to the same evidence.10 See Vulcan Chem. Techs., Inc. v. Barker,
8
In his state action, Mr. Tyrer alleges that the defendants’
actions violated both the Due Process Clause of the Fourteenth
Amendment and the Takings Clause of the Fifth Amendment; the
federal action, by contrast, is more narrow, alleging only a due
process violation.
9
Mr. Tyrer in his state action also names as defendants the City
Council members in their individual capacities. But “[t]he
existence of additional parties in one suit does not of itself
destroy parallelism.” Schneider Nat. Carriers, Inc. v. Carr, 903 F.2d
1154, 1156 (7th Cir. 1990). Significantly, the City of South Beloit
is a defendant in both the state and the federal action; that
Mr. Tyrer also named the City Council members as defendants in
his state suit does not undermine the conclusion that Mr. Tyrer’s
federal suit raises the same claims against the City that are being
litigated currently in his state action.
10
For example, as we shall discuss further in the text below, the
same persons would be deposed in both suits—namely the
City Council members, the architects who submitted plans to
the Zoning Board of Appeals and Mr. Tyrer. The same documents
also would be evaluated in both suits, including the records of
(continued...)
14 No. 05-1602
297 F.3d 332, 341 (4th Cir. 2002) (holding that because the
federal court was required to “consider[] the same evidence
and arguments” as did the state court in an earlier action,
dismissal or stay under Colorado River was proper (emphasis
added)); New Orleans Pub. Serv., Inc. v. Council of City of New
Orleans, 911 F.2d 993, 1005 (5th Cir. 1990) (“There is little to
be gained from rehashing the same evidence in another forum
. . . . The district court thus properly concluded that the
desire to avoid piecemeal litigation counseled in favor of a
stay.” (emphasis added)).
Mr. Tyrer responds that, although the state suit focuses
exclusively on events pre-demolition, the federal suit
focuses on the constitutionality of the demolition itself—“a
specific and discrete act of [the] defendant which took place
long after [the] plaintiff’s state complaint was filed.”
Appellant’s Br. at 17 (“Notably, the actual demolition of
[the] plaintiff’s property was not alleged in his state
court complaint or any of its amendments . . . .”). This
statement is not an accurate characterization of the state
court proceedings. Although Mr. Tyrer’s original state
complaint challenged relevant city ordinances, the cease and
desist order, the zoning and condemnation proceedings and
the demolition order, the complaint was amended after the
case was remanded by the Appellate Court of Illinois to the
state trial court and after the federal suit had been initiated.
Count III of the amended state complaint now alleges that
the
action[s] of the defendant City of South Beloit and each of
the named Counsel [sic] members deprived the plaintiff
10
(...continued)
the City Council hearings, the substance of the notice given to Mr.
Tyrer, and the work permit issued by Winnebago County.
No. 05-1602 15
of the use of his property from the date of the cease and
desist order and that such action constitutes either a
temporary or a permanent taking of plaintiff’s subject
premises.
Although the amended complaint does not challenge
explicitly the constitutionality of the demolition, it broadly
encompasses all events after construction halted, includ-
ing the actual demolition and its authorization by the City.
To be sure, Count III alleges violation of the Fifth
Amendment Takings Clause, not violation of the Fourteenth
Amendment Due Process Clause—the focus of the federal
complaint. Nevertheless, we repeatedly have held that two
actions are “parallel” where the underlying issues are the
same, even if they have been “repackag[ed] . . . under
different causes of action.” Clark, 376 F.3d at 687. In this
case, Mr. Tyrer’s claims in the federal and state actions are
inextricably interlinked: Government action effecting a
taking is only valid if the plaintiff is compensated justly and
is afforded due process of law. Thus, his takings claim
requires the court to probe not only the public use of the
property and the proper amount of compensation to be
paid, but also the protections afforded the property owner
prior to the taking. See Thomas Merrill, The Goods, the Bads,
and the Ugly, Legal Aff., Jan.-Feb. 2005, at 16, 18 (“The law
requires that [owners of property] receive just compensation
for any taking of their property, and due process affords
them a fair hearing on the legal authority for the taking and
the amount of just compensation they are entitled to
receive.”); cf. Coniston Corp. v. Vill. of Hoffman Estates, 844
F.2d 461, 464-65 (7th Cir. 1988) (discussing the overlap
between the Due Process and Takings Clauses). In addition,
in Count I of his state complaint, Mr. Tyrer contests the
procedures utilized by the City, see App. at 9 (“[The] City
16 No. 05-1602
Council . . . arbitrarily passed a resolution directing [con-
demnation and demolition].”), and explicitly states
a separate due process claim, id. at 10 (alleging that the
“plaintiff is being deprived of property without due process
of law”). Necessarily, then, the legal and factual analysis
required to resolve the state-court claims is substantially
similar to the analysis that a federal court would undertake
in evaluating Mr. Tyrer’s due process challenge to the
demolition of his house. For example, in examining the
legitimacy of “actual demolition,” Appellant’s Br. at 17, the
federal court would have to examine precisely the matters
in question in the state suit: the City Council hearings; the
notice given before demolition, including whether Mr. Tyrer
was given fair warning that his property was in a dangerous
condition; the procedures followed by the Zoning Board of
Appeals; and whether the City acted within the scope of its
legal authority. In sum, although the state and federal suits
are not identical, and although the focus of the federal
proceeding is more specific than the focus of the state
proceeding, both actions “rely on the same factual predicate
to raise substantially similar legal issues against substan-
tially similar parties.” Clark, 376 F.3d at 687.
B. Exceptional Circumstances
As we explained in Clark, “a conclusion that federal and
state proceedings are parallel only begins the inquiry into
whether a stay is appropriate under Colorado River.” Id.
Having determined that the proceedings are parallel,
we now must turn to the district court’s determination that
Mr. Tyrer’s case presents an “exceptional circumstance[].”
Id. As mentioned previously, Colorado River set forth four
primary factors to be considered when deciding whether
abstention is appropriate: whether the same res is involved
in both cases; inconvenience to the parties; the need to avoid
No. 05-1602 17
piecemeal litigation; and the order of state/federal filings.
See 424 U.S. at 818-19. This list was expanded by the Su-
preme Court in Moses H. Cone, 460 U.S. at 23-27, and
this circuit has refined the analysis to a consideration of
ten factors:
1) whether the state has assumed jurisdiction over
property; 2) the inconvenience of the federal forum; 3)
the desirability of avoiding piecemeal litigation; 4) the
order in which jurisdiction was obtained by the concur-
rent forums; 5) the source of governing law, state or
federal; 6) the adequacy of state-court action to protect
the federal plaintiff’s rights; 7) the relative progress of
state and federal proceedings; 8) the presence or ab-
sence of concurrent jurisdiction; 9) the availability of
removal; and 10) the vexatious or contrived nature of
the federal claim.
Caminiti & Iatarola, Ltd. v. Behnke Warehousing, Inc., 962 F.2d
698, 701 (7th Cir. 1992) (internal quotation marks omitted).
We are guided, in reviewing the district court’s applica-
tion of these factors, by the Supreme Court’s admonition
that no single factor is “necessarily determinative.” Colorado
River, 424 U.S. at 818; see also Schneider Nat’l Carriers, Inc. v.
Carr, 903 F.2d 1154, 1157 (7th Cir. 1990) (“The weight to be
given any one factor is determined solely by the circum-
stances of the particular case—there is no mechanical
formula by which to determine when a stay is appropriate”
(citing Moses H. Cone, 460 U.S. at 16)). In the end, what is
required is a carefully considered judgment taking into
account both the obligation to exercise jurisdiction and the
combination of factors counseling against that exercise.
Once it is clear that the district court carefully weighed the
appropriate factors, we deferentially review its decision. See
AXA, 347 F.3d at 279.
18 No. 05-1602
The district court in this case did not discuss extensively
the relevant factors, although it did give far more atten-
tion to the presence or absence of “exceptional circum-
stances” than it did to whether Mr. Tyrer’s state and federal
suits are parallel. It listed the relevant factors in a descrip-
tive fashion and summarily applied them to the facts of Mr.
Tyrer’s case.11 Specifically, the court determined that,
although the federal forum was not inconvenient (factor 2)
and although federal law provides the rule of decision
(factor 5), allowing the federal proceeding to continue
would promote “piecemeal and duplicative litigation as
both courts are capable of deciding the issues raised” (factor
3). App. at 40. It also concluded that the state action was
much further along procedurally than the federal action
(factor 7) and that “the state court action will clearly allow
plaintiff to vindicate any violation of his federal rights”
(factor 6). Id. On balance, the court concluded, the “factors
overall support abstention under the Colorado River doc-
trine.” Id.
Because several of the relevant factors strongly sup-
port the district court’s decision not to exercise jurisdic-
tion over Mr. Tyrer’s federal action, its decision to abstain
under Colorado River does not constitute an abuse of discre-
tion. Certainly, the district court’s concern about
the progress made in the state proceeding is well-founded
11
Thus, the district court’s actions in this case differed from the
district court’s treatment of the relevant Colorado River factors
in Sverdrup. See Sverdrup Corp. v. Edwardsville Cmty. Unit Sch. Dist.
#7, 125 F.3d 546, 550 (7th Cir. 1997) (reversing the abstention
order because “the district court never discussed the Colorado
River factors and articulated no reason for its decision to stay the
pending federal suit”).
No. 05-1602 19
and, given the procedural history of this dispute, was
entitled to great weight. We cannot accept Mr. Tyrer’s
submission that “very little of substance has, in fact, taken
place [in the state suit], other than the parties’ opposing
motions for summary judgment.” Appellant’s Br. at 22. By
the time that Mr. Tyrer filed his federal suit, his state
suit had been ongoing for approximately four years. A
number of significant events have taken place in that case:
it has been through an order for demolition; motions for
summary judgment; an appeal and remand; and various
amendments to the plaintiff’s complaint, including the
addition of Count III after the federal litigation was com-
menced. Although the precise status of discovery is not
apparent from the record before us, it is clear that various
depositions have been taken in the state case. At the
very least, the “controversy appear[s] to be closer to a
resolution in the state proceedings than in the federal.”
Caminiti & Iatarola, 962 F.2d at 702.
The district court’s concern over the danger of piecemeal
litigation is also well-founded. “Piecemeal litigation occurs
when different tribunals consider the same issue, thereby
duplicating efforts and possibly reaching different results.”
LaDuke v. Burlington N. R.R. Co., 879 F.2d 1556, 1560 (7th Cir.
1989) (internal quotation marks omitted). As the district
court recognized, if Mr. Tyrer pursues both his federal and
his state action, substantially similar issues will be litigated
simultaneously in different forums. As we explained in
LaDuke, this circumstance gives rise to two problems:
First, a party may try to accelerate or stall proceedings
in one of the forums in order to ensure that the court
most likely to rule in its favor will decide a particular
issue first. Second, the possibility exists that one
court, unaware that the other court has already ruled,
20 No. 05-1602
will resolve an issue differently and create a con-
flict between the two forums.
Id.
Mr. Tyrer responds that the issues in the federal and the
state suit are not identical and, therefore, resolution of the
issues in his state case “will not lay to rest the claims
remaining in the other proceedings.” Appellant’s Br. at 20.
For example, he notes that the federal suit raises the consti-
tutionality of the actual demolition, while the state suit
raises the constitutionality of the city ordinances and
whether the Zoning Board’s actions constituted a “taking of
[the] plaintiff’s property.” Id. But, as we already have noted,
the actions are parallel in nature. Count III of Mr. Tyrer’s
state complaint now contests the constitutionality of the
actions taken by the City and by its Council members “from
the date of the cease and desist order,” including, necessar-
ily, the actual demolition. It is true that the state action
alleges a violation of the Fifth Amendment Takings Clause,
not the Fourteenth Amendment Due Process Clause as does
the federal action. But the danger of piecemeal litigation
does not turn on formal identity of issues but on concerns
about the efficient use of judicial resources and the public’s
perception of the legitimacy of judicial authority:
When a case proceeds on parallel tracks in state and
federal court, the threat to efficient adjudication is self-
evident. But judicial economy is not the only value that
is placed in jeopardy. The legitimacy of the court system
in the eyes of the public and fairness to the individual
litigants also are endangered by duplicative suits that
are the product of gamesmanship or that result in
conflicting adjudications.
Lumen Constr., Inc. v. Brant Constr. Co., Inc., 780 F.2d 691, 694
(7th Cir. 1985). We continued:
No. 05-1602 21
While the doctrine of res judicata largely obviates the
risk of conflicting final dispositions on the merits, a
significant risk of conflict attends interlocutory rul-
ings that are not ordinarily entitled to preclusive ef-
fect. To take a fairly pedestrian example, the state and
federal courts may issue contradictory orders on discov-
ery matters. This single, simple conflict, on matters
ordinarily within the trial courts’ broad discretion, leads
ineluctably to a “rush to judgment,” with each side
attempting to push forward the litigation in the forum
ruling in its favor on the preliminary matter.
Id. at 694 n.2 (internal citations omitted).
In this case, allowing the two suits to proceed concur-
rently would waste the parties’ resources, risk duplicative
rulings and reward a strategic gamesmanship that has no
place in a dual system of federal and state courts.12 As
discussed previously, the claims in the federal and state
suits are predicated on the same facts and will be resolved
largely by reference to the same evidence. Both suits require
the court to examine the protections afforded Mr. Tyrer
before his property was destroyed. To that end, the same
persons will be deposed, the same witnesses called and the
same evidence produced. Not only would duplicative
litigation waste judicial resources, but it also would create
an undue risk of conflicting final judgments on the merits of
Mr. Tyrer’s claims. See Clark, 376 F.3d at 687 (finding that
similar facts warranted abstention: “[T]he two courts would
12
As we note above, it is troubling that Mr. Tyrer limited
reference to the demolition in his state claim to takings issues,
while narrowly drawing his federal complaint to allege only
a due process claim. Both claims could have, and should have,
been brought in the state forum.
22 No. 05-1602
oversee similar pre-trial motions and discovery matters and
two different triers of fact would be asked to consider the
same issues, evidence and witnesses. . . . Not only would a
stay save judicial resources, but it would also protect against
the danger of the two proceedings reaching inconsistent
results”).
Mr. Tyrer nevertheless contends that the state court has
proven inhospitable to his claims. He points to the state
court’s summary denial of his constitutional claims, as
well as its denial of his demand for a jury trial.13 He does
nothing to substantiate this argument, however, except
to complain that the state court rejected his claims. See
Appellant’s Br. at 21-22. The insinuation that Illinois
courts will not live up to the standard of full and fair
adjudication of the issues “is pure speculation that we
expressly disavow.” AXA, 347 F.3d at 280; see also CIGNA
HealthCare, 294 F.3d at 855 (“This is all speculation; it is
enough that we emphasize—and we do emphasize—that if
down the road the state court judge proves unwilling
or unable to enforce CIGNA’s valid rights . . . and CIGNA
cannot get prompt relief from the state appellate courts,
it can ask the district judge to lift the stay[.]”).14
13
Mr. Tyrer also contends that the state court’s ruling may
foreclose to him a jury trial on his federal claims. However, if
he believes the state court improperly has denied him the right to
trial by jury on his federal claims in violation of the Seventh
Amendment, Mr. Tyrer can appeal that decision.
14
We noted in CIGNA that, although the preclusive effect of a
state court judgment in a federal case is a matter of state rather
than federal law, see Marrese v. American Academy of Orthopaedic
Surgeons, 470 U.S. 373, 380-81 (1985), “Illinois law denies collat-
eral estoppel effect to a finding not made on the basis of a fair
(continued...)
No. 05-1602 23
Second, Mr. Tyrer submits that a plaintiff with “federal
rights and claims” has a right to a federal forum. The
existence of a federal question typically “weighs heavily
against abstention.” Sverdrup, 125 F.3d at 549. However, Mr.
Tyrer chose to bring his federal claims first in a state forum.
He filed a complaint in state court in 2000, raising a due
process claim. He amended this same complaint in 2001,
adding a Fifth and Fourteenth Amendment takings claim.
He again amended the complaint in 2005, expanding the
federal constitutional takings claim to encompass events
occurring after the cease and desist order. See Interstate
Material, 847 F.2d at 1289 (finding it significant that the
party opposing abstention “filed both actions and chose to
file in state court first”). Mr. Tyrer simply has not estab-
lished that he will be denied an opportunity to litigate fully
and fairly his federal claims in the state forum that he
initially chose.
Conclusion
The district court did not abuse its discretion in weigh-
ing the factors bearing on whether Mr. Tyrer’s state and
federal suits are parallel and present those “exceptional
circumstances” warranting abstention. For the reasons set
forth in this opinion, we affirm the judgment of the dis-
trict court.
AFFIRMED
(...continued)
and adequate hearing.” CIGNA HealthCare of St. Louis, Inc.
v. Kaiser, 294 F.3d 849, 856 (7th Cir. 2002) (citing Fried v. Polk Bros.,
Inc., 190 Ill. App. 3d 871 (Ill. App. Ct. 1989)).
24 No. 05-1602
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-2-06
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341 F.2d 576
Rafael VEGA et al., Petitioners,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 6289.
United States Court of Appeals First Circuit.
Feb. 23, 1965.
Ginoris Vizcarra, Santurce, P.R., with whom Sarah Torres Peralta, Santurce, P.R., was on the brief, for petitioners.
Norton J. Come, Asst. Gen. Counsel, with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, and Robert A. Armstrong, Washington, D.C., Attys., were on the brief, for respondent.
Before ALDRICH, Chief Judge, MARIS,1 Circuit Judge, and FORD, District Judge.
PER CURIAM.
1
This petition for review by five discharged employees whose complaint was dismissed by the National Labor Relations Board raises the single question of whether petitioners were supervisors, and hence not within the protection of the Act. The trial examiner, in a careful and detailed report, reached the conclusion that they were not supervisors. On review by a three-member panel two members, although in most respects adopting the subsidiary findings of the trial examiner, reached the opposite conclusion. Crimptex, Inc., 145 N.L.R.B. No. 50, December 16, 1963. One member would have accepted the trial examiner's report in toto.
2
No purpose would be served by our repeating the findings. As counsel for the Board candidly admits, the question is close. However, we have repeatedly stated that a broad discretion must be given to the Board on this issue. In this case we regard it as of considerable importance that if the petitioners were not supervisors the company's employees were entirely without supervision a large part of the time. Cf. N.L.R.B. v. Supreme Dyeing and Finishing Corp., 1 Cir., 1965, 340 F.2d 493. In such circumstances it was not unreasonable to conclude that even the relatively small amount of supervisory power conferred upon and exercised by petitioners made them representatives of the employer.
3
Affirmed.
1
By designation
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50720
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL ALMAGUER-REYES,
Defendant-Appellant.
* * * * * * * * * * * * * * * * * * * *
No. 98-50807
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ROCHA-AREVALOS,
Defendant-Appellant.
- - - - - - - - - -
Appeals from the United States District Court
for the Western District of Texas
USDC No. DR-97-CR-488-1
USDC No. DR-98-CR-131-1
- - - - - - - - - -
June 16, 1999
Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
The appellants pleaded guilty to illegally reentering 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.
No. 98-50720
c/w No. 98-50807
- 2 -
country after having been deported. They argue that the district
court erred when it increased their offense levels by 16 under
U.S. Sentencing Guidelines § 2L1.2(b)(1)(A) for their prior state
drug convictions. They contend that, because their state felony
drug convictions would be only misdemeanors under federal law,
their prior convictions were not “drug-trafficking crime[s]”
under 18 U.S.C. § 924(c)(2) and did not constitute “aggravated
felon[ies]” for purposes of § 2L1.2(b)(1)(A). Their argument is
foreclosed by United States v. Hinojosa-Lopez, 130 F.3d 691, 694
(5th Cir. 1997). The appellants’ sentences are AFFIRMED.
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} |
Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-13-2006
Greene v. McNeal
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1353
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1353
LARRY L. GREENE,
Appellant
v.
GREGORY MCNEAL; MARY MCDANIEL, Attorney;
GREGORY F. ADAMCZYK, Corporal; BARRY TITLER
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 04-cv-01451)
District Judge: Honorable John E. Jones, III
____________________________________
Submitted Pursuant to LAR 34.1(a)
January 9, 2006
____________________________________
Before: BARRY and AMBRO, Circuit Judges, and
DEBEVOISE*, Senior District Judge
(Filed: January 13, 2006)
OPINION
*
Honorable Dickinson R. Debevoise, Senior District Judge for the District of New
Jersey, sitting by designation.
DEBEVOISE, Senior District Judge
Appellant, Larry L. Greene, filed a complaint in the District Court alleging that he
was discharged from his job as a Pennsylvania State trooper in violation of his First
Amendment right of access to the courts, his right to procedural and substantive due
process of law and his right to equal protection of the laws.1 He named as defendants
Pennsylvania State Police (“PSP”) officers Gregory McNeal, Gregory Adamczyk and
Barry Titler and Mary McDaniel, an attorney with PSP. The District Court granted
defendants’ motion to dismiss. We will affirm.
I. The Facts
In his appellate brief Greene acknowledged that “the Trial Court’s factual synopsis
is excellent.” The abbreviated summary of the allegations of the complaint that follow is
derived from the District Court opinion. In January of 2002 a woman reported to Officer
McNeal that her daughter had been involved with Greene during off-duty hours when the
daughter was a minor. After the daughter failed to appear for an interview, Officer
McNeal interviewed her by telephone. Although the daughter did not wish to pursue the
matter, Corporal Adamczyk, a criminal investigator, was assigned to the case. The
daughter told him that she did not want to be involved in the matter and had no complaint
against Greene.
Nevertheless, during that period “the defendants enlisted the support of the
1
Greene also alleged a violation of his First Amendment right to associate and
speak out but did not raise these claims on his appeal.
2
defendant Titler who used the internal machinery of the PSP’s Internal Affairs Division,
to persecute [Greene] while seeking to create a statistic indicating that the PSP was
ferreting out troopers accused of sexual misconduct, causing a reverse discrimination
further depriving [Greene] of First Amendment rights.” (Complaint Para 16, App. A9).
On April 22, 2002, a second young woman was brought to the PSP Huntington
barracks under false pretenses and was questioned extensively by Corporal Adamczyk.
Attorney McDaniel, who worked with Officers McNeal and Titler, told both women that
they must attend PSP administrative hearings or be held in contempt of court and go to
jail. Administrative proceedings were held, at which the young women testified.
Thereafter Greene was dismissed from employment with PSP on August 29, 2002.
Greene’s action brought pursuant to 42 U.S.C. § 1983, followed.
II. The District Court Opinions2
Addressing defendants’ motion to dismiss the complaint, the District Court held
that Greene’s allegations established that the defendants were state actors, but also held
that the allegations of the complaint failed to establish that defendants deprived him of a
federal right secured under the Constitution or federal law.
With respect to Greene’s claim that he was denied access to the courts, the District
Court found that he “fails to state in what manner defendants denied him access, and does
not identify any court to which he was denied access.” (App. A18). Citing Christopher v.
2
The District Court entered two orders and opinions, one dated November 16,
2004 and one dated January 3, 2005. They will be treated herein as a single opinion.
3
Harbury, 536 U.S. 403 (2002), in which the Supreme Court specifically addressed access
to court claims, the District Court held that the complaint failed to allege either of two
categories of court access claims: i) claims that “systematic official action frustrates a
plaintiff or plaintiff class in preparing and filing suits at the present time,” Id. at 413, and
ii) “claims not in aid of a class of suits yet to be litigated, but of specific cases that cannot
now be tried (or tried with all material evidence), no matter what official action may be in
the future.” Id. at 413-414. The District Court stated that “[w]hile we have endeavored
in a nearly Herculean fashion to decipher how Plaintiff’s claim fits within either of the
Christopher categories, we can only conclude that he fails to state a claim in this regard”
(App. A21) (footnote omitted).
The District Court summarized Greene’s due process claims: “Plaintiff asserts that
he was denied both substantive and procedural due process rights ‘in that the defendants
lied to civilian witnesses who neither wanted, nor intended, to attend hearings and be a
witness against plaintiff, into believing that they could be charged with contempt and
jailed if they did not show up for the defendant’s administrative hearing held on behalf of
the PSP against plaintiff . . . [P]laintiff meets the Christopher [v. Harbury] criteria, i.e., by
virtue of the cloak of authority surrounding the defendants, who blatantly abused it, he
was forced to go through an administrative hearing and dismissed from his job.’” (App. A
38).
The District Court observed that the right to hold specific private employment and
to follow a chosen profession free from unreasonable governmental interference comes
4
within both the liberty and property concepts of the Fifth and Fourteenth Amendments.
The Court then held that “[w]hile we can perceive that a procedural due process claim
might arise out of a sequence of events which, as here, resulted in the dismissal of a
Pennsylvania State Trooper, Plaintiff’s complaint is bereft of any factual allegations
which would allow us to discern that there was in fact a procedural due process
violation.” (App. A 27-8).
Turning to Greene’s substantive due process claim, the District Court held that
“Plaintiff has failed to state a substantive due process cause of action as he had no
fundamental property interest in his government job as a PSP officer.” (App. A 39).
Finally the District Court rejected Greene’s claimed denial of equal protection
under the Fourteenth Amendment. Greene alleged that PSP wanted to scapegoat him and
others like him who were engaged in sexual misconduct. The District Court concluded
that the asserted class alleged to have been treated differently, i.e., state troopers allegedly
involved in sexual misconduct, is not a suspect class nor is the right to engage in sexual
misconduct a fundamental right. That being the case, PSP need only have a rational basis
for treating the class of which Greene was a member differently. The court found “that
PSP’s interest in removing state troopers involved in sexual misconduct furthers a
legitimate state interest and accordingly satisfies rational basis scrutiny under the equal
protection clause.” (App. A 30).
5
The District Court granted Defendants’ motion to dismiss. This appeal followed.3
III. Jurisdiction and Standard of Review
The District Court had subject matter jurisdiction by virtue of 28 U.S.C. §§ 1331
and 1343. We have jurisdiction by virtue of 28 U.S.C. § 1291.
Our review of the District Court’s grant of a Rule 12(b)(6) motion to dismiss a
complaint for failure to state a claim is plenary. DiGiacomo v. Teamsters Pension Trust
Fund, 420 F.3d 220, 222 fn 4 (3d Cir. 2005). All facts alleged in the complaint and all
reasonable inferences that can be drawn from them must be accepted as true. Markowitz
v. Northeast Land Co., 906 F. 2d 100, 103 (3d Cir. 1990).
Reading the complaint in the light most favorable to Greene’s position, it alleges
two wrongful acts: i) PSP’s pursuit of an internal review and discipline of a State police
officer for an improper purpose; and ii) treating two prospective witnesses in a
disciplinary proceeding against Greene in an improper way.
The improper purpose is summarized in Greene’s brief: “The leadership of PSP, at
the times complained of in the complaint, was feeling particularly sensitive about public
pressure caused by high profile, well-publicized cases like the ‘Evans’ case and the
3
In a November 16, 2004 order the District Court granted Defendants’ motion to
dismiss Greene’s right to access claims, First Amendment claims and Fourteenth
Amendment equal protection claims. The Court denied the Defendants’ motion to
dismiss Greene’s substantive due process claims. The order permitted Greene to file an
amended complaint to supply additional facts in support of his procedural due process
cause of action. Greene did not file an amended complaint, and in a January 3, 2005
order addressing Defendants’ renewed motion to dismiss, the Court granted the motion
and dismissed Greene’s procedural and substantive due process claims.
6
‘Suders’ case. As a consequence, Larry Greene and others like him were pursued for the
sake of statistics. The PSP wished to demonstrate that they were serious about getting rid
of any members who engaged in questionable sexcapades.” (App. Brief at 9).
The improper treatment of witnesses consisted of advising one witness that, if she
did not attend Greene’s administrative hearings and testify, she could be charged with
contempt of court and go to jail. A second potential witness was induced to present
herself at the PSP offices on the representation that she was called there on a matter
concerning her father, who was incarcerated in a county prison. She too testified against
her will because she believed she had to.
What the complaint fails to allege is as significant as what it does allege. There is
no allegation that the young women had not engaged in sexual activities with Greene
when they were minors; there is no allegation that they were pressured in any way to give
false or misleading testimony; there is no allegation that the administrative proceeding
was conducted in any way that was unfair or irregular. These omissions are particularly
significant in light of the fact that the District Court gave Greene an opportunity to file an
amended complaint to buttress his claim of a violation of procedural due process. If
anyone has a ground to complain about the representations allegedly made to the
witnesses, it would be the witnesses themselves, not Greene. Further, no good reason
appears why the PSP, concerned about adverse publicity arising from high profile cases,
should not seek to remove officers who had engaged in “questionable sexcapades.”
The District Court explained fully why there is no merit to Greene’s claims that he
7
was denied access to the courts, that he was deprived of procedural and substantive due
process and that he was denied equal protection of the laws. In his appellate brief Greene
advances nothing to counter the reasoned conclusions of the District Court. Rather the
brief consists largely of a generalized commentary upon the importance of fair hearings,
the dangers of corrupt and coercive police conduct and the injuries that a wrongfully
discharged public employee will suffer. Although one can agree with these general
statements, the complaint alleges no facts that suggest that they are relevant in the present
case. The complaint alleges nothing which, if true, would support Greene’s claims that
he has been deprived of his constitutional rights.
We will affirm the orders of the District Court dismissing Greene’s complaint
essentially for the reasons set forth in the District Court’s opinions.
8
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Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-14-00116-CV
Norris J. DEVOLL,
Appellant
v.
Rebecca DEMONBREUN and William Dowds,
Appellees
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-01296
Honorable Antonia Arteaga, Judge Presiding
BEFORE CHIEF JUSTICE STONE, JUSTICE ANGELINI, AND JUSTICE MARTINEZ
In accordance with this court’s opinion of this date, the judgment of the trial court is
AFFIRMED. Costs of the appeal are taxed against appellant Norris J. DeVoll.
SIGNED December 31, 2014.
_____________________________
Rebeca C. Martinez, Justice
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 20, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
V ERNO N JA G O ,
Petitioner-A ppellant, No. 07-1185
v. District of Colorado
JOSEPH G. ORTIZ, Executive (D.C. No. 07-CV-0039-ZLW )
Director, Department of Corrections
and JOHN W . SU THERS, Attorney
General, State of Colorado,
Respondents-Appellees.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before BR ISC OE, EBEL and M cCO NNELL, Circuit Judges.
Vernon Jago, a Colorado prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) that would allow him to appeal from the district court’s
order denying his habeas corpus petition under 28 U.S.C. § 2241. See 28 U.S.C.
§ 2253(c)(1)(B); M ontez v. M cKinna, 208 F.3d 862, 867 (10th Cir. 2000)
(applying § 2253(c)(1)(B ) C OA requirement to § 2241 actions). Because we
conclude that M r. Jago has failed to make “a substantial showing of the denial of
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
a constitutional right,” we deny his request for a COA and dismiss the appeal. 28
U.S.C. § 2253(c)(2).
BACKGROUND
On October 11, 2001, M r. Jago was charged with two counts of sexual
assault on a child by one in a position of trust. Two months later, the state
reduced the charge to one count of sexual assault on a child, a class four felony
under Colorado law, in exchange for a guilty plea. The state district court
sentenced M r. Jago to two years to life imprisonment.
As part of the Sex Offender Lifetime Supervision Act (“SOLSA”),
Colorado requires sex offenders to serve the minimum sentence and to progress in
treatment until a parole board determines that the offender no longer poses an
undue threat to society if treated and monitored appropriately. Colo. Rev. Stat. §
18-1.3-1006(1)(a) (2003). M r. Jago was denied parole at his first hearing before
the board. SOLSA requires the board to review the decision at least once every
three years. Id. § 18-1.3-1006(1)(c).
On January 8, 2007, M r. Jago filed a § 2241 habeas petition in federal
district court. The court ordered M r. Jago to amend and clarify his 131-page
com plaint to comply w ith R ule 8 of the Federal Rules of Civil Procedure. On
M arch 5, 2007, M r Jago filed an amended complaint, now only 95 pages long,
including exhibits. On M arch 19, 2007, the district court dismissed the
-2-
complaint, finding that it still did not comply with Rule 8. The court then denied
a COA and this request followed.
D ISC USSIO N
The denial of a motion for relief under 28 U.S.C. § 2241 may be appealed
only if the district court or this Court first issues a COA. 28 U.S.C. §
2253(c)(1)(B); M ontez, 208 F.3d at 867. A COA will issue “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). If, as here, a court denies a habeas petition on procedural grounds
without reaching the underlying constitutional claim, “a CO A should issue when
the prisoner shows . . . that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable w hether the district court was correct in its
procedural ruling.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000).
W e agree with the court below that M r. Jago’s petition for federal habeas
relief does not constitute a “short and plain” statement of his claims, and we
therefore conclude it was appropriately dismissed without prejudice under Fed. R.
Civ. P. 8. See M ountain View Pharmacy v. Abbott Labs., 630 F.2d 1383, 1387
(10th Cir. 1980).
Quite apart from the procedural deficiencies in the complaint, M r. Jago has
not made a substantial showing of the denial of a constitutional right. His
underlying claim seems to be that, as part of a conspiracy to keep him in prison
-3-
for life, the state violated his due process rights by not providing him sufficient
opportunity to complete the statutory prerequisites for parole before his first
parole hearing. He also alleges violations of the Equal Protection Clause and of
the Fifth and Eighth Amendments. These claims do not satisfy the standards for
granting C OA .
Generally, there is no federal constitutional right to parole, although
statutory language mandating parole can create a liberty interest that the
government cannot infringe upon without affording due process. See Greenholtz
v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7, 12 (1979); Bd. of
Pardons v. Allen, 482 U.S. 369, 373, 376, 381 (1987). Because the applicable
state law gives the board total discretion in granting parole— unlike the statutory
mandates for early release in Greenholtz and Allen— M r. Jago has no federally
protected liberty interest. See Colo. Rev. Stat. § 18-1.3-1006(1)(a) (“the parole
board shall schedule a hearing to determine w hether the sex offender may be
released”) (emphasis added).
M r. Jago also fails to satisfy the COA requirement with respect to his
Eighth A mendment, Double Jeopardy, and Equal Protection claims. He states,
without any supporting authority, that the CDOC violated these constitutional
rights. As we have previously held in this Circuit, “[c]onclusory allegations
without supporting factual averments are insufficient to state a claim.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
-4-
Finally, M r. Jago asks this Court to “put him on a stake and let the
townspeople come and burn him.” R. Doc. 10, at 4. Having neither the power to
afford such a remedy on a request for COA, nor the inclination to create the
conditions upon which M r. Jago might have an actual Eighth Amendment claim,
we deny this request.
C ON CLU SIO N
W e D EN Y M r. Jago’s request for a COA and DISM ISS this appeal.
Appellant’s motion to proceed in form a pauperis is also DENIED.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
-5-
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18 N.Y.3d 935 (2012)
967 N.E.2d 683
944 N.Y.S.2d 460
2012 NY Slip Op 67966
In the Matter of RAYMOND ALVAREZ, Appellant,
v.
NEW YORK STATE DIVISION OF PAROLE, Chairman, Respondent.
Motion No: 2011-1220.
Court of Appeals of New York.
Submitted November 28, 2011.
Decided March 22, 2012.
Motion to vacate this Court's October 24, 2011 dismissal order denied (see 17 NY3d 901 [2011]).
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J-S04011-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY GLEN WRIGHT :
:
Appellant : No. 1503 MDA 2017
Appeal from the PCRA Order September 13, 2017
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000193-2009
BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 09, 2018
Appellant, Anthony Glen Wright, appeals pro se from the order denying
his pro se “Petition for Writ of Habeas Corpus.” We affirm.
[Appellant] was charged with Involuntary Deviate Sexual
Intercourse,1 Aggravated Indecent Assault,2 and Indecent
Assault3 and was convicted of all counts by a jury on October 6,
2009. On June 4, 2010, [Appellant] was sentenced to ninety to
two hundred-forty months incarceration. [Appellant] filed a
timely Post-Sentence Motion on June 14, 2010, which was
denied by the Honorable Judge Richard J. Walsh, now retired, on
August 20, 2010. [Appellant] filed a timely Notice of Appeal of
the Court’s denial of his Post-Sentence Motion on September 8,
2010. On August 19, 2011, the Superior Court affirmed
[Appellant’s] Judgment of Sentence.4 [Appellant] did not appeal
the Superior Court’s decision to the Pennsylvania Supreme
Court.
1 18 Pa. C.S.A. §3123(a)[(7)]
2 18 Pa. C.S.A. §3125(a)(7)
3 18 Pa. C.S.A. §3126(a)(7)
-1-
J-S04011-18
4 Because [Appellant] did not originally serve the
Trial Court with his Concise Statement of Matters
Complained of on Appeal, filed on September 27,
2010, the Superior Court remanded the case for
proper service to be made on the Trial Court.
[Appellant] filed and served his Concise Statement of
Matters Complained of on Appeal and the record was
transmitted for a second time to the Superior Court
on July 13, 2011. Thereafter, the Superior Court
issued its memorandum opinion affirming
[Appellant’s] Judgment of Sentence.
On August 17, 2012, [Appellant] filed his first PCRA[1]
Petition, which was filed by retained counsel. On November 15,
2012, [Appellant] filed an Amended PCRA Petition through
retained counsel. The Commonwealth filed an Answer on
January 28, 2013, and a hearing was held on April 29, 2013.
The Trial Court issued an Opinion and Order denying
[Appellant’s] PCRA Petition on July 3, 2013. On July 30, 201[3],
[Appellant] filed a timely Notice of Appeal of the Trial Court’s
denial of [Appellant’s] PCRA Petition. The Superior Court
affirmed the Trial Court’s dismissal of [Appellant’s] PCRA Petition
on March 14, 2014.
[Appellant] filed a Second PCRA Petition on April 9, 2014,
on his own behalf, which was presided over by the undersigned.
However, [Appellant] subsequently retained counsel Edward
Qaquish, Esq. for PCRA proceedings. Attorney Qaquish filed a
Petition for Leave to Withdraw as Counsel and a Turner/Finley[2]
Letter on November 20, 2014. On December 4, 2014, this
[c]ourt issued an Order notifying [Appellant] its intent to dismiss
[Appellant’s] Second PCRA Petition and granted Attorney
Qaquish leave to withdraw. [Appellant] filed an Answer to the
[c]ourt’s Order of Intent to Dismiss on January 16, 2015. The
undersigned issued an Order dismissing [Appellant’s] Second
PCRA Petition on January 29, 2015. [Appellant] filed a Notice of
Appeal Nunc Pro Tunc and Concise Statement of Matters
____________________________________________
1 Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
-2-
J-S04011-18
Complained of on Appeal on his own behalf on June 4, 2015.
The Superior Court issued a memorandum opinion on May 3,
2016, affirming this [c]ourt’s dismissal of [Appellant’s] Second
PCRA Petition.
On July 28, 2017, [Appellant] filed on his own behalf a
Petition for Writ of Habeas Corpus seeking relief on the basis
that he is in prison for a different crime than he was convicted.
Specifically, [Appellant] claims that he is being detained under
18 Pa. C.S.A. §3123(a)(6), when he was convicted under
§3123(a)(7).[3] On August 8, 2017, this [c]ourt issued an
extended Order notifying [Appellant] of its intent to dismiss his
Petition without a hearing. [Appellant] filed an Answer to the
[c]ourt’s Order on August 17, 2017, and this [c]ourt dismissed
[Appellant’s] Petition on September 13, 2017. [Appellant] filed a
timely Notice of Appeal on September 21, 2017.[4]
PCRA Court Opinion, 10/16/17, at 1-3 (footnote omitted).
Appellant presents the following issues for our review:
A. Did the trial court err in dismissing Mr. Wrights petition for
Writ of Habeas Corpus as a untimely filed PCRA petition utilizing
inquiry procedure under 42 Pa.C.S.§9545(b)(1), a standard
applicable to the dismissal of a PCRA petition, when a Due
Process challenge based upon his unlawful restraint and the
validity of his continued detention for a crime he was NOT
convicted of, falls outside the scope of the PCRA? AND, without
addressing Wrights claim that pursuant to 42 PA.C.S. §9543
irregardless of timely filing, the, PCRA does not provide Wright
an opportunity to challenge his continued detention for a crime
he was not convicted of. Thus Resulting in the denial of his
Constitutional right to be heard on a Substantive and or
Procedural Due Process Rights violation.
____________________________________________
3In its opinion, the PCRA court incorrectly states that Appellant was charged
and convicted under Section 3123(a)(6), despite acknowledging that Section
3123(a)(6) was deleted in 2002. PCRA Court Opinion, 10/16/17, at 3 n. 5.
4 Appellant and the court of common pleas complied with Pa.R.A.P. 1925.
-3-
J-S04011-18
B. Did the trial court violate Substantive and or Procedural
Due Process, by Sua Sponte and or erroneously entering upon
the official record, a determination that Wright was guilty of
violating section §3123(a)(6)? AND now by continuing to
unlawfully detain and or confine Mr. Wright under this
enumerated offense, after it had been brought to the courts
attention, that this is a separate offense he was NOT convicted
of by his jury and on which his jury was never instructed?
Appellant’s Brief at 4-5 (verbatim).
Appellant argues that he is being unlawfully restrained. Appellant’s
Brief at 11. Specifically, Appellant asserts that he is being unlawfully
detained under the enumerated offense of involuntary deviate sexual
intercourse (“IDSI”) pursuant to 18 Pa.C.S. § 3123(a)(6), a crime for which
he was not convicted by a jury. Id. He further contends that he is not
eligible to seek relief under the PCRA pursuant to the requirements in 42
Pa.C.S. § 9543 because his claim is not cognizable under the PCRA, and
therefore, his claim is properly raised in a writ for habeas corpus. Id. at 11-
13, 16. According to Appellant, the trial court mistakenly treated his petition
for writ of habeas corpus as a PCRA petition and dismissed it as untimely.
Id. at 12. Appellant contends that “the PCRA time bar does NOT apply, as
[Appellant] did not seek relief under the PCRA, because a challenge to the
legality of his continued detention for a crime he was NOT convicted of, is
NOT a challenge to the conviction or sentence, and as such falls outside the
scope of the PCRA.” Id. at 13 (emphasis in original).
We note the following tenets of law when addressing the merits of a
petition for writ of habeas corpus:
-4-
J-S04011-18
The availability of habeas corpus in Pennsylvania is both
prescribed and limited by statute. See 42 Pa.C.S. §§ 6502
(Power to issue writ); 6503 (Right to apply for writ). Subject to
these provisions, the writ may issue only when no other remedy
is available for the condition the petitioner alleges or available
remedies are exhausted or ineffectual. See Reese, 774 A.2d at
1260. Thus, “habeas corpus should not be entertained . . .
merely to correct prison conditions which can be remedied
through an appeal to prison authorities or to an administrative
agency.” Commonwealth ex rel. Bryant v. Hendrick, 444
Pa. 83, 280 A.2d 110, 113 (1971). Moreover, “it is not the
function of the courts to superintend the treatment and discipline
of prisoners in penal institutions.” Id. Accordingly, the writ may
be used only to extricate a petitioner from illegal confinement or
to secure relief from conditions of confinement that constitute
cruel and unusual punishment. See Id.; Weaver v. Pa. Bd. of
Probation and Parole, 688 A.2d 766, 775 n. 17 (Pa. Cmwlth.
1997). “[T]he failure or refusal of prison authorities to exercise
discretion in a particular way may not be reviewed in a habeas
corpus proceeding.” Commonwealth ex rel. Tancemore v.
Myers, 189 Pa. Super. 270, 150 A.2d 180, 182 (1959).
Commonwealth ex rel. Fortune v. Dragovich, 792 A.2d 1257, 1259. (Pa.
Super. 2002).
Because the writ may be used only to extricate a petitioner from illegal
confinement or to secure relief from conditions of confinement that
constitute cruel and unusual punishment, we must determine whether either
circumstance is being pled here. In the petition for writ of habeas corpus
presently before us, Appellant argues that he is being illegally detained.
Although Appellant’s claim facially implicates one of the two bases for
invocation of a writ of habeas corpus, that he is being unlawfully detained,
closer scrutiny of Appellant’s asserted basis for this unlawful detention
reflects that he claims he is being detained under an improper sentence.
-5-
J-S04011-18
Specifically, Appellant avers that he is serving a sentence for a crime for
which he has not been convicted, specifically IDSI under Section 323(a)(6).5
Accordingly, Appellant’s claim is properly deemed a challenge to his
sentence.
The PCRA “provides for an action by which persons convicted of crimes
they did not commit and persons serving illegal sentences may obtain
collateral relief.” Commonwealth v. Jackson, 30 A.3d 516, 518 (Pa.
Super. 2011) (quoting 42 Pa.C.S. § 9542). See also Commonwealth v.
Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (stating that “[i]f no statutory
authorization exists for a particular sentence, that sentence is illegal and
subject to correction.”); Commonwealth v. Hackett, 956 A.2d 978, 986
(Pa. 2008) (explaining that when considering what types of claims are
cognizable under the PCRA, “the scope of the PCRA eligibility requirements
should not be narrowly confined to its specifically enumerated areas of
review.”).
Furthermore, claims that are cognizable under the PCRA must be
considered within the context of the PCRA. As we have explained in
considering whether habeas corpus petitions should be treated as PCRA
petitions:
It is well-settled that the PCRA is intended to be the sole means
of achieving post-conviction relief. 42 Pa.C.S. § 9542;
____________________________________________
5 Appellant does not contest that he was convicted of IDSI.
-6-
J-S04011-18
Commonwealth v. Haun, 32 A.3d 697 (Pa. 2011). Unless the
PCRA could not provide for a potential remedy, the PCRA statute
subsumes the writ of habeas corpus. Fahy, supra at 223–224;
Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242
(1999). Issues that are cognizable under the PCRA must be
raised in a timely PCRA petition and cannot be raised in a habeas
corpus petition. See Commonwealth v. Peterkin, 554 Pa.
547, 722 A.2d 638 (1998); see also Commonwealth v.
Deaner, 779 A.2d 578 (Pa. Super. 2001) (a collateral petition
that raises an issue that the PCRA statute could remedy is to be
considered a PCRA petition). Phrased differently, a defendant
cannot escape the PCRA time-bar by titling his petition or motion
as a writ of habeas corpus.
Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa. Super. 2013).
Accordingly, we are constrained to review Appellant’s petition within the
context of the PCRA.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id.
Before addressing the merits of Appellant’s petition, we must consider
whether the petition was timely filed. A PCRA petition must be filed within
one year of the date that the judgment of sentence becomes final. 42
Pa.C.S. § 9545(b)(1). This time requirement is mandatory and jurisdictional
in nature, and the court may not ignore it in order to reach the merits of the
petition. Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
-7-
J-S04011-18
2013). A judgment of sentence “becomes final at the conclusion of direct
review, including discretionary review in the Supreme Court of the United
States and the Supreme Court of Pennsylvania, or at the expiration of time
for seeking the review.” 42 Pa.C.S. § 9545(b)(3).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.6 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented. 42
Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
PCRA’s one-year filing deadline, “the petitioner must plead and prove
____________________________________________
6 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply
retroactively.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
-8-
J-S04011-18
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Hernandez, 79 A.3d at 652.
Here, the trial court sentenced Appellant on June 4, 2010, and this
Court affirmed the judgment of sentence on August 19, 2011.
Commonwealth v. Wright, 32 A.3d 839, 1480 MDA 2010 (Pa. Super. filed
August 19, 2011) (unpublished memorandum). No petition for allowance of
appeal was filed in the Pennsylvania Supreme Court. Therefore, Appellant’s
judgment of sentence became final on September 19, 2011,7 when the time
to file a petition for allowance of appeal expired. See Pa.R.A.P. 1113(a)
(thirty-day period for filing petition for allowance of appeal from entry of
Superior Court order); 42 Pa.C.S. § 9545(b)(3) (providing that “a judgment
becomes final at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review.”).
Accordingly, in order to be timely, any PCRA petition had to be filed before
September 19, 2012. Appellant filed the instant petition on July 28, 2017.
Thus, Appellant’s instant petition is patently untimely.
____________________________________________
7 Because the thirtieth day of the appeal period fell on September 18, 2011,
a Sunday, the judgment of sentence became final on the following business
day, Monday, September 19, 2011. See 1 Pa.C.S. § 1908 (stating that, for
computations of time, whenever the last day of any such period shall fall on
Saturday or Sunday, or a legal holiday, such day shall be omitted from the
computation.); Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super.
2004).
-9-
J-S04011-18
As previously stated, if a petitioner does not file a timely PCRA
petition, his petition may nevertheless be received under any of the three
limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.
§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file
his petition within sixty days of the date that the exception could be
asserted. 42 Pa.C.S. § 9545(b)(2). This is true despite the fact that
Appellant’s petition presents a challenge to the legality of his sentence. See
Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007)
(“Although legality of sentence is always subject to review within the PCRA,
claims must still first satisfy the PCRA’s time limits or one of the exceptions
thereto.”).
Here, Appellant has failed to assert any exception to the PCRA time-
bar. We further recognize that apart from Appellant’s self-serving bald
assertions that he is being unlawfully detained pursuant to Section
§ 3123(a)(6), a crime of which he claims he was not convicted, there is no
evidence of record supporting that contention. Indeed, the record reflects
that Appellant was charged and convicted under 18 Pa.C.S. § 3123(a)(7).
The criminal information reflects that charge.8 Criminal Information on
____________________________________________
8 We note that the information includes handwritten notes changing the
relevant subsection from (a)(6) to (a)(7), and asserting additional facts that
support such charge. The handwritten notes are initialed and dated
September 14, 2009. Information on Count 1, 3/9/09, at 1. Appellant’s
(Footnote Continued Next Page)
- 10 -
J-S04011-18
Count 1, Involuntary Deviate Sexual Intercourse, 3/9/09, at 1. At the
preliminary charge, the trial judge explained to the jury that Appellant was
being charged with IDSI under subsection 3123(a)(7). N.T., 10/5/09, at 5.
Additionally, in both the Commonwealth’s opening and closing statements,
the district attorney stated that Appellant was being charged with Section
3123(a)(7). N.T., 10/5/09, at 10 (opening statement); N.T., 10/6/09, at 44
(closing statement). The jury charge consisted of the elements necessary
for a conviction under Section 3123(a)(7). N.T., 10/6/09, at 99-100. The
verdict colloquy also reflects that Appellant was charged with Section
3123(a)(7). N.T., 10/6/09, at 112. The verdict slip established that
Appellant was charged with 18 Pa.C.S. § 3123(a)(7). Verdict Slip, 10/6/09,
at 1. Moreover, the record reflects that Appellant was sentenced under
Section 3123(a), although the sentencing order does not identify a
subsection.9 Sentencing Order for IDSI, 6/4/10, at 1. The sentencing
transcript also reflects that Appellant was being sentenced on the conviction
of IDSI, without specifying the subsection. N.T., 6/4/10, at 59. Accordingly,
the record establishes that Appellant was charged, convicted, and sentenced
(Footnote Continued) _______________________
trial took place on October 5 and 6, 2009. Accordingly, the record reflects
that the amendment was made prior to Appellant’s trial.
9 Section 3123(a) states that the conviction under subsections (a)(1)
through (a)(7) constitute felonies of the first degree. Thus, even if (a)(6)
had not been deleted, the grading of convictions under (a)(6) and (a)(7)
would have been the same. 18 Pa.C.S. § 3123(a).
- 11 -
J-S04011-18
pursuant to 18 Pa.C.S. § 3123(a)(7). There is no evidence, nor does
Appellant cite to any, that he is being unlawfully detained pursuant to
Section 3123(a)(6).10
Consequently, because the instant PCRA petition was untimely and no
exceptions apply, the PCRA court lacked jurisdiction to address the claims
presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d
396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to
hear untimely petition). Likewise, we lack the authority to address the
merits of any substantive claims raised in the PCRA petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007)
(“[J]urisdictional time limits go to a court’s right or competency to adjudicate
a controversy.”).
Order affirmed.
____________________________________________
10 We note that the lower court in its multiple opinions throughout the
procedural history of this case consistently and incorrectly refered to
Appellant’s conviction for IDSI as being under 18 Pa.C.S. § 3123(a)(6). As
stated above, the record reflects that Appellant was convicted under Section
3123(a)(7) on October 6, 2009. Despite its mistaken identification of the
incorrect IDSI subsection, the common pleas court properly recognized that
subsection 3123(a)(6) was deleted by 2002 Dec. 9, P.L. 1350, No. 162, § 2.
PCRA Court Opinion, 10/16/17, at 3 n.5.
- 12 -
J-S04011-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/09/18
- 13 -
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736 F.2d 372
116 L.R.R.M. (BNA) 2810, 101 Lab.Cas. P 11,061
Herbert MURRAY, Plaintiff-Appellee,v.CONSOLIDATED RAIL CORPORATION, Defendant-Appellant.
No. 83-3345.
United States Court of Appeals,Sixth Circuit.
Argued March 6, 1984.Decided June 18, 1984.
John B. Lewis, Squire, Sanders & Dempsey, Cleveland, Ohio, Jeffrey H. Burton (argued), Philadelphia, Pa., for defendant-appellant.
Steven D. Bell, Akron, Ohio, for plaintiff-appellee.
Before ENGEL and KEITH, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
PER CURIAM.
1
This is an appeal from a district court judgment which permitted a railroad employee to collaterally attack an award of a special adjustment board, Public Law Board No. 2203 (PLB), before the National Railroad Adjustment Board (NRAB), a body of concurrent jurisdiction. The issue is whether the Railway Labor Act (RLA), 45 U.S.C. Sec. 151, et seq., permits NRAB review of a PLB award. The district court determined that the PLB's decision was invalid because it failed to give the employee notice of the hearing and an opportunity to be heard. It reasoned that void judgments are subject generally to collateral attack. Applying this general rule, the district court permitted the employee to collaterally attack the PLB's decision before the NRAB. In our view, the Railway Labor Act cannot be construed to permit such a practice. The judgment of the district court is REVERSED.
2
Consolidated Rail Corporation (defendant-appellant) discharged Herbert Murray (plaintiff-appellee) for the unauthorized use of a company credit card. Murray contested the Company's discharge decision with the assistance of his duly authorized representative, the Brotherhood of Maintenance of Way Employees (Union). After Murray exhausted the grievance procedures set forth in the collective bargaining agreement, he obtained private counsel for the purpose of filing an appeal with the NRAB. This appeal was filed on July 6, 1979. On September 28, 1979, the Union notified Murray that it had appealed the Company's discharge decision to the PLB. The following day Murray was notified of the time of the hearing and the right to present evidence. On October 2, 1979, however, Murray was informed that the proceedings before the PLB had been cancelled. Accordingly, Murray proceeded with his previous efforts to obtain relief from the NRAB.
3
On January 29, 1980, the Union informed Murray that the PLB had issued a decision on his claim ordering reinstatement and denying backpay. Once the NRAB learned that the PLB had decided the merits of Murray's claims, the NRAB dismissed the pending appeal for lack of subject matter jurisdiction. Murray then appealed the NRAB's decision dismissing his complaint to the District Court for the Northern District of Ohio.
4
In the district court, Murray established that the PLB failed to give him proper notice of the hearings. He argued that this procedural defect permitted him to attack collaterally the PLB's decision before the NRAB. The district court agreed. Essentially, the court reasoned that the PLB's failure to give Murray notice of the proceedings and, thus, an opportunity to present evidence, rendered the PLB decision void. Because void judgments are subject generally to collateral attack, see, e.g., Jordan v. Gilligan, 500 F.2d 701 (6th Cir.1974), cert. denied, 421 U.S. 991, 95 S.Ct. 1996, 44 L.Ed.2d 481 (1975), the district court remanded this case to the NRAB for a hearing.
5
The RLA mandates clearly that the NRAB must "give due notice of all hearings" to the involved parties. 45 U.S.C. Sec. 153 First (j). This requirement applies also to special adjustment boards, such as the PLB. Cole v. Erie Lackawanna Railway Co., 541 F.2d 528 (6th Cir.1976), cert. denied, 433 U.S. 914, 97 S.Ct. 2987, 53 L.Ed.2d 1100 (1977). Such notice must permit the employee sufficient time to consult with union officials so that his interests may be represented adequately. Id.
6
Although the decisions of both the NRAB and special adjustment boards are ordinarily conclusive, Congress has provided for limited judicial review of such determinations.1 See S.Rep. No. 1201, 89th Cong., 2d Sess. (1966), reprinted in [1966] U.S.Code Cong. and Ad.News, 2285; United Transportation Union v. Clinchfield Railroad Company, 427 F.2d 161 (6th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 48, 27 L.Ed.2d 53 (1970). An award by either the NRAB or the PLB may be set aside only "for failure of the [board] to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the [board's] jurisdiction, or for fraud or corruption by a member of the [board] making the order." 45 U.S.C. Sec. 153 First (q). In this case, Murray has alleged that the PLB failed to give him statutorily required notice; a district court may set aside a board's award for such a violation. The issue, however, is whether Murray may collaterally attack the PLB award before the NRAB, or whether he must first pursue judicial review of the PLB's decision under Section 153 First (q). We believe that Congress has indicated its desire that such challenges be appealed directly to the district court.
7
Permitting judicial, rather than NRAB, review of PLB decisions is consistent with the scheme of the RLA. The establishment of special adjustment boards was provided for by Congress in the 1966 amendments to the RLA. The legislative history to the amendments indicates clearly that the principal reason that Congress established special adjustment boards was to "eliminate the large backlog of undecided claims of railroad employees pending before the National Railroad Adjustment Board."2 S.Rep. No. 1201, 89th Cong., 2d Sess. (1966), reprinted in [1966] U.S.Code Cong. and Ad.News 2285, 2286. In order to accomplish its goal, Congress authorized carriers and employees to resolve their disputes, otherwise referable to the NRAB, before a special adjustment board. 45 U.S.C. Sec. 153 Second. If the NRAB were permitted to review determinations of the PLB, Congress' goal of reducing the NRAB's caseload would be frustrated. We simply cannot interpret the Act in such a fashion as to frustrate Congress' primary purpose. Instead, we must interpret the RLA consistent with Congress' goal of reducing the NRAB's caseload. Accordingly, we believe that the Act requires employees to appeal directly to the district court a decision by the PLB rendered allegedly without proper notice.
8
Another factor weighs in favor of permitting only judicial review of PLB decisions. The RLA provides for judicial review of PLB and NRAB decisions. In contrast, there is no provision in the RLA for review of a PLB award by the NRAB. Congress' failure to provide for NRAB review of PLB decisions is consistent with the purpose of the 1966 amendments to the RLA; these amendments were enacted to reduce the backlog of cases before the NRAB.
9
We decline the opportunity to frustrate Congress' primary goal by conferring upon employees the right to challenge the award of one board before the other.
10
In light of the fact that Congress established special adjustment boards to eliminate the backlog of cases before the NRAB and provided only for judicial review of board determinations, we hold that an award of the PLB may not be collaterally attacked before the NRAB. We reject the district court's application of the general rule permitting collateral attack of a judgment made without notice to a party. The RLA establishes procedures for judicial review in the event that an award is made without notice. See 45 U.S.C. Sec. 153 First (q). Accordingly, we hold that an award of the PLB can be reviewed only by a district court; the NRAB's refusal to accept jurisdiction following disposition by the PLB was proper. In this case, the district court permitted impermissibly a PLB award to be challenged before the NRAB; therefore, the judgment of the district court is reversed.
1
The legislative history accompanying the 1966 amendments to the RLA indicates that Congress' intent was to permit judicial review of "orders of the National Railway Adjustment Board, and of boards established under this legislation." (emphasis added). S.Rep. No. 1201, 89th Cong., 2d Sess. (1966), reprinted in [1966] U.S. Code Cong. and Ad.News, 2285, 2289
2
At the time the amendments went into effect, some employees with grievances waited as long as ten years for resolution of their case. S.Rep. No. 1201, 89th Cong., 2d Sess. (1966), reprinted in [1966] U.S.Code Cong. and Ad.News, 2285, 2286
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372 F.2d 626
Captain Tom BARBER, Appellant,v.The MOTOR VESSEL "BLUE CAT", a 32' Catamaran, her engines, apparel, tackle and equipment et al., Appellees.
No. 23182.
United States Court of Appeals Fifth Circuit.
January 31, 1967.
Gary P. Eidelstein, Miami Beach, Fla., for appellant.
James L. Hurley, Frank J. Marston, Miami, Fla., for appellees, Fowler, White, Gillen, Humkey & Trenam, Miami, Fla., of counsel.
Before BROWN, GEWIN and GOLDBERG, Circuit Judges.
JOHN R. BROWN, Circuit Judge.
A case simple in setting, small in amount, has become complicated and the subject of much judicial travail — with now more to come — because of two factors. The first is that the Libelant, or more likely his first proctor who since withdrew, became mesmerized by the title "Master" in describing the status of the Libelant seeking a lien for wages. The second is that the Trial Court forgot the lesson so often brought home by us that at this day and time dismissal of a claim — land-based, waterborne, amphibious, equitable, legal, maritime, or an ambiguous, amphibious mixture of all of them, Mike Hooks, Inc. v. Pena, 5 Cir., 1963, 313 F.2d 696, 1963 AMC 355, on the basis of the barebone pleadings is a precarious one with a high mortality rate. Millet v. Godchaux Sugars, Inc., 5 Cir., 1957, 241 F.2d 264, esp. n. 1.1
The libel was brought by "Captain Tom Barber" against the BLUE CAT. How unlike such a person might well be from one who as "Lord of the Quarter deck" is master of all he surveys, Avera v. Florida Towing Corp., 5 Cir., 1963, 322 F.2d 155, 1963 AMC 2110; United Geophysical Co. v. Vela, 5 Cir., 1956, 231 F.2d 816, 819, 1956 AMC 745, is revealed by the libel's captions description of the BLUE CAT — "a 32' catamaran." The libel then alleged that Captain Barber "was engaged as captain" at a minimum specified salary. But after exceptions to the original libel on the ground that the Master had no lien were sustained, the amended libel added much. "Further" it alleged, Barber "was engaged to ferry the vessel from Galveston * * * to Miami, Florida * * *." It then went on to assert that under his arrangement with the vessel owner, Barber at the request of the "vessel, her master, agent, owner, representative or the person or persons to whom the management, custody or control of said vessel"2 had been entrusted, had "furnished * * * services, materials, supplies [and] labor" for and to the vessel in the value of $2,766.50 as detailed in the annexed bill of particulars. The "Bill of Particulars" listed 67 specific occasions between fitting out at Galveston on December 4, 1963, and the last item on February 28, 1964, subsequent to arrival of the vessel in Miami, Florida, on January 7, 1964.3
In a record which contains naught but the amended libel, the categorical exception that "as captain, libelant has no maritime lien for services performed while acting in that capacity" (emphasis added) and the unrevealing order of dismissal4 with no reported colloquy of the argument to indicate whether the Trial Court ever considered the numerous cases which do allow some liens despite the title "Master," we have to assume that the Judge thought it was a case of all or none so far as Barber's own labors were concerned.
And herein lies the error. For in a variety of situations, the cases, many of them ancient, recognize that this much-criticized prohibition of a lien to the Master for wages5 has its own ameliorations. Where the so-called "Master" or "Captain" performs work which is essentially that of a crew member, deck or engine room, and now the shore-based Sieracki-Ryan-Yaka vicarious seamen, Ove Skou v. Hebert, 5 Cir., 1966, 365 F.2d 341, 344, 1966 AMC 2223, he is not denied the protection of security which Mr. Justice Gray, in the plagiaristic tendencies of Judges echoing the salt water extravagance of Sir William Scott, later Lord Stowell, described as "sacred."6
Thus, as though written about Barber and the BLUE CAT, Judge Sibley declared that "Knowles speaks of himself as captain, but it appears that he was the crew also. A true master has in the United States no lien for his wages, but Knowles, constituting the entire crew of this small boat, as crew may claim one." Swift v. Knowles, 5 Cir., 1939, 100 F.2d 977, 978, 1939 AMC 148. Indeed, we have sounded the same theme. Burdine v. Walden (The Atlantan), 5 Cir., 1937, 91 F.2d 321, 322, 1937 AMC 1149; see also Rathbun v. Halvorson (The Patsea), 5 Cir., 1960, 181 F.2d 57. The right to the security of a lien for wages for services which are the equivalent of a crewman's labor is the thing which gives the claim and the claimant the character, and "their real character is a question of fact." Collyer v. S.S. Favorite, S.D.N.Y., 1939 AMC 1015. See Norris, Seamen § 449 at 470 (2d ed. 1962). The fact that a person is described or describes himself or signs ship's papers as "master" is not conclusive as to his status as a seaman. Wandtke v. Anderson, 9 Cir., 1934, 74 F.2d 381, 1935 AMC 130; Matter of Southern Pac. Golden Gate Ferries, N.D. Calif.S.D., 1942, 1942 AMC 1581, 1585; Owen v. United States, S.D.N.Y., 1945, 1945 AMC 595; Vlavianos v. The Cypress, 4 Cir., 1948, 171 F.2d 435, 439, 1949 AMC 9.
Indeed, in the Shipowner's brief, which itself is remarkable for its failure to cite a single case or undertake to distinguish any of these,7 there is an apparent acquiescence in their complete correctness. Perhaps this is a key to what went on below. For the brief states, "In passing it should be mentioned that" a number of cases hold "that the mere fact that one is designated as a master does not automatically preclude a right to a lien upon his vessel for wages." Offering the only distinction, the brief goes on, "However, it should be noted that in those cases the foregoing rule of law was pronounced following a trial on the merits of the case and involved instances wherein the particular claimant involved did perform services of a nature other than those ordinarily and customarily performed by masters of vessels. In other words, the Court looked beyond the mere designation or title of master and adjudicated liens when services were performed in some other capacity." But how does a Libelant get a trial on the merits to establish these facts when the libel is dismissed on the shipowner's exceptions? With the liberality of the admiralty which presaged that of the Civil Rules which have now become the new dispensation, 39 F.R.D. 73 (1966), the least one can expect is that the libel, amplified by the detailed Bill of Particulars covering Barber's own activities, would be read in the light of Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80.
To dismiss the libel with prejudice was to go too fast too soon. As with nearly every one of these situations, the Trial Court failed to require the parties to exploit the marvelous tools now available by summary judgment or otherwise8 to demonstrate whether the facts, as distinguished from what the lawyers said the facts would be, would bear out a claim and if so to what extent. Tyler v. Peel Corp., 5 Cir., 1967, 371 F.2d 788. Now a year and a half later, the case must go back to decide whether such facts exist as to a claim that arose in 1963.
Reversed and remanded.
Notes:
1
To the cases listed in Millet, a hurried check of the annotations reveals that the following should be added to the tally: Brunswick Corp. v. Vinberg, 5 Cir., 196.., 370 F.2d 605 (Fla.) [No. 22907, ............]; Due v. Tallahassee Theatres, Inc., 5 Cir., 1964, 333 F.2d 630 (Fla.); City of Fort Lauderdale v. East Coast Asphalt Corp., 5 Cir., 1964, 329 F.2d 871 (Fla.), cert. denied, 379 U.S. 900, 85 S.Ct. 187, 13 L.Ed.2d 175; Shull v. Pilot Life Ins. Co., 5 Cir., 1963, 313 F.2d 445 (Fla.); Santiesteban v. Goodyear Tire & Rubber Co., 5 Cir., 1962, 306 F.2d 9 (Fla.); Brotherhood of Railroad Trainmen v. Central of Georgia Ry. Co., 5 Cir., 1962, 305 F.2d 605 (Ga.); Arthur H. Richland Co. v. Harper, 5 Cir., 1962, 302 F.2d 324 (Fla.); Smoot v. State Farm Mut. Automobile Ins. Co., 5 Cir., 1962, 299 F.2d 525 (Ga.); Fitz-Patrick v. Commonwealth Oil Co., 5 Cir., 1960, 285 F.2d 726 (Tex.); Mannings v. Board of Public Instruction, 5 Cir., 1960, 277 F.2d 370 (Fla.); Buras v. Timolat, 5 Cir., 1960, 275 F.2d 797 (La.), cert. denied 364 U.S. 879, 81 S.Ct. 167, 5 L.Ed. 2d 101; Mitchell v. E-Z Way Towers, Inc., 5 Cir., 1959, 269 F.2d 126 (Fla.); Black v. First National Bank, 5 Cir., 1958, 255 F.2d 373 (Ala.); Carss v. Outboard Marine Corp., 5 Cir., 1958, 252 F.2d 690 (Fla.); Baldwin v. Morgan, 5 Cir., 1958, 251 F.2d 780 (Ala.); Dotschay v. National Mut. Ins. Co., 5 Cir., 1957, 246 F.2d 221 (Fla.); Seaboard Finance Co. v. Martin, 5 Cir., 1957, 244 F.2d 329 (La.). See also Moritt v. Fine, 5 Cir., 1957, 242 F.2d 128, 132 (dissent)
Distinguishable, but not far removed, are those instances of reversals where the Trial Court rendered summary judgment on the barebones pleadings. Demandre v. Liberty Mut. Ins. Co., 5 Cir., 1959, 264 F.2d 70 (La.); Travelers Ins. Co. v. Busy Electric Co., 5 Cir., 1961, 294 F. 2d 139 (La.); Fowler v. Southern Bell Telephone & Telegraph Co., 5 Cir., 1965, 343 F.2d 150 (Ga.). Under the "spell of local state practice," Arthur H. Richland Co. v. Harper, supra, 302 F.2d at 326, the mortality rate in Florida appeals still runs high. Of the cases previously and herein listed reversed since 1938 for improvident orders dismissing complaints for failure to state a claim, cases from Florida still represent about 50% of the total (16 of 30). See Moritt v. Fine, supra, 242 F.2d at 132 n. 2 (dissent).
2
This is a substantial paraphrase of §§ 972, 971 of the Maritime Lien Act, 46 U.S.C.A. § 971 et seq
3
Itemized with evidential detail, these showed by date and place the number of hours spent by Barber in performing a variety of specific jobs including: fitting out, repairing engines, renewing valve cover gaskets, cleaning fuel filters, repairing fuel lines, power steering, replacing fuel filters, repacking stuffing box, cleaning, sanding decks, hull and bulkhead, removal and renewal of all outside varnish and other tasks totaling 503 hours at the specified rate of $5.50 per hour as the equivalent of the usual rate for shipwright or engine mechanic
4
The Trial Court did allow recovery of $150 paid by Barber as wages to a seaman hired by him
5
See Gilmore & Black, Admiralty § 9-20 at 513, n. 88, and The Mariner, D.C. Mass., 1924, 298 F. 108, 1924 AMC 882; Norris, Seamen § 449 (2d ed. 1962)
6
See Gilmore & Black, Admiralty § 9-20 at 514, quoting from The John G. Stevens that claims for seaman's wages are "sacred liens, and, so long as a plank of the ship remains, the sailor is entitled, against all other persons, to the proceeds as a security for his wages." 1898, 170 U.S. 113, 119, 18 S.Ct. 544, 547, 42 L. Ed. 969, 972; Norris, Seamen § 298 at 336 n. 6 (2d ed. 1962)
7
Giving tit for tat, a Big Roland for a Little Oliver, S.S. Bethflor v. Thomas, 5 Cir., 1966, 364 F.2d 634, 635 n. 5, we can readily understand why so little heed may have been paid to Barber's brief. The quotations from cases though never distorting the substance of the Court's holding are inaccurate, contain words that cannot be found and far too much are that abomination of appellate advocacy the quotation of a "headnote" as though it were the words of the Court. A headnote is, of course, an indispensable and valuable tool for purposes of legal research, but it is ordinarily not what the Judge said, but rather a condensed, concise version of what the Editor understood the Court to hold, say, or both
8
Admiralty R. 30A (Depositions), 31 (Interrogatories), 32 (Discovery), 32B (Request for Admissions), 58 (Summary Judgment), 28 U.S.C.A. (1950, supp. 1966); cf. F.R.Civ.P. 26, 33, 34, 36, 56, the corresponding rules of civilp rocedure now applicable in admiralty proceedings. 39 F.R.D. 73 (1966)
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127 N.J. 96 (1992)
603 A.2d 1
KEVIN SONDERMAN, PLAINTIFF-APPELLANT,
v.
REMINGTON CONSTRUCTION CO., INC., AND TOWNSHIP OF JACKSON, DEFENDANTS-RESPONDENTS. TOWNSHIP OF JACKSON, THIRD-PARTY PLAINTIFF,
v.
JOSEPH F. MARTONE, THIRD-PARTY DEFENDANT.
The Supreme Court of New Jersey.
Argued October 9, 1991.
Decided March 2, 1992.
*97 Joseph S. Georgiana argued the cause for appellant (Capehart & Scatchard, attorneys).
Brian E. Rumpf argued the cause for respondent Township of Jackson (Hiering, Hoffman, Garvey and Gannon, attorneys).
Steven Pfeffer argued the cause for respondent Remington Construction Co., Inc. (Levin, Shea, Pfeffer & McMahon, attorneys).
Joseph M. Clayton, Jr., argued the cause for amicus curiae, New Jersey Land Title Association (John R. Weigel, attorney).
The opinion of the Court was delivered by POLLOCK, J.
*98 The primary issue is whether a property owner who did not receive actual notice of an in rem tax foreclosure can defeat a quiet title action brought by a subsequent purchaser who did not know of the defective notice at the time of purchase from the municipality.
Before 1983 defendant Remington Construction Co., Inc. (Remington) was the record owner of the property in question. In 1983 defendant Township of Jackson (the Township) acquired title to the property through a tax foreclosure. Shortly thereafter, plaintiff, Kevin Sonderman, purchased the property at public auction. Before the closing, however, Remington obtained an order vacating the tax foreclosure judgment because it had not received notice of the foreclosure action. Remington filed the order in litigation files with the Clerk of the Superior Court and with the Clerk of Ocean County, but did not record it in the County deed book. Notwithstanding the vacation of the foreclosure judgment, the Township delivered a deed to Sonderman, which he promptly recorded.
Thereafter Sonderman brought the present action to quiet title, arguing that as a subsequent bona fide purchaser without notice, he had better title than Remington, which had failed to record its vacation order in the County deed book. He also argued that the order was void because he was an indispensable party and had not been notified of the proceeding. Relying on the order vacating the foreclosure judgment, the Chancery Division ruled that the Township had no title to convey to Sonderman. The Appellate Division affirmed. 244 N.J. Super. 611, 583 A.2d 367 (1990). We granted certification, 126 N.J. 323, 598 A.2d 883 (1991), and now affirm.
-I-
Before June 23, 1983, Remington owned approximately fourteen acres in Jackson Township, identified on the tax map as Lot 15, Block 138-2. Due to an "oversight," Remington failed *99 to pay taxes on five properties, including Lot 15. Consequently, the Township commenced an in rem tax foreclosure action. On June 29, 1983, it obtained a final judgment terminating Remington's right of redemption and declaring that ownership of all the lots was vested in the Township. The Township thereupon recorded the judgment in the county deed book on July 19, 1983. See N.J.S.A. 54:5-104.65.
On November 21, 1983, Sonderman successfully bid $13,600 for Lot 15 at a foreclosure sale. The sale was held pursuant to an ordinance that provided in relevant part:
In the event that the Title of the Township of Jackson to any parcel or portion thereof is not marketable or insurable at regular rates by a reputable title insurance company licensed to do business in the State of New Jersey, or in the event of any other defects, a successful bidder's sole remedy shall be the right to demand the return of any deposit paid to the Township of Jackson.
The closing was delayed because of a cloud on the title of all properties owned by Jackson Township arising from a $13.3 million judgment. Ayers v. Township of Jackson, 106 N.J. 557, 525 A.2d 287 (1987). After the removal of the cloud, on November 19, 1984, the Township delivered to Sonderman a bargain and sale deed, which he recorded on January 14, 1985.
Meanwhile Remington learned of the foreclosure action from survey stakes on its property. On February 29, 1984, Remington applied to the Chancery Division to vacate the tax foreclosure judgment, claiming that the Township had not notified it of the foreclosure proceeding. Remington moved pursuant to Rule 4:50, which provides:
-1. Grounds of Motion
On motion, with briefs, and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the *100 judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
-2. Time of Motion
The motion shall be made within a reasonable time, and for reasons (a), (b) and (c) of R. 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken.
-3. Effect of Motion
A motion under R. 4:50 does not suspend the operation of any judgment, order or proceeding or affect the finality of a final judgment, nor does this rule limit the power of a court to set aside a judgment, order or proceeding for fraud upon the court or to entertain an independent action to relieve a party from a judgment, order or proceeding.
In particular, Remington relied on (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment or order was void; and (3) any other reason justifying relief from the operation of the judgment or order. R. 4:50-1.
On April 9, 1984, the Chancery Division entered an order vacating a portion of the tax foreclosure judgment and vesting title in Remington. As a condition of the judgment, the court directed Remington to pay $23,000 in back taxes, which Remington has since paid. Remington's attorney filed the order with the Clerk of the Superior Court in Trenton and with the Ocean County Clerk, both of whom placed it in the litigation files for the foreclosure action. Thus, before the Township delivered its deed to Sonderman, Remington had vacated the judgment purporting to vest title in the Township, a fact that was not known to Sonderman.
The Township's defective notification of Remington may be traced to the fact that the Township foreclosed against the lots in two parcels. Regarding one parcel that is not the subject of this action, the tax assessment records listed an address for Remington in Shrewsbury. The receptionist in the building where Remington's office was located signed the certified mail receipt for the notice of the tax foreclosure proceedings. She, however, was not an agent for or employed by Remington. Hence, she does not qualify as an agent for the service of process, R. 4:4-4(c)(1), and service on her did not constitute service on Remington. Concerning the second parcel, which *101 included Lot 15, Remington's address in the tax records was listed as 55 Brick Boulevard, Bricktown. The offices of Remington's registered agent, Ronald Gasorowski, an attorney, were not at that address, but at 556 Brick Boulevard. Remington never received any notice at either address. Neither the county nor its attorney could produce a certified mail receipt or any proof of proper service concerning Lot 15. In sum, the Township never made valid service on Remington for the foreclosure of the property in question.
The Chancery Division declined Sonderman's request to quiet title, reasoning that the tax foreclosure judgment "if not void [ab initio], for lack of proper service, was certainly voidable and, in fact, was voided by [the Chancery Division] and properly so." The court reasoned that even if Sonderman was a bona fide purchaser for value, the Township could not convey to him better title than it had. Because Sonderman had not acquired any title from the Township, the court rejected Sonderman's contention that he was entitled to the protection of the Recording Act, N.J.S.A. 46:16-1 to -14, and that he was an indispensable party to the motion to vacate the tax foreclosure judgment.
The Appellate Division affirmed, holding that Remington had "duly recorded" the order vacating the tax foreclosure judgment in compliance with N.J.S.A. 46:16-1.1. It found that by recording the order in the litigation files maintained by the County Clerk and the Clerk of the Superior Court, Remington had complied with the recording requirements. 244 N.J. Super. at 617, 583 A.2d 367.
The Appellate Division also rejected Sonderman's claim that he was an indispensable party to Remington's motion to vacate the foreclosure judgment. It reasoned that Remington's April 1984 order had deprived Sonderman of his interest in the property. The court implicitly agreed with the trial court's finding that the tax foreclosure judgment was void, stating that the Township had never acquired title to the property and that the Township "could not convey to Sonderman any more interest *102 in Lot 15 than the Township had * * *. By November 1984, the Township had no further interest in Lot 15." Id. at 618, 583 A.2d 367. Thus, both lower courts recognized that the tax foreclosure judgment was void as against the property in question.
-II-
For the past fifteen years, notification of property owners in foreclosure actions has been a topic of continuing concern to the United States Supreme Court and to this Court. In rem tax foreclosures in particular generate a unique tension between the need of municipalities to return non-productive properties to the tax rolls and the rights of owners to notice of foreclosure proceedings affecting their property. In Township of Montville v. Block 69, Lot 10, this Court held that under both state and federal due process guarantees, when an owner's name and address appear on a municipality's tax rolls, the municipality must notify the owner by mail before foreclosing the owner's right to redeem. 74 N.J. 1, 10, 376 A.2d 909 (1977) (citing Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).
Thereafter, we amended Rule 4:64-7, which implements the In Rem Tax Foreclosure Act, N.J.S.A. 54:5-104.29 to -104.75. As amended, Rule 4:64-7(c) requires service in an in rem tax foreclosure:
The plaintiff shall, within 7 days after the date of publication of the notice of foreclosure, serve a copy thereof in the manner hereinafter provided on each person whose name appears as an owner in the tax foreclosure list at his or her last known address as it appears on the last municipal tax duplicate. The plaintiff shall also make such service upon all other persons having an ownership or lien interest recorded in the office of the Superior Court Clerk or the county recording officer on the date of the filing of the complaint and upon all other persons who, pursuant to N.J.S.A. 54:5-104.48, as amended, have filed a notice with the tax collector specifying a title, lien, claim or interest in any of the lands sought to be affected by said complaint. Such service shall be made in the manner provided by R. 4:4-4(a) [individual service] or by simultaneously mailing to the last known address by registered or certified mail, return receipt requested, and by ordinary mail. In addition to the foregoing, the plaintiff *103 shall mail a copy of the notice of foreclosure, by ordinary mail to the Attorney General.
Six years later, in Mennonite Board of Missions v. Adams, the United States Supreme Court held that "[n]otice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable." 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180, 188 (1983).
Following Mennonite's lead, New Jersey courts have found a duty to notify in numerous situations. In Township of Berkeley v. Berkeley Shore Water Co., 213 N.J. Super. 524, 517 A.2d 1199 (App.Div. 1986), the property owner had not received a copy of the summons and complaint in a tax foreclosure action, and the certified mail receipt was returned, undelivered, to the municipality. The trial court concluded that the property owner "had taken reasonable steps to notify the township of its change of address, and that thereafter it was the obligation of the township to see that the tax bills and notices were sent to the correct address." Id. at 529, 517 A.2d 1199. The Appellate Division agreed and held that "the notice requirements of the In Rem Tax Foreclosure Act must comply with due process, and that notice is constitutionally deficient where it is not directed to known persons in interest in the property to be foreclosed." Id. at 531-32, 517 A.2d 1199. The court placed this burden on the municipality because the principal purpose of the law was "to provide a method for collection of taxes, rather than being a primary tool to divest taxpayers of their property." Id. at 532, 517 A.2d 1199. Two other opinions support the duty of a municipality to provide proper notice. See Township of Jefferson v. Block 447A, Lot 10, 228 N.J. Super. 1, 8-9, 548 A.2d 521 (App.Div. 1988) (due process required municipality to mail notice of in rem foreclosure action to purchaser at prior tax sale at address in municipality's records even if purchaser had not requested notice in accordance with statute); Town of Phillipsburg *104 v. Block 22 Lots 14, 15, 16, 218 N.J. Super. 558, 564, 528 A.2d 98 (App.Div. 1987) (to insure mortgagee has notice of tax sale, municipality should conduct title search before instituting foreclosure action).
More recently, we extended the duty of notification to judgment creditors in a mortgage foreclosure action. See New Brunswick Sav. Bank v. Markouski, 123 N.J. 402, 424, 587 A.2d 1265 (1991). We held both that a judgment lien is a property interest subject to the protection of due process and that a levying creditor must provide actual notice of an execution sale to other judgment creditors whose names and addresses are reasonably ascertainable. Holding that constructive notice alone would not suffice, we wrote:
In determining whether the names and addresses of adversely affected parties are, indeed, "reasonably ascertainable," we focus on several factors including an evaluation of the public recording system, if one exists, for the property interest in question; the likelihood that the plaintiff in the proceeding has actual knowledge or reasonable access to the names and addresses of the affected parties; and the relative ease or difficulty with which the plaintiff may find those addresses not on the public record. [Id. at 419-20, 587 A.2d 1265 (citation omitted).]
The "appropriate remedy * * * is to void that part of the judgment below that cuts off the unnoticed creditor * * *." Id. at 427, 587 A.2d 1265. Although the appropriate relief will depend on the circumstances, "[t]he general rule is that when insufficient notice of a sheriff's sale is given, the preferred remedy is that which restores the status quo ante to the greatest extent possible." Id. at 425, 587 A.2d 1265.
Despite this clear requirement of actual notice for property owners, courts sometimes have denied relief to unnotified owners. In Last v. Audubon Park Associates, 227 N.J. Super. 602, 548 A.2d 236 (App.Div. 1988), the owner of a mortgage had received constructive notice through publication and posting, but not actual notice of the in rem foreclosure proceedings. The court found to be untimely the mortgagee's challenge four years after the entry of the foreclosure judgment. A subsequent purchaser of the property had relied substantially on the *105 foreclosure judgment and had invested approximately $9 million in a low-income rental housing project. Characterizing plaintiff's delay in asserting his rights as calculated, the court concluded that the mortgagee had not acted within a reasonable time and that he was guilty of laches.
The Appellate Division reached a similar result in City of Newark v. (497) Block 1854, 244 N.J. Super. 402, 582 A.2d 1006 (1990). In that case, Chiquita Realty purchased property with existing tax liens. Two years later, when Chiquita learned of the sale of the property for unpaid taxes, instead of redeeming the property, it successfully bid at the foreclosure sale. Unfortunately, Chiquita did not have sufficient funds to pay the purchase price, so the City again offered the property for sale in 1988. This time another bidder outbid Chiquita and then spent several thousand dollars to develop the property. Assuming, as had the trial court, that Chiquita had not received notice of the first sale, the Appellate Division wrote:
If [Chiquita] had applied for relief with reasonable promptness after learning that Newark was offering its properties for sale, or if it had at least applied before the rights of a contract purchaser had intervened, it surely would have been entitled to have the judgment vacated and to redeem its properties. Its right to redeem would have been subject to no greater burden than if it had acted promptly after receipt of proper notice of the commencement of the foreclosure suit. [Id. at 407, 582 A.2d 1006 (citations omitted).]
After learning that the property was to be resold, however, Chiquita waited three years before filing its motion to vacate the tax foreclosure judgment. The Appellate Division found furthermore that by bidding on the property, Chiquita, in effect, had validated the original judgment that had vested title in Newark. Furthermore, both the City and the successful bidder had expended considerable time and money in reliance on the validity of the foreclosure judgment. Consequently, the court found that Chiquita was estopped from challenging the lack of notice in the foreclosure proceeding. The court concluded that the owner's right to due process did not justify invalidating the foreclosure proceedings. In reaching that conclusion, the court recognized that an owner's due process rights *106 must be weighed against the need of municipalities to collect taxes. Id. at 408, 582 A.2d 1006. The proper balance will often depend on the facts of each case. Ibid. n. 1.
-III-
The In Rem Tax Foreclosure Act requires notice "as provided by the Rules Governing the Courts of the State of New Jersey," N.J.S.A. 54:5-104.42, to owners when a municipality forecloses their property for non-payment of taxes. One permissible method of service is notice by mail to the "last known address as it appears on the last municipal tax duplicate." R. 4:64-7(c). The problem in this case is that Remington's address on Jackson Township's tax records was incorrectly listed as 55 Brick Boulevard. Furthermore, no notice was sent to Remington's agent at the correct address, 556 Brick Boulevard. Nothing in the records of the Township or the Township attorney indicates that notice was mailed to either address. In brief, the notice was defective.
An owner's right to attack a judgment because of defective notice is constrained by both procedural requirements of timeliness and by equitable principles of laches and estoppel. Underlying those constraints is the recognition that even owners who have been deprived of a property interest without notice can by their delay and the reasonable reliance of others lose the right to attack a judgment.
In this case, however, we conclude that the property owner acted in a timely fashion. On learning of the defective notice, Remington promptly moved to vacate the tax foreclosure. Its motion to vacate, filed eight months after the entry of the judgment, was within a "reasonable time" and "not more than one year after the judgment" was entered. R. 4:50-2. To affirm, we need not define the outer limits of an owner's right to set aside a judgment for lack of notice. We are satisfied that the judgment was void and that Remington's motion for relief was timely.
*107 -IV-
We now turn to Sonderman's argument that because Remington failed to record the vacation order as a deed, the order is void against Sonderman and cannot defeat his claim as a subsequent bona fide purchaser. The argument implicates two statutes. Remington points to N.J.S.A. 46:16-1.1, which provides that "[c]ertified copies of final decrees of the former Court of Chancery, final judgments of record of this State * * * may be recorded as deeds of conveyance in the office of the county recording officer of the county wherein the real estate is situate * * *." Its point is that the statute permits, but does not require, the recording of either the foreclosure judgment or the order he obtained vacating that judgment.
Sonderman, however, relies on N.J.S.A. 46:22-1, which prescribes the effect of the failure to record deeds or other instruments. The statute states in relevant part that
[e]very deed or instrument of the nature or description set forth in section 46:16-1 of this title shall, until duly recorded or lodged for record in the office of the county recording officer in which the affected real estate or other property is situate, be void and of no effect against * * * all subsequent bona fide purchasers * * * whose deed shall have been first duly recorded * * *.
Sonderman argues that the order vacating the tax foreclosure judgment, like the judgment itself, should have been recorded in the county deed book and that because it was not so recorded, the order is "void and of no effect" against him. For different reasons, both lower courts rejected that argument.
The Chancery Division ruled that "the Recording Act, per se, is not involved," implicitly ruling that the order need not have been recorded in the deed book. By comparison, the Appellate Division acknowledged the applicability of the Recording Act, stating that
[u]nder N.J.S.A. 46:22-1, deeds and instruments of the nature set forth in N.J.S.A. 46:16-1 are void against subsequent recording bona fide purchasers for value without notice, unless first duly recorded or lodged for record in the county recording office.
However, the book of deeds is not the only record source involved in a diligent search for duly recorded judgments. There is an obligation imposed upon a purchaser to reasonably and diligently "search... all dockets and *108 records with regard to existence of liens and claims on and to real estate." Gutermuth v. Ropiecki, 159 N.J. Super. 139, 148, [387 A.2d 385] (Ch. Div. 1977).
* * * * * * * *
Although a judgment may be recorded as a deed, failure to do so is not fatal if the judgment has been properly recorded, as here, by both the County Clerk and the Clerk of the Superior Court. [244 N.J. Super. at 615-17, 583 A.2d at 369.]
Thus, the Appellate Division found that Remington had satisfied the requirements for recording even though it had not recorded the vacation order in the deed book. Although we reach the same result as the lower courts, we do so by a different path.
We take our lead from the pronouncement that "[g]enerally speaking, and absent any unusual equity, a court should decide a question of title such as this in the way that will best support and maintain the integrity of the recording system." Palamarg Realty Co. v. Rehac, 80 N.J. 446, 453, 404 A.2d 21 (1979) (emphasis added). As important as is the confidence of title searchers, purchasers, and others who rely on recorded instruments, the integrity of record title in rare cases can bend to accommodate compelling equities. See Weintraub v. Krobatsch, 64 N.J. 445, 456, 317 A.2d 68 (1974) ("Our courts have come a long way since the days when the judicial emphasis was on formal rules and ancient precedents rather than on modern concepts of justice and fair dealing. While admittedly our law has progressed more slowly in the real property field than in other fields, there have been notable stirrings even there."); Hyland v. Kirkman, 204 N.J. Super. 345, 370, 498 A.2d 1278 (Ch.Div. 1985) (setting aside judgments, conveyances, and tax sale certificates allegedly integral to fraudulent scheme challenged twenty years after entry of judgments); Berman v. Gurwicz, 178 N.J. Super. 611, 621, 429 A.2d 1084 (Ch.Div. 1981) (reliance on recorded documents not allowed when fraud involved).
The Township frankly acknowledges its errors in foreclosing on the property without notice to Remington and in *109 proceeding to close with Sonderman after learning of the defective notice. On learning of the foreclosure judgment, Remington promptly sought and obtained an order to vacate. Apparently misled by the permissive language of N.J.S.A. 46:16-1.1, Remington's attorney filed the vacation order not in the county deed book, but with the county clerk and the Clerk of the Superior Court. Sonderman, who was aware that the Township had acquired title through an in rem tax foreclosure, was on notice of the ordinance limiting his remedy in the event of a title defect "to demand the return of any deposit paid to the Township of Jackson" in the event of a title defect. In sum, the case presents an exceptional set of facts arising out of a defective in rem tax foreclosure in which the municipality did not notify the owner of the proceedings; the owner, on learning of the proceedings, promptly moved to vacate the foreclosure judgment; the owner's attorney, misled by the literal terms of N.J.S.A. 46:16-1.1, filed the vacation order in the wrong place; the subsequent purchaser's sole remedy in the event of defects in title was the municipality's return of any deposit; and the parties can be returned to their prior positions. See Markouski, supra, 123 N.J. at 425, 587 A.2d 1265 (preferred remedy is to restore parties to original position). Like the lower courts, we believe that the equitable result is to deny Sonderman's request to quiet title. We also believe that we can achieve this result without violating the integrity of the recording system or the need for a liberal construction of the Tax Sale Law. See N.J.S.A. 54:5-3. The primary purpose of the Law is not to divest owners of their property, but to provide a method for collecting taxes. Township of Berkeley, supra, 213 N.J. Super. at 552, 517 A.2d 1199.
For the future, however, we affirm our commitment to the proposition that "a purchaser should be charged only with such notice from the records as can be ascertained by a reasonable search of those records * * *." Donald B. Jones, "The New Jersey Recording Act A Study of Its Policy," 12 Rutgers L.Rev. 328, 335 (1957). Accordingly, we address a *110 portion of the Appellate Division opinion, stating that a purchaser is obliged to search not only the book of deeds for foreclosure judgments, but also all dockets and records for liens on real estate. 244 N.J. Super. at 616, 583 A.2d 367.
That statement is at odds with current searching practice. According to the testimony of John D. Eler, Sonderman's title expert, and amicus, the New Jersey Land Title Association, the standard practice among title searchers is to search for foreclosure judgments and orders vacating such judgments in the county deed book. We perceive no reason to impose a greater responsibility on title searchers than is imposed by standard practice. See Howard Sav. Bank v. Brunson, 244 N.J. Super. 571, 576, 582 A.2d 1305 (Ch.Div. 1990) (emphasizing that "`title searching, upon which so much of our conveyancing practice rests, has been created in very large part without the aid of legislation,' and that an investigation of the custom and practice of title searching is essential to determine current disputes in that area of law." (quoting Palamarg Realty, supra, 80 N.J. at 461, 404 A.2d 21)); Jones, supra, 12 Rutgers L.Rev. at 329 ("[T]he various New Jersey legislatures which have dealt with the Recording Act have spelled out a broad policy and have left it to the searchers, conveyancers, and courts to construct a system of title searching within the bounds delineated by that policy, and to maintain that system in a good and workable order."). Henceforth, both an in rem foreclosure judgment and an order vacating that judgment must be recorded in the same manner as a deed.
Consistent with our opinion, the concurrence begins with the premise that the in rem judgment was void and that the Township did not acquire title under it. Post at 112, 603 A.2d at 9. The defect in the concurrence is that it ignores both Remington's duty to record the vacation order in the county deed book and Sonderman's correlative right to rely on record title in purchasing the property from the Township. See N.J.S.A. 46:22-1. It also ignores the legislative mandate that deeds or comparable instruments such as tax foreclosure judgments *111 and orders vacating such judgments are void unless properly recorded. Honoring that mandate implicates proper respect for both the Legislature and the integrity of the recording system.
No dispute exists among the parties that Remington had a duty to record the vacation order and that the cost of discharging that duty is minimal. Through its ability to record the vacation order, Remington controlled the risk that a subsequent bona fide purchaser would rely on the records indicating that the Township had acquired title to its property through the tax foreclosure judgment. Had Remington properly recorded the vacation order, Sonderman would have discovered it in the normal course of searching the title. Remington's failure to record the order misled Sonderman to his detriment in closing on the property. See 46 Am.Jur.2d Judgments § 752 (1969) ("There may be some instances, however, under which laches or delay may be asserted to preclude relief, as where others innocently relied on the record of the judgment."). None of the cases or other authorities cited by the concurrence poses the specific situation in this case, that of a subsequent purchaser who was misled to his detriment by the failure of an owner to record properly an order vacating a tax foreclosure judgment that deprived the owner of title to its property.
On the facts of this case, it is not enough to say, as the concurrence says, that the foreclosure judgment is void. Post at 112, 603 A.2d at 9. We must also account for Remington's failure to record the vacation order. Our reason is not, as the concurrence suggests, that "a purchaser's good faith, by itself, can impart legality to a void foreclosure judgment." Post at 113, 603 A.2d at 10. The reason is that N.J.S.A. 46:22-1 invalidates an improperly-recorded instrument affecting title, such as the vacation order. Thus, the critical issue is not whether Remington is entitled to an order vacating the tax foreclosure judgment; the issue is whether, after having obtained such an order, Remington may, in light of its failure to record the order, prevail over a subsequent bona fide purchaser. *112 Our resolution is closely tailored to the facts of the case. On these facts, we find that Remington should have recorded the vacation order in the county deed book, but that the balance of equities tips in favor of finding that it is entitled to the return of its property. Hence, we do not reach the point that the concurrence finds dispositive: an owner who is divested of property because of a void tax foreclosure judgment will in the absence of countervailing equities prevail over a subsequent bona fide purchaser. Post at 112, 603 A.2d at 9. One problem with such a holding is that it tends to undermine the duty to record instruments affecting title. To that extent, the concurrence subverts the integrity of record title and the stability of the recording system.
The judgment of the Appellate Division is affirmed.
STEIN, J., concurring.
I write separately because the Court's conclusion in Part IV is not essential to the disposition of this case. In my view, the municipality's failure to give notice to Remington of the in rem tax-foreclosure judgment, combined with Remington's timely and successful effort to vacate the judgment, precludes the municipality from passing any interest to Sonderman.
Although the majority rightly concludes that the municipality's foreclosure judgment was void for lack of proper service, it nevertheless treats that void judgment as though a bona fide purchaser could potentially acquire title under it. With the majority's decision, the voidness of a tax-foreclosure judgment will not defeat a subsequent purchaser's title if the order vacating the judgment is not properly recorded pursuant to N.J.S.A. 46:22-1. To support its conclusion that the issue of voidness is not dispositive, the majority cites two cases in which courts refused to set aside void foreclosure judgments because the owners were found guilty of laches and the subsequent purchasers had expended time and funds to improve the property. *113 Ante at 104-05, 603 A.2d at 5. See City of Newark v. (497) Block 1854, 244 N.J. Super. 402, 582 A.2d 1006 (App.Div. 1990) (realty company delayed three years before filing motion to vacate tax-foreclosure judgment); Last v. Audubon Park Assocs., 227 N.J. Super. 602, 548 A.2d 236 (App.Div. 1988) (court found that mortgagee deliberately waited eighteen months before challenging three-year-old tax-foreclosure judgment), certif. denied, 114 N.J. 491, 555 A.2d 613 (1989). Those cases are unpersuasive because Remington moved to set aside this foreclosure judgment in a timely fashion, as the majority indeed acknowledges. Ante at 106, 603 A.2d at 6.
Despite the absence of equitable concerns in this case, the majority implies that a purchaser's good faith, by itself, can impart legality to a void foreclosure judgment. Prevailing authority is to the contrary: "If the execution is void, and not merely voidable, the resultant sale is absolutely void and the purchaser, regardless of good faith, acquires no title." Raniere v. I & M Invs., Inc., 159 N.J. Super. 329, 336-37, 387 A.2d 1254 (Ch.Div. 1978), aff'd, 172 N.J. Super. 206, 411 A.2d 719 (App.Div.), certif. denied, 84 N.J. 473, 420 A.2d 1298 (1980); see also Merewood, Inc. v. Denshaw, 139 N.J. Eq. 182, 50 A.2d 459 (Ch. 1947) (bona fide purchaser did not receive title where municipality-grantor's only claim to title was unconstitutional tax foreclosure), appeal denied, 142 N.J. Eq. 138, 59 A.2d 589 (Ch. 1948); Sprang v. Petersen Lumber, Inc., 165 Ariz. 257, 798 P.2d 395, 400 (Ct.App. 1990) ("When a judgment is void, the execution of the judgment is void, and title to land does not pass"); Noble v. Kahn, 206 Okl. 13, 240 P.2d 757, 759 (1952) ("The doctrine of the bona fide purchaser without notice does not apply where there is a total absence of title in the vendor"); 30 Am.Jur.2d, Executions § 441 (1967) ("[T]he title of the purchaser is not protected from the effects of a reversal of the judgment, where the judgment is declared void, since, if the judgment is a nullity, all proceedings based thereon, including the execution and a sale thereunder, are likewise void and of no effect.").
*114 From the outset, our courts have sustained void judgments only where the equitable doctrines of estoppel and reliance strongly compel such an anomalous result. In Garza v. Paone, 44 N.J. Super. 553, 131 A.2d 32 (1957), the Appellate Division first announced that void judgments would not be vacated where laches and estoppel sustain the judgment. Although the court denied the motion to set aside a default judgment as untimely, it nevertheless stated that the judgment remained "absolutely void and of no legal effect for any purpose." Id. at 557, 131 A.2d 32. As Judge Freund noted in his dissent, that new rule created a legal paradox: a void judgment that could neither be set aside nor enforced. Id. at 561-62, 131 A.2d 32. Recently, the Appellate Division, recognizing that paradox, argued that default judgments void for constitutionally defective service "must ordinarily be set aside" absent laches or detrimental reliance. Berger v. Paterson Veterans Taxi, 244 N.J. Super. 200, 205, 581 A.2d 1344 (1990). In an analogous case, the Third Circuit held that statutes of limitations "are ineffective to preclude a claim of voidness based on `jurisdictional' defects in a tax foreclosure proceeding." Benoit v. Panthaky, 780 F.2d 336, 338-39 (3rd Cir.1985); see Register v. Kenai Peninsula Borough, 667 P.2d 1236, 1238 (Alaska 1983) (citing eight cases); Bogart v. Lathrop, 90 Nev. 230, 523 P.2d 838, 840 (1974); see also Ford v. Willits, 237 Kan. 13, 697 P.2d 834 (1985) (although laches "should ordinarily not be a defense to a motion to open a judgment that is utterly void, there may be unusual circumstances * * * where it would be inequitable not to apply the doctrine"). Thus, most courts sparingly invoke equitable principles to deny motions to set aside void judgments.
In the instant case, the majority transmutes the exceptional instance, when void foreclosure judgments will not be set aside, into the general rule, by holding that the failure to record an order vacating a void judgment in the county deed book will usually suffice to vest title in any subsequent bona fide purchaser. However, N.J.S.A. 46:22-1 was hardly designed to *115 make void judgments enforceable. As one treatise argues, recording statutes do not generally cure defects in title:
A recorded deed, for example, may be a forgery, procured by fraud in the execution, executed by a minor, or never delivered. Any one of these defects will make the deed void, and the fact that it is recorded in no sense enhances its validity.
[Roger A. Cunningham, William B. Stoebuck, & Dale A. Whitman, The Law of Property, § 11.9 at 782 (1984).]
Allowing the recording of title to cure a void foreclosure judgment runs contrary to the principal purpose of New Jersey's In Rem Tax Foreclosure Act, which is "to provide a method for collection of taxes, rather than being a primary tool to divest taxpayers of their property." Township of Berkeley v. Berkeley Shore Water Co., 213 N.J. Super. 524, 532, 517 A.2d 1199 (App.Div. 1986).
In all other respects, I join the Court's opinion.
O'HERN, J., joins in this opinion.
O'HERN and STEIN, JJ., concurring in the result.
For affirmance Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN 7.
For reversal None.
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Citation Nr: 1761198
Decision Date: 12/29/17 Archive Date: 01/02/18
DOCKET NO. 08-37 238 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a bilateral neurological disability of the upper extremities (to include carpal tunnel syndrome), to include as secondary to service connected cervical spine and lumbar spine disabilities.
2. Entitlement to service connection for a left elbow disability.
3. Entitlement to an increased rating for bilateral hearing loss, rated noncompensable prior to July 2, 2010, and 10 percent disabling since that date.
4. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
B. Elwood, Counsel
INTRODUCTION
The Veteran served on active duty from September 1975 to September 1995.
These matters initially came before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied entitlement to service connection for carpal tunnel syndrome and a left elbow disability and denied entitlement to a compensable rating for bilateral hearing loss.
The Veteran testified before the Board at an August 2009 hearing at the RO (Travel Board hearing), and a transcript of that hearing has been associated with his file.
In April 2010, the Board remanded the service connection and increased rating issues listed above for further development.
In May 2011, the Appeals Management Center (AMC) granted an increased (10 percent) rating for bilateral hearing loss, effective from July 2, 2010.
The Board again remanded the service connection and increased rating issues listed above for further development in December 2011.
In September 2014, the Board expanded the appeal to include the inferred issue of entitlement to a TDIU as a component of the claim for an increased rating for bilateral hearing loss. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU issue, as well as the service connection and increased rating issues listed above, for further development.
In light of the Veteran's reported symptoms and contentions and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claim of service connection for bilateral carpal tunnel syndrome as a claim of service connection for a bilateral neurological disability of the upper extremities (to include carpal tunnel syndrome), as listed above on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim).
As a final preliminary matter, the Board points out that in April 2017 the Veteran filed a notice of disagreement (NOD) with an April 2016 rating decision in which the RO, among other things, denied entitlement to increased ratings for hypertension, traumatic arthritis of the lumbar spine, and traumatic arthritis of the cervical spine. In a May 2017 letter, the RO acknowledged that it was in receipt of the Veteran's NOD. Furthermore, the Veterans Appeals Control and Locator System (VACOLS) shows that the RO has acknowledged receipt of the NOD and that additional action is pending. As such, this situation is distinguishable from that in Manlincon v. West, 12 Vet. App. 238 (1999), where an NOD had not been recognized. As the Veteran's NOD has been recognized, the Board declines to remand the issues adjudicated by the RO in the April 2016 rating decision for issuance of a statement of the case (SOC) and instead refers these matters to the agency of original jurisdiction (AOJ) to issue an appropriate SOC after completing any additional notification and/or development deemed warranted.
The issues of entitlement to service connection for a left elbow disability, entitlement to an increased rating for bilateral hearing loss, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.
FINDING OF FACT
The Veteran's current bilateral neurological disability of the upper extremities did not have its onset in service, was not exhibited within the first post-service year, is not otherwise related to active duty, and is not caused or aggravated by a service-connected disability.
CONCLUSION OF LAW
The criteria for service connection for a bilateral neurological disability of the upper extremities are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113(b), 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a), 3.309(a), 3.310 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).
Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b).
The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C. § 510 (a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
In a pre-adjudication letter dated in April 2007, the RO notified the Veteran of the evidence needed to substantiate his claim of service connection for a bilateral neurological disability of the upper extremities on both a direct and secondary basis. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).
The claimant's Veteran status has been substantiated. He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the April 2007 letter.
The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).
VA obtained the Veteran's service treatment records and all of the identified relevant post-service VA treatment records and private medical records. In addition, the Veteran was afforded VA examinations and opinions were obtained pertaining to the etiology of his claimed bilateral neurological disability of the upper extremities.
In its April 2010, December 2011, and September 2014 remands, the Board instructed the AOJ to, among other things, ask the Veteran to identify any outstanding treatment records and to complete the appropriate authorization so as to allow VA to obtain any outstanding private treatment records (to include records from Premier Spine and Pain Center, Heartland Rehabilitation Service, Dr. Loper, and Shands/University of Florida), attempt to obtain any identified and authorized private treatment records, attempt to obtain any Social Security Administration (SSA) disability records, and afford the Veteran VA examinations to obtain opinions as to the nature and etiology of his claimed bilateral neurological disability of the upper extremities.
The Veteran was afforded VA examinations in July 2010, March 2015, and May 2017 and opinions were obtained that address the etiology of his claimed bilateral neurological disability of the upper extremities. Moreover, the Veteran was asked to identify any outstanding relevant private treatment records (to include any such records from Premier Spine and Pain Center, Heartland Rehabilitation Service, Dr. Loper, and Shands/University of Florida) by way of letters dated in May 2010, December 2011, and October 2015. All identified treatment records pertinent to the claim of service connection for a bilateral neurological disability of the upper extremities for which a sufficient authorization was received (including records from Premier Spine and Pain Center and Heartland Rehabilitation Service) have been obtained and associated with the claims file. In this regard, VA is only required to seek pertinent records that are adequately identified and for which necessary releases are furnished. 38 U.S.C. § 5103A(b); see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA's efforts to obtain federal and non-federal records).
Moreover, in November 2014, the AOJ contacted the SSA and requested all available records pertaining to any SSA claim(s) submitted by the Veteran. The SSA responded that no records could be sent and that further efforts to obtain any such records would be futile because there were no such records. The Veteran has subsequently clarified that he has never filed any claim for SSA disability benefits and that any references to such benefits in his records are erroneous (see a January 2015 VA addendum note). Therefore, any further efforts to obtain SSA records would be futile. 38 C.F.R. § 3.159(c)(1).
Hence, with respect to the claim of service connection for a bilateral neurological disability of the upper extremities, the AOJ substantially complied with all of the Board's April 2010, December 2011, and September 2014 remand instructions. VA has no further duty to attempt to obtain any additional records, conduct additional examinations, or obtain additional opinions with respect to the matter decided herein. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).
II. Analysis
Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.
Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).
Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310.
Under 38 C.F.R. § 3.303(b), an alternative method of establishing service connection for certain chronic disabilities listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system, is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a).
In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").
Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).
Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Additionally, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if such is manifested to a compensable degree within one year of separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a).
Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
In this case, the Veteran's medical records reveal that he has been diagnosed as having various neurological disabilities of the upper extremities. For example, VA examination reports dated in November 2007, July 2010, March 2015, and May 2017 document diagnoses of left ulnar neuropathy secondary to entrapment/compression of the ulnar nerve at the elbow and bilateral carpal tunnel syndrome. Thus, a current neurological disability of the upper extremities has been demonstrated.
The Veteran contends that his current neurological disability of the upper extremities is related to his various physical duties in service and an injury in service when he fell off a vehicle while collecting garbage barrels. In the alternative, he claims that the disability is related to his service-connected cervical spine and lumbar spine disabilities. He has also reportedly experienced a continuity of upper extremity neurological symptomatology in the years since service.
The Veteran is competent to report the history of his claimed upper extremity neurological disability, including a continuity of symptomatology in the years since service. However, his reports must be weighed against the objective evidence and their credibility must be assessed. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336.
Service treatment records reflect that in December 1992 the Veteran was treated for right arm tenderness (to include the elbow and wrist) and was diagnosed as having overuse tendonitis of the right upper extremity and a right elbow strain. In May 1995 he experienced numbness and a tingling sensation at the left shoulder and cervical pain with radiating symptoms (numbness and weakness) to the left upper extremity. Examinations revealed impaired upper extremity reflexes and diminished sensation in the left upper extremity. The Veteran was diagnosed as having degenerative joint disease of the cervical spine with nerve root irritation/C5-7 nerve root impingement and possible radiculopathy. There is no evidence of any other reports of or treatment for neurological problems in the Veteran's service treatment records and his June 1995 retirement examination was normal other than for hearing loss, excessive weight, and scars.
The evidence otherwise indicates that the Veteran's current neurological disability of the upper extremities did not manifest until after service. The first post-service clinical evidence of neurological symptoms is an August 2000 VA abbreviated history and physical note which reveals that the Veteran reported that he had experienced numbness in the fingertips of his left hand since 1992. The Board acknowledges that there is lay evidence of earlier neurological symptoms following service in that the Veteran has reported a continuity of upper extremity neurological symptomatology in the years since service. As explained below, however, the Board finds that the Veteran's reports of a continuity of upper extremity neurological symptomatology in the years since service are not credible.
The Veteran has provided inconsistent information concerning the history of his claimed neurological disability of the upper extremities, to include information and statements which are inconsistent with his reports of a continuity of upper extremity neurological symptomatology. He has claimed that his upper extremity neurological symptoms began in service and that they have continued in the years since that time. However, he reported on a June 1995 report of medical history form completed for purposes of his retirement examination that he was neither experiencing, nor had he ever experienced, any neuritis or paralysis. Also, although he reported during the May 2017 VA neurological examination that "the onset of bilateral carpal tunnel was in 1992 or 1993," the August 2000 VA abbreviated history and physical note reflects that he only reported left hand numbness and he reported during a November 2007 VA neurological examination that there was numbness and tingling in his left hand and forearm, but that "[h]is right upper extremity, including his right hand, [did] not bother him to a significant degree." Such information provided by the Veteran is inconsistent with his contention that he has experienced a continuity of bilateral upper extremity neurological symptomatology in the years since service. The Board finds the contemporaneous statements and those made to health care providers to be of greater probative weight than the later statements made during the course of an appeal from the denial of compensation benefits. Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons"); Pond v. West, 12 Vet. App. 341, 345 (1999) (interest may affect the credibility of testimony).
In light of the fact that the Veteran's June 1995 retirement examination was normal other than for hearing loss, excessive weight, and scars, the absence of any clinical evidence of neurological symptoms for several years following service, and the inconsistent information and statements provided by the Veteran concerning the history of his upper extremity neurological disability (including information and statements that are inconsistent with his reports of a continuity of bilateral upper extremity neurological symptomatology in the years since service), the Board concludes that his reports concerning the history of his current bilateral neurological disability of the upper extremities (including any reports of a continuity of symptomatology in the years since service), are not credible. Thus, neither the clinical record nor the lay statements of record establish a continuity of symptomatology in this case.
The physician who conducted the November 2007 VA neurological examination concluded that he was unable to opine as to whether the Veteran's diagnosed upper extremity neurological disabilities were related to his service-connected cervical and lumbar spine disabilities without resorting to mere speculation. He explained that based on nerve conduction studies, the disabilities did not appear to be related to the Veteran's cervical spine. Rather, they appeared to be more of a peripheral neuropathy coming from entrapment at the elbow and the wrist and they did not appear to be related to his cervical neck injury.
The physician who conducted the July 2010 VA neurological examination concluded that he was unable to opine as to whether the Veteran's diagnosed upper extremity neurologic disabilities were related to service without resort to mere speculation. He reasoned that although service treatment records included a May 1995 record of treatment for left hand numbness, there was no diagnosis made and there was no evidence of any other potential carpal tunnel or ulnar nerve entrapment symptoms, treatments, or diagnoses in the Veteran's service treatment records (including during the June 1995 separation examination which did not indicate any neurologic abnormalities). Thus, there was no objective evidence that the left hand numbness documented during service was more than an acute and transitory event, or that it could have been caused or related to carpal tunnel syndrome or left ulnar nerve entrapment.
The March 2015 VA neurological examination report includes opinions that the Veteran's left carpal tunnel syndrome and left ulnar nerve compression neuropathy at the elbow did not likely ("less likely as not"/"less than 50 percent probability") have their onset in service and were not likely ("less likely as not"/"less than 50 percent probability") related to the Veteran's upper extremity neurological symptoms in service, related to his reported injury in service when he fell off a vehicle while collecting garbage barrels, related to his various duties in service, otherwise the result of a disease or injury in service, or caused or aggravated by his service-connected traumatic arthritis of the cervical spine or traumatic arthritis of the lumbar spine. The physician who conducted the examination reasoned that a review of the Veteran's service treatment records revealed that he reported paresthesia (numbness/tingling into his left upper extremity from the shoulders down) in May 1995 during an evaluation for his service-connected neck disability. Numbness and tingling are generic end point symptoms that occur whenever there is some irritation of nerves, joint capsule nerve endings, etc., but the causes can be completely different, involve different structures, and occur in different diseases. For instance, referred symptoms from the neck are from spine structures and not the peripheral nerves. Compression neuropathies, such as carpal tunnel and ulnar elbow neuropathies, are from focal/local direct compression on the nerves peripherally, and diabetic neuropathy numbness/tingling comes from metabolic (hyperglycemic) involvement of distal nerve endings. There is no history or indication of carpal tunnel syndrome or ulnar neuropathy during the Veteran's active duty service.
The examiner further explained that carpal tunnel syndrome is a common condition in the general population and that a specific or definite cause is unknown, even though it is often seen in people with metabolic conditions such as diabetes or hypothyroidism. Ulnar neuropathy at the elbow can occur when people habitually sleep on flexed elbows, when there is tightening of fibrous tissue over the nerve at the elbow, etc. Symptoms may improve, but can and often persist even after surgical procedures. There is no scientific evidence that cervical or lumbar spine conditions cause or aggravate peripheral nerve compressions, they are anatomically distant from the peripheral nerve, and they have different pathomechanisms. A review of the Veteran's service treatment records revealed that he reported on the June 1995 report of medical history form that he experienced elbow pain because he fell off a trailer hyperextension under load in 1977, but that his elbow was "ok" at the time he completed the report of medical history form. There was no indication of his claimed nerve compression neuropathies. There was no report of nerve compressions due to his active duty activities and there was no history of the claimed nerve compressions during his active duty period. Upon review of the Veteran's history and treatment records (including service treatment records, private treatment records, and 2006 and 2010 electromyograph (EMG) studies) and examination of the Veteran, it seemed "highly unlikely" that the left upper extremity compression neuropathies diagnosed 11 years after separation from service would be related to or due to incidents/activities during active duty.
The physician who conducted the May 2017 VA neurological examination opined that it was not likely ("less likely as not"/"50 percent or less probability") that the Veteran's current neurological disability of the upper extremities had its onset in service, was related to his upper extremity neurological symptoms in service, was related to his reported injury in service when he fell off a vehicle while collecting garbage barrels, was related to his various duties in service, or was otherwise the result of a disease or injury in service. The examiner reasoned that the Veteran did not report any neuritis on the report of medical history form completed for purposes of his retirement examination and that although he identified a list of numerous ailments at that time, he did not report any nerve condition or median neuropathy. Also, the remainder of his service treatment records were silent for any median neuropathy or carpal tunnel syndrome. The Veteran submitted private treatment records dated since 1995 and these records are silent for any nerve condition until 2006. He had annual examinations, in addition to other periodic examinations, since 1995 and the records were well organized and documented all the ailments the Veteran presented with during that time frame. The records were silent for any nerve or carpal tunnel condition during the period from 1995 through 2006. The Veteran reported during the May 2017 examination that he did not feel things when he was young, but that as he got older, he developed medical conditions and claimed them related to service. He was first diagnosed as having carpal tunnel syndrome and cubital tunnel syndrome in 2006.
The examiner also opined that it was not likely ("less likely than not"/"50 percent or less probability") that the Veteran's current neurological disability of the upper extremities was caused (in whole or in part) by his service-connected traumatic arthritis of the cervical spine or traumatic arthritis of the lumbar spine. The examiner explained that the Veteran reported that he was not claiming that his lumbar spine was involved because it did not make any medical sense. He did, however, contend that his carpal tunnel syndrome was related to his cervical spine arthritis. However, this was not supported by the objective evidence, including EMG/NCS studies in 2006 and 2015, which revealed that the Veteran had distal nerve compressions. He had some other findings that were possibly suggestive of radiculopathy, but he had diabetic polyneuropathy which accounted for those symptoms. There was no evidence of any neural foramen narrowing, but there was a long history of type II diabetes mellitus.
Lastly, the May 2017 examiner opined that it was not likely ("less likely than not"/"50 percent or less probability") that the Veteran's current neurological disability of the upper extremities was aggravated (made chronically worse) by his service-connected traumatic arthritis of the cervical spine or traumatic arthritis of the lumbar spine. The examiner explained that the current neurological disability was likely worsened or aggravated by the Veteran's non service-connected type II diabetes mellitus, not arthritis. Arthritis of the spine does not affect compression neuropathies so as to worsen the compression and it is pathophysiologically implausible.
The November 2007 and July 2010 opinions are adequate to the extent that they are accompanied by specific rationales addressing why a definitive conclusion as to the etiology of the Veteran's upper extremity neurological disability could not be made. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Nevertheless, the examiners stated that an opinion could not be provided without resort to speculation and this statement weighs neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).
The March 2015 and May 2017 opinions do not explicitly acknowledge or discuss the Veteran's reports of a continuity of symptomatology in the years since service. However, as explained above, any reports of a continuity of symptomatology are not deemed to be credible and an opinion based on such an inaccurate history would be inadequate. See Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The March 2015 and May 2017 opinions are based upon examinations of the Veteran and a complete review of his medical records and reported history, and are accompanied by specific rationales that are consistent with the evidence of record. Thus, these opinions are adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).
The Veteran has expressed his belief that his current bilateral neurological disability of the upper extremities is related to his fall injury and duties in service or his service-connected spinal disabilities. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. Once the threshold of competency is met, however, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value.
The question presented in this case (i.e., whether any relationship exists between the Veteran's current bilateral neurological disability of the upper extremities and his military service or a service-connected spinal disability) is a question as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).
To the extent that the Veteran is attempting to establish nexus through his own opinion, as a lay person he has not been shown to be capable of making such conclusions on such a complex medical matter. An opinion as to the link between any current upper extremity neurological disability and service (where there is no credible evidence of upper extremity neurological symptoms for several years after service) or a service-connected spinal disability, is one requiring specialized knowledge and testing to understand the complex nature of the nervous system. The Veteran has not indicated that he has such experience. Hence, his opinion on this question is not competent evidence. To the extent that the Veteran's statements in this regard are competent, the Board finds the specific, reasoned opinions of the trained physicians who provided the March 2015 and May 2017 opinions to be of greater probative weight than the Veteran's more general lay assertions.
There is no other evidence of a relationship between the Veteran's current bilateral neurological disability of the upper extremities and service or a service-connected disability, and neither he nor his representative has alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against a finding that the Veteran's current bilateral neurological disability of the upper extremities manifested in service, manifested within a year after his September 1995 separation from service, is otherwise related to service, or is caused or aggravated by a service-connected disability. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application, and the claim of service connection for a bilateral neurological disability of the upper extremities must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
ORDER
Entitlement to service connection for a bilateral neurological disability of the upper extremities is denied.
REMAND
The Veteran contends that he has a current left elbow disability which is related to his various physical duties in service and an in-service left elbow injury. He has reportedly experienced a continuity of left elbow symptomatology in the years since service, but there is some evidence to the contrary. For example, there were no left elbow problems found during his June 1995 retirement examination and the first post-service clinical evidence of upper extremity problems is not for several years following his separation from service. Also, he reported on a June 1995 report of medical history form completed for purposes of separation from service that although he had experienced left elbow pain following an injury in 1977, the elbow was "ok" at the time of the separation examination.
A VA orthopedic examination was conducted in July 2010 to assess the nature and etiology of any current left elbow disability and the Veteran was diagnosed as having a left elbow strain. The physician who conducted the examination explained that the Veteran's service treatment records were silent for any chronic findings of left elbow diagnoses and that there was no objective evidence of a left elbow joint condition caused by service.
In its September 2014 remand, the Board explained that the July 2010 opinion was insufficient because, among other things, it was entirely based on a lack of objective clinical evidence of treatment for left elbow problems in the Veteran's service treatment records and did not reflect consideration of his report of a left elbow injury in service (as documented on the June 1995 report of medical history form). Thus, the Board directed the AOJ to afford the Veteran a new VA orthopedic examination to obtain an opinion as to the nature and etiology of any current left elbow disability. The examiner was instructed to acknowledge and comment on all left elbow disabilities diagnosed since February 2007 (including, but not limited to, a left elbow strain).
Pursuant to the Board's remand, the Veteran was afforded a VA elbow examination in March 2015 and was only diagnosed as having "left elbow pain per [V]eteran." The examiner who conducted the examination opined that it was not likely ("less likely as not"/"less than 50/50 probability") that the Veteran's "claimed left elbow pain" had its onset in service, was related to the Veteran's reported injury in service when he fell off a vehicle while collecting garbage barrels, was related to his reported duties in service, or was otherwise the result of a disease or injury in service. The examiner reasoned that a review of the Veteran's service treatment records revealed elbow complaints that all point to the right side being involved, not the left side. The only mention of the left elbow was likely an error on the part of the examiner who conducted the Veteran's June 1995 separation examination. The Veteran himself wrote right elbow pain at the top of the report and all service treatment records prior to that report were for the right elbow. Treatment records dated after separation from service which mention treatment for the elbow also only indicate the right side, not the left. It was unlikely that there would be a left elbow condition from or related to any activity or incident in service when it was not treated during active duty or reported at the time of separation and there is no credible evidence of left elbow pathology in the years following service or on clinical examination.
A second VA elbow examination was conducted in May 2017 and the physician who conducted the examination indicated that the Veteran did not have any current left elbow diagnosis. The examiner further explained that the left elbow disability claimed by the Veteran was actually scar residuals from a non service-connected cubital tunnel release surgery in 2012. The Veteran's separation examination was silent for any left elbow condition, the Veteran documented a right elbow condition, and the examiner who conducted his separation examination accidently wrote the left elbow. Also, there was no other known left elbow condition other than the scarring from the cubital tunnel release surgery.
The March 2015 and May 2017 opinions are also insufficient because they are also predominantly based on a lack of objective clinical evidence of treatment for left elbow problems in the Veteran's service treatment records. The opinions discount, without explanation, the Veteran's reports that although he was not treated for left elbow problems during service, he injured his left elbow at the same time that he injured his right elbow when he fell from a truck. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007).
Moreover, the opinions are partially based on a finding that the Veteran did not have any current left elbow disability other than scarring from cubital tunnel release surgery. The examiners who provided the opinions did not, however, acknowledge or comment on the left elbow diagnoses that have been provided during the claim period, including a left elbow strain (see the July 2010 VA examination report). The Board points out that the requirement for a current disability is satisfied if there is evidence of the disability at any time during the claim period (since approximately February 2007 in this case), even if the disability is currently in remission or has completely resolved. See McClain v. Nicholson, 21 Vet. App. 319 (2008).
Thus, a remand is again necessary to obtain a new opinion as to the etiology of the Veteran's current left elbow disability.
As for the claim for an increased rating for bilateral hearing loss, the evidence reflects that this disability may have worsened since the Veteran's last VA examination in March 2015. For example, a January 2016 VA audiology note (which is located among the Veteran's paperless records in the Virtual VA (Legacy Content Manager) system) indicates that the Veteran reported that "his hearing had decreased since his last hearing evaluation." Given this evidence, VA's duty to obtain a new examination as to the current severity of the Veteran's service-connected hearing loss is triggered.
Also, the claim for a TDIU is inextricably intertwined with the claims of service connection for a left elbow disability and for an increased rating for bilateral hearing loss. Thus, the Board will defer adjudication of the TDIU claim at this time.
Moreover, outstanding VA treatment records should be secured upon remand. In this regard, the January 2016 VA audiology note reflects that audiometry testing and speech discrimination testing was conducted during the examination and that the audiogram results were available "in CPRS under tools menu and audiogram display." The specific pure tone results of the audiometry test, however, are not included in the claims file. Hence, it appears that there are additional pertinent VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992).
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the file all updated VA records of the Veteran's treatment, to specifically include:
(a) the specific results of the audiometry testing conducted on January 22, 2016 (i.e., any specific test results from that date which are available under "audiogram in CPRS under tools menu and audiogram display," as noted by the January 2016 VA audiology note), such as specific pure tone values at various frequencies, NOT merely the January 2016 VA audiology consultation note itself);
(b) all records contained in the Gainesville Vista electronic records system dated since June 2017; and
(c) all such relevant records from any other sufficiently identified VA facility.
All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159(e).
2. After all efforts have been exhausted to obtain and associate with the file any additional treatment records, schedule the Veteran for a VA examination to evaluate the current severity of his service-connected bilateral hearing loss.
All relevant electronic records contained in the VBMS and Virtual VA (Legacy Content Manager) systems, including a copy of this remand and any records obtained pursuant to this remand, must be sent to the examiner for review.
All indicated tests and studies, including a puretone audiometry test and a speech recognition test (Maryland CNC test), shall be conducted, and the results of such testing shall be included in the examination report. The examiner must also fully describe the functional effects of the Veteran's hearing disability.
The examiner must provide a rationale for any opinion given.
The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his hearing loss.
3. After all efforts have been exhausted to obtain and associate with the file any additional treatment records, request an opinion from an appropriate medical professional. Ask the medical professional to review all relevant electronic records contained in the VBMS and Virtual VA (Legacy Content Manager) systems (including a copy of this remand along with any records obtained pursuant to this remand) and provide an opinion as to the etiology of the Veteran's current left elbow disability. Only arrange for the Veteran to undergo further examination by an appropriate medical professional if one is deemed necessary in the judgment of the individual designated to provide the opinion.
The opinion provider should identify any left elbow disabilities that have been diagnosed since approximately February 2007 (including, but not limited to, a left elbow strain), even if the disability is currently in remission or has completely resolved, and for each such disability answer the following question:
Is it at least as likely as not (50 percent or greater probability) that the current left elbow disability had its onset in service, had its onset in the year immediately following service (in the case of any currently diagnosed arthritis), is related to the Veteran's reported left elbow injury in service when he fell off a vehicle while collecting garbage barrels, is related to his reported duties in service, or is otherwise the result of a disease or injury in service?
For purposes of this opinion, the opinion provider should presume that the Veteran's reports of a left elbow injury in service due to a fall from a vehicle while collecting garbage barrels are accurate.
In formulating the above opinion, the opinion provider should acknowledge and comment on all left elbow disabilities diagnosed since approximately February 2007 (including, but not limited to, a left elbow strain), the Veteran's reported left elbow injury in service due to a fall from a vehicle (as reported on the June 1995 report of medical history form), his reported duties in service, and his reports of a continuity of symptomatology in the years since service.
The opinion provider must provide a rationale for each opinion given.
The opinion provider is advised that the Veteran is competent to report a left elbow injury in service, his symptoms, and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. The absence of evidence of treatment for left elbow problems in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. However, the opinion provider must also consider the inconsistent information concerning a continuity of left elbow symptomatology in the years since service.
4. After conducting any additional indicated development, readjudicate the issues on appeal. If a full benefit on appeal remains denied, the AOJ should issue an appropriate supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
______________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
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United States Court of Appeals
IN THE UNITED STATES COURT OF APPEALS Fifth Circuit
FOR THE FIFTH CIRCUIT F I L E D
February 24, 2006
No. 05-40002 Charles R. Fulbruge III
Conference Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN DE LEON-GARCIA,
Defendant-Appellant.
--------------------
Appeal from the United States District
for the Southern District of Texas
USDC No. 1:00-CR-350-ALL
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Ruben De
Leon-Garcia has moved for leave to withdraw and has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967). De
Leon-Garcia was informed of his right to file a response, but he
has not done so. Our independent review of the brief and the
record discloses no nonfrivolous issues 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 5TH CIR. 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.
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391 U.S. 353
88 S.Ct. 1666
20 L.Ed.2d 642
Robert ZWICKER et al.v.James BOLL et al.
No. 573, Misc.
Supreme Court of the United States
October Term, 1967.
May 20, 1968
Melvyn Zarr, William M. Kunstler and Anthony G. Amsterdam, for appellants.
Bronson C. La Follette, Atty. Gen. of Wisconsin, and William A. Platz, Thomas A. Lockyear, and Charles A. Bleck, Asst. Attys. Gen., for appellees.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis is granted. The motion to affirm is also granted and the judgment is affirmed. Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182.
2
Mr. Justice DOUGLAS, dissenting.
3
Appellants are graduate and undergraduate students at the University of Wisconsin and are active in student political and civil rights organizations. They brought an action in the District Court for the Western District of Wisconsin, seeking a declaratory judgment that the Wisconsin disorderly conduct statute1 is overbroad and therefore unconstitutional on its face, or an injunction restraining state criminal prosecutions under that statute which were pending against them.
4
Appellants alleged in their complaint that preceding their arrests they were engaged only in peaceful and constitutionally protected protest activities. Appellants were protesting against American policy in Vietnam. The arrests were made in various buildings of the University of Wisconsin in which appellants and others had gathered to object to a chemical manufacturer of napalm being permitted to conduct employment interviews in the buildings. Appellants were arrested under a 'disorderly conduct' statute. We know that such statutes historically have been used in reprisal against unpopular groups or persons who espouse unpopular causes. Cf. Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637; Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; Taylor v. State of Louisiana, 370 U.S. 154, 82 S.Ct. 1188, 8 L.Ed.2d 395; Garner v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207. But that is a practice no longer permissible now that the First Amendment is applicable to the States by reason of the Fourteenth.
5
A three-judge court was convened which dismissed the complaint after oral argument but without conducting an evidentiary hearing. Judge Fairchild, concurring, believed that 28 U.S.C. § 22832 prohibited the issuance of an injunction; Judge Doyle, dissenting, was of the contrary opinion. Judge Gordon found it unnecessary to reach that question, deciding rather to abstain in favor of the state criminal proceedings.
6
In addition to attacking the statute as void on its face for overbreadth, appellants alleged that their arrests were made and prosecutions instituted for purposes of harassment and in a discriminatory manner on account of their political beliefs.3 Appellees in their answer denied these allegations and attached copies of the complaints filed in the state criminal proceedings which alleged that appellants were interfering with classes or interviews in the buildings by speaking in loud voices or by refusing to leave when requested to do so.
7
We stated in Dombrowski v. Pfister, 380 U.S. 479, 489-490, 85 S.Ct. 1116, 1122-1123, 14 L.Ed.2d 22, that the abstention doctrine is inappropriate for cases in which state statutes are justifiably challenged either on their face or 'as applied for the purpose of discouraging protected activities.' In my view, appellants have adequately alleged in their complaint that their arrests and prosecutions were effected in bad faith and in a discriminatory manner in order to punish and discourage exercise of constitutionally protected rights. Since an issue of fact is presented, I would remand to the court below with directions to conduct a plenary hearing on the point.4
8
Appellants have alleged in their complaint facts surrounding their arrests which suggest harassment solely on account of the nature of appellants' protest.5 Moreover, the criminal complaints filed against several of the appellants in the state court, and appended to the appellees' answer in this case, raise a strong suspicion that the arrests and prosecutions were carried out in bad faith.6
9
Where there are allegations of bad faith, harassment, and discrimination, critical evidence on the matter can only be drawn out upon cross-examination of the officials involved. The question is not the guilt or innocence of the persons charged, but whether their arrests were made and prosecutions commenced in bad faith, for purposes of harassment and in a discriminatory manner. See Cameron v. Johnson, 390 U.S. 611, 619-620, 621, 88 S.Ct. 1335, 1340-1341, 20 L.Ed.2d 182. If the charge that the statute was used in bad faith were shown, a federal claim would be established.7 And it would not matter what the state courts later did, for the interim 'continuing harassment' of appellants for exercising their First Amendment rights would entitle them to relief. See Dombrowski v. Pfister, 380 U.S., AT 490, 85 S.Ct., at 1123.
10
For these reasons I would note probable jurisdiction, vacate the judgment below, and remand the case for a preliminary hearing on the issue of the use of a disorderly conduct statute to punish people for expression of their unpopular views.
1
Wis.Stat. § 947.01 reads in pertinent part:
'947.01. Disorderly conduct. Whoever does any of the following may be fined not more than $100 or imprisoned not more than 30 days: (1) In a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance. * * *'
2
28 U.S.C. § 2283 provides:
'A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.'
3
Paragraphs 12 and 13 of appellants' complaint alleged:
'Plaintiffs allege that their arrest under this Statute is basically for the lawful purpose of depriving them of their rights of freedom of speech assembly association, and petitioning their Government for a redress of grievances guaranteed by the First and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983. Further enforcement of Section 947.01, Wisconsin Statutes, the Disorderly Conduct Statute, will have the effect of punishing those plaintiffs now being prosecuted for the exercise of rights, privileges and immunities secured to them by the Constitution and laws of the United States; has [sic] and will deter plaintiffs and others similarly situated from the future exercise of these rights, privileges and immunities; has encouraged and will encourage defendants and other State, County or local officials, acting under color of law, to engage in further acts of intimidation, harassment, threats and other actions meant to prevent and deter plaintiffs and others similarly situated from the exercise of these rights, privileges, and immunities.
* * *
'Plaintiffs allege that their arrests and prosecutions have been and are being carried on with the basic purpose and effects of intimidating and harassing them and punishing them for and deterring them from, exercise of their constitutionally protected rights of free speech and assembly and association to:
'1. Oppose and protest the policies of the United States Government, the State of Wisconsin, and the University of Wisconsin in supporting and contributing to the war effort in Vietnam;
'2. Oppose and protest the foreign policy of the United States;
'3. Or otherwise publicly express unpopular and unorthodox views on public issues of vital concern.
'This intimidation and harassment of plaintiffs is pursuant to a policy of political discrimination which is encouraged, followed and enforced by legislation including the Disorderly Conduct Statute, Section 947.01 of the Wisconsin Statutes, and by action of the executive or judicial branches of the State of Wisconsin. The Disorderly Conduct Statute, 947.01, Wisconsin Statutes, is unconstitutional on its face and as applied. It permits and encourages Wisconsin executive or judicial officials to discriminate against plaintiffs and others similarly situated by reason of political beliefs and ideas, and to intimidate and harass by arrest, detention, brutality, excessive bail and prosecution or the threat thereof, plaintiffs or all who exercise their rights of free speech, assembly, association and petitioning their Government for redress of grievances to express unpopular or unorthodox views on public issues of vital concern or to protest and oppose certain policies of the United States, the State of Wisconsin or the University of Wisconsin on vital public issues, contrary to the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States.'
4
Whether § 2283 constitutes a bar to issuance of an injunction is a question the Court has refrained from deciding in circumstances where it appears that an injunction might be improper on other grounds. See Cameron v. Johnson, 390 U.S. 611, 613, n. 3 (majority opinion), 628, n. 5 (dissenting opinion), 88 S.Ct. 1335, 1337, 1344, 20 L.Ed.2d 182.
5
The complaint alleges that appellant Cohen attempted to enter the university's Commerce Building carrying signs protesting the use of napalm in Vietnam and the university's policy permitting a chemical manufacturer of napalm to conduct employment interviews in the building. Cohen, who was alone, was stopped just inside the door by police officers and told he could not enter the building with signs. He attempted to enter with the signs and was grabbed by an officer and pushed away. Appellee Hansen (chief of the university's department of protection and security) was summoned. He allegedly grabbed Cohen's signs and threw them out the door into the snow. When Cohen asked why he did that, Hansen allegedly replied, 'Because you make me nervous all the time, you make me nervous.' Hansen then allegedly jostled Cohen and stated, 'I don't like you.' Cohen and Hansen then moved to a point in the building where some other students, including appellant Zwicker, were conducting a discussion. Cohen told the group that his signs had been destroyed; other signs appeared and one was handed to Cohen. Hansen allegedly began yelling that people could not talk in the building and could not have signs, and then began tearing up the signs. Some jostling and shoving apparently ensued as police allegedly attempted to grab the signs. Another university official then told Cohen to leave the building. When Cohen asked what regulation of the university he had broken, the official allegedly replied, 'I dont know, but the looks of you is enough.' Cohen was then arrested and taken from the building.
6
These documents suggest that the arrests may have been made because the appellants were a nuisance to the university rather than because of 'disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance.' Wis.Stat. § 947.01(1).
For example, while the complaint against appellant Webb formally charges disorderliness and tendency to cause a disturbance, nothing in the complaint's statement of 'essential facts' supports the charge. The complaint alleges that Webb 'was engaged in a protest demonstration in the Chemical Engineering Building on the University of Wisconsin Madison Campus. Defendant was sitting in an interview room interfering with interviews which were being conducted for students of the University for prospective employment. Defendant was asked to leave several times and refused.' Other complaints alleged similar facts; still others alleged that certain appellants spoke in loud voices and thereby disrupted classes, language which might come within the scope of § 947.01(1) ('unreasonably loud . . . conduct [tending] to cause or provoke a disturbance'). But if appellants can demonstrate at an evidentiary hearing that, as they allege, the statute has been purposefully or intentionally enforced against them in a discriminatory manner to suppress the ideas which they espouse, appellants could not constitutionally be convicted. See Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497; Note, Discriminatory Law Enforcement and Equal Protection From the Law, 59 Yale L.J. 354 (1950). Cf. Brown v. State of Louisiana, 383 U.S. 131, 141-142, 86 S.Ct. 719, 723-724, 15 L.Ed.2d 637. And see People v. Darcy, 59 Cal.App.2d 342, 360, 139 P.2d 118, 129 (Cal.Dist.Ct.App.1943) (dissenting opinion). ('It is much better for society that an accused should go free, than for our criminal processes to be polluted by prosecutions founded on prejudice against and hatred for the political beliefs of the accused.')
7
42 U.S.C. § 1983 provides:
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
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798 F.2d 470
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.PROVIDENCE HOSPITAL, INC., Plaintiff-Appellee,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellant.
No. 86-3325.
United States Court of Appeals, Sixth Circuit.
June 10, 1986.
Before JONES, CONTIE and MILBURN, Circuit Judges.
ORDER
1
This appeal has been referred to this panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. The Secretary has appealed from the judgment remanding the case to the Provider Reimbursement Review Board for a hearing, Such an order is not appealable. Memorial Hospital System v. Secretary of HHS, 769 F.2d 1043 (5th Cir. 1985).
2
It is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(d)(1), Rules of the Sixth Circuit.
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340 N.W.2d 454 (1983)
STATE of North Dakota, Plaintiff and Appellee,
v.
T.T. PENDERGRAST, Defendant and Appellant.
Cr. No. 927.
Supreme Court of North Dakota.
November 22, 1983.
*455 Charles J. Gilje, State's Atty., Jamestown, for plaintiff and appellee.
Calvin Hoovestol, Bismarck, for defendant and appellant.
SAND, Justice.
The defendant, Thornton Pendergrast, appealed from a judgment of conviction, based upon a jury verdict finding the defendant guilty of referral and chain referral selling in violation of North Dakota Century Code § 51-16-01(2), a class C felony.
On appeal, the defendant contended his conviction should be reversed because the State put him in jeopardy twice for the same offense in violation of the United States Constitution, Fifth and Fourteenth Amendments, and North Dakota Constitution Article I, § 12, and because the trial judge failed to rule in limine on the issue of the admissibility of Pendergrast's guilty plea in Dickey County, which put a chill on defendant's right to present evidence of entrapment.
The State, in the information dated 27 August 1982, charged the defendant with referral and chain selling in violation of NDCC § 51-16-01 and 51-16-02, on or about the 17th day of March 1982, at Fullerton, Dickey County, North Dakota, as follows:
"That said Defendant did then and there on March 17, 1982, at Fullerton, Dickey County, ND, induce Fred Schaal to pay said Pendergrast $1,000 because he told Schaal if Schaal paid the $1,000 that if Schaal got others to invest $1,000 each and those others in turn got others behind them to invest $1,000 each that Schaal would wind up receiving $51,000 for his $1,000 payment to said Pendergrast. That said statements by said Pendergrast were a fraud and in violation of Section 51-16-01."
The State and the defendant entered into a plea agreement that was accepted by the court which deferred imposition of sentence under certain conditions, including restitution and payment of costs and attorney's fees involved. This case was disposed of in Dickey County.
Subsequent thereto, on 20 September 1982, the State filed a criminal information against Pendergrast charging him with violation of NDCC § 51-16-01(2) for referral and chain referral selling which took place on the 3rd day of May, 1982, in Stutsman County. The criminal information charged the defendant engaged in a plan or a scheme whereby a purchaser-lessee gives or agrees to give valuable consideration:
"For the chance to receive something of value for inducing one or more other persons to also give a valuable consideration in order to participate in the plan or scheme; or
"For the change [chance] to secure something of value when the person induced by the purchaser or lessee induces still another person to give such valuable consideration, more particularly, the defendant did operate or attempt to operate a *456 pyramid sales promotion at said time and place to induce one or more persons to participate in said scheme."
This case resulted in a trial. The judge presiding at this trial was the same judge who deferred imposition of sentence in the Dickey County case.
The defendant, on appeal, contended that because the trial court did not rule on the admissibility of the defendant's plea of guilty, his opportunity to present evidence on entrapment was chilled. We do not agree.
The defendant, in limine, asked the court to rule if the defendant's guilty plea entered in Dickey County would be admissible for purposes of impeachment should the defendant elect to take the stand. The judge first declined to rule on the issue without having the benefit of the evidence which would be considered at the trial. The trial judge initially stated that he would rule when the question arose at the trial. Nevertheless, the trial court concluded by saying:
"Well, I think in view of the confusion I am not going toI will rule that I am not going to allow that testimony. Okay."
The trial court's reference to "confusion" apparently related to the question whether or not the Dickey County charge and offense constituted a misdemeanor or a felony. Even if confusion may have existed on other matters, the foregoing statement clearly established that the court was not going to allow any testimony to be introduced regarding the plea of guilty by the defendant on the Dickey County case. The court, in effect, ruled in favor of the defendant's request. The defendant's contention is without merit.
This brings us to the next issue.
The defendant did not raise or present the issue of double jeopardy to the trial court. Generally, an issue cannot be presented or raised for the first time on appeal. Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); State v. Hepper, 316 N.W.2d 338 (N.D.1982). However, certain matters, such as a jurisdictional or basic constitutional question, may be raised for the first time on appeal by the Court sua sponte. Even if it had been raised, under the facts of this case the issue still would be without merit.
The doctrine of double jeopardy has been expressed in numerous ways by different authorities. In simple, direct language the doctrine provides that a person may not be tried a second time for the same offense. 22 C.J.S. Criminal Law, § 238, p. 615. The test is the identical offense. 22 C.J.S. Criminal Law, § 278(1), p. 717. A distinct repetition of a prohibited act constitutes a separate offense. 21 Am.Jur.2d Criminal Law § 267, p. 469. Ordinarily, two offenses are the same for double jeopardy purposes unless each requires proof of an additional fact that the other does not. 22 Am.Jur.2d Criminal Law, § 266, p. 466. If the evidence in support of the original charge is absolutely essential to the conviction of the second charge, then the offenses are the same and double jeopardy applies. 22 Am.Jur.2d Criminal Law § 266, p. 467.
While the two offenses, one in Dickey County and one in Stutsman County, both violated NDCC § 51-16-01(2), they were committed at different times and places and are separate offenses. The evidence to establish the violation in one case (Dickey County) will not be adequate to establish the violation in the other instance (Stutsman County).
*457 The provisions of Rule 31(e)(2), North Dakota Rules of Criminal Procedure, contemplate presenting the evidence supporting double jeopardy to the trial court and, in some instances, the jury is requested to make a declaration on this in its verdict if it is a fact question. This supports the proposition that the issue of double jeopardy should be presented to the trial court in the first instance. However, the contention of the defendant that he was subjected to double jeopardy is without merit, and, accordingly, the conviction is affirmed.
ERICKSTAD, C.J., VANDE WALLE and PEDERSON, JJ., and JAMES H. O'KEEFE,[*] District Judge, concur.
NOTES
[*] O'KEEFE, District Judge, sitting in place of PAULSON, Surrogate Justice, disqualified.
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ACCEPTED
05-19-00197-cv
FIFTH COURT OF APPEALS
DALLAS, TEXAS
4/23/2019 4:42 PM
LISA MATZ
CLERK
05-19-00197-CV
No. ___________________
05-19-00197-CV
________________________________________ FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
IN THE COURT OF APPEALS, 04/23/2019 4:42:00 PM
FIFTH DISTRICT OF TEXAS LISA MATZ
DALLAS Clerk
________________________________________
IN THE INTEREST OF V.I.P.M., A CHILD
____________________________________________________________
APPELLANT’S REQUEST FOR REPORTER’S RECORD
AND SUPPLEMENTAL CLERK’S RECORD
____________________________________________________________
TO THE HONORABLE JUSTICES OF THE FIFTH COURT OF APPEALS:
Appellant BRADLEY B. MILLER, appearing before the Court on his own behalf,
files this Request pursuant to TEX. R. APP. § R. 34.5 and 35.6.
I. Reporter’s Record
Appellant Miller requested the Reporter’s Record from the court reporter of
the 330th Family District Court in writing (via email) on February 12, 2019.
Appellant now further clarifies that he requires the trial-court Reporter’s Record
for relevant hearings that took place on the following dates:
APPELLANT’S REQUEST FOR REPORTER’S / CLERK’S RECORD - PAGE 1
11/17/2016 (Required to demonstrate pattern of 28 U.S. Code § 1446 violations.)
11/20/2017
1/29/2018
2/19/2018 (if any)
3/27/2018 (Recusal hearing before Judge Kent Sims)
6/7/2018
7/16/2018 (including conference and ruling on de novo hearing)
8/6/2018 (including ruling on de novo hearing)
8/8/2018
8/21/2018 (including ruling denying de novo hearing setting)
10/22/2018 (i.e. trial)
1/14/2019
Appellant also requests that the trial-court court reporter provide all exhibits
that were offered into evidence at the hearings listed above.
Appellant also requests that the trial-court court reporter provide the
Reporter’s Record from any other hearings that the trial court finds relevant to the
enforcement action that is the subject of this appeal, and any exhibits from such
hearings.
Appellant has previously provided the above list of relevant hearings to the
court reporter of the 330th Family District Court via email on April 19, 2019. The
trial-court court reporter has not yet filed the Reporter’s Record.
II. Supplemental Clerk’s Record
The trial court filed the Clerk’s Record on February 25, 2019. Appellant
Miller now requests that the trial court provide a supplemental Clerk’s Record
APPELLANT’S REQUEST FOR REPORTER’S / CLERK’S RECORD - PAGE 2
containing the following relevant documents:
11/15/2016 Objections (to Entry of proposed Order)
11/17/2016 Notice of Case Removal to the U.S. District Court
11/17/2016 Notice of Petition and Verified petition for Warrant of Removal
11/17/2016 Final Order (in custody modification case, signed by Judge Andrea
Plumlee)
11/21/2017 (Citation, AND signed return of service dated 12/14/2017)
06/07/2018 Notice of Case Removal to the U.S. District Court
06/07/2018 Temporary Order
06/12/2018 Emergency Special Appearance
06/12/2018 Notice of Appeal of AJ (Request for De Novo Hearing on Temporary
Orders)
06/18/2018 Associate Judge's Report
06/19/2018 Notice of Appeal of AJ (Request for De Novo Hearing on Special
Appearance)
07/10/2018 Correspondence - Judgment Attached
08/08/2018 Order Appointing Attorney
*08/24/2018 Respondent’s Objection to Entry of Proposed “Order Denying
Respondent’s Request for De Novo Hearing On Temporary Orders”
[*Note: This document was filed, and Appellant has a file-stamped copy, but the
filing is missing from the docket sheet in the trial-court case.]
Appellant has previously provided the above list of relevant documents to
the court reporter of the 330th Family District Court via email on March 8, 2019
and April 19, 2019.
Appellant asserts that the above-listed items are necessary for the purposes
of the instant appeal.
APPELLANT’S REQUEST FOR REPORTER’S / CLERK’S RECORD - PAGE 3
PRAYER:
Appellant Miller prays that the Court instruct the court reporter of the 330th Family
District Court to provide the Reporter’s Record and supplemental Clerk’s Record
as requested.
Respectfully submitted,
/s/ Bradley B. Miller
Bradley B. Miller
Party Pro Se
5701 Trail Meadow Dr.
Dallas, Texas 75230
(214) 923-9165 Telephone
[email protected]
APPELLANT’S REQUEST FOR REPORTER’S / CLERK’S RECORD - PAGE 4
CERTIFICATE OF SERVICE
I certify that on April 23, 2019, the foregoing document was served via the
Court’s electronic filing manager upon Respondents and upon counsel for real
parties in interest in compliance with the Texas Rules of Appellate Procedure
Section 9.5 (b) (1).
Via E-file
(Assistant Texas Attorney General)
Rande Herrell (Bar Card # 09529400 [email protected]
(Counsel for Appellee Virginia Talley Dunn)
Patricia Rochelle (Bar Card # 13732050) [email protected]
David Findley (Bar Card # 24040901) [email protected]
Dated this 23rd day of April, 2019.
/s/ Bradley B. Miller
Bradley B. Miller
Party Pro Se
APPELLANT’S REQUEST FOR REPORTER’S / CLERK’S RECORD - PAGE 5
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FILED
NOT FOR PUBLICATION APR 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10519
Plaintiff - Appellee, D.C. No. 2:07-CR-00261-FJM
v.
MEMORANDUM *
JUAN TAPIA-QUINTERO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Juan Tapia-Quintero appeals from his guilty-plea conviction and aggregate
230-month sentence for conspiracy to possess with intent to distribute 500 grams
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
EF/Research
or more of methamphetamine and five kilograms or more of cocaine, in violation
of 21 U.S.C. § 846, conspiracy to commit money laundering, in violation of
18 U.S.C. § 1956(h), and possession or use of a firearm during and in relation to a
drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). Pursuant to Anders
v. California, 386 U.S. 738 (1967), Tapia-Quintero’s counsel has filed a brief
stating there are no grounds for relief, along with a motion to withdraw as counsel
of record. We have provided the appellant with the opportunity to file a pro se
supplemental brief. No pro se supplemental brief or answering brief has been
filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80-81 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district
court’s judgment is AFFIRMED.
EF/Research 2 08-10519
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145 F.2d 63 (1944)
BORELLA et al.
v.
BORDEN CO.
No. 398.
Circuit Court of Appeals, Second Circuit.
July 28, 1944.
Writ of Certiorari Granted January 2, 1945.
A. H. Frisch, of New York City, for appellants.
John A. Kelly, of New York City, for appellee.
Before L. HAND, SWAN, and CLARK, Circuit Judges.
Writ of Certiorari Granted January 2, 1945. See 65 S.Ct. 431.
L. HAND, Circuit Judge.
This appeal is from a judgment, dismissing the complaint in an action brought by employees of the defendant to recover for overtime denied them, which they assert to have been due under § 7(a) of the Fair Labor Standards Act, § 207(a), Title 29 U.S.C.A. The facts, which are not in dispute, are sufficiently stated in the findings of the trial judge. The upshot of them is as follows. The defendant is a New Jersey corporation engaged in the milk business, which includes "processing, manufacturing, selling and distributing" milk as such, and making condensed and evaporated milk, "casein, ice cream, butter, cheese and various other products." It has an enormous business, and sends its products throughout the United States, and to foreign countries. The manufacturing all takes place in factories in the United States and Canada, which it owns and operates; but its executive and administrative activities the supervision, management and control of the entire business are all centered in an office building in New York, which it owns, and of which it occupies fifty-eight per cent of the total rentable area. It is not necessary to state in detail the various activities which take place *64 in this building; it is enough to say that here the directors meet; here the president, vice-president, treasurer, assistant treasurer, secretary, assistant secretary, and other corporate officers are housed; here is carried all its accounting; here are its cashier and his assistants; here much of the advertising is devised (though none of it is printed); here its labels are designed; here some of its photostating takes place. This is the spot from which all directions go out as to what shall be bought, what shall be manufactured, where the products shall be distributed, etc. However, no milk is processed here, nor sold from here; nor any casein, butter, cheese or other products. That part of the building which the defendant does not occupy, it leases to others who do not "produce, manufacture, handle, process or in any other manner work on any goods."
The plaintiffs are the service and maintenance employees for the whole of this building: (1) Porters, who keep the corridors, stairways and lavatories of the building clean, who move the furniture, pack the waste paper, distribute the towels, etc.; (2) elevator operators; (3) night watchmen, who protect the building by making their rounds and punching their clocks. Although the plaintiffs somewhat faintly assert that they are "engaged in interstate commerce," that is plainly a subsidiary point, their main reliance being that they are "engaged in the production of goods for commerce," within the meaning of § 7(a) of the Act.
Since the decision of the Supreme Court in McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538, the plaintiffs do well to rely upon the second point, for it is clear that they are not "engaged in commerce." The New York Court of Appeals had already so ruled in an analogous situation (Stoike v. First National Bank, 290 N.Y. 195, 48 N.E.2d 482), and the Seventh Circuit did the same later. Lofther v. First National Bank, 138 F.2d 299. We may therefore confine our discussion to whether they are "engaged * * * in the production of goods for commerce." It has been several times held, when all the activities of manufacture and sale take place in one building: i. e., the actual handling of the materials and of the finished products, and the administrative direction of the business, that employees in the plaintiffs' position are within the statute. Fleming v. Atlantic Co., D.C., 40 F.Supp. 654, affirmed (though without discussion of the point) Walling v. Atlantic Co., 5 Cir., 131 F.2d 518; Fleming v. Swift & Co., D.C.Ill., 41 F.Supp. 825, 830, affirmed (though without discussion of this point) Walling v. Swift & Co., 7 Cir., 131 F.2d 249; Holland v. Amoskeag Machinery Co., D.C.N.H., 44 F.Supp. 884. But such decisions are inconclusive, because after A. B. Kirschbaum Co. v. Walling, Administrator, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, it would be enough if the quarters occupied by those actually in contact with the materials or the finished goods, were greater in area than those occupied by the administrative officials, as they generally are. It is only when the two groups are separated into different buildings, each cared for by a separate body of employees, that the question before us is tested; although, when that is the situation, it will obviously make no difference whether the separate building is on the same plot as the factory, or across the street, or, as here, in a different city.
The case may, therefore, be further narrowed to whether the administrative agents and employees of a producing company are themselves "engaged * * * in the production of goods for commerce." Since these are words of colloquial speech, having "fringes" of connotation, and unlike the terminology of science, deliberately fabricated for its definite outlines, it is to be expected that interpretation will vary. Nor do we necessarily arrive at the right meaning by a process of step by step examples; as though we should say that, if those who handle the milk are "engaged in production," so must be the foremen who direct them and occasionally lend a hand; and if the foremen, so must be the division superintendents, and so on. While that approach is not illegitimate, it can easily lead one astray, for the reason we have just given: that legislators, like others concerned with ordinary affairs, do not deal in rigid symbols, so far as possible stripped of suggestion, and do not expect their words to be made the starting point for a dialectical progression. We can best reach the meaning here, as always, by recourse to the underlying purpose, and, with that as a guide, by trying to project upon the specific occasion how we think persons, actuated by such a purpose, would have dealt with it, if it had been presented to them at the time. To say that that is a hazardous process is indeed a truism, but we cannot escape it, once we abandon *65 literal interpretation a method far more unreliable. In the case at bar we start with the datum that employees like the plaintiffs are "engaged in production" when they care for the quarters of those who manufacture the goods, or handle them. A. B. Kirschbaum Co. v. Walling, Administrator, supra, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638. That is because those who make or handle them are so engaged, and because the caretakers' work is "necessary" to their activities (§ 203(j), Title 29 U.S.C.A.). We are to ask ourselves whether the purpose which included caretakers in that situation, included caretakers in this. Indeed, in one respect the plaintiffs are nearer to "production" than were the employees in A. B. Kirschbaum Co. v. Walling, Administrator, supra, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; for they were employed directly by the manufacturer, instead of by the manufacturer's lessor. On the other hand they are further from "production," if production must be confined to actual contact with the raw material, or the finished goods. The Tenth Circuit thought that that further remove was enough to take them outside the statute. Rucker v. First National Bank of Miami, Okl., 138 F.2d 699, 702 (2nd Col.). But it seems to us that the circumstance that administrative officials do not come in physical contact with the goods at any stage of their production, could not have been thought relevant to the object to be attained. We can conjure up no reason that could have induced Congress, having included employees who made tenantable the quarters of artisans and shipping clerks, to exclude those who made tenantable the quarters of the president, the managers, the cashiers, superintendents and the rest.
We do not indeed mean that here, or in any other interpretation of language, the words used are not far and away the most reliable source for learning the purpose of a document; the notion that the "policy of a statute" does not inhere as much in its limitations as in its affirmations, is untenable. But we are not faced with that difficulty, for there are no words of limitation. The definition of "produced" in § 3(j) concludes with the clause: "process or occupation necessary to the production thereof." True, the Supreme Court in A. B. Kirschbaum Co. v. Walling, Administrator, supra, 316 U.S. 517, 525, 62 S.Ct. 1116, 86 L.Ed. 1638, cautioned us against pressing too literally the word "necessary," but that caution need not disturb us here. Those who direct the whole conduct of an industry both manufacture and distribution are "necessary." to "production," if anyone is "necessary." As was observed over a century ago, every process of manufacture (indeed for that matter every process by which men can affect the outside world at all) may be resolved into the movement of things in space, and it would be absurd to say that, although what the artisans do in the factory, or the dispatching clerks do upon the shipping platforms, is "necessary" to "production," the directions they receive that govern all the movements they impart, are not "necessary." We can therefore see nothing in the language used which should limit the general purpose that, as we have tried to show, comprehends the plaintiffs; and it appears to us that any hesitation to give that purpose its full scope must proceed from a vague compunction that to press the statute so far, is unduly to invade fields which Congress must have meant to leave to local regulation. We do not share that compunction. It is of course true that the whole statute invades fields which were formerly left to local regulation. That Congress did not mean to exercise its power to the full is not important; rather the question is whether we shall say that the borders of those fields which it did choose to occupy, are to be found by considering its object, or whether the realization of that object shall be truncated by irrelevant considerations.
Judgment reversed; judgment directed for the plaintiffs.
SWAN, Circuit Judge (dissenting).
I think the judgment should be affirmed. Section 3 of the Act, 29 U.S.C.A. § 203(j), provides that "for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof." In my opinion the porters, elevator operators, and night watchmen of the defendant's office building are too remotely related to "the production" of goods for commerce to be within the coverage of the Act. Rucker v. First Nat. Bank of Miami, Okl., 10 Cir., 138 F.2d 699, 702.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14685 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 25, 2012
________________________ JOHN LEY
CLERK
Agency No. A088-380-419
ZENG YU LIN,
JIAN PING GAO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 25, 2012)
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Zeng Yu Lin and her husband Jian Ping Gao (“Petitioners”), citizens of the
People’s Republic of China, seek review of the Board of Immigration Appeals’s
(“BIA”) denial of their motion to reopen their removal proceedings. After review,
we deny the petition.
I. BACKGROUND
Petitioners’ original asylum application sought relief based on their
violation of China’s one-child policy. Specifically, Petitioners alleged a well-
founded fear that one of them would be forcibly sterilized if they returned to China
because they already had two U.S.-born children.
On December 7, 2009, the Immigration Judge (“IJ”) denied all requested
relief. The IJ concluded that Petitioners had not shown that their fear of forced
sterilization was objectively reasonable. In particular, the IJ found that most of
Lin’s evidence concerning China’s family planning policy was general in nature
and that her particularized evidence did not show that Chinese nationals who had
U.S.-born children and then returned to Petitioners’ hometowns were sterilized
against their will.
On November 3, 2010, the BIA agreed with the IJ’s findings and dismissed
Petitioners’ appeal. This Court denied the petition for review. Lin v. U.S. Att’y
Gen., 438 F. App’x 771 (11th Cir. 2011) (unpublished).
2
On January 31, 2010, while Petitioners’ first appeal to this Court was still
pending, Petitioners filed a timely motion to reopen with the BIA. Petitioners’
motion to reopen (1) submitted additional evidence in support of their original
coercive family planning claim; and (2) alleged a new religious persecution claim
based on Lin’s recent conversion to Christianity and membership in the Church of
Jesus Christ of Latter Day Saints. On September 14, 2011, the BIA denied
Petitioners’ motion to reopen, concluding that some of Petitioners’ evidence pre-
dated their removal hearing and the remaining evidence did not show that
Petitioners were statutorily eligible for relief as to either claim. Petitioners filed
this petition for review.
II. DISCUSSION
An alien’s motion to reopen must “state the new facts that will be proven at
a hearing to be held if the motion is granted, and shall be supported by affidavits
or other evidentiary material.” Immigration and Nationality Act (“INA”)
§ 240B(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B); see also 8 C.F.R. § 1003.2(c)(1). The
motion to reopen “shall not be granted unless it appears to the Board that evidence
sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).
The BIA has the discretion to deny a motion to reopen because: (1) the alien
3
failed to introduce evidence that was material and previously unavailable; (2) the
alien failed to establish a prima facie case of eligibility for asylum or withholding
of removal; or (3) the BIA determined that despite the alien’s statutory eligibility
for relief, he or she is not entitled to a favorable exercise of discretion. Li v. U.S.
Att’y Gen., 488 F.3d 1371, 1374-75 (11th Cir. 2007). Because motions to reopen
are disfavored, an alien seeking to reopen removal proceedings bears a “heavy
burden” to show that the new evidence would likely change the outcome of the
case.1 Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
Here, the BIA did not abuse its discretion when it denied Petitioners’
motion to reopen. With respect to Petitioners’ coercive family planning claim,
much of their evidence pre-dated the December 2009 removal hearing, and
Petitioners have not explained why they could not have presented this material at
the removal hearing. Petitioners’ evidence that did post-date their removal hearing
(recent news articles about forced sterilizations in China) did not pertain to
individuals who, like Lin and Gao, were parents of U.S.-born children or who
resided in Lin’s or Gao’s home county or village. As the BIA noted, Petitioners
essentially sought to “raise[ ] the same unsuccessful family planning petition” they
1
We review the denial of a motion to reopen for an abuse of discretion. Zhang v. U.S.
Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
4
previously presented to the IJ and then to the BIA. The BIA, therefore, did not
abuse its discretion in concluding that this new evidence would not have changed
the result of Petitioners’ case.2
The BIA also did not abuse its discretion in determining that Lin’s new
evidence failed to establish a prima facie case of religious persecution. According
to the State Department’s 2007 International Religious Freedom Report,
Christianity is one of the five authorized religions in China, and the Chinese
government’s interference with Christian worship targets members of
unauthorized “house churches.” Similarly, Lin’s other evidence related to the
targeting of Christians who attend these unsanctioned “house churches.”3
Although Lin’s affidavit stated that she intends to practice Christianity in China, it
2
Petitioners cite several decisions that are materially distinguishable. See Zhang, 572
F.3d 1316; Jiang v. U.S. Att’y Gen., 568 F.3d 1252 (11th Cir. 2009); Li v. U.S. Att’y Gen., 488
F.3d 1371 (11th Cir. 2007). These cases involved untimely motions to reopen, such that the
petitioners were required to present evidence of changed country conditions to lift the time bar.
This Court concluded that the petitioners had presented such evidence, but did not reach the
merits of the motions to reopen. In contrast, Petitioners here filed a timely motion to reopen,
which the BIA denied on the merits.
3
Among other things, Lin submitted a January 15, 2011 letter from Lin’s aunt in China.
Lin’s aunt stated that she was baptized as a Christian thirty years ago and attended small church
meetings in the homes of fellow believers. At some point, the police discovered the “illegal
gathering” and took the congregants to the police station, where they beat and interrogated Lin’s
aunt and released her only after she signed a letter agreeing to never again attend an underground
church activity. We note, as the BIA did, that it is not clear from the letter when these events
occurred and whether this evidence was available and could have been presented at Petitioners’
removal hearing.
5
did not state that she plans to attend one of the unsanctioned house churches or
that her religious beliefs would prevent her from attending a government-
sanctioned Christian church.
Additionally, Lin’s evidence does not establish that government interference
with Christian house churches in Fujian Province, where Lin would live, currently
is so widespread as to create a well-founded fear of persecution. The evidence
indicates that the Chinese government’s treatment of house church members varies
widely from region to region. Although the 2007 Religious Freedom Report
mentions that government officials closed some house churches in Fujian Province
in 2007, most of the reports in the record identify other regions of China as being
more dangerous for house church worshipers, and many of the articles Lin
submitted detailed events that occurred three to five years before Petitioners filed
their motion to reopen. Accordingly, the BIA did not abuse its discretion in
denying the motion to reopen as to Lin’s religious persecution claim.
PETITION DENIED.
6
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550 F.Supp. 30 (1982)
Louise BROOKINS, Executive Director and Trustee Ad Litem for the Philadelphia Welfare Rights Organization, on behalf of its members, clients and itself
v.
Helen O'BANNON, Individually and in her official capacity as Secretary of the Pennsylvania Department of Public Welfare
and
Don Jose Stovall, Individually and in his official capacity as the Executive Director of the Philadelphia County Board of Assistance.
Civ. A. No. 82-2096.
United States District Court, E.D. Pennsylvania.
June 21, 1982.
Stephen Gold, Paul Bender, Philadelphia, Pa., for plaintiff.
Andrew S. Gordon, Harrisburgh, Pa., for defendant.
MEMORANDUM OPINION AND ORDER
WEINER, District Judge.
Plaintiffs filed this action seeking to declare Section 20(b) of the recently enacted Pennsylvania "Welfare Reform" statute, Act 75 of 1982, unconstitutional. Plaintiffs seek a preliminary injunction enjoining the defendants from enforcing Section 20(b) of Act 75.
The plaintiff, Philadelphia Welfare Rights Organization ("WRO"), is an organization of public assistance recipients. Its stated purpose is to work for increased welfare benefits and elimination of unfair, discriminatory and illegal welfare statutes and requirements.
On April 18, 1982, the Governor of the Commonwealth of Pennsylvania signed into law Act 75 of 1982 which contained amendments to the Public Welfare Code (Pa.Stat. Ann. tit 62). Section 10 of the Act narrowly defines eligibility by separating General Assistance (GA) recipients into "chronically *31 needy" and "transitionally needy" persons. The "chronically needy" will continue to receive public assistance, but the "transitionally needy" will receive assistance only once a year for not more than a three month period. Section 20(a) of the Act provides for at least a five percent increase in general assistance to eligible recipients, effective July 1, 1982. Section 20(b) of the Act suspends the increase if the provisions of Section 10 are prevented by court order from being implemented.
The plaintiffs argue that Section 20(b) is unconstitutional because it violates and chills plaintiffs' First Amendment rights of political expression and political association by restricting access to the federal judicial system to redress grievances against agents of the Commonwealth. WRO claims that it has not instructed its attorneys to challenge Section 10 in the courts because it would jeopardize the five percent grant increase provided for its members in Section 20(a) of the Act. WRO argues further that since some of its members will receive less welfare because of their classification under Section 10 as "transitionally needy", while others of its members will benefit from the five percent increase under Section 20(a), it is forced to choose between the two classes of members because of the sanctions set forth in Section 20(b), thereby causing WRO to lose some members.
Plaintiffs urge us to preliminarily enjoin enforcement of Section 20(b) of Act 75 of 1982. In order for the plaintiffs to be entitled to a preliminary injunction, they must show: (1) likelihood of success on the merits; (2) irreparable injury if the stay is not granted; (3) absence of substantial harm to other interested persons; and (4) absence of harm to the public interest. Constructors Ass'n of Western Pennsylvania v. Kreps, 573 F.2d 811 (3d Cir.1978); Hickey v. Commandant of the Fourth Naval District, Et Al, 464 F.Supp. 374 (E.D.Pa.1979), aff'd without opinion, 612 F.2d 572 (3d Cir.1979). "While these factors structure the inquiry, however, no one aspect will necessarily determine its outcome. Rather, proper judgment entails a `delicate balancing' of all elements." Constructors Ass'n of Western Pennsylvania v. Kreps, 573 F.2d at 815 (footnote omitted).
The main thrust of plaintiff's argument is that Section 20(b) of the Act chills plaintiffs' First Amendment rights of political expression and political association through litigation. Plaintiffs argue that the fact that the Act makes Sections 10 and 20 non-severable adds to the legislative purpose of penalizing the plaintiffs for exercising their First Amendment rights. We do not agree.
The parties have stipulated that the cost savings from Section 10 are $48,000,000.00 for the fiscal year 1982-1983, and the costs of providing the grant increase under Section 20(a) are $13,000,000.00 for the fiscal year 1982-1983. The defendants argue that Sections 10 and 20 are inextricably inter-twined components of Pennsylvania's welfare reform program; without Section 10, there will be no money for Section 20.
We find that the legislative intent in making Sections 10 and 20 non-severable was not to penalize the plaintiffs for exercising their First Amendment rights but rather to ensure that there would be funds to provide the grant increase set forth in Section 20.
The plaintiffs admit that the legislature could have constitutionally enacted Section 26 to provide that if any section of Act 75 was held unconstitutional, then the entire Act was null and void. They argue that would not have specifically penalized the plaintiffs from seeking redress in the courts. On the contrary, it would have had the same result a successful attack against Section 10 under a general non-severability provision has the same effect as the limited non-severability in the present Act. In either case, a successful attack against Section 10 makes Section 20 inoperable. Moreover, plaintiffs are no worse off than if the legislature had simply withheld enactment of the Section 20(a) benefit increase pending final resolution of any legal challenge to Section 10.
The dilemma facing WRO is that it represents a group of persons with conflicting *32 interests under the Act. That falls far short of making the non-severability of Sections 10 and 20 a constitutional issue. Certainly any member of the WRO can individually attack Section 10 without being penalized or making Section 20(b) a constitutional issue. It is only because of the divergent interests of its members that WRO feels threatened by Sections 10 and 20 of the Act. That problem does not persuade us to hold that Section 20(b) is unconstitutional. True, the "chronically needy" stand to lose their 5% increase if one of the "transitionally needy" successfully challenges Section 10 in court, but that does not constitutionally preclude the non-severability clause. Conflicting interests among members of an organization is inevitable. Merely because the Act may benefit some but not all members of the plaintiff organization does not mean that those dissatisfied with the Act's effect on them are chilled in the exercise of their First Amendment rights. They may go to court without jeopardy to their benefits. Similarly, WRO is not chilled from exercising its rights to represent its members; rather it must make a choice, unpleasant as it may be, as to its priorities, a situation not uncommon to any organization.
Since we find that plaintiffs have no likelihood to succeed on the merits, we will not examine any other factors. Since there is no other evidence which plaintiffs would introduce at a hearing for a permanent injunction, we shall deny both a temporary and permanent injunction, and enter judgment for the defendants.
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444 F.3d 659
COUNCIL ON AMERICAN ISLAMIC RELATIONS, Appellantv.Cass BALLENGER, Appellee.
No. 05-5161.
United States Court of Appeals, District of Columbia Circuit.
Argued March 17, 2006.
Decided April 11, 2006.
Jeremiah A. Denton, III argued the cause for appellant. With him on the briefs was Michael C. Zisa.
Peter D. Blumberg, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.
Before: SENTELLE, ROGERS and GRIFFITH, Circuit Judges.
Opinion for the Court filed PER CURIAM.
1
PER CURIAM.
2
In this defamation action, we consider whether a congressman acted "within the scope of employment" when he discussed his marital status in his office, during regular business hours, in response to a reporter's inquiries. The District Court held that he did, and we agree. We therefore affirm the District Court's conversion of the case into an action against the United States pursuant to the procedures set forth in the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("Westfall Act"), 28 U.S.C. § 2679, and its dismissal of the suit for lack of subject matter jurisdiction because the United States has not waived its sovereign immunity. See id. § 2680(h).
I. Factual Background
3
Cass Ballenger served as United States Representative for North Carolina's Tenth Congressional District from 1986 to 2005. In August 2003, the Charlotte Observer, a newspaper of wide circulation in Ballenger's district, profiled Ballenger in an article describing his background, interests, and legislative stances. The piece made no mention, however, of Ballenger's recent separation from his wife. After the article was published, a reader contacted its author, one Tim Funk, to ask why it was silent on Ballenger's marital status. Believing that at least some of his readership was interested in the separation, Funk decided to address it when he next wrote a story on Ballenger.
4
That opportunity arose about a month later. On September 30, 2003, Funk contacted Ballenger's office seeking information for a new article to be published the following week. Ballenger was unavailable, so his chief of staff, Dan Gurley, fielded the call. The conversation lasted about thirty minutes, taking place during regular business hours while Gurley was working in Ballenger's office suite on Capitol Hill. It focused on legislative issues — particularly trade and textiles — that were of interest to Congressman Ballenger and his constituents. Near the end of the interview, Funk asked about Ballenger's separation from his wife. Gurley confirmed that the separation had occurred, adding that it was amicable.
5
After the interview, Gurley related the substance of the conversation to Ballenger, who decided to follow up with Funk "for the following reasons":
6
I pride [myself] on my reputation in my district as a straight-talking businessman rather than a politician, and I was acutely aware that my ability to continue advancing my legislative agenda in Congress and to effectively represent my district depended on the continued trust and respect of my constituents. I also knew that reports about my marital status would be of concern in my socially conservative district. Moreover, as a veteran member of the House, I was acutely aware that a public scandal related to my marital status could undercut my ability to carry out these responsibilities, both in the near-term and in the long-term if it were to become an issue in a future re-election campaign. (At that time, I had not yet determined whether I would seek reelection in November 2004 . . . .) In short, I determined to clarify with Mr. Funk the state of my family situation in order to defuse an issue that could affect my representational responsibilities to my district and/or inhibit my long-term ability to continue advancing my legislative agenda in Congress.
7
App. 23-24.
8
With these objectives in mind, Ballenger called Funk from his congressional office during regular business hours on October 1, 2003. During the fifteen-minute conversation, Ballenger elaborated on the reasons why he and his wife had separated, chief among them being his wife's dissatisfaction with life in Washington, D.C. In particular, Ballenger explained that his wife became increasingly uncomfortable living across the street from the headquarters of the Council on American-Islamic Relations ("CAIR") after the September 11th attacks. During the course of this explanation, Ballenger stated that CAIR was the "fund-raising arm for Hezbollah." The United States Department of State has designated Hezbollah a foreign terrorist organization pursuant to 8 U.S.C. § 1189.
9
Ballenger's comment was republished in newspapers and electronically throughout the United States. CAIR, a nonprofit NGO whose stated goal is to promote a positive image of Islam in the United States and empower the American Muslim community, sued Ballenger for defamation and slander about two months later.
II. Legal Background
A. The Westfall Act
10
In Westfall v. Erwin, the Supreme Court held that federal officials are generally immune from state tort lawsuits for money damages if their conduct was both within the scope of employment and discretionary in nature. 484 U.S. 292, 299, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988). Congress apparently deemed this standard too exacting. It swiftly enacted the Westfall Act, which eliminates Westfall's "discretionary" requirement and prescribes "that federal employees' immunity from state tort lawsuits for money damages hinges exclusively on whether they were acting within the scope of employment during the alleged incident." Haddon v. United States, 68 F.3d 1420, 1422-23 (D.C.Cir. 1995). In pertinent part, the Act provides:
11
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
12
28 U.S.C. § 2679(d)(1) (emphasis added).
13
"[T]he Attorney General's certification that a federal employee was acting within the scope of his employment . . . does not conclusively establish as correct the substitution of the United States as defendant in place of the employee." Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995). But it does constitute prima facie evidence that the employee was acting within the scope of his employment. See Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C.Cir.1994). "[A] plaintiff challenging the government's scope-of-employment certification bears the burden of coming forward with specific facts rebutting the certification." Stokes v. Cross, 327 F.3d 1210, 1214 (D.C.Cir.2003) (internal quotation marks and citation omitted). Once a court determines that the federal employee acted within the scope of employment, the case is, inter alia, restyled as an action against the United States that is governed by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. See Haddon, 68 F.3d at 1423.
B. D.C. Scope-of-Employment Law
14
Under the Westfall Act, courts apply the respondeat superior law in the state in which the alleged tort occurred. See Stokes, 327 F.3d at 1214. District of Columbia law, which applies in this case, follows the RESTATEMENT (SECOND) OF AGENCY (1958) ("Restatement") in defining scope of employment. Moseley v. Second New St. Paul Baptist Church, 534 A.2d 346, 348 n. 4 (D.C.1987). The Restatement provides:
15
(1) Conduct of a servant is within the scope of employment if, but only if:
16
(a) it is of the kind he is employed to perform;
17
(b) it occurs substantially within the authorized time and space limits;
18
(c) it is actuated, at least in part, by a purpose to serve the master, and
19
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
20
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
21
Restatement § 228. "[T]he test for scope of employment is an objective one, based on all the facts and circumstances." Weinberg v. Johnson, 518 A.2d 985, 991 (D.C. 1986) ("Weinberg"). Although scope of employment is generally a question for the jury, it "becomes a question of law for the court, however, if there is not sufficient evidence from which a reasonable juror could conclude that the action was within the scope of the employment." Boykin v. District of Columbia, 484 A.2d 560, 562 (D.C.1984) (collecting cases).
22
Because CAIR does not dispute that Ballenger made the statement in question while in his office during work hours — if indeed there are such limitations on a Representative's work — and because there are no allegations of force, only the first and third of section 228(1)'s elements are at issue in this case. Consistent with the Restatement's use of the conjunctive, both remaining prongs must favor Ballenger if we are to find that he acted within the scope of employment. See Haddon 68 F.3d at 1424 (citations omitted).
III. The District Court's Decision
23
CAIR sued Congressman Ballenger for defamation in the United States District Court for the District of Columbia on December 2, 2003. On February 5, 2004, Mark E. Nagel, then Civil Chief of the U.S. Attorney's Office for the District of Columbia, certified that Ballenger acted within the scope of his employment as an employee of the United States when he made the allegedly defamatory statement. See 28 U.S.C. § 2679(d); 28 C.F.R. § 15.3(a). Based on this certification, the United States moved to dismiss on the theory that its name should be substituted for Ballenger's and that the case should be dismissed as barred by sovereign immunity.
24
Both parties briefed the scope of employment issue and conducted limited discovery. On March 29, 2005, the District Court ruled that Ballenger was acting within the scope of his employment when he uttered the statement in question. "To say the least," the court wrote, "speaking to the press is a critical part of the expected and authorized conduct of a United States Congressman." Relying on Ballenger's affidavit, the court also found that he "was acting, at least in part, for the purpose of preserving his effectiveness" as a congressman. Accordingly, it upheld the Government's certification, concluding that the United States was properly substituted as a defendant and that the case should be dismissed for lack of jurisdiction because the United States had not waived sovereign immunity under the FTCA. CAIR filed this appeal.
IV. Legal Analysis
25
CAIR argues that Ballenger's statement fell outside the scope of his employment because it was neither conduct "of the kind he is employed to perform," Restatement § 228(1)(a), nor was it "actuated, at least in part, by a purpose to serve the master," id. § 228(1)(c). The District Court's legal conclusion that Ballenger was acting within the scope of his employment is subject to de novo review. See Hoston v. Silbert, 681 F.2d 876, 879 (D.C.Cir.1982).
26
Under section 228(1)(a), CAIR maintains that Ballenger's allegedly defamatory statement itself was not conduct of the kind he is employed to perform. This argument rests on a misunderstanding of D.C. scope-of-employment law (not to mention the plain text of the Westfall Act), which directs courts to look beyond alleged intentional torts themselves. The proper test has two disjunctive parts: "To qualify as conduct of the kind he was employed to perform, the [defendant's] actions must have either been `of the same general nature as that authorized' or `incidental to the conduct authorized.'" Haddon, 68 F.3d at 1424 (quoting Restatement § 229) (emphasis added). CAIR's argument ignores the latter half of the test. If we accepted its position, numerous D.C. agency-law decisions would make no sense. See, e.g., Johnson v. Weinberg, 434 A.2d 404, 409 (D.C.1981) ("Johnson") (holding that a reasonable juror could find that a laundromat employee acted within scope of employment when he shot a customer during a dispute over missing shirts); Lyon v. Carey, 533 F.2d 649, 652 (D.C.Cir.1976) (holding that jury reasonably found that a mattress deliveryman acted within scope of employment when he assaulted and raped a customer following a delivery-related dispute); see also Brown v. Argenbright Sec., Inc., 782 A.2d 752, 758 (D.C. 2001) (rejecting as "too broad" a rule that sexual assaults are categorically outside the scope of employment).
27
The proper inquiry in this case "focuses on the underlying dispute or controversy, not on the nature of the tort, and is broad enough to embrace any intentional tort arising out of a dispute that was originally undertaken on the employer's behalf." Weinberg, 518 A.2d at 992 (citations and internal quotation marks omitted). Here, the "underlying dispute or controversy" was the phone call between Ballenger and Funk discussing the marital separation. The appropriate question, then, is whether that telephone conversation — not the allegedly defamatory sentence — was the kind of conduct Ballenger was employed to perform. Cf. Haddon, 68 F.3d at 1424-25 (the touchstone of § 228(1)'s first prong is whether "employees' intentional torts . . . arise directly from the performance of their authorized duties"); accord Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27, 29-31 (D.C.1979).
28
We hold that it was. Speaking to the press during regular work hours in response to a reporter's inquiry falls within the scope of a congressman's "authorized duties." See, e.g., Operation Rescue Nat'l v. United States, 975 F.Supp. 92, 108-09 (D.Mass.1997) (A senator's allegedly defamatory "response to questions posed by the media" immediately following a fundraiser falls within the scope of his employment.), aff'd, 147 F.3d 68, 71 (1st Cir.1998). Cognizant that under D.C. law, this prong is "liberally construe[d]," Stokes, 327 F.3d at 1216 (citations omitted), we hold that Ballenger's allegedly defamatory statement was incidental to the kind of conduct he was employed to perform.
29
CAIR resists this conclusion on two grounds. First, it insists that Ballenger's statement was purely private, unrelated to any matter of public concern. The circumstances of the conversation belie this suggestion. The Charlotte Observer and at least some subset of Ballenger's constituents were interested in the separation. Given this level of public interest, we find CAIR's absolutist view at odds with reality. Moreover, it is telling that Funk felt at liberty to ask Gurley — rather than Ballenger himself — about the marital separation.
30
CAIR also asserts that Ballenger's conversation was "simply too remote from any congressional duty" to fall within the scope of employment. CAIR would presumably have us limit a congressman's appropriate conduct to core legislative functions such as drafting and lobbying for legislation. We reject that view as far too cramped. "[T]he legislative duties of Members of Congress are not confined to those directly mentioned by statute or the Constitution. Besides participating in debates and voting on the Congressional floor, a primary obligation of a Member of Congress in a representative democracy is to serve and respond to his or her constituents." Williams v. United States, 71 F.3d 502, 507 (5th Cir.1995) (holding that a congressman's allegedly defamatory remarks in an interview were within the scope of employment); Chapman v. Rahall, 399 F.Supp.2d 711, 714 (W.D.Va.2005) (A congressman's "remarks, made to the media to ensure his effectiveness as a legislator, can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of his job as a legislator." (internal quotation marks and citations omitted)); cf. United States v. Brewster, 408 U.S. 501, 512, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972) (describing as "entirely legitimate" a "wide range" of "activities other than purely legislative activities," including "`news letters' to constituents, news releases, and speeches delivered outside the Congress").
31
Turning to section 228(1)(c), CAIR claims that Ballenger's statement was not "actuated, even in part, to serve the master." As with the first prong, CAIR faces an uphill battle: The Restatement's text reveals that even a partial desire to serve the master is sufficient. Restatement § 228(1)(c). In his affidavit, Ballenger proffered several reasons for discussing his separation. He wanted to maintain the "continued trust and respect of [his] constituents" in order to preserve his "ability to carry out [his legislative] responsibilities, both in the near-term and in the long-term." App. 23-24. Put another way, Ballenger followed up with Funk to "defuse an issue that could affect [his] representational responsibilities to [his] district and/or inhibit [his] long-term ability to continue advancing [his] legislative agenda in Congress." Id. at 24. We agree with the District Court that Ballenger's conduct was motivated — at least in part — by a legitimate desire to discharge his duty as a congressman. See Rahall, 399 F.Supp.2d at 715 (A congressman's "remarks, made to the media to ensure his effectiveness as a legislator, can `fairly and reasonably be deemed to be an ordinary and natural incident or attribute' of his job as a legislator." (citation omitted)).
32
A Member's ability to do his job as a legislator effectively is tied, as in this case, to the Member's relationship with the public and in particular his constituents and colleagues in the Congress. In other words, there was a clear nexus between the congressman answering a reporter's question about the congressman's personal life and the congressman's ability to carry out his representative responsibilities effectively. To that extent, "service in the United States Congress is not a job like any other." United States v. Rostenkowski, 59 F.3d 1291, 1312 (D.C.Cir.1995).
33
Finally, CAIR protests that a holding in favor of Ballenger "would immunize many federal employees for any gratuitous slander in the context of statements of a purely personal nature." It does no such thing. This case, like every judicial decision, cannot be divorced from its facts. To be sure, it involves a statement by a congressman to the press. But our ratio decidendi necessarily depends on the context in which the statement was made. See Karl Llewellyn, THE BRAMBLE BUSH 72-76 (Oceana Publications, 1981) (1930) (Those "who think that precedent produces or ever did produce a certainty that did not involve matters of judgment and of persuasion . . . simply do not know our system of precedent in which they live."). We lack the power to render an opinion on any case or controversy not properly before us.
34
Having determined that Ballenger acted within the scope of his employment when he made the remark in question, we hold that the proper defendant under the Westfall Act is the United States. Sovereign immunity bars suits against the United States absent an explicit and unequivocal waiver. See Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 261, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999). CAIR points to no such waiver, and we have not found one. See 28 U.S.C. § 2680(h) (excepting "[a]ny claim arising out of . . . libel [or] slander" from the scope of the federal government's waiver of sovereign immunity in the FTCA, id. § 1346(b)). Therefore, informed by the Westfall Act, we agree with the District Court that CAIR's case is barred by sovereign immunity.
V. Conclusion
35
For the foregoing reasons, we affirm the District Court's dismissal of the complaint for lack of subject matter jurisdiction.
36
So ordered.
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108 F.3d 1375
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Gregory A. WILLIAMS, Plaintiff-Appellant,v.E. Montgomery TUCKER, Chairman, Virginia Parole Board,Defendant-Appellee.
No. 96-7127.
United States Court of Appeals, Fourth Circuit.
Submitted Feb. 27, 1997.Decided March 11, 1997.
Gregory A. Williams, Appellant Pro Se.
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
PER CURIAM:
1
Appellant appeals from the district court's order dismissing his 42 U.S.C. § 1983 (1994) complaint without prejudice to his right to file a petition for a writ of habeas corpus. We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. Williams v. Tucker, No. CA-96-453-2 (E.D.Va. July 2, 1996). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED
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210 P.3d 750 (2007)
McKIBBINS (ANTONIO)
v.
STATE.
No. 46098.
Supreme Court of Nevada.
March 7, 2007.
Decision without published opinion. Affirmed.
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305 F.2d 48
Edward W. ANSPACH, Appellant,v.UNITED STATES of America, Appellee.Walter F. TURNER, Appellant,v.UNITED STATES of America, Appellee.
No. 6720.
No. 6721.
United States Court of Appeals Tenth Circuit.
June 27, 1962.
Certiorari Denied October 8, 1962.
See 83 S.Ct. 46.
Arthur Warner, Los Angeles, Cal. (S. Ward Sullivan, Beverly Hills, Cal., was with him on the brief), for Edward W. Anspach.
John J. Dunn, Denver, Colo., for Walter F. Turner.
Yale Huffman, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty., was with him on the brief), for appellee.
Before LEWIS and BREITENSTEIN, Circuit Judges, and RITTER, District Judge.
LEWIS, Circuit Judge.
1
The critical question presented by this appeal is whether evidence obtained by the intentional eavesdropping of government agents, unaccompanied by physical trespass upon constitutionally protected premises and unaided by the use of electronic or mechanical device, is admissible in federal prosecutions. Appellants contend broadly that the Fourth Amendment is a bar to the use of evidence obtained by eavesdropping and more specifically that the Fourth Amendment prohibits "the revelation of the intimacies of one's castle (when) supported by some slight proof of conduct on the part of a government officer that is not entirely `cricket.'" We find merit to neither contention as applied to the facts in the cases at bar.
2
Appellants were indicted under a thirteen-count indictment alleging the mailing of separate pieces of mail in the perpetration of a scheme to defraud in violation of 18 U.S.C. § 1341.1 They were convicted and sentenced to two-year sentences on twelve of the counts to run concurrently.
3
It was charged and proved to the jury's satisfaction that the appellants entered a scheme to organize and incorporate a small business loan service company, known as Beneficial Business Loan Service Corporation, hereafter referred to as BBLSC. By direct mail to small business owners, BBLSC represented that it had money available for loans which were not obtainable at local banks; that an advance fee was necessary to initiate processing of the desired loan, but that if the loan application were not accepted, the entire fee would be returned. Thereafter, salesmen were employed and instructed to offer false and misleading information at variance with the carefully worded written contract, to the effect that BBLSC had untold sums of money at its disposal; that over ninety percent of the applications of business owners which were accepted by the company had resulted in the conclusion of loans; that the advance fee paid by the business owner was to protect BBLSC in the event that the business owner refused to accept the loan once his application was processed and the loan obtained for him. The salesmen were equipped with a list of lenders, the names of which were merely copied from the telephone book; a letter from the Better Business Bureau, the reproduction and use of which was expressly forbidden; some false photostatic copies of letters of rejections and returned checks.
4
Although the corporation grew to national proportions opening branch offices in various parts of the country, there is no evidence of the completion of any loans. There is a great deal of evidence of instances where the company accepted the advance fee and never returned it nor completed the loan. When complaints arrived at the company's office, letters were sent stating that the salesmen had no authority to vary the terms of the printed contracts and again assuring the would-be borrowers that they would receive their loans.
5
The sufficiency of the evidence is not now questioned and claim of error is limited to the admissibility of a portion of the testimony of government witnesses Marshall, Johnson and Perkins. Marshall, a postal inspector, testified that he had engaged a hotel room in California by prearrangement with one Russell, a former employee of BBLSC. Russell took an adjoining room where he had arranged a meeting with appellant Anspach. Two doors separated the adjoining rooms and it was possible for the witness to overhear much of the conversation in Russell's room by opening the door on the one side and sitting close to the door opening on Russell's room. Russell made demands upon Anspach for money due him, refusing to deliver certain files of loan applicants until the money was paid. The witness testified:
6
"A. I heard Mr. Russell, whose voice I knew, tell Mr. Anspach the contracts were there in Los Angeles, these client contracts which had been down at Morgan Engineering Company, and were shipped back.
7
"Some discussion went on that I didn't hear, and I heard Mr. Anspach laugh very loudly and jovially, and say, `You just keep them. This thing couldn't have worked out better for me if I had planned it. This is just what I want. You just keep the contracts.'
8
"And I heard him laugh when he said that. He said, `Russ, it couldn't have been better for me if it was planned.'"
9
The interpretive impact of the Fourth Amendment guaranteeing the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" is undoubtedly now in the process of judicial modernization found necessary by changing conditions. See Lanza v. New York, 82 S.Ct. 1218. Traditionally the concept of an invasion upon the right of privacy was premised within the theories of the law of trespass. Thus, the earlier cases refused to extend the meaning of "persons, houses, papers, and effects" or to apply "searches and seizures" to forbid hearing and sight. Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, left the problem of telephone wire tapping to the interdiction of subsequent legislation. And, although the Federal Communications Act outlawed the evidence obtained by wire tapping, the use of a detectaphone applied to the wall of an adjoining room to pick up one side of a telephone conversation violated neither the Act nor the Fourth Amendment, Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322.
10
Considerations of the value of the right of privacy inspired thought-provoking dissents by Justice Brandeis in Olmstead and Justice Murphy in Goldman. And appellants would read the philosophy of these dissents into the rationale of the recent cases of Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, where the Court reversed a judgment of conviction where evidence was obtained through an electronic device which penetrated the wall. Under the circumstances of an actual physical intrusion upon the defendant's premises, the Court refused to re-examine its holdings in Goldman and On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, summarizing them as standing for the proposition that evidence obtained by eavesdropping is admissible where "the eavesdropping had not been accomplished by means of an unauthorized physical encroachment within a constitutionally protected area." Silverman v. United States, 365 U.S. at p. 510, 81 S.Ct. at p. 682.
11
Although the "spike mike" of the Silverman case may have refined some-what the definition of physical intrusion, courts of appeal which have considered Silverman have found no vacillation in the guiding principle. United States v. Kabot, 2 Cir., 295 F.2d 848; Carnes v. United States, 5 Cir., 295 F.2d 598; Todisco v. United States, 9 Cir., 298 F.2d 208. The present case offers little reason to explore the ramifications of slight physical intrusion in operation in Silverman, for no electronic device was used and the eavesdropping was accomplished without resort to any physical intrusion upon the domain of another. If the use of this evidence were held not permissible, the scope of the protection of the Fourth Amendment, which the Supreme Court has long struggled to define, would be broadened to amorphism. Eavesdropping in any form carries with it the stigma of impoliteness and is not "cricket" in the realm of social intercourse. But the prevention and detection of crime is not a polite business and we see no need or justification for reading into the Fourth Amendment a standard of conduct for law enforcement officials which would leave society at the mercy of those dedicated to the destruction of the very freedoms guaranteed by the Constitution. The "pursuit of happiness" referred to by Justice Brandeis in Olmstead can be destroyed by idealistic theory that shuns the deadly realism of crime. We do not consider the conduct of the agents in the case at bar to violate the compulsion of the Fourth Amendment or, indeed, to be even subject to criticism
12
Appellants also complain that the testimony of the witnesses Johnson and Perkins introduced evidence of misconduct on the part of appellant Turner unrelated to the charges of the indictment. Johnson and Perkins were not named as victims of the fraudulent scheme in the indictment, but their testimony was that they had been contacted by Turner after mailing to BBLSC the inquiry solicitation and showed Turner's active participation in offering false and fraudulent inducements. The evidence was within the charge of the indictment relating a scheme to defraud certain named victims and "divers other persons to the grand jury unknown"; the testimony cannot be said to have been a surprise to the appellants, Webb v. United States, 10 Cir., 191 F.2d 512; and the evidence was important to the prosecution to show the intent and motive of Turner, Harris v. United States, 6 Cir., 13 F.2d 849; Roper v. United States, 10 Cir., 54 F.2d 845.
13
Affirmed.
14
RITTER, District Judge, dissents.
Notes:
1
"Whoever, having devised or intended to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both."
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422 F.2d 165
IDECO DIVISION OF DRESSER INDUSTRIES, Inc., Plaintiff-Appellee,v.CHANCE DRILLING COMPANY, Inc., et al., Defendant, SmallBusiness Administration, Impleaded Defendant-Appellant.
No. 27151.
United States Court of Appeals, Fifth Circuit.
Feb. 13, 1970.
Anthony J. P. Farris, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., William D. Ruckelshaus, Asst. Atty. Gen., Leonard Schaitman, Robert V. Zener, Daniel Joseph, Attys., Dept. of Justice, Washington, D.C., for defendant-appellant.
J. Daffan Caldwell, William R. Choate, John L. McConn, Jr., Butler, Binion, Rice, Cook & Knapp, Sam S. Minter, Minter & Mahon, Houston, Tex., for plaintiff-appellee.
Before GEWIN, THORNBERRY and AINSWORTH, Circuit Judges.
GEWIN, Circuit Judge.
1
This interpleader action concerns the competing claims of the Small Business Administration (SBA) and Ideco Division of Dresser Industries (Ideco) to a sum of money ($16,869.45) owed by Gulf Leaseholds, Inc. (Gulf) to Chance Drilling Company (Chance). Gulf initiated these proceedings in a Texas state court and SBA removed the case to the United States District Court for the Southern District of Texas establishing jurisdiction under the provisions of 28 1442(a) (1). The district court entered a judgment for Ideco and SBA brings this appeal. We affirm.
2
The record reveals the following facts: On September 22, 1960, the Bank of Texas, in participation with SBA, loaned Chance $350,000. SBA supplied ninety percent of the loan, and Chance's note for the full amount was subsequently assigned to SBA. In October of the following year Chance entered into a drilling contract with Gulf and pursuant thereto immediately undertook to drill a well for the production of oil and gas on a leasehold owned by Gulf and others. Gulf's indebtedness to Chance arose as a result of work performed by Chance under this contract.
3
In December 1961, while drilling for oil on Gulf's leasehold, Chance's drilling rig was damaged by fire. Chance obtained parts and service for the on-site repair of the rig from Ideco. In May 1962, because Chance had failed to pay for these repairs, Ideco notified Chance and the owners of the oil and gas leasehold that by virtue of Texas law it claimed a lien of $14,477.35 plus interest on the leasehold, its oil and gas production, and the well machinery and pipelines. Ideco filed suit in September 1963 to foreclose the lien, and Gulf was named as a party defendant. Gulf, aware of Chance's indebtedness to both SBA and Ideco, filed a bill of interpleader, paid $16,869.45 which it owed Chance into the registry of the court, and impleaded SBA. After the case was removed to federal district court by SBA, Ideco filed a motion for a summary judgment. SBA objected on the ground that a material question of fact remained to be determined, i.e., whether the federal priority statute, 31 U.S.C. 191, quoted hereafter, applied to give SBA's claim preference over all others. Ideco responded by admitting that it had been insolvent since December 25, 1960, and both parties then requested a summary judgment.
4
The district court made the following findings: (a) 31 U.S.C. 191 became applicable in the instant case on December 27, 1962 when the debtor committed an act of bankruptcy by allowing a judgment against it to remain unsatisfied for thirty days.1 (b) Ideco perfected its lien as prescribed under Texas law on July 6, 1962. (c) Under Texas law, perfecting the lien divested Chance of any property interest in the debt owed to it by Gulf.2 The court concluded that since the priority statute only gives SBA a preference in payment out of the insolvent debtor's property and since Chance's property interest in the debt had been divested by state law almost six months before the priority statute became applicable, the statute would not give SBA a priority in payment out of funds which represent the debt. On this appeal, SBA contends that the scope of an insolvent debtor's property interests at the time when the priority statute becomes applicable should be defined by federal rather than state law.
Title 31 U.S.C. 191 provides:
5
Whenever any person indebted to the United States is insolvent, * * * the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.
6
This section is often referred to as Section 3466 R.S. and comes to us without significant modification from Section 5 of the Act of March 3, 1797, c. 20, 1 Stat. 515.3 The priority claimed by the United States rests exclusively on this statute. It is important to note at the outset that this statute does not create a lien in favor of the United States.4 Where applicable, the statute merely gives the United States a preferred position in the distribution of an insolvent debtor's property.5 The issue before us in the instant case is whether state law or federal law shall define what is and what is not the property of an insolvent debtor.
7
The district court relies heavily on the Supreme Court's decisions in Aquilino v. United States and United States v. Durham Lumber Co.6 in resolving this issue in favor of state law. Both Aquilino and Durham involve the competing claims of the United States (under a federal tax lien)7 and subcontractors (asserting state-law liens) to a sum of money owed by a landowner to a contractor under a general construction contract. The tax lien asserted by the United States extended to the 'property and rights to property' of the taxpayer-contractors. The issue in both cases was whether federal or state law should define the contractors' 'property and rights to property.' The Court held that the tax lien attached to the contractors' property interests as defined by state law. This conclusion was based on the well-settled rule that the federal revenue act creates no property rights but merely attaches federally defined consequences to property rights which are defined by state law.8 Application of this principle in Durham resulted in a decision favoring the subcontractor since North Carolina law provides that once a subcontractor perfects a lien, the contractor has no property interest in the money owed to him by the landowner except to the extent that it exceeds the amount necessary to pay the subcontractor-lienholders. The Court remanded Aquilino for a determination of the contractor's state-law property interest in the money owed by the landowner.
8
SBA contends that the district court erroneously relied on the Aquilino-Durham rationale in deciding the instant case. Those cases should be distinguished from the instant case, according to SBA, because they do not involve the federal priority statute. SBA emphasizes two respects in which the tax lien statute under consideration in Aquilino and Durham differs from the priority statute. First, the tax lien statute applies to the property of solvent debtors and the priority statute applies to the property of insolvent debtors. Second, the priority statute gives an unqualified preference in payment out of a debtor's assets while the tax lien must vie with other claims.
9
Assuming that the differences suggested by SBA are valid, we nevertheless find it difficult to determine precisely how they militate against applying the Aquilino-Durham rationale in the instant case. In Aquilino, Chief Justice Warren persuasively stated the Court's reasons for rejecting the government's contention that federal law should define the debtor-taxpayer's property interests:
10
It is suggested that the definition of the taxpayer's property interests should be governed by federal law, although supplying the content of this nebulous body of federal law would apparently be left for future decisions. We think that this approach is unsound because it ignores the longestablished role that the States have played in creating property interests and places upon the courts the task of attempting to ascertain a taxpayer's property rights under an undefined rule of federal law. It would indeed be anomalous to say that the taxpayer's property and rights to property included property in which, under the relevant state law, he had no property interest at all.9
11
SBA is apparently arguing that the Court's rationale should not be applied in the instant case because the unqualified priority established by 31 U.S.C. 191 indicates a stronger congressional policy to protect the treasury than is evidenced by the tax lien statute, and that a 'federal law of property rights' is necessary to implement this policy. It is important to understand that SBA is suggesting that debts owed the United States be satisfied by expropriating property to which the insolvent debtor has no right, title or interest under state law. We are not convinced that the concern expressed by Congress in the priority statute demands such a drastic step. Furthermore, if the action urged by SBA were necessary to protect public monies, it seems reasonable to assume that Congress would have specifically adopted such a plan at some point in the one hundred seventy year history of the priority statute.
12
In conclusion, we are convinced that the policy underlying the priority statute is not subverted by limiting the United States in the collection of debts under 31 U.S.C. 191 to the insolvent debtor's property as defined by state law. Of course, our holding here would not withstand congressional direction to the contrary. On the other hand, we are extremely reluctant to begin the development of a 'federal common law of property' without an explicit congressional mandate.
13
Affirmed.
1
Although the debtor was insolvent in December 1960, the district court correctly found that this fact alone is not sufficient to give SBA the benefit of the priority statute. Justice Story, writing in Conard v. Atlantic Insurance Company of New York, 26 U.S. 386, 7 L.Ed. 189, 212 (1828) stated:
(A) mere inability of the debtor to pay all his debts is not insolvency within the statute; but it must be manifested in one of the three modes pointed out in the explanatory clause (of the statute).
In United States v. Oklahoma, 261 U.S. 253, 262, 43 S.Ct. 295, 298, 67 L.Ed. 638 (1922) the Court outlined the 'three modes' as follows: In order to give the priority specified in Section 3466, there
must be a case of an insolvent debtor who makes a voluntary assignment of his property, or a case in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, or a case in which an act of bankruptcy is committed.
See, City of Sherman v. United States, 400 F.2d 373 (5th Cir. 1968); W. T. Jones & Co. v. Foodco Realty, Inc., 318 F.2d 881 (4th Cir. 1963).
The district court found that Chance committed an act of bankruptcy within the meaning of 11 U.S.C. 21(a)(3) by failing to discharge within thirty days a judgment entered on November 27, 1962.
2
We are of the opinion that the district court correctly interpreted Texas law. In Green v. H. E. Butt Foundation, 5 Cir., 217 F.2d 553, 554 (1954), this court stated:
Under the lien laws of Texas, the H. E. Butt Foundation was relieved of its indebtedness to the contractor as soon as the above-mentioned liens were filed and perfected. Such liens seize and appropriate for the benefit of the lienors any money in the hands of the owner that is due or may become due and payable to the contractor.
See Texas Civil Statutes, Articles 5473, 5474, 5476 and 5476a, 5476b & 5476c; Stanfill v. Penniman Gravel and Material Co., 27 S.W.2d 135 (Tex.Com.App.1930); Wilson v. Sherwin-Williams Paint Co., 110 Tex. 156, 217 S.W. 372 (1919).
3
As originally enacted, the priority statute differs from its present form (31 U.S.C. 191) only in the wording of the first clause which provides:
And be it further enacted, that where any revenue officer, or other person, hereafter becoming indebted to the United States, by bond or otherwise, shall become insolvent * * *.
This clause was interpreted by Chief Justice Marshall in United States v. Fisher, 6 U.S. 358, 2 L.Ed. 304 (1804) to have the same meaning as the corresponding phrase in 31 U.S.C. 191 (1964).
4
Beaston v. Farmers' Bank of Delaware, 37 U.S. 102, 9 L.Ed. 1017, 1029 (1838)
5
See United States v. Texas, 314 U.S. 480, 484, 62 S.Ct. 350, 86 L.Ed. 356 (1941); Beaston v. Farmers' Bank of Delaware, 37 U.S. 102, 9 L.Ed. 1017 (1838); Conard v. Atlantic Ins. Co., 26 U.S. 386, 7 L.Ed. 189 (1828); Thelusson v. Smith, 15 U.S. 396, 4 L.Ed. 271, 278 (1817); United States v. Fisher, 6 U.S. 358, 2 L.Ed. 304 (1804); United States v. Haddix & Sons, Inc., 249 F.Supp. 88 (E.D.Mich.1965); United States v. Menier Hardware No. 1, Inc., 219 F.Supp. 448 (W.D.Tex.1963)
6
363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960); 363 U.S. 522, 80 S.Ct. 1282, 4 L.Ed.2d 1371 (1960)
7
In Aquilino, the tax lien was established by Sections 3670 and 3671, Internal Revenue Code of 1939. In Durham, the lien was imposed under Sections 6321 and 6322, Internal Revenue Code of 1954. These sections are identical
8
Morgan v. Commissioner of Internal Revenue, 309 U.S. 78, 60 S.Ct. 424, 84 L.Ed. 585 (1939) and United States v. Bess, 357 U.S. 51, 78 S.Ct. 1054, 2 L.Ed.2d 1135 (1958) are cited by the Court in support of this proposition
9
363 U.S. 509, 513 n. 3, 80 S.Ct. 1277 (1960). Chief Justice Warren, speaking to the same point, made the following comment in Durham:
This case points up the distinction we drew in Aquilino. The facts here show how it simply begs the question to suggest that the principle of the lien-priority cases is somehow subverted or evaded by recognizing that what constitutes the taxpayer's property in the first place is a question of state law. The facts show, too, that it does not promote clarity to substitute, for the property interests created by state law, a rule of federal property law, the main feature of which seems to be an inquiry into what the consequences would be if state law were different from what it in fact is. 363 U.S. 522, 526 n. 4, 80 S.Ct. 1282 (1960).
The Aquilino-Durham rationale was reaffirmed in Meyer v. United States, 375 U.S. 233, 84 S.Ct. 318, 11 L.Ed.2d 293 (1963), which concerned the applicability of the tax lien statute to certain property of a deceased taxpayer. In that case, the Court refused to apply the equitable principle of 'marshaling' to reach the proceeds of a life insurance policy where state law specifically exempted insurance benefits of a widow from the claim of creditors of her husband's estate. See also, United States v. Yazell, 334 F.2d 454 (5th Cir. 1964); affirmed 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966).
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247 So.2d 399 (1971)
Elliot Ray ROSS, Plaintiff-Appellant,
v.
Dr. Charles V. HATCHETTE et al., Defendants-Appellees.
No. 3509.
Court of Appeal of Louisiana, Third Circuit.
April 23, 1971.
*400 W. Monroe Stephenson, New Orleans, for plaintiff-appellant.
Hall, Raggio, Farrar & Barnett, Lake Charles, for defendants-appellees.
Before SAVOY, HOOD and CULPEPPER, JJ.
On Motion to Remand
PER CURIAM.
The defendants-appellees have filed a motion to remand the instant case to the district court for the purpose of traversing the order of the district judge allowing plaintiff-appellant to prosecute this action without payment of costs or the giving of any bond for costs.
By order of court dated December 10, 1962, plaintiff was allowed to file the instant suit in forma pauperis. On January 25, 1971, written reasons for judgment were assigned; and on February 16, 1971, formal judgment was signed. On February 23, 1971, an order was signed by the district judge allowing plaintiff to appeal this case. Nothing is mentioned in the order about the furnishing of a bond.
In Oldham v. Hoover, 140 So.2d 417 (La.App. 1 Cir. 1962), the court said:
"Our courts have held that where a devolutive appeal is taken in forma pauperis without allowing the appellee sufficient time in which to traverse the affidavits of poverty, the appellate court may, upon timely application therefor, remand the cause to give the appellee the opportunity to do so. See Brewer v. Theole, 186 La. 168, 171 So. 839; Buckley v. Thibodeaux, 181 La. 416, 159 So. 603." (Emphasis added.)
In the instant case appellees have had from December 10, 1962, to February 16, 1971, during which to traverse the affidavits in the district court.
We are of the opinion that it would be inequitable to allow defendants to traverse at this late date in view of the length of time they have had to traverse.
For the reasons assigned the motion to remand is denied.
Motion denied.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00293-CV
Chris Hill and Donald McKinney, Appellants
v.
McLane Company, Inc., Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
NO. 239,345-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING
MEMORANDUM OPINION
Appellee McLane Company, Inc., sued two former employees—appellants Chris Hill
and Donald McKinney—asserting, among other causes of action, misappropriation of trade secrets
and obtained a temporary injunction restraining their conduct pending trial. Hill and McKinney
appeal.1 In three issues, appellants contend that the district court abused its discretion in granting
the temporary injunction because McLane failed to establish either (1) a cause of action under
which it has a probable right of recovery, or that (2) no probable, imminent and irreparable harm
would occur in the interim if the relief was not granted; and that (3) the temporary injunction is
facially invalid because it fails to comply with rule of civil procedure 683. We will overrule these
contentions and affirm the district court’s order.
1
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (West Supp. 2008).
BACKGROUND
McLane is a wholesale grocery distributor that provides goods and services to
customers that include various grocery and convenience-store vendors. Among these vendors are
Circle K Stores, Inc. The relationship between McLane and Circle K is governed by a distribution
agreement that, while made confidential by its terms, the parties acknowledge authorizes Circle K
to perform audits to determine whether McLane is charging Circle K correctly. The underlying
litigation arose after Circle K sent a letter to McLane giving notice that it intended to perform such
an audit through an outside firm and requesting certain accounting information. McLane later
ascertained that three of its former employees were to be involved in the audit—appellants Hill and
McKinney, plus a third, Peter Leavitt—and that the compensation of each would be tied in whole
or in part to the revenues they could generate for Circle K through the audit. Alleging that appellants
had been or would be utilizing its trade secrets and other confidential information to its detriment,
McLane sued appellants in district court, asserting causes of action for trade-secret misappropriation,
conversion, breach of fiduciary duty, tortious interference with contract, and conspiracy.2 McLane
obtained a temporary restraining order and, following a subsequent evidentiary hearing, a temporary
injunction restraining appellants from using or disclosing McLane trade secrets or other non-public
information pending trial on the merits. This appeal ensued.
2
McLane advises that it later joined Leavitt as a defendant, but the issues on appeal concern
only Hill and McKinney.
2
ANALYSIS
Standard of review
“The sole issue before the trial court in a temporary injunction hearing is whether the
applicant may preserve the status quo of the litigation’s subject matter pending a trial on the merits.”
Mabrey v. Sandstream, Inc., 124 S.W.3d 302, 309 (Tex. App.—Fort Worth 2003, no pet.) (citing
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)). To obtain a temporary injunction,
an applicant must plead and prove three elements: (1) a cause of action against the defendant; (2) a
probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the
interim. Butnaru, 84 S.W.3d at 204; Synergy Ctr., Ltd. v. Lone Star Franchising, Inc., 63 S.W.3d
561, 564 (Tex. App.—Austin 2001, no pet.). “The applicant seeking a temporary injunction does not
have to prove that it will ultimately prevail in the litigation.” Center for Econ. Justice v. American
Ins. Ass’n, 39 S.W.3d 337, 343 (Tex. App.—Austin 2001, no pet.) (citing Transport Co.
v. Robertson Transps., Inc., 261 S.W.2d 549, 552 (Tex. 1953)).
Whether to grant or deny a temporary injunction is within the trial court’s sound
discretion. Butnaru, 84 S.W.3d at 204. We will not reverse the trial court’s judgment unless the
trial court’s action was so arbitrary that it exceeded the bounds of reasonable discretion. Id. A
trial court does not abuse its discretion when it bases its decision on conflicting evidence, as long
as some evidence in the record reasonably supports the trial court’s decision. Brammer v. KB Home
Lone Star, L.P., 114 S.W.3d 101, 105-10 (Tex. App.—Austin 2003, no pet.). We view the evidence
in the light most favorable to the trial court’s order, indulging every reasonable inference in its favor.
Id. Where, as here, the trial court does not make findings of fact and conclusions of law, we will
3
uphold the court’s order on any legal theory supported by the record. EMSL Analytical, Inc.
v. Younker, 154 S.W.3d 693, 696 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
Probable right to relief
Although McLane pled other causes of action, it acknowledges that the temporary
injunction was based on its cause of action for misappropriation of trade secrets. In their first issue,
appellants assert, in substance, that McLane failed to present any evidence of a probable right of
relief based on a cause of action for trade-secret misappropriation.3 The elements of trade-secret
misappropriation are: (1) the existence of a trade secret owned by the plaintiff; (2) breach of
a confidential relationship or improper discovery of a trade secret; (3) “use” of the trade secret;
and (4) injury. Trilogy Software, Inc. v. Callidus Software, Inc., 143 S.W.3d 452, 463
(Tex. App.—Austin 2004, pet. denied).
Hill
The district court heard evidence that Hill had the requisite confidential relationship
with McLane that prohibited him from disclosing or using McLane trade secrets. Specifically,
Hill had been employed by McLane between February 1993 until January 2009, when he resigned.
See Sands v. Estate of Buys, 160 S.W.3d 684, 687 (Tex. App.—Fort Worth 2005, no pet.); Rugen
v. Interactive Bus. Sys., 864 S.W.2d 548, 551 (Tex. App.—Dallas 1993, no pet.) (stating that “it is
well established that even without an enforceable contractual restriction, ‘a former employee is
3
Appellants do not appear to dispute that McLane has pled a cause of action for
misappropriation of trade secrets.
4
precluded from using for his own advantage, and to the detriment of his former employer,
confidential information or trade secrets acquired by or imparted to him in the course of his
employment.’” (quoting Johnson v. American Speedreading Acad., Inc., 526 S.W.2d 163, 166
(Tex. Civ. App.—Dallas 1975, no writ))). Furthermore, while employed at McLane, Hill signed a
contract agreeing to abide by McLane’s Code of Business Conduct and Ethics, which included a
confidentiality agreement that restricted disclosure of “confidential McLane information,” including
“all non-public information that might be of interest to competitors or harmful to the Company, its
customers, or teammates if disclosed” and “all non-public information that suppliers and customers
have entrusted to the Company.” This contractual duty was explicitly made applicable both during
and after Hill’s employment with McLane.
The district court also heard evidence that Hill acquired confidential and trade secret
information owned by McLane through his work there. “A trade secret is any formula, pattern,
device, or compilation of information which is used in one’s business and presents an opportunity
to obtain an advantage over competitors who do not know or use it.” Computer Assocs. Int’l v.
Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996) (citing Hyde Corp. v. Huffines, 314 S.W.2d 763,
776 (Tex. 1958) (quoting Restatement of Torts § 757 (1939))); see Restatement (Third) of
Unfair Competition § 39 (1995). To determine whether a trade secret exists, Texas courts weigh
six nonexclusive factors:
(1) the extent to which the information is known outside of the business;
(2) the extent to which it is known by employees and others involved in the
business;
5
(3) the extent of the measures taken to guard the secrecy of the information;
(4) the value of the information to the business and its competitors;
(5) the amount of effort or money expended in developing the information; and
(6) the ease or difficulty with which the information could be properly acquired
or duplicated by others.
In re Bass, 113 S.W.3d 735, 739 (citing Restatement of Torts § 757 cmt. b (1939); Restatement
(Third) of Unfair Competition § 39 reporter’s n. cmt. d (1995)). Because “trade secrets do not
always neatly fit each of the factors,” and because “other factors could also be relevant to trade secret
analysis,” courts should “weigh the factors in the context of the surrounding circumstances.” Id.
at 740. However, at the preliminary stage of deciding whether to grant a temporary injunction, a
trial court does not determine whether or not a trade secret actually exists. Center for Econ. Justice,
39 S.W.3d at 343. Instead, “the trial court ascertains whether the applicant has established that
the information is entitled to trade-secret protection until trial on the merits.” Id. (citing T-N-T
Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 23 (Tex. App.—Houston
[1st Dist.] 1998, no pet.)). “[A]n order granting trade-secret protection does not mean the protected
information is in fact a trade secret.” Id. (citing Midland Bldg. & Loan Ass’n v. Sparks Chapel
Colored M.E. Church, 35 S.W.2d 773, 775 (Tex. Civ. App.—Dallas 1931, no writ)).
The district court did not abuse its discretion in finding that Hill acquired information
for which McLane is entitled to trade-secret protection pending trial. It heard evidence that Hill
worked in accounting and eventually became the controller (basically, the head accountant) for
three McLane divisions and, in that capacity, had wide access to internal and confidential McLane
6
financial, budgetary, and operations information, including information regarding customer pricing,
invoicing, and taxation. The district court heard evidence that McLane protected its information by
measures that included password-restricted access, confidentiality agreements with employees who
would be exposed to the information (as Hill signed), and confidentiality clauses in its distribution
agreements with customers (e.g., grocery and convenience store chains).
There was also evidence that Hill had possession of documents that either merit trade-
secret protection or reflect trade secrets that Hill knew. Among those documents were an email
between Hill and other McLane employees that contained a customer list and customer information
and the confidential distribution agreement between Circle K and McLane. The district court heard
testimony that Hill had copied to his computer McLane documents containing customer information,
which he intended to use to determine whether customers would be a good fit to audit. It also heard
testimony from McLane employee Kevin Koch that, in addition to having access to confidential
documents and tax returns, Hill became privy to confidential information including customer lists,
business contacts, vendor listings, information on how and when McLane made purchases, McLane’s
terms of payment, and billing strategies. Koch noted that Hill and McKinney were in a position to
disclose data that could result in Circle K or other customers negotiating their prices downward,
which could severely damage McLane because of the low margins in McLane’s business.
McLane presented evidence that, prior to leaving McLane, Hill was in regular contact
with McKinney regarding plans to get him to audit McLane for Circle K. There was also evidence
suggesting that Leavitt, McKinney, and Hill may have been attempting to keep McLane unaware of
Hill’s involvement; Koch testified that Hill himself had denied having any knowledge of an attempt
7
by any former McLane employee when in fact Hill had already entered into a contract with Leavitt
to help with the audit.
In sum, there was evidence that Hill had acquired confidential McLane information
and was planning to audit McLane’s contract with Circle K in order to benefit Circle K. Under these
circumstances, the district court did not abuse its discretion in finding a probable right to relief for
trade secret misappropriation with regard to Hill.
McKinney
The district court also did not abuse its discretion in finding that McKinney
acquired information for which McLane is entitled to trade-secret protection pending trial.
McKinney testified that Hill contacted him in 2009 to discuss starting an auditing business, and
McKinney knew that Hill would have confidential profit and loss information related to the divisions
Hill controlled at McLane. McKinney also testified that prior to meeting with Circle K to discuss
the McLane audit, he received a copy of the confidential distribution agreement between Circle K
and McLane, which he shared with his fellow auditors. In addition to a copy of the distribution
agreement, McKinney had received from Circle K a spreadsheet that, according to Kevin Koch’s
testimony, contained McLane’s confidential information regarding rebates and pricing. Although
McKinney may not have obtained McLane’s confidential information directly from McLane, he
nonetheless possessed McLane’s confidential information either through Circle K or through Hill,
neither of whom had permission to share that information.
The record supports findings that McKinney, like Hill, possessed confidential
McLane information, and was planning to use that information to audit McLane for Circle K. Hill
8
and McKinney were hired by Leavitt to provide information in connection with the audit and,
according to Hill, answer questions. Both Hill and McKinney’s recovery was to be a percentage of
the revenue generated by the audit. Any McLane trade secrets or confidential information that Hill
or McKinney knew could be used in the audit or in Circle K’s other negotiations with McLane.
Under the circumstances, the district court could have found that it was probable that Hill and
McKinney would use confidential information, including trade secrets, for their benefit and to
McLane’s detriment. See Rugen, 864 S.W.2d at 552. We therefore cannot conclude that the
district court abused its discretion in finding a probable right to relief with regard to McKinney’s
misappropriation of trade secrets.
We overrule appellants’ first issue.
Probable, imminent, irreparable injury
In their second issue, appellants contend that the district court abused its discretion
in finding that McLane will be irreparably harmed by their participation in an audit of McLane. To
the contrary, the district court heard evidence that Hill had intimate knowledge of McLane’s
accounting practices and access to customer and pricing information. McKinney also possessed
confidential information belonging to McLane. The district court heard evidence that if Hill or
McKinney disclosed this information to any of McLane’s customers, the customers could use the
information to negotiate down prices or otherwise to renegotiate their relationships with McLane to
McLane’s detriment. It is a reasonable inference that if Hill and McKinney were to impermissibly
use McLane’s trade secrets to perform an audit, the resulting damages would be difficult to calculate.
Because the very purpose of the injunction is to prevent disclosure of trade secrets pending trial,
9
plaintiffs need not demonstrate prior to a trial on the merits that a trade secret has actually been
misappropriated. Instead, “harm to the trade secret owner may be presumed when a defendant
possesses trade secrets and is in a position to use them.” IAC, Ltd. v. Bell Helicopter Textron, Inc.,
160 S.W.3d 191, 201 (Tex. App.—Fort Worth 2005, no pet.).
Even assuming the best of good faith from Hill and McKinney, Hill and McKinney
might have difficulty preventing their knowledge of McLane’s trade secrets from infiltrating
their work. See FMC Corp. v. Varco Int’l, Inc., 677 F.2d 500, 504 (5th Cir. 1982); Weed Eater, Inc.
v. Dowling, 562 S.W.2d 898, 902 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.). In
FMC Corporation, the Fifth Circuit noted the difficulty of avoiding the use of trade secrets in
performing similar work for a competitor of a former employer. The court reversed the
federal district court and granted a temporary injunction against use of trade secrets where a manager
with knowledge about a particular manufacturing process accepted employment with a competitor
that was trying to discover the same manufacturing process. The former manager had knowledge
of at least some trade secrets, and was performing work comparable to the work he had performed
for his former employer. The court therefore concluded that “the fear of irreparable injury is
realistic.” FMC Corp., 677 F.2d at 505. Similarly, in Weed Eater, the First Court of Appeals upheld
and expanded the grant of a temporary injunction against use of trade secrets. An employee who had
designed a method for manufacturing a string line trimmer accepted employment with a competitor
who was also attempting to manufacture string line trimmers. The court held that although the
trial court granted the injunction as to trade secrets, the “trial court abused its discretion by failing
to include in the injunction order a provision restraining [the employee] from continuing in the
10
employment of [the competitor]” so long as his duties related to the manufacture and development
of similar lawn trimmers. Weed Eater, 562 S.W.2d at 902. Hill and McKinney’s position as
independent contractors working for a customer, rather than a competitor, of McLane does not alter
the conclusion that they should be enjoined from disclosing McLane’s confidential information.
Indeed, here, where Hill and McKinney are planning to audit McLane, Hill and
McKinney would be working together to perform the same kinds of accounting services that
Hill performed for McLane, except that Hill would now be switching sides: rather than looking for
ways to benefit McLane, Hill would be looking to use his knowledge to benefit Circle K, to
McLane’s detriment. Viewing the evidence in a light most favorable to the district court’s judgment,
we conclude that the district court did not abuse its discretion in determining that this threatened
misappropriation would result in a probable, imminent, irreparable injury to McLane. We overrule
appellants’ second issue.
Rule 683
In their third issue, appellants assert that the temporary injunction is void because it
fails to comply with rule of civil procedure 683. Rule 683 requires that “[e]very order granting an
injunction shall set forth the reasons for its issuance; shall be specific in terms” and “shall describe
in reasonable detail and not by reference to the complaint or other document, the act or acts sought
to be restrained.” Tex. R. Civ. P. 683. Appellants urge that the temporary injunction here does not
set forth the reasons for its issuance with sufficient specificity, nor does it describe in “reasonable
detail” the reasons for its issuance. We disagree.
11
Regarding rule 683’s requirement that the order specifically state the reasons for
issuance, the Texas Supreme Court has explained that “[i]t is not required that the trial court explain
its reasons for believing that the applicant has shown a probable right to final relief, but it is
necessary to give the reasons why injury will be suffered if the interlocutory relief is not ordered.”
State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex. 1971) (citing Transport Co. v. Robertson
Transps., 261 S.W.2d 549 (1953)). The district court’s order here satisfies these requirements. It
clearly specifies that it is being issued to protect McLane’s trade secrets, the disclosure of which
would cause irreparable harm:
the Court finds and concludes that Plaintiff will probably prevail on the trial of
this cause, that CHRIS HILL and DONALD McKINNEY are in possession of
information belonging to McLANE that is entitled to trade secret protection pending
trial on the merits, and that CHRIS HILL and DONALD McKINNEY intend to, or it
is probable that they will use or distribute such information before the Court
can render judgment in this cause; that if they do use or distribute such information
it will thereby alter the status quo and tend to make ineffectual a judgment in favor
of McLANE, in that McLANE will suffer irreparable harm by the unauthorized
use and disclosure of such information; that, unless CHRIS HILL and
DONALD McKINNEY are deterred from using or disclosing such information,
McLANE will be without adequate remedy at law in that McLANE cannot be
adequately compensated in damages and that McLANE’s information and rights
involved herein are unique and irreplaceable.
The order further explains that Hill and McKinney possess information entitled to temporary trade-
secret protection and are in a position where they will likely use or distribute the information. It adds
that disclosure of the information would constitute irreparable harm because it cannot be adequately
compensated in damages.
12
The order also describes in reasonable detail the acts sought to be restrained. The
order enjoins Hill and McKinney from:
a. Using or disclosing to any person, business, or other entity directly or
indirectly, any business information of McLANE;
b. Using or disclosing to any person, business, or other entity directly or
indirectly, any confidential information and/or trade secrets of McLANE;
Hill and McKinney suggest that the order is overly broad in prohibiting them from using “business
information,” but the order defines “confidential information” and “business information” to include
only non-public information and data compilations that could constitute trade secrets. The order
does not prohibit either Hill or McKinney from using his general business knowledge to pursue work
that would not entail revealing McLane’s information.
We overrule appellants’ third issue.
CONCLUSION
Having overruled each of appellants’ issues, we affirm the district court’s order
granting McLane’s application for a temporary injunction.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Jones, Justices Puryear and Pemberton
Affirmed
Filed: January 5, 2011
13
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609 F.Supp. 1299 (1984)
CARPENTERS LOCAL UNION NO. 1846 OF the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, et al.
v.
PRATT-FARNSWORTH, INC., et al.
Civ. A. No. 80-1570.
United States District Court, E.D. Louisiana.
December 6, 1984.
*1300 Marie Healey, Gardner, Robein & Healey, Metairie, La., for plaintiffs.
James D. Carriere, Kullman, Inman, Bee & Downing, New Orleans, La., for defendants.
MEMORANDUM OPINION
MENTZ, District Judge.
Pratt-Farnsworth, Inc., a defendant in this case, has moved for summary judgment against the above-captioned plaintiffs. The mover asserts that it is entitled to summary judgment, contending that all claims under Section 301 of the Labor Management Relations Act should be dismissed because plaintiff unions have failed to first exhaust the grievance and arbitration provisions of the collective bargaining agreement.
The United States Supreme Court has steadfastly held that contract grievance procedures, i.e. arbitration, is the preferred method for settling labor disputes. United Steelworkers v. Enterprise Wheel and Car Corporation, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Generally, an employee is bound by the collective bargaining agreement's terms governing the enforcement of contractual rights and he must exhaust the contract's remedies before seeking a judicial remedy. Republic Steel Corp., supra; Vaca, supra; Rabalais v. Dresser Industries, Inc., 566 F.2d 518 (5th Cir.1978). The duty to exhaust contractual remedies prior to bringing a Section 301 suit applies to unions as well. National Post Office Mail Handlers Local No. 305, *1301 LIUNA, AFL-CIO v. United States Postal Service, 594 F.2d 988, 991 (4th Cir.1979). In the case at bar, the defendant claims that the unions have violated the exhaustion doctrine by their failure to exhaust the grievance and arbitration provision of the contract prior to their seeking a judicial remedy.
Usually for every general rule there is at least one exception and this is the case here. In fact, the Supreme Court has delineated three exceptions to the general rule that plaintiffs must exhaust all contractual remedies before seeking judicial intervention:
(1) When conduct of the employer indicates he repudiates the contract;
(2) When the union wrongfully refuses to process an employee's grievance; and
(3) When resort to arbitration would be futile.
Vaca, supra; Glover v. St. Louis-San Francisco R. Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969); Clayton v. International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, 451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981). Plaintiffs submit that exceptions one and three are applicable to the case at bar.
After reviewing the collective bargaining agreement's contractual grievance and arbitration procedure, it is apparent that it would have been futile for the plaintiffs to have attempted utilization of the arbitration mechanism. Article XXIV, the "Disputes and Grievance Procedure", states clearly that any time there is a dispute "involving an alleged claim of a particular provision of this Agreement" [emphasis added] the parties should make a serious effort to settle the dispute. In the case at bar, there is no provision in the collective bargaining agreement that directly addresses the issue in dispute, that it, the issue concerning related entities of a signatory employer. Specifically, there is no clause present in the agreement allowing claims seeking to bind related entities of a signatory employer under the alter ego or the single employer theory.[1]
It logically follows that certain controversies between parties to an agreement will not be arbitrable if the controversy in question is not included in the agreement. Lodge No. 12 District No. 37 International Association of Machinists v. Cameron Iron Works, 257 F.2d 467 (5th Cir.1958). The policy of federal labor law is to restrict arbitration under the collective bargaining agreement to matters which the parties have agreed voluntarily to arbitrate. See Refinery Employees' Union of Lake Charles Area v. Continental Oil Co., 160 F.Supp. 723 (W.D.La.1958), affirmed 268 F.2d 447 (5th Cir.), cert. denied, 361 U.S. 896, 80 S.Ct. 199, 4 L.Ed.2d 152 (1959). Therefore, it would have been futile for plaintiffs to pursue the contractual grievance and arbitration procedures outlined in the collective bargaining agreement because the issue in dispute is not covered by arbitration since the parties did not agree to arbitrate such matters. Thus, plaintiffs are excused from exhausting the grievance-arbitration procedures since it would have been a futile or unduly protracted procedure.[2]Vaca, supra. See also United Protective Workers of America v. Ford Motor Co., 194 F.2d 997, 1002 (7th Cir.1952); United Protective Workers of America, Local No. 2 v. Ford Motor Co., 223 F.2d 49, 51, 48 A.L.R.2d 1285 (7th *1302 Cir.1955); Southern Pacific Co. v. Brotherhood of Locomotive Firemen and Enginemen, 393 F.2d 345 (D.C.Cir.1967); Calagaz v. Calhoon, 309 F.2d 248 (5th Cir. 1962).
The defendant Pratt-Farnsworth, also argues that it is entitled to summary judgment because prescription has run on plaintiffs' claims. Here, it is suggested by defendant that this union suit is a "hybrid" Section 301 suit to which the federal six month statute of limitations applies. A "hybrid" Section 301 suit is an action where the claims include both a breach of fair labor practices and a breach of contract. The Supreme Court, in hopes of fostering quicker resolutions to such hybrid disputes, has decided that the federal six-month statute of limitations would be applicable. Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 167, 103 S.Ct. 2281, 2292, 76 L.Ed.2d 476, 491 (1983). Plaintiffs' claims are not timebarred since Del Costello, supra, held that the federal six-month statute of limitations would only apply to "hybrid" § 301 actions, not to straightforward breach of contract actions as we have in the instant case. Therefore, the most analogous Louisiana state statute of limitations must be applied to determine if this § 301 suit has been timely filed.[3]
Accordingly, the mover's motion for summary judgment must be denied.
NOTES
[1] The plaintiff unions claim that in 1971 they proposed in ongoing negotiations to reach a contract a provision dealing with disputes concerning related entities of the signatory employer but the employer participants rejected inclusion of such provision in the collective bargaining agreement. This information would support the position taken by the Court, however, the Court did not base its decision on said information due to the plaintiffs' failure to substantiate such claim by affidavit or other appropriate documentation.
[2] Since the Court has determined that the plaintiffs were not bound to exhaust the arbitration procedure prior to filing suit in federal court on the basis of the futility exception, it is not necessary for the Court to address whether the plaintiffs also met the repudiation exception set out in Vaca, supra.
[3] For a full discussion on the applicable Louisiana prescriptive statute to this action, see the companion memorandum opinion entered in this suit on the same date as this opinion was entered. 609 F.Supp. 1302 (D.C.La.1985).
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274 Wis. 550 (1957)
FRION, Appellant,
vs.
CRAIG and another, Respondents.
Supreme Court of Wisconsin.
January 7, 1957.
February 5, 1957.
*552 For the appellant there was a brief and oral argument by Frank L. Morrow of Eau Claire.
For the respondents there was a brief by Stafford, Pfiffner & Stafford of Chippewa Falls, and oral argument by Robert F. Pfiffner.
CURRIE, J.
On this appeal the plaintiff Frion seeks a new trial on the following grounds:
(1) The jury's verdict was the result of passion and prejudice as evidenced by the fact that the jury fixed the amount of plaintiff's damages for his personal injury at an alleged inadequate figure.
(2) The alleged misconduct of a juror.
(3) The alleged misconduct of defendant's counsel.
(4) The participation of the trial court in the questioning of witnesses to an extent that is alleged to have indicated partiality.
In view of the nature of the above assignments of error the facts surrounding the occurrence of the accident are of no significance. The most hotly contested point in the trial was whether Frion was crossing the street at a point other than within the limits of the sidewalk lines extended into the intersection. There was a sharp conflict of the testimony on this point. The jury, acting under proper instructions from the trial court, resolved this issue against Frion by finding him causally negligent as to failure to yield the right of way.
In answering the questions of the verdict with respect to Frion's damages, the jury awarded $6,000 for loss of earnings *553 and $2,000 for personal injury. In addition the court answered the questions in the verdict as to the amount of Frion's medical and hospital expense, finding the same to be $2,690.70. Plaintiff's counsel attacks the $2,000 figure awarded for personal injury, contending that such finding indicates passion and prejudice on the part of the jury.
At the time of the accident Frion was an able-bodied man sixty-eight years of age who had been employed by the paper company at Cornell for the preceding thirty-six-years. The nature of his injury sustained as a result of the accident was a broken left leg. There was a compound, comminuted fracture of the tibia, and a simple fracture of the fibula. He remained in the hospital for five months and when released from there he first walked with crutches and later with a cane. Later he was returned to the hospital for physiotherapy treatments during the period of May 31, 1955, to July 14, 1955. A good union with proper alignment has been obtained of the fractured bones. He had not returned to work at the time of trial, which was held approximately a year after the accident. The attending physician testified that Frion would probably be able to return to work within the year ensuing the date of trial, while another doctor expressed a doubt that Frion would ever be able to resume work. The medical testimony was in sharp dispute as to the amount of shortening of the injured leg. One doctor stated it amounted to but one quarter of an inch, while another testified there was an "apparent" shortening of two inches. There was also medical testimony that Frion was suffering from arteriosclerosis (hardening of the arteries) which had impaired blood circulation at the ankle, and that it was this rather than the fracture which was disabling Frion at the time of trial.
While $2,000 seems a low amount to award for Frion's personal injury we cannot hold that it is so extreme as to indicate passion and prejudice on the part of the jury. No *554 attack is made on the $6,000 found as damages for loss of earnings, and we deem this latter finding to be material on the issue of passion and prejudice.
The trial consumed three days. On the second day plaintiff's counsel reported to the court that Mrs. Solberg, one of the jurors, had held a private conversation with defendant Craig. In the absence of the jury, the trial judge called Craig to the stand and he was questioned by both opposing counsel and also by the court. Such questioning developed the following facts: About 1:30 p. m. of the previous day Craig had been seated in the county courtroom of the courthouse and Mrs. Solberg came in and spoke to him. She stated that she had visited at the home of one Delmar Sloop the evening before and Mr. Sloop has asked her to say "Hello" to Craig. Nothing was said in this brief conversation between Mrs. Solberg and Craig about the accident or the case being tried.
At the conclusion of questioning of Craig, plaintiff's counsel moved "that the juror, Mrs. Solberg, be excused and that we proceed with 11 jurors." This motion was denied and the trial proceeded.
A motion to withdraw a juror was a device resorted to in order to obtain a continuance for cause after the jury had been impaneled and the trial was in progress. Planer v. Smith (1876), 40 Wis. 31; Anno. 48 L. R. A. 432; and 53 Am. Jur., Trial, p. 679, sec. 966. It is seldom if ever resorted to nowadays in the practice. When such a motion is granted, a mistrial automatically results from the withdrawal of the juror, thus ending the trial. It is clear from the wording of the motion of plaintiff's counsel in the instant case that this was not the relief sought because of the express request that the trial proceed with 11 jurors. Counsel's motion should have requested a declaration of a mistrial, if counsel deemed that the interests of his client *555 had been prejudiced by the alleged misconduct of the juror Solberg. Counsel must have known that the trial court possessed no power to excuse a juror at this stage of the trial and proceed with 11 jurors in the absence of any stipulation to such effect from opposing counsel.
When counsel's improper motion was denied, counsel interposed no further motion. Such course of action is open to the obvious interpretation that he preferred to continue with the trial and take his chances with the outcome rather than move for a mistrial which would have ended the trial and made it necessary to retry the case at a later time. We consider that counsel thereby waived the issue of possible misconduct of a juror, which waiver precludes him from raising the issue on this appeal.
After the return of the verdict plaintiff's counsel obtained and filed affidavits from three jurors which stated that Mrs. Solberg, during the deliberations of the jury, took a stand indicating prejudice in favor of the defendant Craig and against the plaintiff. The general rule is that jurors will not be permitted to impeach their own verdict by affidavits. State v. Biller (1952), 262 Wis. 472, 55 N. W. (2d) 414, and cases cited therein. We deem that such rule is applicable in a situation of this kind. The inference which plaintiff's counsel seeks to draw from these affidavits is that these jurors were influenced in their deliberations by arguments advanced by Mrs. Solberg, thus impeaching their own verdict.
Plaintiff did properly raise the issue of alleged misconduct of defendants' counsel by motion after verdict. Two instances of such misconduct set forth in plaintiff's brief warrant our consideration.
Plaintiff's counsel called the defendant Craig as an adverse witness and in the course of the questioning referred to two blackboard diagrams of the intersection where the accident took place. During this part of the questioning defendants' *556 counsel interjected the remark, "Well, don't try to confuse him, Mr. Morrow." Any objection to a question, or to conduct of opposing counsel, should always be addressed to the court and not to counsel. Therefore, the remark complained of was improper from this standpoint. The intersecting streets were Bridge and Fifth streets and the apparent purpose of the question directed by plaintiff's attorney to the witness, which precipitated the remark by defendants' counsel, was to get the witness to state that Fifth street was not shown in the diagrams. There was, therefore, a legitimate basis for defendants' counsel thinking that an attempt was being made to confuse the witness.
The second incident of alleged misconduct presents a more-serious issue. One Haller had given the plaintiff Frion a ride in the former's pickup truck from the paper mill to the intersection of Bridge and Fifth streets, and had let Frion out of the vehicle in the south limits of the intersection. Haller then started up his truck and proceeded eastward on Bridge street and had proceeded only a short distance when he passed the defendant Craig's car coming from the opposite direction. Plaintiff called Haller as a witness but Haller was asked no question in direct examination as to the speed of the Craig automobile. On cross-examination defendants' counsel asked Haller, "Now the speed of the Craig car, can you tell us what that was?" Then the following took place:
"Mr. Morrow: Just a minute. Just a minute. We object on the ground that it's improper cross-examination. We asked him nothing about speed.
"Mr. Pfiffner: Well, do you want to hide it?
"Mr. Morrow: No, you can ask him, yourself, on direct examination.
"The Court: Very well, Objection sustained. You are getting into argument again, gentleman. We'll confine the cross-examination to the direct examination."
*557 Later defendants' counsel called Haller as defendants' witness and asked him how fast the Craig car was going as Haller had observed it approaching for a distance of a block and a half. Haller answered, "I would say around 20 or 25." No witness placed the speed of Craig's car at more than 25 miles per hour.
The conduct of defendants' counsel in accusing plaintiff's attorney of seeking to hide evidence from the jury, because of interposing an entirely proper objection to a question propounded to the witness, is subject to censure, and it should not be countenanced in a trial court. For this reason it is unfortunate that the learned trial court did not at the time of the occurrence rebuke counsel and instruct the jury to disregard the improper remark, explaining to the jury the right and duty of a lawyer to object to improper questions asked of a witness, and that no adverse inference should be drawn from the interposing of a proper objection, such as the one made here.
This court should not direct a new trial for improper statements made by defendants' counsel unless we are convinced that prejudice to the plaintiff resulted which influenced the jury's verdict. We are not so convinced.
We express no opinion as to the correctness of the trial court's ruling that the propounded question by defendants' counsel, as to the speed of the Haller car, constituted improper cross-examination.
We come now to the last contention advanced in behalf of plaintiff, i. e., that the trial judge's questioning of witnesses and comments during the trial evinced partiality toward the defendants. Plaintiff failed to raise this issue in his motions after verdict and therefore is precluded from doing so on this appeal. Wells v. Dairyland Mut. Ins. Co., ante, p. 505, 80 N. W. (2d) 380. However, an examination of the record in this case discloses that the trial judge's questions *558 directed to witnesses were only for the purpose of clarification and evince no indication of partiality whatsoever. We also can perceive nothing objectionable in the trial judge's comments as quoted in plaintiff's brief.
By the Court.Judgment affirmed.
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695 F.Supp. 1353 (1988)
UNITED STATES of America, Plaintiff,
v.
Helmer MOSQUERA, Defendant, pro se.
Crim. A. No. 84-407-C.
United States District Court, D. Massachusetts.
October 3, 1988.
*1354 MEMORANDUM
CAFFREY, Senior District Judge.
In this case, on remand from the United States Court of Appeals for the First Circuit, the Court must consider two post conviction motions filed by the defendant, Helmer Mosquera. The Court must also consider three additional motions filed by the defendant subsequent to the Court of Appeals' decision to remand this case.
The defendant pled guilty to one count of conspiracy to possess with intent to distribute cocaine and one count of possession with intent to distribute cocaine. In June of 1985, the defendant was sentenced to seven years on both counts, the sentences to run concurrently, and a $25,000 fine.
On April 22, 1987, the defendant, pro se, filed a "Motion for Appropriate Relief." In that motion, the defendant claimed that his presentence report ("PSR") contained erroneous information which was not shown to him or his attorney prior to sentencing. The defendant further argued that the inaccurate information resulted in an unduly harsh sentence being imposed and was prejudicing him with respect to parole. In a second motion, filed on June 9, 1987, the defendant requested the return of a car that had been seized by Drug Enforcement Agency ("DEA") agents several days after the defendant's arrest. This Court denied both of these motions, and also denied defendant's request for reconsideration of the motion for appropriate relief.
The defendant appealed the decision to the U.S. Court of Appeals for the First Circuit. The Court of Appeals decided to remand the case so that this Court could more fully address the factual disputes underlying the defendant's claims regarding the PSR and the seizure of the vehicle. United States v. Mosquera, 845 F.2d 1122 (1st Cir.1988).
Subsequent to the Court of Appeals' decision, the defendant, pro se, filed three additional motions. The first motion is a motion for correction or reduction of sentence, pursuant to Fed.R.Crim.P. 35. The second motion is a motion for injunction against the DEA regarding the seized vehicle. The final motion is a new motion for appropriate relief, which substantially duplicates the defendant's original motion for appropriate relief. We will deal with the two motions on remand before addressing these additional motions.
In his original motion for appropriate relief, the defendant claims that the PSR he was shown before sentencing did not contain the prosecution's statement of facts.[1] The defendant claims that he did not see the prosecution version until March, 1987. He specifically challenges information in the report which reads: *1355 "The Rodriquez/Mosquera organization sold and distributed on average two and three kilograms of cocaine weekly...." The defendant argues that this information is inaccurate, and that he was unable to challenge it before sentencing because it was not included in the PSR at the time he was shown the report. According to the defendant, this information is prejudicing him with respect to parole, and he requests that all references to any quantity greater than a trace be removed from the PSR.
Under Fed.R.Crim.P. 32(c)(3), the court must allow the defendant and the defendant's counsel to read the PSR (exclusive of the prosecution's recommendations as to sentence) "at a reasonable time before imposing sentence." United States v. Mays, 798 F.2d 78, 79-80 (3d Cir.1986). The court must also provide them with an opportunity to challenge information in the report before sentencing. If the defendant's claims were true, therefore, the alleged omission in the PSR would constitute a violation of Fed.R.Crim.P. 32(c)(3).
At the September 21 hearing on all five of defendant's motions,[2] the government called as one of its witnesses the probation officer who prepared the defendant's PSR in June of 1985. The probation officer testified that the PSR is presently in the same condition it was in when the defendant and defendant's counsel reviewed and signed the PSR prior to sentencing. The probation officer further testified that two changes were made in the report at the time of sentencing, and that no subsequent changes or additions have been made to the report.
In addition to his testimony regarding the condition of the PSR at the time of sentencing, the probation officer also offered testimony clarifying language in the PSR that the defendant had relied on to establish the alleged omission in the report. The defendant's motion refers to a statement in the report that supposedly bolsters his claim as to the Rule 32(c)(3) violation: "The defendant has not seen the government's statement of the facts and cannot, therefore, acknowledge or dispute any assertions contained in it which differ from those made in Court." The probation officer explained that this language was part of the defendant's statement at the time the officer prepared the PSR, not at the time just prior to sentencing. Though the defendant may not have seen the government's statement of facts before his own statement was taken for the PSR, this has no bearing on the issue of what the defendant was shown prior to sentencing. The key time specified in Rule 32(c)(3) is "before sentencing," not before the PSR is prepared.
We have no reason to doubt the credibility of the government's witness regarding the condition of the PSR at the time the defendant and his attorney were allowed to review and challenge the report prior to sentencing. This is especially true given the probation officer's persuasive clarification of the defendant's statement in the PSR regarding the prosecution version. The defendant has failed to provide any convincing evidence to support the alleged incompleteness of the PSR prior to sentencing. It is also difficult to imagine how the prosecution version could have been added to the PSR after the sentencing, given that it is located between two other portions of the report on numbered pages. Furthermore, it is highly unlikely that defendant's retained counsel would have reviewed and signed off on the PSR before sentencing without noticing or objecting to an absence of the government's statement of facts.
For the above reasons, this Court finds that the present PSR, with its reference to sales of two to three kilograms of cocaine weekly, was what the defendant and his counsel were furnished with prior to sentencing. Accordingly, the defendant's April 22, 1987 motion for appropriate relief should be denied.
*1356 The second motion to be considered on remand is the defendant's motion for the return of property. This motion challenges the DEA's 1985 seizure of the defendant's 1984 Chevrolet Corvette Coupe pursuant to 21 U.S.C. §§ 881(a)(4) and (b). The defendant claims that the seized vehicle had not been purchased with the proceeds of illegal activity and was not used to facilitate the sale, receipt, possession, or concealment of controlled substances, and therefore was not legitimately subject to forfeiture. He further claims that the government failed to provide him with notice of the seizure sufficient to satisfy due process concerns.
At the September 21 hearing, the government offered into evidence numerous documents relevant to the seizure of the defendant's car. A keeper of records with the DEA also testified as to the nature of the documents and DEA's administrative forfeiture proceedings. Among the documents are copies of an application for a seizure warrant, signed by an Assistant U.S. Attorney, with a supporting affidavit ("the Affidavit"), both dated June 15, 1987. A copy of the seizure warrant is included as Government Exhibit C 1. The warrant is signed by a U.S. Magistrate who determined that probable cause existed to seize the vehicle, based on the fifteen-page Affidavit.
It is clear from the statements made in the Affidavit that the government had probable cause to seize the defendant's car, sufficient to satisfy 21 U.S.C. § 881(b)(4). Under that provision, the government need only have "probable cause to believe that the property has been used or is intended to be used in violation of" the drug enforcement laws. Based on the electronic surveillance of wire communications and undercover surveillance involving the defendant's activities, described in the Affidavit, the requisite probable cause existed to support the government's seizure of the defendant's car. Though the defendant was given an opportunity to introduce any evidence at the hearing to challenge the government's probable cause, he failed to do so.
The defendant also attacks the seizure on the basis of insufficient notice. In his motion for the return of property, the defendant claims that he never received notice of the DEA's administrative forfeiture proceedings or filed a petition for remission with the DEA. The government, however, has offered into evidence, documents establishing that notice in the present case satisfied the minimal requirements of due process. See Willis v. United States, 787 F.2d 1089, 1093 (7th Cir. 1986).
The government submitted as Exhibit B a number of DEA documents. Among those documents is a copy of a July 26, 1985 DEA notice of intent to administratively forfeit defendant's vehicle, sent by certified mail to defendant's Brookline address. The notice was prepared by an official within the Asset Forfeiture Unit of the DEA's office of Chief Counsel. The documents also include a copy of a Federal Express correspondence, dated August 27, 1985, by the defendant's wife, addressed to DEA's Office of Chief Counsel. The correspondence includes a petition for remission and/or mitigation, along with an affidavit of indigency. The petition for remission states that defendant's wife was acting as his duly authorized agent, under a power of attorney granted to her by the defendant.[3] The defendant claims, however, that he granted his wife power of attorney only for certain purposes, but not to act as his agent regarding the seizure of the car. This tenuous argument fails to persuade the Court that the actual notice of seizure on defendant's wife, evidenced by her correspondence with DEA, failed to satisfy the due process requirements in the present case.
Based on the documents submitted by the government at the hearing, and the testimony of the government's witnesses, this Court finds that probable cause existed to support the seizure of defendant's car, *1357 and that sufficient notice existed as to the DEA's administrative forfeiture proceedings. Accordingly, defendant's motion for the return of property should be denied.
The next motion to be dealt with is defendant's motion for the correction or reduction of sentence pursuant to Fed.R. Crim.P. 35. The version of the rule applicable to offenses committed before November 1, 1987, as in the present case, is that version in effect prior to the extensive Rule 35 amendments which became effective November 1, 1987.
The pre-amendment version of Rule 35(a) dealt with the correction of illegal sentences and sentences imposed in an unlawful manner. Neither of these situations is at all relevant to the present case, and therefore the defendant cannot be granted relief under subsection (a). Rule 35(b) also cannot be invoked by the defendant as a vehicle for relief as the time limitations expressly stated in the Rule have not been met in this case. Even if the time limitations posed no problem here, the Court sees no good reason why it should be moved to leniency regarding the defendant's original sentence. The information upon which the defendant was sentenced has not been successfully challenged by the defendant in this proceeding. Defendant's motion for the correction or reduction of sentence should be denied.
The next motion before the Court is defendant's motion for injunction. In this motion, defendant requests the Court to enjoin the DEA from "disposing of, selling, using, or otherwise transfering [sic] ownership of the vehicle which is the subject of the seizure...." The injunction was sought for the period prior to this Court's decision regarding the propriety of DEA's seizure of defendant's car.
Though defendant's request for an injunction was not moot at the time he filed his motion or at the time of the hearing, the defendant failed to carry the burden of showing that equitable relief was necessary in this case.[4] It is well-established that the party moving for an injunction carries the burden of establishing that equitable relief is necessary under the circumstances. See Olagues v. Russoniello, 770 F.2d 791, 799 (9th Cir.1985) ("although a case may not be moot, a plaintiff has the burden of showing that equitable relief is necessary"). The moving party must establish that irreparable injury will result if an injunction is not granted, and that no adequate legal remedy is available. Parma v. Levi, 536 F.2d 133, 135 (6th Cir. 1976).
The defendant clearly did not carry this burden. He failed to address both in his motion and at the hearing why monetary damages would not be fully adequate in the event the Court ruled in his favor on the administrative forfeiture issue. There is nothing in the record to indicate that the subject of the seizure, the 1984 Corvette Coupe, is in any way unique, the deprivation of which would cause the defendant irreparable injury. We cannot imagine, even if we were to reach beyond the pleadings, how any possibility existed for irreparable injury in this case, given the subject of the forfeiture.
Based on the above, the defendant's motion for injunction should be denied.
The final motion before this Court is defendant's August 15, 1988 "Motion for Appropriate Relief." Given that this motion in substance merely duplicates the defendant's original motion for appropriate relief, it should be denied along with that motion. Furthermore, 28 U.S.C. § 2255 states that the sentencing court should not be required to entertain a second motion for similar relief on behalf of the same defendant. See, e.g., Johnson v. Petrovsky, 626 F.2d 72, 73 (8th Cir.1980) ("[a] court is not bound to entertain successive motions for similar relief").
In conclusion, both of defendant's post conviction motions which we have considered on remand and his three subsequent *1358 motions are without merit and should be denied.
Order accordingly.
ORDER
In accordance with memorandum filed this date, it is ORDERED:
1. Defendant's April 22, 1987 "Motion for Appropriate Relief" is denied.
2. Defendant's June 9, 1987 motion for the return of property is denied.
3. Defendant's June 23, 1988 motion for the correction or reduction of sentence is denied.
4. Defendant's August 15, 1988 motion for injunction is denied.
5. Defendant's August 15, 1988 "Motion for Appropriate Relief" is denied.
NOTES
[1] It is not disputed that the defendant was shown a copy of the PSR prior to sentencing. The transcript of the sentencing hearing shows that defendant had been given a chance to review the PSR. Indeed, attached to the front of the defendant's PSR (Government Exhibit A) is a notice signed by the defendant and his counsel indicating that they had both read the report. The signature of defendant's retained counsel is dated June 15, 1985, the day of the sentencing hearing.
The defendant, instead, claims that he and his counsel were either provided with an incomplete copy of the PSR, not including the government's statement of facts, or that the PSR was changed after they read it.
[2] It should be noted that the defendant was present at this hearing and was given an opportunity to be heard on all of his pending motions. This Court afforded defendant the opportunity to raise every claim he desired, question witnesses, and submit evidence on any of his claims.
[3] The DEA denied the petition for remission in an October 31, 1985 notice addressed to the defendant's wife, Gail Mosquera.
[4] Given that defendant's motion for injunction can be denied on this basis alone, we do not reach the question of whether an injunction against the DEA would otherwise be a proper form of relief.
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728 N.W.2d 853 (2007)
IN RE J.J.C.-V.
No. 06-1830.
Court of Appeals of Iowa.
January 31, 2007.
Decision without published opinion. Affirmed on both Appeals.
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126 Ind. App. 156 (1956)
131 N.E.2d 157
IN THE MATTER OF THE ADOPTION OF FORCE BY STIENS, ETC.
No. 18,673.
Court of Appeals of Indiana.
Filed January 10, 1956.
*158 Rex E. Poe, of Jasonville, and Charles V. Livengood, of Richmond, for appellants.
Theodore P. Duning, of Lewisburg, Tennessee (formerly of Richmond), and Robert L. O'Maley, of Richmond, for appellees.
BOWEN, J.
The appellees, Ralph Stiens and Marjorie Stiens, the latter referred to hereinafter in this opinion and in the testimony in the court below as Margie Stiens, filed their petition in the court below for the adoption of one Carolyn Marie Force, alleging in such petition that such child was abandoned and deserted by the mother of said child, Mary Force, more than six months immediately preceding the filing of the petition. The prayer of said petition asked for an order of court for the adoption of such child as their ward and that the name of such child be changed to Carolyn Marie Stiens. No notice was issued on the petition to either parent of the child in question. However, the mother of such child, and appellant herein, voluntarily appeared and filed answer and in such answer asked that the petition of appellees be denied and that she had not and did not consent to the adoption of such child. The father of such child, William Force, after the cause had been taken under advisement and prior to the judgment, filed his written consent to the adoption.
The cause on the issues formed on appellees' petition and appellant's answer was submitted to the court for *159 trial and the court found for the petitioners and ordered that the said Carolyn Marie Force be adopted as the child of the petitioners, Ralph Stiens and Margie Stiens, and that the name of such child be changed to Carolyn Marie Stiens, and a due order and certificate of adoption was entered by the lower court. The appellant filed a motion for a new trial, the grounds of which motion were that the judgment, finding and decision of the court below was not sustained by sufficient evidence and was contrary to law. This motion was overruled and this appeal followed.
By the assignments of error and the issues formed in this appeal we are called upon to determine whether or not there is any evidence of probative value to support the lower court's decision that the mother of such child, Mary Force, abandoned or deserted her child for six months or more immediately preceding the date of the filing of the petition for adoption, and, therefore, whether the court was justified in dispensing with the necessary parental consent by reason of such abandonment.
From the undisputed evidence and the facts shown in the record before us, considered in the light most favorable to appellees, it appears that the judgment of the lower court was based upon a factual situation which was in substance as follows:
Carolyn Marie Force, the child sought to be adopted was the daughter of the appellant, Mary Force, who had lived with William Force in Greene County, Indiana, and bore him two children, an older boy and the daughter in question. William Force moved the appellant out of his home and to other quarters from which she moved to Jasonville, Indiana, shortly prior to the birth of Carolyn Marie Force. Some three months after the birth of Carolyn Marie Force, and in July, 1952, for the *160 purpose of seeking employment, Mary Force took such child with her and went to Richmond, Ind, to live in the appellees' home, the appellee, Margie Stiens, being a sister of William Force, the father. Some time thereafter Mary Force was able to obtain employment at a ten-cent store and then at the Atlas Underwear Company where she made approximately $30.00 per week. Mary Force lived at the home of the appellees together with Carolyn Marie Force for about three weeks. There is evidence in the record that the appellees did not consider that appellant gave such child the proper care and attention while she was there in the home with it, and that Mary Force let the appellees take care of the baby and its needs, and that Mary Force had stated she would not take the child away from them. From the period of July, 1952, until March, 1953, the appellant mother continued to live in Richmond, Indiana, and the mother visited with this child on occasions varying from once a week to two or three times a week during which time the appellees testified that she failed to pay proper attention to her baby and left the care of such child to others. Appellee, Margie Stiens, also testified that Mary Force did not contribute to the support of such child except for the purchase of a minor clothing item.
In October, 1952, Mary Force took her child, Carolyn, to Cincinnati, Ohio, for a visit and returned to the appellees' home a few days later and after Mary Force brought the child back to petitioners' home she continued such visits to their home and to her child. The appellant's work at the factory was reduced to three days per week and she returned to Jasonville in the Spring of 1953 where she acquired work at the Form-Fit Company and is now employed there. In April, 1953, and on the Saturday after Easter, the appellant mother went to the home of appellees and asked for her child *161 and her child's clothing and stated that she wanted to take the child to Jasonville, Indiana. On such occasion the appellee, Margie Stiens, admitted that she forcibly restrained Mary Force from taking her child from appellees' home and that the appellee, Margie Stiens, slapped the mother who was not permitted to take the child. Shortly thereafter, on the 16th day of April, 1953, the appellees filed this petition for adoption.
While adoption is a practice of antiquity with its main roots being nurtured under the Roman law, in England there is no provision for adoption at common law or under statute. In the United States adoption exists solely by statute and it is uniformly held in this country that statutes authorizing adoption are in derogation of the common law which made no provision for the adoption of children, and since in such proceedings natural parents are deprived of all their rights as such forever, such statutes must receive a strict construction. Glansman v. Ledbetter (1921), 190 Ind. 505, 130 N.E. 230; 2 C.J.S., Adoption of Children, § 6, pp. 374, 375.
There seems to be a practical unanimity in the cases as to the definition of the word "abandonment" when used in an adoption statute, and that is, that abandonment exists when there is such conduct on the part of a parent which evidences a settled purpose to forego all parental duties and relinquish all parental claims to the child for the time prescribed by statute; 2 C.J.S., Adoption of Children, § 21, p. 388. The foregoing definition is supported by a long list of authorities cited in an exhaustive case note in 35 A.L.R. 2d 662-702 at page 665. The overwhelming weight of authority in the adjudicated cases supports a definition *162 which contains language expressive of a general idea that it is a complete and absolute relinquishment which constitutes abandonment. 35 A.L.R.2d 666; Re Rice (1923), 179 Wis. 531, 192 N.W. 56; Re Cody (1915), 169 Cal. 150, 146 P. 532, 534; Re Kelly (1914), 25 Cal. App. 651, 145 P. 156; Pitzenberg v. Schnack (1932), 215 Iowa 466, 245 N.W. 713; Re Bistany (1924), 239 N.Y. 19, 145 N.E. 70; Mastrovich v. Mavric (1939), 66 S.D. 577, 287 N.W. 97; Johnson v. Strickland (1953), 88 Ga. App. 281, 76 S.E.2d 533; Re Harvey (1953), 375 Pa. 1, 99 Atl.2d 276; Re McCann (1932), 104 Pa. Super. 196, 159 Atl. 334; Platt v. Moore (1944), Tex. Civ. App., 183 S.W.2d 682; Jackson v. Russell (1951), 342 Ill. App. 637, 97 N.E.2d 584.
In addition to the decided cases which establish an unconfuted rule that to constitute abandonment conduct on the part of the parent must be shown which evidences a settled purpose to forego all parental duties and relinquish all parental claims to the child, Webster defines the word "abandon" as meaning "to relinquish or give up with the intent of never again resuming or claiming one's rights in; to give up absolutely; to desert ..." Webster's New International Dictionary, 2d ed., p. 2.
We are not unmindful of the existence of a criminal statute in this state which defines abandonment, and contains the following provision:
"Abandonment of a child shall consist in any of the following acts by any one having the custody or control of the child; (a) wilfully forsaking a child; (b) failing to care for and keep the control and custody of a child so that the child shall be exposed to physical or moral risk without proper and sufficient protection; (c) failing to care for and keep the control and custody of a child so *163 that the child shall be liable to be supported and maintained at the expense of the public, or by child caring societies or private persons not legally chageable with its or their care, custody and control."
Sec. 10-813, Burns' 1942 Replacement (Supp.). However, such statute is criminal in nature providing punishment for the acts prohibited by statute. There is no such definition of abandonment contained within the adoption statute in this state, and the foregoing criminal statute makes no reference to the adoption statute. Since the adoption statute provides for a proceeding wholly unrecognized at common law, and therefore must be strictly construed, in the absence of legislative enactment providing for any definition of abandonment under such adoption statute, and since the aforementioned criminal statute contains no reference whatsoever to adoption proceedings, we must look to the common law for a definition of the meaning of the term "abandonment" as used in the adoption statute. Furthermore, in all good sense and reason any attempt to hold the foregoing criminal statute applicable to adoption proceedings would make a child subject to adoption without parental consent where such child had only been voluntarily and temporarily placed with relatives and who was receiving good care from such relatives, and would be directly contrary to all the decisions interpreting the adoption statute and the settled law on this question.
The rules in the adjudicated cases seem uniformly clear with reference to the essential elements to constitute an abandonment under the adoption statute. Some difficulty has arisen in a very small minority of the cases in the application of the legal definition of abandonment to the facts of the particular case. In the matter of determining whether there is an *164 abandonment such issue must not be confused with the matter of the determination of the custody of children. In the case before us, it must be determined from the record whether there is any evidence of probative value that the mother of this child had abandoned it, and until there is evidence from which the lower court could have reasonably concluded that such child had been abandoned, the court had no right to deprive the natural parent of her right to her child in the absence of her consent, or the making of such child a ward of the court. Before there is evidence adduced from which it could have reasonably concluded that such child had been abandoned, it was not proper for the lower court to make a comparison of homes or an application of the "best interests of the child" rule. Once that abandonment is shown then the only issue remaining is whether the proposed adoptive parents are fit and proper persons to be permitted to adopt and have the custody of the child.
Difficulty has arisen in cases in a few other jurisdictions where the court has confused the issues in cases involving the custody of children in which the "best interests of the child" rule applies and cases where the petition seeks to deprive the natural parent of her right to her child forever. A confusion of such issues in judicial decisions could lead to the arbitrary splitting up of families on the whims of a trial judge and the removal of a child from the mother who bore it simply because of her poverty or even a mode of life contrary to that of the trial judge before whom the petition was heard. Such a result would lead to serious consequences to the family relationship, the tie which unquestionably holds our society together, and to our established rules of justice and natural rights which have long been declared as a part of our common *165 law, and the rule which our courts have uniformly and consistently laid down that any legislative enactment in derogation of such common law must be strictly construed.
A slight confusion exists in a few cases, perhaps, by reason of some judicial impatience with the vagaries of parents during an era of a trend toward a welfare state, and the establishment of a governmental paternalism to a much greater degree over family relationships. Such decisions which fortunately are in a very small minority would by judicial construction give more and more power to public authorities and give to the state responsibilities which belong to private individuals and the family as a unit under existing statutes and long established rules of the common law which recognize natural rights that will always exist as long as there are just governments among men.
The facts of this case bring into focus a situation where the mother of a child who had been deserted by the father took the child with her to another city seeking employment, and with the child moved into the home of the sister of the father of the child for a short period of time while she was seeking employment, and later secured employment living away from the home, making visits of from one to three times a week to see the child, bringing it an article of clothing, later taking the child on a trip of several days to Cincinnati, then after the mother had returned to her former home by reason of her employment necessities she came back to the home where the child was being maintained and attempted to take the child with her and was forcibly restrained and slapped by the persons who now seek to become the adoptive parents. All of these matters occurred between the time the mother *166 first went into the home of the adoptive parents in July, 1952, and the date of the filing of the adoption petition, which occurred on April 16, 1953, which was a very short time after the mother was forcibly restrained from taking her child from this home. During all of this period the child in question was in the first two years of its life and was visited by its mother regularly.
The appellees urged in their brief that by reason of a subsequent lack of care or concern for the baby on the part of the mother during the time she was living with it in appellees' home and in her subsequent visits, and the fact that they saw fit to do more for the baby than the mother, that such facts would constitute evidence that could reasonably infer abandonment. We do not so construe the law in the adjudicated cases as to the facts which are necessary to show an abandonment, or that this conduct was sufficient to show that the mother, Mary Force, evidenced a settled purpose to forego all parental duties and relinquish all parental claims to the child. The appellees also urge that the fact that the mother on several different occasions wrote out a consent to adoption which she tore up without delivering it to the appellees was evidence tending to show abandonment. In our judgment the tearing up of such consents could only lead to the reasonable inference that the mother did not desire nor intend to abandon this child. The mother was more or less continuously from week to week in the presence of this child and the record is devoid of evidence from which inferences could be drawn that she forsook such child and relinquished all parental claims to it.
We are not here concerned with a question as to whether or not abandonment once complete could be revoked by a parent at any time prior to the filing of a *167 petition for adoption as that matter is not before us by reason of the fact that there is no original abandonment shown from the evidence in this record.
For the reasons given herein the judgment and decision of the lower court was not sustained by sufficient evidence and was contrary to law.
Judgment reversed with instructions for the lower court to sustain appellant's motion for a new trial and for further proceedings not inconsistent herewith.
CONCURRING OPINION
KENDALL, J. concurs:
I agree with the majority opinion in the result reached but for altogether a different reason.
The order of adoption made by the trial court contained the following provisions:
"... and the court further finds that the Wayne County Department of Public Welfare has heretofore filed herein its report as to the proposed adoption of said child, and the court has duly examined the same and finds that, in said report, said department recommends the adoption of said child by the petitioners...."
The report of the Welfare Department as referred to in the Order was not introduced into evidence, and, therefore, is not a part of the record. Under such conditions, I cannot overlook that portion of the Order which says, "... the court has duly examined the same ... said department recommends the adoption of said child by the petitioners....". I do not believe that this court can overlook the fact that the party opposing the adoption did not have the opportunity to cross-examine the member of the Welfare Department submitting the report to the court which was examined by the court as to the items therein concerned upon which the Welfare Department based their recommendations. Under *168 these circumstances, I do not believe it proper for the trial court to bolster the decision by an instrument which is foreign to the evidence of the cause.
It may well be that a report made by the Welfare Department in the course of their duties might include statements and other evidence which would not be properly admitted as evidence in the trial of the cause, thus resulting in an unfair trial. People v. Lewis (1932), 260 N.Y. 171, 183 N.E. 350; Attkisson v. Usrey (1946), 224 Ind. 155, 65 N.E.2d 489.
For this reason, it is my opinion that the judgment should be reversed.
CONCURRING OPINION
ROYSE, C.J. concurs:
I agree this case should be reversed, and think it could be done for either the reasons stated in the majority opinion or the reasoning of the concurring opinion by Kendall, J.
NOTE. Reported in 131 N.E.2d 157.
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214 B.R. 208 (1997)
In The Matter of Larry D. WOERNER, Debtor.
Bankruptcy No. 96-40975.
United States Bankruptcy Court. D. Nebraska.
July 15, 1997.
*209 W. Eric Wood, Omaha, NE, for Debtor.
Victor E. Covalt, III, Lincoln, NE, for Pinnacle Peak International Asset Management Inc., as Trustee for the Secured Tax Lien Income Trust d/b/a PPI Omnibus ("PPI").
Richard K. Lydick, Omaha, NE, Chapter 12 Standing Trustee.
MEMORANDUM
JOHN C. MINAHAN, Jr., Bankruptcy Judge.
This case presents the question of whether a Chapter 12 plan may modify the rights of the holder of a "tax certificate" obtained pre-petition under Nebraska law. The plan is not confirmed because the interest of the tax certificate holder is not adequately protected. However, I conclude that the rights of the tax certificate holder may be modified in a confirmed Chapter 12 plan.
Facts
The debtor failed to pay real estate taxes on his farm for the years 1990 through 1993. On October 1, 1994, Nuckolls County "purchased" the debtor's farm by paying the county treasurer the amount of taxes due, plus interest and costs, as provided under section 77-1808 of the Nebraska Revised Statutes. The county treasurer issued a certificate of purchase (the "Tax Certificate") to the county and on March 27, 1995, the county assigned the Tax Certificate to Pinnacle Peak International Asset Management Inc., as Trustee for the Secured Tax Lien Income Trust, d/b/a PPI Omnibus ("PPI"), after PPI paid the tax delinquency, interest, and costs to the county ($4,869.03). Subsequently, PPI made additional payments of $485.71 and $1,004.32 for taxes due in 1994 and 1995.
On June 3, 1996, the debtor filed for bankruptcy under Chapter 12 of the Bankruptcy Code. PPI filed a claim in the amount of $7,243.08 which includes the amounts it paid for the Tax Certificate and additional amounts it paid for taxes, together with interest at a rate of 14% per annum as provided under sections 77-1824 and 45-104.01 of the Nebraska Revised Statutes. Under Nebraska law, if PPI is not paid all amounts due respecting the Tax Certificate, it may obtain a tax deed and may foreclose on the real estate. See Sections 77-1837 and 77-1902 of the Nebraska Revised Statutes. The real estate securing the Tax Certificate is valued at $72,000.00. It is undisputed that PPI holds an allowed secured claim for all amounts due on the Tax Certificate.
On November 14, 1996, the debtor filed a plan of reorganization which proposes to treat PPI's claim as a secured claim to be allowed in full. The plan provides for payment of PPI's claim over a period of five *210 years at the "Wichmann"[1] rate of interest (estimated to be 9% per annum) and states that PPI shall retain its lien on the property until such time as the claim has been paid in full. PPI objects to the plan because the five year amortization of payments on PPI's claim exceeds the period of time over which PPI has effective remedies upon default under state law respecting the Tax Certificate.
Law
Section 1222(b)(2) of the Bankruptcy Code specifically permits the Chapter 12 plan to modify the rights of holders of secured claims. Section 1225(a)(5) further provides that, with respect to each secured claim, a plan may be confirmed if the secured creditor accepts the plan, the debtor surrenders the collateral to the secured creditor, or if the plan provides that the secured creditor shall retain its lien in its collateral and be paid an amount, the value of which is equal to the allowed amount of the secured claim under section 506 of the Bankruptcy Code.
A secured creditor is entitled to have its interest in property adequately protected in the period of time after confirmation until it has been paid in full. In re Hanna, 912 F.2d 945 (8th Cir.1990). Under section 363(e) of the Bankruptcy Code, an entity that has an interest in property proposed to be used by the debtor is entitled to adequate protection of its interest in the property. Section 361 lists various means of providing adequate protection.
Discussion
PPI asserts that the proposed plan should not be confirmed because it modifies PPI's property rights relating to the Tax Certificate. PPI contends that under Nebraska law, it will lose its right to obtain a tax deed or foreclose its lien on the debtor's real estate after March 31, 1998, because the debtor's tax liability under the Tax Certificate will be extinguished at that time.[2] Since the payments to PPI under the proposed plan extend past March 31, 1998, PPI will be left without recourse under state law after this date if the debtor defaults in making payments to PPI.[3] Therefore, PPI asserts that the proposed plan impermissibly modifies its property rights.
PPI also asserts that the proposed plan should not be confirmed because it does not provide for payment of interest at the rate of 14 percent as provided under sections 77-1824 and 45-104.01 of the Nebraska Revised Statutes. PPI asserts that the proposed plan incorrectly lists the amount of PPI's claim as "approximately $6,750.00". Finally, PPI contends that payments under the Tax Certificate should be made to the Nuckolls County Treasurer as required by Sections 77-1824 and 77-1825 of the Nebraska Revised Statutes rather than to PPI directly.
PPI cites Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979), for its assertion that the debtor cannot use the Bankruptcy Code to alter its state law property rights. However, in Butner, the Court states:
*211 Unless some federal interest requires a different result there is no reason why such [property] interests should be analyzed differently simply because an interested party is involved in a bankruptcy. (Emphasis added).
Id. at 55, 99 S.Ct. at 918.
The creditor's reliance upon the Butner decision is misplaced. The Bankruptcy Code dramatically changes the rights of creditors as determined under state law. The Bankruptcy Code modifies the priority of claims, avoids liens, modifies interest rates, and very substantially changes the rights of a party in the interests of fairness to creditors and rehabilitating the debtor. However, a debtor's power to modify the rights of a secured creditor is balanced by Bankruptcy Code limitations. If a creditor does not consent to the proposed treatment of its claim under the plan, the debtor must permit the creditor to retain its lien and must pay the creditor the value of its collateral. In addition, a creditor is entitled to have its interest in property adequately protected.
Although it is permissible under the Bankruptcy Code for the debtor to modify the rights of PPI, modifications may not be contrary to the specific provisions of 11 U.S.C. § 1225(a)(5), which require that, absent consent, a secured creditor is entitled to retain its lien. The proposed plan will effectively deprive PPI of its lien because the lien will lapse under applicable non-bankruptcy law prior to the time PPI is paid in full. Under such circumstances it is unlikely that a Nebraska court would permit enforcement of the lapsed interest. See County of Sherman v. Evans, 252 Neb. 612, 564 N.W.2d 256 (1997). In addition, the plan should not be confirmed because the plan does not propose to adequately protect PPI from expiration of its interest in property. The plan is therefore not confirmed.
I conclude, however, that it is possible for the debtor to propose a confirmable plan which modifies the rights of PPI. PPI's argument that its rights and remedies under applicable nonbankruptcy law may not be modified, is without merit. The debtor may modify the rights of PPI as stated above. However, the debtor must devise a package of rights and remedies for PPI indubitably equivalent to the rights and remedies which PPI enjoys under state law with respect to its existing lien. The proposed plan could, for example, grant an additional consensual lien to PPI with rights and remedies comparable to those under the Nebraska law respecting tax certificates.
I have previously addressed the issue of the appropriate rate of interest to be paid to an over-secured creditor. See In re Rupprect, 161 B.R. 48 (Bankr.D.Neb.1993), In re Cooper, 124 B.R. 797 (Bankr.D.Neb.1990). The applicable statutory or contractual interest rate governs interest accrued for the period of time up to the effective date of a confirmed plan. The statutory rate under Nebraska law is 14% in this case. Post-confirmation interest accrues at the market rate which is to be determined, in Nebraska Chapter 12 cases, in the manner provided in In re Wichmann, 77 B.R. 718 (Bankr.D.Neb. 1987). See In re Milleson, 83 B.R. 696 (Bankr.D.Neb.1988). Therefore, it is appropriate for the plan in this case to provide for post-confirmation interest to accrue at the market rate and not at the 14% statutory interest rate. Federal tax claims similarly draw interest at the market rate after confirmation. U.S. v. Neal Pharmacal Co., 789 F.2d 1283 (8th Cir.1986).
Finally, I conclude that the proposed plan should be amended to provide for the correct amount of PPI's claim, with interest determined as described herein, and that payments on the Tax Certificate shall be made to the Nuckolls County Treasurer.
IT IS THEREFORE ORDERED, that the plan is not confirmed. The debtor shall file an amended Chapter 12 plan consistent herewith within 21 days of the date hereof.
IT IS SO ORDERED.
NOTES
[1] This refers to a method of determining the appropriate interest rate to be paid to secured creditors in a Chapter 12 case as described in the case of In re Wichmann, 77 B.R. 718 (Bankr. D.Neb.1987).
[2] Sections 77-1837, 77-1856, and 77-1902 of the Nebraska Revised Statutes provide that if the holder of a tax certificate fails to demand a deed or commence a foreclosure action within six months after the expiration of three years from the date of sale of the tax certificate, the tax certificate shall cease to be valid and the subject property shall be released from any lien of the taxes for which it was sold. See Nebraska Revised Statutes §§ 77-1837, 77-1856, and 77-1902. The Tax Certificate was issued on October 1, 1994.
[3] Section 108(c) of the Bankruptcy Code arguably would provide the holder of a tax certificate 30 days after notice of termination or expiration of the automatic stay, in which to pursue rights and remedies under state law. Some courts have applied that section to the time period during which a creditor must bring an action to enforce a lien. See, e.g., In re Hunters Run Ltd. Partnership, 875 F.2d 1425 (9th Cir.1989) (mechanics lien); In re Decker, 199 B.R. 684 (9th Cir. BAP 1996) (tax lien). However, the Nebraska Supreme Court has not so held, although that argument has been recognized in a concurring opinion. See, County of Sherman v. Evans, 252 Neb. 612, 564 N.W.2d 256 (1997). The debtor has not relied on section 108(c), and thus this specific issue is not before the court.
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817 So.2d 1152 (2002)
STATE of Louisiana
v.
Tharon L. NARCISSE.
No. 2001-K-2231.
Supreme Court of Louisiana.
June 14, 2002.
Denied.
KNOLL, J., recused.
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OtitIT(-F APTEALS- DIY I
SThIE OF WAS1ING1ON
2018 JUN 25 AM 8:16
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of )
) No. 76971-5-1
J.J., )
DOB: 11/27/07, ) DIVISION ONE
)
Minor Child. ) UNPUBLISHED OPINION
)
STATE OF WASHINGTON, )
DEPARTMENT OF SOCIAL AND )
HEALTH SERVICES, )
)
Respondent, )
)
v. )
)
PATRICIA DIMITRY, )
)
Appellant. ) FILED: June 25, 2018
)
TRICKEY, J. — Following an 11-day trial, the juvenile court terminated the
legal rights of Patricia Dimitry, legal custodian of 9-year-old J.J., under the
statutory provisions set forth in chapter 13.34 RCW. Substantial evidence
supports the court's finding that the Department of Social and Health Services
offered all necessary and available services capable of correcting Dimity's
parental deficiencies. The court did not abuse its discretion by limiting portions of
expert testimony offered by Dim itry. We affirm.
No. 76971-5-1/ 2
FACTS
This case concerns J.J., a child born to Laura Jenkins on November 27,
2007 in Louisiana. Patricia Dimitryl became J.J.'s legal custodian in June 2009,
after Jenkins approved a "Consent Judgment on Custody Child Support" in
Louisiana purporting to transfer legal custody to Dimitry.2
Before J.J. was born, Dimitry was involved in serious crimes and was
convicted of two counts of accessory after the fact to first degree murder. She
served approximately five years in a Louisiana correctional facility, where she
reconnected with Jenkins, and was released in 2007.
After J.J.'s birth, Dimitry, Jenkins, and J.J. lived together. In 2010, they
moved to Texas. There, Jenkins gave birth to another child, A.D. After a fire
destroyed their home in Texas, they moved for a brief period to Utah and then to
Hawaii. In both Texas and Hawaii, Child Protective Services (CPS) received
reports regarding the welfare of the children. Eventually, they relocated to
Seattle where Dimitry believed she would find employment selling artwork at Pike
Place Market.
In March 2014, when J.J. was 6 years old, a staff member of a Seattle
homeless shelter reported to CPS that J.J. and A.D. appeared to be
malnourished and dirty, and expressed concerns about the safety of their living
arrangements. The Department of Social and Health Services (the Department)
1 Some documents in the record refer to Dimitry by her former names, Patricia Guillory
and Patricia Biehn.
2 Ex. 22. The rights of J.J.'s biological parents are not at issue in this appeal, nor does
this appeal pertain to J.J.'s half-sister, A.D.
2
No. 76971-5-1/ 3
took the children into protective custody. The children were placed in licensed
care and have not been returned to Dimitry's or Jenkin's care since that time.
When J.J. came into state custody, he had few verbal or social skills, did
not understand the concept of meals or bedtime, could walk but not run, and did
not appear to be toilet-trained. He had significant dental problems that took
months to resolve. After he was placed in licensed care, J.J. was diagnosed with
posttraumatic stress disorder(PTSD).
In May 2014, the court entered agreed dependency orders for J.J. as to
both Dimitry and Jenkins. The agreed-upon factual basis for the dependency
included Dimitry's criminal history, her acknowledged physical and mental health
conditions, J.J.'s sporadic school attendance, and housing instability. The
dispositional order required Dimitry to obtain a psychiatric evaluation with a
parenting component to be completed by a specific provider, Dr. Joanne
Solchany, a psychiatric nurse practitioner, and to follow any treatment
recommendations resulting from that evaluation. The order also required Dimitry
to engage in 90 days of urinalysis testing and to maintain stable housing suitable
for children.
Dimitry obtained the court-ordered psychiatric evaluation and successfully
completed the required urinalysis testing, but otherwise did not consistently
engage nor successfully complete the services recommended following the
evaluation.
In December 2014, based on her psychiatric evaluation of Dimitry, Dr.
Solchany concluded that Dimitry met the criteria for a diagnosis of "not otherwise
3
No. 76971-5-1 / 4
specified personality disorder" and also the criteria for borderline, antisocial,
narcissistic, and histrionic personality disorders. Dr. Solchany found that these
diagnoses affected Dimitry's ability to parent. For example, Dimitry
demonstrated difficulty focusing on J.J. rather than herself, was impulsive and
unstable, and showed a propensity toward anger. Dr. Solchany concluded that
Dimitry's prognosis was "poor" and that she was not able to safely parent J.J.3
Dr. Solchany described these conditions as "pervasive," "inflexible," and "often
very difficult to treat."4
Dr. Solchany recommended that Dimitry participate in dialectical
behavioral therapy (DBT) in a group-based program coupled with individual
counseling to help her develop insight and accountability for her actions and
choices. Dr. Solchany recommended that Dimitry participate in mental health
treatment for at least a year, and preferably for two years. She also
recommended that Dimitry continue to participate in parent coaching in order to
develop empathy and insight.
Department social worker Denise Huynh was assigned to J.J.'s case
throughout the dependency period. During this time, Huynh made approximately
20 referrals for Dimitry. These included referrals to Sound Mental Health for
mental health therapy, referrals for parent coaching and parent training, for in-
home services, and referrals for visitation supervisors. The social worker also
provided bus tickets to Dimitry. Dimitry never inquired of the social worker about
32 Report of Proceedings(RP)at 270-71.
4 6 RP at 881.
4
No. 76971-5-1/5
J.J.'s progress in school or his health, nor asked to attend any of his
appointments.
In the summer of 2014, Dimitry participated in two sessions of mental
health treatment with a therapist at Sound Mental Health, but did not continue.
Two years later, Dimitry participated in DBT for about six months with a different
provider, John Buscher. Although Dr. Solchany recommended a group therapy
component, Dimitry did not want to participate in group therapy because it made
her feel anxious, so Buscher agreed to provide DBT on an individual basis.
However, Dimitry's engagement was intermittent; she saw Buscher
approximately 10 times during the six month period, did not complete the
assigned homework, and eventually stopped participating altogether because
she had "a lot going on."5 Buscher explained that DBT consists of four modules
and Dimitry failed to complete any of the modules. According to Buscher, Dimitry
would need to consistently participate in DBT for at least nine months to finish
the modules and only then could he assess her progress.
Dimitry worked with two parent coaches during the dependency. Esther
Patrick provided parent coaching to Dimitry for approximately a year until
October 2015, when Dimitry refused to work with her any longer. Although
Patrick made herself available to meet regularly and was willing to provide the
service at Dimitry's home, Dimitry met with her only approximately 12 times over
the course of 13 months. According to Patrick, Dimitry's home was not safe or
55 RP at 588.
5
No. 76971-5-1/6
suitable for children. It was unhygienic, infested with bedbugs and cockroaches,
and did not improve despite the household assistance she provided.
Dimitry largely failed to engage during the sessions and was more focused
on her boyfriend. Patrick attempted to conduct visitation observations, but
Dimitry did not attend the scheduled visits. Dimitry insisted that she did not need
the service because she is an experienced parent. Although Dimitry denied it,
Patrick also suspected that Dimitry was involved in a domestic violence
relationship based on her observation of suspicious and extensive bruising. On
one occasion, she also observed cuts on Dimitry's wrists. Dimitry admitted that
she had harmed herself, and blamed the social worker. Patrick recommended
that Dimitry participate in domestic violence services and mental health
treatment.
Mental health therapist Carmela Martin provided further parent coaching
to Dimitry. Martin worked with Dimitry individually, and also listened in on a
telephone visit with J.J., and observed two in-person visits with J.J. Dimitry
required intervention to maintain appropriate boundaries, engage in age-
appropriate communication, and provide a safe environment for J.J. Although
Dimitry maintained that she did not require assistance, she did not demonstrate
an ability to prioritize and meet J.J.'s needs. Dimitry's inability to accept
constructive criticism impeded her ability to make progress. Eventually, based
on her determination that the telephone visits were harmful to J.J., Martin
recommended suspension of contact between Dimitry and J.J.
6
No. 76971-5-1/ 7
When the dependency was first established, the court allowed Dimitry to
have three supervised visits per week with J.J. Dimitry visited J.J. somewhat
regularly for the first few months, but then began to miss her visits. Over the
span of 14 months, between August 2014 and October 2015, Dimitry visited J.J.
10 times, although she was permitted to have more than 100 visits during that
time. Dimitry said she was unable to attend many visits due to transportation
issues.
In October 2015, after J.J. was admitted to the Ryther Center for Children
and Youth due to escalating behavior problems in his foster home, Dimitry's
visitation changed to weekly 15-minute supervised telephone contact. In
December 2015, the Department moved to terminate Dimitry's custodial rights.
In March 2016, J.J. transitioned to a second foster care placement. About
six months later, around the time of J.J.'s two observational in-person visits with
Dimitry, he displayed new and concerning behaviors. J.J. consistently expressed
to the social worker, the Court Appointed Special Advocate (CASA), and others
that he did not feel safe with Dimity and did not want in-person or other regular
communication with her. Three months before trial, the court suspended all
visitation with Dimitry on the ground that the visitation was psychologically and
emotionally harmful to J.J. and had caused him to regress, decompensate, and
suffer additional trauma.
7
No. 76971-5-1/8
Shortly before the trial, the court conducted a conference with a Louisiana
court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act.6
Louisiana relinquished jurisdiction in favor of Washington.
The trial on the Department's petition took place in May 2017, when J.J.
was 9 1/2 years old and had been out of Dimitry's care for more than three years.
Although J.J. still had special needs due to his PTSD diagnosis, speech delays,
and behavioral challenges, he had significantly improved with regard to speech,
mobility, and emotional regulation. His behavior significantly improved after
contact with Dimitry was suspended. He continued to visit weekly with his half-
sister, A.D. Dimitry did not attend the tria1.7
After considering the testimony of 10 witnesses and 39 exhibits, the court
entered over 85 findings of fact and conclusions of law and an order terminating
the legal relationship between Dimitry and J.J.
ANALYSIS
The juvenile court concluded that Dimitry was J,J.'s legal custodian and a
proper party to these proceedings and that termination of her legal rights was
governed by the rigorous standards set forth in chapter 13.34 RCW. The
Department has not filed a cross appeal challenging those rulings. We therefore
6 See Washington State's Uniform Child Custody Jurisdiction and Enforcement Act,
chapter 26.27 RCW.
7 According to a document Dimitry submitted after the trial, she explained that she now
lives in California and was unable to travel to Washington for the trial. She further stated
that she did not want to attend trial because she believed that the Department's attorney
would only want to discuss her prior criminal history.
8
No. 76971-5-1 / 9
assume for purposes of this appeal that the statutes applicable to the termination
of parental rights apply here.8
Under the termination statutes, the juvenile court may order termination of
parental rights if (1) the State proves the six statutory elements of RCW
13.34.180 by clear, cogent, and convincing evidence; and (2) the court finds that
termination is in the child's best interests. RCW 13.34.190; In re Dependency of
K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999). In this appeal, only one of
the six statutory elements under RCW 13.34.180(1) is at issue:
(d) That the services ordered under RCW 13.34.136 have been expressly
and understandably offered or provided and all necessary services,
reasonably available, capable of correcting the parental deficiencies within
the foreseeable future have been expressly and understandably offered or
provided.
RCW 13.34.180(1)(d).8 Clear, cogent, and convincing evidence is evidence that
shows the ultimate fact at issue to be highly probable. K.S.C., 137 Wn.2d at 925.
We give deference to the trial court in weighing the evidence and witness
credibility. In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).
8 Contrary to Dimitry's argument it is neither "undisputed" nor established that she is
J.J.'s de facto parent. Opening Br. of Appellant at 8. However, in light of the court's
application of the termination statutes, Dimitry's argument that she is entitled to the
same rights as biological parents is moot.
9 The other statutory elements are as follows:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant to RCW
13.34.130;
(c) That the child has been removed or will, at the time of the hearing,
have been removed from the custody of the parent for a period of at least
six months pursuant to a finding of dependency;
(e) That there is little likelihood that conditions will be remedied so that
the child can be returned to the parent in the near future. .. ; and
(f) That the continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable and
permanent home.
RCW 13.34.180(1).
9
No. 76971-5-1 / 10
"The court's factual findings must be upheld if supported by substantial evidence
from which a rational trier of fact could find the necessary facts by clear, cogent,
and convincing evidence." K.S.C., 137 Wn.2d at 925. Evidence is substantial if
it is sufficient to persuade a fair-minded person of the truth of the fact at issue. In
re Welfare of S.J., 162 Wn. App. 873, 881, 256 P.3d 470(2011).
Necessary and Reasonably Available Services
Dimitry contends that the Department failed to offer all necessary and
reasonably available services to address her mental health issues. This is so,
she argues, because the psychiatric evaluation performed by Dr. Solchany did
not include psychological testing or other "rigorous methodology," and therefore
did not provide an accurate diagnosis or result in recommendations for
appropriately tailored mental health services.10
The chief problem with Dimitry's argument is that the psychiatric
evaluation does not fall within the definition of a necessary service. A necessary
service is a service "needed to address a condition that precludes reunification
of the parent and child." In re Matter of K.M.M., 186 Wn.2d 466, 480, 379 P.3d
75 (2016) (quoting In re Dependency of A.M.M., 182 Wn. App. 776, 793, 332
P.3d 500 (2014)). As Dimitry acknowledges, the purpose of the evaluation itself
was not to enable reunification, but to direct her toward appropriate services.
The mental health treatment that followed from the evaluation, not the evaluation
itself, was the service necessary to address a condition precluding reunification.
10 Opening Br. of Appellant at 13.
10
No. 76971-5-1 / 11
Here, Dimitry does not identify a mental health or other supportive service
that would have been helpful that the Department failed to offer. The service that
Dr. Solchany recommended—DBT therapy—was the same service that John
Buscher recommended. Buscher's recommendation was independent of Dr.
Solchany's diagnosis and was based on Dimitry's own report of her symptoms
and prior PTSD diagnosis. Buscher was provided with Dr. Solchany's report at
some point and questioned whether her diagnosis of personality disorder not
otherwise specified was correct given that she also designated specific types of
personality disorders, including narcissistic and oppositional. Nevertheless, his
testimony reveals that any disagreement with Buscher's diagnosis was
immaterial because he concurred with Dr. Solchany's treatment
recommendation. The testimony establishes that DBT is broadly recommended
for a "wide range" of disorders with overlapping symptoms, including personality
disorder, anxiety disorder, and PTSD, because it is helpful to manage a common
array of symptoms."
Moreover, Dimitry's participation in the mental health services that were
available to her was minimal and sporadic. Due to her limited participation, she
failed to make progress to address her deficiencies—including a pervasive
inability to recognize J.J.'s needs and to put those needs above her own—
through mental health treatment. It is well-settled that "[w]hen a parent is
unwilling or unable to make use of the services provided,[the Department] is not
required to offer still other services that might have been helpful." In re
"5 RP at 590.
11
No. 76971-5-1 / 12
Dependency of T.R., 108 Wn. App. 149, 163, 29 P.3d 1275 (2001). Thus, even
assuming that an evaluation that included diagnostic testing might have provided
additional diagnoses or insights not discovered in Dr. Solchany's psychiatric
evaluation, there is no reason to believe that Dimitry would consistently have
participated in any additional services given her failure to avail herself of the
mental health services that were offered to her.
Substantial evidence supports the juvenile court's determination that the
Department offered all necessary and reasonably available services to Dimitry.
Expert Testimony
Dimitry contends that the juvenile court abused its discretion in limiting
expert witness testimony. Dimitry contends that the court's ruling improperly
excluded "critical information about Dr. Solchany's evaluation and methods."12
At trial, Dimitry sought to present the expert testimony of psychologist Dr.
Daniel Rybicki. Dr. Rybicki had not met or evaluated Dimitry, but was prepared
to testify about Dr. Solchany's methodology and the quality of her evaluation.
Both the Department and the CASA objected to the proposed testimony on the
ground that Dr. Rybicki, a licensed and forensic psychologist, was not qualified to
offer an opinion on the methodology of a psychiatric nurse practitioner.
After hearing extensive testimony about Dr. Rybicki's qualifications and
expertise, the court took a recess to review respondent's exhibit 79, which
Dimitry acknowledged accurately set forth all aspects of Dr. Rybicki's proposed
testimony. The court granted the Department's motion to exclude Dr. Rybicki's
12 Opening Br. of Appellant at 22.
12
No. 76971-5-1 /13
testimony, in part, and denied it, in part. The court ruled that Dr. Rybicki, as a
"very experienced psychologist," could testify about Dr. Solchany's "Axis 11
diagnosis issues," specifically with regard to personality disorders and the "catch-
all diagnosis" of personality disorder not otherwise specified.13
The court allowed Dr. Rybicki to testify about four specific critiques listed
on exhibit 79. In particular, the court ruled that Dr. Rybicki could testify about the
accuracy of Dr. Solchany's diagnosis, her failure to cite specific examples of
behaviors or incidents to validate her clinical impressions, her failure to conduct
psychological testing to support the diagnosis, and failure to establish a link
between the diagnosis and parental deficits. This ruling excluded Dr. Rybicki's
opinions about whether Dr. Solchany's evaluation, conducted in December 2014,
was stale, whether she spent a sufficient amount of time conducting the
individual interview, whether she took steps to reduce "'confirmatory bias" or
"'observer drift," the number of collateral sources she included, and her failure to
conduct "structured segments" in her observational sessions."
Under ER 702, "[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." In other
words, the rule allows an expert to testify about his or her specialized knowledge
if it would help the court understand the evidence, but does not require the court
to admit proffered expert testimony that is not helpful to the trier of fact. The trial
13 7 RP at 1003.
14 Ex. 79.
13
No. 76971-5-I /14
court has broad discretion in determining the admissibility of an expert's
testimony. In re Det. of McGary, 175 Wn. App. 328, 339, 306 P.3d 1005 (2013).
An abuse of discretion occurs when a trial court's decision is "manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons."
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). If the
basis for the admission or exclusion of expert opinion is fairly debatable, we will
not disturb the trial court's ruling. In re Det. of Coe, 160 Wn. App. 809, 818, 250
P.3d 1056 (2011).
The juvenile court thoroughly considered the requirements of ER 702, the
expert's qualifications, and the offer of proof in making its ruling. The court
allowed a significant amount of testimony from Dr. Rybicki. Dr. Rybicki testified
in accordance with the ruling. Contrary to Dimitry's argument, the court allowed
Dr. Rybicki's testimony about the "failure to include psychological testing specific
to personality disorders."15 To the extent that the court sustained an objection to
testimony about the inadequacies of Dr. Solchany's methodology, the objection
pertained to the reference to "collateral source data," which was beyond the
scope of the ruling.16 Dr. Rybicki testified about the accuracy of Dr. Solchany's
"grab bag" diagnosis of personality disorder not otherwise specified.17 He
discussed Dr. Solchany's failure to identify "specific behavioral examples" to
157 RP at 1012.
16 7 RP at 1013.
177 RP
at 1019-20.
14
No. 76971-5-1 / 15
support her diagnosis.18 He also opined that Dr. Solchany failed to explain how
the diagnosis affected Dimitry's ability to safely parent.
The court's ruling limiting Dr. Rybicki's testimony to matters within his
expertise as a psychologist was not manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons.
We affirm the juvenile court's order terminating the legal relationship
between Dimitry and J.J.
.-------
1 r ‘% cifr\ey
i- 1-i
WE CONCUR:
..
187
RP at 1021.
15
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42 F.Supp.2d 660 (1999)
TEXAS INSTRUMENTS, INC., Plaintiff,
v.
HYUNDAI ELECTRONICS INDUSTRIES, CO. LTD., Hyundai Electronics America, Inc., and Hyundai Semiconductor America, Inc., Defendants.
Nos. 2:98CV73 TH, 2:98CV74 TH, 2:98CV77 TH, 2:98CV223 TH, 2:98CV224 TH, 2:98CV225 TH and 2:99CV1 TH.
United States District Court, E.D. Texas, Marshall Division.
February 4, 1999.
*661 *662 Kenneth Robert Adamo, Jones Day Reavis & Pogue, Jay Carl Johnson, Texas Instruments Incorporated, Dallas, Carl R Roth, Law Office of Carl R Roth, Marshall, Barry Satine, Jones Day reavis & Pogue, Michael Covino, Jones Day Reavis & Pogue, New York, NY, for Texas Instruments Incorporated, plaintiffs.
Thomas John Ward, Brown McCarroll & Oaks Hartline, Longview, David J Beck, Beck Redden & Secrest LLP, Houston, TX, George Marcus Schwab, Mark T Jansen, Roger Cook, Townsend & Townsend & Crew, San Francisco, CA, Kenneth L Nissly, Thelen Reid & Priest LLP, San Jose, CA, for Hyundai Electronics Industries Co. Ltd., Hyundai Semiconductor America, Inc., Hyundai Electronics America, Inc., defendants.
Elizabeth Ellen Mack, Locke Purnell Rain Harrell, Dallas, TX, Anthony de Alcuaz, Howard Rice Nemerowski Canady, Palo Alto, CA, for Nikon Precision Inc., movant.
Roderick M. Thompson, Pillsbury Madison & Sutro, San Francisco, CA, for DNS Electronics, LLC.
MEMORANDUM AND OPINION ORDER
HEARTFIELD, District Judge.
Before this court is Plaintiff Texas Instruments Incorporated's Motion for Partial Summary Judgment and Memorandum in Support Thereof[1] [83, 84, and 85 of 2:98-cv-74] and Defendant Hyundai's Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment[2] [67 of 2:98-cv-73]. Having considered the motions, the replies, the sur-replies, the arguments of counsel, and the pleadings on file, this Court hereby GRANTS Plaintiff Texas Instruments Incorporated's Motion for Partial Summary Judgment and Memorandum in Support Thereof [83, 84, and 85 of 2:98-cv-74] and DENIES Defendant Hyundai's Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment [67 of 2:98-cv-73].
1. The Extensive History Between Texas Instruments and Hyundai
A. Texas Instruments and Hyundai The Parties Forge a Relationship
As stated earlier, this lawsuit represents merely the tip of the litigation iceberg between Texas Instruments and Hyundai. *663 In order to rule on the parties' summary judgment motions, it is incumbent upon this Court to track the events between Hyundai[3] and Texas Instruments, Incorporated ("Texas Instruments") that led up to this pivotal point in Marshall, Texas.[4] First of all, these parties are not strangers to the Eastern District of Texas, Marshall Division. In September 1992, Texas Instruments filed a patent-infringement lawsuit against Hyundai in this very Court. However, on April 26, 1993, Texas Instruments and Hyundai settled that lawsuit by entering into a patent cross-license agreement.[5] The fifty-five (55) page agreement aptly titled the "License Agreement" granted Hyundai freedom to use certain Texas Instruments patents (even those issued after the effective date of the license) around the world. It also granted Texas Instruments similar freedom to use Hyundai's patents around the world. Pursuant to the License Agreement, Hyundai agreed to pay Texas Instruments royalties subject to specified caps. Although both parties were able to come to terms with the fifty-five page contract, all good things must come to an end.
The License Agreement consists of two "periods." Under Article 5.1 of the agreement, the "First Period" ended on December 31, 1995. License Agreement at 29 Under Article 5.2 of the license agreement, the "Second Period," the current period in dispute, began on January 1, 1996 and terminates either upon December 31, 2000 or when "cumulative worldwide sales of ROYALTY BEARING PRODUCTS"[6] reaches three billion eight hundred ninety-five million and one hundred thousand U.S. dollars (U.S.$3,895,100,000) (the "sales cap").[7]License Agreement at 30. Obviously, December 31, 2000 is not here. Thus, the crux of the present dispute is whether Hyundai's cumulative worldwide sales of semiconductive elements and semi-conductive apparatus (other than discrete devices) for the period commencing on January 1, 1996, have indeed reached the sales cap of $3,895,100,000.[8] Regardless of *664 the amount of sales to date, Texas Instruments and Hyundai realized the need to begin license renewal negotiations.
B. Renewal Negotiations Friendly Discussions Begin
1. The Fundamentals of Semiconductor Chip Patent Negotiations
On May 15, 1997, Texas Instruments and Hyundai began renewal negotiations with the exchange of their "proud lists." Apparently, "proud lists" are representative lists of patents that each company believes are particularly applicable to its negotiating partner's business and products.[9] Well, why not just list the specifically covered patents and be done with it? Welcome to the wild world of semiconductor technology patent negotiations. Semiconductor devices are tiny silicon chips about one-half the size of a thumbnail which contain over sixty million transistors. These chips are now manufactured with tolerances between electrical circuits as close as .18 microns.[10] They can literally store an encyclopedia of information. However, it is exceedingly difficult to determine whether a semiconductor chip infringes upon any patent without "reverse engineering" the device a costly and time-consuming endeavor. Moreover, semiconductor chips are easily transferrable and difficult to track. Finally, large companies like Texas Instruments and Hyundai have thousands of patents around the world, with so many patents worldwide, it is quite possible for Texas Instruments and Hyundai to have multiple patents maturing and expiring every day.[11] Thus, parties like Texas Instruments and Hyundai when drafting a license agreement do not negotiate a single contract for a single patent for a single product. For although such a highly specified endeavor would undoubtedly yield certainty as to which patent is covered by the contract, it would not provide the expansive patent coverage sought by both parties. So, parties like Texas Instruments and Hyundai turn to broad, portfolio-like cross-license agreements such as the one currently in dispute before this Court In order to accommodate the large size of companies and the fluid nature of semiconductor patent technology, these cross-license agreements usually include patents that come into existence after execution of the contract. By using this expansive cross-license agreement procedure, mammoth companies like Texas Instruments and Hyundai avoid the costly and inefficient endeavor of a patent-by-patent licensing scheme.[12]
2. Standstill Agreements Extend License Negotiations
So, beginning in March of 1997, Texas Instruments and Hyundai agreed to conduct license renewal negotiations without resort to litigation through a "standstill agreement" that would expire in mid-February 1998. Texas Instruments argued that the License Agreement terminated in late 1997 when, according to Dataquest's[13] calculations, the sales cap had been reached. On January 20, 1998 during a *665 negotiation session, Hyundai proffered its argument why it believed (and continues to believe) the sales cap has in fact not been reached. Hyundai argued (for the first time according to Texas Instruments) that not all of its sales are to be counted in calculating the sales cap Specifically, Hyundai argued that the License Agreement provided that only products covered by the claim of a Texas Instruments patent count toward the sales cap. In essence, Hyundai told Texas Instruments that "royalty bearing products" (products which count toward the sales cap) were limited to products which practice a Texas Instruments patent, in force at the time the product is sold, in the country in which the sale occurs (the "TI Countries"). Hyundai conceded that TI Countries included the United States, Canada, and several European countries[14] which it "credited" to the sales cap calculation. Through the end of April of 1998, Hyundai credited $3,002,140,000 in sales in these "TI countries" toward the sales cap calculation, thereby placing Hyundai roughly $900,000,000 under the sales cap. But these were not all of Hyundai's sales. Hyundai argued that the following countries were (and still are) "Non-TI Countries" whose sales are not applicable to the sales cap calculation: Australia, Brazil, China, Hong Kong, India, Israel, Korea, Malaysia, Philippines, Malta, Russia, Singapore, Thailand, Turkey, and Taiwan.[15] Under Hyundai's interpretation of the License Agreement, Texas Instruments would not receive credit toward the sales cap calculation for products sold in these "Non-TI Countries." However, had Hyundai included all of these "Non-TI Countries" in its calculation of the sales cap, then, by its own calculations under its own interpretation of the License Agreement, its total worldwide sales of royalty bearing products would have been $4,521,528,000 by April 1998 far over the termination cap of $3,895,100,000.[16] At Hyundai's request, Texas Instruments agreed to two extensions to this standstill agreement. On May 1, 1998 the last extension to the standstill agreement expired. Negotiations had failed.[17] C. A Global Litigation War
Since negotiations failed, Texas Instruments and Hyundai turned to the courts; in fact, they turned to a myriad of courts across this nation and around the world.
1. United States Litigation The American Offensive
May 1, 1998 was a busy day for the parties' attorneys, for both Texas Instruments and Hyundai filed lawsuits on this day. On May 1, 1998 Texas Instruments *666 filed three patent suits against Hyundai in two judicial districts. In the Eastern District of Virginia, Texas Instruments filed Case No. 98-627-A.[18] asserting synchronous dynamic random access memory ("DRAM") patents against Hyundai's DRAM products that continue to be at issue in litigation between NEC and Hyundai in that court. On that same day, Texas Instruments filed two more patent suits against Hyundai in this Court. In Case No. 2:98-cv-73 Texas Instruments asserted memory process and structure patents against Hyundai.[19] In Case No. 2:98-cv-74 Texas Instruments asserted manufacturing process patents against Hyundai.[20]
On that same busy day May 1, 1998 Hyundai filed a declaratory judgment action in the Southern District of New York (Case No. 98 Civ. 3118) (the "New York Action"). In the New York Action, Hyundai sought a defensive declaration that the License Agreement had not terminated; and, as a result, it was not infringing upon Texas Instruments' patents.[21] On May 6, 1998 Hyundai struck back. First, Hyundai filed two patent infringement actions *667 against Texas Instruments, both in the Eastern District of Virginia (Case Nos. 98-647-A and 98-648-A).[22] On that same day, Hyundai filed yet another pair of patent infringement actions against Texas Instruments one in this Court (Case No. 2:98-cv-77),[23] and one in the District of Delaware (Case No. 1:98-251).[24] Finally, Hyundai's guns have once again fired in this Court this time with Case No. 2:99-cv-1 against (none other than) Texas Instruments.[25] Hyundai tells this Court it *668 filed these cases because it "could not allow itself to be put at a strategic disadvantage while TI filed patent actions in well-recognized rapid jurisdictions such as the Eastern District of Virginia." Hyundai's Motion for Summary Judgment at 9.
2. Foreign Litigation The International Campaign
Texas Instruments and Hyundai did not confine their dispute to the United States courts; in fact, the Texas Instruments and Hyundai litigation landing crafts washed lawyers upon foreign shores around the world. First red-light stop was in the Netherlands where, on May 1, 1998, Texas Instruments sued Hyundai and several other entities for patent infringement in Case No. 98/2175.[26] Next beach-head was in England where, on May 5, 1998, Texas Instruments sued Hyundai Electronics UK Ltd. for patent infringement in Case No. CH 1998 T. No. 2532.[27] The litigation forces then landed in Japan where, on May 6, 1998, Texas Instruments sued Hyundai Electronics Japan K.K. for patent infringement in Case No. (Yo) 22075.[28] Next, the forces moved into Germany, where, on May 12, 1998, Texas Instruments sued Hyundai Electronics Deutschland GmbH and H.K. Yoo, Managing Director of Hyundai Electronics Deutschland GmbH for patent infringement in Case No. 4 O 166/98.[29] Finally, the Texas Instruments contingent marched into France where, on May 15, 1998, it sued Hyundai Electronics UK Ltd. and Hyundai Electronics Industries Company, Ltd, alleging patent infringement in Case No. 98/10908.[30]
The Netherlands, England, Japan, Germany, France all of these countries share one commonality via this litigation: the license issue. In each of these countries Hyundai has challenged jurisdiction based upon their "TI Country Concept" interpretation of the License Agreement. Moreover, Hyundai has requested each of these courts to defer to this Court's ruling on the contract issue. Of course, this Court can not "bind" these foreign courts with its license determination (nor would it presume to do so). Nevertheless, with the trial of Texas Instruments' first patent infringement case nearing, the time has come for this Court to rule on the license issue. This Court remains ever mindful of the implications its decision may have on the foreign litigation and will endeavor to perform an adequate analysis of the license *669 issue. This Court now turns to the summary judgment standard and then, alas, to the license issue currently before it.
2. Summary Judgment Standard
Rule 56(b) of the Federal Rules of Civil Procedure states: "A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), cert, denied, 484 U.S. 1066, 108 S.Ct. 1028, 98 L.Ed.2d 992 (1988). Furthermore, Rule 56(c) states, in part: "The judgment sought 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 a judgment as a matter of law." Thus, summary judgment is proper when, after a reasonable period for discovery, one party is unable to show a genuine issue as to a material fact on which he will bear the burden of proof at trial, provided that judgment against him is appropriate as a matter of law. Nebraska v. Wyoming, 507 U.S. 584, 589, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993); Celotex, id. The moving party need not negate the elements of the non-moving party's case. Id. at 323, 106 S.Ct. 2548; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (citing Celotex, id., and Lujan v. National Wildlife Fed'n., 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). Rather, the moving party need only "demonstrate the absence of a genuine issue of material fact." Celotex, id.
The non-moving party does not overcome the absence of a genuine issue of material fact by simply "creating 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, 89 L.Ed.2d 538 (1986), by making "conclusory allegations," Lujan, supra at 871-73, 110 S.Ct. 3177, by presenting "unsubstantiated assertions," Little, supra at 1075, or by proffering only a "scintilla" of evidence. Id. When the non-moving party fails to make a sufficient showing on an essential element of his case, the moving party is entitled to a judgment as a matter of law. Ibid. Nonetheless, when considering a motion for summary judgment, the trial court must construe all evidence in the light most favorable to the non-moving party and resolve all doubts against the moving party. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992), cert. denied, ___ U.S. ___, 118 S.Ct. 1560, 140 L.Ed.2d 792 (1998).
Both Texas Instruments and Hyundai urge this Court to adopt differing interpretations of the License Agreement a fifty-five page contract they entered into on April 26, 1993. Under Article 9.10 of that agreement, the parties agreed that New York law shall apply to the License Agreement's construction, interpretation, and application.[31] Interpretation of a contract, including the question of whether the contract is ambiguous, is a question of law. Reid v. State Farm Mut. Auto. Ins., 784 F.2d 577, 578 (5th Cir. 1986). Summary judgment is particularly appropriate in cases where the language of a contract is unambiguous and only the interpretation of the contract in light of state substantive law is in dispute. Burns v. Exxon Corp., 158 F.3d 336 (5th Cir. 1998); Bartle v. Travelers Ins. Co., 171 *670 F.2d 469, 471 (5th Cir.1948). This interpretation by the court "includes a determination as to a contract's facial ambiguity." Id. Nonetheless, ambiguity of a contract does not preclude a summary judgment ruling by the court.
Summary judgment is appropriate in a contract interpretation dispute whenever there is no genuine issue of fact, a situation that obtains not only when the language is unambiguous, but also when the language is ambiguous and there is relevant extrinsic evidence, but the extrinsic evidence creates no genuine issue of material fact and permits interpretation of the agreement as a matter of law.
NYCAL Corp. v. Inoco PLC, 988 F.Supp. 296, 299 (S.D.N.Y.1997) (footnote and citations omitted).
3. Compliance With Local Rule CV-56
Before this Court even gets into the text of their briefs, the parties have managed to raise a significant controversy. Hyundai urges this Court to dismiss Texas Instruments' motion (in its entirety) since Texas Instruments' motion "fails to submit a `Statement of Material Facts' as required under Local Rule CV-56(a)." Hyundai's Opposition to Texas Instruments Incorporated's Motion for Partial Summary Judgment ("Hyundai's Opposition Brief") at 5. Local Rule CV-56(a) reads, in part: "The text of a motion or an appendix thereto must include a `Statement of Material Facts.'" See Local Rule CV-56(a). Local Rule CV-56(b) reads, in part: "Any party opposing the motion should serve and file a response that includes in the text of the response or as an appendix thereto, a `Statement of Genuine Issues.'" Id. at CV-56(b). Finally, Local Rule CV-56(c) reads, in part: "In resolving the motion for summary judgment, the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the `Statement of Genuine Issues' filed in opposition to the motion, as supported by proper summary judgment evidence." Id. at CV-56(c). Initially, Texas Instruments failed to submit a "Statement of Material Facts" in compliance with these local rules. However, after Hyundai made the afore-mentioned argument that Texas Instruments therefore admitted Hyundai's "undisputed" statement of genuine issues, Texas Instruments separately filed its "Statement of Genuine Issues." Furthermore, Texas Instruments included, in its Brief of Texas Instruments Incorporated's in Support of its Motion for Summary Judgment. identified factual and legal issues, together with supporting record citations raised by Hyundai's motion. See Texas Instruments Statement of Genuine Issues at 1. While Texas Instruments' may have technically satisfied the local rule (and this Court makes no finding that is has), the simultaneous supplementation of the record with a "Statement of Genuine Issues" appears to render this skirting of the local rule harmless in this particular case. However, this case is a complex patent infringement lawsuit involving highly complicated semi-conductor technology; moreover, it involves complex contract issues touching on litigation now pending in other cases in this Court, in other courts in this nation, and in foreign courts around the world. In complex cases like these, mere technical compliance with Local Rule CV-56 simply fails to aid the Court in resolution of the issues before it. Although Texas Instruments should have initially filed its "Statement of Material Facts," this Court finds that its reply brief, coupled with the supplementation of the record with a "Statement of Genuine Issues," renders this skirting of the local rule harmless. No prejudice was occasioned upon Hyundai, particularly since the parties' motions involve mostly legal and not factual issues.
4. Article 5.2(A)(ii) of the License Agreement The Center of the Dispute
Texas Instruments argues the License Contract has terminated; Hyundai says it has not. Thus, this Court begins its analysis with the "Term & Termination" Article *671 of the License Agreement. Article 7.1 reads, in part:[32]
Except as otherwise provided in Article 7, this Agreement and the license granted pursuant hereto shall remain in force until December 31, 2000; unless the Second Period terminates according to (ii) of Article 5.2(A), in which case this Agreement and the licenses granted pursuant hereto shall terminate upon termination of the Second Period, provided, however, any obligation on the part of HEI to pay to TI any sums under Article 5.2(B) of this Agreement, shall survive such termination.
License Agreement at 39 (emphasis added).
Article 5.2(A)(ii) of the License Agreement is the tinderbox that ignited this global litigation war between Texas Instruments and Hyundai. It's what this fight is all about. Article 5.2(A) reads, in its entirety:
In consideration for the licenses granted hereunder by TI to HEI during the period ("Second Period") commencing on January 1, 1996, and ending upon the first to occur of:
(i) December 31, 2000, or
(ii) HEI's cumulative worldwide sales of ROYALTY BEARING PRODUCTS during the Second Period reaching an amount equal to the product of one and one-tenths (1.1) multiplied by three billion five hundred forty one million United States dollars (U.S.$3,541,000,000);
HEI shall pay to TI royalties in United States dollars, at a rate of eight percent (8%) of the NET SALES BILLED of all ROYALTY BEARING PRODUCTS used, leased, sold or otherwise disposed of by HEI or its SUBSIDIARIES, during each calendar year of the Second Period, the amount payable, in each calendar during the Second Period, not to exceed the following annual maximum amounts:
Year Annual Maximum
1996 U.S. $15,000,000
1997 U.S. $15,000,000
1998 U.S. $17,000,000
1999 U.S. $18,000,000
2000 U.S. $18,000,000
License Agreement at 30 (considerable emphasis added). This is the "sales cap" provision. Texas Instruments says the sales cap has been reached and the contract has terminated. Hyundai says the opposite that the sales cap has not been reached and thus the contract was still in effect when Texas Instruments filed its initial patent infringement lawsuits.[33] The answer lies in the proper interpretation of this provision.
5. Applicable State Contract Law Subject to Federal Patent Laws
As previously stated, pursuant to Article 9.10 of the License Agreement, the parties agreed that New York law shall apply to the License Agreement's construction, interpretation, and application. Thus, this Court must apply New York substantive law in performing its summary judgment analysis of the License Agreement. Although Texas Instruments and Hyundai stipulated in the License Agreement that New York law would govern the construction, interpretation, and application of the License Agreement, New York law may not preempt or violate federal patent laws which remain the supreme law of the land. Fantastic Fakes v. Pickwick Intern., 661 F.2d 479, 483 (5th Cir., Unit B 1981) ("A choice of law provision, therefore, *672 merely designates the state whose law is to be applied to the extent its use is not preempted by nor contrary to the policies of the 1909 and 1976 Copyright Acts"); see also Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 229, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964). With this limitation in mind, this Court now visits New York contract law.
6. The License Agreement is Unambiguous
A Texas-size review of New York contract law reveals a considerable amount of similarity between the sister states.[34] The Western District of New York aptly captured New York contract law relating to interpretation:
When considering the construction of a contract, the court "should accord that language its plain meaning giving due consideration to `the surrounding circumstances [and] apparent purpose which the parties sought to accomplish.'" Only where the language at issue is unambiguous may the court construe it as a matter of law. Whether an ambiguity exists in a contract is a question of law to be resolved by the court. The Second Circuit has made it clear, however, that if the contract is found to be ambiguous, a motion for summary judgment much less a motion to dismiss on a breach of contract claim is improper.
OnBank & Trust Co. v. FDIC, 967 F.Supp. 81, 90 (W.D.N.Y.1997) (citations omitted).
Under New York law, the initial question before this Court is whether the disputed language of the License Agreement specifically Article 5.2(A)(ii) is unambiguous. Chimart Associates v. Paul, 66 N.Y.2d 570, 573, 498 N.Y.S.2d 344, 489 N.E.2d 231, 234 (N.Y.1986). Contract language is unambiguous when it has a "definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion." Tucker Leasing Capital Corp., 833 F.Supp. 948, 955 (E.D.N.Y.1993) (citations omitted).
An ambiguous term, on the other hand, is one capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.
Curry Rd. Ltd. v. K Mart Corp., 893 F.2d 509, 511 (2nd Cir.1990) (quoting Eskimo Pie v. Whitelawn Dairies, 284 F.Supp. 987, 994 (S.D.N.Y.1968)). Both Texas Instruments and Hyundai offer different interpretations of Article 5.2(A)(ii) of the License Agreement. However, unambiguous contractual language does not become ambiguous simply because the parties to the litigation offer different interpretations. Metropolitan Life Ins. Co. v. RJR Nabisco, 906 F.2d 884, 889 (2nd Cir.1990). Moreover, both Texas Instruments and Hyundai agree that the License Agreement is unambiguous. In the deposition of Texas Instruments' corporate representative, Mr. Richard Donaldson, the following exchange took place: "Q: [by Mr. T. John Ward]: Well, I'm wanting to know what TI's position is without regard to what Hyundai's position is. Is the agreement ambiguous or unambiguous? A: [by Mr. Richard Donaldson]: That the agreement as a whole is not ambiguous." Hyundai's Motion for Summary Judgment, Exhibit C (Donaldson Depo.) at 44:1-9. In its brief "Hyundai agrees with TI that the License Agreement is unambiguous." Id. at 20. Furthermore, this License Agreement is a fully integrated contract. The final provision of the License Agreement, Article 9.15, contains a typical integration clause:
This Agreement sets forth the entire agreement and understanding between *673 the parties as to the subject matter of this Agreement and merges all prior discussions between them. Neither of the parties shall be bound by any modification of this Agreement, other than as expressly provided in this Agreement or as duly set forth on or subsequent to the date hereof in writing and signed by a duly authorized representative of both parties.
License Agreement at 54 (emphasis added). Finally, this Court agrees with the parties that the language of the License Agreement is unambiguous. The License Agreement is a fully integrated contract that has definite and precise meaning, unattended by danger of misconception in the purport of the contract itself, and concerning which there is no reasonable basis for a difference of opinion. In short, the License Agreement is fully integrated and unambiguous.
7. Interpretation of the Unambiguous License Agreement Extrinsic Evidence Not Permissible Under New York Law
Once an integrated contract is found to be unambiguous on its face, its interpretation is a function for the Court and is properly decided on summary judgment. Chimart, supra at 572, 498 N.Y.S.2d 344, 489 N.E.2d 231 Both Texas Instruments and Hyundai contend that the disputed sales cap provision unambiguously supports their interpretation. So, this Court must now interpret the "unambiguous" Article 5.2(A)(ii) sales-cap provision of the License Agreement. Texas Instruments has proffered a considerable amount of extrinsic evidence in support of its interpretation of the License Agreement. Hyundai has objected to this extrinsic evidence and argues that this Court may not consider it in its analysis. The question, then, becomes this: Applying New York law, may this Court consider extrinsic evidence in its interpretation of the unambiguous License Agreement? No, it may not.
New York law does not permit a court to consider extrinsic evidence in the interpretation of an unambiguous contract. The Court of Appeals of New York has consistently held that "[i]nterpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument." Chimart, supra at 572-73, 498 N.Y.S.2d 344, 489 N.E.2d 231 (emphasis added) (quoting Teitelbaum Holdings v. Gold, 48 N.Y.2d 51, 56, 396 N.E.2d 1029, 1034, 421 N.Y.S.2d 556, 561 (1979); Rainbow v. Swisher, 72 N.Y.2d 106, 109, 527 N.E.2d 258, 259-60, 531 N.Y.S.2d 775, 776-77 (1988)) ("Where, as here, the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence" (emphasis added)); Express Ind., and Terminal Corp. v. New York State Dept. of Transp., 252 A.D.2d 376, 676 N.Y.S.2d 62 (N.Y.App. Div.1998) ("It is settled that where a contract is straightforward and unambiguous, its interpretation presents a question of law for the court, to be made without resort to extrinsic evidence" (emphasis added)); see also Metropolitan Life Ins. v. RJR Nabisco, supra ("The parties' rights under an unambiguous contract should be fathomed from the terms expressed in the instrument itself rather than from extrinsic evidence as to terms that were not expressed or judicial views as to what terms might be preferable" (emphasis added)).
Texas Instruments argues that certain cases support its position that New York contract law permits the consideration of extrinsic evidence in this Court's interpretation of the unambiguous License Agreement. However, upon closer analysis, the cases cited by Texas Instruments reveal interpretations of ambiguous contractual language not unambiguous contractual language. See Alexander & Alexander Services v. These Certain Underwriters at Lloyd's, London, 136 F.3d 82, 86 (2nd Cir. 1998) ("Exclusion E is fraught with ambiguities .... The district court erred in *674 granting summary judgment to Lloyd's on the ground that Exclusion E unambiguously excluded all relevant coverage"); OnBank, supra at 90 ("In the case at bar, I find that the Agreement is ambiguous ..."); see also, Garza v. Marine Transp., Lines, Inc., 861 F.2d 23, 27 (2nd Cir.1988) ("We believe that the red-letter clauses are ambiguous as a matter of law ..."); see also, Asheville Mica Co. v. Commodity Credit Corp., 335 F.2d 768, 770 (2nd Cir. 1964) ("The provision in question is not wholly unambiguous ..."); Marvel Entertainment Group, Inc. v. Young Astronaut Council, 747 F.Supp. 945, 948 (S.D.N.Y. 1990) ("If ambiguities in the document prevent a firm conclusion that it is a release, additional evidence may be considered to resolve this issue."); Wing Ming Properties (U.S.A.) Ltd. v. Mott Operating Corp., 148 Misc.2d 680, 561 N.Y.S.2d 337, 340 (Sup.1990), aff'd, 79 N.Y.2d 1021, 594 N.E.2d 921, 584 N.Y.S.2d 427 (1992) ("If ambiguities exist in either the language employed or the intent and circumstances surrounding its execution, extrinsic evidence may be offered ..."); In re Rudolph's Will, 123 N.Y.S.2d 731, 733 (Sur. 1953) (examining extrinsic evidence where the language of a decedent's will failed to define the term "children"). Indeed, the cases cited by Texas Instruments support the exclusion of extrinsic evidence in this Court's interpretation of the unambiguous License Agreement. Natwest USA Credit Corp. v. Alco Standard Corp., 858 F.Supp. 401, 413 (S.D.N.Y.1994) ("When a written contract is clear and unequivocal, its meaning must be determined by its contents alone, without resort to extrinsic evidence ..." (emphasis added)); Alexander & Alexander, supra at 86 ("If the court finds that the contract is not ambiguous it should assign the plain and ordinary meaning to each term and interpret the contract without the aid of extrinsic evidence" (emphasis added)); Garza, supra at 26-27 ("In the absence of ambiguity, the effect of admitting extrinsic evidence would be to allow one party `to substitute his view of his obligations for those clearly stated'" (emphasis added)) (quoting Eskimo Pie Corp., supra at 994; Wing Ming Properties Ltd., supra at 340 ("Interpretation of contracts is generally considered a matter of law to be determined by the court provided that the document is clear and explicit in its terms and can be construed through an analysis of the four corners of the document" (emphasis added)).
Moreover, specific provisions of the License Agreement militate against the admission of extrinsic evidence for interpretive purposes. First, the License Agreement is a fully integrated contract. See Integration Clause, supra at 21. Furthermore, another provision of the License Agreement weighs against the admission of extrinsic evidence for interpretive purposes. Article 9.9 of the License Agreement states:
No oral explanations or oral information by either party hereto shall alter the meaning or interpretation of this Agreement. No modification, alteration, addition or change in the terms thereof shall be binding on either party unless reduced to writing and executed by a duly authorized representative of each party.
License Agreement at 54 (emphasis added). Thus, both New York law and specific provisions of the License Agreement militate against any admission of extrinsic evidence for interpretation of the unambiguous License Agreement. Hyundai's objection to Texas Instruments' proffer of extrinsic evidence for the interpretation of the License Agreement (the objection that strikes at the key issue before this Court) is hereby SUSTAINED. This Court will not consider any extrinsic evidence for its interpretation of the License Agreement.[35]
*675 8. Interpreting the License Agreement
How does this Court "interpret" a contract under New York law? "In a contract action, the court's general objective should be to give effect to the intentions of the parties in entering into the agreements." Metropolitan Life Ins. Co., supra at 889 (citing Hartford Accident & Indemnity Co. v. Wesolowski, 33 N.Y.2d 169, 171-72, 305 N.E.2d 907, 910, 350 N.Y.S.2d 895, 898 (N.Y.1973); Morlee Sales Corp. v. Manufacturers Trust Co., 9 N.Y.2d 16, 19, 172 N.E.2d 280, 282, 210 N.Y.S.2d 516, 518 (N.Y.1961); and S. Williston, 4 Williston on Contracts § 600 at 280 (3d ed.1961)). Since this Court can not consider any extrinsic evidence in its interpretation of the unambiguous License Agreement, it must interpret the contract in accordance with the intentions of the parties gleaned from the unequivocal language contained within the four corners of that fifty-five-page agreement. Wallace v. 600 Partners Co., 86 N.Y.2d 543, 548, 658 N.E.2d 715, 720, 634 N.Y.S.2d 669, 674 (1995) (clear and complete writings should be enforced according to their terms). The law favors an interpretation which is supported by the agreement as a whole and does not render any of its provisions illusory or meaningless. Ronnen v. Ajax Elec. Motor Corp., 88 N.Y.2d 582, 584, 671 N.E.2d 534, 536, 648 N.Y.S.2d 422, 424 (1996) ("We have long and consistently ruled against any construction which would render a contractual provision meaningless or without force or effect") Although this Court must disregard extrinsic evidence during its interpretation of the License Agreement, it may not simply turn a blind eye to the logical implications of the interpretation it makes. "A contract must be construed, if possible, to avoid an interpretation that will result in an absurdity, an injustice or have an inequitable or unusual result." Natwest USA Credit Corp., 858 F.Supp. 401, 413 (S.D.N.Y.1994); see also Smith v. Brown & Jones, 167 Misc.2d 12, 633 N.Y.S.2d 436, 442 (N.Y.Sup.Ct.1995) (citations omitted) ("A contract should be given a fair and reasonable interpretation based upon its language, in light of the purposes sought to be attained by the parties. An unreasonable interpretation or an absurd result should be avoided").
Thus, under New York contract law, this Court's objectives are roughly threefold: 1) give effect to the intentions of Texas Instruments and Hyundai (gleaned from within the four corners of the License Agreement); 2) interpret the language of the License Agreement so as to harmonize the contract's provisions without rendering any of them illusory or without effect; and 3) avoid an interpretation that leads to an absurdity, injustice, or inequity.
9. Article 5.2(A)(ii) The Sales Cap Provision
Once again, Article 5.2(A)(ii) is the sales cap provision. It's what this fight is all about. Although it has already been quoted in its entirety, the sales cap portion of Article 5.2 deserves revisiting yet again:
Article 5.2(A)(ii) In consideration for the licenses granted hereunder by TI to HEI during the period ("Second Period") commencing on January 1, 1996, and ending upon the first to occur of:
(i) December 31, 2000, or
(ii) HEI's cumulative worldwide sales of ROYALTY BEARING PRODUCTS during the Second Period reaching an amount equal to the product of one and one-tenths (1.1) multiplied by three billion five hundred forty one million United States dollars (U.S.53,541,000,000) ...[36]
License Agreement at 30 (considerable emphasis added). Section (A)(ii) of Article 5.2 is the unambiguous sales cap provision of the License Agreement that this Court must interpret for the parties. Texas Instruments says cumulative worldwide sales have reached the sales cap and the contract *676 has terminated. Hyundai says the opposite that cumulative worldwide sales have not reached the sales cap and that it was still licensed when Texas Instruments filed its patent infringement lawsuits (thereby violating the agreement and terminating its rights).
Obviously, in order to determine whether the sales cap has been reached, this Court must define "royalty bearing products." Once the Court determines what "royalty bearing products" are, only simple arithmetic remains to see if the sales cap has indeed been triggered. Article 1.21 of the License Agreement defines "royalty bearing products." It reads, in its entirety:
1.21 "ROYALTY BEARING PRODUCTS" means items (c) and (d) set forth in Article 1.20, however, ROYALTY BEARING PRODUCTS shall not mean SEMICONDUCTIVE ELEMENTS, or SEMICONDUCTIVE APPARATUS, which are discrete devices such as transistors, photo transistors, diodes and SCRs.
License Agreement at 12. The language of this provision refers to yet another provision.[37] That is, in order to define "royalty bearing products" this Court must now look to "items (c) and (d) set forth in Article 1.20." Id. Article 1.20 reads, in its entirety:
1.20 "LICENSED PRODUCTS" means any of the following items (a) (h) and parts thereof covered by any claims(s) of HEI PATENTS, HEI PARTICIPATION PATENTS, TI PATENTS, or TI-PARTICIPATION PATENTS:
(a) SEMICONDUCTIVE MATERIAL
(b) JUNCTION MATERIAL
(c) SEMICONDUCTIVE ELEMENTS
(d) SEMICONDUCTIVE APPARATUS
(e) TEST EQUIPMENT AND SYSTEMS
(f) PERSONAL COMPUTERS
(g) PERIPHERAL DEVICES
(h) GRAPHICS DISPLAY SYSTEMS
LICENSED PRODUCTS does not include: (i) DEFORMABLE DEVICES; (ii) DMD SYSTEMS; (iii) HETERO-JUNCTION BIPOLAR TRANSISTORS; or (iv) MONOLITHIC UNCOOLED DETECTORS.
License Agreement at 11 (emphasis added).[38] So here are the arguments. Texas Instruments says that Article 1.21 defines "royalty bearing products" by incorporating only "semiconductive elements" and "semiconductive apparatus" that is, incorporating only "items (c) and (d) set forth in Article 1.20" and not all of Article 1.20. Hyundai disagrees. It argues that Article 1.21 defines "royalty bearing products" by incorporating all of Article 1.20 that is, incorporating "items (c) and (d) set forth in Article 1.20." Why does it matter? Because if Hyundai's interpretation is correct (if all of Article 1.20 is incorporated into the definition of "royalty bearing products"), then Article 1.20's prefatory language is also incorporated into the definition of "royalty bearing products." As a result, the "covered by" language makes it into the definition of "royalty bearing products." thereby requiring each royalty bearing product to be "covered by" a claim of a Texas Instruments patent or Texas Instruments Participation Patent. It is upon this cross-referencing and incorporation that Hyundai bases its "TI Country Concept" interpretation of the License Agreement; that is, the only products which count toward the sales cap calculation are products which are "covered by" a *677 Texas Instruments patent products that practice a Texas instruments patent, in force at the time the product is sold, in the country in which the sale occurs.[39] All other countries, according to Hyundai, are "Non-TI Countries" which do not count toward the sales cap calculation since those particular products are not "covered by" valid patents in those individual countries.[40]
Before delving into the particulars and losing the forest for the trees, this Court must first make a general observation about the License Agreement itself. Although the "sales cap" provision is the focus of this Court's attention, there are in fact two "cap" provisions: a "sales cap" provision and a "royalty cap" provision.[41] As previously mentioned, the sales cap provision lies in Article 5.2(A)(ii) and is the focus of this Court's attention. Once it is triggered, the contract terminates and Hyundai is no longer licensed to use Texas Instruments' products without infringement. Under the License Agreement, Hyundai agreed to pay Texas Instruments "royalties" for the use of Texas Instruments' products. The calculation of royalties owed by Hyundai expressly depends on the amount of "royalty bearing products." However, the amount of royalties per year is "capped" that is, although Hyundai must periodically pay a certain amount of royalties, that amount shall not exceed a specific amount set for each year. Part of the confusion lies in the interplay of these facets of the contract, particularly since the "sales cap" itself lies within the "Royalties" article (sales-cap provision 5.2(A)(ii) lies within "Royalties" Article 5). The dynamics of the sales cap and royalty provisions will prove crucial to a proper interpretation of the License Agreement.
10. Harmonizing Article 5.2(A)(ii) With the Whole License Agreement
A. Articles 1.10, 1.11, 1.20 and 1.21 Definitions, Cross-References, and Incorporation
At the outset, this Court notes that Article 1.21, the article defining "royalty bearing products," references "items (c) and (d) set forth in Article 1.20." License Agreement at 12 Rather than simply say "semiconductive elements" and "semiconductive apparatus," the parties chose to say "items (c) and (d) set forth in Article 1.20." Article 1.20 is the "Licensed Products" article. The parties chose to reference "semiconductive elements" and "semiconductive apparatus" set forth in Article 1.20 (the "Licensed Products" provision) even though "semiconductive elements" and "semiconductive apparatus" are themselves defined in Articles 1.10 and 1.11, the provisions that define "semiconductive elements" and "semiconductive apparatus." License Agreement at 6-8.
*678 Thus, in Article 1.21 the parties initially chose "items (c) and (d) set forth in Article 1.20" instead of simply saying "semiconductive elements" and "semiconductive apparatus" which are specifically defined in Articles 1.10 and 1.11 of the License Agreement. At first glance, this suggests a meaning for "semiconductive elements" and "semiconductive apparatus" altogether different than those definitions specifically provided in the License Agreement.[42] However, in the same Article Article 1.21 the parties later chose to simply say "semiconductive elements" and "semiconductive apparatus," thereby explicitly relying upon Articles 1.10 and 1.11 which specifically define those terms. If this Court were to adopt Hyundai's interpretation of that provision, the definition of "royalty bearing products" would abound in complicity and inequity.
Here is what would happen to Article 1.21 (the article defining "royalty bearing products") were this Court to adopt Hyundai's interpretation. Article 1.21 would initially include only licensed semiconductive elements and semiconductive apparatus as "royalty bearing products" applicable to the sales cap calculation. However, in the same breath, Article 1.21 would exclude both licensed and non-licensed semiconductive elements and semiconductive apparatus "which are discrete devices such as transistors, photo transistors, diodes and SCRs" (regardless of whether they are "licensed" or not) from the sales cap calculation. License Agreement at 12. "Semiconductive elements" and "semiconductive" apparatus would take on different meanings in the same calculation, thereby warping the math in favor of Hyundai. The net result would be that Hyundai would be required to include only "licensed" semiconductive elements and semiconductive apparatus toward the sales cap calculation, while it could simultaneously exclude all semiconductive elements and semiconductive apparatus which are discrete devices from the same calculation.[43] All of this results, of course, from the differing definitions of "semiconductive elements" and "semiconductive apparatus" within Article 1.21 defining royalty bearing products.[44]
So what if Article 1.21 replaced "semiconductive elements" and "semiconductive apparatus" with its previously employed "items (c) and (d) set forth in Article 1.20?" That is, what if Article 1.21 used consistent terminology throughout its royalty-bearing-product definition? This would harmonize the article, and provide consistency to Article 1.21, but it would not solve the problem of Article 1.20's incorporation. If this Court were to adopt Hyundai's interpretation, it would have to rewrite Article 1.21 so that it read: "`ROYALTY BEARING PRODUCTS' means LICENSED PRODUCTS provided for in items (c) and (d) set forth in Article 1.20..." (emphasis added to show additional language required for Hyundai's interpretation). In fact, the parties used this precise language when they intended for "items (c) and (d) set forth in Article 1.20" to be "LICENSED PRODUCTS" In two articles Articles 1.3 and 3.9 the parties actually said "LICENSED PRODUCTS provided for in items (c) and (d) only, of Article 1.20." See Articles 1.3, 3.9, License Agreement at 4, 25. By simply referencing "items (c) and (d)" the parties did not intend to incorporate by reference all of Article 1.21 into the definition of royalty bearing products. Had the parties intended royalty bearing products to mean licensed semiconductive elements and *679 semiconductive apparatus other than discrete devices, they would have simply said so like they did in Articles 1.3 and 3.9 of the License Agreement. Hyundai's interpretation renders the "LICENSED PRODUCTS" language in these provisions meaningless. Simply put, Hyundai's "TI Country Concept" interpretation does overall violence to the License Agreement.
B. Article 5 in its Entirety Royalties for Nothing, Chips for Free
Once again, Article 5, entitled "Royalties," contains within it both of the "caps" the sales cap and the royalties cap.[45] Hyundai cautions this Court not to confuse the sales cap provision with the royalty cap provision. Mindful of this warning, the Court nonetheless notes that a single definition of "royalty bearing products" applies to numerous provisions dealing with both the sales cap (Article 5.2(A)(ii)) and royalty calculations. That is, the License Agreement sprinkles the same term royalty bearing products throughout provisions of Article 5 that deal with calculation of both the sales cap and the payment of royalties. See License Agreement, Articles 5.1(b) and (c), 5.2(A)(ii), 5.3, and 5.6. Thus, the interpretation of "royalty bearing products" necessarily implicates both the sales cap provision and provisions relating to the calculation of royalties.
If royalty bearing products are indeed only "licensed" products (products that practice a Texas Instruments patent, in force at the time the product is sold, in the country in which the sale occurs), then under the License Agreement Hyundai has committed itself to paying millions of dollars for Texas Instruments products that are in fact not "licensed." Here is why. Articles 5.1(b), 5.1(c), and 5.2 provide mechanisms for calculating the royalties that Hyundai owes Texas Instruments for the sale of its products under the License Agreement Each provision contains identical language for making the royalty calculation: "eight percent (8%) of the NET SALES BILLED of all ROYALTY BEARING PRODUCTS used, leased, sold or otherwise disposed of by HEI or its SUBSIDIARIES..." See Articles 5.1(b), 5.1(c), and 5.2, License Agreement at 29-30.[46] In order for Texas Instruments to establish just one of its products as a royalty bearing product under Hyundai's interpretation of that term, Texas Instruments would have to study the patent laws of the country in which the sale is made by Hyundai,[47] file a patent-infringement lawsuit *680 against Hyundai on that single product, and win a verdict of infringement against Hyundai under the patent laws of that particular country for that particular product.[48] Notwithstanding the extraordinary time and expense involved in such an endeavor, what does all of that achieve? Well, Texas Instruments inches toward the sales cap and gets a few extra bucks in royalties since it has now "established" this single product as a "licensed" product "covered by" the claim of a Texas Instruments Patent or Texas Instruments Participation Patent. The only way the parties could establish "royalty bearing products" to determine royalties would be through product-by-product, patent-by-patent, country-by-country litigation. In order to reach the sales cap provision and reap the rewards of its royalties, Texas Instruments would literally have to file (and win) a patent-infringement lawsuit for each product for each country where Hyundai is selling that particular Texas Instruments product. This global litigation war would turn into a litigation holocaust with the bulk of the fighting going on in a New York federal court.[49]
An even more bizarre result occurs from Hyundai's "TI Country Concept." Under Hyundai's "TI Country Concept" interpretation of the License Agreement, Texas Instruments would have to prove up each "licensed product" as a product that practices a Texas Instruments patent, in force at the time the product is sold, in the country in which the sale occurs a product "covered by" a valid Texas Instruments patent or Texas Instruments Participation Patent. So what is Hyundai licensed to sell under the License Agreement? By Hyundai's interpretation, nothing until Texas Instruments takes a patent infringement verdict against Hyundai on that particular product under the patent laws of the country in which Hyundai's sale occurs. The License Agreement, then, actually licenses nothing. Hyundai is not "licensed" under the License Agreement until Texas Instruments brings, and wins, a patent infringement lawsuit against Hyundai on a Texas Instruments *681 product for the country in which the particular product was sold thereby proving it is "covered by" a valid Texas Instruments patent and, consequently, a "licensed product." By simply executing the License Agreement Hyundai agreed to pay 58,400,000.[50]Article 5.1, License Agreement at 29. So, what Hyundai urges this Court to hold is that the License Agreement provides mechanisms whereby it pays millions of dollars for products that it is probably (absent litigation) not even licensed to use. That is, this fifty-five page License Agreement actually licenses nothing until the parties battle each other in court.[51] It gets worse.
In footnote thirty-nine, this Court began with a simple example of Hyundai's "TI Country Concept" interpretation of the License Agreement. Now, this Court will take that simple example and show how the "TI Country Concept" interpretation of the License Agreement devolves into a legal nightmare. Okay, say that Hyundai makes a DRAM ("dynamic random access memory") product in Korea under Hyundai's interpretation, a "Non-TI Country." That DRAM made in Korea (incidentally, Hyundai's home) is not "covered by" a valid, Korean-issued Texas Instruments patent and thus is not licensed under the License Agreement.[52] Hyundai then sells that DRAM to a Taiwanese personal computer ("PC") manufacturer, "Tai-PC, Mfg.,"[53] which incorporates it into a PC in Taiwan, another "Non-TI Country" under Hyundai's interpretation. Thus, the DRAM remains unlicensed. If Tai-PC, Mfg. then sells its PC containing the unlicensed DRAM to Compaq[54] in the United States, it is still unlicensed. However, Tai-PC, Mfg. and Compaq are subject to actions in the United States for direct infringement; and Hyundai itself, if it knew or had reason to know the DRAM was ultimately bound for the United States, would be subject to suit for inducing infringement. The License Agreement would not protect Hyundai because it only protects Hyundai for making, using, selling, or importing products into the United States. In this particular example, Hyundai did not make the DRAM in the United States, did not use it in the United States (Compaq did), did not sell it in the United States (Tai-PC, Mfg. and Compaq did), and did not import it into the United States (Tai-PC, Mfg. and Compaq did). The License Agreement simply does Hyundai no good. Similarly, Hyundai's United States License cannot be used vicariously by either Tai-PC, Mfg. or Compaq since, by definition, they are not Hyundai and the license only covers Hyundai. Under Hyundai's theory, the DRAM was never licensed to Hyundai.[55] The net result of all this is a random mix of licensed and unlicensed Hyundai products, *682 whereby the unlicensed products, if brought in indirectly from "Non-TI Countries," would subject Hyundai to claims of inducing infringement.
Before this Court departs Article 5, it must visit a few of its other provisions. Hyundai directs this Court to Article 5.3 which holds, in part, "Royalties shall not be due from HEI for, and HEI's cumulative worldwide sales of ROYALTY BEARING PRODUCTS specified in (ii) of Article 5.2(A) shall not include, any ROYALTY BEARING PRODUCTS (i) the manufacture, use, lease, importation, sale or other disposal of which is not licensed hereunder..." License Agreement at 31. Hyundai says this provision "clearly requires sales counted toward the sales cap to be sales of LICENSED PRODUCTS." Hyundai's Opposition Brief at 16 (Hyundai's emphasis). First, note the sleight of hand "LICENSED PRODUCTS" appears nowhere in that provision. Apparently, Hyundai is seizing upon the "licensed hereunder" language and re-writing it to "clearly" read "LICENSED PRODUCTS" (which is specifically defined in Article 1.20).[56] Once again, "LICENSED PRODUCTS" is itself defined in article 1.20. Had the parties wanted to draft this provision so as to support Hyundai's "TI Country Concept," they would have simply added "LICENSED PRODUCTS" to that provision so that it read: "ROYALTY BEARING PRODUCTS that are LICENSED PRODUCTS specified in (ii) of Article 5.2(A) ...." This they did not do. Moreover, this Court notes that Article 5.3, like many other provisions of the License Agreement, refers to "HEI's cumulative worldwide[57]sales of ROYALTY BEARING PRODUCTS." License Agreement at 31. Had the parties intended for cumulative worldwide sales to be restricted to licensed products, they would have simply said: "cumulative worldwide sales of ROYALTY BEARING PRODUCTS that are LICENSED PRODUCTS." Once again, this they did not do.[58]
One final provision of Article 5 deserves visiting. Article 5.4 reads, in its entirety:
The parties acknowledge that the royalty rates specified in Article 5, the method for calculation of royalties, and the method of payment of royalties under this Agreement, take into consideration (1) the value of the licenses granted to HEI and TI under this Agreement, and (2) the administrative convenience of the parties hereto.
License Agreement at 32 (emphasis added).
Of particular interest to this Court is the "administrative convenience" language employed by the parties. Hyundai argues, and this Court concedes, "that Article 5.4 expressly and exclusively addresses `the royalty rates set forth in Article 5, the method for calculation of royalties, and the method for calculation of royalties.'" Hyundai's Opposition Brief at 23 (emphasis added). Thus, Hyundai argues, Texas Instruments can not employ this language to support its interpretation of the sales *683 cap since this particular provision is devoted strictly to royalties. The first warning by Hyundai to this Court was not to confuse the sales cap and the royalty cap. This was good advice; and this Court has not confused the sales cap with the royalty cap. However, now Hyundai wards this Court off of language simply because it relates to royalties and not the sales cap calculation. This is not such good advice. The sales cap provision and royalty calculation provisions have a common bond the term "royalty bearing products." Interpretation of the term "royalty bearing products" necessarily implicates Articles 5.1, 5.2 (including the sales cap and royalty calculation provisions), 5.3 (the provision Hyundai urges this Court to disregard), and 5.6 of the "Royalties" Article. Indeed, the term "royalty bearing products" appears throughout the License Agreement no less than twenty times. Due to its ubiquitous presence throughout the License Agreement, the term "royalty bearing products" necessarily implicates interpretation of the entire contract sales cap and royalty calculations alike.
Since interpretation of royalty bearing products expressly implicates calculation of royalties in Article 5, the "TI Country Concept" interpretation of royalty bearing products that leads to administrative inconvenience would cut against the express intention of the parties contained within Article 5.4. Product by product, patent by patent, country by country[59] determination of royalty bearing products, and consequently, calculation of royalties owed by Hyundai, can hardly be called administratively convenient.[60] In fact, Hyundai's "TI Country Concept" interpretation of the License Agreement is an administrative nightmare. Moreover, Hyundai's "TI Country Concept" leads to yet another bizarre result. Under both Article 5.1 and 5.2 royalty calculation provisions, Hyundai's royalties owed under the contract are "eight percent (8%) of the NET SALES BILLED of all ROYALTY BEARING PRODUCTS used, leased, sold or otherwise disposed of by HEI or its SUBSIDIARIES." License Agreement at 29-30.[61] However, under Hyundai's "TI Country Concept" interpretation of the License Agreement, there are no "royalty bearing products" until Texas Instruments wins a verdict of infringement against Hyundai on that product, on that particular patent, under the patent laws of the particular country in which that product was sold (abbracadabbra now it is a royalty bearing product).[62] So, under Hyundai's theory, it owes Texas Instruments no royalties since, technically, there are no royalty bearing products until Texas Instruments proves them up by piece-meal litigation; and, under the very terms of the contract, it has automatically paid millions of dollars *684 for nothing.[63] Moreover, Hyundai would never really know which of Texas Instruments' products it is "licensed" to use under the License Agreement since its "TI Country Concept" requires litigation to establish what is "covered by" the contract. Finally, since Texas Instruments has to prove up (by litigation) each product as a royalty bearing product before it counts against Hyundai under the sales cap provision, Hyundai can simply use those chips without fear of early contract termination until Texas Instruments sues Hyundai on that product, on that patent, under the patent laws of the particular country in which that product was sold.[64] Simply put, Hyundai has been paying millions of dollars in royalties for nothing,[65] and can really use Texas Instruments' chips[66] free from fear of early termination.
C. Article 6.1 and 7.1 Hyundai Make-Shifts a Workable Structure for its Interpretation
In defense of its product-by-product, patent-by-patent, country-by-country interpretation, Hyundai relies upon Texas Instruments' failure to exercise its audit right prescribed in Article 6.1. Within Article 6 (entitled "Accounting for Royalties and Taxes") sits Article 6.1 the audit provision. It reads, in part:
... Upon the reasonable request of TI, HEI and its SUBSIDIARIES shall permit access to their books and records by an independent accounting firm selected by TI and approved by HEI, which approval shall not be unreasonably withheld, for the sole purposes of (i) verifying the calculation of royalties due and payable pursuant to this Agreement, (ii) determining HEI's cumulative, direct, net sales to the United States of PERSONAL COMPUTERS, PERIPHERAL DEVICES and GRAPHICS DISPLAY SYSTEMS ("PC Sales") for the period commencing on July 25, 1989 and ending on December 31, 1995 or when such PC Sales exceed an amount equal to two hundred sixty million U.S. dollars ($260,000,000), whichever occurs first, and (iii) determining HEI's cumulative worldwide sales of ROYALTY BEARING PRODUCTS[67]after December 31, *685 1995. For any one of the above three purposes, TI shall seek permission for an audit no more than once each calendar year and shall bear the costs of the independent accounting firm.
License Agreement at 34. Hyundai argues this provision "undermines TI's argument about the administrative difficulties of calculating the sales cap because it is undisputed that TI never exercised its audit rights under that article .... If TI had conducted such an audit, it would simply have directed its auditors as to which sales to count; the auditors themselves would not have had to perform this analysis." Hyundai's Opposition Brief at 25. As Hyundai appears to concede, the auditors themselves could not have provided an answer as to which sales count under the sales cap and royalty calculations.[68] Hyundai suggests that Texas Instruments could have just "directed its auditors as to which sales count." Id. Well, then it's back to square one. Texas Instruments would just lean over the auditors' shoulders and point them to the worldwide sales of their products regardless of patent coverage in those particular countries just what they argue today. Realizing the dog-chasing-its-tail approach to calculations under provisions such as these under its "TI Country Concept" interpretation, Hyundai suggested at the summary judgment hearing a solution: "As the contract provides about good-faith negotiations, the parties contemplated further negotiations, we sat down and told them the countries that we believed applied and should be counted." Transcript of Summary Judgment Hearing at 43:11-14. Apparently, rather than have the sales cap automatically terminate the contract, Hyundai urges this Court to accept its interpretation that the parties agreed to "negotiate" whether the provision actually triggers. That is, this automatically terminating sales cap provision simply lies dormant until the parties successfully negotiate whether to awaken it. Indeed, Article 7.1 (entitled "Term and Termination") does provide for further negotiations:
... At any time after termination of this agreement due to termination of the Second Period according to (ii) of Article 5.2(A), or at any time subsequent to December 31, 1999, whichever occurs first, either party may request negotiations to consider the possible further renewal or extension of this Agreement. In such event, both parties agree to enter into good faith negotiations to determine whether a mutually acceptable extension or further renewal can be agreed upon prior to expiration of this Agreement. No extension or renewal shall be effective until a definitive agreement is executed by both parties.
License Agreement at 39-40 (emphasis added). First, this provision says that any time "after termination of this agreement due to termination of the Second Period according to (ii) of Article 5.2(A) [the sales cap provision]." Id. That is, after the sales cap provision has been triggered and after the contract has terminated, good-faith negotiations may ensue to perhaps trigger the sales cap provision.[69] Second, this provision provides for a "renewal" or "extension" of the contract not a "grace period" whereby the now terminated contract somehow rises from its death to haunt the parties so long as good-faith negotiations continue. Finally, the provision itself envisions the possibility of its own failure: "No extension or renewal shall be effective until a definitive agreement is executed by both parties." Id. Under Hyundai's "good-faith-negotiations-about-the-salescap *686 theory," the contract itself could void one of its very own provisions. If Texas Instruments and Hyundai could not come to an agreement about the triggering of the sales cap provision and the termination of the contract, then that provision would simple become a nullity. Even if Texas Instruments were right and the sales cap provision had been triggered, Hyundai could void the provision by simply refusing (in good faith, of course) to agree with Texas Instruments' correct interpretation of that provision. The License Agreement would continue until December 31, 2000 despite its de facto termination pursuant to the triggering of the sales cap provision (now rendered null via a stalemate in the "good-faith" negotiations of Article 7.1).
At this point in the analysis this Court must pause, once again, to step back from all of this to avoid losing sight of the forest for the trees. What is Hyundai doing to Article 7.1 and why is it trying to do it? Throughout this License Agreement there is the apparent lack of one, critical thing for the success of Hyundai's "TI Country Concept" any workable formula to apply this patent-by-patent, product-by-product, country-by-country interpretation of the License Agreement.[70] At the summary judgment hearing, this interchange took place between the Court and Mr. Ward, counsel for Hyundai:
The Court: Mr. Ward, I'm trying to articulate it the best I can. Is there anything in the four corners of the contract that would keep Hyundai or anyone else from imposing such a harsh, rigorous termination of the cap? Is there anything in there that would keep Hyundai from requiring Texas Instruments from making them prove it one by one? Just in the corners.
Mr. Ward: Well, I think that the requirement to negotiate in good faith would prohibit that onerous burden, yes, Your Honor, I do.
The Court: Well, that would be another issue, but
Mr. Ward: I believe that's the only one that I know of that I could point to. There's no other one other than the requirement that the parties say that they will negotiate in good faith. And we don't believe, you know, that we don't believe it leads to an absurd result, given our conduct prior to any litigation and the fact that 7.1, as I said, provides for the negotiation, renewal and good faith by both parties ... But to answer your question, Your Honor, other than the requirement to negotiate in good faith over the renewal license, there is no express provision within the four contract that would prevent us from
The Court: That's exactly the way I see it.
Mr. Ward: There is not a
The Court: There is an opportunity to negotiate in good faith, but what you are telling me, there is no formula in the contract for either party to avoid the patent-by-patent, liti gation-by-litigation, country-by-country approach. There's no formula that prohibits that, is there?
Mr. Ward: Not other than what I've just said. I have nothing else to point to you.
The Court: So it leaves it not to the good faith of the parties, obviously, to the good faith only of Hyundai. We know what TI's good-faith preference is. But if it's Hyundal or anybody else, is it their good faith, their unilateral benevolence that allows them to either take it patent-by-patent or allows them to agree upon a formula outside of the contract words: in other words, come up with a different formula to approach the cap?
Mr. Ward: Well, I think there's two things I still say that it's important that you had a fixed term, that you didn't have to interpret into that. You did not have to try to terminate it earlier, as TI sought to do. You did not *687 have to do that. But, you know, I'm not trying to mislead the court. The court is correct that there isn't other than the fact there was a fixed term, other than the fact that there was a contractual obligation to try to-to negotiate in good faith. And I still believe it's admissible evidence, Your Honor, that we did in fact, prior to the institution of any litigation, identify the same countries that we our expert has now identified. The Court: And if they refuse to accept those identities, what's the recourse?
Mr. Ward: Lawsuit ...
The Court: Without a formula and without a subsequent agreement on negotiations and without a subsequent agreement on a workable formula, again, the contract provides neither this court nor anyone else with a formula to determine how to avoid the patent-by-patent, product-by-product, country-by-country approach? I don't know of any other way to avoid it.
Mr. Ward: Other than the requirement that I said we're having to do what we had to do in good faith.[71]
Summary Judgment Hearing Transcript at 46:21-49:20 (emphasis added). Hyundai is taking Article 7.1 to bolster its "TI Country Concept" for this reason: the "TI Country Concept" renders the sales cap provision virtually useless. Hyundai argues that Article 7.1 provides the "good-faith" mechanism for interpreting (and subsequently enforcing) the sales cap provision, but that provision expressly provides for negotiations after termination of the License Agreement pursuant to the sales cap provision. Assuming, arguendo, that Article 7.1 does indeed provide a mechanism for determining what are "royalty bearing products" that count toward the sales cap calculation, Hyundai's interpretation still renders the sales cap provision useless absent a "definite agreement" resulting from "good-faith" negotiations about these specific terms. Finally, Hyundai says that all of this concern over Article 5.2(A)(ii), the sales cap provision, is really not that important since there is the fixed termination date of December 31, 2000. What Hyundai is really saying is: [Paraphrasing, of course] "Don't worry that the sales cap provision doesn't really work under our `TI Country Concept' interpretation. We still have the fixed term that terminates the contract." Well, good for Hyundai; but that still renders an entire provision of the contract virtually useless a nullity created by a provision within the very same contract it now sits, Article 7.1 and its "good-faith", negotiations.[72] Hyundai's "TI Country Concept" interpretation turns the License Agreement into a paradox a self-contradicting contract that voids one of its own, key provisions.
D. Article 7.9 Royalties Not Dependent Upon Patent Invalidation
Finally, Article 7.9 provides, in part:
For the convenience of the parties hereto, this Agreement is made in consideration of the exchange of patent licenses under a group of patents of each party. A determination or action by a court of competent jurisdiction, regulatory authority or governmental agency: (i) finding that one or more of the patents of one party are invalid; or (ii) granting a temporary or permanent injunction or restraining order under one or more of the patents; shall not give rise to a right of termination by either party nor shall such determination or action be regarded as justification for a change in the royalty rates. *688 License Agreement at 44 (emphasis added). Once again, the "TI Country Concept" flies in the face of the express language of the License Agreement. This provision that if any party's patents are either (i) found invalid, or (ii) proven up (that is, shown valid and infringed by litigation), the royalty remains the same. Texas Instruments urges this provision directly contradicts Hyundai's patent-by-patent "covered by" interpretation of the License Agreement since the calculation of royalties rests upon the definition of royalty bearing products. Hyundai responds that "TI offers no legal, factual or logical support for its tortured application of Article 9.1(c) of the interpretation of Article 5.2(A)(ii)." Hyundai's Opposition Brief at 23. Once again, Hyundai urges this Court to simply ignore the royalty provisions by arguing they are wholly unrelated to the sales cap calculation. Hyundai is wrong. Through their "TI Country Concept" interpretation of the License Agreement, "royalty bearing products" incorporates the "covered by" language that lies within the "License Products" article. Article 1.20, License Agreement at 11. Royalty bearing products effects sales cap and royalty calculations alike. Hyundai wards this Court off of the calculation of royalties since its tortured interpretation of royalty bearing products constantly inflicts violence upon unsuspecting provisions like Article 7.9 of the License Agreement.
11. Texas Instruments Damned If It Does, and Damned If It Doesn't
This section explores the ultimate absurdity inherent in the "TI Country Concept" interpretation of the License Agreement. If Texas Instruments must sue Hyundai on each product, under each patent, under the patent laws of each particular country where Hyundai's sale occurs, then the License Agreement should provide a workable mechanism for this endeavor.[73] As previously noted, the License Agreement does not provide a workable formula for carrying out this product by product, patent by patent, country by country licensing scheme. Not only does the License Agreement fail to provide the parties a mechanism for proceeding under the "TI Country Concept," it actually penalizes Texas Instruments for attempting to establish (via litigation) a product as a "royalty bearing product" under Hyundai's interpretation. Here is how:
According to Hyundai, the License Agreement was still in effect on May 1, 1998 when Texas Instruments filed its initial patent infringement lawsuits. Article 7.2 of the License Agreement holds, in its entirety:
7.2 If a party fails to make any payment fully or timely as required by this Agreement, or in the event of any other material breach of this Agreement by either party or any of its SUBSIDIARIES sublicensed hereunder, and if such failure or other material breach is not corrected within forty-five (45) days after written notice complaining thereof is given to the defaulting party, then this Agreement may be terminated forthwith in its entirety by written notice to that effect from the complaining party, provided that such termination shall not *689 affect any royalty of other obligation arising prior to such termination.
License Agreement at 40 (emphasis added). So, under Hyundai's "TI Country Concept" interpretation of the License Agreement and its "credit" of sales in only the United States, Japan, and Europe,[74] Texas Instruments materially breached the License Agreement by filing patent infringement lawsuits while Hyundai "believed" it was still below the sales cap and protected by the contract. "Accordingly, on May 7, 1998, Hyundai gave Texas Instruments written notice that Texas Instruments was in material breach of the License Agreement and demanded that Texas Instruments cure its breach by dismissing the pending patent infringement lawsuits within the 45 day cure period." Hyundai's Motion for Summary Judgment at 9 (emphasis added). Obviously, Texas Instruments refused to dismiss the lawsuits. So, on July 6, 1998, Hyundai terminated the License Agreement pursuant to Article 7.2. Article 7.7 of the License Agreement provides, in its entirety:
In the event of termination of this Agreement or any of the licenses granted under this Agreement, by one party ("the Terminating Party") pursuant to Articles 7.2 or 7.3, any licenses granted to the Terminating party pursuant to Article 3 and any sublicenses granted to any of its SUBSIDIARIES by the Terminating Party pursuant to Article 4, shall survive until December 31, 2000.
License Agreement at 43 (emphasis added). Therefore, Hyundai argues: 1) Texas Instruments committed a material breach of the License Agreement by filing these patent infringement lawsuits during the term of the License Agreement; 2) Hyundai gave Hyundai written notice to cure this breach pursuant to Article 7.2 of the License Agreement; 3) Texas Instruments failed to cure this breach within the forty-five-day cure period provided for in Article 7.2 since it refused to dismiss these patent infringement lawsuits; 4) Pursuant to Article 7.2, Hyundai terminated the License Agreement on July 6, 1998; and, finally 5) Pursuant to Articles 7.2 and 7.7, Texas Instruments' rights under the License Agreement have terminated while Hyundai's rights under the License Agreement survive until December 31, 2000.[75] This rigid logic is actually antithetical to realization of the "TI Country Concept" interpretation of the License Agreement.
The "TI Country Concept" interpretation of the License Agreement puts the burden on Texas Instruments to prove each product as "covered by" a valid patent in the country in which Hyundai sells that particular product.[76] If Texas Instruments actually wins that particular lawsuit, then that product magically becomes a "royalty bearing product" and counts toward the sales cap calculation. So, assume that Texas Instruments wants to establish that a product in Malta is a "royalty bearing product" and thus applicable to the sales cap calculation. Texas Instruments' lawyers board a plane, fly to Malta,[77] and become experts on Maltese patent law. Confident they can win a Maltese verdict of infringement in a New York federal court pursuant to Article 9.11's forum selection clause, Texas Instruments' lawyers (eventually) board a plane for New York where they file a patent infringement lawsuit on that particular product under that particular patent sold by Hyundai in Malta. *690 Texas Instruments' lawyers win a Maltese verdict of infringement (delivered by a New York federal judge) against Hyundai (thereby establishing that particular product as a product "covered by" a valid Texas Instruments patent and thus a "royalty bearing product" applicable to the sales cap calculation).[78] Sun-tanned and victorious, the Texas Instruments lawyers would return to their home office only to find a letter from Hyundai notifying Texas Instruments that it is in "material breach" of the License Agreement and thus has a few days to cure. Even though Texas Instruments was playing under Hyundai's "TI Country Concept" interpretation of the License Agreement by actually establishing a product as "covered by" a valid Texas Instrument patent. Hyundai still manages to void the sales cap provision by declaring the patent infringement lawsuit a "material breach" of the License Agreement thereby terminating Texas Instruments' rights under the contract and nullifying the sales cap termination clause. That is, the "TI Country Concept" actually discourages Texas Instruments from suing and establishing a product as a royalty bearing product since filing that suit will (absent dismissal of the lawsuit) terminate Texas Instruments' rights under the License Agreement, thereby nullifying the entire sales cap provision.
So, Texas Instruments has two hopeless options under the "TI Country Concept" interpretation of the License Agreement. On the one hand, if Texas Instruments sits idly back and files no patent infringement lawsuits, the sales cap provision will never trigger since Texas Instruments has not established any products as "covered by" valid Texas Instruments patents and, thus, "royalty bearing products." On the other hand, if Texas Instruments plays Hyundai's game that is, if Texas Instruments sues Hyundai on a particular product, under a particular patent, under the patent laws of the particular country in which Hyundai makes the sale then Texas Instruments forfeits its rights under the contract and loses the benefit of early termination since Hyundai can, pursuant to Articles 7.2 and 7.7, simply terminate the contract and continue using Texas Instruments products (without fear of excessive royalties) until December 31, 2000.[79] Not only is the "TI Country Concept" antithetical to its own success, but under Hyundai's interpretation of the License Agreement Texas Instruments is damned if it does and damned if it doesn't.
Once again, this Court will step back so as not to lose the forest for the trees. Hyundai gives Texas Instruments a Hobson's choice. Hyundai first tells Texas Instruments that the sales cap termination clause does not trigger until the parties execute a "definitive agreement" following "good-faith" negotiations about which products are "royalty bearing products" applicable to the sales cap calculation. Assuming, arguendo, that Article 7.1 applies to negotiations before the contract has terminated (and it does not), it nonetheless provides a mechanism whereby Hyundai can nullify the sales cap termination clause by simply refusing (in good faith, of course) to agree with Texas Instruments' interpretation of that provision. Under this option, the sales cap provision automatically nullifies. Next, Hyundai argues that the "TI Country Concept" interpretation of the contract requires Texas Instruments to prove each royalty bearing product as "covered by" a valid patent in force in the country in which the product is sold at the time the product is sold. But if Texas Instruments files any of these patent infringement lawsuits against Hyundai in an effort to establish a product as a royalty bearing product applicable to the *691 sales cap calculation, Hyundai simply fires off a "material breach" letter demanding the lawsuit be dismissed (thus the "TI Country Concept" can, in fact, never be realized). And under this option, the sales cap provision automatically nullifies. Finally, Hyundai says Texas Instruments can just sit idly back and not file any infringement lawsuits and, absent a "definitive agreement" based on "good-faith" negotiations, the sales cap provision will lay dead in the contract. And yet again, this option nullifies the sales cap provision. Texas Instruments is damned if it does and damned if it doesn't.
Taking one further step back from the forest, this Court must note one last thing. Under all of Hyundai's "options" pursuant to its "TI Country Concept" interpretation of the License Agreement, the sales cap provision remains dead on arrival. Meanwhile, Hyundai's royalties remain "capped" pursuant to specified annual amounts. As previously noted, both Texas Instruments and Hyundai enjoy protection via their respective "caps" in the License Agreement: Texas Instruments has its sales cap termination clause and Hyundai has its royalty cap. Now, Hyundai attempts to "interpret" (through meandering, cross-referencing, and provision incorporation) Texas Instruments' sales cap into oblivion by rendering it null. Hyundai wants to strip Texas Instruments of its sales cap protection while remaining cloaked in the swaddling arms of its royalty cap. When this Court takes its final step back to see the forest for the trees, it notices Hyundai trying to burn a few of them off.
12. Sales by HEI and its Sabsidiaries of Semiconductive Elements and Apparatus Count Toward the Sales Cap Calculation?
Intermittently throughout their briefs, Texas Instruments and Hyundai spar over the following issue: Which sales count toward the sales cap calculation? Sales by Hyundai Electronics, Limited? Or sales by both Hyundai Electronics, Limited and its subsidiaries? Article 5.2(A)(ii), the sales cap provision, specifically says "HEI's cumulative worldwide sales of royalty bearing products ..." License Agreement at 30. Hyundai notes, and this Court concedes, that this provision does not say "HEI's and its SUBSIDIARIES' cumulative worldwide sales of royalty bearing products." Texas Instruments, on the other hand, argues that Article 5.6[80] undermines this strict reading since it "expressly provides that only sales to third parties by either HEI or its subsidiaries count, and the intra-company sales do not count." Texas Instruments Reply Brief at 10, n. 10. All of this is academic; and this Court expressly refuses to rule simply for the sake of ruling. By Hyundai's own accounting, if this Court includes the "rest of world" countries that Hyundai erroneously excludes from the sales cap calculation, Hyundai, under its own calculations, was far over the termination cap as of May 1, 1998 the day Texas Instruments filed its initial patent infringement lawsuit. See supra pp. 664-665. Whether or not Hyundai's subsidiaries should be included in the sales cap calculation is a discussion for another day. Hyundai's own numbers generated under its own interpretation reveal a busted termination cap.
13. Conclusion
Hyundai strings together other excerpted provisions of the License Agreement in a valiant effort to defeat the express purpose of the license. However, upon closer analysis, these provisions simply cannot support the unreasonable interpretation it assigns to the fifty-page License Agreement. Hyundai's "TI Country Concept" *692 interpretation, taken literally, results in the million-dollar licensing of absolutely nothing until Texas Instruments wins a verdict of infringement against Hyundai on a particular product, under a particular patent, under the patent laws of the particular country in which Hyundai's sale occurs. Hyundai's reach for good-faith negotiation provisions, muddled with excerpts from other, irrelevant provisions, represent the last efforts of a party flailing about trying to cling to anything to prevent the inevitable. By Hyundai's own numbers, the License Agreement was terminated on May 1, 1998 the day Texas Instruments initiated its infringement litigation.[81] The License Agreement terminated pursuant to the sales cap provision in Article 5.2(A)(ii). Game over, Hyundai.
This Court hereby makes the following findings:
1) the language of Article 5.2(A)(ii) (the "sales cap" provision) of the License Agreement is unambiguous;
2) Hyundai's proffered interpretation of Article 5.2(A)(ii) (the "sales cap provision") of License Agreement, the "TI Country Concept," is an unreasonable interpretation of that provision and the License Agreement;
3) the only reasonable interpretation of Article 5.2(A)(ii) of the License Agreement and the License Agreement is that "royalty bearing products" are all semiconductive elements and semiconductive apparatus other than discrete devices such as transistors, photo transistors, diodes and SCRs ("semiconductive resistors");
4) as of May 1, 1998, Hyundai's cumulative worldwide sales of royalty bearing products had exceeded the sales cap contained within Article 5.2(A)(ii) of the License Agreement;
5) since the sales cap provision of Article 5.2(A)(ii) (the "sales cap" provision) of the License Agreement had been reached as of May 1, 1998, the License Agreement had already terminated as of the day Texas Instruments initiated its patent infringement litigation.
Thus, this Court hereby GRANTS Plaintiff Texas Instruments Incorporated's Motion for Partial Summary Judgment and Memorandum in Support Thereof [83, 84, and 85 of 2:98-cv-74] and DENIES Defendant Hyundai's Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment [67 of 2:98-cv-73].[82] The License Agreement terminated pursuant to its sales cap: and these cases are going to trial.
Accordingly, in the cases listed below this Court hereby DISMISSES WITH PREJUDICE the following:
1) 2:98-cv-73 Count I entitled "Declaratory Relief
re: Non-Termination of the License
Agreement;
Count II entitled "Declaratory Relief
re: TI's Material Breach of License
Agreement; and
The "Fifth Affirmative Defense"
(regarding the License Agreement).
2) 2:98-cv-74 The "Fifth Affirmative Defense"
(regarding the License Agreement).
3) 2:98-cv-77 The "Fifth Affirmative Defense"
(regarding the License Agreement).
4) 2:98-cv-223 The "Third Affirmative Defense"
(regarding the License Agreement);
5) 2:98-cv-224 The "Third Affirmative Defense"
(regarding the License Agreement);
and
6) 2:98-cv-225 The Affirmative Defense of License
(regarding the License Agreement).[83]
It is SO ORDERED.
NOTES
[1] Civil Action No. 2:98-cv-74 is merely the tip of the litigation iceberg between Texas Instruments and the Hyundai entities. There are currently seven lawsuits pending in this Court between these parties: Civil Action Nos. 2:98-cv-73, 2:98-cv-74, 2:98-cv-77, 2:98-cv-223, 2:98-cv-224, 2:98-cv-225, and 2:99-cv-1. While Texas Instruments filed its motion in Civil Action No. 2:98-cv-74, it has asked this Court to apply it in every case pending before this Court in which Hyundai has raised the affirmative defense of license. It will. Thus, Texas Instruments' motion for partial summary judgment shall apply in Civil Action Nos. 2:98-cv-73, 2:98-cv-74, 2:98-cv-77, 2:98-cv-223, 2:98-cv-224, 2:98-cv-225, and 2:99-cv-1.
[2] While Texas Instruments has asked its motion to apply across the board to all currently pending cases in this Court between Texas Instruments and the Hyundai entities, Hyundai has filed its motion in Civil Action No. 2:98-cv-73 "seeking summary judgment or, in the alternative, partial summary judgment on their counterclaims for declaratory relief against Texas Instruments Incorporated ("TI") in Case No. 2:98-cv-73 and on their Fifth Affirmative Defense in Case Nos 2:98-cv-74 and 2:98-cv-77 pursuant to Federal Rule of Civil Procedure 56." Hyundai's Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment at 1 ("Hyundai's Motion for Summary Judgment").
[3] This Court will use "Hyundai" to refer collectively to the three defendants: 1) Hyundai Electronics Industries Company, Limited, 2) Hyundai Electronics America, Incorporated, and 3) Hyundai Semiconductor America, Incorporated. For the limited purposes of this opinion, there is no need to distinguish between these three Hyundai entities.
[4] In its motion for the Judicial Panel of Multi-district Litigation to transfer the New York action (discussed later) to Multidistrict Litigation, Hyundai described this Court as one of those "notoriously rapid jurisdictions such as the Eastern District of Virginia and Marshall, Texas (a remote court in East Texas with a visiting judge from 200 miles away)." Hyundai's Notice of Motion at 5. In fact, we are only 190 miles away from Marshall, Texas; and with the recent invention of that "notoriously rapid" contraption coined the "automobile," we are able to get here in a little over three hours.
[5] Both parties admit they entered into the patent cross-license agreement so that there would be "no chance of litigation or controversy during the term of the agreement." See Hyundai's Motion for Summary Judgment at 3. Well, hope springs eternal.
[6] The contract defines "royalty bearing products" in Article 1.21: "`ROYALTY BEARING PRODUCTS' means items (c) and (d) set forth in Article 1.20, however, ROYALTY BEARING PRODUCTS shall not mean SEMICONDUCTIVE ELEMENTS, or SEMICONDUCTIVE APPARATUS, which are discrete devices such as transistors, photo transistors, diodes and SCRs" License Agreement at 12 (emphasis added). Obviously, via the emphasized language noted above, Article 1.21 refers to a portion of Article 1.20. See infra pp. 27 28.
[7] The parties reach this amount by taking "an amount equal to the product of one and one-tenths (1.1) multiplied by three billion five hundred forty one million United States dollars (U.S.$3,541,000,000.00)." License Agreement at 30. This Court can discern no reason why the parties didn't just say "$3,895,100,000.00."
[8] Obviously, the sales cap lies at the heart of the present dispute. Why did the parties inject this "sales cap" feature into an already complicated contract? Texas Instruments was concerned that Hyundai's sales would increase faster than anticipated at the time of negotiations. In order to insure Texas Instruments would have the opportunity to negotiate a fair royalty in the event of extraordinary Hyundai growth, both parties agreed that the license would automatically terminate if Hyundai's cumulative worldwide sales reached a certain amount. Simply put, Texas Instruments (quite understandably) did not want to lock itself into a runaway contract. Texas Instruments was not the only one concerned about Hyundai's growth. Hyundai itself enjoys similar protection from its own growth since its royalties are "capped" and cannot exceed specified amounts each year.
[9] These proud lists serve as a starting point for license negotiations and are not an exhaustive list of patents owned by each party. On the contrary, negotiating parties often add patents to and remove patents from their proud lists during the course of negotiations.
[10] For those non-Star Trekkers, a micron is 1/77th the width of a human hair.
[11] For example, Texas Instruments currently owns about 4,000 semiconductor patents and has an equal number of patent applications pending worldwide.
[12] They also open themselves up to various interpretations of the cross-license agreement; the very reason this Court writes today.
[13] Apparently, Dataquest is a service capable of making such calculations in the high-tech field of semiconductor technology.
[14] The European countries where Hyundai "credits" sales of products toward the sales cap calculation include Belgium, the United Kingdom, Germany, France, "Deutch" (presumably the Netherlands), and Scotland. Hyundai concedes that sales of products in these countries are applicable to the sales cap calculation. See infra note 16.
[15] Under its own royalty-bearing-product cap calculations, Hyundai specifically referred to these "Non-TI Countries" as "ROW" countries, or "rest-of-world" countries. Once again, under Hyundai's "TI Country Concept" interpretation of the License Agreement, these "ROW" countries (or "Non-TI Countries") do not apply to the sales cap calculation. However, if you include these "Non-TI Countries" or ("`ROW' countries") in the sales cap calculation, then, under Hyundai's own calculations it had exceeded the sales cap as of the end of April 1998. See infra note 16.
[16] All of these calculations and concessions are taken from a Hyundai document entitled "TI License Expiry Simulation ('98 4 Actual for Semi/'98 5 Plan for Memory)," part of Hyundai's internal records. Hyundai's representative, Mr. M.B. Chung, identified this document, among others, as a "royalty bearing product cap or sales simulation." Interestingly, Webster's Dictionary defines "expiry" as "a. exhalation of breath; b. death; c. termination; esp.: the termination of a time or period fixed by law, contract, or agreement." Meridian Webster's Collegiate Dictionary 10th ed (emphasis added). If this Court includes Hyundai's "Non-TI Countries" or "ROW" countries in its calculation of the sales cap, then, under Hyundai's own interpretation and its own calculations (found within the aforementioned, Hyundai document) it has indeed exceeded the sales cap as of May 1, 1998.
[17] Gentlemen, start your lawyers...
[18] On October 9, 1998 the District Court for the Eastern District of Virginia granted Hyundai's motion to transfer this case to this Court. Virginia case number 98-627-A now bears case number 2:98-cv-225 in this Court. In this particular case, Texas Instruments alleges Hyundai has infringed and continues to infringe seven of its patents: its '370 patent which protects an invention of a synchronous dynamic random access memory device having a control data buffer; its '369 patent which protects an invention of a synchronous dynamic random access memory device; its '367 patent which protects an invention of a process for controlling writing to a dynamic random access memory array; its '358 patent which protects an invention of a system transferring streams of data; its '954 patent which protects an invention of a random access memory arranged for operating synchronously with a microprocessor and a system including a data processor, a synchronous dynamic random access memory, a peripheral device, and a system lock; and its '721 patent which protects an invention of a memory apparatus with random and sequential addressing. Complaint, 2:98-cv-225 at 2-7.
[19] Specifically, Texas Instruments alleges Hyundai has infringed and continues to infringe two of its patents: its '075 patent which protects an "invention of a random access memory cell with implanted capacitor region," and its '781 patent which protects "inventions of a semiconductor device with electrostatic discharge protection." Complaint for Patent Infringement, 2:98-cv-73 at 2-3.
[20] Specifically, Texas Instruments alleges Hyundai has infringed and continues to infringe its '674 and '613 patents which protect its "inventions in segmented asynchronous operation of an automated assembly line." Complaint for Patent Infringement, 2:98-cv-74 at 2-3.
[21] AS a plaintiff in the New York court, Hyundai didn't fare so well:
Furthermore, it is this Court's opinion that, in view of Plaintiff's refusal to engage in the discovery previously agreed upon, Hyundai's main purpose in filing this action was to delay the adjudication of the claims pending elsewhere... Given Plaintiff's delay of the agreed upon discovery in the instant case, completion of the contemplated discovery by the order's October 1 deadline is impossible or will impose undue burdens on opposing counsel. Meanwhile, it appears that Hyundai may continue to receive the benefit of royalty-free sales of infringing products. Plaintiff's actions, as Judge Rakoff pointed out when he granted the order to show cause on August 24, 1998, "make a total mockery of [this Court's] order" and constitute a failure to participate in good faith in discovery ordered by the Court.
For all these reasons, dismissal is a remedy of appropriate severity, without being unduly prejudicial to Plaintiff's interests.
Accordingly, the complaint will be dismissed with prejudice. Defendant is to submit an Order of Dismissal with notice to Plaintiff.
Opinion and Order 98 Civ. 3118 (New York District Court) at 2-3 (emphasis added). This Court later found Judge Patterson's dismissal of Hyundai's declaratory action to be a dismissal without prejudice as to the license issue being litigated in other jurisdictions. As a result of this finding, this Court permitted Hyundai to amend its answer in the 2:98-cv-73 case to include a counterclaim for the declaratory relief dismissed by the New York court (Although the Joint Panel on Multi-District Litigation refused to consolidate all of these cases, it soon became apparent that Marshall, Texas was going to become the de facto MDL court as Texas Instruments cases, Hyundai cases, and parts of both began to trickle, and then flow, into this Court).
[22] Once again, on October 9, 1998, the District Court for the Eastern District of Virginia granted Hyundai's motion to transfer these cases to this Court. Virginia case number 97-647-A now bears case number 2:98-cv-223 in this Court; Virginia case number 98-648-A now bears case number 2:98-cv-224 in this Court. The Virginia Court's October 9, 1998 transfer order terminated its participation in this particular litigation between Texas Instruments and Hyundai (alas, the first battlefield falls silent as the forces converge in Marshall, Texas). In the 2:98-cv-223 case, Hyundai alleges Texas Instruments has infringed and continues to infringe its '323 patent which protects "an invention entitled `Power Supply Compensated MOS Schmitt Trigger Oscillator'" and its '528 patent which protects "an invention entitled `Data Output Buffer'" Amended Complaint for Patent Infringement, 2:98-cv-223 at 2-3. In that same case. Texas Instruments counterclaims that Hyundai has infringed and continues to infringe its '422 patent which protects an invention of a power up detection circuit, and its '228 patent which protects an invention of a memory decoding circuit. Texas Instruments Incorporated's Answer to Plaintiff's First Amended Complaint and Counterclaim, 2:98-cv-223 at 4-5. In the 2:98-cv-224 case. Hyundai alleges Texas Instruments has infringed and continues to infringe its '416 patent which protects an invention entitled "Method for Fabricating In-Situ Doped Polysilicon Employing Overdamped Gradually Increasing Gas Flow Rates with Constant Flow Rate Ratio," its '265 patent which protects an invention entitled "Method for Removing Residual Material From a Cavity During the Manufacture of a Semiconductor Device by Utilizing Plasma Scattering," its '831 patent which protects an invention entitled "Method for Making Low Resistance Polysilicon Gate Transistors and Low Resistance Interconnections Therefore Via Gas Deposited In-Situ Doped Amorphous Layer and Heat-Treatment," and its '355 patent which protects an invention entitled "Bipolar Transistor Construction." First Amended Complaint, 2:98-cv-224 at 2-5. In this case, Texas Instruments counterclaims that Hyundai has infringed and continues to infringe its '160 patent which protects an invention of a computer including an integrated circuit having a low power selection control arrangement and its '030 patent which protects an invention of self refresh circuit for dynamic memory. Texas Instruments Incorporated's Answer to Plaintiff's First Amended Complaint and Counterclaim, 2:98-cv-224 at 6-8.
[23] In this particular case, Hyundai alleges that Texas Instruments has infringed and continues to infringe three of its patents its '31! patent which protects an invention entitled "Method for Manufacturing a Conductor Layer in a Semiconductor Device," its '088 patent which protects an invention entitled "Group Coding for Serial Data Transmission," and its '995 patent for an invention entitled "Process for Anisotropically Etching Semiconductor Material." Complaint, 2:98-cv-77 at 1-3 (Just so everyone is clear, Webster defines "anisotropically" as "exhibiting properties with different values when measured in different directions.") Webster's, supra In this case, Texas Instruments counterclaims that Hyundai has infringed and continues to infringe its '041 patent which protects an invention of a source contact placement for efficient ESD/EOS protection in grounded substrate MOS integrated circuit and its '874 patent which protects an invention of a matrix interconnection system with different conductors. Texas Instruments Incorporated's Answer to Plaintiff's Complaint and Counterclaim, 2:98-cv-77 at 5-6.
[24] As a result of the completion of Texas Instruments' sale of its dynamic random access memory (DRAM) business to Micron, Hyundai has moved to dismiss its complaint against Texas Instruments, without prejudice, on October 16, 1998. Texas Instruments has opposed this motion, requesting that Hyundai's complaint be dismissed with prejudice, that Hyundai not be permitted to bring a motion to transfer a counterclaim to this Court, and that Texas Instruments recover its costs. The motion is still pending before that honorable court (and yet another battlefield is poised to fall silent as the lawyers board planes for Marshall, Texas).
[25] In this most recently filed case, Hyundai alleges that Texas Instruments has infringed and continues to infringe another one of its patents its '393 patent which protects an invention entitled "Monolithic Discrete-Time Digital Convolution Circuit." Complaint, 2:99-cv-1 at 2.
[26] The other entities sued by Texas Instruments include Hyundai Electronics Deutschland GmbH, Hyundai Electronics UK Ltd., Oakwood Semiconductor BV, Oakwood Electronics BV, and Aeon Technology BV. Apparently, discovery as it is conducted in the United States does not occur in the Netherlands. Rather, the parties exchange and submit to the Dutch court evidence and pleadings in advance of the one-day trial. The Dutch action currently has a February 5, 1999 trial setting; and the Dutch court will probably render its decision within six weeks of that trial date.
[27] Discovery is now in progress in the English action; and written expert submissions were scheduled to be filed December 22, 1998. The English action currently has either an April 5, 1999 trial setting or an April 14, 1999 trial setting (the parties appear to diverge on this issue); regardless, the English trial is scheduled to last about two weeks before Lord Justice Pomphrey.
[28] The parties are currently exchanging briefs as requested by the Japanese court. It appears that the Japanese court will determine the patent infringement issues first and then turn to the licensing issue. The parties expect the Japanese court to rule on the requested injunctive relief some time during the summer of 1999.
[29] Like Dutch procedure, German procedure does not provide for discovery; however, the parties are currently exchanging evidence and will have the opportunity to file additional briefs. Hyundai states that the German action currently has a May 6, 1999 trial setting, while Texas Instruments submits there currently is no trial setting for the German action.
[30] Like Dutch and German procedure, French procedure does not provide for discovery; however, French law does permit seizure of an alleged infringer's product. Thus, Hyundai's product has indeed been seized pursuant to French law. Currently, there is no trial date for the French action.
[31] Article 9.10 of the License Agreement reads, in its entirety: "This Agreement and matters connected with the performance thereof shall be construed, interpreted, applied and governed in all respects in accordance with the laws of the State of New York, United States of America, applicable to agreements made and to be performed entirely within that state." License Agreement at 52.
[32] This Court will later revisit another portion of Article 7.1 when it considers Hyundai's "good-faith" argument supporting its "TI Country Concept" interpretation. For now, this Court is strictly concerned with how the contract terminates.
[33] Hyundai further argues that since the License Agreement was still in effect at the time Texas Instruments filed its lawsuit, Texas Instruments committed a material breach of the License Agreement and thus has terminated its rights under the contract. Thus, Hyundai remains "licensed" under the contract until December 31, 2000 the date the License Agreement must terminate.
[34] Nonetheless, let no appellate brief take this statement to mean this Court has steered away from New York contract law in its analysis. This Court will apply New York law in its analysis of the License Agreement. End disclaimer.
[35] Some extrinsic evidence appears in this Court's recitation of the extensive history between Texas Instruments and Hyundai. However, this is only to provide the reader with the appropriate history between the parties not for interpretive purposes. Again, this Court expressly refuses to consider any of this extrinsic evidence during its interpretation of the unambiguous sales-cap provision of the License Agreement.
[36] Article 5.2 is quoted, in its entirety, supra pp. 670-671.
[37] All of this unnecessary cross-referencing and partial provision-incorporation is what leaves this fifty-five page License Agreement susceptible to multiple interpretations (the legal profession has always been hesitant to simply say what it means without self-affirming legalese and complication). Only one of these interpretations, however, is reasonable.
[38] This Court is fully aware that it has twice quoted Article 1.21 of the License Agreement This section is absolutely critical to interpretation of the parties' License Agreement.
[39] For example, say that Texas Instruments has two different DRAM products that Hyundai wants to sell in two different countries. Hyundai concedes that the sales of products in the United States count toward the sales cap calculation. However, Hyundai argues that sales of products in Korea are not "royalty bearing products" and do not count toward the sales cap calculation. Hyundai's sale of one of Texas Instruments' DRAM products in the United States would count toward the sales cap calculation; while Hyundai's sale of one of Texas Instruments' DRAM products in Korea (incidentally, Hyundai's home) would not count toward the sales cap calculation. Although this example may seem over-simplistic, later this Court will show how these two simple facts can turn into a legal nightmare under one of the proffered interpretations of the License Agreement.
[40] Apparently, these countries are supposed to be freebies as far as the sales cap calculation is concerned.
[41] Technically, it's royalty "caps" since the License Agreement lays out specific caps for each year through the year 2000 (when the contract must terminate regardless of sales). These annual royalty caps are as follows:
Year Annual Maximum
1993 U.S. $ 9,628,000
1994 U.S. $ 8,964,000
1996 U.S. $15,000,000
1997 U.S. $15,000,000
1998 U.S. $17,000,000
1999 U.S. $18,000,000
2000 U.S. $18,000,000
License Agreement at 2930.
[42] To be specific, it supports Hyundai's "TI Country Concept" interpretation of the License Agreement.
[43] Complicity, inequity, and absurdity abound in Hyundai's "TI Country Concept" interpretation of the License Agreement. This is only one of many examples.
[44] In order to avoid this complicity, Article 1.21 would have to replace its "semiconductive elements" and "semiconductive apparatus" with its previously employed "items (c) and (d) set forth in Article 1.20." This would harmonize the article; however, it would, nonetheless, fail to support Hyundai's interpretation.
[45] Once again, technically, it's royalty "caps" since the License Agreement lays out specific caps for each year through the year 2000 (when the contract must terminate regardless of sales). See supra note 41.
[46] Specifically, Sections 5.1(b) and 5.1(c) provide mechanisms for calculating royalties that Hyundai owes Texas Instruments for years 1993 and 1994, respectively years during the "first period" of the License Agreement that has now terminated. Each section provides a specified amount that Hyundai's amount owed to Texas Instruments may not exceed. Section 5.2 provides an identical method for calculating these royalties for the years 1996 through 2000 (the year the License Agreement must terminate regardless of sales). Like Sections 5.1(b) and 5.1(c), Section 5.2 includes a series of royalty caps per year between the years 1996 and 2000 (this provision has already been quoted). See supra note 41. Thus, pursuant to Article 5.2's royalty cap provision, if Hyundai experiences tremendous growth between 1996 and 2000 boosting its sales of royalty bearing products, its royalties will not shoot through the roof since they are capped at specified limits. Texas Instruments enjoys similar protection. Pursuant to Article 5.2(A)(ii) (the sales cap), if Hyundai experiences tremendous growth between 1996 and 2000 expanding its market of Texas Instruments' products, the contract will automatically terminate and Texas Instruments will not be tied to a runaway contract wherein Hyundai's sales (via its growth) overshadow its royalties.
[47] Hyundai contends that worldwide litigation would not ensue since Article 9.11 of the License Agreement confines the parties to a New York federal court. Article 9.11 reads, in its entirety:
Neither party nor its SUBSIDIARIES sublicensed hereunder shall commence any litigation against the other arising out of this Agreement or the termination thereof as to any matter not subject to arbitration pursuant to Article 7.4 or with respect to any arbitration provisions or award, except in a Federal Court located in the State of New York. Each party consents to jurisdiction over it by such court.
License Agreement at 52. Hyundai says Texas Instruments is "incorrect" that worldwide litigation would ensue under the "TI Country Concept" interpretation of the License Agreement since the parties agreed to hear their contract-related disputes in a New York federal court. Hyundai's Sur-reply in Support of Hyundai's Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment ("Hyundai's Sur-Reply") at 9-10. In fact, New York District Judge Patterson found that Hyundai waived this forum selection clause of Article 9.11. Thus, worldwide litigation has ensued. Nevertheless, this is extrinsic evidence; and this Court expressly refuses to consider it in its analysis. Hyundai notes that a United States court is competent to decide questions relating to foreign patents. Ortman v. Stanray Corp., 371 F.2d 154 (7th Cir.1967). So, argues Hyundai, this "worldwide" litigation really would not ensue since the patents would be tried in a New York federal court. Even giving Hyundai the benefit of the doubt by assuming the forum selection clause has not been waived (even though it has), Hyundai is really making their interpretation even more unworkable with this argument. There would still have to be a "country-by-country" patent analysis of each product it would just have to be done by a New York district court. Hyundai's attempt to rebuke Texas Instruments' "worldwide litigation" scenario really does it more harm than good. Now, Hyundai says rather than spreading this patent-by-patent analysis amongst courts around the world in the products' respective countries (foreign courts probably more competent to make the foreign patent determination), all products would be tried in a (very busy) New York federal court pursuant to Article 9.11. That is, the product by product, patent by patent, country by country analysis would be conducted entirely by a New York federal court. Nevertheless, giving Hyundai the benefit of the doubt, when this Court uses "country-by-country" to describe the "TI Country Concept," it will refer to a country-by-country patent analysis conducted by a New York federal court.
[48] A process Texas Instruments appears to be pursuing.
[49] Once again, giving Hyundai the benefit of the doubt, this Court assumes the forum selection clause of Article 9.11 has not yet been waived (even though it has).
[50] In fact, Hyundai has simply tendered the maximum amount of royalties to Texas Instruments pursuant to Sections 5.1(b), 5.1(c), and 5.2(A). However, this is extrinsic evidence and, pursuant to New York contract law, this Court will not consider it in its interpretation of the License Agreement.
[51] Hyundai argues that Article 6.1 the audit provision provides a mechanism for determining what "royalty bearing products" are and, consequently, whether the sales cap has been reached and what amount of royalties Hyundai owes Texas Instruments. This Court addresses this argument in the following section discussing Article 6.1. See infra pp. 684-688.
[52] Hyundai cannot escape the simple fact that the "covered by" language does not appear in the definition of "royalty bearing products," but rather, in the definition of licensed products ("covered by" makes it into royalty bearing products only through Hyundai's zig-zagging, cross-referencing, and incorporation). The unavoidable result of this fact is that any product which is not "covered by" a valid Texas Instruments patent under Hyundai's theory is unlicensed as well.
[53] A fictitious company.
[54] A not-so fictitious company.
[55] However, if Hyundai made the DRAM in Korea and sold it either directly to Compaq or through Hyundai's subsidiary, the License Agreement would indeed be effective to shield Hyundai, its subsidiary, and Compaq from lawsuit.
[56] If that is not the language Hyundai is marshaling to support its "TI Country Concept," then the only other language to support Hyundai's interpretation would be "ROYALTY BEARING PRODUCTS specified in (ii) of Article 5.2(A)." License Agreement at 31. However, this is the very language in dispute. This Court assumes that Hyundai would not support an interpretation with the very language it seeks to interpret (an ill-fated effort dubbed "begging the question"). Therefore, it must be the "licensed hereunder" language upon which Hyundai relies.
[57] This Court need not (but will) point out the obvious: that "worldwide" indicates an expansive view of royalty bearing products that cuts against Hyundai's restrictive interpretation of that term.
[58] It strains logic that the parties would make such a monumental change (requiring country-by-country "licensure") to the key term "royalty bearing products" by inferentially "incorporating" Article 1.20 when the License Agreement already defines "licensed products" and could be specifically referenced. Once again, the operative term "LICENSED PRODUCTS" is conspicuously absent from yet another provision marshaled by Hyundai to support its "TI Country Concept" interpretation of the License Agreement.
[59] Remember, giving Hyundai the benefit of the doubt, "country-by-country" analysis must still be performed even though it is conducted by a New York federal court.
[60] Article 5.7 cuts against Hyundai's "extra - litigation-required" interpretation of royalty bearing products necessary for the calculation of both the sales cap and royalties. Article 5.7 reads. in its entirety:
The entire obligation of the parties for royalty payments under this Agreement is as explicitly set forth in this Agreement, and no other obligations for any payment of royalties under this Agreement shall be inferred or implied.
License Agreement at 33. Now, Hyundai urges this Court to "infer" (or "imply") an "obligation" on Texas Instruments to bring, and win, a patent infringement lawsuit against Hyundai on a Texas Instruments product under the patent laws of the particular country in which the particular product was sold thereby proving it is "covered by" a valid Texas Instruments parent and, consequently, a "royalty bearing product" applicable to royalty calculations. Thus, Hyundai urges this Court to interpret the License Agreement to violate Article 5.7 one of its own provisions.
[61] Once again, these provisions each have different "caps" that prevent Hyundai's royalties from exceeding a specified amount. These caps have already been specified in a previous footnote. See supra note 41.
[62] Hyundai argues that "good-faith" negotiations and Article 7.1 prevents such piecemeal litigation. The Court addresses this argument in the following section. See infra pp. 684-688
[63] Hyundai consistently argues that it has "credited" Texas Instruments's sales in the United States, Europe, and Japan toward the sales cap calculation. However, under its "TI Country Concept" theory, this credit is really just a benevolent gesture on its part. The following section explores this point. See infra pp: 684-688.
[64] In fact, Hyundai has generously "credited" toward the sales cap sales of products in countries where Texas Instruments has filed patent infringement lawsuits. In every lawsuit, Hyundai (despite crediting the sales) has denied infringement. Hyundai argues it is "licensed" to sell these products and thus is not liable for infringement. However, in order to be "licensed" to use these products Texas Instruments would have to sue Hyundai on that product, under that patent, under the patent laws of that particular country in which the sale occurs. In every lawsuit Texas Instruments has filed against Hyundai, Hyundai has denied liability thereby preventing Texas Instruments from establishing this product as a "royalty bearing product" that is "covered by" a Texas Instruments patent. Strangely, in defending these patent infringement lawsuits and preventing a product from becoming a "royalty bearing product" applicable to the sales cap calculation, Hyundai is actually preventing itself from being "licensed" under the License Agreement. This Court re-visits this (yet another) bizarre position taken by Hyundai in the next section of its analysis. See infra section 10, pp. 688-691.
[65] The fact that Hyundai has simply tendered the royalty cap amounts each time is extrinsic evidence and this Court expressly refuses to consider it in its analysis. However, pursuant to Article 5.1(a) of the License Agreement, Hyundai owes $8,400,000 sixty days after the effective date of the License Agreement. So, under the very terms of the agreement, Hyundai must be paying millions in royalties for something.
[66] Or other products or processes.
[67] This Court notes, once again, the ubiquitous presence of this term in both the sales cap and royalty calculations of the License Agreement. Any suggestion that the term royalty bearing products should only be interpreted in connection with the sales cap calculation ignores the simple fact that the royalty provisions of the contract expressly rely upon that term. Simply put, this Court can't interpret royalty bearing products without considering its effect on royalty calculations.
[68] Only a court could provide this answer since Texas Instruments would have to prove up that products as a royalty bearing product "covered by" a valid Texas Instruments patent. This process would necessarily include the claim construction and validity issues concomitant with patent infringement analysis.
[69] Borrowing a timeless sound byte from a semi-finalist of a recent talent contest, the parties will "definitely maybe" reach an agreement as to the viability of the sales cap provision. Incidentally, the contestant lost.
[70] Moreover, Article 5.7 militates against inferring or implying additional obligations necessary for the calculation of royalties. See supra note 60.
[71] Counsel for Hyundai, once again, candidly and accurately states Hyundai's position. Candor and accuracy are endangered species at hearings; it is nice to know that occasionally these curious beasts roam an environment that so desperately needs them.
[72] Moreover, Hyundai still can enjoy its "royalty caps" under the License Agreement since the "good-faith" negotiations of Article 7.1 are not required for calculation of these fixed amounts. [Paraphrasing] "Well Texas Instruments, we get our caps but you lose yours," says Hyundai. Absurd.
[73] This Court has already discussed Hyundai's attempt to use "good-faith" negotiations as a possible cure to the product by product, patent by patent, country by country licensing scheme it urges this Court to endorse. This argument combines the audit provision, Article 6.1, with a wholly separate "good-faith" negotiations provision, Article 7.1. Simply put, an Article 6.1 audit could not perform the patent analysis necessary to establish validity and infringement. An Article 7.1 "good-faith" negotiation session is both inapplicable (it applies only after termination of the contract), and inherent within it lies its own failure since both parties must execute a "definitive agreement." Combination and application of these provisions would only lead to protracting the inevitable nullification of the License Agreement's sales cap termination clause. Moreover, using these two provisions to impose an additional, extrinsic obligation upon Texas Instruments for the receipt of its royalties flies in the face of Article 5.7 which militates against such an inferential obligation. See supra note 60.
[74] To re-visit Hyundai's math regarding of the sales cap calculations under its "TI Country Concept" interpretation of the License Agreement, see supra pp. 664-665. Go ahead, choose your own adventure.
[75] Aside from its request that this Court adopt its "TI Country Concept" interpretation of the License Agreement, this is, in essence, the relief sought by Hyundai in its motions currently pending before this Court.
[76] This Court has twice dismissed Hyundai's "good-faith-negotiations-about-the-sales-cap" theory and will not credit this argument with more rebuttal (if any) than it needs.
[77] Malta, whose capital is Valletta, is a small island in the Mediterranean nestled between Sicily and Africa. Considering its location, a trip there might not be that objectionable.
[78] For the limited purposes of this hypothetical, assume that 1) Texas Instruments has a patent in Malta, and 2) the New York Federal court delivers an opinion in less than forty-five days of suit being filed (now that really is notoriously rapid).
[79] This is precisely what Hyundai did in response to Texas Instruments' patent infringement lawsuits. Suddenly, this hypothetical doesn't seem so hypothetical.
[80] Article 5.6 reads, in its entirety:
ROYALTY BEARING PRODUCTS shall be deemed to be put into use, sold, leased, or otherwise disposed of, when billed by HEI, or a SUBSIDIARY of HEI, to a third party, or upon use, or incorporation into a product, by HEI or any of its SUBSIDIARIES, whichever event occurs first. Once royalty has been accounted for, for any ROYALTY BEARING PRODUCT, no further royalty shall be payable thereon under this Agreement.
License Agreement at 32.
[81] See supra pp. 665-666.
[82] At the "Evidentiary Hearing" held before this Court on February 4, 1999, counsel for Texas Instruments, Mr. Kenneth Adamo, succinctly described the trouble with Hyundai's various arguments it levies to support its "TI Country Concept" interpretation of the License Agreement: "... Hyundai's license defense, to try to figure out what the defense has been, when, and what the parameters are, if I can use an expression from my childhood, has been like trying to nail Jell-O to a wall." Transcript of Evidentiary Hearing at 89. This Court has felt similar frustration throughout Hyundai's briefing and motions. Well Mr. Adamo, consider the Jell-O nailed.
[83] In Case No. 2:99-cv-1, Hyundai is the plaintiff and there currently are no counterclaims. Thus, in this case, there currently is no affirmative defense of license to dismiss. Of course, this order would prohibit any such defense in Case No. 2:99-cv-1.
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6 F.2d 520 (1925)
GOMEZ
v.
NAGLE, Commissioner of Immigration.
No. 4552.
Circuit Court of Appeals, Ninth Circuit.
June 29, 1925.
Rehearing Denied August 24, 1925.
A. J. Woolsey, of Oakland, Cal., and Sidney P. Robertson, of San Francisco, Cal., for appellant.
Sterling Carr, U. S. Atty., and Alma M. Myers, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.
Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.
HUNT, Circuit Judge.
Appellant, a native of the Azore Islands, arrived in the United States in September, 1923, and was then about 29 years old. She went to New Mexico, and later came to Oakland, Cal., where, on April 25, 1924, in due form, it was charged that at the time of her entry she was a person likely to become a public charge, and that at that same time she was a person of constitutional psychopathic inferiority. After hearing by the immigration authorities, the alien was found to have been at the time of her entry, and to be, of constitutional psychopathic inferiority. Appeal to the Secretary of Labor was taken, and she was ordered to be deported. After she was taken into custody, and while proceedings to deport were pending, on September 21, 1924, she married, and thereafter lived with, Manuel Gomez, a citizen of the United States. Re-examination of the alien was ordered *521 and had, and a second deportation order was made. Habeas corpus proceedings were sued out, and from denial of the writ an appeal was taken.
The question is whether the immigration authorities were authorized to order deportation of the alien woman (not of the sexually immoral class), who was at the time of entry of constitutional psychopathic inferiority, and who, at the time of the order of deportation, was the wife of an American citizen, and who is of a race eligible to naturalization. Section 2 of the Act of September 22, 1922 (42 Stat. 1021 [Comp. St. Ann. Supp. 1923, § 3961a]), relative to citizenship of married women, expressly provides that any woman who marries a citizen of the United States after passage of that act shall not become a citizen of the United States by reason of such marriage, but, if eligible to citizenship, she may be naturalized by compliance with the naturalization laws.
Counsel urge that by appellant's marriage to a citizen of the United States she acquired, "not citizenship, but the right of naturalization under the special compensatory provision in the Act of September 22, 1922, whereby the fact of marriage gives her the right to be naturalized upon her own petition, if eligible to citizenship," and that the immigration statute is not applicable. If appellant's position is sound, then the policy of Congress to prevent the introduction and keeping in the United States of aliens suffering from dangerous contagious diseases, feeble-minded or insane persons, and others within the excluded classes (section 3, Act of 1917 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼b]), is defeated by the marriage of the alien to a citizen. We cannot adopt such a construction of the statutes. To do so would be to ignore the main objects and purposes of the law forbidding certain aliens from coming within the United States, and providing for the expulsion of certain aliens found within the United States. Moreover, we believe such a construction would conflict with judicial authority.
In Low Wah Suey v. Backus, 225 U. S. 460, 32 S. Ct. 734, 56 L. Ed. 1165, which involved the construction of the Immigration Act of February 20, 1907, and the right to deport alien Chinese, the court held that, although the alien was married, the exclusion provisions applied, and that a married woman might be as objectionable as a single one in the respects denounced by the law then in force. In Chung Fook v. White, 264 U. S. 443, 44 S. Ct. 361, 68 L. Ed. 781, the wife of a native-born citizen of the United States sought admission, but was detained on the ground that she was an alien afflicted with a dangerous contagious disease. It was contended that, notwithstanding that fact, she was entitled to admission under that provision of section 22 of the Immigration Act of 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼l), which provides that, if a person sending for his wife is naturalized, the wife, if found to be afflicted with a contagious disorder, shall be admitted without detention for treatment in a hospital under certain conditions; but the court held that the proviso of section 22 was applicable only to the wife of a naturalized citizen, and that the woman could not be admitted. Again, in Chang Chan et al. v. Nagle (May 25, 1925), 45 S. Ct. 540, 69 L. Ed. ___, the court cited the Immigration Act of 1924 (43 Stat. 153) as applicable to instances where wives sought admission on the ground that their husbands were native citizens of the United States, permanently domiciled therein.
The fact that those cases had to do with Chinese does not detract from their relevancy in showing that the immigration statutes are necessary to be considered where a wife seeks admission on the ground that she has acquired a status by reason of marriage to a citizen of the United States. United States ex rel. Sejnensky v. Tod (C. C. A.) 285 F. 523, 26 A. L. R. 1316, is not in point, for there the woman involved was married before September 22, 1922, and therefore it was held under the then existing law that she became a naturalized citizen of the United States, and as such was not subject to deportation under the immigration laws.
As we are of opinion that the marriage of the alien has not affected the applicability of the pertinent provisions of the immigration statutes, the order of the District Court is affirmed.
Affirmed.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-6023
STEVEN REYES,
Petitioner - Appellant,
versus
J. JOSEPH CURRAN, JR., The Attorney General of
the State of Maryland; WILLIAM L. SMITH,
Warden,
Respondents - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CA-
97-278-JFM)
Submitted: July 2, 1998 Decided: July 22, 1998
Before NIEMEYER and HAMILTON, Circuit Judges, and HALL, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Steven Reyes, Appellant Pro Se. John Joseph Curran, Jr., Attorney
General, David Jonathan Taube, Assistant Attorney General, Ann
Norman Bosse, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Balti-
more, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant seeks to appeal the district court’s order denying
relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 &
Supp. 1998). We have reviewed the record and the district court’s
opinion and find no reversible error. Accordingly, we deny a cer-
tificate of appealability and dismiss the appeal on the reasoning
of the district court. Reyes v. Curran, No. CA-97-278-JFM (D. Md.
Dec. 30, 1997). We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
DISMISSED
2
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537 U.S. 817
SARDONELL ET VIRv.NORIEGA ET AL.
No. 01-1712.
Supreme Court of United States.
October 7, 2002.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
2
C. A. 11th Cir. Certiorari denied. Reported below: 31 Fed. Appx. 202.
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FILED
NOT FOR PUBLICATION JUL 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CLAUDIA ESTRADA-ROSALES, No. 07-75038
Petitioner, Agency No. A095-118-263
v.
MEMORANDUM *
MICHAEL B. MUKASEY, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
Claudia Estrada-Rosales, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ order dismissing her appeal from an
immigration judge’s decision denying her application for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal, and protection under the Convention Against Torture (“CAT”). Our
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law
and for substantial evidence the agency’s factual findings. Wakkary v. Holder, 558
F.3d 1049, 1056 (9th Cir. 2009). We dismiss in part and deny in part the petition
for review.
We lack jurisdiction to review Estrada-Rosales’s due process and ineffective
assistance of counsel claims because she failed to raise these claims before the
agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Substantial evidence supports the agency’s determination that Estrada-
Rosales failed to establish her eligibility for asylum. See Wakkary, 558 F.3d at
1060 (no past persecution where harm to others was not part of “a pattern of
persecution closely tied to” petitioner); Ochave v. INS, 254 F.3d 859, 865 (9th Cir.
2001) (“Asylum generally is not available to victims of civil strife, unless they are
singled out on account of a protected ground.”); Rostomian v. INS, 210 F.3d 1088,
1089 (9th Cir. 2000) (general civil strife or widespread random violence is not
sufficient to demonstrate a well-founded fear of persecution).
Because Estrada-Rosales failed to establish eligibility for asylum, she
necessarily cannot demonstrate eligibility for withholding of removal. See Farah
v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
2 07-75038
Finally, substantial evidence supports the agency’s denial of CAT relief
because Estrada-Rosales failed to establish it is more likely than not she will be
tortured by or with the acquiescence of a government official if returned to El
Salvador. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010)
(generalized evidence of violence and crime not particular to petitioner insufficient
to establish CAT eligibility).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 07-75038
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burlaorr 8ti th8 appOinti& Oi 8 ?OOdV8? th8?8Oi
fO? th8 gU?pO80 Of WAIL&@ UQ iti 8?f8i?&
=(a) ?hro\lgh ll o ffiOi8188t li8Ul th8 AI-
8OOi8tiOn'8 p?dt t0 do buOlaoo8 fa h=O.
*Ia rlw of th8 i8ot tbt thuo rugg88tioM
Ubr808 8 proooduro which ha8 not boon follorod In
?OOpOOt t0 ?iO? 8lt&WtlOm Ot 8 8upU8bl8 B8tUn
W8 r:.Otid 1E 8 t0 ?808iV@ JOU? Oi?bid O@liOll to
th8 8??#t tmt it IO OU? dUt7 ia the p?Ui888 t0
do tho#o thh@ l-8?8t.a above.
-EiU4O?OZ8, undo? 8dviO8 Of O??iOO COuIuOi,
WO h8VO p?8Ouol8dth8t the juri8diOtioo l? th8 Colmb-
81OnO? 008000 UpOA th8 ?.18tiOC O? 8 mtk? t0 thC
AttO?ur O0n8r81, whioh p?UwQtiOa ha8 88br808d tho
thOUght t&t t&8 Or?iO8 Or t&O ALtO?MY aa~8-1 8itOr
8ami~g a11 th8 ?88t8 WOUid UOO it8 010 u8e?OtiO8
80 t0 tho 8dVi88bilitJ Of iMsitUtio( b&81 ~?00806-
lw. In Oth8? words, it h88 bran our aoariotlo8
th8t it Im Out duty tW?d8tO 8 lltU8tiOn t0 the
Attoraoy GUeX81 8nd t0 88t Out thonla tho b88io Of
OU? ~i8W8 ?O? WMoh ?888- th0 h8t @OntOM O? th0
e?u&?qh in OU? 18ttO? Ot d8tO DCC8mbOr 7, 1913
qUOt& 8boto lXp?O880d OU? dOiiCit0 Opinion 80 tC
Wh8t 8hOUid b8 dOnO, but pCh8pO th8 lrp?088iOn do00
fill 8hO?t Of 8 ?8QU88t.
‘A* to the 88co5d rstarrno8 we war0 of tho opla-
ion at tho tlw rho lottor of d8to moatlonod wno t?oa8-
8ittO& t0 YOU tbt th8 8albLll1145
Of thB peldt t0 d0
bwlaro ud roroo8tIom o? the ASOOohtiOa’8 ati?tO?
would ?8qui?o lo~.rt8Otioa, OU? Vi.WO la thi8 ?88QOOt
bvin( bean 8aqyrod ??OB 8 ?88di5g Of ta0 Rot00 Of
Doolalono, under Artlolo fU3la-15,Vo?n0ri*8 Anootatd
i.iooO?8bl8 8. A. Julooa, &W&8 a
~xaa statotu, wnloh rofonnoo la ma rollart
l‘SUtUtO .8P th O?iSbw# l-
8laaloaar to maul lortltluto as nuther-
itr or buildlry aad laa8 laaaoiatio8, with
prorlalon llxlry tauo or “a4 actloa,w
hold to authorlao oaamioolo~r~o amulmut
0s pu8it 0glt by 00u-t lotba. 8bnw 1. Lou
s.‘“?I&i&l&!. & tw h88.a (CiTr A;.P.) bo 8.
..
%a tho 8UbjOOt Of 8~U111lU3 the ABO0@iatioa*O
pemlt to do buoinooo it -8 au? tho t th8t WO h8(.
9erh898 gOa 80 ?8? 80 OU? 8Ut&?itr % th0 p?d888
pOmltt8d la our letter of d8tO Juae m4, 1945, 8 COpf
OS whloh lo lnoloood. YOU will note the m opocltl-
aally 8dTiOOd tho Board 0; Dlrooton of tho A88Oai8tion
t&t ‘the Oondition Ot tho 888OOhtiofJ i0 luo h
that 80
dirooto?, Of?fC8?, aplOy O? 881OOYa 8hoU1d 8OCOgt
8w mOMT f?O8 aw 8CU?OO 88 W-Oat Ofl 8hU?U O?
8Jmro 8000WtO.'
*X0 trust, therororo tht you 088 hror 118
with YOU? OpitliOn011tho 8&80t Htt8r, 8iOOO it
will b8 of ralur not only in thm in8tmt C880, but
will prorldo dir8otion to thi8 OrfiC8 On 8itU8tiOM
of 8 OWQ8?8bl8 MtU?O whloh my 8tiOO in tho fUtU?O.’ .
TitlO HO. ii4, ~8?iiO011’0 AMot8t8d Civil St8tUt80, 0011-
tpi.nB the 8UtUtO8 83p1h8b10 t0 8nd gOfO?dB& buildi= 8nd 10&B
8OOOCi8tiO~ in thi8 SbtO. Dnd0r th* prorloloa8 of Art1010 0018-
7 fOrnoa'8 AnaotatOd Civil St8tUte8, the wag COMC4i88lOa8rlo
d TOB luponlolon and oontrel over all build- aad loan as80018-
tlona doing bwlnooo ln this Skta~
Artlo 88b-w 8nd 88ti-14, V8='0 AMOtatd CiVi1
st8tUt00, 8r0 88 r0iia:
~tlolo sala-18. .In 0880 tho Bmklq C&8-
81ti8? Of fOX80 8m1 find, U9On dO8tiOO Of f?0O
other lvldoaoo, that 8q bulldin and loan 888oOiatIon
18 omduotlry its burlino80, in wholo or ia pa-t, OOa-
tnw to 18W, or f8llly.W 00~~~ with th8 18W, that
it0 8080tO 8r8 1888 tbn it0 llobllltlu iaO1Udias a.1
ita 0891h1 8tOOk, O? oondootln6 it0 btuiJh.08 h 8n PII-
l8fe uMuthorlr84 a? tnUdUhAt DEMO?, the &Ilkiil6
Cor:f8oioao? of Ten8 shall, b:: 8a order in aitily
8dd?eOOod to th0 prarldont OS ouab 8OOOOi8tiOn, diroot
nonor8blo li. A. Jamlooa, g8~8 4
lttoatioa th8?8t0 ld OrdO? lcmpll8ao8 dth tho 18w,
aad tint tho lo8ata bo lnorcoad to lqtml llabllltlw,
an4 In moo lwh loaoaiation aMA1 roiuo or naghot
to lmpl~ wltk any ouoh or4ar lawfully Mda, or 18 say
oaao MJ r wh l8aooiatioa lo larolroat or lo daryor of
lnaolrur~, or it0 laoota are lmpdrod, th8a tho bak-
lag CcrJOOl~O? O? T0~88 8hUl MWA It0 OO?tlflOOtO
ot 8Utho?itT 8nd MT bogla 8a 8OtiOa to nook@ t&8 ohar-
tO)r Of owh 88OOOhtiOn ti SO? a w intro& O? r.-
08iVO? th8r8Oi ld tho dildi& U9 Of 3”t8 8?l8i?8., Aay
lotlon brgua wdrr this sootion rkll b8 brought in tio
COUlltJ Whorr 8UOh 888OCi'AtiOa ha8 it8 p?iIiOigcrl
91800
of bwlnooa 8ad In tha a8mo of thq Stat0 of Toua oa ?a-
l8tiOO Of th0 B8nk1~ COIE818O1OaO?Of TOm8, 8ad Shall
bo proroautod by the AttOraOy Gon~81.~
hrt1010 maa-14;
'Should th8 dhaking C~i8OiOm8? Of TO=8 find,
UpeU lx u in8tio ath8t
, tha 8??8i?8 Of w 8uOh 8SOOO1a-
tloa 8re la umound aondltion 8nd the Ictere8t o? the
pUbiiC 60~1~6 th8 di88OiUtiOn Of 8UOh 88SOCiIItiOIi8nd
th0 Winding Up Of it8 biD888, it 8hdi 00 ?8?O?t t0
the Attoraay "Jenertilwho rh811 in8titUtO th8 propor
prooaodIng8 for that PUCPO88.”
A?thh 0818-15, V.?UOfl’8 #AlllOtit~d CiVil StrtUtU,
lak88 8 rOtu881 Of th8 8tV8OCi8tiOn to >errit 8U 8XaaiMtiOll Of
it0
8ff&i?# Of 8OtiOn t0 Wind Up it8 8rRi?8,
8 08U88 ?OrfOit it8 Shal'tu,
8nd to llqUid8tO the 8SOOOi8tiOa.
Rerrrrlng to rirtlolo8818-16, Vernon*8 Annotat8d
Civil StatUt88, it i0 88id in the OS80 Of i.OnS StfIr Wllld?ng 8ti
LO8Il A8mOi8LiOa T. Skit8, 153 s. w. (86) alO:
~8ootloa 18 dool8rr tbt tha 'rlghto ad
raudloa glron by the two prOo84lIq 88otioM am
cuatiattV8 of 88Oh other, but that a0 inVOlWt8~
llquldatloa or any u8oal8tlon rh~ll bo 80008p118hmd
lx o o g88t 8boro provld4d ; th8.t 18 t0l8Tr 8t th8 Suit
0s tha Attoraor 08U8?81 on In?ormtloal~d~~~t&f
th8 Bamhla6 Comloalosmr of Taxaomw
rid88 tkt l? thr court the 80800 18-
dotomlaoo
th8t
tiCa' 8f?8i?8 lhOuld be llquid8tOd and 1t 18 80 OrdOrOd,
than th8 bmkU& Comd88lonor rh8ll rorthwlth kko 908800-
8iOa Of 8UOh 88oOO18tIOm, it0 8888t8 8nd 8rr8irO. OOllOOt
’
Ronorablo ii. A. Jaml8011, pat!rb
ik elalr, pm7 It8 dabtr and oblQation8, ad dlr-
trlbutr it8 lmatr to thae l8wfull~ ontitld thrnto-
flpr rrportly lt8 artion to th8 oourt ror 8ppronl.
Certain buildins and loan l88ooiation8 &*:a mi88d th8
qUO8tiOIi that th8 AttOrn 08li8N1 b8 80 lUthOrit;l t0 bring a 8Uit
uod8r Tit18 ti, lid 888 8P8OiriOauJ
8Up=, r8qUO8t8d the &nLin(l br
Comlr8lon8r. *Itor
oar8tully OOn8ld8rl8g MtiOl8 8Sla714, 8Uplm,
and the Cm88 Pi LOnO Stir BUildiIlg & LOan A88’B., V. Stat., 8Upr8,
it i8 our Opinion that the EUUikifh# cOESi88iOn8r should rpeoirioally
requut th8 AttOm8y mnoral to tll. 8Uit to forfeit the oharter ot
a building l8d loan ls8OOiatloa which 18 i88OlV8nt.Or l8 OoDduatiq
it8 bueinama, In wholr or in pal,t, contrfiry to law, or railing to
cwply with the law, ato, Stated another war, it 18 our oplnlcm
that the ilfmking Cd88ivIl@r 8hould 8paOlilaally rsQue8t th8 Attor
n8~ oonural to do thoro thing8 rtloh will bring about thr canorlla-
lion oi the 488ociatlon~r olurter 4nd ii ncto88ury the ap>olntmont
ot a reoeir8r thereof iOr th8 purroae of rtndln- up it8 lWalr8.
#m now Ocneid8r th8 88Oond $8tt8r mntlonod in your ln-
wiry., 48 note that with ref@rOaOs t0 y>U 88OOnd QX'OpO8ition you
oite the call0of Shaw vg Lone St4r Bullding k Loan &iIsoc:l4tlon,40
. x. (i?d)96&3,holding, among other thing8 that tho &taking Coa-
L88loner has authority to annul a permit o& by court aotion Th
Th18 Ca80 h44 be8n reVer88d by th8 Co38X188108Of A?QMI18 Oi Teia8
ln the oa88 of S&W v* &nO Star Wllldlng & LOan .48soCi4tion,91
s. vi. (al) INS. It 18 stated in thl8 tam:
"It 18 held by the Court of Clrll Appeal8 18
SMtlon 15 of the 1929 Aot 8hould not be giran th8
con8truotion that it authorlta th8 Banking Coml8-
8lonsr to annul a :Jemlt to e0 bU8inO88 In thi8 state
rlthout a court aotion, becaure suoh a cormtruotlon
would rendor the act uncon8titutlona.la8 in tlolstlon
Or s8OtiY 19 Or ArtiCh I, 4ne sOOtiOn A Or ArtiCl8
B of our StEt8 ConstitUtion.
'Alethlnk thi8 holding
18 error ior tro raamon8, first, beoaure the rrry uord-
log or the Aot rill persit of no other OcWtructlom,
and, 8econd, bwausa 8uoh omstruction doer not rendrr
th8 Aot riolatirr Of rithar of the above oonstitutional
prOl18ion8.w
In the 0880 of Yood8 V. klchlta ?4fi8 Bulldlng L Low
Association, 96 S; ?i. (Bd) 64, the Su;romo Court Bald:
,
nunorahl8 m. A* Jti1808, pQ8 b
n l '&ti81U 669 4ti 66&d& 88&,18 8i-
fatUk8 it tb0 U81U81V8 @?irr) htJ 8t th8 mu-
b6 COmd88iOn8r t0 48t8XMiJL8 tk8 aP8lJtib8 81 iM81t~,
Ud, if ha d8tOr8bO8 tbt Ua aUOOi4th 18 iMO1t8&
ati hi- aftOr WtiC8 tC Mk8 it8df 8OlWJit, it 18 d.'
duty Co aatatitbo P82Uit to d0 bP8iM88. a80 th8 Sink-
i4 CM!Bi88iOMr IS c;iVUl 88rbi8 Oth*P dUtiO8 in thr
8t8tUt88 d8fllW$ *hli!h78 htODd8d to ~tOVWt th8
~p~m3loa or an Anaoltant 8arociaMon @I thl.8m&8.
(b&JO 608 th9 C480 Of ShflW V. %hltO!l, 08 41, ?il ti. ?z'. (#id)
498).
18 rlmt of tlkfor~~olng anthorltlms you urm rrrprstful-
iy 4dd88d bbct it i8 tb OdIiM Or th i8 eOp 6?t!~~8 th 8t ~h 8D l build
lag 8ad leas a88oci4tlon ia on&ago4 la on illogol, unauthorirod UJ+
84r8, rrmdulo8t +nd 18 lnoolvrnt or ooadu8tlng It8 Li-
pnOtie8,
1~88, in rbalw or In pet, CCatr4ry to the 149; or falling to otmply
with the 14~. tbe btlnkliy Coamlsolonor shall by 4n cmlor in vrltln(
4ddr4orod to tho prorldent oi 0~03 assoointloa, direct attoa$loa
theroto and crdor u;?;liancr with the 14~~ and Ch%t tha 488ot8 b8
inOru88d to lqu41 lisbllltiOS, if the llabil~tloo dr’J greater t&n
the a804t.8, ud in OdOe 8UOh 4@SOciotiO4 r9tU300 and Als~3OtS t8
o.rply wlm any 8UOP order larfull~ mde, or in e*ao anl auoh 488OOi-
atlon 10 lnrolront or in .?im,yer or lasol-.mnoy,or 44aetr as0 lmjmlr86,
than th8 B~ak14 CO&miS8ionOr Or tOX4S 8h4u aGaUl it8 Oartl’fioatr
of authorltr. th0 oMida3nt 01 3 08rtlri04t4 ~i 4w.0rity 0f 4
h;llldiqiona l~.~xocl;tlcn i8 not to be oc1fUu88d wit..the fortolt-
ur8 or u4noolktlon of 4 ch4rt4r or tL0 oruo4ll4tlon of 4 permit to
a0 bwlwu’ in trrl8 Stotr by 4 rorolgn oorporation 8r arrocietloa.
Tour4 tory truly
A;:promd Juw 9, 1944 3cii;U
J-T'ZO~XEX CP ‘rWM
@rover ~ollon
Attornor ci4nsr41 ot T8a48
Dy (S) .trZoll *11114m8
Ap;lrotedr oglnlon Camlttu by A88i8t4n8
B. Y. B., Chmim4r
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ACCEPTED
01-15-00845-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/16/2015 12:00:00 AM
CHRISTOPHER PRINE
CLERK
N0. 01-15-00845-CV
FILED IN
IN THE COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
11/15/2015 3:54:22 PM
FOR THE FIRST DISTRICT CHRISTOPHER A. PRINE
Clerk
OF TEXAS AT HOUSTON
IN THE INTEREST OF
D.L.T., D.L., D.L., T.L., D.W. aka D.T.W., D.W., CHILDREN
P.L.W., APPELLANT
VS.
DEPARTMENT OF FAMILY & PROTECTIVE
SERVICES, APPELLEE
ON APPEAL FROM
THE 314TH DISTRICT COURT OF
HARRIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. 2014-03436J
NOTICE OF APPEARANCE OF APPELLATE COUNSEL
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW DONALD M. CRANE (“appellate counsel”),
appointed attorney ad litem on appeal for Appellant, P.L.W.,
Page 1 of 5
respondent mother, and hereby files this notice of appearance of
appellate counsel, and would show as follows:
I.
Appellant’s parental rights were terminated by a Decree for
Termination signed by the Honorable John F. Phillips, Presiding
Judge, 314th District Court of Harris County, Texas, and entered
September 21, 2015, Cause No. 2014-03436J, styled “In the Interest of
D.L.T., D.L., D.L., T.L., D.W. aka D.T.W., Children; In the District
Court of Harris County, 314th Judicial District.”
II.
Appellant is presumed indigent and may proceed without
advance payment of costs as provided by Tex. R. App. P. 20.1(a)(3). See
Attached.
Page 2 of 5
WHEREFORE, PREMISES CONSIDERED, P.L.W., Appellant,
prays that the Court take notice of her indigent status and that Donald
M. Crane has been appointed her appellate counsel.
Respectfully submitted,
/s/ Donald M. Crane
Donald M. Crane
810 South Mason Road, Suite
350
Katy, Texas 77450
Telephone (281) 392-6611
Facsimile (281) 392-5383
State Bar No. 05005900
[email protected]
ATTORNEY AD LITEM ON
APPEAL FOR
APPELLANT P.L.W.
Page 3 of 5
CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of August, 2015, a true and
correct copy of the foregoing Notice of Appearance of Appellate
Counsel was served in accordance with the TRAP.
1. Dan-Phi V. Nguyen
Assistant County Attorney
1019 Congress Avenue, 15th Floor
Houston, Texas 77002-1700
(713) 437-4700 fax
2. Juliane (Juli) Crow
P.O. Box 10152
Houston, Texas 77206
(713) 422-2389 fax
3. Gary Polland
2211 Norfolk, Suite 920
Houston, Texas 77098
(713) 622-6334 fax
4. John R. Millard
1 Sugar Creek Center Boulevard, Suite 925
Sugar Land, Texas 77478
1-888-501-6580 fax
5. Douglas Ray York
3355 West Alabama Street, Suite 100
Houston, Texas 77098-1863
(713) 586-5585 fax
6. JB Lee Bobbitt
1533 West Alabama Street, Suite 100
Houston, Texas 77006
(281) 476-7816 fax
Page 4 of 5
7. Michael Francis Craig
1533 West Alabama Street, Suite 100
Houston, Texas 77006
(713) 526-3787 fax
8. Julia Rangel, CSR
Official Court Reporter
314th District Court
Houston, Texas 77002
(000) 000-0000 fax
9. Stephanie Wells, CSR
Official Court Reporter
311th District Court
Houston, Texas 77002
(000) 000-0000 fax
/s/ Donald M. Crane
Donald M. Crane
Page 5 of 5
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94 Ga. App. 530 (1956)
95 S.E.2d 436
WEATHERS
v.
AMERICAN CASUALTY COMPANY et al.
36345.
Court of Appeals of Georgia.
Decided October 18, 1956.
Rehearing Denied November 8, 1956.
Grace W. Thomas, for plaintiff in error.
Smith, Field, Doremus & Ringel, Palmer H. Ansley, Richard D. Carr, contra.
CARLISLE, J.
1. No rule is more firmly established under the workmen's compensation law than that stated in Maryland Casualty Co. v. Hopkins, 71 Ga. App. 175, 177 (30 S. E. 2d 357): "The workmen's compensation act makes the finding of the board upon the facts final and conclusive, and in the absence of fraud such finding cannot be set aside by any court, if there is any competent evidence to support it. Code § 114-710; Georgia Casualty Co. v. Martin, 157 Ga. 909 (122 S. E. 881); Maryland Casualty Co. v. England, 160 Ga. 810 (129 S. E. 75); Bituminous Casualty Co. v. Jackson, 68 Ga. App. 447 (23 S. E. 2d 191). The weight and credit to be given to the testimony of the witnesses and also the conflicts in the evidence were matters for determination by the board. Continental Casualty Company v. Bennett, 69 Ga. App. 683 (26 S. E. 2d 682); Liberty Mutual Insurance Co. v. Williams, 44 Ga. App. 452 (161 S. E. 853); Bituminous Casualty Co. v. Jackson, supra; Continental Casualty Co. v. Bennett, supra."
2. "Where the State Board of Workmen's Compensation makes a finding of fact which is supported by the evidence, such finding is conclusive and will not be reversed, although the board has made other findings of fact not essential to the judgment in the case and not authorized by the evidence." American Mutual Liability Ins. Co. v. Sisson, 198 Ga. 623 (32 S. E. 2d 295), and cit.
3. Under an application of the foregoing principles of law to the facts of the present case, the trial director was authorized to find that the claimant sustained no accident on October 15, 1954, which arose out of and in the course of his employment as claimed. Although the claimant testified that on the date of his alleged accident he sustained a sharp and disabling pain in his back while lifting certain objects in the course of his employment, it appears that he made no complaint to his fellow employees or superiors at the time. It also appears that he had sustained an injury to the same area of his back in a prior employment in April, 1953, and that the physician who treated him at that time examined him in April, 1955, and could find that no objective changes had occurred in his condition during that year. A fellow employee with whom the claimant rode to and from work testified that the claimant had complained almost constantly of the injury which he had sustained in his former employment and had said to him that he intended to get all he could out of that injury which he had sustained, and that the claimant had complained just as much before October 15, 1954, as he had after that date. Another physician testified that he had attended him on the occasion of his first injury in the prior employment, and that the only change which he could observe was that at the time of the hearing he showed some improvement *531 and had no increased disability in any way. It matters not, under the rule in the Sisson case, that the trial director in relating the testimony of one of the physicians quotes him as having said that the claimant had no disability to work, when in fact the physician had testified that he had no ability to work. There was other ample evidence to authorize the denial of compensation, and, moreover, this same physician on re-direct examination stated that as far as his findings were concerned, the claimant was suffering from no disability.
The trial director did not err in entering an award denying compensation, and the superior court did not err in affirming this award which had also been affirmed by the full board.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
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This decision was not selected for publication in the New Mexico Appellate Reports. Please see
Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note
that this electronic decision may contain computer-generated errors or other deviations from the
official paper version filed by the Supreme Court.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. A-1-CA-36672
5 PRINCE A. JOE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 Karen L. Townsend, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VANZI, Judge.
18 {1} Defendant appeals the revocation of his probation. We previously issued a
19 notice of proposed summary disposition, proposing to affirm. Defendant has filed a
1 memorandum in opposition. After due consideration, we remain unpersuaded. We
2 therefore affirm.
3 {2} Defendant renews his challenge to the sufficiency of the evidence to establish
4 that he violated the terms and conditions of probation. [DS 5; MIO 5-9]
5 {3} As we previously observed in the notice of proposed summary disposition, [CN
6 2-3] the State presented evidence that Defendant violated an order of protection,
7 thereby violating the terms and conditions of his probation. See State v. McGee, 2004-
8 NMCA-014, ¶ 23, 135 N.M. 73, 84 P.3d 690 (“[V]iolation of an order of protection
9 constitutes a crime[.]”). Defendant does not controvert this. [MIO 2-4, 7] Instead,
10 Defendant challenges the sufficiency of the evidence to establish that the violation
11 was willful. [MIO 1, 6-9] See In re Bruno R., 2003-NMCA-057, ¶ 11, 133 N.M. 566,
12 66 P.3d 339 (“To establish a violation of a probation agreement, the obligation is on
13 the [s]tate to prove willful conduct on the part of the probationer so as to satisfy the
14 applicable burden of proof.”).
15 {4} Although willful conduct is a requisite, the State’s proof of a breach of a
16 material condition of probation is generally sufficient to give rise to a reasonable
17 inference in this regard; the defendant bears the burden of presenting evidence to
18 excuse non-compliance, by demonstrating that the violation was not willful. See State
19 v. Aslin, 2018-NMCA-043, ¶ 9, 421 P.3d 843 (“[O]nce the state establishes to a
2
1 reasonable certainty that the defendant violated probation, a reasonable inference
2 arises that the defendant did so willfully, and it is then the defendant’s burden to show
3 that failure to comply was either not willful or that he or she had a lawful excuse.”),
4 cert. granted, 2018-NMCERT-___ (S-1-SC-36999, June 25, 2018); State v. Parsons,
5 1986-NMCA-027, ¶ 25, 104 N.M. 123, 717 P.2d 99 (“Once the state offers proof of
6 a breach of a material condition of probation, the defendant must come forward with
7 evidence [to show that his non-compliance] was not willful.”).
8 {5} As previously mentioned, in this case the State presented evidence that
9 Defendant violated the terms and conditions of his probation by violating an order of
10 protection. Additionally, Defendant admitted that he was aware of the order of
11 protection. [MIO 4] This was sufficient to give rise to a reasonable inference that
12 Defendant’s violation was willful. See Aslin, 2018-NMCA-043, ¶ 9. Although
13 Defendant attempted to rebut the State’s showing by asserting that he assumed or
14 believed the order of protection had been dismissed, [DS 4; MIO 7-8; RP 130, 132]
15 Defendant does not dispute that he had merely been informed that the order of
16 protection would expire. [DS 4; CN 4; MIO 7; RP 133] Under the circumstances, the
17 trial court was free to disbelieve Defendant’s testimony and to conclude that the
18 violation was in fact willful. See State v. Gonzales, 1997-NMSC-050, ¶ 18, 124 N.M.
19 171, 947 P.2d 128.
3
1 {6} IT IS SO ORDERED.
2
3 LINDA M. VANZI, Judge
4 WE CONCUR:
5
6 JENNIFER L. ATTREP, Judge
7
8 MEGAN P. DUFFY, Judge
4
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32 B.R. 638 (1983)
In re Dixon Lee LOWTHER, d/b/a Lowther Financial Services, Debtor.
Modesto ROBLES and Amelia Robles, Plaintiffs,
v.
Dixon Lee LOWTHER, Defendant.
Bankruptcy No. Bk-81-00636, Adv. No. 81-0241.
United States Bankruptcy Court, W.D. Oklahoma.
August 31, 1983.
*639 *640 Richard M. Healy, Oklahoma City, Okl., for plaintiffs.
James A. Loomer, Oklahoma City, Okl., for debtor.
DECISION AND ORDER
RICHARD L. BOHANON, Bankruptcy Judge.
This matter came on for hearing following the complaint of Modesto and Amelia Robles to have a debt of $100,000 excepted from discharge. For their complaint the plaintiffs allege a cause of action under both 11 U.S.C. §§ 523(a)(2)(A) and (4) based upon false representations and defalcation while in a fiduciary capacity respectively. In addition, plaintiff's claim relies on a finding of an agency relationship between the debtor and a third party.
The debtor filed his voluntary petition under Chapter 11 on April 3, 1981, and schedules reflect he was engaged in the business of factoring accounts receivable.[1] It is uncontroverted that the plaintiffs did not know of the debtor at the time of the alleged misrepresentations and did not meet him until several months later.
In fact, the plaintiffs do not allege that the representations were made by the debtor, but that his alleged agent made the same on the debtor's behalf. The alleged agent, Mr. William Probst, though listed as a witness for both parties in this action did not testify or appear at trial.
The record reflects that Mr. Probst was introduced to the plaintiffs by their son, Robert Robles,[2] in August, 1980. It was also the Robles' son who arranged the meeting between his parents and Mr. Probst which led to this dispute. Mr. Probst flew in his private plane along with the pilot and Robert to visit the Robles family. While at the Robles home Mr. Probst provided Modesto and Amelia financial advice with regard to investing monies which they then had on deposit. He also discussed insurance and tax matters with the couple. It was following this discussion that the Robles wrote a check in the amount of $100,000 to the order of "Lowther & Co." as an investment in the Lowther factoring business.
Mr. Probst was in the business of financial planning and had several accounts whom he'd counsel regarding investments and estate planning. The legal aspects of Mr. Probst's operation was evidently handled *641 by Mr. Joel Hersh. Mr. Hersh officed in a facility leased by Mr. Probst. Mr. Hersh and the younger Robles were friends in law school and were associated with each other in their law practice. The record discloses an arrangement between Probst's financial planning business and Hersh's law practice. Evidently many of the same clients which Probst provided financial planning advice received legal advice from Hersh. In this regard, Robert Robles in connection with Hersh's law practice prepared most of the trust agreements for Probst's clients. Also some work was done directly for Probst by Robert.
Because of this arrangement Robert came to know Probst quite well and on occasion received personal loans from him. Robert also was made aware that several of Probst's clients had made investments in Lowther Financial Services prior to arranging the meeting between Probst and the Robles family. Moreover, Probst made available to Robert and Hersh his personal airplane for both business and pleasure, provided secretarial services and free telephone use.
Following the $100,000 investment in Lowther Financial Services, Robert made several demands upon the debtor for return of the funds and complete withdrawal of the investment. These demands were met by two separate agreements made between Lowther Financial Services and Robert Robles.[3] The agreements were made on August 22, 1980 and January 1, 1981, and had the effect of allowing Lowther Financial Services to pay Robert increments of $1,000 per month rather than effectuate the total withdrawal of funds. However, additional demands for the funds were made until the debtor filed his petition in bankruptcy.
Section 523 of the Bankruptcy Code allows certain exceptions to discharge and among these are instances where the debtor obtains money by false representations or actual fraud and for defalcation while acting in a fiduciary capacity. 11 U.S.C. §§ 523(a)(2)(A) and (a)(4). It is clear however that exceptions to dischargeability of debts are strictly construed against the creditor and in favor of the debtor. See In re Danns, 558 F.2d 114 (2d Cir.1977); In re Taylor, 514 F.2d 1370 (9th Cir.1975); In re Huff, 1 B.R. 354 (Bkrtcy.N.D.Utah 1979). Moreover, courts have uniformly placed the burden of proof squarely upon the opposing creditor. See e.g., In re Singn, 16 B.R. 449 (Bkrtcy.N.D.Ohio 1982); In re Wise, 6 B.R. 867 (Bkrtcy.M.D.Fla.1980); In re Schlickmann, 6 B.R. 281 (Bkrtcy.D.Mass.1980). Furthermore, the standard of proof that is imposed on the challenging creditor is that of clear and convincing. In re Neumann, 13 B.R. 128 (Bkrtcy.E.D.Wis.1981); In re Magnusson, 14 B.R. 662 (Bkrtcy.N.D.N.Y.1981); In re Huff, supra.
In order to prove a case under § 523 the plaintiff must show that (1) the debtor made the materially false representation; (2) that such representation was made knowingly and with the intent to defraud; (3) and that the plaintiff reasonably relied on the false representation. In re Slutzky, 22 B.R. 270 (Bkrtcy.E.D.Mich.1982); In re Gillespie, 11 B.R. 167 (Bkrtcy.D.Or.1981). But before this Court reaches the question of dischargeability under § 523(a)(2)(A) we must decide whether Mr. Probst may be considered an agent of the debtor. If Probst was not an agent then no cause of action arises for the false representations must be made by the debtor or an agent of the debtor. 11 U.S.C. 523(a)(2)(A).
Under certain circumstances a debtor in bankruptcy who has not made the false representations may, nevertheless, be bound by the fraud of an agent acting within the scope of his authority. In re Brown, 412 F.Supp. 1066 (D.W.D.Okl.1975); Matter of Newmark, 20 B.R. 842 (Bkrtcy.E. D.N.Y.1982). Any authority of the agent is based upon the words or acts of the principal, and not of the agent. Cox v. Pabst Brewing Co., 128 F.2d 468 (10th Cir.1942); *642 Anglo-Am. Clothing v. Marjorie's of Tiburon, 571 P.2d 427 (Okl.1977). Also, it is a universally accepted rule that a "principal is liable for the frauds and misrepresentations of his agent within the scope of his authority or employment even though he had no knowledge of such representations." Amen v. Black, 234 F.2d 12, 20 (10th Cir.1956).
The existence of an agency relationship does not occur unless conduct of the parties manifests that one of them is willing for the other to act for him subject to his control and that the other consents to so act. Steinbrugge v. Haddock, 281 F.2d 871 (10th Cir.1960). The existence of an agency relationship must be proved by the person asserting it. Id. at 872.
The plaintiffs ask the Court to find that Probst was the agent of the debtor since they allege that Probst stated he was agent for Lowther Financial Services. They present no other proof of agency and indeed we find no such evidence from the record. Mr. Probst was not called as a witness to substantiate any of the plaintiffs' claims. Quite the contrary we feel the record demonstrates that Probst was not the agent of this debtor. No evidence was presented which purported to show that the debtor or Mr. Probst agreed to any agency relationship. Mr. Probst operated his own financial planning business and independently advised clients, including the plaintiffs, as to various investment possibilities. The debtor exercised no control over the accounts of Probst. Lowther Financial Services was but one of several investment items which Probst offered his clients incident to his professional services. In fact the record reflects that Probst serviced the Robles by providing not only the opportunity to invest money in the debtor's business but in an insurance policy and other business transactions. We feel that Probst was acting in his own behalf and for his own financial benefit when he advised the Robles as to Lowther Financial Services.[4] The mere allegation, without more, that Probst represented himself as the agent of the debtor is insufficient to except the debtor from discharge under § 523(a).
Even assuming arguendo that Probst was the agent for Lowther we feel that the complaint still must fail. As previously noted one of the essential elements of proof to except one from discharge under § 523(a)(2)(A) is that the plaintiff reasonably relied on the false representation. In re Slutzky, supra. A review of the facts in this matter raises serious questions of reliance as well as whether such reliance may be viewed as reasonable.
Mr. and Mrs. Robles' reliance was placed almost exclusively upon their son, Robert, and not upon the debtor or Mr. Probst. But for their son's undertakings the plaintiffs would never have made the $100,000 investment. They totally relied on their son's suggestion that Mr. Probst was a credible person and without any investigation whatsoever handed over to him a check for $100,000. It appears from the record that regardless of what Mr. Probst might have stated regarding Lowther Financial Services the couple, at Robert's urging, stood ready to make the investment. In other words, under the circumstances Robert's advice was totally controlling over the acts of his parents with regard to the investment.
Furthermore, we do not think that any reliance upon statements which may have been made by Probst could be deemed reasonable. Their son, trained in the legal profession, was present throughout the negotiations between his parents and Probst. Robert and Probst were intimately acquainted, both personally and professionally, with each other. The plaintiffs had ample opportunity, had they chosen to do so, to investigate Lowther Financial Services as well as Mr. Probst. Prior to making a $100,000 investment in a company which one was not familiar it is only reasonable to suppose that some inquiry would be made. Unfortunately, however, not one step was taken by these plaintiffs to ascertain the financial or professional status of the company *643 nor verify any alleged representations on the debtor's behalf. Their conduct in light of all the surrounding circumstances was totally improvident. Thus, we are compelled to find that any reliance on the part of the Robles would be unreasonable.
The plaintiffs also allege that the debt should be excepted from discharge since the debtor committed defalcation while acting in a fiduciary capacity. This section deals with an express or technical trust and not one simply arising out of contract. Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934); In re Romero, 535 F.2d 618 (10th Cir.1976); In re Paley, 8 B.R. 466 (Bkrtcy.E. D.N.Y.1981). The fact that an instrument may be labeled "trust" or contain such a term does not make it a trust for purposes of this section. Davis v. Aetna Acceptance Co., supra; In re Paley, supra.
In the instant case the debtor established the "Lowther Trust Account" where investment funds were deposited. However, this was nothing more than a regular checking account upon which checks were drawn in which to purchase the invoices used in the factoring business. The plaintiffs' money was so deposited and used to purchase such invoices. Individuals who invested in Lowther Financial Services were generally referred to as "lenders" and the record connotes a debtor-creditor relationship insofar as these investments which were based on a written contract between the lender and the debtor. Under these circumstances there was not a trust created sufficient to comply with the provisions of § 523(a)(4). See Watts v. Petrick, No. 82-995-W (D.W.D.Okl. April 1, 1983). Having not found a trust there is no need to reach the question of defalcation.
For all of the above reasons we hold that the plaintiffs have failed to prove the existence of an agency relationship between Mr. Probst and the debtor sufficient to impute alleged misrepresentations which would except the debt from discharge. In addition, there does not exist a technical or express trust to come within the meaning of defalcation while acting in a fiduciary capacity that would deny the discharge of this debt.
Accordingly, the $100,000 debt may be discharged in bankruptcy and the plaintiffs' complaint shall be and hereby, is dismissed.
Pursuant to B.R. 7052 this Decision constitutes the findings of fact and conclusions of law.
An appropriate judgment will be entered.
NOTES
[1] This operation included a process where the debtor would buy invoices from various companies. In turn a check would be sent to the debtor from the company when that invoice would be paid by the customer. The debtor's profit would be made by discounting the face amount of the invoices paid by him to the company. The difference between the discounted amount paid by the debtor and the actual amount of the invoice payable by the company customer would be the debtor's margin of profit.
[2] Robert is referred to as the "agent" of the Robles family with regard to this transaction. His name appears on all the relevant documents, including the initial contract, the agreements and interest checks from the investment. At the time of the transaction he was still a student in law school, but subsequently graduated before the dispute was consummated. The debtor has continually asserted that Robert is the real party in interest, but the Court does not reach this question.
[3] Robert Robles' name appears on each of these agreements rather than his parents. None of the documents entered into evidence reflect the name Modesto Robles or Amelia Robles. Additionally, none of the documents refer to Robert as agent for his parents.
[4] This conclusion is supported by the fact that the Robles sued Mr. Probst in state court and received judgment in the amount of $100,000 based upon this same transaction.
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491 F.2d 109
74-1 USTC P 9305
GREAT COMMONWEALTH LIFE INSURANCE CO., Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 73-1504.
United States Court of Appeals, Fifth Circuit.
March 18, 1974.
O. Jan Tyler, Robert K. Sands, Dallas, Tex., for plaintiff-appellant.
Scott P. Crampton, Gary R. Allen, Asst, Attys. Gen., Meyer Rothwacks, Atty., Tax Div., Dept. of Justice, Lee H. Henkel, Jr., Acting Chief Counsel, IRS, Washington, D.C., Frank D. McCown, U.S. Atty., Martha Joe Stroud, Asst. U.S. Atty., Dallas, Tex., for defendant-appellee.
Before THORNBERRY, GODBOLD and CLARK, Circuit Judges.
THORNBERRY, Circuit Judge:
1
In computing its taxable gain from operations for 1966, Great Commonwealth took account of only the net valuation portion of deferred and uncollected premiums. On examination of the return, the Commissioner increased the taxable income by requiring inclusion of the gross amount of those premiums and assessed a deficiency of $62,260.15 plus interest. Great Commonwealth paid the deficiency and subsequently filed this suit for a refund, which the district court denied. The company contends that it should not have been required to report the gross amount, or, at least, that it should have been allowed a deduction either for additions to a reserve for unearned premiums or for the agents' commissions attributable to the deferred and uncollected premiums. We hold that the district court was correct in requiring accrual of the gross amounts but that it should have allowed a deduction for the associated commissions.
2
The proper tax treatment of deferred and uncollected premiums is one of the most difficult and often litigated questions under the Life Insurance Company Income Tax Act of 1959, 26 U.S.C. 801-820.1 See Franklin Life Insurance Co. v. United States, 7 Cir. 1968, 399 F.2d 757; Jefferson Standard Life Insurance Co. v. United States, 4 Cir. 1969, 408 F.2d 842; Western National Life Insurance Co. v. Commissioner of Internal Revenue, 5 Cir. 1970, 432 F.2d 298; Western and Southern Life Insurance Co. v. Commissioner of Internal Revenue, 6 Cir. 1972, 460 F.2d 8; United Life and Accident Insurance Co. v. United States, D.N.H.1971, 329 F.Supp. 765; Western National Life Insurance Co., 1968, 50 T.C. 285, modified on rehearing, 1969, 51 T.C. 824, rev'd, Western National Life Insurance Co. v. Commissioner of Internal Revenue, supra; Western and Southern Life Insurance Co., 1971, 55 T.C. 1036, rev'd, Western and Southern Life Insurance Co. v. Commissioner of Internal Revenue, supra. Without duplicating the detailed explanations of the problem set out in those cases any more than is necessary, we will define the key concepts for purposes of this opinion.
Definitions
3
The gross annual premium under a life insurance policy is the consideration paid by the insured for coverage for a policy year, which is a twelve-month period from the date of issuance of the policy (the 'anniversary date'). The gross annual premium is composed of two elements. The net valuation portion, referred to as the net valuation premium, is the amount, computed under legally required interest and mortality assumptions, that is added to life insurance reserves for payment of policy claims. The difference between the gross annual premium and the net valuation premium is the loading, which is the portion used to pay agents' commissions, administrative costs, and other expenses of the company, and to provide the company a profit.
4
Although some life insurance policies provide for the payment of the gross annual premium in one lump sum on the policy anniversary date, it is not unusual for it to be paid in semi-annual, quarterly, or monthly installments over the policy year. As a result, portions of gross annual premiums may remain outstanding and not as yet received by the company at the end of the taxable year. Deferred premiums are those portions of gross annual premiums which are due to be paid after December 31 but before the next policy anniversary date. Uncollected premiums are annual or installment premiums which, as of December 31, have fallen due but have not as yet been paid. The company is required to continue its life insurance contracts in force for a 31-day grace period after a premium due date, and it customarily carries such policies for up to 60 days. The policyholders are not legally required to pay either deferred premiums or uncollected premiums. If they do not, the policies will lapse, but the company cannot compel payment.
History of the Case
5
Great Commonwealth filed an annual statement for 1966 with the Texas State Board of Insurance and the appropriate authorities of the other states where it is licensed to do business, using standard forms approved by the National Association of Insurance Commissioners (N.A.I.C.). As required by state law, the company computed its reserves on the assumption that all premiums for all policies in force at the close of the year had been paid in full on the policy anniversary date. Since feferred and uncollected premiums as of December 31 had not in fact been paid, the reserves were overstated in the amount of the net valuation portion of the deferred and uncollected premiums. To offset this overstated reserve liability, the company listed an asset of equal amount. This is the standard industry practice.
6
In calculating its taxable income,2 Great Commonwealth used the same accrual assumptions regarding deferred and uncollected premiums as it did for its annual statement. As a result its gross premium income3 included an amount equal to the net valuation portion of the deferred and uncollected premiums. This was exactly offset by a corresponding increase in the deduction for net increases in life insurance reserves.4 Therefore, the accrual of the net valuation portion of the deferred and uncollected premiums had no net effect on the company's taxable income.5
7
The Commissioner required the company to accrue gross deferred and uncollected premiums rather than merely the net valuation portion, holding that, once the company had accrued a portion of those premiums for some purposes, it was bound to accrue the whole of the premiums for all purposes. This approach has been approved by all circuit courts which have considered the question, including our own. Franklin Life Insurance Co. v. United States, supra; Jefferson Standard Life Insurance Co. v. United States, supra; Western National Life Insurance Co. v. Commissioner, supra; Western and Southern Life Insurance Co. v. Commissioner of Internal Revenue, supra. This had the effect of increasing the company's gain from operations in the amount of the loading on the deferred and uncollected premiums, resulting in the increased tax liability at issue here.
I. Accrual of the Gross Amount
8
The company first contends that it should not have been required to accrue the gross amount of deferred and uncollected premiums, despite our apparent holding to the contrary in Western National Life. In distinguishing that case, the company asserts that it involved 'only the question of whether gross deferred and uncollected premiums were assets under the Phase I6 computation. The Western National Life case did not involve, and, therefore, this Court did not have before it, the question of whether gross deferred and uncollected premiums are includable in premium income under the Phase II7 computation.'
9
It is true that the only contested issue in Western National Life was the accrual of gross deferred and uncollected premiums for purposes of the Phase I calculation. Nevertheless, the case is strongly suggestive that gross deferred and uncollected premiums should be accrued for all tax purposes. Although not strictly bound by that suggestion, we find it persuasive and adopt it.
10
Western National Life was a Phase I taxpayer, in the sense that its taxable investment income was taken into account in determining its taxable income under 802(b). By the terms of that section, the taxable investment income is taken into account only if it is less than or equal to the gain from operations. 802(b)(1). In such a case, the company's taxable income includes the Phase I taxable investment income and one-half of the excess of the Phase II gain from operations over the Phase I taxable investment income. In Western National Life, the Commissioner chose to attack the handling of deferred and uncollected premiums only under the Phase I computation. No doubt he did so because Western National had already accrued the gross amount for the Phase II calculation. Western National Life Insurance Co. v. Commissioner of Internal Revenue, supra, 432 F.2d at 302. In upholding the Commissioner's approach, the court explicitly approved the reasoning of the Seventh Circuit in Franklin Life and the Fourth Circuit in Jefferson Standard Life, both of which involved the Phase II computations.
11
It would be highly inconsistent to require accrual of the gross deferred and uncollected premiums under Phase I but only the net under Phase II. This inconsistency would be particularly glaring in cases in which the company's gain from operations exceeds its taxable investment income, since overall taxable income in those cases includes both Phase I and Phase II elements. This would add unnecessary complexity to an already complex tax formula. Great Commonwealth offers no justification for this procedure, and we certainly perceive none. Therefore, the district court was correct in requiring the accrual of the gross deferred and uncollected premiums.
II. Reserve for Unearned Premiums
12
Great Commonwealth next argues that, if required to accrue the gross deferred and uncollected premiums, it should be allowed to set up a reserve for unearned premiums under 801(c)(2) in the amount of that portion of the loading attributable to life insurance coverage to be provided in the succeeding taxable year. This would generate a deduction for increases in reserves under 809(d)(2).
13
There is considerable doubt, however, whether the term 'unearned premiums' has any application to premiums on life insurance policies at all. It appears that the term has consistently been confined to the casualty insurance field. Alinco Life Insurance Co. v. United States, 1967, 373 F.2d 336, 178 Ct.Cl. 813; Travelers Equitable Insurance Co., 1931, 22 B.T.A. 784. Moreover, loading is not a proper item for inclusion in an insurance reserve at all. Treasury Regulation 1.801-3(e) defines 'unearned premiums' as 'those amounts which shall cover the cost of carrying the insurance risk for the period for which the premiums have been paid in advance.' The loading portion of deferred and uncollected premiums for insurance coverage provided in the succeeding taxable year fails to meet this definition in two respects. First, by definition, loading covers expenses and other items apart from the cost of carrying the insurance risk. The net valuation premium covers the cost of carrying that risk. Second, far from being paid in advance, deferred and uncollected premiums have not been paid at all. The district court was correct in refusing to allow a deduction for additions to reserves for unearned premiums.
III. Agents' Commissions
14
Finally, the company contends that, if required to accrue the gross deferred and uncollected premiums, it should at least be allowed to accrue the agents' commissions on those premiums and take corresponding deductions. The government responds that these expenses are not accruable, since the liability for them is not fixed and definite. The company will be liable to pay the commissions only if the premiums are in fact paid. As noted before, there is no assurance that they will ever be paid, although the policies will lapse if they are not.
15
There is no doubt that the government is entirely correct when it asserts that these agents' commissions are not accruable under generally accepted accounting principles. Treasury Regulation 1.461-1(a)(2) provides that
16
under an accrual method of accounting, an expense is deductible for the taxable year in which all the events have occurred which determine the fact of the liability and the amount thereof can be determined with reasonable accuracy . . .. No accrual shall be made in any case in which all of the events have not occurred which fix the liability . . ..
17
Accrual of deductions has consistently been denied where not all the events necessary to fix the taxpayer's liability have occurred. Brown v. Helvering, 1934, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725; Trinity Construction Co. v. United States, 5 Cir. 1970, 424 F.2d 302; Commissioner of Internal Revenue v. H. B. Ives Co., 2 Cir. 1961, 297 F.2d 229; Pierce Estates v. Commissioner of Internal Revenue, 3 Cir. 1952, 195 F.2d 475. Under these authorities the commission expenses clearly are not properly accruable.
18
In our view, however, this is not the end of the question. We must not forget that we are, in Judge Drennan's colorful phrase, in the 'fantasy world of life insurance company accounting and taxation.' Western Mational Life Insurance Co., 51 T.C. 824, 830. It is no answer to say that the commissions are not properly accruable. The premiums themselves are not properly accruable, either, but the company must report them as though they were. Unavoidably, then, the company's income has already been distorted by that requirement. It would only distort that income yet further not to permit the company to accrue the commission expense deductions, which are only contingent to the same extent that receipt of the premiums themselves is contingent. The company cannot receive premiums without incurring corresponding commission liabilities. We therefore hold that the district court should have permitted the company to accrue deductions for commissions on the deferred and uncollected premiums, and we remand for a determination of those commissions.
19
In reaching this result we are aided by few of the authorities cited by the parties. Great Commonwealth asserts that a rule allowing the accrual of commissions in the year of accrual of the associated income is established by Ohmer Register Co. v. Commissioner of Internal Revenue, 6 Cir. 1942, 131 F.2d 682; Air-Way Electric Appliance Corp. v. Guitteau, 6 Cir. 1941, 123 F.2d 20; Central Cuba Sugar Co. v. Commissioner of Internal Revenue, 2 Cir. 1952, 198 F.2d 214; and The Warren Co., 1942, 46 B.T.A. 897, aff'd on other grounds, 5 Cir. 1943, 135 F.2d 679. In support of its position that accrual of deductions is permissible only when the liability therefore is fixed and definite, even if the associated income is accruable in an earlier year, the United States cites American Automobile Association v. United States, 1961, 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109; Schlude v. Commissioner of Unternal Revenue, 1963, 372 U.S. 128, 83 S.Ct. 601, 9 L.Ed.2d 603; ABKCO Industries, Inc. v. Commissioner of Internal Revenue, 3 Cir. 1973, 482 F.2d 150; and W. S. Badcock Corp., 1972, 59 T.C. 272, which is presently pending on appeal in this court. All of these cases deal with properly accrued income items, and the issue in them is whether the associated expenses are properly accruable. In this case, however, it is agreed that neither the premium income nor the associated commission expenses are properly accruable, in the sense that neither the right to receive nor the obligation to pay is fixed and definite. The company's cases do no more than follow the usual rule that expenses are deductible in the year in which the liability becomes fixed and definite, while the government's cases merely establish that the goal of matching income and its related expenses in the same taxable year, so as to clearly reflect income, does not override the necessity of following normal accrual rules, so long as those rules have not already been violated in the treatment of income items. The issue before us is whether to permit accrual of the commission deductions to the same extent accrual of the premium income is required, in view of the fact that both items are subject to precisely the same contingencies.
20
This particular issue seems to have been presented to only two courts. In Occidental Life Insurance Co. v. United States, C.D.Cal.1970, 25 Am.Fed.Tax R.2d 796, the commission deduction was denied, but an opposite result was reached in United Life and Accident Insurance Co. v. United States, D.N.H. 1971, 329 F.Supp. 765. We think the New Hampshire district court reached the sounder result, although we disagree with its conclusion that the expenses associated with the deferred and uncollected premiums are properly accruable under generally accepted accrual accounting principles. We base our holding on the need to avoid undue distortion of income.
21
The Commissioner's power to require a change in the treatment of items in computing taxable income is grounded on 446(b), which provides in part that 'if the method (of accounting) used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary or his delegate, does clearly reflect income.' In the exercise of the discretion granted him, the Commissioner could reasonably feel that the company's income would not be clearly reflected by accrual of only the net valuation portion of the deferred and uncollected premiums, and he has been consistently upheld in requiring accrual of the gross amount. The statutory objective of clear reflection of income will be hindered, however, if the expenses necessarily associated with that gross premium income are not also taken into account. This does no further violence to the usual accrual rules, which would not permit accrual of either the premiums or the commissions. In fact, it tends to mitigate the distortion of income caused by the Commissioner's deviation from those rules in requiring the accrual of the gross amount of the premiums.
22
Not only would disallowal of commission deductions create an inconsistency in the treatment of income and its associated expenses, it would also create an inconsistency in the treatment of these deductions and the deduction for net increases in life insurance reserves under 809(d)(2). The company's reserve liability with regard to the net valuation portion of the deferred and uncollected premiums will not in fact accrue until the premiums themselves accrue. Yet the Commissioner has not merely allowed the company to accrue this item, which generates the 809(d)(2) deduction, he has used that very accrual as the sole basis for requiring accrual of the gross amount of the deferred and uncollected premiums. Since the Commissioner does not challenge the deduction under 809(d)(2), we see no basis for allowing a challenge to the deduction for agents' commissions, which are no more contingent than the reserve liability.
23
In requiring accrual of the gross amount of the deferred and uncollected premiums, the Seventh Circuit explained the need to use consistent accrual assumptions.
24
The District Court would permit the taxpayer to accrue a full year's liability without a corresponding accrual of the related year's asset in point of time. Such a result would attribute to Congress an intention that in the same statutory equations, exclusions and deductions attributable to reserves are to be based on the assumption that the annual premium is fully paid up and yet the amounts in the same equation from which these figures are to be subtracted are to be determined on the assumption that the annual premium is not fully paid up. This is, in effect, saying that Congress, when it specified accrual accounting, must have meant one rule to apply to reserve deductions and exclusions and another different accrual rule to apply to determining the amount from which the former are to be subtracted. We perceive nothing from which intent to impose such a dual standard of tax accounting can be presumed.
25
Franklin Life Insurance Co. v. United States, supra, 399 F.2d at 761. We think the same reasoning applies with equal force here. We do not think that Congress meant for one standard to apply to reserve deductions and a different rule to apply to commission deductions.
Conclusion
26
The result we reach is admittedly an imperfect one. None of the amounts under discussion are properly accruable under normal accounting practices. It would be far more accurate, we think, for the company to disregard deferred and uncollected premiums for all tax purposes, with the Commissioner's approval, of course. 446(e); Treas.Reg. 1.446-1(e). This would create some variance in accounting between the N.A.I.C. reports and the tax returns, but it is well settled that there is no necessary agreement between the two as noted by the courts in Franklin Life, Jefferson Standard Life, and Western National Life. We hold only that, once the company accrues the net valuation portion of the deferred and uncollected premiums, it must accrue the gross amount of those premiums for all tax purposes, and that it is also entitled to accrue commissions payable on those premiums.
27
Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.
1
All citations herein are to 26 U.S.C
2
In 1966, the company's gain from operations computed under 809 was less than its taxable investment income computed under 804, and there were no subtractions from the policyholders' surplus account under 815. Therefore, its taxable income was computed only under 809. See 802(b)
3
809(c)(1)
4
809(d)(2), 810(c)(1)
5
It is true that the life insurance company's share of investment yield, a taxable item under 809(b)(1)(A), was affected by inclusion of the net valuation portion of deferred and uncollected premiums in reserves. The life insurance company's share is the difference between the overall investment yield and the share set aside for policyholders. The share set aside for policyholders, in turn, varies directly with the size of the reserves. 809(a)(2)(B). Therefore, an increase in reserves leads to an increase in the size of the share set aside for policyholders and a corresponding decrease in the insurance company's share. However, any reduction in the life insurance company's share is a washout, since the company's deduction for net increases in reserves under 809(d)(2) is reduced by the amount of the share of investment yield set aside for policyholders. 810(b). Therefore, the only effect on the company's taxable gain from operations came through the increases in gross premium income and net increase in reserves, which also precisely cancelled each other
6
The calculation of a life insurance company's taxable investment income under 804 is often colloquially called the Phase I computation
7
This is the colloquial term for the calculation of a life insurance company's gain from operations under 809
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578 F.2d 105
UNITED STATES of America, Plaintiff-Appellee,v.Peter Mario PALMERE, Defendant-Appellant.
No. 77-5310.
United States Court of Appeals,Fifth Circuit.
Aug. 9, 1978.
Kerry J. Nahoom, Fort Lauderdale, Fla., for defendant-appellant.
John V. Eskenazi, U. S. Atty., Jamie L. Whitten, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before CLARK and GEE, Circuit Judges, and LYNNE,* District Judge.
PER CURIAM:
1
Upon his return from a trip to Colombia, defendant's baggage was inspected by customs and found to contain one and one-third pounds of cocaine. Defendant declared then and at trial that he did not know that the leather tennis bag, which he said was a gift from his traveling companion's brother, contained cocaine. The jury convicted defendant of importation and possession with intent to distribute. Defendant appeals.
2
Defendant first contends that the trial judge should have granted his motion for acquittal at the close of the government's evidence under the standard of United States v. Haggins, 545 F.2d 1009 (5th Cir. 1977). That standard is whether a reasonably minded jury must necessarily have entertained a reasonable doubt as to defendant's guilt. Defendant stresses the fact that all the evidence of his knowledge that his bags contained cocaine is circumstantial and that his character witness was unimpeached.
3
Of course, the same test is used whether the evidence is direct or circumstantial. United States v. Muller, 550 F.2d 1375 (5th Cir. 1977). The standard to be applied by the trial judge is whether the jury might reasonably have concluded that the evidence failed to exclude every reasonable hypothesis but that of guilt. United States v. Haggins, 545 F.2d 1009 (5th Cir. 1977). Nor can the testimony of a character witness alone (even unimpeached) automatically create reasonable doubt. Nor is defendant's version of what happened such as to compel belief. He testified that the brother of a friend had given the bag to him as a present. According to defendant, this person brought the bag to defendant's hotel room while defendant was asleep, and defendant's traveling companion, who had paid for defendant's air fare to and from Colombia, packed this bag for him. The government put on evidence that the large amount of cocaine produced a noticeable bulge in the bag which defendant should have noticed. We conclude that the jury could appropriately have found beyond a reasonable doubt that guilt existed.
4
Defendant next contends that the judge erred in not giving a requested absent-witness instruction, citing authorities for the proposition that the failure of a party to call a witness peculiarly within the party's power to call produces an inference that the witness' testimony would be unfavorable to that party. Here both defendant and the government had power to call this person, the traveling companion of defendant, as a witness. The record indicates that defense counsel had originally requested the government to bring the witness, who was being held at Eglin Air Force Base, to Fort Lauderdale, where the trial was being held. Defense counsel then changed his mind and stated that he did not want this witness. Later on, when the government stated that it did not wish to produce this witness because of the delay it would entail to transfer the witness from Eglin to Fort Lauderdale, the court agreed to try to do what it could to speed things up if both the government and the defense wished it to do so. The government was agreeable to this, but defense counsel refused. Defendant does not deny that it was within his power to call the witness. This point is meritless.
5
At trial the following exchange took place on cross examination by the prosecutor of defendant's character witness:
6
Q. You said you would believe Mr. Palmere under oath and that his reputation according to your opinion as having been truthful and living up to his obligations.
7
A. Yes.
8
Q. If you knew that he smuggled cocaine, would you have the same opinion?
9
A. I would doubt that he would do something like that.
10
Q. But if you knew that he smuggled cocaine would you have the same opinion of his truth and veracity?
11
(Defense counsel): Excuse me, judge, it's been asked and it's been answered.
12
The court: Sustained.
13
Defendant argues that the prosecution's asking of this question was so prejudicial to defendant that his conviction must be reversed. Defendant relies on the recent case of United States v. Candelaria-Gonzalez, 547 F.2d 291 (5th Cir. 1977). In that case the prosecutor had asked several of defendant's character witnesses if they would still think defendant's reputation for having good character would exist if defendant were convicted of trafficking in narcotics, the charge against him at that trial. The question was asked of three witnesses, and defense counsel objected each time on the grounds of prejudice. Twice the court overruled defense objection, but the third time the court sustained it. With respect to the two witnesses of whom the prosecution was allowed to ask the question, one witness stated that it would affect the defendant's reputation, and the other witness stated that he did not know how to answer that question. On appeal we held that the district court had abused its discretion in allowing the prosecutor to ask these hypothetical questions since, first of all, the questions were not relevant to the issue of the defendant's reputation for good character since that is a matter of definite opinions held by the community, and, second, these hypothetical questions were based on the assumption of defendant's guilt.
14
In Candelaria the primary ground of reversal was the appearance of hostility toward the defense manifested by the court. We need not determine here whether under its authority a repeated resort by the prosecution to hypothetical questions of this sort is sufficient in and of itself to require reversal, since here the sole objection voiced was on grounds of repetitiveness. Thus, any reversal here would have to rest on a determination that one asking of such questions constitutes plain error. We conclude that it does not.
15
Defendant next complains of an instruction in which the judge called the jury's attention to the fact that the defendant had an interest in the outcome of the case, citing cases from other circuits to the effect that the judge should not call any special attention to such interest. Our law is otherwise: Nelson v. United States, 415 F.2d 483 (5th Cir. 1969), categorically approved such an instruction.
16
Defendant also complains of the admission of evidence of the "street value" of the cocaine, maintaining that his defense focused on absence of knowledge rather than on want of intent. However that may be, intent to distribute was a required element of proof for conviction here, and evidence of price or quantity of a narcotic possessed is generally relevant to intent. United States v. Marchildon, 519 F.2d 337 (8th Cir. 1975); United States v. Perry, 480 F.2d 147 (5th Cir. 1973). The trial judge did not abuse his discretion in admitting it.
17
AFFIRMED.
*
Senior District Judge of the Northern District of Alabama, sitting by designation
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771 N.E.2d 629 (2002)
331 Ill. App.3d 464
264 Ill.Dec. 925
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Quentin T. TRAYLOR, Defendant-Appellant.
No. 3-00-0672.
Appellate Court of Illinois, Third District.
June 14, 2002.
Rehearing Denied July 15, 2002.
*630 Verlin R. Meinz, Office of the State Appellate Defender, Ottawa, for Quentin T. Traylor.
John X. Breslin, Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, Jeff Tomczak, Will County State's Attorney, Joliet, Richard T. Leonard, State's Attorneys Appellate Prosecutor, Ottawa, for People.
Justice HOMER delivered the opinion of the court:
Following a stipulated bench trial, Quentin Traylor was found guilty and sentenced to 38 years' imprisonment for first degree murder (720 ILCS 5/9-1 (West 1998)), 6 years for harassment of a witness (720 ILCS 5/32-4a (West 1998)) and 6 years for intimidation (720 ILCS 5/12-6 (West 1998)). The 6-year terms were to be served concurrently to each other but consecutive to the 38-year term. Traylor appeals his convictions. After our careful review, we reverse and remand for a new trial.
BACKGROUND
On September 24, 1999, Traylor was brought to the Will County sheriff's office for questioning related to the murder of Julius Smith. Sheriff's investigators' Terry Paggi and Edward Hayes took Traylor to an interview room, presented him with a form advising him of his Miranda rights *631 and, according to the investigators, also read Traylor his Miranda rights. Traylor signed the Miranda form, and the investigators questioned Traylor for approximately three hours. During the interview, Simon Peter McMurtry, a co-suspect, was brought into the interview room. At first McMurtry indicated that Traylor did not shoot Smith, but when McMurtry was brought into the room again, he indicated that Traylor did shoot the victim. Shortly after that, Traylor gave an oral statement confessing to Smith's murder and made a short videotaped confession. Traylor was then arrested and taken by officers to a holding cell in the Will County jail, where he remained until the next day when he was formally arrested.
Traylor was formally arrested on September 25, and a photograph was taken of him at that time. Immediately after he was formally arrested, Traylor was taken to a segregated portion of the jail where he had no contact with other inmates. Traylor remained in that portion of the jail for approximately two weeks.
On October 13, Traylor was indicted for first degree murder, harassment of a witness and conspiracy in connection with the death of Julius Smith. Traylor pled not guilty. Traylor filed a motion to suppress his confession because he alleged he was not given Miranda warnings and because his statements were coerced by police officers who physically abused him. The trial court conducted a hearing in respect to the motion to suppress.
At the hearing, Traylor testified that before his interview with the officers, he was not verbally given his Miranda rights but was simply given a form to sign, which he signed. He also testified that during the interrogation, the officers tripped him, hit him in the nose and ribs, and squeezed his genitals. Traylor said he agreed to make a statement only after one of the officers squeezed his genitals. He testified that he told his attorney about the abuse and admitted that he did not disclose it on any of the county jail health forms he had filled out for other medical problems. Even though Traylor did not mention the alleged abuse in any of the medical forms, Traylor testified that he did tell a nurse at the jail that he had been beaten by the police. Traylor testified that he went to St. Joseph's Medical Center on September 21 because his eye was yellow and his hair was falling out. He denied that he complained of a red nose at the medical center.
Michael Vanover, an investigator for the Will County public defender's office, testified that he took photos of Traylor on September 29. A review of those photos clearly shows some bruising on the right side of Traylor's nose. Vanover stated that he saw bruising in the September 25 booking photo that was similar to the bruising shown in the September 29 photos. Corey Kelly, an acquaintance of Traylor, testified that Traylor had no facial injuries when he was taken by the police to be questioned on September 24, but Kelly did notice redness and bruising on Traylor's nose in the booking photo. Additionally, Robert Hadala, a private investigator hired by Traylor's attorney, testified that he took photos of Traylor on November 4, 1999, and that there was a mark on Traylor's face around his nose on that date.
Inspectors Paggi and Hayes stated that Traylor had no cuts, bruises, wounds or injuries of any kind when he came or left the sheriff's office on September 24. They also denied seeing any bruising, redness or marks on Traylor's face in the September 25 booking photo. They both acknowledged an injury was present in the September 29 photo. They denied that Traylor had that injury on September 24 or 25.
After considering the above evidence, the trial court found that the defense had *632 shown that Traylor was injured "while in police custody." Thereafter, the hearing continued, and the State presented its witnesses. Joan Adams, a registered nurse at St. Joseph's Medical Center, testified that Traylor had been to the emergency room on September 21, 1999, and complained of having a red nose. Nurse Adams remembered that the tip of Traylor's nose was red at that time but specifically denied seeing any marks on the bridge of his nose at that time. She stated that she would have documented it in her triage report if she had seen any such marks.
The State also presented the testimony of several police officers who denied that Traylor was physically coerced during the interview. Investigator Paggi reiterated that Traylor was not physically abused in any way during his interview. Investigator Michael Guilfoyle and Sergeant Ryan Shea, who observed parts of the interview, testified that they never saw Traylor being struck by the officers. Additionally, Lieutenant David Van Dyke testified that he watched the interview and never saw Traylor being struck, taken down or grabbed at any time. After hearing the above testimony, the trial court denied Traylor's motion to suppress, finding that Traylor's statements were made voluntarily after he had been advised of his Miranda rights.
Traylor then appeared in court for a stipulated bench trial. The trial court found Traylor guilty of murder (three counts), harassment of a witness, intimidation and conspiracy (two counts). The court vacated the convictions for two counts of murder and both counts of conspiracy. The court sentenced Traylor to 38 years for murder and extended-term sentences of 6 years each for harassment of a witness and intimidation. The six-year terms were to run concurrently with each other but consecutive to the murder sentence. Traylor appeals arguing that the trial court erred by (1) failing to suppress his confession, (2) sentencing him for both intimidation and harassment of a witness, (3) sentencing him consecutively for intimidation and harassment of a witness, and (4) sentencing him to extended terms for intimidation and harassment of a witness. Because we agree that the trial court should have suppressed Traylor's confession, we reverse and remand for a new trial on that ground. Therefore, it is not necessary for us to address Traylor's additional arguments.
ANALYSIS
In order for a confession to be admissible as evidence, the trial court must determine that the defendant made it freely, voluntarily and without compulsion or inducement. People v. Gilliam, 172 Ill.2d 484, 500, 218 Ill.Dec. 884, 670 N.E.2d 606, 613 (1996). A confession is voluntary if, based on the totality of circumstances, the accused's will was not overborne at the time he confessed. People v. Kincaid, 87 Ill.2d 107, 117, 57 Ill.Dec. 610, 429 N.E.2d 508, 511 (1981). In reviewing whether a defendant's confession is voluntary, a reviewing court will accord great deference to the trial court's factual findings and will reverse those findings only if they are against the manifest weight of the evidence. In re G.O., 191 Ill.2d 37, 50, 245 Ill.Dec. 269, 727 N.E.2d 1003, 1010 (2000).
When a defendant moves to suppress his confession, the State bears the burden to establish that the confession was voluntary. People v. Woods, 184 Ill.2d 130, 145, 234 Ill.Dec. 423, 703 N.E.2d 35, 42 (1998). Once a defendant establishes that he has been injured while in police custody, a heightened burden of proof is imposed on the State to show by clear and convincing evidence that the injuries were *633 not inflicted as a means of producing the confession. People v. Wilson, 116 Ill.2d 29, 40, 106 Ill.Dec. 771, 506 N.E.2d 571, 575 (1987).
We hold that the trial court's decision to deny Traylor's motion to suppress was against the manifest weight of the evidence. The trial court found that an injury on Traylor's nose was present on September 29 and possibly on September 25 based on photographs. After viewing the photographs, we find that definite bruising was present on Traylor's nose in the September 25 photograph. Additionally, we find that such bruising was not present before Traylor's interrogation based on the testimony of every witness, including the investigators. Because Traylor proved that he had been injured "while in police custody," the State was required to prove by clear and convincing evidence that Traylor's injuries were not inflicted as a means of producing a confession. See Wilson, 116 Ill.2d at 40, 106 Ill.Dec. 771, 506 N.E.2d at 575. We find that the State failed to meet its burden of proof.
This case is factually similar to Woods where the supreme court found that the State had not met its burden of proving by clear and convincing evidence that the defendant's injuries were not inflicted in order to obtain a confession. In Woods, it was undisputed that the defendant had injuries, including an abrasion on his forehead and eye, on April 25, three days after he had been brought into the police station. Woods, 184 Ill.2d at 148, 234 Ill.Dec. 423, 703 N.E.2d at 43. From the time that the defendant arrived at the police department on April 22 until the time when he was booked and photographed on April 25, he was either in the presence of police officers or in a single-person holding cell. Woods, 184 Ill.2d at 149, 234 Ill.Dec. 423, 703 N.E.2d at 44. The court reasoned that since the defendant was either in the presence of police officers or in a single-person cell at all times, the State should have been able to prove whether the defendant sustained his injuries before or after his confession, as well as the cause of his injuries. Woods, 184 Ill.2d at 150, 234 Ill.Dec. 423, 703 N.E.2d at 44. Because the State did not adduce clear and convincing evidence as to when or how the defendant's injuries occurred or that the injuries were unrelated to his confession, the defendant's confession was suppressed. Woods, 184 Ill.2d at 150, 234 Ill.Dec. 423, 703 N.E.2d at 44.
Likewise, in this case, Traylor was in the presence of officers or in a single-person cell from the time of his arrest until the time of his booking photograph taken on September 25, which shows an injury on the bridge of his nose. Because Traylor was either in the presence of police officers or in a single-person cell at all times, the State should have been able to prove whether the defendant sustained his injuries before or after his confession, as well as the cause of his injuries. See Woods, 184 Ill.2d at 150, 234 Ill.Dec. 423, 703 N.E.2d at 44. Here, however, the State failed to do so.
The State's presentation of witnesses consisted almost entirely of police officers who denied any wrongdoing. However, mere denials of coercion by police officers are insufficient to establish by clear and convincing evidence that a defendant's injuries were not sustained as a means of eliciting a confession. Wilson, 116 Ill.2d at 40, 106 Ill.Dec. 771, 506 N.E.2d at 575. The only testimony in addition to the police officers' was that of Nurse Adams. Nurse Adams' testimony, however, does not help the State prove that Traylor was not injured while in police custody because although she testified that Traylor had some redness on the tip *634 of his nose three days prior to him being arrested, she specifically denied that he had any bruising on the bridge of his nose. Additionally, all of the witnesses, including the police officers, testified that Traylor had no injuries to his nose when he was brought to the sheriff's office for questioning on September 24, so any injury that may have been present three days before that is irrelevant.
The only other evidence that the trial court found supporting the State's position that Traylor was not injured by the police was two "Inmate Health Service Requests" submitted by Traylor on October 6 and October 16 in which Traylor sought treatment for various medical conditions but did not seek treatment for his injured nose. Those forms merely establish that two and three weeks after the alleged abuse, Traylor did not report in writing the injuries he claims were caused by the police. We find these documents are insufficient to sustain the State's burden of establishing by clear and convincing evidence that Traylor's injuries were not inflicted as a means of producing his confession.
As explained in Woods, the State may satisfy its burden of proof by presenting evidence that the defendant was uninjured at the time of his confession and that he suffered injuries sometime thereafter. Woods, 184 Ill.2d at 147, 234 Ill.Dec. 423, 703 N.E.2d at 43. If the State can prove by clear and convincing evidence that a defendant's injuries occurred after his confession, the State is not required to explain the defendant's injuries. Woods, 184 Ill.2d at 147-48, 234 Ill.Dec. 423, 703 N.E.2d at 43. The State contends that Traylor's injuries were not present until September 29 and therefore the police did not cause the injury during the interrogation. However, the photographs show an injury present on September 25, only one day after Traylor's confession. Therefore, it was incumbent upon the State to prove by clear and convincing evidence that Traylor's injury was not present at the time of his confession but happened sometime after that. However, the State failed to do so.[1]
Even assuming, arguendo, that no injury was clearly visible until September 29, the State still failed to meet its burden of proving that Traylor's injuries occurred after his confession because from the time that Traylor arrived at the sheriff's office on September 24 until September 29, he was either in the presence of police officers or in a single-person cell. Because Traylor was either in the presence of police officers or in a single-person cell at all times, the State should have been able to prove whether the defendant sustained his injuries before or after his confession, as well as the cause of his injuries. See Woods, 184 Ill.2d at 150, 234 Ill.Dec. 423, 703 N.E.2d at 44.
Because the State did not adduce clear and convincing evidence that Traylor's injuries were unrelated to his confession, his confession should have been suppressed. Woods, 184 Ill.2d at 150, 234 Ill.Dec. 423, 703 N.E.2d at 44. Because the use of a coerced confession as substantive evidence of guilt is never harmless error, Traylor's convictions are reversed and this cause is remanded for a new trial. See Wilson, 116 Ill.2d at 41, 106 Ill.Dec. 771, 506 N.E.2d at 576.
*635 CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Will County is reversed, and the cause is remanded to the circuit court for a new trial.
Reversed and remanded.
LYTTON, P.J., and SLATER, J., concur.
NOTES
[1] The record reveals that Traylor made a videotaped statement on September 24, but that videotape was never offered into evidence by either the State or the defense. If that videotape had been admitted into evidence and clearly showed that Traylor had no injuries at that time, the State could have readily sustained its burden of proof that Traylor was injured sometime after his confession.
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276 Kan. 732 (2003)
79 P.3d 1074
STEVEN D. KESTERSON, Appellee,
v.
STATE OF KANSAS, et al., Appellants.
No. 90,368.
Supreme Court of Kansas.
Opinion filed November 21, 2003.
Linden G. Appel, of Department of Corrections, argued the cause, and Kenneth R. Smith, special assistant attorney general, was with him on the brief for appellant.
Charles J. Cavenee, of Legal Services for Prisoners, Inc., of Lansing, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by
NUSS, J.:
Steven Kesterson, an inmate in Lansing Correctional Facility, filed a petition for writ of habeas corpus pursuant to K.S.A. 2002 Supp. 60-1501 in Leavenworth County District Court. He asked that the Department of Corrections (DOC) be ordered to restore good time credits it had withheld because of his failure to participate in a sex offender program. The district court granted the petition and DOC appealed. Kesterson moved to transfer to the Supreme Court under Rule 8.02 (2002 Kan. Ct. R. Annot. 55), and this court granted his request.
The sole issue on appeal is whether the version of the Kansas administrative regulation that awards good time credits, i.e., K.A.R. 44-6-124, that was in effect at the time of the inmate's crime can be changed to his detriment without violating the Ex Post Facto Clause of the United States Constitution. We answer this question "no" and affirm.
*733 In 1987, the Harvey County District Court convicted Steve Kesterson of three counts of aggravated burglary, two counts of aggravated assault, two counts of aggravated sodomy, one count of aggravated sexual battery, one count of attempted rape, one count of rape, and one count of aggravated escape. All offenses except the latter occurred in 1985. The court sentenced him to 35 years to life in prison.
DOC later offered Kesterson the opportunity to participate in the Sexual Abuse Treatment Program (SATP). He refused, claiming his Fifth Amendment rights against self-incrimination would be compromised. Specifically, he objected to a program requirement that he make, without immunity, an admission of responsibility for his crimes and provide details of all sex crimes he committed in the past. DOC then denied all good time credits during two program classification reviews in 2002, thereby extending his parole eligibility date. Kesterson was not convicted of any inmate disciplinary offenses during these review periods, and his unit team correctional counselor's sole basis for withholding 100% of Kesterson's good time credits was his failure to participate in SATP.
On January 29, 2003, the Leavenworth County District Court granted Kesterson's habeas corpus petition in a memorandum decision whose rationale we adopt. It states in relevant part:
"The administrative regulation in effect at the time that petitioner committed his crimes that is being reviewed is K.A.R. 44-6-124 (1984). This regulation states the following:
"44-6-124. Awarding good time. (a) Award each review period; one opportunity to earn good time; guidelines for granting and denying good time. Good time credits shall be awarded at every review designated for that purpose from credits available to be earned for the period since the last review. In the case of new admissions, good time credits shall be awarded for the period since the sentence begins date. All or any part of the credits allocated for that period may be awarded, except that, for time covered by jail credit, the good time credits shall be presumed to have been earned and shall be awarded by the unit team or classification committee prior to the initial hearing by the Kansas adult authority. (Emphasis added.)
"If the entire allocation of good time credit is not awarded at any review, no part of that allocation shall be awarded at a later date. The inmate shall be permitted only one period of opportunity to earn the good time credits available for each separate period.
*734 "For parole eligibility, award of good time credits shall be limited as follows:
(1) Inmates with no class I offenses during the review period shall receive at least 50% of good time credits allocated for that period.
(2) Inmates with no class I or II offenses during the review period shall receive at least 60% of the good time credits allocated for that period.
(3) Inmates with no class, I, II or III offenses during the review period shall receive at least 70% of the good time credits allocated for that period.
(4) Inmates with no class I, II, III or IV offenses during the review period shall receive at least 80% of the good time credits allocated for that period.
(5) The balance of the credits above the percentages listed in paragraphs (a)(1) to (a)(4) shall be awarded by the unit team based on factors of good work, behavior, and on other performance factors related to effective rehabilitation of the inmate.
"K.A.R. 44-6-124(g)(6) [2000] as amended reads:
"(6) A refusal by an inmate to constructively work or participate in assigned programs shall result in the withholding of 100% of the good time credits for that program classification review period, unless the inmate is determined by the facility health authority to be physically or mentally incapable of working or participating in a particular program or detail.
. . . .
"This case is on all fours with Stansbury v. Hannigan, 265 Kan. 404, [960 P.2d 227, cert. denied 525 U.S. 1060 (1998)] and Bankes v. Simmons, 265 Kan. 341, [963 P.2d 412, cert. denied 525 U.S. 1060 (1998)]. In those cases, an inmate lost good time credits under K.A.R. 44-6-124(g)(6) for refusal to participate in the SATP program. In those cases, the application of the amended version of K.A.R. 44-6-124(g)(6) was found to be a violation of the prohibition against ex post facto laws as applied to Stansbury and Bankes. In this case the respondents are again attempting to apply an amended version of K.A.R. 44-6-124 against the petitioner. These actions fly directly in the face of the Stansbury and Bankes decisions. The application of the amended version of K.A.R. 44-6-124 to petitioner is a violation of the prohibition against ex post facto laws.
"Respondent argues that State v. Armbrust, [274 Kan. 1089, 59 P.3d 1000 (2002)] is controlling. This Court disagrees and finds that Armbrust is distinguishable from the matter before this Court. In Armbrust the defendants did not lose anything. They were penalized for the commission of a crime that occurred after the law changed. In the present case respondents ignore the fact that they are taking good time credits away from the petitioner that there was a presumption he had earned. Good time credits already earned are a protected liberty interest because the State has vested a statutory right to those credits. Frazee v. Maschner, 12 Kan. App. 2d 525, 528, [750 P.2d 418, rev. denied 243 Kan. 778 (1988)]; Muldrow v. Hannigan, 27 Kan. App. 2d 662, [8 P.3d 12 (2000]. Armbrust does not overrule or set aside the findings made in Stansbury or Bankes."
*735 On appeal, DOC relies upon a number of cases in addition to Armbrust. All are readily distinguishable from the instant case.
In Wishteyah v. Kansas Parole Board, 17 Kan. App. 2d 480, 838 P.2d 371 (1992), an inmate challenged the change of the Kansas Parole Board policy which increased the restrictions placed on inmates as conditions of release prior to completion of their full terms. Following Wishteyah's return to prison for a parole violation after he had been conditionally released, he argued the increase in restrictions violated the Ex Post Facto Clause of the United States Constitution. See United States Constitution, art. I, sec. 9, cl. 3 and sec. 10, cl. 1. The Court of Appeals affirmed the dismissal of Wishteyah's petition. It held that the punished conduct was the parole violation, not the original offense of conviction, and therefore the Ex Post Facto Clause was not violated.
In Vinson v. McKune, 265 Kan. 422, 960 P.2d 222 (1998), not only was Stansbury v. Hannigan cited with approval, but the case also did not involve good time credits. Similarly, in McKune v. Lile, 536 U.S. 24, 153 L. Ed. 2d 47, 122 S. Ct. 2017 (2002), the United States Supreme Court acknowledged that inmate Lile's decision not to participate in the Kansas SATP did not "affect his eligibility for good-time credits or parole." Lile, 536 U.S. at 38.
In summary, this court clearly established its position 5 years ago in Stansbury and Bankes. We do not retreat from that position in the case at hand.
Affirmed.
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1 F.3d 1198
62 Fair Empl.Prac.Cas. 1403,62 Empl. Prac. Dec. P 42,539Frances M. WALLS, Plaintiff-Appellant.v.BUTTON GWINNETT BANCORP, INC., Button Gwinnett Savings Bank,Defendants-Appellees.
No. 92-8680.
United States Court of Appeals,Eleventh Circuit.
Sept. 15, 1993.Rehearing Denied Oct. 25, 1993.
Robert C.D. McDonald, Office of Robert C.D. McDonald, Leslie Stewart, Norcross, GA, for plaintiff-appellant.
Lynn C. Stewart, Schreeder, Wheeler and Flint, Atlanta, GA, for defendants-appellees.
Appeal from the United States District Court for the Northern District of Georgia.
Before FAY and DUBINA, Circuit Judges, and GIBSON*, Senior Circuit Judge.
FLOYD R. GIBSON, Senior Circuit Judge:
1
Francis Walls filed suit against her former employer, Button Gwinnett Bank ("Bank"), alleging her termination violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634 (1988), and Title VII of the 1964 Civil Rights Act. On January 23, 1992, the ADEA portion of the case was tried before a jury. After a jury verdict in Walls' favor, the court granted the Bank's motion for judgment as a matter of law and alternative motion for a new trial. Walls appeals both orders. We reverse and order the district court to reinstate the jury verdict in Walls' favor.
I. BACKGROUND
2
On May 15, 1988, Walls was hired by the Bank as a treasurer, controller, and chief financial officer; she was 58 years old. Walls had more than 25 years of experience in the savings and loan industry, and performed financial, budgeting, auditing and accounting duties at the Bank. During her employment, she received positive recommendations, received a merit increase at the end of January, 1989, and was promoted to Senior Vice President on April 20, 1989. In November, 1989, the Bank decided to convert from a savings and loan institution to a commercial bank. One month later, the Bank hired Christopher Fluehr to oversee the transition and act as a consultant.1 In January, 1990, Fluehr interviewed all employees and reviewed their personnel files, which contained information concerning each employee's age. In a deposition, Fluehr admitted that he tended to look at age when reviewing personnel files. Sometime in mid-January, Fluehr and Walls had a disagreement concerning the posting of a loan; Michael Allen, who was then president of the bank, testified that shortly after the disagreement Fluehr stated "this old lady can't work for me." At trial, Fluehr denied making the comment. On January 26, 1990, Fluehr asked Walls how old her secretary was, and Walls responded that she thought that was a rather personal question. Fleuhr then said, in Allen's presence, "Well, I know how old you are." At trial Fluehr testified that he probably made a comment about Walls' age, but that he often joked about age. On February 8, 1990, Walls received a memo from Fluehr stating that Fluehr had hired Jeff Wyatt to act as a consultant for the Bank. On February 9, Fluehr asked Walls to resign from the Bank, and on February 12, Wyatt, who was then 33 years old, started with the Bank.
3
Walls filed suit against the Bank, alleging her termination violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634 (1988), and Title VII of the 1964 Civil Rights Act. The ADEA portion of the case was tried before a jury beginning on January 23, 1992.2 The jury found that the Bank had discriminated against Walls because of her age, and awarded her $51,200 as damages for the Bank's actions. The Bank then moved for judgment as a matter of law under Fed.R.Civ.P. 50(b), and alternatively, for a new trial under Fed.R.Civ.P. 59(a). In granting the Bank's motion for judgment as a matter of law, the district court stated there was no credible direct evidence of discrimination, Walls did not rebut the Bank's legitimate nondiscriminatory reasons for its actions, and Walls failed to carry her burden on the issue of pretext. In granting the Bank's alternative motion for a new trial, the court found that the verdict was against the great weight of the evidence and resulted in a miscarriage of justice. Walls appeals both orders. We reverse and order the district court to reinstate the jury verdict.
II. DISCUSSION
4
Under the ADEA, it is unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age," if that individual is at least 40 years of age. 29 U.S.C. Secs. 623(a), 631(a). The plaintiff bears the ultimate burden of proving that age was a determinative factor in the employer's decision to terminate the employment. Young v. General Foods Corp., 840 F.2d 825, 828 (11th Cir.1988), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989).
A. Motion for Judgment as a Matter of Law
5
We review the district court's order granting the Bank's motion for judgment as a matter of law under the same standard applied by the district court. This court has held that reviewing courts must view the evidence
6
"in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion[ ] is proper. On the other hand, if there is substantial evidence opposed to the motion[ ], that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion[ ] should be denied."
7
Wilson v. S & L Acquisition Co., L.P., 940 F.2d 1429, 1436 (11th Cir.1991) (per curiam) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969)).3 It is improper to grant a judgment as a matter of law if "the evidence is such that 'reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions.' " MacPherson v. University of Montevallo, 922 F.2d 766, 770 (11th Cir.1991) (citations omitted).
8
After reviewing the record in the light most favorable to Walls, we conclude there was substantial evidence upon which reasonable persons could differ as to whether Walls was discharged because of her age. Boeing, 411 F.2d at 374. As the district court noted, Walls introduced sufficient evidence to establish a prima facie case. The Bank then presented its evidence that Walls was terminated for various nondiscriminatory reasons, i.e., the change to a commercial bank, the elimination of Wall's position, and the Bank's need for a new management team with commercial banking experience. However, the evidence presented to the jury was such that a reasonable person could conclude the Bank' justifications were merely pretexts for discrimination. Walls introduced evidence that Fluehr stated he relied on age when reviewing personnel files, that Fluehr told Walls he knew how old she was, and that Fluehr told Allen that "that old lady can't work for me." Walls also introduced evidence that she was 59 years old when she was discharged by the Bank, that she had good job reviews and had received a promotion, that the Bank had hired a 33-year old male to act as a consultant three days after her termination, and that she was qualified for several other positions in the Bank. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981) (a plaintiff may establish pretext "either directly by persuading the court that a discriminatory reason more likely [than not] motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.") Though some of the testimony and evidence at trial was conflicting, it was the jury's function to weigh the evidence and make credibility determinations. See Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1559 (11th Cir.1988) ("Neither the district courts nor the appellate courts are free to reweigh the evidence and substitute their judgment for that of the jury.") There was enough evidence for the jury to find that the Bank's explanation for Wall's termination was pretextual and the Bank discharged Walls because of her age. Thus, the district court erred in granting the Bank's motion for judgment as a matter of law.
B. Motion for new trial
9
Walls argues the court erred in granting the Bank's motion for new trial because the jury verdict was not contrary to the evidence presented at trial. We review a district court's decision to grant a new trial under the abuse of discretion standard. Ard v. Southwest Forest Industries, 849 F.2d 517, 520 (11th Cir.1988). However, "[w]hen a district court grants a new trial because the verdict is against the weight of the evidence, this court's review will be extremely stringent to protect a party's right to a jury trial." Redd v. City of Phenix City, Ala., 934 F.2d 1211, 1215 (11th Cir.1991). Our reasoning for reversing the court's judgment as a matter of law also supports our conclusion that the jury verdict was not contrary to the weight of the evidence, and the district court erred in granting the Bank's motion for a new trial. "[T]he district judge should not substitute his own credibility choices and inferences for the reasonable credibility choices and inferences made by the jury." Id. (citing Rosenfield v. Wellington Leisure Products, Inc., 827 F.2d 1493, 1498 (11th Cir.1987) (per curiam) (citation omitted)).
III. CONCLUSION
10
For the foregoing reasons, we reverse the district court's order granting the Bank's motion for judgment as a matter of law. We also reverse the district court's grant of a new trial and order the district court to reinstate the jury verdict.
11
REVERSED and REMANDED.
*
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation
1
Fluehr became president of the bank in March, 1990
2
On January 24, 1992 the Title VII portion of the case was tried to the court, which ruled in favor of the Bank. Walls does not appeal that ruling
3
The Eleventh Circuit adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981 in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc)
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Case: 14-5025 Document: 4 Page: 1 Filed: 01/02/2014
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHERYL HIGGINS,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2014-5025
______________________
Appeal from the United States Court of Federal
Claims in No. 1:12-cv-00922-EJD, Judge Edward J.
Damich.
______________________
ON MOTION
______________________
ORDER
Upon consideration of Cheryl Higgins’ unopposed
motion for a 60-day extension of time, until February 26,
2014, to file her opening brief and a motion for leave to
proceed in forma paurperis.
IT IS ORDERED THAT:
The motion is granted.
Case: 14-5025 Document: 4 Page: 2 Filed: 01/02/2014
2 HIGGINS v. US
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s21
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/06/2018 01:11 AM CDT
- 834 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF KANE L. & CARTER L.
Cite as 299 Neb. 834
In re I nterest of
K ane L., a child
18 years of age.
under
State of Nebraska, appellee, v. A ngela L.,
appellant, and Scott L., appellee.
In re Interest of Carter L., a child
under 18 years of age.
State of Nebraska, appellant and cross-appellee,
v. A ngela L., appellee and cross-appellant.
___ N.W.2d ___
Filed May 4, 2018. Nos. S-17-720, S-17-775.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings. When the evidence is in conflict,
however, an appellate court may give weight to the fact that the lower
court observed the witnesses and accepted one version of the facts over
the other.
2. Constitutional Law: Due Process. The determination of whether
the procedures afforded to an individual comport with constitutional
requirements for due process presents a question of law.
3. Trial: Evidence: Appeal and Error. An appellate court reviews the
trial court’s conclusions with regard to evidentiary foundation for an
abuse of discretion.
4. ____: ____: ____. Because authentication rulings are necessarily fact
specific, a trial court has discretion to determine whether evidence has
been properly authenticated. An appellate court reviews a trial court’s
ruling on authentication for abuse of discretion.
5. Parental Rights: Due Process. The fundamental liberty interest of natu-
ral parents in the care, custody, and management of their child is afforded
due process protection. Such due process rights include the right to be
free from an unreasonable delay in providing a parent a meaningful
hearing after the entry of an ex parte temporary custody order.
- 835 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF KANE L. & CARTER L.
Cite as 299 Neb. 834
6. Criminal Law: Trial: Evidence. Where objects pass through several
hands before being produced in court, it is necessary to establish a com-
plete chain of evidence, tracing the possession of the object or article
to the final custodian; and if one link in the chain is missing, the object
may not be introduced in evidence.
7. ____: ____: ____. Objects which relate to or explain the issues or form
a part of a transaction are admissible in evidence only when duly identi-
fied and shown to be in substantially the same condition as at the time
in issue.
8. Trial: Evidence: Appeal and Error. Whether there is sufficient founda-
tion to admit physical evidence is determined on a case-by-case basis.
An appellate court’s review concerning the admissibility of such evi-
dence is for an abuse of discretion.
9. Parental Rights. The purpose of the adjudication phase is to protect the
interests of the child.
10. Juvenile Courts: Jurisdiction: Parental Rights: Proof. The Nebraska
Juvenile Code does not require the separate juvenile court to wait until
disaster has befallen a minor child before the court may acquire jurisdic-
tion. While the State need not prove that the child has actually suffered
physical harm, Nebraska case law is clear that at a minimum, the State
must establish that without intervention, there is a definite risk of future
harm. The State must prove such allegations by a preponderance of
the evidence.
Appeals from the County Court for Buffalo County: John
P. R ademacher, Judge. Judgment in No. S-17-720 affirmed.
Judgment in No. S-17-775 reversed, and cause remanded for
further proceedings.
Elizabeth J. Chrisp, of Jacobsen, Orr, Lindstrom & Holbrook,
P.C., L.L.O., for Angela L., appellant in No. S-17-720 and
appellee in No. S-17-775.
Mandi J. Amy, Deputy Buffalo County Attorney, for State
of Nebraska, appellee in No. S-17-720 and appellant in No.
S-17-775.
Vikki S. Stamm, of Stamm, Romero & Associates, P.C.,
L.L.O., guardian ad litem.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and Strong, District Judge.
- 836 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF KANE L. & CARTER L.
Cite as 299 Neb. 834
Heavican, C.J.
INTRODUCTION
Kane L. and Carter L. were removed from the family home
as a result of methamphetamine use by their mother, Angela
L., and their father, Scott L. The county court for Buffalo
County, sitting as a juvenile court, adjudicated Kane but not
Carter. In separate appeals, Angela challenged Kane’s adju-
dication and certain rulings of the juvenile court with respect
to the petition seeking to adjudicate Carter. The State, acting
through the Buffalo County Attorney’s office, appealed the
juvenile court’s failure to adjudicate Carter. We affirm the
juvenile court’s order adjudicating Kane and reverse the juve-
nile court’s order declining to adjudicate Carter, and remand
the cause for further proceedings.
BACKGROUND
Angela is the mother of Carter, born in September 2000, and
Kane, born in September 2008. Carter and Kane’s biological
father is Scott. Scott and Angela are also biological parents to
Lily L. Lily was 19 years old at the time of these proceedings.
As such, Lily is not involved in these juvenile court actions,
although placement of Kane and Carter was with her for a
period of time.
In January 2017, Angela gave birth to another boy. Scott
is not the biological father of this child. Angela sought to uti-
lize Nebraska’s “Safe Haven” law1 with regard to the baby;
this child’s placement is also not at issue in these juvenile
court actions.
Angela provided a urine sample at the time of her admission
to the hospital prior to the baby’s birth, and that sample tested
positive for drug use. Later, the baby’s “cord blood” tested
positive for methamphetamine, amphetamine, “THC,” and oxy-
codone. Law enforcement was then contacted, because of the
following: Angela wished to relinquish the baby, the positive
1
Neb. Rev. Stat. § 29-121 (Reissue 2016).
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IN RE INTEREST OF KANE L. & CARTER L.
Cite as 299 Neb. 834
drug screen, and the hospital social worker’s knowledge that
Angela had other children at home.
The Department of Health and Human Services and law
enforcement first contacted Angela. She admitted to using
methamphetamine and marijuana during her pregnancy, includ-
ing methamphetamine 3 to 4 days before giving birth and mari-
juana within a day or so of giving birth. Angela insisted that
she had never used drugs in the family home and that Scott did
not use methamphetamine. Angela declined to give permission
for Kane to submit to drug testing.
The Department of Health and Human Services and law
enforcement then made contact with Scott and Kane. At this
time, Carter was on juvenile probation and was at a juvenile
detention center. Scott denied methamphetamine use and, after
a few days, gave consent for Kane to be tested.
Toenail testing was done on Kane, and an initial positive
result for both THC and methamphetamine was returned. The
sample was insufficient to test further for the presence of
THC, but the presence of methamphetamine was confirmed
by a second test. The presence of methamphetamine, but not
amphetamine, suggests that Kane’s exposure was environmen-
tal in nature.
Scott was eventually tested. His saliva test was initially
returned as a presumptive positive for methamphetamine.
Scott indicated surprise at this result and stated that he had not
used methamphetamine in a week. Scott later indicated that
he had not used in the last 4 days. This presumptive positive
test was sent in for laboratory testing and eventually tested
negative. There was evidence in the record that the sample
was initially returned to the organization that gathered the
sample, because the wrong type of vial had been used, and
that the organization had to “buy new vials and put the saliva
into the vial and resend it.” Further testing was apparently not
sought at the time, because Scott had admitted to methamphet-
amine use.
- 838 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF KANE L. & CARTER L.
Cite as 299 Neb. 834
As a result of the safety concerns presented by both Angela’s
and Scott’s use of methamphetamine, arrangements were made
to place Kane and Carter, who had just returned to the family
home, with Lily. The children were later moved to a placement
with their maternal grandparents.
The county filed a motion for temporary custody that was
granted ex parte on February 17, 2017. The petition to adjudi-
cate was filed on February 21—the next business day follow-
ing the Presidents Day court holiday. The record indicates that
at least Scott was present when Kane and Carter were removed.
The record further indicates that Scott and Angela had input
into the initial placement of the children with their oldest
daughter, Lily, and had visitation with the children throughout,
initially in the family home.
Over the next few days, before the first scheduled hear-
ing on March 8, 2017, counsel was appointed for Scott and
Angela. On March 1, both Scott and Angela filed answers,
through counsel, denying the allegations set forth in the peti-
tion to adjudicate.
While the first hearing was scheduled to be held March 8,
2017, it was actually held on March 1. The journal entry for
that hearing reflects that Scott and Angela were present with-
out counsel and were shown a rights advisory video. No bill
of exceptions for that hearing is in the record. A later journal
entry, entered June 21, indicated that a protective custody and
detention hearing had been scheduled for March 1 as well, but
that this hearing was waived by Scott’s and Angela’s respec-
tive counsel as counsel sought to conduct more discovery and
indicated Scott or Angela would motion for such a hearing if
it was desired.
Various motions were filed by all parties, and multiple
hearings were held in the time leading up to the first adjudica-
tion hearing held May 15, 2017, and eventual adjudication on
June 30. There is no bill of exceptions in the appellate record
for those hearings.
- 839 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF KANE L. & CARTER L.
Cite as 299 Neb. 834
Angela appeals from Kane’s adjudication. The county attor-
ney appeals and Angela cross-appeals from the order denying
the petition to adjudicate Carter. Scott filed a notice of appeal
from Kane’s adjudication, but did not further participate.
ASSIGNMENTS OF ERROR
Appeal in Case No. S-17-720,
In re Interest of Kane L.
On appeal, Angela assigns that the juvenile court erred in
(1) not ordering a protective custody and detention hearing,
thus denying Angela due process; (2) admitting evidence of
the baby’s cord blood test and Kane’s toenail test, because the
county failed to establish a foundation for those results; and (3)
finding sufficient evidence to support adjudication.
Appeal in Case No. S-17-775,
In re Interest of Carter L.
On appeal, the county attorney assigns that the juvenile
court erred in not adjudicating Carter.
On cross-appeal, Angela assigns that the juvenile court
erred in (1) not ordering a protective custody and detention
hearing, thus denying Angela due process, and (2) admitting
evidence of the baby’s cord blood test and Kane’s toenail
test, because the county failed to establish foundation for
those results.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings.2 When the evidence is in conflict, however, an
appellate court may give weight to the fact that the lower court
observed the witnesses and accepted one version of the facts
over the other.3
2
In re Interest of Carmelo G., 296 Neb. 805, 896 N.W.2d 902 (2017).
3
In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF KANE L. & CARTER L.
Cite as 299 Neb. 834
[2] The determination of whether the procedures afforded
to an individual comport with constitutional requirements for
due process presents a question of law.4
[3] An appellate court reviews the trial court’s conclu-
sions with regard to evidentiary foundation for an abuse of
discretion.5
[4] Because authentication rulings are necessarily fact spe-
cific, a trial court has discretion to determine whether evidence
has been properly authenticated.6 An appellate court reviews a
trial court’s ruling on authentication for abuse of discretion.7
ANALYSIS
Pretrial Hearing.
Angela contends, on both appeal and cross-appeal, that her
due process rights were violated when a protective custody
and detention hearing was not held.
[5] The proper starting point for legal analysis when the
State involves itself in family relations is always the funda-
mental constitutional rights of a parent.8 The interest of parents
in the care, custody, and control of their children is perhaps
the oldest of the fundamental liberty interests recognized by
the U.S. Supreme Court.9 The fundamental liberty interest of
natural parents in the care, custody, and management of their
child is afforded due process protection.10 Such due process
rights include the right to be free from an unreasonable delay
in providing a parent a meaningful hearing after the entry of
an ex parte temporary custody order.11
4
In re Interest of Joseph S. et al., 288 Neb. 463, 849 N.W.2d 468 (2014).
5
Midland Properties v. Wells Fargo, 296 Neb. 407, 893 N.W.2d 460 (2017).
6
State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).
7
Id.
8
In re Interest of Carmelo G., supra note 2.
9
Id.
10
Id.
11
See id.
- 841 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF KANE L. & CARTER L.
Cite as 299 Neb. 834
Neb. Rev. Stat. § 43-248(2) (Reissue 2016) allows the State
to take a juvenile into custody without a warrant or order of
the court when it appears the juvenile “is seriously endangered
in his or her surroundings and immediate removal appears
to be necessary for the juvenile’s protection.” However, the
parent retains a liberty interest in the continuous custody of
his or her child.12 An ex parte order authorizing temporary
custody with the Department of Health and Human Services
is permitted because of its short duration and the requirement
of further action by the State before custody can be contin-
ued.13 But “‘the State may not, in exercising its parens patriae
interest, unreasonably delay in notifying a parent that the
State has taken emergency action regarding that parent’s child
nor unreasonably delay in providing the parent a meaningful
hearing.’”14 Therefore, following the issuance of an ex parte
order for temporary immediate custody, “‘[a] prompt deten-
tion hearing is required in order to protect the parent against
the risk of an erroneous deprivation of his or her paren-
tal interests.’”15
In In re Interest of R.G.,16 we recognized that parents have
a due process right to be free from an unreasonable delay in
providing the parents a meaningful hearing after an ex parte
order for immediate custody is filed. We concluded that the
mother’s due process rights were not violated by a 14-day
delay between the entry of an ex parte order and that of a
detention order when she was given an opportunity to be
heard at the detention hearing and was allowed to visit her
children in the interim, but cautioned that this 14-day delay
12
Id.
13
Id.
14
Id. at 813-14, 896 N.W.2d at 908 (emphasis omitted).
15
Id. at 814, 896 N.W.2d at 908.
16
In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991), disapproved
on other grounds, O’Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350
(1998).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF KANE L. & CARTER L.
Cite as 299 Neb. 834
between the ex parte order and detention hearing was “on the
brink of unreasonableness.”17
In In re Interest of Carmelo G.,18 we held that a delay of
8 months between an ex parte order and one following a
protective custody hearing violated a mother’s due process
rights, even though the mother met with her caseworker dur-
ing that time, was represented by counsel, and various hear-
ings were held and continuances granted with no objection by
her counsel.
In this case, the motion for temporary custody was granted
ex parte on February 17, 2017. The petition to adjudicate was
filed on February 21—the next business day following the
Presidents Day court holiday. The record shows that at least
Scott was present when Kane and Carter were removed and
that Scott and Angela had input into the initial placement of
the children with their oldest daughter, Lily, and had visitation
with the children throughout, initially in the family home.
Over the next few days before the first scheduled hearing on
March 8, 2017, counsel was appointed for Scott and Angela.
On March 1, both Scott and Angela filed answers through
counsel denying the allegations set forth in the petition to
adjudicate.
While the first hearing was scheduled for March 8, 2017, the
record shows that it was actually held on March 1. The jour-
nal entry for that hearing reflects that Scott and Angela were
present without counsel and shown a rights advisory video.
No bill of exceptions for that hearing is in the record. A later
journal entry, entered on June 21, indicated that a protective
custody and detention hearing had been scheduled for March
1 as well, but that it was waived by counsel, who sought to
conduct more discovery and would motion for such a hearing
if it was desired.
17
Id. at 423, 470 N.W.2d at 792.
18
In re Interest of Carmelo G., supra note 2.
- 843 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF KANE L. & CARTER L.
Cite as 299 Neb. 834
Various motions were filed by all parties and multiple
hearings held in the time leading up to the first adjudication
hearing on May 15, 2017, and eventual adjudication on June
30. There is no bill of exceptions in the record for those hear-
ings, but from the journal entries following those hearings, it
does not appear that detention or custody was at issue in any
of them.
On these facts, we find no due process violation. The record
shows that Angela was almost immediately appointed counsel
and that counsel entered a denial of the allegations in the peti-
tion within a few days of being appointed. A March 1, 2017,
journal entry indicates that Angela was informed of all of
her rights, including the right to the hearing she now argues
she did not receive. A later journal entry, entered on June 21,
indicates that Angela waived her right to such a hearing. There
is no indication from the record before us that Angela ever
sought any further hearing. Nor does Angela deny that the June
21 journal entry accurately sets forth the events surrounding
that March 1 hearing.
The cases cited by Angela in support of her conclusion that
she was denied due process are inapplicable. In In re Interest
of Carmelo G., the mother clearly sought a detention hearing,
and while one was held, it took approximately 7 months and
five separate hearings to receive all of the evidence, and an
additional 49 days for the court to issue its detention order fol-
lowing the receipt of evidence. In this case, the only evidence
in the record was that both Scott and Angela were offered a
detention hearing on March 1, 2017, but waived the hearing
and never sought another one. There is no merit to this assign-
ment of error.
Foundation for Cord Blood
and Toenail Tests.
Angela argues that the juvenile court erred in admitting
the results from the cord blood and toenail tests, because the
county did not establish proper foundation for the testing.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF KANE L. & CARTER L.
Cite as 299 Neb. 834
Specifically, Angela notes that the county did not establish a
chain of custody for the cord blood and toenail tests. We note,
as did the district court, that Angela does not argue that her
Sixth Amendment right to confrontation was violated with
regard to the admission of these test results.
[6-8] Where objects pass through several hands before being
produced in court, it is necessary to establish a complete chain
of evidence, tracing the possession of the object or article to
the final custodian; and if one link in the chain is missing,
the object may not be introduced in evidence.19 Objects which
relate to or explain the issues or form a part of a transaction are
admissible in evidence only when duly identified and shown to
be in substantially the same condition as at the time in issue.20
It must be shown to the satisfaction of the trial court that no
substantial change has taken place in an exhibit so as to render
it misleading.21 Important in determining the chain of custody
are the nature of the evidence, the circumstances surrounding
its preservation and custody, and the likelihood of intermed-
dlers tampering with the object.22 Whether there is sufficient
foundation to admit physical evidence is determined on a case-
by-case basis.23 Our review concerning the admissibility of
such evidence is for an abuse of discretion.24
With respect to the toenail test, Angela argues that while the
person who collected the sample and the director of the labora-
tory that did the testing both testified, there was no testimony
from the individual who actually conducted the test, and that
such is insufficient to show foundation for the admissibility of
the results. We disagree.
19
State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).
20
Id.
21
Id.
22
Id.
23
Id.
24
See id.
- 845 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF KANE L. & CARTER L.
Cite as 299 Neb. 834
The individual who collected the sample testified at the
hearing as to the procedures she followed when collecting the
toenail sample. That individual indicated that she packaged the
sample properly and mailed it to the testing laboratory. And
the director of that laboratory testified as to the procedures
followed at the laboratory, including the receipt of the sample
and its testing. Given this testimony, we cannot conclude that
the juvenile court abused its discretion in determining that “no
substantial change ha[d] taken place in an exhibit so as to ren-
der [the results] misleading”25 and in admitting the results.
There is no merit to Angela’s contentions regarding the toe-
nail testing.
With respect to the cord blood test, Angela contends that the
doctor who ordered the test testified, but no one testified to
the collection of the sample or to the test procedure itself. We
need not address this assertion, because even assuming that the
evidence establishing the chain of custody for the cord blood
was insufficient, the admissibility of those results, on these
facts, was not reversible error.
The cord blood test results were relevant to show that
Angela had used drugs, notably methamphetamine. Angela’s
hospital drug screen was positive, and she admitted to the use
of methamphetamine. As such, any error in admitting the posi-
tive cord blood test results was harmless.
Error in Adjudicating Kane.
Angela also assigns that the juvenile court erred in adjudi-
cating Kane. She contends that the county failed to show an
evidentiary nexus between the use of methamphetamine and a
risk of harm that would support adjudication.
To obtain jurisdiction over a juvenile at the adjudication
stage, the court’s only concern is whether the conditions in
which the juvenile presently finds himself or herself fit within
the asserted subsection of Neb. Rev. Stat. § 43-247 (Reissue
25
See id. at 431, 803 N.W.2d at 783.
- 846 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF KANE L. & CARTER L.
Cite as 299 Neb. 834
2016).26 Section 43-247(3)(a) outlines the basis for the juvenile
court’s jurisdiction and grants exclusive jurisdiction over any
juvenile “who lacks proper parental care by reason of the fault
or habits of his or her parent, guardian, or custodian.”
[9,10] The purpose of the adjudication phase is to protect
the interests of the child.27 The Nebraska Juvenile Code does
not require the separate juvenile court to wait until disaster has
befallen a minor child before the court may acquire jurisdic-
tion.28 While the State need not prove that the child has actu-
ally suffered physical harm, Nebraska case law is clear that at
a minimum, the State must establish that without intervention,
there is a definite risk of future harm.29 The State must prove
such allegations by a preponderance of the evidence.30
The results of Kane’s toenail testing show that Kane has
been environmentally exposed to methamphetamine. This sug-
gests that either Scott or Angela, or both, have used the
drug around Kane. Several witnesses specifically testified that
Scott’s and Angela’s use of methamphetamine was a safety
concern. This was sufficient to create the nexus that Angela
claims is missing.
The State has proved that Kane is a child under § 43-247(3)(a)
because of his parents’ methamphetamine use. This creates a
safety concern for Kane’s being in the family home and sug-
gests that Kane should be removed from parental placement
and custody until the situation is safe for Kane to return.
There is no merit to this assignment of error.
Error in Not Adjudicating Carter.
The county assigns, in its appeal from the juvenile court’s
failure to adjudicate Carter, that it was error to not adjudicate
26
In re Interest of Justine J. et al., 286 Neb. 250, 835 N.W.2d 674 (2013).
27
Id.
28
Id.
29
Id.
30
See id.
- 847 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF KANE L. & CARTER L.
Cite as 299 Neb. 834
Carter, because he was exposed to the same threat of present
harm as Kane.
It is true, as the juvenile court noted, that Carter was in a
detention center during the events immediately leading up to
the adjudication in this case. But Carter returned shortly before
the children were removed from the home. The concern leading
up to that removal and later adjudication was that it was unsafe
for the children to be in the home at that time and into the
future. The fact that Carter was not in the home in the imme-
diate past has no bearing on whether he would be exposed to
harm in Scott and Angela’s care going forward.
We further note that there is testimony from law enforce-
ment at the hearings in these cases that Carter was placed
on probation in part because of positive drug screens of his
own. Given that the reason for adjudication is alleged to be
parental drug use, such testimony further supports Carter’s
adjudication.
The State must establish that without intervention, there is
a definite risk of future harm; on these facts as established by
the State, it has met that burden. We therefore conclude that
the juvenile court erred in not adjudicating Carter.
CONCLUSION
In case No. S-17-720, the decision of the juvenile court
adjudicating Kane is affirmed. In case No. S-17-775, the
decision not adjudicating Carter is reversed and the cause is
remanded for further proceedings.
Judgment in No. S-17-720 affirmed.
Judgment in No. S-17-775 reversed, and cause
remanded for further proceedings.
| {
"pile_set_name": "FreeLaw"
} |
844 N.E.2d 170 (2006)
In the Matter of the Supervised Estate of David A. BENDER, Deceased
Paul E. Bender, Appellant,
v.
Brian D. Bender and Monroe Bank, as Trustee, Appellees.
No. 53A01-0411-CV-473.
Court of Appeals of Indiana.
March 22, 2006.
Rehearing Denied June 20, 2006.
*174 Peter J. Rusthoven, Bart A. Karwath, Mark J. Crandley, Paul L. Jefferson, Barnes & Thornburg LLP, Indianapolis, for Appellant.
Angela S. Cash, Jeffrey S. Toole, Scopelitis, Garvin, Light & Hanson, Indianapolis, for Appellees.
OPINION
KIRSCH, Chief Judge.
Paul E. Bender ("Paul"), as personal representative in the supervised Estate of David A. Bender (the "Estate"), appeals the probate court's[1] entry of partial summary judgment in favor of David's son, Brian D. Bender ("Brian"), and Monroe Bank ("Trustee"), as Trustee of the David A. Bender Irrevocable Trust for the benefit of Brian.[2] On appeal the parties raise the following consolidated and restated issues:
I. Whether the probate court erred in determining that conveyances of Estate property made by Paul, acting in his capacity as personal representative of David's supervised estate, were void due to self-dealing, breach of fiduciary duty, and failure to obtain prior approval.
II. Whether the probate court erred in determining that the agreements, which governed the operation of the Bender Family business entities, did not reflect David's testamentary intent.
III. Whether the probate court had jurisdiction to construe the terms of the Bender Family agreements and, if so, whether the probate court properly interpreted those agreements.
IV. Whether the probate court erred in concluding that Paul could not assert the affirmative defenses of waiver, estoppel, and laches.
V. Whether the probate court erred in charging Paul with payment of attorney fees.
We affirm in part, reverse in part, and remand for further proceedings.[3]
FACTS AND PROCEDURAL HISTORY[4]
On September 18, 1987, David A. Bender ("David") executed his Last Will and Testament ("Will"), in which he directed the payment of Estate debts, made specific bequests of his Porsche to Paul and $50,000 to his daughter, named a personal representative to administer his Estate, *175 and left the residuary of his Estate to his son Brian as follows:
I give, bequeath, and devise all my residuary estate, being all property, real and personal, tangible and intangible, wherever situated, in which I may have any interest at the time of my death not otherwise effectively disposed of to my son, Brian David Bender, . . .
Appellant's App. at 101. Five years later, David executed a codicil to his Will ("Codicil"), which modified only one issuenaming his brother Paul as personal representative for his Estate in place of the person previously named. David died testate on June 25, 1998.
At the time of his death, David and his two brothers, Paul and John W. Bender ("John"), owned the following family businesses: Bender Lumber Company, Inc., an Indiana corporation ("Lumber"); Bender Enterprises, an Indiana general partnership ("Enterprises"); Bender Vernal LLC, an Indiana limited liability company ("Vernal"); and Indiana Leasing, an Indiana general partnership ("Leasing") (collectively, the "Bender Businesses"). Prior to David's death, the brothers entered into partnership agreements for Enterprises and Leasing, a Restrictive Stock Agreement for Lumber, and a Buy-Sell Agreement for Vernal (collectively, the "Bender Agreements"). Id. at 327, 340, 352, 364. David's Will and Codicil made no reference to the Bender Agreements or to the disposition of David's share of the Bender Businesses.[5]
Paul was appointed as personal representative of the Estate on July 27, 1998. On August 5, 1998, notice of his appointment was first published. Eight months later, on April 29, 1999, Paul filed the inventory of the Estate's assets. Id. at 2-3.
In June and July of 1999, acting in his capacity as personal representative, Paul sold the Estate's interests in Lumber to himself for $57,200. He also sold the Estate's interest in Vernal and Enterprises to himself and to John, in equal shares, at a total price of $45,000 and $700,000, respectively. Finally, Paul transferred the Estate's interests in Leasing to himself and to John. No money was paid to the Estate in connection with this latter transaction due to a legal opinion that Leasing's assets had no value. Id. at 374. Believing that the Bender Agreements required these sales, Paul completed these transfers without notification to or the approval of Brian, the Trustee, or the probate court.
Paul filed his Personal Representative Intermediate Report ("Intermediate Report") with the probate court in June 2001. Id. at 126. Attached to the Intermediate Report was a summary of the Estate's accounts with schedules showing receipts and disbursements from June 25, 1998 through June 13, 2001. Id. at 129-69. This forty-page summary made reference to Paul's conveyances of the Estate's interests in the Bender Businesses to Paul and John. Id. at 132, 145. On June 22, 2001, the probate court entered an order approving, settling, and confirming the Intermediate Report. Id. at 28.[6]
Approximately two years later, on July 21, 2003, Brian and the Trustee filed a *176 Complaint to Set Aside Sale of Decedent's Business Interests, alleging that Paul had purchased the Bender Businesses substantially below their true value and that the sales transactions were "void" for Paul's "self-dealing" and for his having failed to obtain a court order authorizing the sale. Id. at 30-32. The complaint also alleged that David's Will or a settlement agreement did not authorize the sale.[7]Id. at 32. Paul responded, raising the affirmative defenses of laches, estoppel, and waiver. Id. at 37.
About a year later, Brian and the Trustee filed a motion for partial summary judgment. After a hearing, the probate court entered its October 12, 2004 order granting their motion. Id. at 18-26. The order, in part, provided that the sales and transfers of David's interests were void as a matter of law; that Paul's self-dealing constituted constructive fraud because Paul breached his fiduciary duties; that the Bender Agreements were not valid testamentary expressions of David's intent; and directed the return of $25,000 in personal representative fees that had been paid to Paul and $50,000 in attorney fees that had been paid to Paul's attorneys. Id. at 21-25. The order also construed the terms of the Bender Agreements, ruled that the defenses of waiver, estoppel, and laches did not apply, awarded Brian attorney fees, and ruled in favor of Brian on other subsidiary issues. Id. 21-25, Appellant's App. at 4. Paul now appeals the probate court's grant of partial summary judgment. Additional facts will be added as needed.
DISCUSSION AND DECISION[8]
The parties disagree about the appropriate standard of review this court should use to judge the probate court's grant of partial summary judgment in favor of Brian and the Trustee. Citing Peoples Bank & Trust Co. v. Price, 714 N.E.2d 712, 716 (Ind.Ct.App.1999), trans. denied, Paul asserts that construction of the Bender Agreements is a pure question of law for the courts and, therefore, that our standard of review on appeal is de novo. Appellant's Br. at 11. We agree with Paul that the interpretation of the Bender Agreements is integral to the ultimate distribution of the Estate. However, at this point in the probate proceedings, we need not concern ourselves with contract interpretation. Instead, we must determine whether the probate court erred in granting partial summary judgment, i.e., whether there is a genuine issue of material fact that Paul's conveyances of the Estate's interest in the Bender Businesses were void.
Our standard of review for a grant of summary judgment is the same as that *177 used in the trial court: summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Chenoweth v. Estate of Wilson, 827 N.E.2d 44, 47 (Ind.Ct.App.2005). The moving party bears the burden of designating sufficient evidence to eliminate any genuine factual issues and, once the moving party has fulfilled this requirement, the burden shifts to the nonmoving party to come forth with contrary evidence. Id. All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Id. at 48.
On appeal, we consider only those matters that were designated to the trial court at the summary judgment stage. Reed v. Beachy Constr. Corp., 781 N.E.2d 1145, 1148 (Ind.Ct.App.2002), trans. denied. We do not weigh the evidence, but we liberally construe all designated evidentiary material in the light most favorable to the nonmoving party to determine whether there is a genuine issue of material fact for trial. Id. The party that lost in the trial court has the burden to persuade the appellate court that the trial court erred. Id. Specific findings and conclusions by the trial court are not required, and although they offer valuable insight into the rationale for the judgment and facilitate our review, this court is not limited to reviewing the trial court's reasons for granting summary judgment as it may be affirmed upon any theory supported by the designated materials. Id.
I. Conveyance of the Bender Businesses
The probate court granted summary judgment to Brian and to the Trustee, reasoning that Paul's 1999 conveyances of the Estate's interest in Bender Businesses were void as a matter of law due to Paul's self-dealing, his breach of fiduciary duty, and his failure to obtain the prior approval required in a supervised estate. Paul, while acknowledging that he did not obtain prior court approval, asserts that the Bender Agreements directed him, as personal representative, to sell David's interests in Lumber, Vernal, and Enterprises to the purchasers designated in the Bender Agreements, i.e., to John and to himself. As such, Paul contends that his actions in selling David's interests could not have been self-dealing. Paul further contends that to prevent him, as personal representative, from making transfers that would allow the Bender Companies to remain closely held would frustrate David's intent. Specifically, Paul asserts that, because the Bender Agreements directed that interests in the Bender Businesses be disposed of in a certain manner, he was not self-dealing or acting improperly when he transferred these interests to John and to himself.
Article VI of David's Will conferred upon his personal representative "all powers enumerated and granted to a Personal Representative under the Indiana Code, and any other power that may be granted by law, to be exercised without the necessity of Court approval." Appellant's App. at 105. His Will also provided that the personal representative should serve without posting a bond. In his Codicil, David replaced Article VI in its entirety with the following new paragraph: "I hereby appoint Paul E. Bender as Personal Representative of my Last Will and Testament." Id. at 108. The Codicil did not grant Paul the authority to administer the Estate without court supervision, nor did it allow him to sell property to himself.
While Indiana law allows legatees and devisees, under certain conditions, to petition the court for unsupervised administration of an estate, see IC 29-1-7.5-1, -2, no such petition was made here. See 13 I.L.E., Executors and Administrators *178 § 12, at 340 (2001). Consequently, Paul was acting as personal representative for David's supervised estate.
The Probate Code contains detailed provisions governing the various aspects of the supervised administration of an estate, including the collection and management of assets; the sale . . . of personal and real property; and the distribution of the estate and discharge of the personal representative. A personal representative of an estate subject to supervised administration may have to obtain a court order for a variety of actions, such as for the sale . . . of personal property or real property, or for the payment of fees to the personal representative or an attorney for the estate.
Id. at 339.
Under the Indiana Probate Code, a personal representative is responsible for collecting and preserving all assets of the decedent's estate. IC XX-X-XX-X. Thereafter, a personal representative of a supervised estate may only sell estate property if: (1) the authority to sell is expressly granted in the decedent's will; (2) the authority is granted by statute; or (3) the personal representative first obtains the court's prior approval for the sale. 13 I.L.E. § 152, at 512-13; see IC XX-X-XX-X, -3, -8. Paul failed to comply with any of these conditions. First, Paul did not obtain prior court approval for the sale of David's interests in the Bender Businesses. Second, David's Will, as amended by the Codicil, did not grant Paul authority to sell any of David's business interests. In fact, the Codicil, which was executed after some of the Bender Businesses had been formed, specifically removed powers granted by the Will to the previous personal representative. Third, there was no statutory authority for the personal representative to sell the Bender Businesses without court approval.
Of greater significance, a personal representative of an estate is regarded as a trustee appointed by law for the benefit of and the protection of creditors and distributees of that estate. Williamson v. Williamson, 714 N.E.2d 1270, 1273 (Ind. Ct.App.1999); Fall v. Miller, 462 N.E.2d 1059, 1061 (Ind.Ct.App.1984). "There is a thread which runs through the law governing fiduciary relationships which forbids a person standing in a fiduciary capacity to another from profiting by dealing in the property of his beneficiary, and any such profit realized must be disgorged in favor of that beneficiary." Fall, 462 N.E.2d at 1061. This fiduciary relationship also precludes a personal representative of an estate from acting as Paul did here, i.e. purchasing "property himself as an individual from himself as the personal representative." Williamson, 714 N.E.2d at 1273 (citing Matter of Estate of Garwood, 272 Ind. 519, 400 N.E.2d 758, 764 (1980) (setting aside a conveyance of real estate where the personal representative acted as seller and deeded property to himself as an individual purchaser)).
In Williamson, a dispute arose between two brothers over their father's estate. Donald acted as the personal representative for the estate, which provided that Donald and Robert would share their father's estate equally. The estate was unsupervised. The estate included a twelve-acre piece of property. During the administration of the estate, Donald obtained two separate estimates for the value of the property, assigned a value that roughly averaged the two values, and purchased the property for $141,250. Thereafter, Donald filed a final accounting for the property, which revealed Donald's purchase of the property. Robert filed a written objection to the closing statement contending that Donald had unilaterally conveyed the real estate without his consent. *179 The trial court entered its judgment approving the closing statement and final accounting.
Robert appealed, claiming that Donald's conveyance of the property constituted inappropriate self-dealing and a breach of fiduciary duty. Robert further argued that by approving the distribution, the trial court had abused its discretion. Our court agreed. Noting that a personal representative is regarded as a trustee appointed by law for the benefit of and the protection of creditors and distributees, our court concluded that, in Indiana, purchases of estate assets by personal representatives at their own sales, if made in the absence of a family settlement or agreement, are void. Williamson, 714 N.E.2d at 1273; see Fall, 462 N.E.2d at 1061. Our court reasoned:
"[I]t has been the settled law of Indiana since its beginning, that a probate personal representative of the deceased is a trustee of the estate assets and will not be permitted to purchase the property himself as the personal representative." Matter of Estate of Garwood, 272 Ind. 519, 400 N.E.2d 758, 764 (1980) (setting aside a conveyance of real estate where personal representative acted as seller and deeded property to himself as an individual purchaser); but c.f. Matter of Estate of Hensley, 413 N.E.2d 315, 317 (Ind.Ct.App.1980) (affirming a conveyance of real estate by the personal representative to himself where decedent's Will anticipated such authority). The policy behind the prohibition on the transfer of estate property is to eliminate any hint of impropriety or fraud.
Williamson, 714 N.E.2d at 1273-74.
Quoting our Supreme Court's reasoning in Garwood, the Williamson court explained:
"[I]t matters not that there was no fraud contemplated and no injury done. The rule is not intended to be remedial of actual wrong, but preventive of the possibility of it. . . . It matters not how innocent and bona fide and free from suggestion of fault the transaction may be, nor how harmless or even beneficial the interference of the trustee may have been, the trustee can never, by his own act, shake off the equity of the cestui que trust[9] to have the benefit of all that he does in the scope of the trust. . . ."
Id. at 1273 (quoting Garwood, 400 N.E.2d at 764).
In Williamson, the trial court concluded that Donald's conveyance was the only rational way to distribute the property. While this court did not believe that Donald had engaged in some form of impropriety by conveying the property to himself, the court nonetheless concluded that the trial court's judgment in approving the closing statement was clearly erroneous. Id. at 1274. The court reasoned:
The trial court did not find, nor does the evidence show, that Claude Williamson's probated Will anticipated the authority of the personal representative to convey estate property to himself as an individual purchaser. In like fashion, the trial court did not find, nor does the evidence show, there was a settlement or an agreement between the two brothers permitting Donald, as personal representative of the estate, to purchase the Charlestown Road property. Absent either of the foregoing contingencies, Donald's purchase of the property is void and the deed conveying the property to Donald must be set aside. See *180 Garwood, 272 Ind. at 528-29, 400 N.E.2d at 764; Hensley, 413 N.E.2d at 318. We therefore reverse the judgment of the trial court on this issue and remand this cause for further proceedings.
Williamson, 714 N.E.2d at 1274. Here, regardless of the reasons, Paul sold property from himself as personal representative of the estate to himself as an individual. The court was correct in finding that Paul engaged in self-dealing.[10]
The probate court was also correct in finding that Paul had breached his fiduciary duty. As personal representative for David's Estate, Paul was administering the Will in accordance with Local Probate Rules of Monroe Circuit Court ("Probate Rules"). Pursuant to Probate Rule 4A, an inventory shall be filed by the fiduciary in all supervised estates within sixty days of the appointment of the fiduciary. Paul was appointed personal representative on July 27, 1998. A September 17, 1998 entry in the chronological case summary noted that an inventory had not been filed. Even so, Paul did not file his inventory until April 1999seven months after the probate court's notation and nine months after Paul was appointed personal representative.
Probate Rule 6A provides:
In all supervised estates . . . no petition for sale of personal property shall be granted unless a written appraisal, prepared by a person competent to appraise such property and setting forth the fair market value of the property to be sold is filed with the court either at the time of filing of the petition to sell or at the time the inventory is filed.
Prior to selling the interests in Bender Businesses to himself and to John, Paul obtained an appraisal of those businesses, as of April 8, 1999, from Harold A. Harrell. However, because Paul did not file a petition for sale, nothing triggered the beneficiaries or the court to inquire into the validity of that appraisal. It was a breach of fiduciary duty for Paul to sell the Bender Businesses to himself without the consent of the beneficiaries or court approval.
Under Probate Rule 7, within five months and fifteen days after the date of the first published notice to creditors, the fiduciary or his attorney must examine the Claims Docket and shall allow or disallow each claim filed against the estate. Here, it was not until June 16, 2001, almost three years after the first published notice and two months after the probate court ordered the personal representative to "file necessary documents to close this estate or appear in open court," Appellant's App. at 3, that Paul filed any document disclosing what claims had been paid by the Estate. This lapse prevented Brian, the Trustee, and the probate court from understanding *181 in a timely fashion what actions Paul had taken on behalf of the Estate.
Probate Rule 8 requires:
Whenever an estate cannot be closed within one year, an intermediate account shall be filed with the Court within thirty days after the expiration of one year and each succeeding year thereafter. Such accounting shall comply with the provisions of Indiana Code Sections 29-1-16-4 and 29-1-16-6, and
1. Shall state facts showing to the Court the reasons the estate cannot be closed and providing the Court with an estimated date of closing.
2. Shall propose partial distribution of the estate to the extent that partial distribution can be made without prejudice to distributees, claimants, and taxing authorities.
The Estate was opened in late July of 1998. To comply with the Probate Rules, Paul should have filed an intermediate report in August of both 1999 and 2000. Paul filed his first intermediate report on June 19, 2001, almost two years late. Probate rules favor the expeditious administration of estates. Inlow v. Henderson, Daily, Withrow & DeVoe, 787 N.E.2d 385, 395 (Ind.Ct.App.2003), trans. denied. Yet, almost three years after David's death, Paul filed his first intermediate report with the court.
As personal representative, Paul: (1) failed to obtain prior approval of the conveyance of the Bender Businesses out of David's Estate; (2) sold the Bender Businesses to himself and to John without Brian's agreement; and (3) failed to follow probate laws and rules in the administration of the Estate. Brian and the Trustee's partial summary judgment presented no genuine issues of material fact concerning the appropriateness of Paul's conveyances. The probate court did not err in finding that Paul's conveyances of the Bender Businesses were void, and in granting partial summary judgment to Brian and the Trustee on that issue.
After finding the transactions void, the probate court here ordered the return of the property along with its profit in the form of a constructive trust. Appellant's App. at 24-25. The probate court also directed that Paul, John, and the Bender Businesses disclose and turn over all necessary information and documentation to the Estate and Brian to allow the parties to calculate the "profits associated with David's interests in the Bender Companies that have accrued since the date of death through the date that such interests are returned to the Estate." Id. at 55. We find the probate court's actions were proper.
The Indiana Probate Code holds a personal representative personally liable for all estate property the personal representative comes to possess and, specifically, for any loss to the estate through self-dealing. IC XX-X-XX-X. The personal representative may not profit from an increase in the estate. Id. A constructive trust for the benefit of the estate is the preferred method for restoring estate property that has been removed wrongfully from the estate by the personal representative. Fall, 462 N.E.2d at 1063. A constructive trust may be imposed where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. Morfin v. Estate of Martinez, 831 N.E.2d 791, 801 (Ind.Ct.App.2005); Strong v. Jackson, 777 N.E.2d 1141, 1151 (Ind.Ct. App.2002), aff'd on rehearing, 781 N.E.2d 770 (Ind.Ct.App.2003), trans. denied. "A duty to convey the property may arise if it was acquired through fraud, duress, undue *182 influence or mistake, or through a breach of a fiduciary duty, or through the wrongful disposition of another's property." Morfin, 831 N.E.2d at 801-02.
The type of fraud necessary for the establishment of a constructive trust may be either actual or constructive. Id. at 802. Constructive fraud arises by operation of law from a course of conduct, which, if sanctioned by law, would secure an unconscionable advantage, irrespective of the actual intent to defraud. Drudge v. Brandt, 698 N.E.2d 1245, 1250 (Ind.Ct. App.1998). "A plaintiff alleging the existence of constructive fraud has the burden of proving the existence of a duty owing by the party to be charged to the complaining party due to their relationship, and the gaining of an advantage by the party to be charged with fraud." Morfin, 831 N.E.2d at 802. Here, it is undisputed that Paul was in a fiduciary relationship with Brian.
If the plaintiff meets the burden of proof with respect to establishing the existence of a fiduciary relationship, there is a presumption of fraud in the challenged transaction. Id. The burden then shifts to the defendant to prove at least one of the following by clear and unequivocal proof: (1) that he or she made no deceptive material misrepresentations of past or existing facts or did not remain silent when a duty to speak existed; (2) that the complaining party did not rely on any such misrepresentation or silence; or (3) no injury proximately resulted from the misrepresentation or silence. Id. Here, Paul remained quiet when he had a duty to speak, i.e., when he had the duty to file inventories, request prior approval from the court, and otherwise notify Brian and the Trustee of his intentions with respect to the Bender Businesses.[11] The probate court's imposition of a constructive trust was entirely appropriate.
II. The Bender Agreements and Testamentary Intent
Paul next contends that the probate court erred because it determined that the Bender Agreements were "not valid." Appellant's Br. at 21. However, Paul's argument misconstrues the language used by the probate court. In its order, the probate court provided as follows:
The Lumber Stock Agreement, the Lumber Stock Agreement Amendment, the Vernal Buy-Sell Agreement, and the Enterprises Value Agreement are not valid testamentary expressions of David's intent. Reed v. Reed, [105 Ind. App. 185] 14 N.E.2d 320 (Ind.Ct.App. 1938). The Will executed by David expresses his intent.
Thus, contrary to Paul's contention, the probate court did not determine that the Bender Agreements were invalid; rather, it determined that the terms of the Bender Agreements were not valid expressions of David's testamentary intent.[12] His Will and Codicil expressed that intent. The trial court did not err in reaching this conclusion.
The probate court's ruling did not invalidate the Bender Agreements and, *183 contrary to Paul's contention, will have no impact on closely-held companies or their business planning practices. See Appellant's Br. at 21-22. The expectations of Indiana practitioners and their small business clients will remain the same. The only thing that will, and should, change is the manner in which a personal representative settles an estate. "Unlike a number of states, Indiana has no corporate law specifically applicable to close corporations." G & N Aircraft, Inc. v. Boehm, 743 N.E.2d 227, 243 (Ind.2001). Therefore, a fiduciary that oversees transactions affecting closely-held stocks should act with the same care as any other fiduciary. Here, Paul was not precluded from fulfilling David's wishes. Paul could have successfully conveyed the shares of the Bender Businesses if he had entered into an agreement with all interested parties to sell the shares, or if he had notified the probate court prior to the transactions and obtained the court's approval.
III. The Bender Agreements
Paul contends that if his sales of the Bender Businesses were void, the probate court no longer had subject matter jurisdiction to adjudicate any claim based on the Bender Agreements because no claim was filed pursuant to IC XX-X-XX-XX. "Subject matter jurisdiction refers to the power of courts to hear and decide a class of cases." Allen v. Proksch, 832 N.E.2d 1080, 1095 (Ind.Ct.App.2005). To determine whether a court has subject matter jurisdiction, we must ask whether the claim falls within the general scope of authority conferred on the court by the Indiana Constitution or by statute. Mariga v. Flint, 822 N.E.2d 620, 629 (Ind.Ct. App.2005), trans. denied. Whether a lower court had jurisdiction is a pure question of law, and we review the issue de novo. Id. The Monroe Circuit Court is a court of general jurisdiction that must maintain a probate docket. IC XX-XX-XX-X. As a court of general jurisdiction, the probate court had the power and authority to oversee any aspect of David's Estate, including the interpretation of the Bender Agreements. See In re Estate of Carter, 760 N.E.2d 1171, 1175 (Ind.Ct.App.2002), trans. denied (probate court could construe will, which had been probated in another county, if necessary to resolve issue in estate before the court).
Notwithstanding our finding that the probate court had subject matter jurisdiction to interpret the Bender Agreements, we agree with Paul that the probate court erred in interpreting the Bender Agreements at this stage of the proceedings. The probate court's grant of partial summary judgment was premised on the finding that Paul's conveyances of the Bender Businesses from the Estate were void because Paul had not been granted the power by the Will, by statute, or by the court to make the conveyances he made to himself and to John. After finding that these conveyances were void, it was improper at this point in the probate administration for the court to interpret the terms of the Bender Agreements.[13] We therefore reverse the probate court's findings pertaining to specific interpretations of the terms of the Bender Agreements.
IV. The Defenses of Waiver, Estoppel, and Laches
Paul asserts that the probate court erred in concluding that waiver, estoppel, *184 and laches do not apply to bar Brian and the Trustee's claims that the transfers are void. We disagree.
As to the waiver issue, the probate court correctly noted that Brian could not have consented to or waived his rights to object to Paul's sale. Here, Paul failed to give notice to Brian or to the court of his intent to transfer and sell the Estate's interests in the Bender Businesses; as such there was no opportunity for Brian to waive his rights.
The probate court also concluded that laches did not apply. Laches is an equitable doctrine that is comprised of three elements: inexcusable delay in asserting a right, an implied waiver arising from knowing acquiescence in existing conditions, and a change in circumstances causing prejudice to the adverse party. Shriner v. Sheehan, 773 N.E.2d 833, 846 (Ind.Ct.App.2002), trans. denied. A trial court has considerable latitude in deciding whether to invoke laches, and its decision will not be reversed on appeal absent an abuse of that discretion. Id.
Pursuant to IC XX-X-XX-X(c), every "intermediate account approved without notice shall be subject to review by the court at any time and shall not become final until the personal representative's account in final settlement is approved by the court." Appellant's Br. at 53. Here, Paul filed an Intermediate Report on June 19, 2001 and did not request the distribution of assets of the Estate, nor did he ask that the report be made final as to matters reported in the account. Id. at 53. Because Paul's Intermediate Report was not a final accounting, Brian had the right to challenge and object to Paul's Intermediate Report and conveyances, and the probate court could review Paul's Estate transactions at any time until the final accounting. Even then, the court could vacate or modify its orders within one year of the discharge of the personal representative upon final settlement. IC XX-X-X-XX. Brian filed his complaint to set aside the sale of the Bender Business interests on July 21, 2003. Paul's Final Report was not filed until August 6, 2004more than one year later. The probate court did not abuse its discretion in finding that laches was inapplicable.
The doctrine of estoppel springs from equitable principles, and it is designed to aid in the administration of justice where, without its aid, injustice might result. Levin v. Levin, 645 N.E.2d 601, 604 (Ind.1994) (citations omitted). "Our use of this doctrine is not limited to circumstances involving an actual or false representation or concealment of an existing material fact. Rather, equitable estoppel is [a] remedy available if one party through his course of conduct knowingly misleads or induces another party to believe and act upon his conduct in good faith without knowledge of the facts." Id. (citations omitted). Paul contends that, because Brian knew of the conveyances and failed to act, Brian is estopped from claiming that Paul breached his fiduciary duty. The defense of estoppel is inapplicable in this case because Brian did not induce Paul or cause him to act. We agree with the probate court that estoppel was not a defense available to Paul.
V. Attorney Fees
Paul finally contends that the probate court erred in holding him personally liable for the attorney fees Brian expended in pursuing his complaint. The probate court stated:
39. When a trustee commits a breach of trust, the trustee is liable to the beneficiary for reasonable attorney fees incurred by the beneficiary in bringing an action on the breach. *185 Indiana Code 30-4-3-11(b). This code applies to the fiduciary obligations of a personal representative to an estate, its creditors, and beneficiaries. Fall, 462 N.E.2d at 1062.
40. Paul is liable for all attorney fees that Brian has incurred in bringing his claims to set aside the sales and for Paul's breach of his fiduciary duty to the Estate. Brian's reasonable attorney fees shall be determined at future hearings.
Appellant's Br. at 55. Paul asserts that, notwithstanding the provision in Indiana's Trust Code, our Probate Code does not authorize the recovery of attorney fees in a case such as this.
Here, the probate court imposed a constructive trust to pull the property that was improperly transferred from the Estate back into the Estate. A constructive trust is an equitable remedy. To fully compensate Brian for the loss caused by Paul's breach of fiduciary duty in administering the Estate, equity demands that Paul should pay for the attorney fees incurred to prevent Paul from acting outside his fiduciary powers. Otherwise, the only deterrent to Paul acting outside the bounds of his powers is the chance that any improper transfer, and the profits derived therefrom, will be placed in a constructive trust.
The probate court did not err in citing to the Trust Code to support an award of attorney fees. A personal representative, like a trustee, is a fiduciary who acts on behalf of the beneficiary. It was proper for the probate court to conclude that attorney fees available for a fiduciary's wrongdoing in a trust are equally available for a fiduciary's wrongdoing in an estate, and that these fees should be paid by the fiduciary personally. The trial court did not err in granting attorney fees to be paid by Paul to Brian.
VI. Issues not Appealed
We note that the probate court entered additional findings that Paul is not appealing. The probate court directed Paul to return $75,000 to the Estate, which represented $50,000 paid for attorney fees to administer the Estate and $25,000 paid to him as personal representative. The probate court offered that after petitions for fees are filed with the court, it would consider what fees, if any, are appropriate for Paul as personal representative and for Paul's attorneys. The probate court also directed Paul, John, and the Bender Businesses to turn over all necessary information and documentation to the Estate and to Brian to allow the parties to calculate date of death values for David's interests in the Bender Businesses and to calculate all profits associated with David's interests in the Bender Businesses that have accrued since the date of death until the date that such interests are returned to the Estate.
We affirm the probate court's grant of partial summary judgment on the basis that Paul's transactions of the Bender Businesses were void. We also find that the probate court did not abuse its discretion in making Paul personally liable for attorney fees incurred by Brian in pursuing his complaint against Paul. Finally, we reverse the probate court's construction of the terms of the Bender Agreements finding that such interpretation was premature.
Affirmed in part, reversed in part, and remanded for additional proceedings.
MAY, J., and VAIDIK, J., concur.
NOTES
[1] The controversy that resulted in the grant of partial summary judgment arose within the supervised proceedings of the Estate. Although Monroe County does not have a designated probate court, Judge Taliaferro's trial court served in that capacity while settling the Estate. For ease of reference, we refer to her court as a probate court.
[2] The probate court granted partial summary judgment on issues pertaining to Paul's transfer of the interests in the Bender Family Business entities from the Estate; however, the probate court maintained jurisdiction over all other issues relating to the administration of the Estate.
[3] On June 13, 2005, Appellees filed with this court a Motion to Strike portions of Appellant's Brief. On July 22, 2005, our court ordered that a decision on that Motion was to be held in abeyance pending full consideration of the merits of this cause. The Appellees' Motion is hereby GRANTED. Because our decision on the merits of this cause does not implicate the language, there is no need for further discussion of this Motion.
[4] We heard oral argument on this case on October 4, 2005, in Indianapolis. We commend counsel on the quality of their written and oral advocacy.
[5] The Will, which was executed prior to the establishment of the Bender Businesses, understandably made no mention of the entities. However, the Codicil was executed in 1992after the brothers had entered into the Lumber Restrictive Stock Agreement and the Enterprises Partnership Agreement.
[6] Paul filed a Final Inventory on August 6, 2004, which, according to the chronological case summary, the probate court has yet to approve.
[7] Pursuant to IC 29-1-9, the compromise of any controversy pertaining to any person's right or interest in the decedent's estate may be set forth in writing, executed by all competent persons with an interest in the estate, and submitted to the court for its approval.
[8] During the pendency of this appeal, Paul filed a motion to voluntarily dismiss the appeal without prejudice, suggesting that the probate court's decision might not be a final appealable order due to the court's failure to make the determination that there was no just reason for delaying order. Ind. Trial Rule 56(c); Appellant's App. at 641. Our court denied Paul's motion and allowed the appeal to proceed pursuant to Ind. Appellate Rule 66(B). In Daimler Chrysler Corporation v. Yaeger, 838 N.E.2d 449 (Ind.2005), our Supreme Court held that App. R. 66(B) "does not authorize an interlocutory appeal that fails to comply with Appellate Rule 14." Yaeger, 838 N.E.2d at 449-50. Here, unlike, Yaeger, Paul's appeal is appealable as of right pursuant to App. R. 14(A) because he appealed an order pertaining to the payment of money and delivery of securities. Yaeger, therefore, does not control our jurisdiction over this case.
[9] Black's Law Dictionary defines cestui que trust as, "He who has a right to a beneficial interest in and out of an estate the legal title to which is vested in another." Here, Brian is the cestui que trust.
[10] This prohibition against a personal representative dealing for his own benefit is also found in IC XX-X-XX-XX, which addresses the issue of a personal representative collecting a claim he has against the estate he represents, which accrued before the decedent's death. IC XX-X-XX-XX, in pertinent part, provides:
Whenever a claim in favor of a personal representative . . . is filed against an estate. . . the claim shall not be acted upon by the personal representative unless all interested persons who would be affected by the allowance of the claim consent in writing to it. If all interested persons do not consent to the payment of that claim, the judge shall appoint a special personal representative who shall examine the nature of the claim [and pay it if just].
Thus, if the special personal representative believes it is in the best interest of the estate to oppose the personal representative's claim, the special personal representative may employ counsel to represent himself, disallow the claim, or ask the court to set the claim for trial. IC XX-X-XX-XX. No lesser standard should apply to a personal representative who claims that he has an interest in estate property pursuant to the terms of an agreement.
[11] While finding that the trial court correctly imposed a constructive trust on the Bender Business interest transferred out of the Estate, this opinion makes no determination as to the appropriate amount to be retained in the constructive trust.
[12] The proper construction of the Bender Agreements was not an issue before the trial court, is not an issue before this court, and is not resolved by this opinion. See Matter of Williams' Estate, 398 N.E.2d 1368, 1370 n. 2 (Ind.Ct.App.1980) (determination of whether probate statutes required or prevented enforcement of the Family Agreement did not require court to interpret terms of the Family Agreement).
[13] Paul also questioned whether a grant of summary judgment should have been precluded because genuine issues of material fact existed regarding (1) the valuation of Leasing's assets, and (2) the profit Paul realized from a subsequent sale of his interest in Lumber. Finding that it was inappropriate for the trial court to interpret specific terms of the Bender Agreements, we need not address these issues.
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761 F.2d 122
UNITED STATES of America, Respondent,v.Jack RANDELL, Petitioner.
Docket 85-1150.
United States Court of Appeals,Second Circuit.
Argued April 26, 1985.Decided May 3, 1985.As Amended June 4, 1985.
Mark M. Baker, New York City (Slotnick & Cutler, P.C., Barry Ivan Slotnick, New York City, of counsel), for petitioner.
John Mulcahy, New York City, Sp. Asst. U.S. Atty. S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty. S.D.N.Y., New York City, of counsel), for respondent.
Before FEINBERG, Chief Judge, FRIENDLY and NEWMAN, Circuit Judges.
FEINBERG, Chief Judge:
1
This application for bail pending appeal calls upon us to interpret that portion of the Bail Reform Act of 1984, Pub.L. No. 98-473, tit. II, 98 Stat.1976, that conditions such release upon a finding that the appeal "raises a substantial question of law or fact likely to result in reversal or an order for a new trial." Id. at Sec. 203, 98 Stat.1982 (to be codified at 18 U.S.C. Sec. 3143). Because the proper interpretation of this section is an issue of first impression in this court, we believe it appropriate to decide the motion in a published opinion rather than by order.I.
2
Jack Randell moves in this court, pursuant to Fed.R.App.P. 9(b), for bail pending the determination of his appeal from a judgment of conviction entered by Chief Judge Constance Baker Motley after a jury trial in the United States District Court for the Southern District of New York. For his role in what we are told was a four-year long scheme to defraud pharmaceutical manufacturing companies of approximately $1.2 million, petitioner was found guilty of 84 counts of mail fraud, 18 U.S.C. Secs. 2 and 1341, 33 counts of wire fraud, 18 U.S.C. Secs. 2 and 1343, and one Racketeer Influenced and Corrupt Organizations (RICO) count, 18 U.S.C. Secs. 2 and 1962(c). He was also convicted of five counts of tax evasion, 26 U.S.C. Sec. 7201. Petitioner was sentenced to five years in prison on each count of mail fraud and wire fraud and on the RICO count, and received a one-year prison term and a $20,000 fine on each tax evasion count plus the costs of prosecution. Chief Judge Motley ordered that these terms of imprisonment run concurrently, so that petitioner faces a maximum term of five years.
3
After sentence was imposed, petitioner moved in the district court for bail pending appeal pursuant to 18 U.S.C. Sec. 3143. The district court denied his motion, finding "that there is no substantial question of law or fact likely to result in reversal or new trial." This application followed.
II.
Section 3143 provides, in relevant part:
4
(b) Release or Detention Pending Appeal by the Defendant.
5
The judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds--
6
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to section 3142(b) or (c); and (2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
7
If the judicial officer makes such findings, he shall order the release of the person in accordance with the provisions of section 3142(b) or (c).
8
The petition before us involves a criterion for release that has attracted significant attention since enactment of section 3143: the requirement in subsection (b)(2) that an appeal raise "a substantial question of law or fact likely to result in reversal or an order for a new trial." Read literally, this subsection might be taken to condition bail upon a district court's finding that its own judgment is likely to be reversed on appeal. However, like the other circuits that have considered this issue, we believe that such a construction does not fairly reflect congressional intent. See United States v. Giancola, 754 F.2d 898, 900-01 (11th Cir.1985); United States v. Handy, 753 F.2d 1487, 1489 (9th Cir.1985);1 United States v. Miller, 753 F.2d 19, 23-24 (3d Cir.1985). To define "substantial" questions as those "likely to result in reversal or an order for a new trial" not only renders superfluous the word "substantial"--since an insubstantial question will hardly result in reversal--but presumes that district courts will consciously leave "substantial" errors uncorrected. We agree with the court in Miller that
9
the phrase "likely to result in reversal or an order for a new trial" cannot reasonably be construed to require the district court to predict the probability of reversal.... Instead, the language must be read as going to the significance of the substantial issue to the ultimate disposition of the appeal.
10
753 F.2d at 23. Though clearly Congress intended section 3143 to reverse the then prevailing presumption in favor of post-conviction bail, see S.Rep. No. 225, 98th Cong., 2d Sess. 26, reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3209, we do not believe it intended either to eliminate bail pending appeal or make such bail dependent upon "the willingness of a trial court to certify" that it is likely to be reversed. Miller, supra, 753 F.2d at 23.
11
A more appropriate interpretation of subsection (b)(2) thus requires a district court to determine first whether any question raised on appeal is a "substantial" one. The Miller court defined a substantial question as "one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful." 753 F.2d at 23. Giancola held that a substantial question "is one of more substance than would be necessary to a finding that it was not frivolous. It is a 'close' question or one that very well could be decided the other way." 754 F.2d at 901. Handy defined substantial as "fairly debatable." 753 F.2d at 1490.2 We do not believe that these definitions of "substantial" differ significantly from each other, but if we were to adopt only one, it would be the language of Giancola.
12
If a court does find that a question raised on appeal is "substantial," it must then consider whether that question is "so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial." Miller, supra, 753 F.2d at 23. We note that on this issue, as on all the criteria set out in subsection (b), the burden of persuasion rests on the defendant. See S.Rep. No. 225, supra, at 27, reprinted in 1984 U.S.Code Cong. & Ad.News at 3210.
13
We thus conclude that before a district court may grant bail pending appeal, it must find:
14
(1) that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released;
15
(2) that the appeal is not for purpose of delay;
16
(3) that the appeal raises a substantial question of law or fact; and
17
(4) that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial on all counts on which imprisonment has been imposed.
18
Miller, supra, 753 F.2d at 24; see Giancola, supra, 754 F.2d at 901.
III.
19
In this case, the district court explicitly relied upon the analysis of section 3143(b) that the Third Circuit enunciated in Miller and that we adopt here. While not making express findings that defendant was not likely to flee or to pose a danger to any other person or that the appeal was not for the purpose of delay, the court proceeded to the third prong of the Miller standard and found defendant's appeal to raise no "substantial" questions. Neither petitioner nor the government has contested reliance on the Miller analysis. Petitioner's only claim is that the district court erred in its assessment of the substantiality of his appellate claims.
20
We need spend little time in considering whether the district court erred in refusing to find that the questions raised in petitioner's appeal are substantial. Petitioner informs us that on appeal he will raise three issues: (1) that the district court's instructions improperly precluded the jury from finding that he lacked the specific intent requisite for mail fraud and wire fraud; (2) that the court improperly barred evidence as to industry-wide practices in the pharmaceutical industry and improperly refused to instruct the jury to consider such practices; and (3) that the mailings and telephone calls charged in the indictment cannot give rise to mail and wire fraud because the fraud alleged had already been consummated by the time they were made. However, we are not required to decide whether these questions are substantial, since they pose no challenge to petitioner's conviction on the five tax evasion counts. Petitioner's only claim with respect to the tax counts is that the jury could have been affected by the "spillover" from the court's other alleged errors. We do not believe that this "spillover" argument is sufficient to satisfy the burden of persuasion that Fed.R.App.P. 9(c), as amended by Sec. 210 of the Bail Reform Act of 1984, places upon petitioner. See S.Rep. No. 225, supra, at 27 n. 86, reprinted in 1984 U.S.Code Cong. & Ad.News at 3210 n. 86. We therefore deny petitioner's application on the ground that he has not carried his burden of persuading this panel that the appeal raises a substantial question of law or fact likely to result in reversal or an order for a new trial on all of the counts for which he received prison terms.
21
The application is denied. Petitioner's motion for an expedited appeal has already been granted.
1
This citation is to the advance sheet of Handy. Subsequent to the filing of this opinion, Handy was amended; the amended version is reported at ---- F.2d ---- (9th Cir. 1985)
2
The amended opinion in Handy, supra, does not depart from the definition of "substantial" as "fairly debatable" that was initially adopted in that case
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337 F.2d 472
Neva Floy ALT, Administratrix of the Estate of Ray ThomasAlt, Deceased, Appellant,v.AMERICAN INCOME LIFE INSURANCE CO., Appellee.
No. 7724.
United States Court of Appeals Tenth Circuit.
Oct. 26, 1964.
Robert G. Grove, Oklahoma City, Okl. (Grove, Winters & Cloud, Oklahoma City, Okl., on the brief), for appellant.
Paul R. McDaniel, Oklahoma City, Okl. (Wm. J. Holloway, Jr., and Crowe, Boxley, Dunlevy, Thweatt, Swinford & Johnson, Oklahoma City, Okl., on the brief), for appellee.
Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.
SETH, Circuit Judge.
1
Appellant has taken this appeal from a summary judgment granted by the trial court to Appellee-defendant. The decedent Ray Thomas Alt signed and submitted to Appellee insurance company on June 23, 1961 an application form for a life insurance policy and paid the initial premium. On August 13, 1961 he died in a boating accident. This negligence suit against Appellee was filed in the Oklahoma State Court and removed to the United States District Court. A motion to remand was denied. The complaint alleges the Appellee to have been negligent in not accepting or rejecting the application for insurance, and that such delay caused damage to Appellant in the amount of the insurance applied for. The record shows that the decedent did not submit a report of his medical examination.
2
The Appellant urges that the Appellee had a duty to act promptly on this application for insurance, and cites among other cases, Republic National Life Insurance Co. v. Chilcoat, 368 P.2d 821 (Okl.1961) and Columbian National Life Insurance Co. v. Lemmons, 96 Okl. 228, 222 P. 255. These cases and Travelers Ins. Co. v. Taliaferro, 176 Okl. 242, 54 P.2d 1069 lay down the requirement that the insurance company must act on an application within a reasonable time, and so state the law of Oklahoma, if it is applicable. See also Annotation at 32 A.L.R.2d 513.
3
The record before us shows that the agent received an executed application form from the decedent on June 23, 1961, and the same evening furnished to the decedent a form for the medical examination report telling him that it was required. The application form was sent by the agent to the company the following day. The company thereafter advised the agent several times that the medical report had not been received. The agent, about two weeks before the death of the applicant, personally visited and told him that the medical examination form was still needed. The decedent responded that he had been too busy to tend to it. This was the only contact by the company with the decedent following the meeting when the premium was paid and the application form signed.
4
The officers of the Appellee stated in affidavits accompanying a motion for summary judgment that no medical report had been received and under the company rules one was here required. The court ordered a response of the motion be filed and requested Appellant to attach counter affidavits relating to the question of a medical report. No such affidavits were filed. Appellant has submitted a brief which states that she had been unable to produce evidence that decedent had taken a medical examination. Thus, on the summary judgment the facts stated in affidavits submitted by Appellee stating that no medical report had been received are not controverted.
5
The trial court held that the Appellee had received no application for insurance on which it could act. The application form submitted indicated, although not too clearly, that the medical report was required as a part of the application. The applicant, however, was told by the agent that such a report was required. The trial court held that the 'agreed upon' application was not complete to an extent that the Appellee was called upon to act. Thus the doctrine set forth in the above cited Oklahoma cases did not come into play, and we further do not need to discuss choice of law questions bearing on tort liability.
6
The record shows there was no genuine issue of material fact before the trial court. The Appellant did not, and apparently was not able, to comply with Rule 56(e) as to counter affidavits. The cause of action was for negligence, but no facts were presented by Appellant to show the existence of such negligence, and no inference from the undisputed facts lead to such a result. Summary judgment for the Appellee was proper.
7
This issue has been considered by the 5th Circuit in Warren v. New York Life Ins. Co., 128 F.2d 671, a case arising in Louisiana. It was there held that the company was not negligent in failing to inform the applicant that his application was suspended by reason of the need for additional data supporting the application following his misleading answers on an original application. The Supreme Court of Oklahoma in Missouri State Life Ins. Co. v. Brown, 150 Okl. 143, 300 P. 623 held that the evidence of negligence on the part of the company was insufficient where the failure of an applicant to furnish additional requested medical data prevented the completion of the contract. There was in this cited case a failure to pay the initial premium but the decision is not based on such fact. See also Butterfield v. Springfield Life Ins. Co., 128 Kan. 510, 278 P. 733, and cases cited in 32 A.L.R.2d p. 521.
8
It was incumbent on the Appellant to establish that an application had been made. The trial court found there had been none and the affidavits support the finding. Appellant alleged in her complaint that such had been done, but the facts by way of Appellee's affidavits show the application was but a partial one and a required part was not submitted. There was no issue as to these facts, and the allegations of negligence in the complaint or petition are of no avail. The failure to complete the application lies with the inaction of the decedent.
9
Affirmed.
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368 F.Supp. 668 (1973)
Flossie Marie MASSEY et al., Plaintiffs,
v.
THIOKOL CHEMICAL CORPORATION and United States of America, Defendants.
Civ. A. No. 1161.
United States District Court, S. D. Georgia, Brunswick Division.
December 21, 1973.
*669 Joseph Jones, Jr., Hill, Jones & Farrington, Atlanta, Ga., and Savannah, Ga., for plaintiffs.
Edward E. Dorsey, Daryll N. Love, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga. Wallace E. Harrell, Bennet, Gilbert, Gilbert, Whittle, Harrell & Gayner, Brunswick, Ga., for Thiokol.
Wayne P. Yancey, Deputy Asst. Atty. Gen., on brief as amicus curiae, for State of Ga.
LAWRENCE, Chief Judge.
ORDER ON THIOKOL'S MOTION FOR SUMMARY JUDGMENT
I
History of Litigation
This action seeking damages totalling $550,000,000 has been brought by plaintiffs against the United States and Thiokol Chemical Corporation. All plaintiffs are black. The basis of jurisdiction as to Thiokol is diversity of citizenship. The litigation grows out of an explosion that occurred on February 3, 1971, at the plant of Thiokol in Camden County, Georgia, in which twenty-eight employees were killed. Thiokol was engaged in manufacturing surface trip flares alleged to be "highly explosive, flammable and inherently dangerous products". It is sued as a joint tort feasor along with the United States. Liability of the Government is based on the Federal Tort Claims Act. 28 U.S.C.A. § 2671 et seq.
All of the plaintiffs are employees of Thiokol or dependents or next of kin of employees. The defendant in question has moved for summary judgment. It asserts that the claim of each of the plaintiffs is barred under the Workmen's Compensation Act of Georgia. The affidavit and the exhibits accompanying the motion establish that Thiokol was covered by the Act; that no employee who is a plaintiff or for whose death claim is made in this action rejected coverage and that workmen's compensation benefits have been paid to and accepted by each injured plaintiff or by the personal representative, dependent or next of kin of deceased employees.[1]
*670 Shortly before the argument last July of Thiokol's motion, counsel for plaintiffs filed a brief in which was raised the issue of the constitutionality of the Georgia Workmen's Compensation statute. Plaintiffs contend that various sections thereof violate the Fifth and Fourteenth Amendments, namely, the provisions of the Act using average weekly earnings in the formula for determining compensation. The claim of invalidity is couched in broad and conclusory terms. This Court directed that the complaint be amended so that the constitutional infirmities of the legislation are specifically set out. The amendment filed merely repeats what was previously alleged: the sections of the Act in question are violative of the Fifth and Fourteenth Amendments and the statute "both on its face and in its application . . . is arbitrary and unreasonable with no discernible standard and discriminates against low income employees, the poor white, the young and and the black."
Taken by itself, the complaint possibly falls short of the specificity demanded where a law is challenged as violative of the federal Constitution. Conclusory allegations as to unconstitutionality are not enough to support such a claim. Campbell v. Supreme Court of Florida, 428 F.2d 449 (5th Cir.). However, I think the constitutional attack here is sufficiently explicit. This is especially so in the light of the oral argument last July and the request then made by plaintiffs' counsel for opportunity to present certain statistics from the records of the Workmen's Compensation Board. Such data was to be used to support the claim of discriminatory effect on plaintiffs and other groups of the earnings approach to computing compensation for death or injury. I granted two months therefor and subsequently extended the time to December 3rd. A statistical analysis has been filed by plaintiffs. I will recur to it after summarizing the contentions of plaintiffs as gathered from their reply brief.
II
Contentions of Plaintiffs
The argument of counsel for plaintiffs boils down to something like this:
The black employees of Thiokol injured or killed in the explosion were unskilled laborers receiving the minimum hourly wage. Their low earning capacity is the consequence of the long history of socio-economic discrimination by the State of Georgia under which blacks are relegated to lower-paying jobs.[2] The formula for fixing compensation under the Workmen's Compensation Act discriminates against blacks, women, the young and the marginally-educated white employees. There is no rational basis for compensating employees who are members of these black and minority groups differently for the same injury or disability as are employees with higher earnings. As a result of systematic discrimination in employment and pay, which has been "sanctioned" by the State, awards of compensation to blacks and poor whites are proportionately lower for death and the same injury. Statistics compiled from a random sampling of the records of the Board of Workmen's Compensation establishes a discernible difference and disparity in benefits paid to whites and blacks for the same job injuries.
*671 In enacting the legislation and adopting the average earnings formula, the General Assembly failed to consider and take into account the historical discriminatory economic factors. They render what is equal on its face unequal in its racial impact. The Workmen's Compensation Act is facially and operatively arbitrary and unreasonable, say plaintiffs, in the effect of the earnings formula of compensation. If the rate of compensation fixed is unreasonable, the Act prescribing same is invalid. The statutory compensation deprives plaintiffs and black employees generally of Equal Protection under the Fourteenth Amendment.
The fact that the State of Georgia has long practiced a policy does not place same beyond attack on ground of discrimination. Legislation that has outlived its usefulness and which eventually defeats its original purpose must be changed.
So runs the argument of plaintiffs as to the constitutional issue.
III
Comparison of Death and Disability Benefits Paid to Whites and Blacks under the Georgia Workmen's Compensation Act
A. The Georgia State Board of Workmen's Compensation commendably cooperated with the Court and plaintiffs' counsel in supplying data from its files during the period 1970-1973. A random sampling of 100 death cases of males was furnished. Seventy-eight employees were white, fifteen black and seven unknown. A similar sampling was furnished as to compensation paid in 200 bodily member cases. Such claims involved 113 white males, 48 black males, 11 white females and 3 black females. Based thereon, a data analysis was made by Dr. Donna R. Brogan, Associate Professor Biometry & Statistics, Emory University. Her report is attached as an exhibit to plaintiffs' reply brief and has been made part of the record in this case.
In respect to death claims the study reflects that the deceased white employees had a median weekly salary of $147 compared to $102 for blacks. However, the average compensation differed but slightly, $15,955 to whites and $15,927 for blacks. The close correlation is attributed to the fact that the maximum death benefits payable during most of the period covered by the study was $17,000.[3] Two-thirds of the black and three-fourths of the white dependents received the maximum.
As to specific member injuries the analysis revealed the following median wages and compensation between whites and blacks:
4th finger: the median compensation paid to 9 black males was $1,076 and to 21 whites, $1,250. The median weekly wages of the whites was $99 and the blacks $71.
3rd finger: the median compensation paid to 5 black males and 14 white males was approximately the same, being close to the statutory maximum of $1,500.
2nd finger: the median compensation paid to 7 black males was $1,515 compared to $1,724 for 16 whites.
1st finger: the median compensation paid to 17 black males was $1,965 as compared to $1,976 to 33 white males.
thumb: the median compensation paid to 2 black males was $2,645 and $2,944 to 8 white males.
eye: the median compensation paid to 4 black males was $5,340 and to 9 white was $5,947. The median weekly earnings were $72 and $104, respectively.
The number of white and black females as to whom data was available is too small for meaningful analysis. However, there was a significant difference, according to Dr. Brogan, in compensation paid for first finger loss to white males and white females: $1,746 *672 for 6 females compared to $1,976 for 33 males.
Dr. Brogan summarized her study as follows:
"A random sample of 93 male death cases indicated that blacks and whites received about the same compensation for death, primarily because 2/3 to ¾ of each group received the maximum compensation of $17,000.
"A random sample of 200 injury cases, where the injury was for total loss of use or dismemberment of limb or member, suggested strongly that blacks received less compensation than whites for equivalent injuries. However, the number of females in the sample was too small to draw any conclusions about whether females received less compensation than males for equivalent injuries."
B. Thiokol has filed a response to the findings of Dr. Brogan in the form of an analysis by Dr. Albert H. Clark, Professor of Finance, and Dr. Merwyn L. Elliott, Associate Professor of Quantitative Methods, Georgia State University. They find that in the 100 death cases there was no evidence of discrimination between blacks and whites. Indeed, there is even a possibility of the reverse. Reviewing the claims in which less than the maximum benefit was paid in the case of a deceased employee, Dr. Clark and Dr. Elliott report that blacks in the group who had an average weekly wage of $90.77 received an average of $14,325 in benefits while white persons with an average weekly wage of $135.05 were awarded average death benefits of only $11,970. Apparently, this disparity results from the fact that compensation in case of death by injury varies not only with the average weekly wages but with the number and status of dependents. Thiokol's experts conclude:
"(1) There is no evidence that the death and injury benefit compensation amount paid under the Workmen's Compensation Law of Georgia has been discriminatory as to race or sex, and although the injury benefits under the Workmen's Compensation Laws of Georgia are based partially upon average weekly earnings of the injured, the law is in fact not discriminatory as to race or sex in its application or its effect.
"(2) The statistical sample used by Dr. Brogan was not large enough to support her conclusions that black males receive less compensation than white males for comparable injuries."
IV
Earnings Basis of Georgia Act Does Not Deny Equal Protection to Plaintiffs
Plaintiffs attack the provision of the Georgia Act which states that "the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation". Ga.Code Ann. § 114-402. The constitutional challenge goes also to § 114-404 dealing with compensation for total incapacity; § 114-405, partial incapacity; § 114-406 relating to compensation for specific member injuries, and § 114-413 to compensation for death resulting from injury.
The purpose of the workmen's compensation legislation was to do away with common law rules governing actions by employees under the law of master and servant and to replace such antique system with one that provided absolute liability of the employer and fixed compensation for accidental injury or death. From the beginning, with isolated exceptions, statutes have been upheld as to claims of lack of due process and equal protection. See 58 Am Jur Workmen's Compensation §§ 13, 15; 99 C.J.S. Workmen's Compensation § 19. In a number of cases the Supreme Court of the United States has sustained the validity of workmen's compensation legislation. See New York Central Railroad Company v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667; Arizona Employers' Liability Cases, 250 U.S. 400, 39 S.Ct. 553, 63 L.Ed. 1058; New York Central Railroad Company v. Bianc, 250 U.S. 596, 40 S.Ct. 44, 63 L.Ed. 1161.
*673 The Georgia Workmen's Compensation law was enacted in 1920. It possesses the major characteristics of such statutes, namely, elective coverage; absolute liability of an employer for income loss and medical expense in case of accident arising out of employment; insurance or security against such liability of the employer, and abrogation of common law rights of employees for negligence of the employer. The Act provides for graduated payments for disability from injury or in case of death. Indemnity for lost earnings is partial since the incentive of an injured employee to return to work might otherwise be reduced.
At the time of the Thiokol explosion the law as then existing provided for payment of compensation as follows:[4]
Total incapacity: 60% of average wages but not more than $50 per week or longer than 400 weeks or a total of $18,000 (now $26,000).
Partial incapacity: 60% of the difference between average weekly wages before and after injury but not more than $39 per week or longer than 350 weeks or a total of $12,000. (Now $15,000).
Specific member injuries: Loss of an arm, 60% of average weekly wages during 200 weeks but not more than $10,000. (Now $13,000).
Dependents wholly dependent on a deceased employee: 85% of the weekly compensation for total disability for a period not exceeding 400 weeks or $17,000. (Now $26,000).
Compensation or benefits under state and federal social legislation graduated according to earnings is a familiar concept. Such standard is used in a variety of statutes, including the Social Security Act (42 U.S.C.A. § 415); the Federal Employees' Compensation Act (5 U.S.C. A. § 8101 et seq.); veterans' pensions; compensation for injuries to prisoners received in industrial activity at institutions where they are confined (18 U.S. C.A. § 4126; 28 C.F.R. § 301.12), and the Georgia Employment Security Act (Ga.Code Ann. §§ 54-604, 54-621).[5]
Under the Longshoremen's and Harbor Workers' Compensation Act, payments for disability or death are based upon prescribed percentages of average weekly wages. 33 U.S.C.A. § 901-950. In Crowell v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L.Ed. 598, the Supreme Court held that neither the classifications nor the extent of the compensation provided were unreasonable and that the statute consists with due process under the Fifth Amendment.
Besides the present case, only two decisions appear to deal with racial impact of compensation laws. In Rios v. Oregon Automobile Insurance Company et al., 477 F.2d 288 the Ninth Circuit sustained the validity of the Oregon Workmen's Compensation law in respect to the computing of compensation of injured farmworkers, a class that represents a racial minority. The different formula under that Act applied to farmworkers reflects the seasonal nature of such labor. Farm laborers are compensated on the basis of one fifty-second of earnings in the past twelve months instead of the weekly wage standard used in the case of other injured employees. The Circuit Court of Appeals said:
"It may well be that farmworkers generally get lower benefits than other workers because they earn less. *674 But such economic discrimination in social welfare legislation is justified by a `reasonable basis' for the distinction. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). It is permissible for the Oregon legislature to scale workmen's compensation benefits to wages earned."
The other case involving racial impact is Doe v. Hodgson, Secretary, 344 F. Supp. 964 (S.D., N.Y.). There a broad Federal constitutional attack was made by farm laborers on various New York social-legislation statutes, including the workmen's compensation law. It was alleged that the agricultural labor force in the State had become "overwhelmingly black and chicano" and that certain exclusions in the statutes constitute arbitrary discriminations denying due process and equal protection. The District Court declined to invoke a three-judge court and dismissed the complaint on the ground that the Federal claims were unsubstantial. It found that the legislative "judgments are rational, and not invidious" and are grounded in views "lacking in racial motivation," citing Jefferson v. Hackney, 406 U.S. 535, 548, 92 S.Ct. 1724, 1732, 32 L.Ed.2d 285.
Arguing that one person's arm is worth no more than another person's, counsel stresses the instance of the first named plaintiff in the present case, Flossie Massey, who lost her left arm in the explosion. She earned $64.50 per week and received $7,090.17 for the loss whereas a white employee with a salary of $98.00 per week would have received $10,000. There is a certain demotic appeal in the argument concerning equality of bodily member loss. However, a legislature is authorized to consider the fact that the greater one's earnings the greater will be his financial loss in event of such an injury. The main thing is that legislatures, not the courts, are the ones to weigh and heed such factors.
In Flamm v. Hughes, 329 F.2d 378, 380 (2nd Cir.) the Court noted that "Congress enjoys great latitude in promulgating a statutory scheme for the compensation of workers who may suffer a broad range of injuries in terms of duration and severity." The case of Zahrobsky v. Westmoreland, 146 Pa.Super. 44, 21 A.2d 426, 427 involved a challenge of the Pennsylvania law by an employer who claimed that an excessive standard of compensation is applied to the death of a minor. The Court said that "the Legislature has adopted a formula based upon the percentage of the earnings and, on the present record, we find no basis for declaring it unreasonable." In Richardson, Secretary v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 the United States Supreme Court held that a reduction in existing social security benefits so as to reflect workmen's compensation payments to a beneficiary has a rational legislative basis and does not violate the Due Process Clause.
In the case before us there is no showing or effort to show that the Workmen's Compensation Act is unequally applied in practice.[6] All employees are compensated for the same injury or disability under the same standard. What plaintiffs' argument comes down to is the claim that the adoption of a wage-based standard by the Georgia legislature was and is unconstitutional in the light of the long and continuing discrimination against blacks as to economic and educational opportunity. If it is "the supreme law of the Land" that legislatures must take into account such factors and considerations, they will be hard put to pass legislation using earnings of an individual as a means of computing statutory compensation or benefits. The argument that the existing formula for compensating injury is invalid because of past socio-economic discrimination against blacks and certain *675 minorities would be equally applicable to most of the States of the Union.
Counsel for plaintiffs refers approvingly to the elimination of inequities in what he terms a "progressive jurisdiction like Iowa" where the legislature recently adopted as the compensation standard a percentage of the average statewide wages of that State. As a matter of fact, fourteen jurisdictions, including Iowa, fix weekly benefits at a percentage of the State's average weekly wage, as calculated annually.[7] Plaintiffs also cite the suggested model Workmen's Compensation Law proposed by the Council of State Governments which calls for a formula of two-thirds of the average of statewide wages.
A leaven is undoubtedly at work in the field of work-related injury. Congress declared in the Occupational Safety and Health Act of 1970 that "[I]n recent years serious questions have been raised concerning the fairness and adequacy of present workmen's compensation laws . . . ." Under the statute the President appointed a National Commission on State Workmen's Compensation Laws to evaluate their adequacy, including the amount and duration of permanent and temporary disability benefits and the criteria for determining the maximum limitations thereon. The Report of the Commission advocates sweeping reforms. If the essential elements of its recommendations should not be adopted by a state before July 1, 1975, it has proposed that Congress impose them as minimum Federal standards. The state's average weekly wage would be the basis of determining compensation in case of disability and death. While bills have been introduced in Congress to carry out some of the Commission's proposals, no legislation has been enacted so far.[8]
Whether one state had adopted a fairer or more progressive formula than another state is neither here nor there; nor is what Congress may do in selecting a standard concept. The point is, as far as this case is concerned, that the problem addresses itself to the legislative and not the judicial branch. Inadequacy or inequity of a system of compensating for death or disability does not mean that a formula is constitutionally infirm. Neither ideality nor uniformity is required. The Supreme Court said in Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491:
"In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some `reasonable basis' it does not offend the Constitution simply because the classification `is not made with mathematical nicety or because in practice it results in some inequality.'"[9]
The General Assembly of this State adopted the existing standard for computing compensation benefits some fifty-three years ago. The Board processed in 1972, 163,000 claims. A conservative *676 estimate of the total number of claims handled under the Workmen's Compensation Law since 1920 would be in the range of two and a half million. It seems a little late in the day to discover suddenly that all this time the law had denied equal protection to blacks and lower income employees.
Georgia's basis of computing compensation does not violate the Equal Protection of the Fourteenth Amendment either facially or in the application thereof to blacks or low income segments of the State's employed population.
V
Exclusivity of Remedy under the Workmen's Compensation Act is Valid
The other ground of constitutional challenge involves the provision of the Compensation Act denying all common law and other remedies to covered employees and their dependents.[10] This issue is not argued by plaintiffs' counsel and seemingly has been abandoned. I will nevertheless discuss it briefly.
The concept of exclusiveness of remedy is "a rational mechanism for making the compensation system work in accord with the purpose of the Act". Mullarkey v. Florida Feed Co., Inc. (Fla.), 268 So.2d 363. It has been frequently sustained in the past against due process challenge. See 58 Am Jur Workmen's Compensation § 20; 2 Larson, The Law of Workmen's Compensation § 65.10, § 66.20; Keller v. Dravo Corporation et al., 441 F.2d 1239 (5th Cir.), cert. denied 404 U.S. 1017, 92 S.Ct. 679, 30 L. Ed.2d 665. Denial of common law remedy to the heirs of a decedent does not violate the equal protection clause. Northern Pacific Railway Company v. Meese, 239 U.S. 614, 36 S.Ct. 223, 60 L. Ed. 467. Taking away the right to an action for loss of consortium of an injured spouse is not a deprivation of due process. Holder v. Elms Hotel Co., 338 Mo. 857, 92 S.W.2d 620, 104 A.L.R. 339; Lunow v. Fairchance Lumber Company, 389 F.2d 212 (10th Cir.), cert. denied 392 U.S. 908, 88 S.Ct. 2062, 20 L.Ed.2d 1366; Nichols v. Benco Plastics, 225 Tenn. 334, 469 S.W.2d 135.
The Georgia courts have uniformly held that an employee cannot maintain a common law suit against his employer where both are subject to the Compensation Act. Blue Bell Globe Manufacturing Co. v. Baird, 61 Ga.App. 298, 6 S.E. 2d 83; Wall v. J. W. Starr & Sons Lumber Co., 68 Ga.App. 552, 23 S.E.2d 452; McLaughlin v. Thompson, Boland & Lee, Inc., 72 Ga.App. 564, 34 S.E.2d 562; Southern Wire & Iron, Inc. v. Fowler, 217 Ga. 727, 124 S.E.2d 738; United States Fidelity & Guaranty Co. v. Forrester, 230 Ga. 182, 196 S.E.2d 133. The exclusiveness of the remedy under the Act is a bar to a suit by a wife against her husband's employer for loss of consortium as a result of injury on the job. Anderson v. Savannah Machine & Foundry Company, 96 Ga.App. 621, 100 S.E.2d 621; Stone Mountain Memorial Association v. Herrington, 225 Ga. 746, 749, 171 S.E.2d 521; Gulf States Ceramic v. Fenster, 228 Ga. 400, 185 S. E.2d 801. The Supreme Court said in Fenster that the legislative intent was to bring "the entire family group" within the purposes and coverage of the Act.
The contention that the exclusive remedy provision of the statute denies due process is without merit.
ORDER
Concluding that the earnings formula of the Georgia law does not violate the Equal Protection clause of the Fourteenth *677 Amendment and that exclusivity of remedy thereunder is valid, this Court grants the motion of Thiokol Chemical Corporation for summary judgment and dismisses the action as to such defendant.
NOTES
[1] The acceptance of benefits under the Workmen's Compensation Act makes doubtful whether the plaintiffs in this case have standing to challenge the wage-related concept of computing compensation. See, e. g., Senters v. Wright & Lopez, Inc. et al., 220 Ga. 611, 140 S.E.2d 904; Slick v. Hamaker, 28 F.2d 103 (8th Cir.); Booth Fisheries Company et al. v. Industrial Commission of Wisconsin et al., 271 U.S. 208, 46 S.Ct. 491, 70 L.Ed. 908; 16 C.J.S. Constitutional Law § 90, p. 284; 16 Am.Jur. Constitutional Law § 135. However, the defendant has not raised the question of estoppel or waiver and I do not deal with that issue.
[2] The brief of plaintiffs points out that in 1969, 20.7% of all Georgians was below the poverty level and that of these only 12.3% was white while the black population was 44.7% below the poverty level. While 4.8% of the white population was employed as laborers (except farming), 20% of all blacks and other minorities was employed as laborers. See 1970 Census of Population, U. S. Department of Commerce, Bureau of the Census, Washington, D. C.
[3] The present death benefit is the same as in the case of total disability, a maximum of $65 for 400 weeks or $26,000. Georgia Laws, 1973, pp. 236, 240-241.
[4] See Georgia Laws, 1968, pp. 4-6; 1963, pp. 147-149; Ga.Code Ann. §§ 114-404, 114-405, 114-406, 114-413. In April, 1971, the limits for total and partial incapacity and death were increased. However, the larger benefits are not applicable to injuries in the Thiokol explosion which occurred on February 3, 1971. A number of States automatically and periodically accelerate benefits in order to meet the problem of increase in cost of living.
[5] A different approach was adopted by Congress in the Federal Coal Mines Health and Safety Act of 1969 in respect to "black lung" benefits. Death and total disability is compensated at a rate equal to 50 per centum of the minimum monthly payment to which a Federal employee in Grade GS-2 is entitled for total disability. 30 U.S.C.A. § 922.
[6] In utilizing the claims data furnished by the Board for analysis by Dr. Brogan, some difficulty was encountered in racial identification since the recent forms have dropped reference to race.
[7] Compendium on Workmen's Compensation (Wash., D.C., 1973, National Commission on State Workmen's Compensation Laws), pp. 116-117. See also John V. Keaney, "What Have the States Done to Improve Their Workmen's Compensation Systems" Section of Insurance, Negligence, and Compensation Law, Proceedings, 1971, American Bar Association, 424ff. No perfect method exists. It can be argued that a statewide average is unfair to injured workers earning more than the state average. In the amicus brief of the State of Georgia the Iowa statute is analyzed and compared to the standard used in this State. According to the Attorney General, "The higher minimum compensation of the Georgia law would of course be more beneficial to lower income groups. Consequently, if the plaintiffs feel that the Iowa statute is progressive in its benefits to the lower income groups, then surely they must feel that the Georgia statute is very progressive."
[8] See Harry W. Dahl, "Recent Developments in Workmen's Compensation Laws." The Forum, IX (Fall, 1973), 93-102 (A.B.A.).
[9] See also Jefferson et al. v. Hackney, Commissioner, supra, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 and Romero v. Hodgson, Secretary, 403 U.S. 901, 91 S.Ct. 2215, 29 L.Ed.2d 678.
[10] Section 114-103 of the Georgia Code provided at the time of the Thiokol explosion: "The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this Title respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise on account of such injury, loss of service or death."
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560 So.2d 1103 (1989)
Anthony Lorenzo CAREY
v.
STATE.
6 Div. 36.
Court of Criminal Appeals of Alabama.
November 17, 1989.
Rehearing Denied December 29, 1989.
Certiorari Denied March 23, 1990.
H. Jadd Fawwal, Bessemer, for appellant.
*1104 Don Siegelman, Atty. Gen., and Sandra Lewis, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 89-564.
TYSON, Judge.
Anthony Lorenzo Carey was indicted for murder, in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant "guilty as charged in the indictment." The trial judge sentenced the appellant to 30 years' imprisonment in the state penitentiary and ordered the appellant to pay restitution in the amount of $6,825 to the victim's family and $25 to the Alabama Crime Victims Compensation Fund.
This appellant and Patricia Carey were married in 1979. During 1985 and 1986, the couple separated on numerous occasions, but continued to try and reconcile their differences. In September of 1986, Patricia lived with the appellant at his home for two days. On the second day, she left her husband, and shortly thereafter she established her own residence in Bessemer, Alabama.
The appellant testified that they continued to discuss reconciling their differences during October of 1986. The week prior to the shooting the two looked at a home which the appellant stated he was interested in buying for them, so he, his wife, and children could once again live as a family.
Patricia Carey testified that on October 24, 1986, she was at home, along with Willie Green, Jr., the victim; Leroy Goins, a friend; and her five children. Around 10:30 or 11:00 p.m., the appellant came to her house. She met him at the door and, after talking with him for a minute, asked him to leave.
Patricia further testified that the appellant returned to her house at 12:30 a.m. and began banging on the front door. She and the victim were in the living room. The victim got up and went into the bedroom to put on his pants and boots. Patricia stated that she told the victim to ignore the appellant and that he would eventually leave. The victim, however, stated that he would go outside and speak with the appellant.
According to Patricia, the victim told the appellant to come back the next morning to talk to his wife, since everyone was in bed. The two men exchanged words, and then Patricia stated that she heard the victim say, "Man, don't pull that gun on me." (R. 21.) Patricia heard a gunshot and ran outside. She saw the victim grab his chest and fall to the ground.
Officer Joe Patera of the Bessemer Police Department was the first to arrive on the scene. He took several measurements, one of which was the distance from the chain link fence in front of the house, where the appellant was allegedly standing when he fired the shot, and the steps of the front porch, where the victim was standing when he was shot. The distance was ten feet and seven inches.
Dr. Bruce Alexander, an associate professor of pathology at the UAB Medical Center, performed an autopsy on the victim. He stated the victim was shot with a shotgun in the back at close range. He was of the opinion that a wound of this nature most likely caused instantaneous death.
The appellant testified that, during 1985 and 1986, he and his wife were experiencing marital difficulties. He stated that his wife would come to his home in Brighton, Alabama, on occasion to wash clothes or to visit. Sometimes she would bring the children, and, occasionally, she would stay overnight.
The appellant stated that he had four separate altercations with the victim during September and October of 1986. Two of these confrontations resulted in an exchange of fist blows, and, according to the appellant, the victim pulled a knife on him on one occasion.
The appellant stated that on October 24, 1986, he was working the 3-11 shift at Vulcan Material, Parkwood Quarry, in Bessemer, Alabama. He stated that the plant kept a shotgun on the premises. He removed the shotgun, which he claims was already loaded, and left work to go speak with his wife. She did not want to speak with him and asked him to leave.
The appellant stated he left her house and went to the Ninth Avenue Grill in *1105 Bessemer, Alabama, where he worked part-time as a disc jockey. He left there at 12:30 a.m., now October 25, 1986, and returned to his wife's home.
According to the appellant, he knocked on the door and the victim looked out and recognized him. The victim did not come out, so the appellant turned to go back to his truck. While the appellant was walking to his truck, the victim stepped out and asked the appellant what he wanted. The appellant stated he wanted to speak to his wife, and the victim told him that he had no business coming out at that time of the morning.
The appellant stated that he had the shotgun under a raincoat that he was wearing. He claimed that he took the gun with him for his own protection. He testified that he and the victim then exchanged words and the victim told the appellant that he would get him. According to the appellant, the victim started walking toward him. The appellant stated that he turned to get into his truck when he felt something strike him in the back of his head. This caused him to turn and fire at the victim who was standing on the bottom step of the porch. The appellant claims he was standing outside the gate when he fired the fatal shot.
I
The appellant first contends that he was denied the right of a fair trial when the prosecutor used four of his six peremptory challenges to strike blacks from the petit jury venire.
The record reveals that the appellant properly made a Batson motion before the jury was empaneled and sworn. The trial court held, without hearing from the prosecutor, that the defendant failed to make a prima facie showing of racial discrimination and restated the reasons which were previously disclosed by the prosecutor during voir dire examination of three of these veniremen. One knew the defendant from work. Another had a nephew who had been prosecuted in that court for robbery. A third venireman lived in the vicinity of the place where the shooting occurred.
As for the prosecutor's striking of a fourth black, the prosecutor stated he struck this venireman because he was "difficult to communicate with." (R. 5.) While the reason as to this latter venireman, standing alone, might not be a sufficiently race neutral reason, we find that "other relevant circumstances" support the trial judge's finding. Currin v. State, 535 So.2d 221, 224 (Ala.Cr.App.), cert. denied, 535 So.2d 225 (Ala.1988).
The appellant, in making his motion, pointed out that five members of the jury panel were, in fact, blacks. This fact, along with the "great deference" given our trial judges in these matters, supports this trial judge's decision that the appellant failed to make a prima facie showing of racial discrimination under Batson v. Kentucky, 476 U.S. 79, 98, 106 S.Ct. 1712, 1724, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609, 625 (Ala.1987).
II
Lastly, this appellant claims that the trial judge committed reversible error when he failed to instruct the jury on the lesser included offense of manslaughter.
The appellant filed a written request for a jury charge on manslaughter, which the trial judge signed as "denied." (Vol. II, R. 24.) Out of the hearing of the jury, the trial judge explained that he did not think the facts supported a charge of manslaughter. The relevant part of the record, in this regard, is set out as follows:
"THE COURT: Also in regard to the question of provocation inferred to support a charge of manslaughter, the defendant has requested specifically a charge of manslaughter, which correctly states the charge of manslaughter. I will deny the charge again viewing the evidence in light most favorable to the defendant.
"It's my recollection the defendant testified whatever had occurred the deceased had turned and was walking away, and was some distance away, and he had moved some directionin the opposite *1106 direction at the time he turned and fired.
"I find specifically there is nothing in that encounter that would arouse a reasonable person to the degree of indictment, for lack of a better word, caused by provocation. I find that does not exist. I will refuse your written requested charge for manslaughter and give you an exception.
"MR. FAWWAL: We except, Your Honor." (R. 251.)
After the jury was charged, the appellant objected to the trial judge's refusal to instruct on the crime of manslaughter. Again, the trial judge denied the request. (R. 263.)
Thereafter, the jury retired to deliberate. After approximately 30 minutes, however, the jury returned with two questions for the trial judge. One of those questions was in regard to the crime of manslaughter.[1] The trial judge stated as follows:
"[I]t is the court's ruling in this case that the evidence does not support me giving you that charge. So that is not for your consideration at this time." (R. 263-64.)
Generally speaking, the better practice is to instruct on all lesser included offenses of homicide. Anderson v. State, 507 So.2d 580, 583 (Ala.Cr.App.1987). However,
"[a] charge on a lesser included offense should not be given when there is no reasonable theory from the evidence to support such a proposition. When the evidence clearly shows the appellant is either guilty of the offense charged, or innocent, the charge on a lesser included offense is not necessary or proper. Daly v. State, 442 So.2d 143 (Ala.Crim.App. 1983); Phelps v. State, 435 So.2d 158 (Ala.Crim.App.1983); Gwin v. State, 425 So.2d 500 (Ala.Crim.App.1982), writ quashed, 425 So.2d 510 (Ala.1983); Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); Cooper v. State, 364 So.2d 382 (Ala.Crim.App.), cert. denied, 364 So.2d 388 (Ala.1978).... Further, a court may properly refuse to charge on lesser included offenses when it is `clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offenses.' Phelps v. State, supra; Wesley v. State, supra; Chavers v. State, 361 So.2d 1106 (Ala.1978)."
Perry v. State, 455 So.2d 999, 1002-03 (Ala. Cr.App.1984). See also Anderson v. State, 507 So.2d 580, 582 (Ala.Cr.App.1987); Pennell v. State, 429 So.2d 679, 681 (Ala.Cr. App.1983). Briefly, for an accused to have an absolute right to a lesser included instruction, there must be a "rational basis" to support a conviction of the lesser included offense. Ala.Code, § 13A-1-9(b) (1975); Hill v. State, 485 So.2d 808, 809 (Ala.Cr. App.1986).
For a jury to find that the appellant may have been guilty of manslaughter rather than murder, evidence would have had to have been introduced at trial which might have shown the appellant's conduct to have been "reckless" or triggered by "sufficient provocation." Ala.Code § 13A-6-3(a) (1975). If such evidence is introduced "however weak, insufficient, or doubtful in credibility," then the appellant is entitled to a jury charge on the lesser included offense. Ex parte Stork, 475 So.2d 623 (Ala. 1985); Anderson, 507 So.2d at 583.
We find, as did the trial judge, that the evidence failed to support that this appellant's conduct was either "reckless" or motivated by sudden and "sufficient provocation." The appellant himself testified that he took the shotgun from his place of employment and that it was already loaded. He further testified that he had the shotgun under his raincoat when he went to his wife's home in the early morning hours of October 25, 1986.
*1107 The appellant also testified that he and the victim exchanged words, but it is settled law that words, no matter how insulting, are never sufficient provocation. Perry v. State, 453 So.2d 762, 765 (Ala.Cr.App. 1984), quoting Easley v. State, 246 Ala. 359, 20 So.2d 519, 521 (1944). The appellant stated that he and the victim had had four prior confrontations, two of which resulted in blows, and on one occasion, the victim pulled a knife on this appellant. The facts in the record, however, failed to disclose that the victim was armed. In fact, the prosecution established the opposite. The testimony also revealed that the victim was shot in the back.
The appellant claimed that, when he turned to get into his truck, he was struck in the back of the head. As a result, he turned and fired. The appellant failed, however, to show any injury from such an alleged blow to the head or failed to produce the source of the blow.
The facts in this regard are again heavily weighted against this appellant. The appellant stated that he was standing outside the gate in front of the house. The victim was shot while standing on the bottom step of the front porch. The distance between the point at which the appellant stood when he fired the fatal shot and the point at which the victim stood was determined to be in excess of ten feet.
A case which is somewhat factually similar to the case at bar is Anderson v. State, 507 So.2d 580 (Ala.Cr.App.1987). In Anderson, the appellant got into an argument with one of the victims. He started to leave, but his wife refused to go with him. The appellant went home, got his shotgun, and then went to a store to buy shotgun shells. He returned and started randomly shooting into the house, killing his wife and injuring another.
We reversed in Anderson because there was ample evidence that the appellant's conduct was "reckless." Furthermore, we held that a jury might find that he acted in the heat of passion, since the appellant stated that he was hallucinating that his wife was nude while with another man. Anderson, 507 So.2d at 583.
In the cause sub judice, this appellant and his wife had been having marital difficulties for over a year when the shooting occurred. This appellant also knew that his wife had been seeing the victim and that the victim was staying in her house on occasion. This fact was substantiated by the appellant's testimony that he had moved his wife and family back to Alabama from Mississippi, where the victim and the appellant's wife lived for a short time. Furthermore, the appellant's wife testified that the victim was seated in a chair in her living room where she claims the appellant would have had to have seen him, on the appellant's first visit on October 24, 1986.
We, therefore, agree with the trial court that the evidence failed to support the appellant's claim that his conduct could have been viewed by a jury as reckless or motivated by sufficient provocation.
For the reasons stated, the decision of the trial court is due to be, and the same is hereby, affirmed.
AFFIRMED.
PATTERSON and McMILLAN, JJ., concur.
BOWEN and TAYLOR, JJ., concur in result only.
NOTES
[1] The fact the jury requested a charge on manslaughter is not dispositive. A similar situation was discussed in Anderson v. State, 507 So.2d 580, 582 n. 1 (Ala.Cr.App.1987). In Anderson, the trial judge failed on three occasions to address the petit jury's concern. In the present cause, the jury asked a similar question before returning a verdict. The trial judge told the jury just as he told the appellant when the manslaughter instruction was requested that he did not feel the facts supported such a charge. Such a decision is a matter for "judicial inquiry," and for the reasons set out in this opinion, we find no error.
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STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
October 12, 2018
In re S.W., S.T., and D.W-B. EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 18-0396 (Mercer County 15-JA-150-MW, 151-MW, and 152-MW) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother T.W., by counsel Michael Magann, appeals the Circuit Court of Mercer
County’s March 16, 2018, order terminating her parental, custodial, and guardianship rights to
S.W., S.T., and D.W-B.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit
court’s order. The guardian ad litem (“guardian”), Paige Flanigan, filed a response on behalf of
the children in support of the circuit court’s order. Respondent intervenors, D.J and R.P., by
counsel William O. Huffman, filed a response in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in terminating her parental rights without the
imposition of a less-restrictive alternative.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In September of 2015, the DHHR filed a petition that alleged petitioner’s substance abuse
impaired her parenting skills and endangered the children. Further, the DHHR alleged that
petitioner used her food assistance benefits to purchase drugs and did not keep an adequate
supply of food in her home. Finally, the DHHR alleged that petitioner was previously offered
safety services in 2015, but denied using controlled substances and refused assistance at that
time.
Petitioner stipulated to the allegations of abuse and neglect in October of 2015 and the
circuit court adjudicated her as an abusing parent. Subsequently, petitioner was granted a post-
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
1
adjudicatory improvement period. The DHHR filed a case plan that required petitioner to
participate in a long-term treatment program and maintain sobriety, participate in parenting and
adult life skills classes, provide for the basic needs of the children, and provide proper discipline
for the children. Thereafter, petitioner’s improvement period was extended and she was later
granted a post-dispositional improvement period. In May of 2017, the DHHR filed a motion to
terminate petitioner’s parental rights upon allegations that she did not fully comply with
substance abuse treatment, continued to test positive for substances, and continued to expose the
children to inappropriate people.
In December of 2017, the circuit court held a dispositional hearing to address the
DHHR’s motion for termination of petitioner’s parental rights. A DHHR case worker testified
that petitioner tested positive for marijuana in May of 2017, but began testing negative after she
began mental health treatment. The case worker testified that the DHHR no longer required
petitioner to drug screen. According to the worker, petitioner continued to have difficulty
disciplining the children, particularly D.W-B., despite having completed the entire curriculum of
parenting classes. Further, a service provider testified that D.W-B.’s behaviors were completely
out of control at times, which required her to intervene to assist petitioner. In the provider’s
opinion, D.W-B.’s behavior continued to decline since the beginning of the case. The provider
testified that petitioner would attempt to implement the skills learned in her classes, but they
were ineffective in dealing with D.W-B.’s behavior. Petitioner’s drug screen provider testified
that her last positive drug screen was in May of 2017 and that she tested negative for controlled
substances through November of 2017. A second DHHR worker testified that petitioner’s
visitations were suspended at the request of the children’s therapist.
Finally, petitioner testified that she left her substance abuse program without completing
it. According to petitioner, she only needed to complete community service to complete her
program. Petitioner testified that she had not used her previous drug of choice, Dilaudid, or any
other opiates since leaving the substance abuse facility. Petitioner agreed that D.W-B. did not
respond to the discipline techniques that she learned during services. Further, petitioner testified
that she participated in one family therapy session. On cross-examination, petitioner admitted
that she agreed not to have inappropriate people around the children during a multidisciplinary
treatment team meeting (“MDT”). Ultimately, the circuit court continued petitioner’s
improvement period for three months. In doing so, the circuit court stressed the need for
petitioner to have renewed visitation and contact with the children.
The circuit court reviewed petitioner’s improvement period in March of 2018.2 The
DHHR called a case worker who testified that petitioner’s supervised visitations were restored
and D.W-B.’s behaviors worsened. Additionally, the case worker testified that family counseling
was suggested at an MDT, but petitioner did not follow through with that recommendation. The
children’s therapist testified that she originally recommended to suspend visits due a disclosure
by both children that petitioner became angry with D.W-B. and threw him on the couch during a
2
The circuit court granted respondent intervenors’ motion to intervene at the beginning of
this hearing and respondent intervenors appeared in person and by counsel.
2
visit. Further, the therapist testified regarding a family counseling session and noted that the
children were not as well behaved during that session as their regular sessions. According to the
therapist, she made a recommendation for petitioner to attend every other therapy session, but
that petitioner never contacted her afterward.
The children’s foster parent, D.J, testified that D.W-B.’s behaviors were improving until
the visitations resumed in February of 2018. D.J. further testified that D.W-B.’s behaviors
improved after the renewed visitations were suspended. Additionally, D.J. testified that a weekly
phone call visitation schedule was in effect and petitioner only called five times during the last
three months. Finally, petitioner testified and denied that she was aggressive with D.W-B., but
admitted there was a time when she threw both children on the couch in a playful manner. In
response to the family therapy, petitioner testified that she was not informed by the therapist
when to return for counseling. Petitioner also admitted that she did not call her children as
scheduled and admitted to missing visits with S.W. Ultimately, the circuit court found that it was
in the children’s best interests to terminate petitioner’s parental, custodial, and guardianship
rights. Accordingly, the circuit court terminated her parental, custodial, and guardianship rights
in its March 16, 2018, order. Petitioner now appeals that order.3
The Court has previously established the following standard of review:
“Although conclusions of law reached by a circuit court are subject to de
novo review, when an action, such as an abuse and neglect case, is tried upon the
facts without a jury, the circuit court shall make a determination based upon the
evidence and shall make findings of fact and conclusions of law as to whether
such child is abused or neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is clearly erroneous when,
although there is evidence to support the finding, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed. However, a reviewing court may not overturn a finding simply
because it would have decided the case differently, and it must affirm a finding if
the circuit court’s account of the evidence is plausible in light of the record
viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, this Court
finds no error in the proceedings below.
On appeal, petitioner argues that the circuit court erred in terminating her parental rights
rather than imposing a less-restrictive dispositional alternative. Petitioner asserts termination of
her parental rights was unnecessary to achieve permanency for S.W. because she was placed in
3
S.W.’s father’s parental rights remain intact after he successfully completed an
improvement period. S.W.’s permanency plan is continuation in her father’s custody. S.T. and
D.W-B.’s father voluntarily relinquished his parental rights. According to the parties, the
permanency plan for S.T. and D.W-B. is adoption by the respondent intervenor foster parents.
3
her father’s custody. Further, petitioner argues that the circuit court erred in terminating her
rights to S.T. and D.W-B. because the DHHR offered no evidence to show a clear link between
the children’s negative behaviors and their contact with petitioner. Petitioner asserts the circuit
court should have afforded her more time to determine the nature of those behaviors through
family therapy. We disagree.
West Virginia Code § 49-4-604(b)(6) provides that the circuit court may terminate
parental rights when “there is no reasonable likelihood that the conditions of neglect or abuse can
be substantially corrected in the near future” and when termination is necessary for the welfare
of the child. Further, West Virginia Code § 49-4-604(c)(3) provides that there is no reasonable
likelihood that the conditions of neglect or abuse can be substantially corrected when the parent
has not “responded to or followed through with a reasonable family case plan or other
rehabilitative efforts.”
The circuit court correctly terminated petitioner’s parental rights because there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected.
Although petitioner demonstrated improvement in regard to her substance abuse, she could not
demonstrate her ability to properly parent the children. Petitioner’s inability to correctly
discipline D.W-B. is uncontroverted. The record is clear that D.W-B.’s behaviors overwhelmed
petitioner and required intervention from her service providers while she exercised visitation.
D.W-B.’s behaviors were reported as aggressive and violent. These behaviors are a safety
concern for the child and his siblings. Although petitioner argues that she substantially complied
with services, we have previously held that “[i]n making the final disposition in a child abuse
and neglect proceeding, the level of a parent’s compliance with the terms and conditions of an
improvement period is just one factor to be considered. The controlling standard that governs
any dispositional decision remains the best interests of the child.” Syl. Pt. 4, In re B.H., 233
W.Va. 57, 754 S.E.2d 743 (2014). It’s clear that petitioner’s February of 2018 visitations
negatively affected D.W-B. and led to a suspension from school due to violent behaviors. The
circuit court could not find that it would be in D.W-B.’s best interest to continue in petitioner’s
care undisciplined and aggressive. Petitioner was given ample time to improve and learn a
discipline method that would provide a safe home for all the children, but simply could not rise
to that standard. Moreover, petitioner was not entitled to more time to pursue improvement
through family therapy due to her refusal to comply with this service during the underlying
proceedings.
Additionally, petitioner’s argument regarding S.W.’s placement is not persuasive. We
have previously held that West Virginia Code § 49-4-604 “permits the termination of one
parent’s parental rights while leaving the rights of the nonabusing parent completely intact, if the
circumstances so warrant.” In re Emily, 208 W.Va. 325, 344, 540 S.E.2d 542, 561 (2000).
Further, “simply because one parent has been found to be a fit and proper caretaker for [the]
child does not automatically entitle the child’s other parent to retain his/her parental rights if
his/her conduct has endangered the child and such conditions of abuse and/or neglect are not
expected to improve.” Id. Again, despite ample time to improve, petitioner could not provide a
suitable home environment for her children. Petitioner completed the parenting curriculum and
still could not remedy unsafe conditions for her children. As such, her argument is unpersuasive.
4
Finally, we have previously held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W. Va.Code [§]
49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the
use of intervening less restrictive alternatives when it is found that there is no
reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code
§ 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially
corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Petitioner did not respond to
the family case plan as evidenced by her lengthy improvement periods and her continued
inability to provide a safe home for her children. Therefore, there was no reasonable likelihood
that the conditions of abuse and neglect could be substantially corrected. Accordingly, we find
no error in the circuit court’s order terminating petitioner’s parental, custodial, and guardianship
rights rather than imposing a less-restrictive dispositional alternative.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 16, 2018, order is hereby affirmed.
Affirmed.
ISSUED: October 12, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Allen H. Loughry II suspended and therefore not participating.
5
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419 F.3d 245
Richard Jose RODRIGUEZ-MUNOZ, Appellant,v.*Alberto GONZALES, U.S. Attorney General; U.S. Department of Homeland Security; Edmond C. Cicchi, Warden of Middlesex County Correctional Center.
No. 05-1732.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit LAR 34.1(a) August 5, 2005.
August 16, 2005.
Richard Jose Rodriguez-Munoz, Brooklyn, NY, Appellant, pro se.
Pamela R. Perron, Assistant U.S. Attorney, Newark, NJ, for Appellees.
Before VAN ANTWERPEN, GREENBERG and NYGAARD, Circuit Judges.
OPINION
VAN ANTWERPEN, Circuit Judge.
1
Richard Jose Rodriguez-Munoz petitions for review of a final order of the Board of Immigration Appeals ("BIA"). For the reasons that follow, we will deny the petition.1
2
Rodriguez-Munoz is a native and citizen of the Dominican Republic. He was admitted to the United States as a lawful permanent resident ("LPR") in 1976. In 1992, he pled guilty to four drug offenses in New York state court, including third degree criminal sale of a controlled substance (crack cocaine), a class B felony. See N.Y. Penal Law § 220.39. In 1994, the Immigration and Naturalization Service ("INS") charged Rodriguez-Munoz with deportability as an alien convicted of an aggravated felony and as being convicted of a violation relating to a controlled substance.2 See Immigration and Nationality Act ("INA") §§ 241(a)(2)(A)(iii); 241(a)(2)(B)(i) [8 U.S.C. §§ 1231(a)(2)(A)(iii); 1231(a)(2)(B)(i)].3 While the immigration proceedings were pending, Rodriguez-Munoz pled guilty in New York to two additional offenses: fifth degree criminal possession of marijuana (September 21, 1999) and seventh degree criminal possession of a controlled substance (November 3, 2000).
3
In October 2003, Rodriguez-Munoz appeared before an Immigration Judge ("IJ") and asked that the government "repaper" the proceedings so that he could simultaneously apply for a waiver of removal (based on the 1992 conviction) under former INA § 212(c) [8 U.S.C. § 1182(c)], and for cancellation of removal (based on the 1999 and 2000 convictions) under INA § 240A [8 U.S.C. § 1229b].4 The IJ ordered the deportation proceedings administratively closed to allow Rodriguez-Munoz to be repapered. The government filed an interlocutory appeal which the BIA sustained, finding that administrative closure is inappropriate where one of the parties (in this case, the government) opposes it.
4
On remand, the IJ denied Rodriguez-Munoz's applications for relief and ordered him deported. The BIA dismissed Rodriguez-Munoz's appeal, concluding that even if he were repapered and eligible for a § 212(c) waiver, he would not be entitled to cancellation of removal because his 1992 conviction for criminal sale of a controlled substance, an aggravated felony, would still exist for purposes of evaluating his eligibility for § 240A relief.
5
Rodriguez-Munoz then filed a habeas corpus petition under 28 U.S.C. § 2241, arguing that his constitutional rights were violated by the refusal to repaper him so that he could simultaneously apply for both waiver of removal under § 212(c) and cancellation of removal under § 240A. The District Court denied the petition on the merits and Rodriguez-Munoz filed a notice of appeal, which has been converted to a petition for review. See fn.1, supra. Rodriguez-Munoz was deported on March 23, 2005. See Appellant's Brief, 7 n.8.
6
Rodriguez-Munoz does not dispute that he is deportable based on his 1992 conviction for criminal sale of a controlled substance. In addition, his 1999 and 2000 convictions render him removable pursuant to INA § 237(a)(2)(B)(i) (alien convicted of a controlled substance offense). He argues, however, that he would be entitled to relief if permitted to simultaneously apply for a waiver of removal under § 212(c) and for cancellation of removal under § 240A. We disagree.
7
When Rodriguez-Munoz was convicted of drug crimes in 1992, § 212(c) allowed a lawful permanent resident with seven years of consecutive residence in the United States to apply for a discretionary waiver of deportation. See INS v. St. Cyr, 533 U.S. 289, 295, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). The IIRIRA, which became effective in April 1997, repealed § 212(c) and replaced it with § 240A. Under the current provision, the Attorney General may cancel removal of an alien who has been an LPR for not less than five years, has resided continuously in the United States for seven years after having been admitted, and "has not been convicted of any aggravated felony." INA § 240A(a); see Ponnapula v. Ashcroft, 373 F.3d 480, 486 (3d Cir.2004). In addition, an alien "who has been granted relief under section 212(c)" is ineligible for cancellation of removal. § 240(c)(6) [8 U.S.C. § 1229b(c)(6)].
8
The government acknowledges that "[t]here is no question that Rodriguez-Munoz is eligible to apply for a [§ 212(c)] waiver of deportation concerning" his 1992 conviction. See Appellee's Brief, 11. Indeed, under INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), " § 212(c) relief remains available for aliens whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." 533 U.S. at 326, 121 S.Ct. 2271. According to St. Cyr, "the elimination of any possibility of § 212(c) relief by IIRIRA has an obvious and severe [and impermissible] retroactive effect." Id. at 325, 121 S.Ct. 2271.
9
Importantly, however, Rodriguez-Munoz would not be eligible for cancellation of removal, which he also needs to prevail. The language of § 240A(a) is clear: The Attorney General may cancel removal only if an LPR "has not been convicted of any aggravated felony." Rodriguez-Munoz apparently did not argue before the BIA that his 1992 conviction is not an aggravated felony, nor does he raise such an argument on appeal. See Miah v. Ashcroft, 346 F.3d 434, 439 n. 2 (3d Cir.2003). Instead, he contends that his 1992 conviction, once waived under § 212(c), could not be considered when evaluating whether he was eligible for cancellation of removal under § 240A.
10
As the BIA has explained, however, "[t]he grant of a section 212(c) relief merely waives the finding of deportability rather than the basis of the deportability itself. Therefore, the crimes alleged to be grounds for deportability do not disappear from the alien's record for immigration purposes." Matter of Balderas, 20 I. & N. Dec. 389, 391 (BIA 1991); see Molina-Amezcua v. I.N.S., 6 F.3d 646, 647 (9th Cir.1993) ("A waiver of deportation gives the alien a chance to stay in the United States despite his misdeed, but it does not expunge the conviction."). Thus, even if Rodriguez-Munoz's deportation based on his 1992 conviction were waived under § 212(c), that conviction would nonetheless remain an aggravated felony for purposes of precluding his application for cancellation of removal under § 240A.
11
Rodriguez-Munoz relies on Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993), in which the BIA permitted the alien to simultaneously apply for adjustment of status under § 245(a) and for waiver of deportation under § 212(c). See Gabryelsky, 20 I. & N. Dec. at 756. In that case, however, the BIA based its conclusion on a regulation permitting combined § 245(a) and § 212(c) applications, and on the fact that the granting of each form of relief made the alien statutorily eligible for the other form. Id. at 754-56. Here, by contrast, a waiver of deportation under § 212(c) would not make Rodriguez-Munoz eligible for § 240A relief.
12
For the reasons that we have given, we will deny the petition for review.
Notes:
*
Pursuant to F.R.A.P. 43(c)
1
This case was originally filed as an appeal of an order of the United States District Court for the District of New Jersey denying Rodriguez-Munoz's petition for a writ of habeas corpus. We recently held, however, that habeas appeals, such as Rodriguez-Munoz's, "that were pending before this Court on the effective date of the Real ID Act of 2005 [Pub.L. 109-13, 119 Stat. 231] are properly converted to petitions for review and retained by this Court."See Bonhometre v. Gonzales, 414 F.3d 442, 444 (3d Cir.2005).
2
We recognize, of course, that the Department of Homeland Security has taken over the responsibilities of the former INSSee Ambartsoumian v. Ashcroft, 388 F.3d 85, 95 n. 6 (3d Cir.2004).
3
These provisions have been redesignated INA §§ 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) [8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1227(a)(2)(B)(i)], respectively
4
Repapering is a process whereby the deportation or exclusion proceedings are administratively closed and the government initiates removal proceedings to allow aliens to apply for cancellation of removal under INA § 240A, a form of relief that was not available when they were charged with deportation or exclusionSee Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") § 309(c)(3).
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548 S.W.2d 492 (1977)
Mildred Disch WILLIAMS, Appellant,
v.
ESTATE of William Wesley WILLIAMS, Sr., et al., Appellees.
No. 12511.
Court of Civil Appeals of Texas, Austin.
March 9, 1977.
Rehearing Denied March 30, 1977.
Charles G. Trenckmann, Austin, for appellant.
Malcolm Robinson, Karl H. Moeller, Hooper, Robinson & Moeller, Austin, William Wesley Ogden, Jr., Law Student, for appellees.
PHILLIPS, Chief Justice.
The question before this Court is whether a party can, by premarital contract, relinquish her right, as surviving spouse, to occupy the homestead, use its furnishings and use the family car.
The trial court held such a contract valid and binding on the appellant. We reverse this judgment and hold the contract to have no force and effect on appellant's constitutional and statutory rights in the properties.
The facts necessary to the disposition of this case are as follows. Appellant and William Wesley Williams executed a premarital agreement among the provisions of which appellant promised to relinquish her homestead right in the above-mentioned properties. The parties were married and Mr. Williams died four months later.
Appellant then decided to exercise her homestead rights in her deceased husband's home and also her statutory rights with respect to the furniture and the family car.
This suit was brought by the deceased's grown children, beneficiaries under his will, to evict appellant from the homestead and to gain possession of the furniture and car.
Vernon's Ann.Tex.Const. art. 16, § 52 (1955) restricts the partitioning of the homestead among the heirs of the deceased during the lifetime of the surviving husband or wife, for so long as the survivor may elect to use or occupy the same as a homestead.
*493 It is undisputed that the automobile and household furnishings here in controversy are exempt property within the meaning of Tex.Rev.Civ.Stat.Ann. art. 3836 (1966) and constitute homestead property.
There are no cases in Texas involving the validity of premarital contracts waiving the surviving spouse's right to the homestead. This question has been decided in other states, although there is a division of authority thereon.
The courts of Kansas prohibit such agreements on the basis that the surviving spouse's homestead rights were superior to any right granted or denied in premarital contracts. Boulls v. Boulls, 137 Kan. 880, 22 P.2d 465 (1933); Hoard v. Jones, 119 Kan. 138, 237 P. 888 (1925); Watson v. Watson, 106 Kan. 693, 189 P. 949 (1920); In re Neis' Estate, 170 Kan. 254, 225 P.2d 110 (1950). The courts of North Dakota and Vermont hold that the homestead right cannot be waived, even by antenuptial agreement prior to the appropriate time for claiming it. See Swingle v. Swingle, 36 N.D. 611, 162 N.W. 912 (1917), and Mann v. Mann's Estate, 53 Vt. 48 (1880). North Dakota also holds that antenuptial agreements waiving or relinquishing homestead rights are void as against public policy. For states that allow the surviving spouse to waive homestead rights under the facts of this case, see In re Moore's Estate, 210 Or. 23, 307 P.2d 483, mandate recalled 210 Or. 23, 308 P.2d 180 (1957); In re Appleby's Estate, 100 Minn. 408, 111 N.W. 305 (1907); In re Devoe's Estate, 113 Iowa 4, 84 N.W. 923 (1901); In re Howe's Estate, 81 Cal.App.2d 95, 183 P.2d 329 (1947); and Colbert v. Rings, 231 Ill. 404, 83 N.E. 274 (1907).
Texas, by law, permits certain premarital agreements.[1] In addition, the doctrine of waiver is generally applicable to all rights or privileges to which a person is legally entitled whether secured by contract, conferred by statute or guaranteed by the Constitution.[2] However, in Texas, in order to waive a right, such right or privilege must be in existence at the time of the waiver. See Payne v. Beaumont, 245 S.W. 94 (Tex.Civ.App.1922, writ ref.); Aetna Life Insurance Co. v. Eilers, 367 S.W.2d 732 (Tex.Civ.App.1963, writ ref.); and Pennzoil v. Socony Mobil Oil Co., 421 S.W.2d 416 (Tex.Civ.App.1967, no writ). A person cannot waive a right before being in a position to assert it. King v. Lacy, 17 S.W. 143 (Tex.Civ.App.1891); Staples v. Railroad Commission, 358 S.W.2d 706 (Tex.Civ.App. 1962, writ ref. n. r. e.).
The homestead right in a survivor does not exist until the death of one of the spouses. Vernon's Ann.Tex.Const. art. 16, § 52 (1955). Consequently, the premarital contract here allegedly waiving appellant's homestead rights is unenforceable because it purports to waive a right not then in existence.
The judgment of the trial court is reversed and judgment here rendered that appellees take nothing by their suit and that appellant has homestead and statutory rights in the residence, its furnishings and the car.
NOTES
[1] Tex.Family Code Ann. § 5.41 (1975).
[2] Zurich General Accident & Liability Insurance Co. v. Fort Worth Laundry Co., 63 S.W.2d 236 (Tex.Civ.App.1933, no writ).
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-2520
___________
Minor Lee McNeil, *
*
Appellant, *
* Appeal from the United States
v. * Tax Court.
*
Commissioner of Internal Revenue, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: January 4, 2012
Filed: January 10, 2012
___________
Before WOLLMAN, SMITH, and GRUENDER Circuit Judges.
___________
PER CURIAM.
Minor McNeil challenges the tax court’s1 decisions upholding determinations
by the Commissioner of Internal Revenue that he was liable for deficiencies in income
taxes, additions to tax, and penalties for filing frivolous tax returns for the 2006 and
2007 tax years. Having carefully reviewed the record and the parties’ arguments on
appeal, see Campbell v. Comm’r, 164 F.3d 1140, 1142 (8th Cir. 1999) (tax court’s
findings of fact are reviewed for clear error, and its legal conclusions are reviewed de
novo), we agree with the tax court’s decisions and find no basis for reversal, see Page
v. Comm’r, 823 F.2d 1263, 1272 (8th Cir. 1987) (Commissioner’s additions to tax
1
The Honorable David Laro, United States Tax Court Judge.
was entitled to presumption of correctness, and appellants bore burden of proving
such determinations were improper); Denison v. Comm’r, 751 F.2d 241, 242 (8th Cir.
1984) (rejecting as frivolous taxpayer’s arguments that wages were not income and
that Code was unconstitutional to extent it imposed tax on income from services); cf.
United States v. Marston, 517 F.3d 996, 1001 (8th Cir. 2008) (in appeal from
conviction for tax evasion, noting that tax return containing only zeros and no
information regarding gross income or deductions claimed, or only protest
information, is not considered valid return).
In addition, we conclude that the tax court did not abuse its discretion in its
evidentiary rulings. See Sparkman v. Comm’r, 509 F.3d 1149, 1156 (9th Cir. 2007)
(tax court’s evidentiary rulings are reviewed for abuse of discretion and will not be
reversed absent showing of prejudice).
Accordingly, we affirm. See 8th Cir. R. 47B. We also deny the pending
motions.
______________________________
-2-
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215 Md. 373 (1958)
137 A.2d 695
SHAPIRO ENGINEERING CORPORATION
v.
FRANCIS O. DAY CO., INC.
[No. 125, September Term, 1957.]
Court of Appeals of Maryland.
Decided January 22, 1958.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Sheldon E. Bernstein, with whom were Jackson Brodsky, David G. Bress and Mark B. Sandground on the brief, for the appellant.
James R. Miller, with whom were Lee C. Miller and James R. Miller, Jr., on the brief, for the appellee.
HENDERSON, J., delivered the opinion of the Court.
This appeal in a non-jury case is from a judgment for $12,412.23, in an action for breach of a written contract, dated December 2, 1954, whereby the appellee, plaintiff, agreed to construct storm sewers in Oakwood Knolls Subdivision, Bethesda, Maryland, and the appellant, defendant, to pay therefor an aggregate price of $43,000.00 The subdivision was laid out in two sections. Lots had been sold and some houses were under construction in the first section, so that construction was urgent. No lots had been sold in Section II. After completing substantially all of the work in the first section, the plaintiff declined to perform the work in the second section, on the ground that the defendant had failed to pay for the work performed and materials furnished in the first section, and had failed to obtain the necessary permits to enable it to perform the work in the second. It brought suit to recover the balance due and damages. The appellant defended on the ground that it was justified in refusing payment until all the work was fully completed, alleging that the contract was entire and indivisible, and that the *376 plaintiff committed an anticipatory breach of the contract by indicating its intention not to proceed with work in the second section at a time when there was a bona fide dispute as to payment for the work completed. The appellant also contends that the court applied the wrong measure of damages, and the proof did not support the damages allowed.
The contract is not a model of clarity. The construction work was required to be in conformity with the standards and specifications of the Montgomery County Department of Public Works and in conformity with a permit issued November 12, 1954, by the State Roads Commission. Under the heading "ARTICLE II, SCHEDULE OF PAYMENTS", it was provided that the builder "shall submit a requisition for any portion of his work completed thru 25th of each month in accordance with this schedule of payments and shall be paid for the requisition on the following 10th of month (less 10%) and title to all said material, whether placed in warehouse or on building site or building itself shall immediately vest in the owner of the property". A form of progress payments was deleted, and typed in its place was the following: "The work completed for any monies requisitioned shall have the same ratio to the total work and the total contract price respectively." Article I C. provided: "The term work as referred to herein shall include all labor, material, and equipment necessary to the prosecution of this contract." (Italics supplied.) Another article provided that final payment was to be made on the 10th of the month following acceptance by the public authorities. Work was to commence not later than December 6, 1954, and that portion outlined on a designated "Paving Plan" was to be completed within forty working days. Presumably, this referred to Section I. There was no provision as to the time for commencing or completing Section II, although there was testimony of an oral understanding that the builder would proceed with Section II as soon as Section I was completed.
Attached to the contract was an addendum, signed by the defendant only, wherein the defendant undertook to furnish an engineer who would supply cut sheets and do all layout work. The addendum also provided that if rock was encountered *377 a price for its removal would be negotiated. The addendum also contained this clause: "Section I which is outlined on the Paving Plan shall amount to Twenty three thousand dollars ($23,000.00), and Section II will amount to Twenty thousand dollars ($20,000.00), for purposes of paying on account of this contract only."
The plaintiff began work immediately, but there were delays occasioned by the failure of the engineer supplied by the defendant, as the trial court found, to perform his work "with that degree of skill which the plaintiff had a right to expect". Specifically, the complaints were that the outlets were not properly staked out on the ground, and that the outfall shown on the plan was actually located on the property of an adjoining owner. On December 26, 1954, the plaintiff submitted its bill for $11,681.00 for work allegedly performed in accordance with the contract. On January 13, 1955, the defendant paid $10,619.00 on account, with an accompanying letter in which it complained that the requisition set forth quantities of material, labor, equipment and profit, and deducted 10% from the gross amount. The letter stated that the requisition "has no bearing on the contract because the contract is a lump sum contract with payments due on the tenth of the month for any portion of the work completed through the 25th of the previous month less 10% retainer for final payment. Based on the above we estimate your completion as of December 25, 1954 as 51.3% for a gross amount due $11,719.00 (sic) less retainer of $1,179.90, making an amount due this payment of $10,619.10 for Section 1."
On January 25, 1955, the plaintiff submitted its bill for $8,439.00 for additional work claimed to have been completed. This bill was not paid, nor was any explanation given as to why it was not paid. The plaintiff claims that it had then completed all of the work in Section I which it could perform, and that it could not finish the work completely because the outfall shown on the plan was actually located on the land of another owner, who would not permit it to enter until a right of way was procured. This right of way had apparently not been obtained at the time suit was filed on June 28, 1955. The plaintiff also claims that no *378 permit had been procured for the work in Section II, and that in fact no permit was obtained until the summer of 1955.
No payment has ever been received on the requisition of January 25, 1955. There was testimony that the plaintiff declined to do the work in Section II because of the failure to pay for the work performed in Section I, and because of the failure to procure a permit for Section II within a reasonable time. There was testimony that it kept equipment on the job for at least a month after Section I was completed. (This was probably in April, after the County's approval was obtained for all the work, except the outfall.) The defendant maintained that its reason for not paying the requisition was because the plaintiff had declared its intention not to go ahead with the work in Section II, which it relies on as an anticipatory breach. It also claimed that some of the work done in Section I was not up to standard, that the requisition was not based on work completed, and that there were offsets to the claim. It is undisputed, however, that no permit for the work in Section II was obtained until June 27, 1955, the last permit being in September, 1955.
The trial court found no justification for the failure of the defendant to pay the requisition of January 25, 1955, or a substantial part thereof. We agree. The items set out in the requisitions were within the fair meaning of "work" as defined, and the fact that title passed as to materials not yet in place supports this construction. The garbled clause as to a ratio between total work and total contract price could hardly change the meaning of "work completed" into a percentage of overall completion of the contract. Moreover, there was no compliance with the obligation to pay the second requisition, even on the defendant's theory of the case. The trial court found this to be a breach of the contract which justified the plaintiff in his refusal to perform further. There was no evidence that the plaintiff made any declaration of his intention not to perform until about the time suit was filed, and this is a sufficient answer to the claim of anticipatory breach on the part of the plaintiff. Plaintiff could not be compelled to go ahead with the work in Section II until permits were procured, nor was it required to trespass *379 on the land of an adjoining owner. Baltimore Luggage Co. v. Ligon, 208 Md. 406, 417.
Failure to pay an installment due on a building contract is generally held to be such a material breach as to excuse further performance by the builder. Guerini Stone Co. v. Carlin Constr. Co., 248 U.S. 334, 344; 3 Corbin, Contracts, § 692; 3 Williston, Contracts (Rev. Ed.), § 866. This may be true, even if the contract were divisible. See 3 Williston, Contracts (Rev. Ed.), § 887D. Among other remedies that a builder may pursue is the remedy of a suit for damages for a total breach, which would ordinarily be the unpaid contract price less the reasonable cost of completion of the work unperformed. Hammaker v. Schleigh, 157 Md. 652, 668, 670; Bush v. Construction Co., 88 Md. 665, 668; 3 Corbin, Contracts, § 693; 3 Williston, Contracts (Rev. Ed.), §§ 805, 842.
The appellant does not contest the allowance of $248.10 for extra work due to encountering rock. The trial court disallowed claims by the plaintiff of $1,000.00 damages for delay in the work performed, because not clearly proved, and $3,000.00 for loss of profits in Section II. In the light of testimony as to increase in the cost of pipe and labor, the trial court found there was no sufficient proof that the plaintiff would have made a 15% profit, or any profit, on Section II. He arrived at the verdict by adding the cost of the extra work to the contract price for Section I, $23,000.00, deducting the payment of $10,619.10 on account, and the defendant's estimate of the cost of completing the outfall, $1,406.39 (the plaintiff's estimate had been about $700.00), and disallowing an offset of $478.16 claimed as the cost of removing excess dirt. To the sum thus found, $11,222.61, he added interest from June 28, 1955, the date when suit was filed. In his opinion the trial court said: "The defendant, of course, contends that against any amount that may be due on Section 1, it is entitled to offset the amount it has cost the defendant to perform the work in Section 2. * * * If the plaintiff was justified in this refusal, then there obviously can be no allowance to the defendant for any excess cost that may have been sustained by the defendant in completing *380 the work in Section 2, which excess cost was brought about by its own breach of the contract." Whether this is a correct statement of the law we need not now decide. Cost of completion of an indivisible contract is usually allowed as an offset, particularly where there has not been a complete performance by the builder, or he is in default. The effort is to avoid unjust enrichment to either party under such circumstances. Cf. H.J. McGrath Co. v. Wisner, 189 Md. 260, 268.
The appellant's main contention is that the contract was entire and indivisible, and therefore the reasonable cost of completing the work in Section II should have been deducted from the total contract price of $43,000.00. No direct testimony was offered by the plaintiff as to such cost, and the estimate offered by the defendant for performing the work in Section II was $27,346.55. It contends that the court did not apply the proper measure of damages, and erred in making no finding as to the cost of completing the work in Section II. Both these contentions rest on the assumption that the contract was indivisible. If the contract could be regarded as divisible, the cost of performing the work in Section II might properly be disregarded, no profit being allowed on it, and the court having allowed a deduction for completing the outfall in Section I.
It is the general rule that "where a total price for work is fixed by a contract, the work is not rendered divisible by the progress payments, particularly where the contract provided that the total price is not to be paid until the work is completed." Westinghouse v. State Tax Comm., 206 Md. 392, 402, and cases cited. See also Heinse v. Howard, 153 Md. 380, and Note 22 A.L.R.2d 1343. Restatement, Contracts, § 266(3), comment e, defines a divisible contract as one where performance of each party is divided into two or more parts, the number of parts due from each party is the same, and the performance of each part by one party is the agreed exchange for a corresponding part by the other party. Comment f, states that "It is a question of interpretation whether a contract is divisible." See Durant v. Snyder, 151 P.2d 776 (Idaho); and Schminke Milling Co. v. Diamond *381 Bros., 99 F.2d 467 (C.C.A. 8th). Corbin takes the view that interpretation and intention should play only a limited part in the decision, which should depend upon the particular facts and the object to be attained. 3 Corbin, Contracts, § 694. Williston agrees that a contract may be entire in some aspects and divisible in others. 3 Williston, Contracts (Rev. Ed.), § 866. Cf. 5 Williston, Contracts (Rev. Ed.), § 1363. Corbin recognizes that although a provision for progress payment alone may not make a contract divisible, in a building contract the work and price may be apportioned into pairs. See Bianchi Bros. v. Gendron, 198 N.E. 767 (Mass.); Carrig v. Gilbert-Varker Corporation, 50 N.E.2d 59 (Mass.); New Era Homes Corporation v. Forster, 86 N.E.2d 757 (N.Y.); Rentways, Inc. v. O'Neill Milk & Cream Co., 126 N.E.2d 271 (N.Y.); Blythe v. Embry, 61 So.2d 142 (Ala. App.). In this connection see also Rodemer v. Hazlehurst & Co., 9 Gill 288, 295.
In the instant case we find no error in the allowance made. The contract itself made an apportionment for purposes of payment, and upon the facts stated the two parts of the work were separate and distinct. Moreover, it is significant that in its letter of January 10, 1955, enclosing part payment of the first requisition, the appellant, while differing as to the mode of calculation, based its estimate of completion on the completion of Section I, and not on completion of the whole contract. The letter stated: "we estimate your completion as of December 25, 1954 as 51.3% for a gross amount due $11,719.00 (sic) less retainer of $1,179.90, making an amount due this payment of $10,619.10 for Section 1." 51.3% of $23,000.00 is $11,799.00, and the payment is "for Section 1". In short, the defendant itself recognized that the payments on account would completely pay for the first section, without regard to the completion of Section II. A clearer acknowledgment of the severability of the contract in relation to payment can hardly be imagined.
Judgment affirmed, with costs.
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352 N.W.2d 409 (1984)
PARK-LAKE CAR WASH, INC., Appellant,
v.
Arthur J. SPRINGER, et al., Respondents.
No. C3-83-458, C7-83-706.
Supreme Court of Minnesota.
August 3, 1984.
Rehearing Denied September 6, 1984.
*410 Josiah E. Brill, Jr., Minneapolis, for appellant.
Douglas R. Rainbow, Minneapolis, for respondents.
Considered and decided by the court en banc without oral argument.
WAHL, Justice.
Appellant Park-Lake Car Wash (Park-Lake) sued Arthur J. Springer in Hennepin County District Court for specific performance of a contract for the sale of real estate. The trial court determined that no contract ever arose, because Park-Lake failed to effectively exercise its right of first refusal on sale of the property, and granted summary judgment for Springer. Park-Lake appealed to this court and moved in district court to vacate the summary judgment or to condition dismissal on the return of the $8,500 in earnest money still held by Springer. The trial court denied the motion for lack of jurisdiction once the appeal was filed. Park-Lake filed a second notice of appeal from that decision. We reverse.
Park-Lake Car Wash, formerly Automatic Car Wash, Inc., leased the property on which it was located from Arthur J. Springer under a lease which was due to expire on June 30, 1983, The original lease, signed between Springer and Automatic Car Wash in 1953, was for a 10-year period, with the tenant having the option to extend the lease for two additional 10-year periods on the same terms except for renegotiation of the rent at each extension. The original lease also required the construction of a carwash by Automatic according to specifications in the lease.
The parcel leased was the west one-half (W ½) of three lots. Springer also owned the east one-half (E ½) of the three lots. The lease requires that the tenant pay, "as further rent," the real estate taxes on both the W ½ (the parcel leased) and the E ½ (the adjoining parcel).
Article IV(d) of the lease contains a right-of-first-refusal provision (in favor of the tenant) with regard to the sale of the W ½ and the E ½. This provision is central to this dispute and reads:
Lessor shall not sell either the leased premises or the said adjoining premises without first giving Tenant the privilege to purchase the same at the best bona fide offer by the lessor [sic] at any time during the period or extended period of this lease. Said offer shall be accompanied by a certified or cashier's check of the offeror of at least 10% of the offered sale price. Written notice of such offer and a photostatic copy of said check shall be sent to the Tenant, who shall, within thirty (30) days after receipt of such notice remit a cash payment to Lessor equal to 10% of such offer, and the cash balance of said sale price within forty-five (45) days following such remittance.
This clause was bargained for and included in the lease to allow Park-Lake the opportunity to protect its capital investment.
In 1979, Springer received an offer for the E ½ from Jack and Boneigh Christy (the Christys). He gave notice to Park-Lake pursuant to the right-of-first-refusal provision in the lease. Park-Lake declined to exercise its right to purchase that parcel. Springer subsequently sold the E ½ to the Christys by a contract for deed.
On July 9, 1980, Springer received an offer from the Christys, in the form of a purchase agreement, to purchase the W ½ parcel. The terms of the Christys' offer included a contract for deed and an extra payment to Springer of an amount equal to the amount of real estate taxes on the W ½ each year until the expiration of Park-Lake's lease in 1983. This extra payment was not for taxes but was an extra benefit to Springer. Park-Lake had the responsibility *411 for the taxes on both the W ½ and the E ½ under the lease. The offered purchase price for the W ½ was $85,000.
Springer sent copies of the proposed purchase agreement, the proposed contract for deed and the 10% earnest money check to Park-Lake pursuant to the right-of-first-refusal provision of the lease. Park-Lake decided to exercise its right and replied on August 4, 1980, saying it would purchase the parcel for $85,000 cash. Springer advised Park-Lake that unless it remitted a cash payment of 10% of the offer in accordance with the terms of the lease and carried out the "other requirements relating to the exercise of [Park-Lake's] privilege to purchase under the lease," the West ½ would be sold to the Christys. Park-Lake responded, by letter dated August 4, 1980, that it would exercise its option to purchase the property for $85,000 cash. Enclosed in the letter was a bank money order for $8,500 (10% of the purchase price). The letter also stated that Park-Lake anticipated closing within 45 days, at which time it would remit the remainder of the $85,000. Park-Lake's attorney, hand-delivering a copy of the letter to Springer's attorney, was told by Springer's attorney that a cash payment was unacceptable to Springer and that Park-Lake was obliged to match the extended payment terms as set out in the Christy purchase agreement.
On August 6, Park-Lake sent a second letter, amending the first, to exercise the right of first refusal by accepting all the terms of the Christy's proposed purchase agreement and contract for deed.
Following this second letter there ensued several conversations between the attorneys as to the terms of the purchase agreement, especially as regarding the payment of an amount equal to the real estate taxes through the end of the lease. Once the lease was terminated, Park-Lake would no longer be responsible for the taxes under the lease. Springer argued that he would be denied the extra benefit of the amount of the real estate taxes because under the terms of the contract for deed he would have to use the extra payment to pay the taxes if they were not otherwise paid. The amount was not insignificant, because there were three years remaining on the lease. Park-Lake maintained that it had no further obligation under the right-of-first-refusal provision of the lease than to accept the exact offer of the Christys, including the provision that the buyer would pay taxes by paying an amount equal to the taxes to Springer regardless of whether the taxes were paid by some other source. Springer demanded a modified contract for deed that would continue to hold Park-Lake responsible for paying real estate taxes as well as for the extra payment to Springer. Park-Lake refused the demand, and Springer sold the parcel to the Christys.
Park-Lake sued to have the terms of the original purchase agreement enforced. The trial court determined that no contract ever arose between Springer and Park-Lake because the August 4 letter constituted a counteroffer, not an acceptance, and terminated Park Lake's right of first refusal, making the August 6 letter inoperative as an acceptance.
We must determine on this appeal whether the tenant, Park-Lake, properly exercised its right of first refusal under the lease to purchase the leased premises so as to be entitled to specific performance of the contract thereby created. The right-of-first-refusal provision in the lease is similar to an option contract. The difference is that the right of first refusal requires a condition precedent before it may be exercised. 11 S. Williston, A Treatise on the Law of Contracts, § 1441A (3d ed. 1968 & Supp.1983). The condition precedent is that the owner must have received a bona fide offer from a third party which he or she is willing to accept. Otherwise a right of first refusal is a binding option contract so long as it, like any other option, is bargained for and is given in return for consideration.
Springer argues at the outset that the first-refusal provision is ambiguous and, therefore, unenforceable. He asserts that the provision sets out that the tenant must match the terms of the best bona fide *412 offer but then goes on to contemplate a cash transaction. He contends that the two provisions are irreconcilable and create an ambiguity, which makes the entire provision void, at least in the context where the third party is offering an installment payment transaction. We do not agree. The actual language of the provision is that the tenant may purchase either the leased premises or the adjoining premises "at the best bona fide offer" and, further, that within 30 days after receipt of the notice of the offer, the tenant shall "remit a cash payment to Lessor equal to 10% of such offer and the cash balance of said sale price within 45 days following such remittance." The possible ambiguity is in the word "offer," which is usually interpreted to include all the terms of the offer. Minar v. Skoog, 235 Minn. 262, 50 N.W.2d 300 (1951). By using the phrase, "at the best bona fide offer" (emphasis added), however, in connection with the cash payment provision, the parties clearly indicated that the word "offer," in the context of this lease provision, meant the amount of the purchase price offered, not the terms of the offer, and that a cash transaction was contemplated.
It is true that the right of first refusal in Minar was interpreted to mean that the holder of the right must match the terms of the offer with exactitude. Id. at 265, 50 N.W.2d at 302. The lease provision in Minar, however, provided only that "[i]f the lessor * * * elects to sell said building, the lessees shall have the first option of purchasing the same." Id. at 263, 50 N.W.2d at 301. The acceptance of the tenant in that case had to mirror exactly the offer of the lessor. The right-of-first-refusal provision in the instant case, however, requires that the holder match the purchase price offered by the third party to the lessor in a cash transaction. The fact that the parties contracted for this specific provision does not make it ambiguous.
Park-Lake's August 4, 1980, letter notified Springer that Park-Lake was exercising its right of first refusal to purchase for the price offered by the Christys ($85,000), tendered 10% of the purchase price and stated that it anticipated closing the cash transaction within 45 days. While this letter does not match the exact terms of the Christys' offer, it does exactly follow the requirements of the first-refusal provision in the lease. The continuing, irrevocable offer from the lessor requiring acceptance by the lessee to create a valid contract was, by virtue of the first-refusal lease provision bargained for by the parties, an offer to sell the leased property in a cash transaction at the purchase price offered by a third party. On its face, the letter did not constitute a counter offer but effectively exercised the right of first refusal and was "unequivocally expressive of an intent to create thereby, without more, a contract." Minar, 235 Minn. at 266, 50 N.W.2d at 302 (emphasis in original). The letter constituted a valid acceptance which created a contract not subject to rejection and not requiring further approval by the lessor. Id. We hold that Park-Lake effectively exercised its contractual right of first refusal by following exactly the procedures outlined by the lease provision and thereby created a contract for the purchase of the leased premises.
The parties immediately on delivery of the August 4 letter mutually modified that contract to conform to the exact terms of the Christys' purchase agreement with Springer. That modification, for such it was rather than a second attempt to exercise the right of first refusal, was set out by Park-Lake in its letter to Springer dated August 6, 1980. Springer's further attempt to modify the contract by adding a term to the agreement with Park-Lake that was absent from the Christys' purchase agreement was rejected by Park-Lake. We hold that Park-Lake is entitled to specific performance of the modified contract, documented in the August 6, 1980, letter, which incorporated the exact terms of the Christys' purchase agreement.
Springer and the trial court were concerned that if Park-Lake purchased the property by matching the exact terms of the Christys' offer, Park-Lake would no *413 longer be required to pay the taxes it paid as lessee. Springer would then have to use the amount equal to the amount of real estate taxes on the W ½ under the purchase agreement to pay those taxes and would be denied this further benefit he would have received had the Christys been the purchasers. This consideration, in our view, is not relevant to whether a valid contract was created by Park-Lake's exercise of its right of first refusal. Springer knew of that right of first refusal and should have known that once Park-Lake's obligations under the lease ceased by operation of law when Park-Lake acquired the fee interest, Park-Lake could no longer be required to pay the real estate taxes under the lease from that point on. Springer could have structured the agreement with the Christys so that the result for him would have been the same regardless of whether the eventual purchaser was Park-Lake or the Christys.
Because there existed a binding, executory contract between the parties, we reverse the order of the district court dismissing Park-Lake's complaint with prejudice and granting summary judgment for Springer. We remand the case for a determination of other issues raised and not decided below.
Reversed and remanded.
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744 P.2d 166 (1987)
STATE of New Mexico, Plaintiff-Appellant,
v.
David Leon CHEADLE, Defendant-Appellee.
No. 16919.
Supreme Court of New Mexico.
October 7, 1987.
Hal Stratton, Atty. Gen., William Primm, Asst. Atty. Gen., Santa Fe, Steven Schiff, Dist. Atty., Harry Zimmerman, Asst. Dist. Atty., Albuquerque, for plaintiff-appellant.
Jacquelyn Robins, Chief Public Defender, Lynn Fagan, Appellate Defender, Benjamin A. Gonzales, Asst. Appellate Defender, Santa Fe, for defendant-appellee.
OPINION
SOSA, Senior Justice.
Defendant originally was sentenced on February 22, 1982 in the Second Judicial District by Judge Stowers to various terms for three non-capital offenses, and to death for the offense of murder. Judge Stowers further ruled that all sentences were to run concurrently. Two years later the defendant moved to have the death sentence set aside on grounds of ineffective counsel. Judge Ashby was then assigned the case, and he granted defendant's motion to set aside the death penalty and ordered a new hearing as to the sentence. The jury at the second sentencing hearing was unable to reach a verdict, and thus Judge Ashby sentenced the defendant to life imprisonment, ruling that the sentence was to run concurrently with the defendant's other prior sentences. The State filed a motion for reconsideration of the concurrent life sentence, seeking to have that sentence run consecutively with the remainder of defendant's other sentences. Judge Ashby denied the State's motion, ruling as follows:
The Court is ready to rule. I have anticipated these arguments and have considered them. In the Court's opinion, this is not a matter of discretion. If the Court were to exercise its discretion in this matter, the Court might very well impose an enhanced sentence, if I could, having heard all the facts and having listened to the evidence, not only of the *167 original trial by tapes, but of the sentencing hearing over which I presided.
However, I don't think I have any jurisdiction in this case to impose a sentence greater than that sentence which was imposed by Judge Stowers.
The only matter before this Court was that of whether or not the jury was going to bring in a death sentence or a life sentence for [defendant]. The jurisdiction of this court was limited, in my opinion, to that issue.
Therefore, I believe State v. Allen is controlling * * *. I want to make it very clear that I am not exercising my discretion in this matter, and I want to make it very clear, if I were exercising any discretion, I might very well impose an enhanced sentence. I don't think I have the power to do so. And therefore, the motion is denied.
The present appeal followed. We affirm. The issues on appeal may be consolidated under a single heading.
The State's Right to Appeal as it Relates to the Double Jeopardy Issue.
A. Defendant contends that the State has no right to appeal, relying on NMSA 1978, Section 39-3-3(B), which grants the State the right to appeal an order dismissing an indictment or information, or to appeal an order of a district court suppressing or excluding evidence. Subsection (C) prohibits appeals "when the double jeopardy clause of the United States Constitution or the Constitution of the State of New Mexico prohibits further prosecution." § 39-3-3(C). The New Mexico Constitution, art. VI, section 2 provides, "an aggrieved party shall have an absolute right to one appeal." Since subsection (B) of Section 39-3-3 does not apply, we are left with the questions of whether the State is an "aggrieved party" and whether double jeopardy provisions prohibit the State's appeal.
In State v. Aguilar, 95 N.M. 578, 624 P.2d 520 (1981), we held that the State was an aggrieved party with a right to appeal within the meaning of article VI, section 2, where the trial court had ruled unconstitutional a mandatory incarceration provision in a statute relating to firearm enhancement. In that case we limited our ruling to a situation in which the State had a "strong interest in the enforcement of its statutes" and explicitly limited our holding to the facts of that case. Id. at 579, 624 P.2d at 521. Here no statute is involved.
The court of appeals has ruled in like manner that the State may appeal an adverse ruling in a criminal case where the State makes "a claim [that there was a] * * disposition [in the trial court] contrary to law." State v. Santillanes, 96 N.M. 482, 486, 632 P.2d 359, 363 (Ct.App. 1980) modified, 96 N.M. 477, 632 P.2d 354 (1981). The defendant here argues that since no statute is involved and since the trial court's sentencing of the defendant was not contrary to law, the State is not an aggrieved party and may not proceed on appeal. The State contends that the trial court's failure to exercise its discretion was an action contrary to law, although it can find no statute or New Mexico decision to support this proposition.
In its ruling of December 10, 1986, the trial court relied on State v. Allen, 82 N.M. 373, 482 P.2d 237 (1971). In that case, we held that the trial court committed error in changing the defendant's sentence from what it was originally not less than three years nor more than fifty years to not less than three years nor more than life imprisonment. The trial court's decision in Allen to change the sentence followed a series of post-conviction motions in which defendant had sought to vacate judgment and sentence. The defendant had been incarcerated for some eight years when the trial court denied the defendant's last motion and increased the term of the defendant's sentence. In remanding the case to the trial court for proper resentencing, we held:
Although the trial court could have sentenced defendant in the original instance to not less than three years nor more than life imprisonment, it did not. Clearly, it cannot do now what it should have, or at least could have, done [eight years earlier, at the original sentencing]. The original sentence was in fact valid and *168 we concede the correctness of the holding in State v. Baros, 78 N.M. 623, 435 P.2d 1005 (1968), that `* * * a trial court is without power to set aside a valid sentence after the defendant has been committed thereunder, and impose a new or different sentence increasing the punishment.'
Id. at 374, 482 P.2d at 238.
Our decision in Allen was based on the guarantee against double jeopardy provided by the fifth amendment to the United States Constitution and by art. II., section 15, of the New Mexico Constitution. In assessing the trial court's conduct here as to the sentencing of defendant, we must not become so involved in procedural niceties related to the court's exercise of discretion as to overlook the more fundamental double jeopardy issue. As stated above, Section 39-3-3(C) precludes an appeal by the State when the constitutional guarantee against double jeopardy prohibits further prosecution. Thus, the issue of double jeopardy and not the issue involving the State's status as an aggrieved party is the more basic issue presented on appeal one that disposes of and takes precedence over the other issues. Hence, we turn our attention to that issue.
B. The defendant argues that even assuming the State has a right of appeal and the trial court properly exercised its jurisdiction in considering the State's motion, the trial court nonetheless is prohibited from resentencing the defendant so that his life sentence runs consecutively with his other sentences. The defendant relies on State v. Baros, State v. Allen, and State v. Verdugo, 79 N.M. 765, 449 P.2d 781 (1969). In the latter case, the trial court had sentenced the defendant to two concurrent sentences. The defendant appealed, and the case was remanded with instructions to resentence the defendant as to one of his sentences. Upon resentencing, the trial court directed that the defendant serve the latter sentence consecutively with his other sentence. The decision of the trial court was reversed, and the case was remanded with instructions to resentence the defendant to two concurrent sentences as in the trial court's original sentencing decision.
In the case before us, the defendant argues that if the trial court were to resentence him now, after he has begun serving the sentence imposed following the second sentencing hearing, the new imposition of sentence would fly in the face of the decisions in Baros, Allen and Verdugo, and would constitute a violation of the defendant's constitutional right not to be placed in double jeopardy.
The State counters by arguing that subsequent to the above decisions, the United States Supreme Court has substantially revised the rule as to double jeopardy insofar as it applies to sentencing. In particular, the State relies on United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) and Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985).
In DiFrancesco, a defendant convicted of racketeering was sentenced as a dangerous special offender under the Organized Crime Control Act of 1970 to two concurrent ten-year terms in prison. The ten-year terms were also to run concurrently with an earlier nine-year sentence imposed for another offense. Since the two ten-year terms amounted to simply a one-year extension of the nine-year sentence, the United States appealed, seeking review of the sentences. The Court of Appeals for the Second Circuit dismissed the appeal on double jeopardy grounds, but the Supreme Court reversed the court of appeals.
The Court based its ruling on the finality which a criminal defendant is entitled to expect of criminal proceedings undertaken against him. In the case of an acquittal, the bar of jeopardy is absolute, because the defendant is entitled to expect absolute finality in the trial of a case concluding in his favor. Id. 449 U.S. at 129-30, 101 S.Ct. at 433-34. In the case of a trial court's review of a defendant's sentence following the defendant's own challenge to the judgment upon which that sentence is based (or following the defendant's challenge to the sentence itself), the defendant has no right to expect that the original sentence shall be *169 final, and thus the defendant may not attack a new sentence in such a situation, even if the new sentence increases the punishment imposed by the original sentence. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Addressing itself to the particular factual situation underlying its decision, the Court in DiFrancesco held:
Although it might be argued that the defendant perceives the length of his sentence as finally determined when he begins to serve it, and that the trial judge should be prohibited from thereafter increasing the sentence, that argument has no force where, as in the dangerous special offender statute, Congress has specifically provided that the sentence is subject to appeal. Under such circumstances there can be no expectation of finality in the original sentence.
449 U.S. at 139, 101 S.Ct. at 438 (emphasis added).
In Pennsylvania v. Goldhammer, the defendant was convicted on fifty-six counts of theft, but sentenced to prison for only one of the counts. On defendant's appeal to an intermediate appellate court, thirty-four of the theft counts were held barred by the statute of limitations, including the one for which a prison sentence had been imposed. The State then appealed to the Supreme Court of Pennsylvania, seeking a remand requiring resentencing on the twenty-two affirmed counts for which the defendant had not originally been sentenced. The Supreme Court of Pennsylvania denied the State's request, holding that the Double Jeopardy Clause barred resentencing on the twenty-two counts on which conviction had been affirmed after the State's appeal.
In reversing the Supreme Court of Pennsylvania, the Supreme Court relied explicitly on its ruling in DiFrancesco. The Court held, "a resentencing after an appeal intrudes even less upon the values protected by the Double Jeopardy Clause than does a resentencing after a retrial." Id. 474 U.S. at 30, 106 S.Ct. at 354. Yet, the Court once again emphasized the particular factual setting in which DiFrancesco was decided: "In DiFrancesco a federal statute clearly allowed the appellate review of the sentences at issue. The [DiFrancesco] Court noted that, in light of that statute, the defendant could not claim any expectation of finality in his original sentencing." Id. Because the Supreme Court of Pennsylvania had held that resentencing was barred by the Double Jeopardy Clause, the Court in Goldhammer remanded the case for a determination of "whether the Pennsylvania laws in effect at the time allowed the State to obtain review of the sentences on the counts for which the sentence had been suspended." Id. Clearly then, the DiFrancesco ruling is limited to the narrow factual setting in which a federal or state statute permits the prosecution to appeal a trial court's sentence.
This reading of DiFrancesco recently was emphasized in United States v. Earley, 816 F.2d 1428 (10th Cir.1987). Recognizing that the ruling in DiFrancesco was limited to the narrow situation in which a statute authorizes the prosecution to appeal a defendant's sentence, the court in Earley adhered to what it called the traditional "bright-line rule," whereby the power of the sentencing court to amend a defendant's sentence ends when the defendant "crosses a `bright line' from the jurisdiction of the courts to executive custody." Id. at 1433.
We think it sufficiently clear from the above that neither DiFrancesco nor Goldhammer overrules our decisions in Baros, Verdugo or Allen, and that as a result it is still improper for a trial court in New Mexico to "set aside a valid sentence after a defendant has been committed thereunder, and impose a new or different sentence increasing the punishment." Baros, 78 N.M. at 626, 435 P.2d at 1008. We note that our ruling is in accord with that taken by the majority of the courts in the various states. See Annot., 26 A.L.R. 4th 905 (1983), Power of State Court, During Same Term, to Increase Severity of Lawful Sentence Modern Status.
In its judgment and sentence dated October 30, 1986, the trial court sentenced *170 defendant to life imprisonment, with that sentence to run concurrently with his previous sentences. On that day the defendant was returned to custody and began serving his life sentence. On November 7, 1986, the State moved the trial court to reconsider defendant's sentence. The court declined to exercise its discretion to reconsider the sentence and in doing so, it acted correctly. The decision of the trial court denying the State's motion for reconsideration is affirmed.
IT IS SO ORDERED.
SCARBOROUGH, C.J., and WALTERS, J., concur.
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11 A.3d 371 (2010)
205 N.J. 11
STATE of New Jersey, Plaintiff-Movant,
v.
James J. MAUTI, Defendant-Respondent.
M-525 September Term 2010, 067006
Supreme Court of New Jersey.
December 10, 2010.
ORDERED that the motion for leave to appeal is granted.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-6103
DENNIE LEE RANKINS,
Plaintiff - Appellant,
versus
DAVID L. BEARD, JR.; VERNICE B. HOWARD; BRUCE
L. DAUGHTRY,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. Malcolm J. Howard, District
Judge. (CA-96-1043-5-H)
Submitted: May 29, 1997 Decided: June 10, 1997
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Dennie Lee Rankins, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant, a South Carolina inmate, appeals the district
court's order denying relief on his 42 U.S.C. § 1983 (1994)
complaint under 28 U.S.C.A. § 1915A (West Supp. 1997). We have
reviewed the record and the district court's opinion and find that
this appeal is frivolous. Accordingly, we dismiss the appeal on the
reasoning of the district court. Rankins v. Beard, No. CA-96-1043-
5-H (E.D.N.C. Jan. 6, 1997). We grant Appellant's motion to amend
his informal brief, and deny his motion for a transcript at govern-
ment expense. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
2
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Citation Nr: 1331569
Decision Date: 09/30/13 Archive Date: 10/02/13
DOCKET NO. 12-35 632 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia
THE ISSUE
Entitlement to service connection for a bilateral knee disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. M. Donahue, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 1954 to November 1957 and January 1958 to January 1968.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.
In June 2013, the Board reopened the Veteran's claim for service connection and remanded the claim for additional development. The case has been returned to the Board for further appellate consideration.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
In September 2013, the AMC received correspondence from the Veteran regarding his claim for service connection for bilateral knee disabilities. In this statement, the Veteran reported that he had been "set up to have [his] knee operated on" and that the surgery was cancelled as there was "something wrong with [his] blood." The Veteran did not provide dates for this scheduled surgery. A July 2013 examination report does not relate a history of any scheduled surgical procedures for knee problems. On remand, the Veteran should be asked to provide details regarding the surgery. Further, as the record suggests possible treatment since his July 2013 examination, he should be asked to identify any recent sources of treatment for his knee disabilities.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).
Accordingly, the case is REMANDED for the following action:
1. The RO should obtain the names and addresses of the facility that had scheduled the Veteran for the surgery mentioned in his September 2013 correspondence as well as all medical care providers who treated the Veteran for his bilateral knee disabilities since July 2013.
After securing the necessary release, the RO should obtain these records, the RO should make efforts to obtain the records of any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review.
2. Following completion of the foregoing, the RO should undertake any other development it determines to be warranted.
3. After completion of the above development, the issue on appeal should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
_________________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).
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191 F.2d 1003
51-2 USTC P 9469
SMITH,v.WESTOVER, Collector of Internal Revenue.
No. 12588.
United States Court of Appeals Ninth Circuit.
Oct. 10, 1951.
John Moore Robinson, Robert M. Himrod, Los Angeles, Cal., for appellant.
Theron Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack, Irving I. Axelrad and Virginia Adams, Sp. Assts. to the Atty. Gen., Ernest A. Tolin, U.S. Atty., E. H. Mitchell and Edward R. McHale, Assts., all of Los Angeles, Cal., for appellee.
Before HEALY, BONE and POPE, Circuit Judges.
PER CURIAM.
1
This is an appeal from a judgment in favor of the appellee Collector in an action brought by appellant for the recovery of a portion of the income tax paid by her for the taxable year 1944. The facts are adequately stated in the opinion of the District Court, Smith v. Westover, 89 F.Supp. 432, and need not be repeated here.
2
Upon presentation of the appeal primary emphasis was laid upon appellant's contention that Internal Revenue Code, Sec. 162(d)(1), 26 U.S.C.A. § 162(d)(1), held controlling by the trial Court and to require payment by the appellant of the taxes here in question, cannot apply in the instant case for the reason that the testamentary trust here involved had no 'distributable income' within the meaning of that section.1 Appellant says that in this case there was no 'distributable income' for the reason that the will required that the net income received shall be 'immediately added to the principal or corpus of the said trust'. Thus, appellant says, the income was not 'distributable' for the reason that it was to be added to the corpus rather than distributed to the beneficiary.
3
We think this contention is not tenable for the reason that the same paragraph defines the term 'distributable income' in a manner which requires the net income of this particular trust to be regarded as distributable income for the purposes of this paragraph. The definition is as follows: 'For the purposes of this paragraph 'distributable income' means either (A) the net income of the estate or trust computed with the deductions allowed under subsections (b) and (c) in cases to which this paragraph does not apply, or (B) the income of the estate or trust minus the deductions provided in subsections (b) and (c) in cases to which this paragraph does not apply, whichever is the greater.' In effect this means that if the estate or trust has net income there is 'distributable income' within the meaning of the section. Admittedly this trust had net income in the year in question in excess of $24,000 and the sum distributed to the appellant for that year was slightly in excess of $18,000. We think therefore that the language of the section referred to expressly required the appellant to pay the tax as the District Court held.
4
Appellant also contends in this court that to construe the section in question to require appellant to pay this tax would amount to giving the section an unconstitutional application. It is argued that since the amount paid to appellant was an annual payment of a certain percent of the corpus of the trust, the sum which she received was not income within the meaning of the Sixteenth Amendment.
5
Assuming that this argument, which apparently was not urged in the court below, may be presented here, we think it is without validity. The contention proceeds on the assumption that the power of Congress is limited by the nomenclature used by the testator. Both parties agree that in the year in question the trust received net income. To say that Congress was without power to prescribe that a portion of that income should be taxed to the appellant beneficiary is manifestly untenable.
6
The judgment of the District Court was right and is affirmed.
1
The first sentence of the portion of the section referred to reads as follows: 'In cases where the amount paid, credited, or to be distributed can be paid, credited, or distributed out of other than income, the amount paid, credited, or to be distributed (except under a gift, bequest, devise, or inheritance not to be paid, credited, or distributed at intervals) during the taxable year of the estate or trust shall be considered as income of the estate or trust which is paid, credited, or to be distributed if the aggregate of such amount so paid, credited, or to be distributed does not exceed the distributable income of the estate or trust for its taxable year.'
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450 F.3d 768
UNITED STATES of America, Appellee,v.Ronald DONELSON, also known as Essie Donelson, Appellant.
No. 05-4330.
United States Court of Appeals, Eighth Circuit.
Submitted: May 17, 2006.
Filed: June 13, 2006.
COPYRIGHT MATERIAL OMITTED Cory Goldensoph, argued, Cedar Rapids, IA, for appellant.
Robert L. Teig, AUSA, argued, Cedar Rapids, IA, for appellee.
Before MURPHY, BEAM, and BENTON, Circuit Judges.
MURPHY, Circuit Judge.
1
Ronald "Essie" Donelson was convicted by a jury for being a felon in possession of a firearm after firing ten rounds from a stolen semiautomatic firearm at a group of four individuals. He was sentenced by the district court1 to 120 months in prison, the statutory maximum. Donelson appeals both his conviction and sentence, arguing that his pretrial identification by one of the shooting victims should have been suppressed, that his conviction was not supported by sufficient evidence, and that the district court erred in departing upward when calculating his advisory guideline sentence. We affirm.
2
In the early morning of August 14, 2004 Donelson and his girlfriend Deborah Page were at the World Theater, an after hours club in Cedar Rapids, Iowa. Page got into a verbal dispute with Jenelle Givens which eventually led to a fight involving a number of individuals, including Donelson and Christopher Gantt, who was with Givens. The police were summoned at 3:22 a.m., and they broke up the fight. Donelson then left the World Theater, as did Givens, Gantt, and their friends.
3
Givens, her sister Sherron Smith, Gantt, and Erica Hugley walked the short distance from the World Theater to Givens' home on Second Avenue where they sat outside and continued drinking. Around 3:37 a.m. the group heard a series of popping noises behind them and turned to see a black male running towards them shooting a gun. In a statement to police Givens said that she had fled and hid under a truck for safety. As she was running, she was shot in the foot. No one else was hurt.
4
After the shooting started, Gantt also fled and encountered Officer Tracy Schmidt of the Cedar Rapids police force. Gantt informed Schmidt that someone had just fired shots at him and his friends and then pointed to a man running across Second Avenue and said "There he is!" Schmidt described the man as a black male wearing a red shirt and radioed an alert that a shooting suspect was running south across Second Avenue. Roughly five minutes later two other officers apprehended Donelson in an alley between Fourth and Fifth Avenues. He was sweaty, out of breath, and wearing a red shirt, dark blue shorts, and white tennis shoes. He admitted that he had been in an altercation at the World Theater and said that he was running for his life because someone was trying to kill him. Donelson was arrested and taken to the police station.
5
After the shooting Givens was taken by police to the hospital. Once there she told them that the person who had shot her was a black male with a goatee and braided hair, a description fitting Donelson. She also said she knew the man as Wick, which was Donelson's street name and the name he gave the police. The officers subsequently displayed a six man photo lineup to Givens which included Donelson's picture. She immediately identified him despite the fact that his picture was an old photo which showed his hair in a different style. She said she was sure that he had been the shooter. Although Givens had been drinking that night and had been given morphine at the hospital for her pain, the officers described her as coherent and oriented when they talked to her. Three days later Givens gave the police a signed, written statement repeating her identification of Wick as the shooter.
6
After Donelson was arrested, police took Sherron Smith, one of the other victims, to the station to see whether she would identify Donelson as the shooter. Although Smith was not able to make a definitive identification of Donelson because she had not seen the shooter's face, she did say that she thought the police had apprehended the right person. Smith also told the police that Donelson's attire matched that of the shooter except that she did not think the shooter had been wearing white tennis shoes.
7
Officers subsequently searched the area near where Donelson was arrested and found a .22 caliber firearm and 2 clips. One of the clips was loaded with ten .22 caliber bullets, and the other was empty. At the crime scene they also discovered ten .22 caliber shell casings. A firearms expert testified at trial that the casings were fired from the recovered gun and that both the gun and the ammunition had traveled in interstate commerce. At Donelson's sentencing hearing the government offered into evidence a police report indicating that the gun had been stolen. Donelson has several prior felony convictions: aggravated robbery, assault, and possession of a firearm committed as a juvenile at age 16, and narcotics possession and obstruction of justice committed as an adult. At trial he stipulated to being a convicted felon.
8
Donelson was charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). His motion to suppress Givens' pretrial identification was denied, but Givens was not able to repeat her identification of Donelson at either the motion hearing or at trial. She also changed her account, testifying at trial that the shooter had been wearing a white shirt rather than a red one, that she could not remember whether he had facial hair, and that she had never met anyone named Wick before the shooting. When asked about her previous identification, she stated that she might have picked Donelson out of the lineup because he had been in a fight with her friends. Donelson was convicted by the jury and subsequently moved for acquittal, but his motion was denied.
9
Donelson was sentenced on November 30, 2005. At the sentencing hearing the district court applied a base offense level of 20, added 2 levels for a stolen weapon and 4 for use of a weapon in connection with another crime, and reached a total offense level of 26. That combined with Donelson's criminal history category of III resulted in an advisory guideline range of 78 to 97 months. The court then departed upward 2 levels under U.S.S.G. § 5K2.6 because the offense involved a reasonably foreseeable and substantial risk of death or bodily injury to multiple victims. See also U.S.S.G. § 2K2.1 cmt. n. 13(4). As an alternate basis for the departure the court found that Donelson's criminal history category understated the seriousness of his prior record since his three juvenile offenses had not been counted. See U.S.S.G. § 4A1.3(d)(2). With the departure, the resulting advisory guideline range was 97 to 121 months. After considering the factors in 18 U.S.C. § 3553(a), the court sentenced Donelson to 120 months which was the statutory maximum for his offense. See 18 U.S.C. 924(a)(2).
10
Donelson appeals his conviction and sentence. He contends on appeal that the pretrial identification of him by Givens should have been suppressed, that there was insufficient evidence to convict him, and that the district court abused its discretion by departing upward from his advisory guideline range.2 Donelson first argues that Givens' pretrial identification should have been suppressed because the photographic lineup was presented to her at the hospital after she had been drinking and treated with morphine. The government responds that the identification was admissible because the lineup was not suggestive and there is no other indication that it resulted in an irreparable misidentification.
11
A pretrial identification may implicate a defendant's due process rights, and its admissibility is reviewed de novo using a two part test. United States v. Hines, 387 F.3d 690, 693-94 (8th Cir.2004). First, we determine whether the defendant has shown that the identification procedures were "impermissibly suggestive." United States v. Williams, 340 F.3d 563, 567 (8th Cir.2003) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). If that showing is made, we examine the totality of the circumstances to determine whether "the suggestive procedures created a very substantial likelihood of irreparable misidentification." Id.
12
The photographic lineup presented to Givens contained pictures of six individuals with similar physical characteristics and no other identifying information. See Manson v. Brathwaite, 432 U.S. 98, 117, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)(other individuals in photo spread should ideally resemble the suspect). She immediately picked out the photo of Donelson, despite the fact that it portrayed him with a different hairstyle and clothes than on the night of the shooting. Even before viewing the lineup, she had accurately described his appearance and given his street name. Donelson focuses on the possible effect of morphine and alcohol on her perceptions, relying on dicta in Washington v. Cupp, 586 F.2d 134, 137 (9th Cir.1978). That citation has little bearing here where Givens appeared coherent and alert at the hospital, said she knew Donelson, and was able to give his name, describe his appearance, and identify him with certainty shortly after the shooting. Moreover, Givens reinforced her identification three days later in writing. Donelson's motion to suppress was properly denied.
13
Donelson next argues that his conviction should be overturned. The government counters that the jury's verdict was supported by sufficient direct and circumstantial evidence. We review the evidence underlying a conviction de novo to determine if it is supported by substantial evidence. United States v. Boone, 437 F.3d 829, 838 (8th Cir.2006). A conviction should not be overturned unless "the evidence, viewed in the light most favorable to the government, is such that a reasonably minded jury must have a reasonable doubt." United States v. Pardue, 983 F.2d 843, 847 (8th Cir.1993) (internal quotations omitted). We will not second guess the jury's verdict if it is supported by any reasonable interpretation of the record. See United States v. Cunningham, 83 F.3d 218, 222 (8th Cir.1996); see also United States v. Baker, 98 F.3d 330, 338 (8th Cir.1996) (conviction must be upheld where evidence supports two conflicting hypotheses).
14
To be convicted of being a felon in possession of a firearm a defendant must have previously been convicted of a crime punishable by imprisonment for more than one year and must have knowingly possessed a firearm which had been in or affected interstate commerce. United States v. Brown, 422 F.3d 689, 691-92 (8th Cir.2005). Donelson challenges the jury's finding that he knowingly possessed the firearm the police recovered by again attacking the credibility of Givens' identification of him on the night of the shooting. Once a pretrial identification has been admitted, however, it is for the jury to weigh it against countervailing evidence. See United States v. Reliford, 210 F.3d 285, 301 (5th Cir.2000). We will not second guess the jury's decision to give Givens' pretrial identification more weight than her trial testimony. See Brown, 422 F.3d at 692 (the jury is the "ultimate arbiter" of witness credibility) (internal quotations omitted). The verdict was also supported by a good deal of other evidence, including limited identifications by Gantt and Smith, the fact that Donelson was found sweating and out of breath near the scene of the crime approximately five minutes after it happened, and the altercation at the World Theater which may have supplied his motive. Investigators also located a discarded firearm near where Donelson was apprehended, and there was expert testimony at trial matching it to the ten empty shell casings found at the scene of the crime. Taking the evidence in a light most favorable to the government as we must, we conclude that his conviction was supported by sufficient evidence.
15
Donelson finally challenges the district court's decision to depart upward from the advisory guideline sentencing range. Although the guidelines are now advisory, they remain the "critical starting point" in imposing a sentence, United States v. Mashek, 406 F.3d 1012, 1016 n. 4 (8th Cir.2005), and their incorrect application can require remand regardless of whether the resulting sentence was otherwise reasonable. Id. at 1015. A decision to depart upward on the basis of a permissible factor is reviewed for abuse of discretion. United States v. Myers, 439 F.3d 415, 417 (8th Cir.2006). Donelson argues that the primary factor cited by the district court to support its decision to depart upward, his endangerment of multiple victims under U.S.S.G. § 5K2.6, was impermissible double counting because he had already received a 4 level enhancement under U.S.S.G. § 2K2.1(b)(5) for use of a firearm in connection with another felony offense. The government responds that there was no double counting because the harm on which the 4 level enhancement was based was distinct from the harm the district court relied on to justify the upward departure.
16
Double counting occurs if "one part of the Guidelines is applied to increase a defendant's punishment on account of a kind of harm that has already been fully accounted for by application of another part." United States v. Hipenbecker, 115 F.3d 581, 583 (8th Cir.1997) (internal quotations omitted). The harm at which the 4 level enhancement was directed was the use of a firearm in connection with another felony (the Iowa offense of intimidation with a dangerous weapon). See Iowa Code Ann. § 708.6. The harm underlying the upward departure was the substantial risk to multiple victims of death or bodily injury. U.S.S.G. § 2K2.1 cmt. n. 13(4). These kinds of harm are not identical, and neither the enhancement nor the departure fully accounted for the harm addressed by the other. We conclude that there was no double counting.
17
The alternative basis for departure cited by the district court was that Donelson's criminal history score did not adequately account for the seriousness of his offense or the likelihood of recidivism, an encouraged basis under U.S.S.G. § 4A1.3(a)(1). Donelson argues that the district court erred in relying on his juvenile delinquencies, but the government responds that the court's reliance was reasonable given the seriousness of the unscored offenses. According to the uncontested presentence report, in his three juvenile offenses Donelson carried a loaded revolver; struck a woman in the face with his fist and a stick; and robbed a victim at gunpoint (and later threatened to kill that same victim with a shotgun for calling the police). Donelson was paroled for the robbery offense on May 11, 1999, and it could have added to his criminal history score if the present crime had been committed before May 11, 2004. See U.S.S.G. § 4A1.2(d)(2)(A). In light of the severity of Donelson's juvenile offenses and his subsequent recidivism, we conclude that the district court's alternate basis for departure was also reasonable. See United States v. Underwood, 364 F.3d 956, 969 (8th Cir.2004). There was no abuse of discretion with respect to the upward departure and resulting sentence.
18
For these reasons the judgment of the district court is affirmed.
Notes:
1
The Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa
2
Donelson also argues that his trial counsel was ineffective for not investigating a possible exculpatory witness and for not calling the emergency room doctor who treated Givens the night she was shot. This claim is not ripe for review on Donelson's direct appealSee United States v. Ramirez-Hernandez, 449 F.3d 824 (8th Cir.2006).
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154 F.3d 416
U.S.v.Cole*
NO. 96-40567
United States Court of Appeals,Fifth Circuit.
July 23, 1998
Appeal From: S.D.Tex. ,No.C95356
1
Affirmed.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34-2
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4918
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILBERT ROBERT SCHMIDT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
District Judge. (7:09-cr-00167-D-1)
Submitted: May 16, 2011 Decided: June 6, 2011
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
George E.B. Holding, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following his indictment in December 2009, Wilbert
Robert Schmidt pled guilty, pursuant to his written plea
agreement, to two counts of production of child pornography, in
violation of 18 U.S.C.A. § 2251(a), (d) (West Supp. 2010).
Schmidt was sentenced to a total of 420 months’ imprisonment,
which resulted from the district court granting the Government’s
motion for an upward departure from his advisory Guidelines
range of 168-210 months’ imprisonment. 1 On appeal, Schmidt
challenges both the reasonableness of the district court’s
decision to depart above his advisory Guidelines range and the
reasonableness of the extent of the departure. For the reasons
that follow, we affirm.
As we have explained, “[N]o matter what provides the
basis for a deviation from the Guidelines range[,] we review the
resulting sentence only for reasonableness.” United States v.
Evans, 526 F.3d 155, 164 (4th Cir. 2008). In doing so, the
court applies an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Diosdado-Star,
630 F.3d 359, 363 (4th Cir. 2011). In assessing a sentencing
1
The district court noted that in the alternative it would
have imposed the same 420-month sentence as a variance sentence
if it had incorrectly calculated the Guidelines range or
incorrectly departed.
2
court’s decision to depart from a defendant’s Guidelines range,
this court “consider[s] whether the sentencing court acted
reasonably both with respect to its decision to impose such a
sentence and with respect to the extent of the divergence from
the sentencing range.” United States v. Hernandez-Villanueva,
473 F.3d 118, 123 (4th Cir. 2007). We will find a sentence to
be unreasonable if the sentencing “court provides an inadequate
statement of reasons or relies on improper factors in imposing a
sentence outside the properly calculated advisory sentencing
range.” Id.
Schmidt first argues that, because he is sixty-four
years old and in ill-health, a sentence at the high end of the
pre-departure Guidelines range would have been sufficient to
incapacitate him for most if not all of the remainder of his
natural life. Thus, Schmidt asserts the district court abused
its discretion in departing upward from that range and that a
420-month sentence is greater than necessary.
We conclude the district court acted reasonably in
departing under the three identified guideline provisions. The
court utilized U.S. Sentencing Guidelines Manual (“USSG”)
§ 4A1.3, p.s. (1998), to increase Schmidt’s criminal history
category from I to IV. Pursuant to this provision, a district
court may depart upward from an applicable Guidelines range if
“reliable information indicates that the criminal history
3
category does not adequately reflect the seriousness of the
defendant’s past criminal conduct or the likelihood that the
defendant will commit other crimes.” USSG § 4A1.3, p.s. To
determine whether a departure sentence is appropriate in such
circumstances, the court may consider, inter alia, prior similar
conduct that did not result in a conviction. See USSG
§ 4A1.3(e), p.s. Plainly, Schmidt’s undetected twenty-plus-year
history of producing child pornography and molesting children
qualifies as a basis for departure under this provision. The
district court further concluded this conduct warranted,
conservatively, eight criminal history points, resulting in a
Category IV criminal history. We discern no abuse of discretion
in that conclusion.
The district court next increased Schmidt’s total
offense level from thirty-five to thirty-nine, pursuant to USSG
§ 5K2.0, p.s. and USSG § 5K2.8, p.s. As the district court
discussed at length, the 1998 edition of the Sentencing
Guidelines did not adequately account for the volume of
pornographic pictures amassed by Schmidt, Schmidt’s use of
alcohol to weaken his victims, or the unusually heinous and
degrading conduct in which Schmidt forced his victims to engage.
We conclude the district court reasonably applied these
departure provisions to increase Schmidt’s total offense level.
See United States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009)
4
(explaining that a departure pursuant to USSG § 5K2.0, p.s.,
must be based on a factor related to the offenses charged in the
indictment), cert. denied, 130 S. Ct. 1923 (2010).
Schmidt next argues the court abused its discretion in
finding such an extensive departure was warranted to deter him
from future criminal activity and to protect the public because
the unrefuted record evidence demonstrates that Schmidt
voluntarily stopped producing child pornography in 1999. Thus,
Schmidt contends the court’s reliance on these two reasons
constitutes an abuse of discretion. Schmidt also asserts that
the significant departure is unreasonable, given that he
extensively cooperated with the police.
While the extent of the departure in this case is
significant, we conclude that the court’s sentencing decision is
reasonable in light of Schmidt’s long history of recidivism,
which reflects his manifest disrespect for the law, and the need
to impose a sentence reflecting the seriousness of the
underlying offense and to provide just punishment. See Evans,
526 F.3d at 158, 166 (approving a nearly four-fold increase from
the Guidelines sentence). Further, the district court’s careful
consideration of the 18 U.S.C. § 3553(a) (2006) sentencing
5
factors, 2 as well as the court’s meaningful articulation of its
reasons for departing from the Guidelines range, support our
decision to defer to the district court’s determination as to
the extent of the departure. Diosdado-Star, 630 F.3d at 366-67
(affirming substantive reasonableness of variance sentence six
years greater than Guidelines range because it was based on
district court’s thoughtful examination of the § 3553(a) factors
as a whole).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
2
Schmidt also contends that the district court failed to
properly weigh the need to provide him with appropriate mental
health treatment. See 18 U.S.C. § 3553(a)(2)(D). This
contention is belied by the record, however, as the district
court specifically ordered that, while incarcerated, Schmidt
should receive any such treatment that was available.
6
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00028-CV
______________________________
UNITED STATES CURRENCY IN THE
SUM OF $1757.05, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 03-0328
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Prince Brown has filed an appeal from an order forfeiting a number of items, and also
forfeiting $1,757.05 in cash. The judgment was signed July 6, 2006. In order to be timely filed, the
notice of appeal was due no later than August 7, 2006. See Tex. R. App. P. 26.1. Brown filed his
notice of appeal January 19, 2007.
Brown has filed a motion with this Court stating that he did not receive notice of the
judgment until January 2007, and seeking to restart the appellate timetables based on that late notice.
Rule 306a(4) of the Texas Rules of Civil Procedure triggers a new beginning date for subsequent
activity in a case when a defendant receives notice of the judgment between the twentieth and the
ninetieth day after judgment was actually entered. See Tex. R. Civ. P. 306a(4). If the party does not
receive notice or acquire actual knowledge of the judgment within twenty days of the date the
judgment is signed, Rule 306a(4) provides that the thirty-day period for filing a notice of appeal shall
begin to run on the date the party actually acquires notice or actual knowledge of the judgment, but
in no event can the thirty-day period begin after more than ninety days have passed since the
judgment was signed. See Levit v. Adams, 850 S.W.2d 469, 469-70 (Tex. 1993); Ward v. Parham,
198 S.W.3d 861, 863 (Tex. App.--Texarkana 2006, no pet.).
In this case, the date alleged by Brown is several months after the expiration of the ninetieth
day, and under no combination of circumstances could the rule be utilized to extend the appellate
timetable to make his notice of appeal timely.
In the absence of a timely-filed notice of appeal, we have no jurisdiction.
We dismiss the appeal.
Bailey C. Moseley
Justice
Date Submitted: April 10, 2007
Date Decided: April 11, 2007
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Calvin Ray Cash has filed a petition for writ of mandamus. He asks this Court to order the
trial court to set a date to hear his motion for a "Franks hearing,"
which he states has been
languishing in the trial court for over eight months.
"'When a motion is properly filed and pending before a trial court, the act of giving
consideration to and ruling upon that motion is a ministerial act,' and mandamus may issue to compel
the trial judge to act." Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio
1997) (orig. proceeding); see also Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992)
(trial court abused its discretion by refusing to conduct hearing and render decision on motion);
Chiles v. Schuble, 788 S.W.2d 205, 207 (Tex. App.—Houston [14th Dist.] 1990, orig. proceeding)
(mandamus appropriate to require trial court to hold hearing and exercise discretion).
Cash references three 1999 Hopkins County convictions for which he is now imprisoned,
none of which are currently pending. He has not directed this Court to any current criminal
proceeding to which his request might refer, and we are aware of none.
The duty of the trial court is to see that the cases before it proceed in an appropriate fashion.
In general, however, it does not have a duty to rule on free-floating motions unrelated to currently
pending actions. In fact, it has no jurisdiction to rule on a motion when it has no plenary jurisdiction
coming from an associated case. See Rodriguez v. State, 28 S.W.3d 25 (Tex. App.—Houston [1st
Dist.] 2000, no pet.); Crowell v. State, 949 S.W.2d 37 (Tex. App.—San Antonio 1997, no pet.).
We deny the petition.
Josh R. Morriss, III
Chief Justice
Date Submitted: April 12, 2004
Date Decided: April 13, 2004
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814 So.2d 970 (2001)
Ex parte Thomas Dale FERGUSON.
(Re Thomas Dale Ferguson v. State of Alabama.)
1992209.
Supreme Court of Alabama.
July 6, 2001.
Rehearing Denied September 7, 2001.
*971 Glenn Davidson of Collins, Davidson & Jensen, L.L.C., Mobile, for petitioner.
Bill Pryor, atty. gen., and Rosa Hamlett Davis, chief asst. atty. gen., for respondent.
HARWOOD, Justice.
Thomas Dale Ferguson petitioned for a writ of certiorari to review the Court of Criminal Appeals' judgment affirming his convictions of four counts of capital murder and his sentence of death. We granted Ferguson's petition to review the alleged errors Ferguson claims were made by the trial court and the Court of Criminal Appeals. After thoroughly reviewing the record for error and after fully considering all of his arguments, we affirm the judgment of the Court of Criminal Appeals.
The Court of Criminal Appeals succinctly set out the pertinent facts of this case, as follows:
"The appellant, Thomas Dale Ferguson, was indicted for four counts of capital murder in connection with the shooting deaths of Harold Pugh and his 11-year-old son Joey Pugh. The jury found Ferguson guilty of all counts charged in the indictment: two counts of murder made capital because the killings were committed during the course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975; one count of murder made capital because it involved the murder of two or more persons by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala.Code 1975; and one count of murder made capital because the victim was less than 14 years old, see § 13A-5-40(a)(15), Ala.Code 1975. The jury recommended, by a vote of 11-1, that Ferguson be sentenced to life imprisonment without the possibility of parole. The trial court overrode the jury's recommendation and sentenced Ferguson to death by electrocution.
". . . .
"The State's evidence tended to show the following. On July 21, 1997, Harold Pugh and his 11-year old son Joey Pugh were reported missing to the Colbert County Sheriff's Department. Mike Sennett, a friend of the Pughs, testified that in the early evening hours of July 21, after hearing that the Pughs were missing, he and several friends went *972 looking for the Pughs at Cane Creek in Colbert County. The local authorities and a rescue squad were also searching for the Pughs in this same area. Sennett testified that Harold and his son were avid fishermen. Making one more pass up Cane Creek in his boat before going home, Sennett found the bodies of Harold and Joey Pugh floating in the creek. Autopsies conducted the following day revealed that each victim had been shot twice in the head.
"Several days later, on July 26, 1997, a boat was found in a clearing in a remote wooded area in neighboring Franklin County. In the boat were rods and reels, a tacklebox, life jackets, a baseball-style cap with a wristwatch inside it (on the boat's front seat), and another baseball-style cap on the backseat. At Ferguson's trial, the individual who found the boat testified that because he had heard television and radio reports that the sheriff's department was looking for a boat, a description of which matched that of the boat he found in the wooded area, he telephoned the sheriff's department.
"Oscar Hood of the Colbert County Sheriff's Department testified that he received the call concerning the boat and that when he arrived at the location, the boat appeared to be the boat that the authorities were looking for in connection with the Pughs' murders. Hood ran a registration check on the boat and determined that it was in fact Harold Pugh's boat. Other testimony at trial showed that a pedestal-type seat had been removed from the boat and that two spent 9mm shell casings were found inside the boat.
"Further testimony revealed that on the day the victims' bodies were found, two armed men wearing dark-colored army fatigues, hooded shirts, sunglasses, and gloves had robbed the Deposit Guaranty National Bank in Belmont, Mississippi. An employee at the bank testified that she could not identify the men, but that she could identify the truck the men had fled in after the robbery. She described the truck as a black Chevrolet Z-71 pickup truck with a chrome toolbox in the rear bed. Shortly after the robbery, a truck matching that description was found by an officer of the Belmont Police Department five miles from the bank, in a heavily wooded area. The truck, which had been set on fire, was discovered after the police saw the smoke from the fire. On the front passenger-side floorboard of the truck, the police found a pedestal-type seat, which, according to testimony, was typical of the seats found in the front of bass-fishing boats.
"Following his arrest, Ferguson gave police a statement concerning his involvement in the robbery and murders of Harold and Joey Pugh and in the robbery of the bank in Mississippi. Ferguson told police that he and his four codefendantsMark Moore, Michael Craig Maxwell, Donald Risley, and Kino Grahamhad conspired to rob banks to get money. According to Ferguson, they bought clothing matching that described by the employee of the bank robbed in Belmont, Mississippi, to wear during the robberies, and Moore also bought guns, handheld radios, and other items to use in the robberies. Ferguson told police that Moore was the `leader' of the group.
"In addition, Ferguson told police that on the day of the murders, he and the others were looking for two cars to steal to use in the Belmont bank robbery. According to Ferguson, while he, Moore, Maxwell, Graham, and Risley were looking for a car to steal, they saw the Pughs' truck parked near the boat landing *973 at Cane Creek. When the Pughs arrived at the landing in their boat, Ferguson said, Harold Pugh got out of the boat and into his truck. According to Ferguson, before he knew it, Maxwell was holding a gun to the Pughs and was ordering the Pughs to get back into the boat. Ferguson said that Maxwell jumped into the boat, along with Moore, and that Moore then ordered Ferguson to get into the boat. According to Ferguson, Maxwell was armed with a 9mm pistol and Moore was armed with a .357 pistol. Ferguson maintained that he did not have a weapon. Ferguson stated that they then left in the boat with the victims, heading downstream, while Risley and Graham waited with the truck. According to Ferguson, he heard a shot and saw that Maxwell had shot Harold Pugh. Ferguson claimed that he did not know who shot Joey Pugh, but he did say that Maxwell and Moore threw the victims' bodies into the creek.
"Ferguson stated that after the shooting he became physically ill and that he was throwing up and very upset. Ferguson further stated that after the murders, Moore threatened him, telling Ferguson that if he told anyone about what had happened, he would kill Ferguson and Ferguson's family.
"Ferguson stated that after returning the boat to the landing where Graham and Risley were waiting, he and the others then loaded the boat onto the trailer and drove the Pughs' truck and the boat to a clearing in the woods in Franklin County. Ferguson said that he removed a pedestal-type seat from the boat and threw it inside the victims' truck.
"The following morning, according to Ferguson, Moore came to his house and the two left together to pick up Risley. Then, Ferguson said, they went to Maxwell's apartment where everyone, except Graham, who did not come to Maxwell's apartment, discussed plans to rob the bank in Belmont, Mississippi. Ferguson stated that Maxwell and Risley, who, according to Ferguson, were going to be the ones to go inside the bank, left Maxwell's apartment in Maxwell's car, followed by him and Moore in Moore's truck, and drove to where they had left the victims' truck and boat. From that location, Ferguson said, Risley drove the victims' truck to Belmont, and Maxwell drove his own car, while he and Moore followed in Moore's truck. Maxwell stated that he and the other men then drove to a location in Belmont, near the bank, where they left Maxwell's car. From there, Ferguson said, Maxwell and Risley drove the victims' truck to the bank as he and Moore, who were to act as `covers' while the bank was being robbed, followed in Moore's truck. Ferguson stated that after Maxwell and Risley had committed the robbery, Maxwell drove the victims' truck back to the location where they left Maxwell's car, and he and Moore met them at that location. Ferguson said that they put their guns in Moore's truck, and put the clothes they had worn in the robbery in the victims' truck. According to Ferguson, Risley then poured gasoline on the victims' truck and set it on fire. Ferguson stated that he and the others then returned to Maxwell's apartment, where they divided the proceeds of the bank robberyapproximately $40,000.
"Shortly after the questioning ended and Ferguson had completed his statement, Ferguson told Investigator Frank Brians that he had something else he wanted to say. Ferguson then stated that he had lied in his earlier statement when he said that Moore was at Cane Creek and on the boat when the Pughs were murdered. Ferguson now said *974 that Moore was not at Cane Creek and that Moore was not on the boat when the victims were shot, but that only Ferguson and Maxwell were on the boat with the victims. Ferguson, who still maintained that he was not armed while on the boat, now claimed that Maxwell shot both victims.
"Donald Risley, one of Ferguson's codefendants, testified at Ferguson's trial and corroborated most of Ferguson's statement to police. Risley's wife and Ferguson's wife were first cousins, and Risley had been friends with Ferguson for approximately eight years. Risley testified that Ferguson had approached him and asked him if he wanted to get involved in the plan to rob banks to get some `easy money.' (R. 510.) Risley stated that Moore and Maxwell were the `leaders of the group.' (R. 514.) Risley, like Ferguson, testified concerning the circumstances surrounding the murders at Cane Creek and the bank robbery in Belmont. Risley testified that on the afternoon of the murders, Ferguson picked him up at a friend's, Daryl May's, house and that he and Ferguson then went to Maxwell's apartment. From there, Risley said, they went to Cane Creek where they saw the victims' truck parked at the boat landing. Risley stated that he was armed with a .357 pistol, that Maxwell had a 9mm pistol, that Graham had a Colt .45 pistol, and that Ferguson was carrying a .357 pistol. Testifying to essentially the same facts as Ferguson did concerning how they approached the Pughs and ordered them into the boat, Risley further testified that Maxwell and Ferguson got into the boat with the victims and Maxwell drove the boat downstream. Risley said that the victims were sitting in the back of the boat, while Ferguson was standing near the front and was pointing a gun at the Pughs. Risley testified that neither he nor Ferguson [was] threatened into robbing the Pughs and that no one threatened Ferguson to get him to get into the boat. According to Risley, when Ferguson and Maxwell returned in the boat, approximately 10 minutes after they had left, neither victim was in the boat and Ferguson was sitting on a pedestal-type seat in the front of the boat.
"Risley continued to testify to the events that occurred after the murders up until the time of the robbery of the bank in Mississippi. Risley testified to essentially the same facts as did Ferguson in his statement to police. Risley stated that Ferguson took the pedestal-type seat out of the boat and put it in the truck because, Risley said, Ferguson was afraid that he might have touched it and left his fingerprints on it. Risley also stated that while he was at Cane Creek, Ferguson never appeared to be sick or upset, and he never saw Ferguson throw up. Risley further told police that several days after the murders, Ferguson, in response to Risley's question whether he had shot the Pughs, said that he had and further told Risley that he and Maxwell had shot them because they did not want any witnesses. Ferguson also told Risley that he shot Harold Pugh and that Maxwell shot Joey Pugh. Maxwell, who was also present during Risley's and Ferguson's conversation about the shooting, told Risley that Harold was not dead after the first shot, so he shot him again and he made Ferguson shoot Joey again.
"Other evidence at trial showed that the 9mm pistol police took from Moore's house was the weapon that fired at least one of the bullets recovered from Harold Pugh's body. The two spent shell casings found in the boat were also fired by the 9mm pistol recovered from Moore's house. The evidence further showed *975 that one of the bullets recovered from Harold's body and one of the bullets recovered from Joey's body were lead semi-wad cutter bullets that could be loaded in either a .38 or .357 pistol. Although the State's firearms expert could not conclusively state that a .357 pistol taken from Moore's house was the weapon that fired two of the bullets recovered from the victims' bodies, he was able to say that the pistol was the type of pistol that could fire that particular type of bullet. The State's firearms expert also testified that a bag of ammunition, which had been taken from Ferguson's house and submitted to him for evaluation, contained ammunition that was capable of being fired through the.357 pistol recovered from Moore's house.
"There was also testimony that Ferguson, Maxwell, Graham, and Moore had all worked together at a furniture distribution center in Russellville, in Franklin County, Alabama. All of the men, except Graham, quit their jobs, or failed to return to work, in the early to middle part of July 1997, just several weeks before the Pughs' murders and the bank robbery in Belmont. Graham last reported to work on August 20, 1997. Also, Daryl May, a friend and coworker of Ferguson's, testified that on the afternoon of the murders, Maxwell came to his house to pick up Ferguson, who was watching television there. May also testified that because Risley did not have a car, he drove him to work every morning, except the morning of July 21, the day after the murders. May said that Risley did not show up for work that morning. Testimony also showed that in late July 1997, shortly after the bank robbery in Belmont, Ferguson paid $1,750 in cash for a used car, using `new' $20 bills."
Ferguson v. State, 814 So.2d 925, 933-37 (Ala.Crim.App.2000)(footnotes omitted).
Ferguson presented 23 issues in his certiorari petition. All of these issues were addressed in the Court of Criminal Appeals' opinion. The Court of Criminal Appeals reviewed many of Ferguson's claims under the plain-error standard because Ferguson had failed to object to the alleged errors at trial. This Court has reviewed all of the those issues presented in the Court of Criminal Appeals' opinion, and we have found no error, plain or otherwise. We address four of Ferguson's arguments with more particularity below.
I. Mental Health as a Mitigating Circumstance
Ferguson argues that the trial court erroneously required him to prove that he was legally insane rather than properly considering his mental health as both a statutory and a nonstatutory mitigating circumstance during his sentencing hearing. He alleges that the Court of Criminal Appeals affirmed as to this issue, in violation of Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Whisenhant v. State, 370 So.2d 1080, 1095-96 (Ala.Crim.App.1979). The trial court, in considering Ferguson's mental health as a statutory mitigating circumstance, wrote:
"2. The Capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance [§ 13A-5-51(2), Ala.Code 1975]. DOES NOT EXIST.
"Although the clinical psychologist testified that the defendant had a low I.Q., may be mildly retarded, and may be handicapped mentally[,][h]e also testified [that] he did not suffer from any delusions or was psychotic. He knew right from wrong and was not insane. He had the ability to make choices, had a good job, was married, had advanced *976 in his job, and had opportunities. There was no evidence that the defendant suffered from any extreme mental or emotional disturbances."
C.R. at 137-38.
A. Nonstatutory Mitigating Circumstance
The Court of Criminal Appeals affirmed the trial court's findings concerning Ferguson's mental health as a nonstatutory mitigating circumstance on the basis that the trial court had properly considered the mitigating evidence, but placed little weight upon it in light of the other testimony and evidence produced at trial. We conclude that the Court of Criminal Appeals correctly applied the settled law on this issue in finding that the trial court had in fact taken into account Ferguson's mental health as a possible nonstatutory mitigating circumstance. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Ex parte Hart, 612 So.2d 536, 542 (Ala.1992)("Lockett does not require that all evidence offered as mitigating evidence be found to be mitigating."), cert. denied, 508 U.S. 953, 113 S.Ct. 2450, 124 L.Ed.2d 666 (1993); and Ex parte Slaton, 680 So.2d 909, 924 (Ala.1996) ("`While Lockett and its progeny require consideration of all evidence submitted as mitigation, whether the evidence is actually found to be mitigating is in the discretion of the sentencing authority.'")(quoting Bankhead v. State, 585 So.2d 97, 108 (Ala.Crim.App.1989), cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997)).
B. Statutory Mitigating Circumstances
Ferguson also argues that the trial court refused to find that statutory mitigating circumstances existed because, he says it improperly invoked the requirements for proving legal insanity, i.e., that Ferguson could not appreciate the difference between right and wrong or otherwise conform his conduct to the requirements of the law. The trial court, in addition to considering Ferguson's mental health as a statutory mitigating circumstance, specifically found that the following statutory mitigating circumstance did not exist:
"6. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired [§ 13A-5-51(6), Ala.Code 1975]. DOES NOT EXIST.
"The defendant's action[s] in or around the time of the killings indicate that he knew he was committing a criminal act, he tried to cover up his actions after the murders were committed."
C.R. at 139.
These findings by the trial court, as affirmed by the Court of Criminal Appeals, do not conflict with the United States Supreme Court's holding in Eddings v. Oklahoma, as Ferguson argues. In Eddings, the Supreme Court applied the rule from Lockett v. Ohio, supra. It did not change the rule that a sentencer is to consider "the characteristics of the person who committed the crime." Eddings, 455 U.S. at 112, 102 S.Ct. 869 (quoting Gregg v. Georgia, 428 U.S. 153, 197, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). This Court has also relied upon Eddings for this rule. See Ex parte Borden, 769 So.2d 950, 958 (Ala. 2000)("There is no requirement that a sentencing authority must find the evidence offered by the defendant as a mitigating factor; however, the sentencing authority may not be precluded from considering any mitigating factor." (Emphasis original.)); and Ex parte Cochran, 500 So.2d 1179, 1186 (Ala.1985)("The language in Lockett and Eddings indicates that so long as the sentencer is not precluded from considering any mitigating factor, the requirements of the Constitution have been *977 satisfied."). We agree with the Court of Criminal Appeals that the trial court did in fact consider Ferguson's offer of the mitigating evidence of his mental health, but gave that evidence little weight when compared against the other evidence that it had before it. These findings are also consistent with Whisenhant v. State, 370 So.2d 1080, 1095 (Ala.Crim.App.1979), because we agree with the Court of Criminal Appeals' holding that the trial court did not incorrectly apply the standard for legal insanity when it considered Ferguson's mental health as a mitigating circumstance.
II. Nonstatutory Aggravating Circumstances
Ferguson argues that the trial court erred by using nonstatutory aggravating circumstances to override the jury's recommendation of life without parole. He alleges that the trial court did so based upon its findings that Ferguson had the "opportunity to reflect and withdraw from his actions," and by stating its opinion of "the nature of the crime and [Ferguson's] involvement in it." C.R. at 140. He argues that the Court of Criminal Appeals erred in affirming based upon its decision in Burgess v. State, [Ms. CR-93-2054, November 20, 1998] ___ So.2d ___, ___ (Ala.Crim.App.1998), aff'd, Ex parte Burgess, [Ms. 1990803, August 25, 2000], ___ So.2d ___ (Ala.2000). He argues that the Court of Criminal Appeals' reliance on its opinion in Burgess is in conflict with this Court's decision in Ex parte Stewart, 659 So.2d 122 (Ala.1993). The Court of Criminal Appeals affirmed the ruling of the trial court on this issue and, in doing so, stated:
"[W]e find Ferguson's interpretation of the trial court's sentencing order in this case to be `strained and unrealistic.' Burgess, supra. In the section of its sentencing order regarding aggravating circumstances, the trial court found the existence of only onethat the murders were committed during the course of a robbery. The court specifically noted that it `f[ound] no other aggravating circumstances to exist.' (C.137.)....
"In the final two paragraphs of the trial court's sentencing order, the trial court weighed the aggravating circumstance and the mitigating circumstances. It is in this portion of the sentencing order that the trial court refers to Ferguson's opportunity to `reflect and withdraw from his actions'; `the nature of the crime and the defendant's involvement in it'; and Ferguson's `capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.' After reviewing the trial court's sentencing order in its entirety, we conclude that the trial court's comments were merely thateditorial comments on the evidence presented during both the guilt phase and the sentencing phase of Ferguson's trial. The trial court's comments on the nature of the crime, Ferguson's involvement in it, and Ferguson's opportunity to withdraw from his actions were clearly `the trial court's basis for attributing a greater weight to the aggravating circumstance listed in § 13A-5-49(4) as compared to the mitigating circumstances.' Burgess, supra. In addition, the trial court's reference to Ferguson's ability to appreciate the criminality of his conduct or to conform his conduct to the law was merely an allusion to the fact that the trial court had found that this mitigating circumstance did not exist. As in Burgess, supra, `[i]t would take a strained interpretation of the trial court's weighing of the aggravating and mitigating circumstances to conclude that the court improperly considered any nonstatutory aggravating circumstances.' Accordingly, we find no error, plain or otherwise, as to this claim."
Ferguson, 814 So.2d at 959. Ex parte Stewart does not conflict with the Court of *978 Criminal Appeals' opinion, as Ferguson contends. Stewart addressed the issue whether a trial court had improperly instructed the jury that it could consider nonstatutory aggravating circumstances. That is not the issue presented here; we otherwise conclude that the trial court properly considered the available statutory aggravating circumstances contained in § 13A-5-49, Ala.Code 1975. The Court of Criminal Appeals did not err in affirming the ruling of the trial court as to this issue.
III. Mitigating Effect of Mental Retardation
Ferguson argues that the trial court erred by not considering evidence that he was mentally retarded as a mitigating circumstance and that the Court of Criminal Appeals affirmed in violation of Penry v. Lynaugh, 492 U.S. 302, 327-29, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), and Ex parte Henderson, 616 So.2d 348, 350 (Ala.1992). In addressing this issue, the Court of Criminal Appeals stated:
"Initially, we note that the trial court did refer to the evidence of Ferguson's low intelligence in several parts of its sentencing orderin its findings of fact from the sentencing phase of the trial, in reference to the statutory mitigating circumstances argued by Ferguson, and in reference to the nonstatutory mitigation offered by Ferguson. As stated above, although the trial court did not list this circumstance in its specific findings of nonstatutory mitigating circumstances, `the trial court is not required to specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating.' Wilson v. State, 777 So.2d 856, 892 (Ala.Crim.App.1999), quoting Williams v. State, 710 So.2d 1276, 1347 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), cert. denied 524 U.S. 929, 118 S.Ct. 2325, 141 L.Ed.2d 699 (1998).
"Moreover, contrary to Ferguson's contention, we find no evidence in the record indicating that Ferguson was mentally retarded. In fact, both Ferguson's expert, Dr. Chudy, and the State's expert, Dr. Rosen, stated unequivocally that Ferguson was not mentally retarded. Although there was evidence that Ferguson had an IQ of 69 and was in the borderline range of intelligence, Dr. Rosen testified that the results of Ferguson's IQ test were deceptive because, Dr. Rosen said, Ferguson had purposefully not put an effort into the test in order to appear more troubled than he really was. Dr. Rosen stated that it was his belief that had Ferguson made an effort when taking the test, his IQ would have been in the middle to upper 70s. Clearly, the trial court did not err in not finding, as a nonstatutory mitigating circumstance, that Ferguson was mentally retarded."
Ferguson, 814 So.2d at 965. (Emphasis in original.)
In Penry, the United States Supreme Court stated:
"If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, `evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.'"
492 U.S. at 319, 109 S.Ct. 2934 (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987)(O'Connor, J., concurring)). As the Court of Criminal Appeals pointed out, the trial court's sentencing order contains several references to Ferguson's mental condition. These references are evidence that the trial court *979 did consider Ferguson's mental condition as both a possible statutory, and a nonstatutory, mitigating factor. Because the trial court properly considered this evidence, no conflict exists between the Court of Criminal Appeals' opinion and this Court's opinion in Henderson. The Court of Criminal Appeals determined this issue on settled caselaw that does not conflict with Penry or Henderson.
IV. Other Nonstatutory Mitigating Circumstances
Ferguson also argues that the trial court erred by failing to consider or to give effect to several other nonstatutory mitigating circumstances that were offered. He contends that the trial court did not consider or give proper effect to evidence of: (1) his traumatic childhood; (2) his impaired ability to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law; (3) his acting under extreme duress or the substantial domination of another person; (4) his being under the influence of an extreme mental or emotional disturbance; (5) his acting as an accomplice to the murders and his claimed minor participation; (6) his codefendants' receiving lighter sentences; and (7) his showing of remorse for his actions. Ferguson contends that the Court of Criminal Appeals' affirmance is in conflict with the United States Supreme Court's decision in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and its progeny, as to all of the offered mitigating circumstances that he alleges were not considered or were not given proper effect. In Woodson, the Supreme Court stated:
"While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S. [86], at 100 [, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)] (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death."
428 U.S. at 304, 96 S.Ct. 2978.
After reviewing the record and the Court of Criminal Appeals' opinion, we conclude that the trial court did not err in weighing the nonstatutory mitigating circumstances offered by Ferguson. As stated in the Court of Criminal Appeals' opinion, as long as the sentencing authority is not precluded from considering proffered mitigating circumstances, the protections provided by the Constitution are satisfied. See Lockett v. Ohio, Eddings v. Oklahoma, Ex parte Borden, and Ex parte Cochran, supra. Moreover, the Court of Criminal Appeals relied upon that settled law that "the trial court is not required to specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating." Williams v. State, 710 So.2d 1276, 1347 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), cert. denied, 524 U.S. 929, 118 S.Ct. 2325, 141 L.Ed.2d 699 (1998). The Court of Criminal Appeals correctly affirmed as to the trial court's consideration of these nonstatutory mitigating circumstances. Although Ferguson correctly argues that these circumstances can be considered as mitigating, nothing in the record indicates the trial court was precluded from considering, or otherwise did not consider, these circumstances, as Ferguson argues.
V. Conclusion
We have considered all of Ferguson's arguments, and we have reviewed the record for error, plain or otherwise; we have found no error that would warrant a reversal *980 of Ferguson's convictions or his sentence. We therefore affirm the judgment of the Court of Criminal Appeals.
AFFIRMED.
MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, WOODALL, and STUART, JJ., concur.
JOHNSTONE, J., concurs specially.
JOHNSTONE, Justice (concurring specially).
While the opinion by the Court of Criminal Appeals, Ferguson v. State, 814 So.2d 925 (Ala.Crim.App.2000), is thorough and scholarly, I suggest one caveat. In part XIX, the opinion of the Court of Criminal Appeals says, "Because no single instance of alleged error constituted reversible error, we will not consider the cumulative effect to be any greater." 814 So.2d at 968 (emphasis added). A correct statement of the law would be that, when no one instance amounts to error at all (as distinguished from error not sufficiently prejudicial to be reversible), the cumulative effect cannot warrant reversal. In other words, multiple non-errors obviously do not require reversal. The particular wording of the holding by the Court of Criminal Appeals implies that multiple rulings which are, indeed, errors cannot cumulatively cause enough prejudice to require reversal unless at least one of the erroneous rulings is, in and of itself, sufficiently prejudicial to require reversal under Rule 45, Ala. R.App.P. The correct law is that, while, under the facts of a particular case, no single error among multiple errors may be sufficiently prejudicial to require reversal under Rule 45, the accumulation of prejudice from the errors may require reversal. Ex parte Tomlin, 540 So.2d 668, 672 (Ala. 1988) ("We need not decide whether either of the two errors, standing alone, would require a reversal; we hold that the cumulative effect of the errors probably adversely affected the substantial rights of the defendant and seriously affected the fairness and integrity of the judicial proceedings. See Blue v. State, 246 Ala. 73, 80, 19 So.2d 11, 16-17 (1944); Jetton v. State, 435 So.2d 167 (Ala.Crim.App. 1983)."); McGriff v. State, [Ms. 97-0179, September 29, 2000] ___ So.2d ___, ___ (Ala.Crim.App.2000) ("Because we find no error in the specific instances alleged by the appellant, we find no cumulative error." (Quoting earlier cases.) (Emphasis added.)); United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir.1990) ("A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless."); and United States v. Canales, 744 F.2d 413, 430 (5th Cir.1984) ("We recognize that the cumulative effect of several incidents of improper argument or misconduct may require reversal, even though no single one of the incidents, considered alone, would warrant such a result.")
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770 P.2d 1301 (1988)
JARDEL ENTERPRISES, INC., a Colorado corporation, Carlos De La Rosa, and Lawrence E. Jaro, Plaintiffs-Appellants,
v.
TRICONSULTANTS, INC., a Colorado corporation; James V. Laraby; James W. Rogers; and James R. Busse, Defendants-Appellees.
No. 86CA0449.
Colorado Court of Appeals, Div. III.
October 13, 1988.
Rehearing Denied November 25, 1988.
Certiorari Denied March 13, 1989.
*1302 Carroll, Bradley & Froede, P.C., John S. Carroll, Joan W. Froede, Westminster, for plaintiffs-appellants.
Holt and Gebow, Thomas E. Gebow, Terrence P. Murray, Denver, for defendants-appellees.
TURSI, Judge.
Plaintiffs, Jardel Enterprises, Inc., Carlos De La Rosa, and Lawrence E. Jaro, (owners) appeal the summary judgment entered in favor of defendants, Tri-Consultants, Inc., James V. Laraby, James W. Rogers, and James R. Busse (subcontractors). We affirm.
To consider the propriety of the summary judgment entered, we must view the record in the light most favorable to the plaintiffs. Zalnis v. Thoroughbred Datsun Car Co., 645 P.2d 292 (Colo.App.1982).
When so viewed, the record reveals the following. The owners contracted with Brooks Western Builders, Inc., (contractor) to build a fast-food restaurant. The contract included a liquidated damages provision which provided that for each day completion was delayed, the contractor would pay the owner $100 as the reasonable estimate of the owners' loss of profit.
The contractor subcontracted with the subcontractors to stake out the foundation corners and boundary lines. The subcontractors sent an unlicensed surveyor to complete the work. He misread the building plans; consequently, the building foundation was poured 20 feet too far north. This precluded an efficient drive-through lane and parking spaces in front of the restaurant.
The owners required the contractor to remove the foundation and rebuild it in the correct location resulting in a 65-day delay in opening the restaurant. The owners received $6,500 from the contractor pursuant to the liquidated damages provision.
The contractor brought an action against the subcontractors alleging they negligently staked the restaurant foundation thereby breaching their contract. That action was settled by the subcontractors' payment of $25,000 to the contractor. In exchange, the contractor released and discharged any and all causes of actions and claims against the subcontractors arising from the services the subcontractors provided to the contractor on the restaurant. The owners were not a party to that action or settlement.
Subsequently, the owners brought this action against the subcontractors alleging claims for breach of contract and negligence and sought lost profit damages caused by the delayed opening of the restaurant. The subcontractors moved for summary judgment contending that the settlement agreement and release between the contractor and the subcontractors was a valid defense to any claims made by the owners as third-party beneficiaries of the subcontract.
The trial court entered summary judgment in favor of the subcontractors. It concluded that the general release entered into between the contractor and the subcontractor *1303 was an effective bar against the owners' action against the subcontractor as a third-party beneficiary of the contractor-subcontractor agreement. It determined that the owners' breach of contract and negligence claims were barred.
I
The owners assert the settlement agreement and release entered by the contractor and the subcontractors did not affect their right to bring this action as the third-party beneficiaries of the breached subcontract. We disagree.
A person not a party to an express contract may bring an action on the contract if the parties to the agreement intended to benefit the non-party, provided that the benefit claimed is a direct and not merely an incidental benefit of the contract. E.B. Roberts Construction Co. v. Concrete Contractors, Inc., 704 P.2d 859 (Colo.1985). However, if the third person is a creditor beneficiary, i.e., if performance of the contract satisfies an actual duty owed by one of the parties to the beneficiary, then the beneficiary's right pursuant to the contract is purely derivative of the right of the contract promisee. 2 S. Williston, Contracts §§ 356 and 397 (W. Jaeger 3rd ed. 1959).
In such circumstances, the creditor beneficiary may assert contract rights equal to but not greater than the rights of the contract promisee. The parties to the contract retain the power to discharge or modify the contractual duty to the intended beneficiary unless (1) a term of the contract provides otherwise or (2) the beneficiary, before he receives notification of the discharge or modification, materially changes his position in justifiable reliance on the promise or brings suit on it or manifests assent to it at the request of either of the parties to the contract. Restatement (Second) of Contracts § 311 (1981).
Here, it is undisputed that the owners were intended creditor beneficiaries of the subcontract since the contractor owed the owners the duty to stake the foundation corners. It is also undisputed that the contractor discharged the contractual duty before the owners brought suit on it. Nevertheless, the owners maintain that they significantly altered their position in reliance on the subcontract. However, each "change of position" they assert was part of the normal progression on the restaurant project and was not related to reliance on the subcontract.
Therefore, the subcontractors and the contractor retained the power to discharge the duty to the owners. The trial court correctly concluded that the settlement agreement and release between the subcontractors and the contractor barred the owners' derivative breach of contract claim.
II
The owners also contend that the trial court erred by determining that the settlement agreement and release barred their negligence claim against the subcontractors. While we agree that the settlement agreement and release did not bar any claim by the owner except the derivative breach of contract claim, we conclude that the owners did not have a negligence claim against the subcontractors. A correct judgment will not be disturbed on review even though the reason for the decision may be wrong. Miller v. Mountain Valley Ambulance Service, Inc., 694 P.2d 362 (Colo.App.1984).
As a general rule, no cause of action lies in tort when purely economic damage is caused by negligent breach of a contractual duty. Flintkote Co. v. Dravo Corp., 678 F.2d 942 (11th Cir.1982); Album Graphics, Inc. v. Beatrice Foods Co., 87 Ill.App.3d 338, 42 Ill.Dec. 332, 408 N.E.2d 1041 (1980). This economic loss rule prevents recovery for negligence when the duty breached is a contractual duty and the harm incurred is the result of failure of the purpose of the contract. Flintkote Co. v. Dravo Corp., supra.
When parties dealing at arms length enter into a contract, they may *1304 shape the terms of the contract as they please and restrict the remedies for breach of the contract. However, in a negligence action one may seek damages for all injuries proximately caused by the defendant's negligence. Therefore, where only economic losses are incurred by breach of a contractual duty, we reject the assertion that the non-breaching party has a negligence cause of action because to hold otherwise would permit that party to avoid the contractual limitation of remedy. See Album Graphics, Inc. v. Beatrice Foods Co., supra. A claim for economic loss on a contract should not be translatable into a tort action in order to escape some roadblock to recovery on a contract theory. W. Prosser & W. Keeton, Torts § 92 (5th ed. 1984).
This economic loss rule applies whether the plaintiff is a party to the contract or a third-party beneficiary of the contract since the duty the contract promisor owed and breached was determined by the manifested intentions of the parties to the contract and is entirely contractual. W. Prosser & W. Keeton, supra.
"Thus, a builder or a contractor would normally be subject to liability on a contract theory only to the promisee and a third-party beneficiary for delays in construction or defects in construction that do not result in physical harm to persons and tangible things, other than the thing itself that is being constructed or repaired."
W. Prosser & W. Keeton, supra.
The rule is limited to cases that involve only economic loss and does not prevent a negligence action to recover for physical injury to property or persons because, in that case, the duty breached generally arises independent of the contract. Flintkote Co. v. Dravo Corp., supra. There is a general rule of tort law that one who acts is under a duty to exercise reasonable care to avoid physical harm to persons and tangible property of others and this general duty extends to parties to contracts. W. Prosser & W. Keeton, supra. The distinction between a contract and tort claim depends upon the nature of the duty that has been breached, which in most instances can be determined from the harm suffered. Flintkote Co. v. Dravo Corp., supra.
Here, the owners sought lost profits, which are purely economic damages, with no claim of physical harm to person or property. Furthermore, the only duty they maintain the subcontractors breached was their contractual duty to perform surveying services. Consequently, owners have no negligence cause of action since no duty independent of the contract was breached.
This case is distinguishable from the cases relied on by the owners. Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313 (Colo.1980) involved property damage; Wright v. Creative Corp., 30 Colo. App. 575, 498 P.2d 1179 (1972) involved personal injury; and Iverson v. Solsbery, 641 P.2d 314 (Colo.App.1982) involved an intentional tort, not negligence.
The owners also cite Kellogg v. Pizza Oven, Inc., 157 Colo. 295, 402 P.2d 633 (1965) and assert that both a contract and tort action may arise separately in the context of construction of a building. While Kellogg is similar to this case in that only economic damages were sought for negligent performance of a construction contract, it is distinguishable from this case because it falls within an exception to the general economic loss rule.
One who, in the course of his profession or employment, supplies false information for the guidance of others in their business transactions, is subject to liability for the pecuniary loss caused to them by their justifiable reliance upon the information, if he is negligent in obtaining or communicating the information. Restatement (Second) of Torts § 552 (1977). Professionals, such as attorneys and accountants, who communicate representations with the knowledge that the information is to be relied on by others may be subject to both tort and contract liability for economic loss if third *1305 parties rely on their negligent misrepresentations made in the course of rendering a service pursuant to a contract. W. Prosser & W. Keeton, Torts §§ 92 and 107 (5th ed. 1984).
In Kellogg, defendants, who were architects, made negligent misrepresentations regarding the cost to build a building; therefore, they were held liable in negligence for the economic damages of the plaintiff. The case before us does not involve negligent misrepresentation of information and, therefore, does not fall within this exception to the general rule.
JUDGMENT AFFIRMED.
KELLY, C.J., and JONES, J., concur.
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107 Ariz. 71 (1971)
481 P.2d 864
STATE of Arizona, Appellee,
v.
Edward Arnold MANCINI, Appellant.
No. 2138.
Supreme Court of Arizona, In Division.
March 5, 1971.
Gary K. Nelson, Atty. Gen. by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Public Defender, Maricopa County by Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
CAMERON, Justice.
This is an appeal from a judgment of guilt after a plea of guilty to the crime of assault with intent to commit murder, § 13-248 A.R.S. Defendant was sentenced to the *72 Arizona State Prison for a term of not less than ten nor more than twelve years. We are called upon to determine whether the plea was voluntarily and intelligently made and properly accepted.
The facts necessary for a determination of the matter on appeal are as follows. Defendant, after a preliminary hearing at which time he was represented by counsel, was held to answer to the Superior Court on a charge of assault with intent to murder one Tito Chavez.
On 4 February 1970, defendant entered a plea of not guilty at arraignment. Trial was set for 2 March 1970, and on that date the cause proceeded as follows:
"MR. REMENDER: (Atty for the Defendant) Your Honor, at this time it is the defendant's desire to withdraw his prior plea of not guilty and enter a plea of guilty to the charge. Is that right Mr. Mancini?
"MR. MANCINI: Yes.
"THE COURT: All right. Would you like to come up, please.
Now, you're Mr. Edward Arnold Mancini, right?
"MR. MANCINI: Yes.
"THE COURT: And you're charged with assault to commit murder, a felony. Do I understand you want to change your plea and plead guilty to that?
"MR. MANCINI: Yes, sir.
"THE COURT: Well, did you on or about the 25th day December, 1969, while you were armed with a gun, assault Mr. Tito Chavez?
"MR. MANCINI: Yes.
"THE COURT: And did you intend to murder him?
"MR. MANCINI: I'm not sure.
"THE COURT: Well, what were the circumstances?
"MR. REMENDER: What happened that day?
"MR. MANCINI: I pulled a gun out and shot him.
"THE COURT: What compelled you to pull the gun out and shoot him?
"MR. MANCINI: I'm not sure.
"THE COURT: Were you drinking?
"MR. MANCINI: No.
* * * * * *
"THE COURT: What did you tell Mr. Mancini about the penalty?
"MR. REMENDER: Your Honor, I told him the penalty carried a minimum of five years and a maximum of life in prison.
"THE COURT: And you know that? What the penalty is?
"MR. MANCINI: Yes, sir.
"THE COURT: How far did you go in school?
"MR. MANCINI: About three years of college.
"THE COURT: Three years of college?
"MR. MANCINI: Three.
"THE COURT: Where did you go to college?
"MR. MANCINI: A.S.U.
* * * * * *
"THE COURT: Did anybody make any threats or offer you any inducements or promises of any kind whatsoever to persuade you to change your plea to guilty?
"MR. MANCINI: No, sir.
"THE COURT: You're pleading guilty because you are guilty?
"MR. MANCINI: Yes.
"THE COURT: And you understand what this charge is?
"MR. MANCINI: I do.
"THE COURT: You understand you're entitled to be tried before a jury and have the people who are accusing you of this come into court and testify and your lawyer could cross-examine them about the situation; do you understand that?
"MR. MANCINI: I do.
"THE COURT: You have that right. You have a right to appeal any part *73 of that proceedings; do you understand that?
"MR. MANCINI: I do.
"THE COURT: Do you want to add anything?
"MR. REMENDER: No, your Honor, except I have explained to him the rights he is waiving, the Fifth Amendment right of self-incrimination, the right to a jury trial, the right to have the witness confront him, and his right to a lawyer; and I think he understands fully.
"THE COURT: You understand what your lawyer has been saying?
"MR. MANCINI: Yes, sir.
"THE COURT: Is there anything else you want to add?
"MR. NOVAK: (Deputy County Attorney) No, your Honor, nothing further.
"THE COURT: All right, let's set the time for sentencing. * * *."
On appeal the appellant has presented the following questions for consideration as possible grounds for reversal:
1. Must the defendant enter a specific plea of guilty to the charge.
2. May a court accept a plea of guilty to assault with intent to commit murder when the defendant states he is not sure whether he intended to commit murder.
MUST THE DEFENDANT PERSONALLY ENTER HIS PLEA OF GUILTY?
Although the minute entry of this hearing on the change of plea notes that the "court finds that the defendant enters his plea of guilty, knowingly, willingly and voluntarily and the court accepts the plea", we cannot find wherein the defendant in his own voice entered a specific plea of "guilty". Our Court of Appeals has stated:
"Criminal Rules 181 and 231 A. 2. appear to imply that a defendant need not personally plead guilty to the charged offense but must be present when such plea is entered. It is our opinion that better practice is to require that defendant plead in person if he is to plead guilty." State v. Miles, 3 Ariz. App. 377, 380, 414 P.2d 765, 768 (1966). (Emphasis added) See also Rule 179, subsec. A, Rules of Criminal Procedure, 17 A.R.S.
Admittedly the "better" practice was not followed in the case before the court. However, the record is clear that it was defendant's intention to enter and be bound by a plea of guilty to the offense as charged. He was not misled or in doubt as to what was happening at the time and the effect of his actions. The Court of Appeals has recently held this very argument to be without merit. In that case defendant, when asked by counsel did she "wish to plead guilty", answered "yes". The court said:
"We have read the transcript and agree that the defendant never said `I plead guilty'. However, for the purposes of the hearing, we do not believe the overall proceeding left any doubt but that defendant was before the judge to change her plea." State v. Myers, 12 Ariz. App. 409, 410, 471 P.2d 294, 295 (1970), review denied 13 October 1970.
WAS THE PLEA PROPERLY ACCEPTED?
We believe that the plea in this case was voluntarily, intelligently and knowingly made and complied with the mandate of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) in that the court ascertained before accepting the plea that there was a factual basis for said plea.
Defendant contends, however, that the court should not have accepted a plea of guilty to a crime that requires intent when the defendant states to the court that he did not intend to murder the victim. The defendant stated:
"THE COURT: And did you intend to murder him?
"MR. MANCINI: I'm not sure.
"THE COURT: Well, what were the circumstances?
*74 "MR. REMENDER: What happened that day?
"MR. MANCINI: I pulled a gun out and shot him.
"THE COURT: What compelled you to pull the gun out and shoot him?
"MR. MANCINI: I'm not sure."
The United States Supreme Court has stated:
"Ordinarily, a judgment of conviction resting on a plea of guilty is justified by the defendant's admission that he committed the crime charged against him and his consent that judgment be entered without a trial of any kind. The plea usually subsumes both elements, and justifiably so, even though there is no separate, express admission by the defendant that he committed the particular acts claimed to constitute the crime charged in the indictment. See Brady v. United States, supra, 397 U.S. 742, at 748, 90 S.Ct. 1463 at 1468, 25 L.Ed.2d 747, at 756; McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418, 425 (1969)." (Emphasis added) North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, 168 (1970).
Defendant's statement that he was "not sure" whether he intended to murder the victim is not enough to override all the other evidence before the court and require that the court decline to accept the plea of guilty voluntarily and intelligently made by the defendant. Additionally, intent to kill may be presumed from the use of a deadly weapon. State v. Preis, 89 Ariz. 336, 339, 362 P.2d 660 (1961); State v. Schroeder, 95 Ariz. 255, 260, 389 P.2d 255 (1964). We believe the plea was properly accepted.
We have reviewed the entire record as required by § 13-1715, subsec. B, A.R.S. and we have found no fundamental error.
Judgment affirmed.
HAYS, V.C.J., and LOCKWOOD, J., concur.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7738
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNIE L. REED,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Robert G. Doumar, Senior District Judge. (2:08-cr-00023-RGD-FBS-1)
Submitted: April 16, 2020 Decided: April 21, 2020
Before GREGORY, Chief Judge, and WYNN and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Johnnie L. Reed, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnnie L. Reed appeals the district court’s order denying relief on Reed’s motion
seeking a sentence reduction pursuant to the First Step Act of 2018, Pub. L. No. 115-391,
§ 404, 132 Stat. 5194, 5222. We have reviewed the record and find no reversible error.
Accordingly, we affirm for the reasons stated by the district court. United States v. Reed,
No. 2:08-cr-00023-RGD-FBS-1 (E.D. Va. Sept. 19, 2019). We deny Reed’s motion for
the appointment of counsel. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
2
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356 F.2d 472
FONTAINEBLEAU HOTEL CORP., Appellant,v.Florence Lustig CROSSMAN, a/k/a Florence Lustig trading and doing business as Florence Lustig, Appellee.
No. 22402.
United States Court of Appeals Fifth Circuit.
February 10, 1966.
Richard P. Kenney, Miami, Fla., Williams, Salomon & Kenney, Miami, Fla., for appellant.
Robert C. Ward, Miami, Fla., for appellee, Ward & Ward, Miami, Fla., of counsel.
Before JONES and BROWN, Circuit Judges, and BREWSTER, District Judge.
PER CURIAM:
1
It is the opinion of this Court that the judgment of the district court dismissing the proceedings before it was properly entered. That judgment is
2
Affirmed.
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