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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-829V Filed: February 23, 2016 * * * * * * * * * * * * * * * * UNPUBLISHED CHEYLYNN TADIO and DELTON * THOMAS, on behalf of their child, * K.T., a minor, * * Special Master Gowen Petitioners, * * v. * Attorneys’ Fees and Costs * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * Danielle A. Strait, Maglio Christopher and Toale, Washington, DC, for petitioner. Julia McInerny, United States Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On November 30, 2012, Cheylynn Tadio and Delton Thomas (“petitioners”) filed a petition for compensation on behalf of their minor child, K.T., under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 – 34 (2012)2 (the “Vaccine Act” or “the Program”). Petitioners alleged that as a result of receiving an influenza (“flu”) vaccination on November 8, 2010, K.T. developed Guillain-Barre Syndrome (“GBS”). Petition at ¶ 11. The parties filed a stipulation awarding compensation to petitioners on May 30, 2014, and a decision 1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002. 44 U.C.S. § 3501 note (2012)(Federal Management and Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. 1 adopting the parties’ stipulation was issued the same day. Judgment was entered on June 6, 2014. On February 23, 2016, the parties filed a Stipulation of Fact concerning attorneys’ fees and costs. Petitioners request a total award of attorneys’ fees and costs of $49,197.04. Stip. of Fact ¶ 6. This amount represents: $35,982.04 in attorneys’ fees and attorneys’ costs for petitioners’ counsel of record, Danielle A. Strait; $5,000.00 in attorneys’ fees for petitioners’ former counsel, Kimberly A. Jackson; and $8,000.00 for petitioners’ costs associated with maintaining K.T.’s conservatorship. Id. at ¶ 2-5. Pursuant to General Order #9, petitioners’ counsel also represents that petitioners incurred $215.00 in costs for establishing the conservatorship. Id. at ¶ 3. The parties’ stipulation indicates that respondent does not object to the above fees and costs. Id. at ¶ 3-5. The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300 aa-15(e). Based on the reasonableness of petitioner’s request, the undersigned GRANTS the request for approval and payment of attorneys’ fees and costs. Accordingly, an award should be made as follows: (1) A lump sum of $35,982.04 in the form of a check payable jointly to petitioners and petitioners’ counsel of record, Danielle A. Strait, for attorneys’ fees and costs. (2) A lump sum of $5,000.00 in the form of a check payable jointly to petitioners and petitioners’ former counsel, Kimberly A. Jackson, for past attorneys’ fees. (3) A lump sum of $8,215.00 in the form of a check payable to petitioners for the costs of establishing and maintaining a conservatorship for K.T. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance herewith.3 IT IS SO ORDERED. s/ Thomas L. Gowen Thomas L. Gowen Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review. 2	{ "pile_set_name": "FreeLaw" }
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN JUDGMENT RENDERED SEPTEMBER 25, 2018 NO. 03-17-00733-CV Kevin Bierwirth, Appellant v. Rio Rancho Properties, LLC, Appellee APPEAL FROM THE 277TH DISTRICT COURT OF WILLIAMSON COUNTY BEFORE CHIEF JUSTICE ROSE, JUSTICES PEMBERTON AND FIELD AFFIRMED -- OPINION BY JUSTICE FIELD This is an appeal from the judgment signed by the trial court on October 24, 2017. Having reviewed the record and the parties’ arguments, the Court holds that there was no reversible error in the judgment. Therefore, the Court affirms the trial court’s judgment. Because appellant is indigent and unable to pay costs, no adjudication of costs is made.	{ "pile_set_name": "FreeLaw" }
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 13a0213n.06 No. 10-5461 UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Feb 28, 2013 DEBORAH S. HUNT, Clerk LEONARD GROVES, JR., ) ) Petitioner-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF KENTUCKY JOSEPH MEKO, Warden, ) ) Respondent-Appellee. ) ) BEFORE: SILER, ROGERS, and WHITE, Circuit Judges. ROGERS, Circuit Judge. Leonard Groves Jr. appeals the district court’s denial of his petition for a writ of habeas corpus. Groves argues that his state convictions for first-degree robbery and first-degree wanton endangerment violate his constitutional right not to be subjected to double jeopardy. There is no double jeopardy violation in Groves’s convictions, however, because each of the two statutes under which Groves was convicted requires proof of an element that the other does not. After admitting that he robbed a Wendy’s restaurant, Groves pled guilty in state court to one count of first-degree robbery, in violation of KRS 515.020, and five counts of first-degree wanton endangerment, in violation of KRS 508.060. Groves later asked the trial court to set aside his guilty plea, arguing, among other things, that convictions for first-degree robbery and first-degree wanton endangerment would violate the Double Jeopardy Clause. The trial court rejected Groves’s request No. 10-5461 Leonard Groves, Jr., v. Joseph Meko, Warden and sentenced him to twenty years’ imprisonment on the robbery charge and five years’ imprisonment on each of the wanton endangerment charges. The trial court ordered that the sentences be served concurrently for a total of twenty years’ imprisonment. Groves appealed and argued that his convictions constituted double jeopardy. The Kentucky Court of Appeals, however, held that Groves waived his double jeopardy claim by voluntarily pleading guilty. Groves v. Commonwealth, 2007 WL 2343767, 4 (Ky. Ct. App. 2007). Ultimately, the court affirmed Groves’s convictions and sentence. Id. Groves then filed a petition for a writ of habeas corpus in federal district court. Groves raised his double jeopardy argument but the district court held that the claim lacked merit. While the district court did not address the waiver issue, it held that, under the test of Blockburger v. United States, 284 U.S. 299 (1932), there is no double jeopardy violation in Groves’s convictions for both first-degree robbery and first-degree wanton endangerment because each statute requires proof of a fact that the other does not. In reaching this conclusion, the district court was persuaded by a recent Kentucky Court of Appeals case which analyzed the two statutes in question and held that they proscribed different offenses. Accordingly, the district court denied Groves’s habeas petition. Groves now appeals and claims once more that his convictions constitute double jeopardy. Groves argues that the first-degree wanton endangerment charges were based on the “same conduct” that gave rise to the first-degree robbery charge—pointing a gun at Wendy’s employees—and thus, the wanton endangerment charges should have merged into the robbery charge. -2- No. 10-5461 Leonard Groves, Jr., v. Joseph Meko, Warden Before turning to the merits of the double jeopardy claim, we must first address whether this case is appropriate for appellate review. Under the “concurrent sentencing doctrine,” “an appellate court may decline to hear a substantive challenge to a conviction when the sentence on the challenged conviction is being served concurrently with an equal or longer sentence on a valid conviction.” Dale v. Haeberlin, 878 F.2d 930, 935 n.3 (6th Cir. 1989); see United States v. Ware, 282 F.3d 902, 906 (6th Cir. 2002). In the instant case, Groves was sentenced to concurrent terms of imprisonment for six felonies. Thus, even if we were to find that the convictions for wanton endangerment were unconstitutional, he would still be required to serve the same twenty years in prison. The concurrent sentencing doctrine is a discretionary one, and courts “are admittedly hesitant to apply [it].” Dale, 878 F.2d at 935 n.3. Here, neither party asks us to apply the doctrine. Accordingly, we decline to apply the doctrine and will address the double jeopardy claim. As an initial matter, the Government argues that Groves waived his double jeopardy claim by voluntarily pleading guilty to the first-degree robbery and first-degree wanton endangerment charges. This court need not resolve this issue, however, because even assuming, without deciding, that Groves did not waive his double jeopardy claim, Groves’s appeal fails on the merits. There is no double jeopardy violation in Groves’s convictions for both first-degree robbery and first-degree wanton endangerment. Under the test set forth in Blockburger, two statutes proscribe different offenses if each provision requires proof of a fact that the other does not. Blockburger, 284 U.S. at 304. Applying this test, the two statutes under which Groves was charged -3- No. 10-5461 Leonard Groves, Jr., v. Joseph Meko, Warden clearly proscribe different offenses. Compare KRS 515.020 with KRS 508.060. First-degree robbery requires proof of theft and first-degree wanton endangerment does not. First-degree wanton endangerment requires a manifestation of extreme indifference to the value of human life and first- degree robbery does not. In other words, a person can commit either of these offenses without committing the other. A person can commit first-degree wanton endangerment without committing first-degree robbery; an example would be a defendant who shoots a gun into an occupied building. And a person can commit first-degree robbery without committing first-degree wanton endangerment; an example would be a defendant who uses a toy pistol to rob a college student of his iPod. Accordingly, it is clear that, under Blockburger, first-degree robbery and first-degree wanton endangerment are separate offenses. Therefore, there is no double jeopardy violation in this case. Recent Kentucky case law supports this holding. As the Kentucky Supreme Court stated succinctly in a 2005 unpublished opinion: KRS 515.020 (first-degree robbery) and KRS 508.060 (first-degree wanton endangerment) each require proof of an additional statutory fact that the other does not. For instance, first-degree robbery requires proof of theft and first-degree wanton endangerment does not. . . . First-degree wanton endangerment requires action that manifests an extreme indifference to human life and the robbery statute does not. Because each offense requires proof that the other does not, there is no double jeopardy violation. Crisp v. Commonwealth, 2005 WL 629005, 2 (Ky. 2005). Similarly, in 2008, the Kentucky Court of Appeals conducted a Blockburger analysis of the first-degree robbery and first-degree wanton endangerment statutes and found that these are two distinct crimes. Grider v. Commonwealth, 2008 -4- No. 10-5461 Leonard Groves, Jr., v. Joseph Meko, Warden WL 299023, 2 (Ky. Ct. App. 2008). These cases provide compelling support for what is in any event a plain reading of the elements of the two Kentucky criminal statutes. Whether there is a federal double jeopardy violation where each statute contains an element not required in the other is a federal issue, however. In other words, Kentucky law determines the elements of the crimes; federal law determines whether there is a double jeopardy violation when neither crime is a lesser included offense of the other. Groves maintains that the first-degree wanton endangerment charges were based on the “same conduct” that gave rise to the first-degree robbery charge—pointing a gun at Wendy’s employees—and, therefore, the wanton endangerment charges should have merged into the robbery charge. Groves cites the Kentucky Supreme Court cases of Marshall v. Commonwealth, 625 S.W.2d 581 (Ky. 1981), and Gilbert v. Commonwealth, 637 S.W.2d 632 (Ky. 1982), to support his argument. These cases, however, were decided well before the 1993 United States Supreme Court decision squarely rejecting the “same-conduct” test for double jeopardy and limiting the federal double jeopardy analysis solely to the question of whether each crime contained an element not contained in the other. United States v. Dixon, 509 U.S. 688, 703-12 (1993). In light of Dixon, it is immaterial whether the victims of Groves’s wanton endangerment crimes were Wendy’s employees and, thus, the charges “all emanated from the same conduct,” as Groves claims.1 What matters is whether, 1 It is likewise unnecessary to allow Groves to supplement the record to prove these points. -5- No. 10-5461 Leonard Groves, Jr., v. Joseph Meko, Warden under Blockburger, first-degree robbery and first-degree wanton endangerment are separate offenses. Since they clearly are, Groves’s double jeopardy claim is unavailing. Finally, Groves suggests that there is a double jeopardy violation because “the Kentucky legislature did not intend an act of using a weapon while committing a robbery to result also in a wanton endangerment conviction.” Groves cites Missouri v. Hunter, 459 U.S. 359 (1983), and its progeny, to support his argument. Groves clearly misinterprets Hunter. There, the Supreme Court held that even if two crimes constitute a single offense under Blockburger, a defendant may still be convicted of and punished for both crimes in a single trial if the legislature intended for multiple punishments to apply. Hunter, 459 U.S. at 368-69. It does not logically follow from this that if two crimes are separate offenses under Blockburger, a defendant may not be convicted of both crimes if the legislature did not intend for multiple punishments to apply. Indeed, Groves cites no legal authority requiring such a reading of Hunter. Accordingly, Groves’s reliance on Hunter is misplaced and his double jeopardy claim is without merit. A state may of course provide that a defendant may not be punished for one state crime if the defendant has also been convicted of another particular crime, even though the crimes are different under the Blockburger test. But such a legal prohibition would be a matter of state law. Under Dixon, the federal double jeopardy prohibition applies only where each of the required elements of one of the crimes is required for the other. Because that is clearly not the situation in this case, there is no federal jeopardy violation, even if Kentucky law were interpreted to prohibit prosecution under both statutes. -6- No. 10-5461 Leonard Groves, Jr., v. Joseph Meko, Warden Judge White would affirm for different reasons. The judgment of the district court is accordingly affirmed. -7- No. 10-5461 Leonard Groves, Jr., v. Joseph Meko, Warden SILER, Circuit Judge, concurring and dissenting in part. I concur in the majority opinion to the extent that it affirms the denial of the writ of habeas corpus by the district court on Counts 1-4, 6. I dissent, however, on the denial of the writ on Count 5 for the reasons stated herein. As the majority observes, in Marshall v. Commonwealth, 625 S.W.2d 581 (Ky. 1981), the Supreme Court of Kentucky held that a defendant’s conviction for first-degree wanton endangerment during a robbery constituted double jeopardy when the defendant was also convicted of first-degree robbery. Id. at 582-83. Of course, we must decide whether this is still the law after United States v. Dixon, 509 U.S. 688, 703-12 (1993). The test now for double jeopardy is not whether both charges involve the same conduct, but whether each crime requires proof of a fact the other does not. As the majority observes, after Dixon, Kentucky courts have held that charges for first-degree wanton endangerment and first-degree robbery pass the test under Blockburger v. United States, 284 U.S. 299 (1932). See Crisp v. Commonwealth, No. 2004-SC-0058-MR, 2005 WL 629005, at 2 (Ky. Mar. 17, 2005), Grider v. Commonwealth, No. 2006-CA-001999-MR, 2008 WL 299023, at *2 (Ky. Ct. App. Feb. 1, 2008). While it is clear that first-degree robbery requires proof of an element that first-degree wanton endangerment does not (i.e., theft), it is less clear whether the reverse is true. In other words, it is unclear whether “us[ing] or threaten[ing] the . . . use of physical force upon another person” while being “armed with a deadly weapon” (an element of first-degree robbery) constitutes “manifesting extreme indifference to the value of human life” and “wantonly engag[ing] in conduct which creates a substantial danger of death or serious physical injury to another person” (elements -8- No. 10-5461 Leonard Groves, Jr., v. Joseph Meko, Warden of first-degree wanton endangerment). See K.R.S. §§ 508.060, 515.020(1)-(1)(b). Both the Crisp and Grider opinions gave only a cursory analysis on this issue. Both cases, however, based their decisions on the fact that the acts giving rise to the wanton endangerment charge involved either different victims or different time periods than the robbery charge. The problem here, obviously, is that Groves pled guilty to the charges and now raises his double jeopardy claim. The government asserts that under United States v. Broce, 488 U.S. 563, 574 (1989), the petitioner cannot collaterally attack his conviction. The Supreme Court held that the defendants in Broce could not “prove their claim by relying on those indictments and the existing record,” so their double jeopardy claim was foreclosed. Id. at 576. Therefore, in light of Broce, the inquiry becomes whether, based on the face of the indictment and the state court record, the wanton endangerment claims merge with the first-degree robbery claim. Groves asserts that the five individual victims in Counts 2-6 were the same Wendy’s employees referred to in Count 1 and thus, double jeopardy applies. However, the record is unclear whether the named victims were Wendy’s staff or customers or whether the actions related in Counts 2-6 occurred during, after, or before the robbery. Nevertheless, there is an affidavit from the state court record signed by Evon Gould, the apparent victim in Count 5. This affidavit was created in 2005, less than one month before Groves pled guilty, and it states that Evon was one of Wendy’s employees working on the date when the store was robbed. It is unclear from the face of the indictment and the state court record whether the indictment charges two separate crimes arising out of separate events. We have interpreted Broce broadly to -9- No. 10-5461 Leonard Groves, Jr., v. Joseph Meko, Warden mean that a guilty plea does not waive double jeopardy challenges where “‘the [double jeopardy] issues appear on the face of the indictment and can be resolved without an additional evidentiary hearing.’” United States v. Ehle, 640 F.3d 689, 694 (6th Cir. 2011) (quoting United States v. Ragland, 3 F. App’x 279, 284 n.3 (6th Cir. 2001). Because the record shows that Gould was the victim in Count 1 and was an employee at the time the store was robbed, I would remand the case to the district court with directions to grant the writ with respect to Count 5 only, and to deny the writ with respect to all the other remaining counts in the state indictment. - 10 - No. 10-5461 Leonard Groves, Jr., v. Joseph Meko, Warden HELENE N. WHITE, Circuit Judge, concurring. I concur in the result of the lead opinion but my reasoning is more in line with the dissent. The federal courts generally have no role in determining whether the federal Double Jeopardy Clause is violated when a defendant is convicted of multiple offenses in a single proceeding. Rather, the question in such circumstances is whether the state legislature intended that there be multiple punishment under the circumstance; and “[w]hen assessing the intent of a state legislature, a federal court is bound by a state court’s construction of that state’s own statutes.” Banner v. Davis, 886 F.2d 777, 780 (6th Cir. 1989) (citations omitted). Had the state appellate court ruled that multiple punishment was intended that would be the end of this case, without regard to Blockburger or any other test for determining whether two offenses are the same offense. See id. at 780–82. The wrinkle here is that the state appellate court did not rule on the double jeopardy question; it ruled on the waiver question. For that reason, I believe the dissenting opinion correctly wades into those waters. I agree that the correct inquiry to determine whether the double jeopardy claim could constitutionally be waived by the plea is whether the violation is clear on the face of the indictment or requires factual development, and that in the instant case, the violation is not clear on the face of the indictment and factual development is necessary. Here, I part ways with the dissent. Although the affidavit cited by the dissent appears to support Groves’s claim, the affidavit does not establish that the charge, “judged on its face[,] . . . is one which the State may not constitutionally prosecute.” Menna v. New York, 423 U.S. 61, 63 n.2. (1975). In United States v. Broce, the Supreme Court rejected a double jeopardy challenge brought by two defendants as foreclosed by their guilty pleas, reasoning that their double jeopardy claim did - 11 - No. 10-5461 Leonard Groves, Jr., v. Joseph Meko, Warden not fall within Menna’s exception to the waiver rule because they could not “prove their claim by relying on th[eir] indictments and the existing record.” 488 U.S. 563, 576 (1989). These cases do not establish that an affidavit can be considered in the guilty-plea context to prove that the same conduct gives rise to both charges. Reference to an affidavit is, in my view, inappropriate. An affidavit can be contradicted by other affidavits, and the presence of an affidavit in the record without more does not support its accuracy. Thus, the decision of the Kentucky Court of Appeals was not an unreasonable application of Menna and Broce. I feel constrained to observe that Marshall v. Commonwealth, 625 S.W.2d 581 (Ky. 1981), and Gilbert v. Commonwealth, 637 S.W.2d 632 (Ky. 1982), were decided long before Groves pled guilty and have not been overruled. If in fact the reckless endangerment here was part of the robbery, one must wonder why trial counsel did not address the issue before Groves entered his pleas, and why this issue was not included in the ineffective-assistance-of-counsel claims. - 12 -	{ "pile_set_name": "FreeLaw" }
169 Ariz. 202 (1991) 818 P.2d 187 STATE of Arizona, Appellee, v. Louise GALLAGHER, aka Louise Marks, Appellant. No. 1 CA-CR 89-1173. Court of Appeals of Arizona, Division 1, Department B. May 28, 1991. Review Denied October 22, 1991. 203 Grant Woods, The Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., and Crane McClennen, Asst. Atty. Gen., Phoenix, for appellee. Kathleen Kelly, Phoenix, for appellant. OPINION JACOBSON, Presiding Judge. The primary issue presented by this appeal from a criminal conviction for unlawful killing of livestock is whether the estray laws of the state provide a complete defense. Appellant Louise Gallagher (defendant) was convicted of one count of criminal damage, a class 6 felony, and one count of unlawful killing of livestock, a class 5 felony, arising out of the shooting and killing of "Rosie," a six year old palomino horse in foal, owned by defendant's neighbor. The facts are taken in a light most favorable to sustaining the conviction. See State v. Arredondo, 155 Ariz. 314, 746 P.2d 484 (1987). A tenant of defendant testified that he informed defendant that several horses had gotten onto her property near a pig pen. The tenant testified that defendant "grabbed the gun and wanted to know if I wanted to go with her down to shoot a horse and I said no." The tenant then climbed to the roof of his trailer and watched defendant drive to the area where the horses were located, get out of her car, and shoot a horse. At trial, the tenant was impeached by a prior inconsistent statement and by the fact that he had been accused of stealing some tools from defendant's ex-husband. Defendant testified that, while armed with a rifle she carried for protection against coyotes and rattlesnakes, she had gone to feed the pigs when she came upon the three horses. She was startled as the horses ran toward her. As she backed up to avoid the onrushing animals, she tripped over a bush and the rifle accidentally discharged, killing "Rosie." However, an investigator with the livestock department testified that the path of the bullet was from the mare's neck on a downward path within the animal's body. There is no dispute that the shooting occurred on defendant's property and that the horses were on that property without defendant's permission. The trial court found defendant guilty on both counts, and sentenced her to concurrent terms of six months probation, including thirty days in the county jail. Sufficiency of the Evidence Defendant first contends that the state presented insufficient evidence to sustain the conviction. This contention is belied by simply referring to the tenant's testimony. Admittedly, the tenant was impeached, but the credibility of a witness is for the trier-of-fact, not an appellate court. State v. Lambright, 138 Ariz. 63, 673 P.2d 1 (1983), cert. denied, 469 U.S. 892, 105 S.Ct. 267, 83 L.Ed.2d 203 (1984). Given the evidence before the trial court and our standard of appellate review, see Arredondo, supra, we find sufficient evidence to uphold the verdict. "Taking Up" of Stray Animals Defendant's conviction for unlawful killing of livestock was based upon a violation of A.R.S. § 24-246(A), which provides: A person who knowingly kills or sells livestock of another, the ownership of which is known or unknown, or who knowingly purchases livestock of another, the ownership of which is known or unknown, from a person not having 204 the lawful right to sell or dispose of such animals is guilty of a class 5 felony. Defendant contends that because the trespassing mare was a stray animal, A.R.S. § 24-246(D) provides an absolute defense to prosecution both for criminal damage and for unlawful killing of livestock. That section provides: This section shall not apply to taking up animals under the estray laws. A.R.S. § 24-246(D) (emphasis added). Stray animals are defined as "livestock, sheep or swine whose owner is unknown or cannot be located, or ... known but permits the animal to roam at large on the streets, alleys, roads, ranges, or premises of another without permission." A.R.S. § 24-311. "Livestock" includes horses. A.R.S. § 24-101(2). There is no question that "Rosie" at the time of the shooting was a "stray animal" as defined by the estray laws. The question is whether that classification allows the killing of the animal with impunity based on a "taking up" defense under the estray laws. We believe not. The estray laws provide a comprehensive scheme by which a livestock inspector or officer may take possession of a stray and, if the owner is unknown or cannot be located, sell the animal at public auction. A.R.S. § 24-312(A). The statute further provides for notice of the sale, the right of the owner to retake possession, and the right of the owner to redeem the animal from the purchaser at auction. A.R.S. § 24-312(B), (C), and (D). The estray statutes also provide for disposition of funds realized at the sale. A.R.S. §§ 24-313, -314. The current statutory scheme, as compared to the prior law, creates no rights in private individuals with regard to strays. Compare Ariz.Code (1939) § 50-502 (providing a procedure for persons other than livestock inspectors to take possession and sell strays) with 1952 Ariz. Sess. Laws ch. 124, § 1 (currently incorporated into A.R.S. §§ 24-311 to -314). Moreover, even under the prior law, as in the current law, the authorization is for "taking up" stray animals, not destroying them. Although "taking up" is not defined by statute or Arizona case law, authority exists that the term means to take possession of an animal running loose on the range. See, e.g., Cochran v. State, 36 Tex.Crim. 115, 35 S.W. 968 (App. 1896). We agree with this definition. In our opinion, the authorization to "take up" a stray animal cannot be equated with authorization for its destruction. This conclusion is also supported by reference to the statutory predecessors of the current estray laws. See Ariz.Civ.Code (1901) § 2491 ("Any one who shall take up an animal shall, during the time it is in his possession as an estray, properly feed and care for the same, but shall not use the same"); Ariz. Civ.Code (1913) § 3811 (same); Ariz.Rev. Code (1928) § 2136 ("shall, during the time it is in his possession as an estray, feed and care for but not use the same"). We are also supported in this interpretation by A.R.S. § 24-504, which provides that if livestock enters onto lands that are enclosed by a lawful fence, the landowner is entitled to bring a suit for damages and impress a lien on the livestock for the amount of the judgment. This statutory scheme does not support a remedy of self-help by killing stray livestock. In summary, we hold that the estray laws do not provide a statutory right for private landowners to employ self-help by killing trespassing livestock. The judgment and sentence of the court are affirmed. EHRLICH and EUBANK, JJ., concur.	{ "pile_set_name": "FreeLaw" }
239 F.2d 25 99 U.S.App.D.C. 205 EASTERN AIR LINES, Inc., Appellant,v.UNION TRUST CO. et al., Appellees. Nos. 11991, 11992. United States Court of Appeals District of Columbia Circuit. Argued June 6, 1956.Decided Sept. 20, 1956.Petition for Rehearing In Banc Denied Jan. 9, 1957. [99 U.S.App.D.C. 207] Messrs. Joseph W. Henderson, Philadelphia, Pa., and Richard W. Galiher, Washington, D.C., with whom Mr. John M. Aherne, New York City, of the bar of the Supreme Court of New York, was on the brief, for appellant. Mr. David G. Bress, Washington, D.C., with whom Messrs. Sheldon E. Bernstein, Alvin L. Newmyer and Jo V. Morgan, Jr., Washington, D.C., were on the brief, for appellees. Before EDGERTON, Chief Judge, and WILBUR K. MILLER and FAHY, Circuit judges. WILBUR K. MILLER, Circuit Judge. 1 When these cases were first before us, we reversed the judgments against Eastern Air Lines in an opinion to which reference is made for a statement of the factual situation. 1955, 95 U.S.App.D.C 189, 221 F.2d 62. We held that, since the pilot of a National airliner flying in the general vicinity was admittedly not in a position during all of the critical period to hear radio messages sent by the control tower to the Eastern plane, and since he appeared not to have been fully attentive to such tower broadcasts as he actually did hear during that period, the National pilot's negative testimony that he heard no landing clearance given the Eastern plane did not have enough probative value, as against the tower operator's affirmative statement that he gave such clearance, to form an issue of fact for the jury. 2 Having so held, we concluded the trial court erred in submitting to the jury the question whether the Eastern plane had negligently deviated from the traffic pattern without tower clearance to do so, when it was struck from above and behind by the Bolivian plane. Because of that conclusion, we reversed the judgments without reaching other grounds for reversal advanced by Eastern Air Lines. 3 There followed a petition for a writ of certiorari, with respect to which the Supreme Court said December 5, 1955, 'The petition for writ of certiorari is granted and the judgment is reversed.' 350 U.S. 907, 76 S.Ct. 192. On petition for rehearing by Eastern Air Lines, the Supreme Court ordered on February 27, 1956: 4 'On consideration of the petition for rehearing the order of December 5, 1955, ante, p. 907 is reopened and is modified by directing that the case be remanded to the Court of Appeals to permit that court to pass upon the several issues left undecided by our reversal of its judgment.' 350 U.S. 962, 76 S.Ct. 429. 5 Thus the cases are again before us. Supplemental briefs have been filed and further oral argument has been heard. 6 Eastern Air Lines urges it was deprived of a fair trial by the plaintiff's 'clear design to destroy the character, integrity and credibility of the tower witnesses by baseless charges of fabrication and concoction.' The trial judge told the jury such charges had first been made and then withdrawn, and then charged in regard thereto: 'So, therefore, I want [99 U.S.App.D.C. 208] to immediately have you dispel that from your minds, because counsel have said there is no charge of fabrication or concoction or subornation of perjury, if you will, in this case.' While the record furnishes some basis for supposing the plaintiffs had the design attributed to them by Eastern, we think the court's admonition was adequate to remove any possible prejudice from the minds of the jurors if they were otherwise unprejudiced, and that reversal on this ground alone is not warranted. 7 Eastern says it was gravely prejudiced by the fact that the jury heard all the evidence in the non-jury case; that alleged fault on the part of the tower operators was imputed to it by the jury. Even though we assume that Eastern was disadvantaged because the cases against it and the non-jury cases against the Government were tried at the same time, Eastern for reasons then deemed prudent consented to consolidation of the cases for simultaneous trial. It cannot now complain because this was done. 8 In our first opinion we rejected Eastern's contention that the trial court erred in receiving in evidence the approach and landing pattern offered as an exhibit by the appellees because it had not properly been officially prescribed; and held the Eastern pilots were required to follow the pattern unless landing clearance, which authorizes deviation from it, had been given by the tower. Eastern urges that we reconsider the ruling and hold the pattern inadmissible. We adhere to our original holding in this regard. 9 Finally, Eastern urges that the trial judge erred in denying its alternative motions for judgment non obstante veredicto or for a new trial, filed under Rule 50(b), Federal Rules of Civil Procedure.1 The motion asked the court to set aside the verdicts in favor of Bridoux, the Bolivian pilot, as well as those against Eastern. The appellees moved for a new trial of their cases against Bridoux if a new trial were awarded to Eastern Air Lines. 10 The new trial issue includes the inquiry whether the verdicts were against the clear weight of the evidence, whether they were induced by passion, sympathy and prejudice, and whether a miscarriage of justice will result therefrom. These included inquiries, particularly the latter, contain a combination of questions. One phase of resulting injustice is asserted by the appellant in this quotation from its supplemental brief, at pages 2 and 3: 11 '* * * The District Court, in the Tort Claims Act cases, found that Eastern had been cleared to land, and this Court ruled that such finding was 'amply justified' (Op. p. 33; (95 U.S.App.D.C. 189), 221 F.2d 62, 79). Under the trial court's charge to the jury, Eastern could have been found liable only if it had not been cleared to land. Having found against Eastern the jury necessarily found that Eastern was not cleared to land, thus placing it in direct conflict with the fact finding of the Trial Judge. The result is an extraordinary and unusual situation [99 U.S.App.D.C. 209] in which, having heard the same evidence from the same witnesses, at the same time, and on the same record, the court (as a trier of the facts) and jury reach precisely contradictory conclusions. Based upon the court's fact finding, final judgments have been entered against the United States and duly affirmed by this Court and by the United States Supreme Court. The Jury finding against Eastern is now before this Court for examination to determine if a new trial should be had. 12 'It is a self-evidence truth that the same proposition cannot be true and false at the same time, and under the same aspect. Therefore either the jury was wrong in finding that Eastern was not cleared to land, or the Trial Judge was wrong in finding that Eastern was cleared to land. The existence of this extraordinary and unseemly conflict of findings speaks most eloquently to the necessity for a new trial.' 13 Before considering the new trial issue, we must decide whether the phase of it suggested in the forgoing quotation remains open after remand, in view of the Supreme Court's decision that the District Court did not err in submitting the clearance question to the jury. We think it is still open. In submitting the clearance question to the jury, the trial judge simply held that, viewing the evidence in a light most favorable to the plaintiffs, an issue of fact had been raised, and in this he has been upheld by the Supreme Court; but he did not weigh or evaluate the evidence pro and con until he ruled on the motion for a new trial, and this ruling has not been passed on by the Supreme Court. 14 A holding that a verdict for the defendant should not be directed does not necessarily mean that a verdict against him should not be set aside on a motion for a new trial. There is a clear distinction between a trial judge's duty in ruling on a motion for a directed verdict and his duty in ruling on a motion for a new trial. The distinction is reflected in Rule 50(b) and is shown in the cases. For example, in Garrison v. United States, 4 Cir., 1932, 62 F.2d 41, Judge Parker said, at page 42: 15 '* * * Where there is substantial evidence in support of plaintiff's case, the judge may not direct a verdict against him, even though he may not believe his evidence or may think that the weight of the evidence is on the other side; for, under the constitutional guaranty of trial by jury, it is for the jury to weigh the evidence and pass upon its credibility. He may, however, set aside a verdict supported by substantial evidence where in his opinion it is contrary to the clear weight of the evidence, or is based upon evidence which is false; for, even though the evidence be sufficient to preclude the direction of a verdict, it is still his duty to exercise his power over the proceedings before him to prevent a miscarriage of justice. * * ' 16 In Aetna Casualty & Surety Co. v. Yeatts, 1941, 122 F.2d 350, the Fourth Circuit again discussed the subject, and said at pages 352-353: 17 ' * * On such a motion (for a new trial) it is the duty of the judge to set aside the verdict and grant a new trial, if he is of opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict. The exercise of this power is not in derogation of the right of trial by jury but is one of the historic safeguards of that right. Smith v. Times Pub. Co., 178 Pa. 481, 36 A. 296, 35 L.R.A. 819; Bright v. Eynon 1 Burr. 390; Mellin v. Taylor 3 B.N.C. 109, 132 Eng.Reports 351. The matter was well put by Mr. Justice Mitchell, speaking for the Supreme Court of Pennsylvania in Smith v. Times Publishing Co., supra * * * as [99 U.S.App.D.C. 210] follows: 'The authority of the common pleas in the control and revision of excessive verdicts through the means of new trials was firmly settled in England before the foundation of this colony, and has always existed here without challenge under any of our constitutions. It is a power to examine the whole case on the law and the evidence, with a view to securing a result, not merely legal, but also not manifestly against justice,-- a power exercised in pursuance of a sound judicial discretion, without which the jury system would be a capricious and intolerable tyranny, which no people could long endure. This court has had occasion more than once recently to say that it was a power the courts ought to exercise unflinchingly. (Italics supplied)." And at page 354, the court said: 18 'To the federal trial judge, the law gives ample power to see that justice is done in causes pending before him; and the responsibility attendant upon such power is his in full measure. While according due respect to the findings of the jury, he should not hesitate to set aside their verdict and grant a new trial in any case where the ends of justice so require.' 19 The foregoing paragraph was repeated in Virginian Ry. Co. v. Armentrout, 4 Cir., 1948, 166 F.2d 400, 408, 4 A.L.R.2d 1064, with this addition: 20 'The power of this court to reverse the trial court for failure to exercise the power, where such failure, as here, amounts to an abuse of discretion, is likewise clear. * * ' 21 Other cases setting forth these principles include the following: Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147; Mt. Adams & E. P. Inclined Ry. Co. v. Lowery, 6 Cir., 1896, 74 F. 463; Felton v. Spiro, 6 Cir., 1897, 78 F. 576; Adams v. United States, 7 Cir., 1940, 116 F.2d 199; General American Life Ins. Co. v. Central Nat. Bank, 6 Cir., 1943, 136 F.2d 821; Marsh v. Illinois Central R. Co., 5 Cir., 1949, 175 F.2d 498; Southern Pac. Co. v. Guthrie, 9 Cir., 1951, 186 F.2d 926, 932, note 10; Snead v. New York Central R. Co., 4 Cir., 1954, 216 F.2d 169. 22 We conclude, on the authorities and on reason as well, that the trial judge had the power and duty to grant a new trial if the verdicts were against the clear weight of the evidence, or if for any reason or combination of reasons justice would miscarry if they were allowed to stand; and that this court has the power and duty to reverse and order a new trial if the trial judge abused his discretion in denying the motion therefor. 23 As to what has been said so far in this opinion, the court is unanimous. We are not in agreement, however, as to the disposition of the new trial issue. My brothers Edgerton and Fahy take the view that the verdicts were not so clearly against the weight of the evidence or so plainly the result of passion, prejudice and sympathy, or otherwise so unjust that the trial judge can be said to have abused his discretion in refusing to grant a new trial. It follows that this final point urged by Eastern is rejected by a majority of the court and the judgments against the appellant will be affirmed. 24 I think Eastern Air Lines is entitled to a new trial and that the trial judge abused the judicial discretion committed to him when he denied the motion. Although the discretion is broad and appellate review thereof is limited in scope, I suggest that the denial of a new trial must be held an abuse of discretion when it is demonstrable beyond peradventure that the verdict was flagrantly against the great weight of the evidence and that grave injustice will flow from it. Such is the situation here, in my opinion. 25 In the first place, a simple statement of what happened on the fatal morning is sufficient to arouse misgivings as to the validity of the jury's verdict. Shortly before noon on a clear, bright day, the Eastern airliner with two experienced pilots and 53 other persons aboard, was [99 U.S.App.D.C. 211] swinging into final approach for landing. The Bolivian pilot, in a warplane so constructed that he could not see before and below him, was hurrying to land because of an ailing engine. He mistakenly thought, without asking the tower, that the plane authorized to land ahead of him on the runway he was approaching had already landed and was out of the way. So he came hurtling downward and, without ever seeing the Eastern plane, struck it from above and behind, cut it in two, and killed the 55 persons who were aboard. Yet the jury said the Bolivian pilot was not negligent, and that the collision was caused by negligence on the part of the airliner's pilot. 26 There is no basis whatever for exonerating the Bolivian of negligence, as I shall show. The only substantial basis for attributing negligence to the stricken airliner is the charge that it had not been cleared to land and so had unauthorizedly deviated from the pattern when it swung into final approach, and had negligently placed itself in the path of danger. Undoubtedly the jury decided to conclude that the tower had not cleared the Eastern plane for landing,2 so the weight of the evidence on that subject must be examined. 27 The tower operator unqualifiedly said he had given clearance to Eastern. He said the liner responded immediately to all his instructions from the time of its first appearance, including his direction to turn, unfortunately given too late, when he saw Bridoux was coming on regardless. The dead pilots are presumed to have done their duty. They were experienced men entrusted with the lives of a large number of people, and were of course imbued with the universal instinct of self-preservation. Moreover, the tower operator was confirmed by Bridoux himself, perhaps unwittingly, when he said the tower told him, 'You are No. 2 to land on runway 3.' The evidence shows no plane but Eastern which could have been No. 1 to land on that runway. 28 There was no affirmative evidence tending to show that landing clearance had no been given to the airliner. Lt. Shaw, the National pilot flying near Hains Point, merely said he heard none. His negative testimony is the only basis for the jury's conclusion. Shaw admitted, however, that he could not hear tower messages when his colleague depressed the transmitting key. He was engaged at the controls of a large airplane and did not remember all the tower communications which he did hear. 29 The jury's finding that Eastern had not been cleared to land, based on such flimsy evidence, when considered in connection with its astonishing verdict in favor of Bridoux, impresses me as having been the product of emotion rather than of evidence. I think the trial judge abused his discretion in not setting aside the verdicts as arbitrarily arrived at, contrary to the overwhelming weight of the evidence. 30 This brings me to a consideration of the jury's exoneration of Bridoux and the part it probably played in producing the verdicts against Eastern Air Lines. There may be some question as to whether the verdict in favor of the Bolivian pilot, who was of course a defendant in the jury trial along with Eastern, is before us for review since there was no appeal from the judgment thereon. The propriety of the verdict was before the district judge, however, on the motion for a new trial; it was expressly drawn to his attention and he had the power sua sponte to grant a new trial of the cases against Bridoux. Sulzbacher v. Continental Casualty Co., 8 Cir., 1937, 88 F.2d 122. Regardless of that, the fact that the jury found for Bridoux is pertinent for consideration; for, if the verdict in his favor was contrary to the weight of the evidence and was dictated by sympathy, as I think it clearly was, the jury's willingness to depart from the evidence and to be swayed by emotion is demonstrated. 31 [99 U.S.App.D.C. 212] The source of the jury's sympathy for Bridoux is easily seen in his testimony. His story was a moving one, even in cold print. It must have been even more dramatic and appealing when he told from the witness stand in faulty English how he had never seen the Eastern craft, how he plunged into the Potomac, and how he escaped from his plane as it lay on the bottom of the river, although he was grievously injured. 32 But the fact is that, to all intents and purposes, he admitted guilt of the grossest sort of negligence, except for which the collision would not have occurred. He was flying over the busy National Airport a plane which probably should not have been permitted to ascend into such crowded air because its structural design limited visibility and because it had a defective engine which developed trouble when he had been aloft only a few minutes. He was in a hurry to land. 33 In this situation, when the tower said in response to his request for landing instructions, 'You are No. 2 to land on runway 3,' Bridoux said he regarded the statement as actual and absolute landing clearance as soon as he should decide for himself, without further communication from or with the tower, that the No. 1 plane to land on runway 3 was out of the way. Not only did he testify that he so regarded the tower statement when it was made to him, but he also argumentatively insisted from the witness stand that he had correctly interpreted the tower message. 34 This misinterpretation, due either to stupidity or unfamiliarity with the English language, was the primary cause of the collision, for Bridoux acted in accordance with his misunderstanding. He said he saw a plane on the ground ahead of him which he concluded was the No. 1 plane already landed, and so he thought it unnecessary to check with the tower to learn whether the plane cleared to land before him had actually landed. Instead he proceeded to descend blindly at the rate of 500 feet per minute and at a forward speed of 150 miles per hour. As a consequence he struck the Eastern plane, which he never saw and which was vainly trying to escape from him in response to frantic warning given by the tower operator when he saw Bridoux was not turning to the left as he had been told to do. Bridoux said he heard this instruction but thought it was directed to a plane on the ground. The fact that the Bolivian pilot's mistaken idea that he had been authorized to land without further clearance was the primary cause of the collision is also reflected in these questions to Bridoux and his answers to them: 35 'Q. It would have prevented this accident, wouldn't it, if you had called the tower and inquired as to the identity of the plane ahead of you? A. Except that I happened to observe this plane on final approach, not any other plane. Therefore I assumed this was the No. 1. This was the only one on final approach. 36 'Q. And that is where the trouble came in, because you assumed that was the plane that was ahead of you, isn't it, Captain? A. Probably, sir.' 37 In view of the foregoing, it is unthinkable that the jury had any reason except sympathy for finding that the probably judgment-proof Bridoux was not negligent. It was an easy step for such an impressionable jury, through sympathy for the more than 50 dead and their bereaved dependents, to find against the luckless appellant, whose witnesses were killed in the crash. 38 Other factors, insufficient standing alone to require reversal, may have contributed to the totality of unfairness. For example, the appellees' attempt to show 'that the tower statements and testimony did in fact result from mutual consultations between the tower men and their superiors'3 may have been regarded by the jury as a charge of fabrication and concoction and therefore as an attack on the veracity and integrity of the tower [99 U.S.App.D.C. 213] operators. To be sure, the appellees disclaimed any intention of charging them with corruption, and the court consequently admonished the jury to put out of their minds the idea there was any charge of concocted or fabricated testimony by the tower witnesses. But a jury willing to depart from the evidence so far as to find a verdict for the Bolivian pilot might well have been willing to ignore the court's admonition, and to seize upon the idea of fabrication as a reason for rejecting the tower testimony. 39 We have seen that it is the duty of a trial judge to grant a new trial when it is clearly necessary to do so in order to prevent a miscarriage of justice. He ought to perform the duty by exercising the power 'unflinchingly,' as the Pennsylvania court said. It is equally our duty to see that a miscarriage of justice does not result from a jury's verdict. From the same evidence which the jury heard, the trial judge found the tower operators had negligently cleared both Eastern and Bolivian to land on the same runway at approximately the same time, and awarded judgment against the Government principally because of that negligence. Thus he did not agree with the jury on the fundamental issue as to whether Eastern was negligent, but found that its plane had been cleared to land. His finding has in effect been affirmed by the Supreme Court, and I think is conclusively correct. Certainly it was amply justified by the evidence. Had the jury reached the same sound conclusion, it would have been bound to absolve Eastern. 40 This court's affirmance of the judgments against the appellant produces this anomalous situation: Eastern Air Lines and the United States have both been mulcted in damages because of contrary findings on a single fundamental factual issue. The judgments against both defendants cannot possibly be correct; justice has miscarried either as to Eastern or as to the Government. Since the Supreme Court has affirmed the judgments against the latter,4 and so has stamped approval on the finding that the Eastern plane was cleared to land, I see no escape from the conclusion that Eastern Air Lines is the victim of injustice. 41 I would resolve the anomaly by reversing the judgments and remanding the cases for a new trial with directions that, if the evidence on the subject is substantially the same as before, the landing clearance question should not be submitted to the jury, since the question has now, as it had not when the first jury was instructed, been authoritatively answered; other acts of negligence alleged against Eastern, if supported sufficiently by evidence, should be submitted for the jury's consideration. I am unwilling to believe the court is powerless to right the wrong which has been done in these cases. 42 Affirmed. 1 The pertinent portion of the Rule is as follows: '(b) Reservation of Decision on Motion. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict * . A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. * *' 28 U.S.C.A. 2 The appellees urge, unconvincingly, I think, that the jury may have thought Eastern was cleared to land and may have found it negligent for some other reason. The other negligence attributed to Eastern was too slight, and too much dependent upon lack of clearance, to give credence to the argument 3 Appellees' brief on remand, p. 3 4 United States v. Union Trust Co., 1955, 350 U.S. 907, 76 S.Ct. 192	{ "pile_set_name": "FreeLaw" }
300 N.W.2d 206 (1980) STATE of North Dakota, Plaintiff and Appellee v. Timothy R. LEWIS, Defendant and Appellant. Cr. No. 720. Supreme Court of North Dakota. November 21, 1980. John M. Olson, State's Atty., and Patricia L. Burke, Asst. State's Atty. (argued), Bismarck, for plaintiff and appellee State of North Dakota. James J. Coles, of Bickle, Coles & Snyder, Bismarck, for defendant and appellant. VANDE WALLE, Justice. The State of North Dakota has filed a motion to dismiss the appeal of Timothy R. Lewis from a criminal judgment of conviction entered by the Burleigh County district court. We deny the motion to dismiss the appeal. Timothy R. Lewis was convicted in Burleigh County district court on January 11, 1980, by Judge Larry M. Hatch of the crime of robbery. Lewis was declared a dangerous special offender and sentenced to twenty years in the State Penitentiary under Section 12.1-32-09, N.D.C.C. Lewis was represented by court-appointed counsel throughout the preliminary hearing and court trial. On January 18, 1980, Lewis, acting pro se, mailed a notice of appeal from the judgment and sentence imposed by the trial court. He mailed that notice to the Honorable Larry M. Hatch, Judge, at the district court chambers, Burleigh County Courthouse, Bismarck, North Dakota, and to Mr. John M. Olson, Burleigh County State's Attorney, Courthouse, Box 1901, Bismarck, North Dakota. On February 19, 207 1980, Judge Hatch wrote the following letter to Lewis: "On or about the 23rd day of January, 1980 I received your notice of appeal. Recently, I asked the Clerk of District Court in Burleigh County if she had received a notice of appeal from you. She stated that she had not. "Notices of appeal should be filed in the office of the Clerk of Court wherein the matter was filed, in your case Burleigh County. I merely inform you of this and suggest that you consult with an attorney." Lewis apparently took no further action until March 19, 1980, when he filed a notice of intent to make application for the issuance of a writ of mandamus against Marian Barbie, Clerk of the District Court, and Judge Hatch directing them "to perform the duties of their office."[1] Lewis did not file the notice of appeal with the Clerk of District Court of Burleigh County as suggested by Judge Hatch. Lewis contends he thought that Judge Hatch would file the notice of appeal. Upon learning subsequently that Lewis had not filed the notice of appeal with the Clerk, Judge Hatch filed the notice. The record reveals that the notice was filed with the Clerk of the District Court, Burleigh County, on April 10, 1980. On September 26, 1980, the State filed a motion to dismiss the appeal "by and for the reasons that this Court does not have jurisdiction over the appeal, that Defendant-Appellant has failed to follow the Rules of Appellate Procedure, and that such appeal is frivolous." As a basis for its motion to dismiss, the State argues: 1. This court lacks jurisdiction over the appeal because the notice of appeal was not properly filed as required by Rule 4(b) of the North Dakota Rules of Appellate Procedure. 2. A dismissal is warranted under Rule 31(c), North Dakota Rules of Appellate Procedure, because the transcript was not ordered and Lewis's brief was not filed within the time prescribed by the rules. 3. Lewis's appeal is frivolous in that there are no questions of fact or law which would necessitate an appeal. Turning to the first issue raised by the State, the lack of jurisdiction over the appeal, we note that Rule 4(b), N.D.R.App.P., provides, in part: "In a criminal case the notice of appeal by a defendant shall be filed with the clerk of the trial court within 10 days after the entry of the judgment or order appealed from." The State refers us to the decision of this court in City of Minot v. Lundt, 268 N.W.2d 482, 484 (N.D.1978), wherein the court stated: "This court has held that an appeal is governed by the appellate rules and that a failure to file a notice of appeal within the prescribed time as set forth in Rule 4(b), N.D.R.App.P., is fatal." The Lundt decision quoted from the decision in State v. Metzner, 244 N.W.2d 215, 220 (N.D.1976), holding that Rule 4(b), N.D. R.App.P., and Rule 37(b), N.D.R.Crim.P., are mandatory and jurisdictional and compliance with the jurisdictional requirement that the notice of appeal be timely filed cannot be waived by this court. There is no dispute that Lewis, acting pro se, sent the notice of appeal to Judge Hatch within the 10-day limit prescribed by the 208 rules. Rather, the State's position is that Lewis's attempt to file his notice of appeal with the District Judge rather than the Clerk of District Court was ineffectual and that the notice of appeal was effectually filed only on April 10, 1980, the day Judge Hatch filed it. Because that is more than 10 days from the date of the criminal conviction, the State argues the notice of appeal was not timely filed.[2] An examination of the Lundt decision reveals little similarity with the facts of this case. In Lundt an appeal was taken from the Minot municipal court to the district court. A written order of dismissal of the appeal was filed by the district judge on April 29, 1976, after Lundt failed to appear. Lundt did not file a notice of appeal of the order of dismissal with the clerk of the district court until February 22, 1978, two years and 11 months after the order of dismissal was entered. Although there had been considerable correspondence between Lundt and this court, the court noted that it could not be equated to or considered as constituting a notice of appeal because it did not specify the party taking the appeal, did not designate the order appealed from, and did not name the court to which the appeal was taken. In this instance the notice of appeal filed with Judge Hatch was timely, and it met all other requirements for a notice of appeal. A copy was simultaneously served on the State's Attorney, so the State cannot complain it lacked knowledge of Lewis's intent to appeal. At oral argument counsel for the State conceded that at the time it received the notice of appeal it had no reason to suspect the notice of appeal had been filed with the District Judge rather than the Clerk of the District Court. In Metzner the notice of appeal was not filed within the 10-day period required by Rule 4(b) nor within the 40-day period permitted by the extension provision of that rule. This court noted that there was "nothing in the record showing that Metzner communicated to the district court, within the time requirements set forth in Rule 4(b), N.D.R.App.P., and in Rule 37(b), N.D.R.Crim.P., his intent to appeal from the burglary conviction." State v. Metzner, supra, 244 N.W.2d at 220. Here, Lewis did communicate to the District Court his intent to appeal although that communication was sent to the District Judge rather than the Clerk of Court. Lewis argues that he has "substantially complied" with the rules of appellate procedure and that we have jurisdiction to hear this case on its merits. We do not adopt a standard of "substantial compliance" with the provisions of Rule 4(b), N.D. R.App.P., or Rule 37(b), N.D.R.Crim.P., insofar as the filing of the notice of appeal is concerned. However, under the peculiar facts of this case we conclude Lewis's notice of appeal filed with the District Judge and served upon the State's Attorney within 10 days after the judgment of conviction is sufficient to give this court jurisdiction over the appeal. The State also urges us to dismiss the appeal because Lewis did not order the transcript of proceedings within the time specified by Rule 10(b), N.D.R.App.P., nor file his brief within the time specified by Rule 31, N.D.R.App.P. The transcript was not ordered until August 7, 1980.[3] Rule 3(a), N.D.R.App.P., provides that failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal but does permit this court to dismiss the appeal. We decline to dismiss the appeal 209 on the grounds asserted by the State even though Lewis's inaction in promptly ordering the transcript may appear to invite us to do so. A brief recitation of some additional facts may explain our unwillingness to dismiss the appeal on these grounds. Lewis was represented at trial by court-appointed counsel. Following the judgment of conviction Lewis's counsel informed him there did not appear to be sufficient grounds upon which to base an appeal, although counsel did inform Lewis, by letter, of the time within which an appeal must be filed and also informed Lewis that he should request assistance on such an appeal should he desire to proceed. The letter also indicated that Lewis might wish to request appointment of different counsel. Lewis did not further correspond with his counsel nor was his counsel aware that Lewis was involved in an appeal to this court in another matter in which the obligation of court-appointed counsel who finds no merit in an appeal of a criminal conviction was at issue. See State v. Lewis, 291 N.W.2d 735 (N.D.1980). Lewis argues he was unaware of his rights in those instances in which his court-appointed counsel has informed him he finds no basis for an appeal and that he assumed he must act as his own attorney if he was to proceed with an appeal. In State v. Lewis, supra, Lewis did appear pro se after his court-appointed counsel had filed a brief in an attempt to comply with the requirements of Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.al 493 (1967). In Lewis we noted that in North Dakota a defendant has a right to appeal from a verdict or judgment of conviction as a matter of law and that, rather than the Anders procedure, "... the proper procedure to be followed by the courts of this State in cases such as the one before us in which the court-appointed defense counsel believes that the indigent defendant's appeal is without merit is to appoint another attorney to represent the defendant on appeal as soon after the initially appointed attorney makes his opinion as to frivolity known to the court as is practical." State v. Lewis, supra, 291 N.W.2d at 738. Our decision in Lewis was not issued until April 30, 1980, some time after the filing of the notice of appeal by Judge Hatch. Lewis was acting as his own counsel during this period of time because he believed his court-appointed defense counsel would not represent him on appeal and his right to other counsel appointed by the trial court had not yet been delineated by this court. It is apparent from a reading of the application for a writ of mandamus filed with this court that Lewis believed the Clerk of the District Court had custody of the transcripts and refused to provide them to him. It is also apparent, therefore, that Lewis was unaware of his obligation to order a transcript. His application for a writ of mandamus specifies that a copy of the transcript was necessary for him to prepare and submit his brief on appeal. We do not believe that any rule or statute should be modified, altered, or applied differently merely because a party not learned in the law was or is proceeding pro se in an appeal. Latendresse v. Latendresse, 294 N.W.2d 742 (N.D.1980). However, the circumstances recited above cause us to conclude we should not, in this instance, dismiss the appeal for failure to timely order the transcript and file the brief. Finally, the State argues that we should dismiss Lewis's appeal because it is frivolous, in that there are no questions of fact or law which would necessitate an appeal. Lewis insists that an examination of the complete record will disclose potential grounds for a new trial or reversal, but we do not intend at this time to examine the complete record to determine whether or not the appeal is frivolous. In view of Lewis's position that there are potential grounds for a new trial or reversal of his conviction, it would be preferable that he specifically point to some of these potential grounds, particularly in view of his noncompliance with some of the appellate rules. Nevertheless, we are aware that Lewis's sentence is severe, i. e., 20 years in the State Penitentiary. In view of the seriousness 210 of the crime charged and the sentence imposed we conclude a review of Lewis's issues on the merits is warranted. State v. Packineau, 270 N.W.2d 336 (N.D.1978). For the reasons stated in this opinion the motion to dismiss the appeal is denied. ERICKSTAD, C. J., and PAULSON and SAND, JJ., concur. PEDERSON, Justice, concurring specially. Paraphrasing what Justice Vogel wrote in State v. Haakenson, 213 N.W.2d 394, 399 (N.D.1973), the only traps for the unwary on the road to the appellate courthouse that should not be eliminated are: (1) the matter is first raised in the trial court, and (2) there be a valid appeal from the judgment. In agreeing with Justice Vande Walle, I would not want anyone to think that I agree to removing trap number (2). An appeal from a judgment must be filed in order to be a valid appeal, but if the failure to file is the result of action contributed to by court officials, I think that fair play requires that an exception be made. NOTES [1] On May 16, 1980, Lewis, still acting pro se, filed an application for a writ of mandamus with this court to secure copies of the trial transcript which were alleged to be in the possession of Marian Barbie, Clerk of the District Court. The application was denied but was referred to Judge Hatch for appointment of counsel. Judge Hatch, on May 29, 1980, requested that court-appointed counsel continue to represent Lewis on appeal. Counsel has undertaken the representation of Lewis on appeal, filed the brief in opposition to the State's motion to dismiss the appeal, and argued the motion orally, although a letter from Lewis to Judge Hatch dated June 4, 1980, and supplied to us by the State, indicates Lewis did not wish his trial counsel to represent him on appeal. If Lewis did not wish present counsel to represent him on appeal he has not so informed us. [2] Although Rule 4(b), N.D.R.App.P., provides that upon a showing of excusable neglect the trial court may, before or after the time has expired, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed, the State points out that the filing of the notice of appeal on April 10, 1980, would still be beyond the period permitted by that provision of Rule 4(b). See Rule 26(b), N.D.R.App.P.; Dehn v. Otter Tail Power Co., 248 N.W.2d 851 (N. D.1976). [3] Although the transcript had been completed at the time we heard the State's motion to dismiss the appeal, the brief had not yet been filed.	{ "pile_set_name": "FreeLaw" }
528 F.2d 309 Robert Louis ROSEBORO, Appellant,v.Sam P. GARRISON, individually and in his official capacityas Warden of Central Prison, Appellee. No. 75--1082. United States Court of Appeals,Fourth Circuit. Argued June 10, 1975.Decided Oct. 15, 1975. Jacob L. Safron, Asst. Atty. Gen., N.C. and (Rufus L. Edmisten, Atty. Gen., N.C., on brief) for appellee. Roy T. Stuckey, Columbia, S.C. (Court-assigned counsel), for appellant. Before RUSSELL, FIELD and WIDENER, Circuit Judges. PER CURIAM: 1 Robert Louis Roseboro, an inmate of the Central Prison in Raleigh, North Carolina, instituted this action under 42 U.S.C. § 1983 seeking declaratory and injunctive relief as well as damages for alleged violations of his constitutional rights. The district court granted the defendant's motion for summary judgment and upon this appeal Roseboro contends that summary disposition of his case was improper. 2 Three of the allegations of Roseboro's pro se complaint were directed at his custody classification and consequent transfer from Polk Youth Center to Central Prison, and the remaining allegations challenge his segregation from the general prison population, the conduct of the prison guards and the failure to furnish him certain medical treatment. In support of his summary motion the defendant submitted his own affidavit, together with the affidavits of other members of the prison staff bearing upon the allegations of the complaint. Finding that the affidavits were in compliance with Rule 56(e) of the Federal Rules of Civil Procedure, and noting that the plaintiff had failed to file any counter-affidavit controverting those submitted by the defendant, the district court concluded that summary judgment was appropriate. 3 In Wooten v. Shook, 527, F.2d 976 (4 Cir. 1975), we stated that '(w)hile we do not hold that an evidentiary hearing is required in every case such as this, the district court should ordinarily require that a dismissal or summary motion be supported by affidavit or other material sufficiently demonstrating that there is no factual issue and that dismissal is appropriate as a matter of law.' In the present case, of course, the defendant has met this requirement and if this were an ordinary civil action the failure of Roseboro to file any counter-affidavit would warrant the entry of summary judgment. We agree with the plaintiff, however, that there is another side to the coin which requires that the plaintiff be advised of his right to file counter-affidavits or other responsive material and alerted to the fact that his failure to so respond might result in the entry of summary judgment against him. In our opinion the appropriate rule was set forth in Hudson v. Hardy, 134 U.S.App.D.C. 44, 412 F.2d 1091, 1094 (1968), where the court stated: 4 'We hold that before entering summary judgment against appellant, the District Court, as a bare minimum, should have provided him with fair notice of the requirements of the summary judgment rule. We stress the need for a form of notice sufficiently understandable to one in appellant's circumstances fairly to apprise him of what is required.' 5 Assuredly, a pro se plaintiff is entitled to such a reasonable safeguard when confronted with the possibility of summary disposition of his case. 6 Since Roseboro was not represented by counsel in this case and there is nothing in the record to indicate that he was notified of his right or responsibility with respect to the defendant's motion, the judgment of the district court must be reversed and the case remanded for further proceedings consistent with this opinion. 7 Reversed and remanded.	{ "pile_set_name": "FreeLaw" }
498 F.3d 1156 (2007) UNITED STATES of America, Plaintiff-Appellee, v. Adrian COOPER, Defendant-Appellant. No. 06-6309. United States Court of Appeals, Tenth Circuit. August 21, 2007. 1157 Submitted on the briefs:[] Scott E. Williams, Assistant United States Attorney (and John C. Richter, United States Attorney, on the brief), Oklahoma City, OK, for Plaintiff-Appellee. Susan M. Otto, Federal Public Defender, Oklahoma City, OK, for Defendant-Appellant. Before KELLY, MURPHY, and O'BRIEN, Circuit Judges. PAUL KELLY, Jr., Circuit Judge. Defendant-Appellant Adrian Cooper seeks to appeal the restitution award imposed by the district court and its decision to require Mr. Cooper to submit a DNA sample as a condition of supervised release. Specifically, Mr. Cooper argues 1158 that the government failed to produce sufficient evidence to prove that Joshua Kuhn was a "victim" of Mr. Cooper's related conduct, and that the total restitution award should be reduced by $135,000 as a result. Mr. Cooper also argues that the condition of supervised release violates the Fourth Amendment, given that he is a first-time offender convicted of non-violent crimes. The government responds that Mr. Cooper's entire appeal is barred by the waiver of the right to appeal contained in his plea agreement. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we conclude that both of Mr. Cooper's challenges fall within the scope of the waiver and, accordingly, we dismiss his appeal. Background On November 16, 2005, a grand jury issued a nineteen-count indictment against Mr. Cooper charging him with securities fraud, wire and mail fraud, money laundering, and the use of false social-security numbers. R. Doc. 1. The charges stemmed from several schemes created by Mr. Cooper to defraud investors while he worked as a stock broker at Merrill Lynch and to defraud real estate investors and other investors independent of his employment at Merrill Lynch. On March 27, 2006, Mr. Cooper pled guilty to Count 1 (securities fraud) and Count 4 (money laundering) pursuant to a negotiated plea agreement with the government. R. Docs. 23 & 24. The indictment described in detail the victims of the acts that formed the basis for Counts 1 and 4. The indictment did not list Mr. Kuhn as a victim of either count. The plea agreement stated: [T]he Court must order the payment of restitution to the victims of the offense. Pursuant to 18 U.S.C. §§ 3663(a)(3) and 3663A, the parties further agree that, as part of the sentence resulting from the defendant's plea, the Court will enter an order of restitution for all losses caused to the victims of the defendant's relevant conduct[[1]] determined by reference to the United States Sentencing Guidelines. R. Doc. 23 at 2-3. The plea agreement also contained a waiver of the right to appeal, in which Mr. Cooper agreed to: . . . knowingly and voluntarily waive[ ] his right to appeal, collaterally challenge, or move to modify . . . [his] guilty plea and any other aspect of his conviction . . . [and the] sentence as imposed by the Court and the manner in which the sentence is determined. . . . Id. at 5. According to the pre-sentence report (PSR), Mr. Cooper's relevant conduct included $200,000 in related fraud against Mr. Kuhn. Of this amount, the PSR concluded that Mr. Cooper still owed Mr. Kuhn $135,000. Mr. Cooper objected to the $135,000 figure because Mr. Kuhn possessed a fourth-in-line mortgage on Mr. Cooper's house and could possibly recover the entire amount upon foreclosure. The district court overruled Mr. Cooper's objection. On September 18, 2006, the district court sentenced Mr. Cooper to serve 75 months' imprisonment. It also ordered Mr. Cooper to pay restitution to various victims in the total amount of $968,656, which included $135,000 in restitution to Mr. Kuhn. The district court also imposed, as a condition of Mr. Cooper's supervised release, that he "cooperate in the collection 1159 of DNA as directed by the probation officer." R. Doc. 43, at 3. Discussion Waivers of the right to appeal are generally enforceable. See United States v. Gordon, 480 F.3d 1205, 1207 (10th Cir.2007). "Consequently, before reaching the merits of this appeal, we must determine whether such review is precluded by the waiver." Id. First, we determine "whether the disputed appeal falls within the scope of the waiver of appellate rights." United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.2004). If the appeal does not fall within the scope of the waiver, our analysis ends and we proceed to the merits. If the appeal is within the scope of the waiver, we must next determine "whether the defendant knowingly and voluntarily waived his appellate rights," and "whether enforcing the waiver would result in a miscarriage of justice. . . ." Id. As we have stated frequently, plea agreements are governed by contract principles. Gordon, 480 F.3d at 1207 (citing United States v. Rockwell Int'l Corp., 124 F.3d 1194, 1199 (10th Cir.1997)). One consequence is that any ambiguities in a plea agreement are construed against the government. Id. (citing Restatement (Second) of Contracts § 206 (1981) for the doctrine of contra proferentem). Thus, in determining the scope of Mr. Cooper's waiver, we will construe all ambiguities in the agreement against the government and in favor of Mr. Cooper. In this case, Mr. Cooper agreed to a broad waiver of appellate rights. Essentially, Mr. Cooper agreed to waive two things: (1) his right to challenge his "guilty plea and any other aspect of his conviction," and (2) his right to challenge the "sentence as imposed by the Court and the manner in which the sentence is determined." R. Doc. 23, at 5. Mr. Cooper does not challenge the fact of his guilt, so the first waiver is not implicated. The second waiver is implicated, however, and the government argues that Mr. Cooper's challenge to the restitution award falls within the scope of his waiver of the right to challenge his "sentence as imposed by the Court." We have yet to determine whether a general waiver of the right to appeal a "sentence" necessarily includes a waiver of the right to appeal all restitution awards. A majority of our sister circuits have concluded that such language does not include a general waiver of the right to appeal a restitution award. See United States v. Sistrunk, 432 F.3d 917, 918 (8th Cir.2006); United States v. Smith, 344 F.3d 479, 483 (6th Cir.2003); United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir.2000); United States v. Zink, 107 F.3d 716, 717-18 (9th Cir.1997); United States v. Ready, 82 F.3d 551, 560 (2d Cir.1996); but see United States v. Cohen, 459 F.3d 490, 497 (4th Cir.2006). In this case, however, the plea agreement makes clear that the parties considered a restitution award for victims of Mr. Cooper's related conduct to be part of his "sentence." The plea agreement expressly and unambiguously states: "[T]he parties further agree that, as part of the sentence resulting from the defendant's plea, the Court will enter an order of restitution for all losses caused to the victims of the defendant's relevant conduct. . . ." R. Doc. 23 at 2-3 (emphasis added). The parties agree that this provision of the plea agreement formed the basis of the district court's $135,000 restitution award to Mr. Kuhn. Accordingly, Mr. Cooper's challenge to the amount of restitution awarded to Mr. Kuhn clearly falls within the scope of his waiver of the right to appeal. Similarly, Mr. Cooper's challenge to the condition of supervised release is 1160 also clearly part of his "sentence" and is thus barred by his waiver of the right to appeal. See United States v. Sandoval, 477 F.3d 1204, 1207 (10th Cir.2007) (noting that a condition of supervised release is part of the "sentence" imposed); see also 18 U.S.C. § 3583(a) (authorizing a district court to impose a term of supervised release "as a part of the sentence"). While we would normally proceed to determine whether Mr. Cooper's waiver was knowing and voluntary and whether enforcement of the waiver would result in a miscarriage of justice, Mr. Cooper does not raise these arguments in his brief and we deem them waived. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n. 7 (10th Cir.1994). Nevertheless, Mr. Cooper argues that his challenge to the restitution award should survive the waiver of the right to appeal because it constitutes a challenge to the legality of the restitution award. See Gordon, 480 F.3d at 1210. The exception created by Gordon however, is extremely narrow and applies only in the case where there is no factual dispute as to the amount of restitution linked to an offense and the legality of the district court's restitution award can therefore be reviewed solely as a question of law. Id. at 1209 n. 4. In this case, Mr. Cooper raises a factual challenge to the restitution award, arguing that the government failed to produce sufficient evidence to prove that Mr. Kuhn was a victim of Mr. Cooper's related conduct because Mr. Kuhn possessed a fourth-in-line mortgage on Mr. Cooper's house from which he might recover some of his losses. See Aplt. Br. at 9-10. Indeed, Mr. Cooper's own appellate brief characterizes his challenge as factual in nature: "[Mr. Cooper] presented a timely challenge to the inclusion of [Mr. Kuhn] who claimed losses associated with his conduct. Mr. Cooper stated a factual basis for his challenge. The United States did not rebut the factual assertion presented . . . and did not present additional evidence for the sentencing court's consideration." Aplt. Br. at 10 (emphasis added). A challenge to the amount of a restitution award based on sufficiency of the evidence is necessarily based on disputed facts and thus does not fall within the Gordon exception. Accordingly, it is clearly barred by a general waiver of the right to appeal a restitution award. DISMISSED. NOTES [] After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The cause therefore is ordered submitted without oral argument. [1] The Mandatory Victims Restitution Act states that "[t]he court shall also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense [of conviction]." 18 U.S.C. § 3663A(a)(3).	{ "pile_set_name": "FreeLaw" }
540 U.S. 990 SALLEEv.INDIANA. No. 03-6191. Supreme Court of United States. November 3, 2003. 1 Appeal from the Ct. App. Ind. 2 Certiorari denied. Reported below: 785 N. E. 2d 645.	{ "pile_set_name": "FreeLaw" }
[Cite as Gumins v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-4342.] Court of Claims of Ohio The Ohio Judicial Center 65 South Front Street, Third Floor Columbus, OH 43215 614.387.9800 or 1.800.824.8263 www.cco.state.oh.us DAVID GUMINS Plaintiff v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant Case No. 2006-06132 Judge Joseph T. Clark Magistrate Steven A. Larson JUDGMENT ENTRY {¶ 1} This case is sua sponte assigned to Judge Joseph T. Clark to conduct all proceedings necessary for decision in this matter. {¶ 2} On July 28, 2009, the magistrate issued a decision recommending judgment in favor of defendant. On October 13, 2009, the court overruled plaintiff’s objections without consideration of the App.R. 9(C) statements filed by the parties inasmuch as a transcript was “available” for the purposes of Civ.R. 53(D)(3)(b)(iii). Judgment was rendered in favor of defendant. {¶ 3} On July 20, 2010, the Tenth District Court of Appeals reversed the judgment of this court and remanded the case for further proceedings, stating in relevant part that “the trial court erred in finding the transcript was available in the face of plaintiff’s uncontested affidavit of indigency” and that “[o]n remand, the trial court will have the opportunity to determine whether to use affidavits under Civ.R. 53(D)(3)(b)(iii) or utilize the statements the parties proffered.” Gumins v. Dept. of Rehab & Corr. (July 20, 2010), Franklin App. No. 09AP-1063, ¶10-11. Case No. 2006-06132 -2- JUDGMENT ENTRY {¶ 4} Civ.R. 53(D)(3)(b)(iii) provides, in part: {¶ 5} “An objection to a factual finding, whether or not specifically designated as a finding of fact under Civ. R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that finding or an affidavit of that evidence if a transcript is not available.” (Emphasis added.) {¶ 6} As defined by R.C. 2319.02, an affidavit is “a written declaration under oath, made without notice to the adverse party.” {¶ 7} The App.R. 9(C) statements filed by the parties are not sworn statements and are therefore not “affidavits” as required by Civ.R. 53(D)(3)(b)(iii). Accordingly, the court finds that plaintiff has failed to properly support his factual objections to the magistrate’s July 28, 2009 decision. {¶ 8} Upon review of the record, the magistrate’s decision and the objections, the court finds that the magistrate has properly determined the factual issues and appropriately applied the law. Therefore, the objections are OVERRULED and the court adopts the magistrate’s decision and recommendation as its own, including findings of fact and conclusions of law contained therein. Judgment is rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal. _____________________________________ JOSEPH T. CLARK Judge cc: Case No. 2006-06132 -3- JUDGMENT ENTRY Daniel R. Forsythe Richard F. Swope Douglas R. Folkert 6480 East Main Street, Suite 102 Assistant Attorneys General Reynoldsburg, Ohio 43068 150 East Gay Street, 18th Floor Columbus, Ohio 43215-3130 MR/cmd Filed September 9, 2010 To S.C. reporter September 14, 2010	{ "pile_set_name": "FreeLaw" }
354 N.W.2d 597 (1984) STATE of Minnesota, Appellant, v. Ricky Joseph GALARNEAULT, Respondent. No. C7-84-1760. Court of Appeals of Minnesota. September 18, 1984. 598 James A. Lavoie, Mille Lacs County Atty., Andrew S. Birrell, Asst. County Atty., Milaca, for appellant. William P. Lines, Milaca, for respondent. Heard, considered and decided by POPOVICH, C.J., and LESLIE, and CRIPPEN, JJ. OPINION LESLIE, Judge. The Minnesota Highway Patrol arrested defendant Galarneault on March 25, 1983, and charged him with violation of Minn. Stat. § 169.121 (1982) (DWI). On April 21, 1983, defendant filed a motion to dismiss the charges and to suppress the results of his breathalyzer test. After an evidentiary hearing, the trial court granted defendant's motion to suppress the test results. The state filed notice of appeal. We reverse and remand for trial. FACTS Early on the morning of March 25, 1983, a state trooper arrested defendant for driving while intoxicated a few miles north of Milaca, Minnesota. Defendant submitted to a breathalyzer test and recorded a reading of .12. The Milaca police then booked defendant in the Mille Lacs County Jail. The arresting officer signed a detention report but did not indicate on that form the reason for detaining defendant. Defendant demanded that the police administer a second breathalyzer test. The arresting officer refused defendant's demand, stating that it was against department policy to administer additional tests. Defendant then spoke by telephone with a different police officer, an acquaintance, who advised him to take a blood test. Defendant asked the jailer to take him to the local hospital for a blood test, but the jailer refused stating that, as jailer, he could not leave the jail. Defendant then called the local hospital and asked a registered nurse to come to the jail to take a blood sample. The nurse refused but told defendant a sample would be taken if he came to the hospital. Defendant made no further efforts to obtain an additional test. Later the morning of his arrest defendant made his initial appearance in court. The court imposed bail which defendant later posted for his release. 599 Defendant moved to suppress the results of the breathalyzer test on the ground that the police refused to assist him in obtaining a blood test. The trial court granted defendant's motion because it found the police impeded defendant's attempt to get a blood test by improperly detaining him. ISSUES 1. Was defendant properly detained following his arrest for driving while intoxicated even though the arresting officer failed to check off a reason for detention on the detention report form? 2. Must police assist defendant in obtaining an additional chemical test? 3. If police properly detained defendant, does a jailer's refusal to release defendant so that he can obtain an additional chemical test prevent an additional test under Minn. Stat. § 169.123 subd. 3? ANALYSIS Defendant was charged with driving while under the influence of alcohol in violation of Minn.Stat. § 169.121. Suppression of the breathalyzer test has a critical impact on the outcome of this matter and thus the pretrial order is appealable. The trial court in its memorandum did not discuss the reason which defendant advanced for suppressing the test, but instead held that defendant was improperly detained under Rule 6 of the Minnesota Rules of Criminal Procedure. The trial court also took the position that persons arrested for DWI should be released to obtain an additional test even if properly placed in custody. The trial court failed to incorporate its memorandum into the order, but because the order states no grounds, it is open for interpretation through use of the memorandum. Schafer v. Commissioner of Public Safety, 348 N.W.2d 365 (Minn.Ct.App.1984). Propriety of detaining defendant The Minnesota Rules of Criminal Procedure 6.01 subd. 1(1)(a) provides for release of persons charged with misdemeanors unless certain circumstances exist: Law enforcement officers acting without a warrant, who have decided to proceed with prosecution, shall issue citations to persons subject to lawful arrest for misdemeanors, unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation * * * If the defendant is detained, the officer shall report to the court the reasons for the detention. Ordinarily, for misdemeanors not punishable by incarceration, a citation shall be issued if the accused signs the citation agreeing to appear as provided in Rule 6.01, subd. 3. (Emphasis supplied.) The arresting officer here failed to comply strictly with the detention report requirement in Rule 6.01 subd. 1(1)(a). Detention of persons arrested for DWI is also governed by Minn.Stat. § 169.91 subd. 1 (1982) which provides: When any person is arrested for any violation of this chapter or any other law or ordinance relating to the operation or registration of vehicles * * * the arrested person shall be taken into custody and immediately taken before a magistrate * * * in any of the following cases: (1) When a person arrested demands an immediate appearance before a magistrate; (2) When a person is arrested and charged with an offense under this chapter causing or contributing to an accident resulting in injury or death to any person; (3) When the person is arrested upon a charge of negligent homicide; (4) When the person is arrested upon a charge of driving or operating or being in actual physical control of any motor vehicle while under the influence of intoxicating liquor or drugs; * * * (Emphasis supplied.) This statute modifies the more liberal release rule under Rule 6.01. See 7 Minnesota 600 Practice, Criminal Law and Procedure § 423 (Supp.1983). Instead of requiring release it authorizes detention of those charged with DWI. Since detention was in any event authorized, the failure to specify the reason for detaining the defendant is harmless. Police assistance with additional test This court recently addressed the issue raised by defendant. In State v. Hatlestad, 347 N.W.2d 843 (Minn.Ct.App.1984), the defendant claimed that the results of a breathalyzer test should be suppressed because the police would not transport him 13 miles to the nearest hospital. Defendant made calls to the hospital but failed to make arrangements for the test. This court stated: The defendant must arrange for a second test "at no expense to the state." If he is in custody, it must be arranged where he is confined. These provisions impose no duty on the officer to furnish supplies or transportation. A test is neither "prevented" nor "denied" when this assistance is refused. Id. at 845. We find no basis for distinguishing the refusal to transport this defendant from the refusal in Hatlestad. Release of properly detained defendant to obtain second test The trial court's memorandum suggests that persons arrested for DWI should be released so that they can get an additional chemical test. Hatlestad and Minn. Stat. § 169.123 subd. 3 do not support that contention. Minn.Stat. § 169.123 subd. 3 states in part: "The person tested has a right to have a person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test specimen on behalf of the person is obtained at the place where the person is in custody * *" (Emphasis supplied.) Hatlestad states: "If he is in custody, [the test] must be arranged where he is confined." Hatlestad, 347 N.W.2d at 845. DECISION We reverse the trial court's order suppressing the results of the breathalyzer test and remand the matter for a trial on the merits.	{ "pile_set_name": "FreeLaw" }
In the United States Court of Appeals For the Seventh Circuit No. 11-1896 A NGELINA P OVEY, Plaintiff-Appellant, v. C ITY OF JEFFERSONVILLE, INDIANA, Defendant-Appellee. Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 4:09-CV-00161-RLY-WGH — Richard L. Young, Judge. A RGUED F EBRUARY 10, 2012—D ECIDED O CTOBER 4, 2012 Before R IPPLE and R OVNER, Circuit Judges, and C OLEMAN, District Judge. C OLEMAN, District Judge. Angelina Povey injured her wrist while working as an attendant at the City of Jeffersonville (“Jeffersonville”) animal shelter. Jeffersonville ultimately terminated Povey’s employ- The Honorable Sharon Johnson Coleman, District Judge for the United States District Court for the Northern District of Illinois is sitting by designation. 2 No. 11-1896 ment. Povey brought this action under 42 U.S.C. § 12101 alleging that her termination violated the Americans with Disabilities Act (“ADA”). The district court granted Jeffersonville’s motion for summary judgment, finding that Povey does not qualify as “disabled” under the ADA. We affirm. I. B ACKGROUND As one of three adoption assistant/kennel attendants for the Jeffersonville animal shelter, Angelina Povey was responsible for cleaning the shelter, feeding and transporting the animals and assisting with animal adoptions. In addition to these duties, the job description for a kennel attendant noted that the position “may require the [employee] to lift objects heavier than 30 pounds for extended periods.” Two or three adoption kennel attendants worked from Monday through Friday, one was assigned to work on Saturdays with the office manager and one worked alone on Sundays to tend to the animals. Given this schedule, Povey was required to work both Saturday and Sunday of every third weekend. In October 2007, Povey injured her wrist moving a dog from one cage to another at the animal shelter. Povey reported her injury to her supervisor Harry Wilder (“Wilder”). Povey eventually had surgery on her wrist and underwent physical therapy to address the impairment through August 2008. Shortly after Povey’s injury, Kim Calabro (“Calabro”), Jeffersonville’s Human Resources Director explained No. 11-1896 3 to Wilder that since the animal shelter did not have light duty positions available there was no requirement to provide Povey with an alternative assignment. Wilder, however, allowed her to continue to work, but limited her duties to assignments in the cat room and the infirmary. He also exempted Povey from working weekends because it would entail cleaning the entire animal shelter alone, including some lifting of heavy objects. Consequently, her co-workers were forced to work weekends more frequently and began to complain about the change in their work schedules. In May of 2008, Povey reported to Calabro that one of her co-workers, Louis Hancock, had begun to harass her because of her work restriction and the effect it had on his work schedule. An investigation by a human resources consultant concluded that Hancock was not illegally harassing Povey. Nevertheless, to avoid friction, the animal shelter required Povey and Hancock to work in separate locations at all times. Failing to comply with this arrangement by either Povey or Hancock could have led to their termina- tion. Despite the investigation and implementation of the separation policy, Povey reported that she felt harass- ment “behind her back” and filed a complaint against Hancock on August 8, 2008. During the same month, Jeffersonville received medical notice of Povey’s permanent physical restrictions which prohib- ited repetitive hand movement and no lifting, pushing or pulling more than five pounds with her right arm. 4 No. 11-1896 After notice of the restrictions, Povey was placed on leave with pay to take effect on August 28, 2008. Jeffersonville officials discussed Povey’s restrictions and abilities, and determined that Povey could not perform the essential functions of adoption kennel atten- dant. Povey’s employment was terminated following the meeting. Following her termination, Povey filed a discrimination claim with the EEOC and a complaint alleging two claims of discrimination under the ADA against the City of Jeffersonville. Povey asserted that Jeffersonville failed to accommodate her disability and subjected her to dispa- rate treatment. Povey also claimed she was terminated in retaliation for her prior complaints of harassment and discrimination. Jeffersonville filed a motion for summary judgment as to both claims. The district court granted defendant’s motion for summary judgment and dismissed Povey’s claims finding that Povey failed to demonstrate that she was a qualified individual with a disability under the ADA. Specifically, the court found that Povey failed to present sufficient evidence to demonstrate that (1) her wrist injury impaired her from completing daily tasks; (2) her perceived impairment foreclosed her from accepting a broad range or class of jobs; (3) she was perceived unable to perform manual tasks; (4) she was a qualified individual as defined under the ADA and (5) she was terminated in retaliation for exercising her rights under the ADA. No. 11-1896 5 II. DISCUSSION Summary judgment is appropriate when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” F ED.R.C IV.P. 56(a). We review the district court’s decision on summary judgment de novo, viewing the evidence in the light most favorable to Povey. See Powers v. Holland, 667 F.3d 815, 819 (7th Cir. 2011). Povey argues that Jeffersonville terminated her employ- ment in violation of the ADA, which prohibits discrimina- tion against “a qualified individual with a disability because of the disability.” 42 U.S.C. § 12112(a). The Act defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). To avoid summary judgment, a plaintiff must demonstrate a general issue of material fact as to whether she is disabled, whether she can perform the essential functions of the position and whether she has suffered an adverse employment action because of her disability. Nese v. Julian Nordic Const. Co., 405 F.3d 638, 641 (7th Cir. 2005). We must first consider whether Povey is disabled within the meaning of the ADA. Miller v. Ill. Dept. of Trans., 643 F.3d 190, 195 (7th Cir. 2011). The ADA defines “disability” as (1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual; (2) a record 6 No. 11-1896 of such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(1). On appeal, Povey only claims that Jeffersonville regarded her as having a substantial impairment that limits her abilities in the major life activity of working. To meet the “regarded as” prong, the employer must believe, correctly or not, that the employee has an impair- ment that substantially limits one or more of the major life activities. Cigan v. Chippewa Falls Sch. Dist., 388 F. 3d 331, 335 (7th Cir. 2004) (citing Sutton v. United Airlines, 527 U.S. 471, 489, 119 S.Ct. 2139, 2149-50, 144 L.Ed.2d 450 (1999)). Further, when the major life activity of working is at issue, an individual must be regarded as “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” Powers v. U.S.F Holland, Inc., 667 F.3d 815, 820 (7th Cir. 2011) (quoting 29 C.F.R. 1630.2(j)(3)). To demonstrate that she is substantially limited in the activity of working, Povey must provide “some proof of the ‘number and types of jobs’ within the ‘geo- graphical area to which the [claimant] has reasonable access.’ ” EEOC v. Rockwell International Co., 243 F.3d 1012, 1018 (7th Cir. 2001) (citing Sutton, 527 U.S. at 492- 93). This evidence does not have to be presented in quanti- Povey does not challenge the district court’s findings that Povey’s wrist injury did not constitute a disability under the ADA and that Jeffersonville did not regard her as substantially limited in her ability to perform manual tasks. No. 11-1896 7 tative form, but does require the presentation of general employment demographics or the approximate number of jobs (e.g. ‘few’, ‘many’, or ‘most’) from which an individ- ual would be excluded because of an impairment. Rockwell Int’l, 243 F.3d 1012, 1018. Povey asserts that testimony from Jeffersonville officials indicating that she was not able to use her right hand or perform shelter work because of her lifting restrictions is evidence that Jeffersonville regarded her as disabled under the ADA’s definition. Specifically, Povey points to Calabro’s testimony that “Povey wasn’t able to use her right hand” and Wilder’s testimony that he believed that Povey’s work restrictions prevented her from performing her job and that Jeffersonville did not have a job for someone with a permanent disability. Povey maintains that these statements demonstrate Jeffersonville’s perception that she was substantially limited to perform any job involving manual labor and, therefore, are sufficient evid en ce from w h ich a ju ry could con clu de that Jeffersonville perceived her as excluded from a class of jobs. Povey relies on Armour v. Independent Limestone Co., 2000 U.S. Dist. LEXIS 16650 (S.D. Ind. Mar. 16, 2000) to support her argument. In Armour, the district court denied defendant’s motion for summary judgment, holding that certain statem ents made by the company’s president demonstrated that the plaintiff’s employer perceived him as being unable to perform a broad range of jobs even without evidence of the 8 No. 11-1896 actual number of jobs in the relevant geographical area. Id. at *13-16. The court described the employer’s statements as “sweeping,” and thereby excluding the plaintiff from other classes of jobs beyond those at the company. Therefore, the court found that the president’s state- ments alone were sufficient to allow a jury to conclude that the plaintiff’s employer regarded the plaintiff as disabled under the ADA. Id. Povey’s situation is distinguishable from Armour. Here, none of the statements made by Calabro and Wilder are so “sweeping” as to exclude Povey from a broad class of jobs. Calabro’s and Wilder’s statements were made in response to questions regarding Povey’s abilities to complete tasks specific to the Jeffersonville animal shelter. For example, Calder’s testimony that Wilder told her that Povey “couldn’t do a whole lot of anything” was directly in response to a question regarding what he specifically said she could not do related to duties in the animal shelter facility. Wilder’s statement that Jeffersonville, “did not have a job for that” was also in response to a specific question regarding whether Povey could continue to perform her job at the animal shelter given her permanent restrictions. It is clear that, when taken in context, the statements only refer to Povey’s abilities to work within the animal shelter. The fact that Jeffersonville viewed Povey as unable to perform the tasks required at the Jeffersonville animal shelter tells us nothing about Jeffersonville’s perception of her abilities to perform a broad range of jobs. See Squibb v. Memorial Ctr., 497 F.3d 775, 782 (7th Cir. 2002) (“A demonstrated ‘inability to perform a No. 11-1896 9 single, particular job’ does not render an individual substantially limited in the major life activity of working.”) Even viewing the facts in the light most favorable to the non-moving party, the statements presented do not constitute facts from which a jury can reasonably conclude that Jeffersonville regarded Povey as disabled under the ADA. Having failed to meet her burden to demonstrate that she was disabled under the ADA, Povey is not protected by its provisions. Therefore, the Court need not review Povey’s reasonable accommodation claim. See Id. at 786. Without evidence that Povey is disabled, Povey cannot survive summary judgment on her disparate treatment and failure to accommodate claims under the ADA. Povey also argues that the district court erred in granting Jeffersonville summary judgment with respect to her ADA retaliation claim. The ADA prohibits employ- ers from retaliating against employees who assert their right under the act to be free from discrimination. 42 U.S.C. § 12203(a). “Employers are forbidden from retaliating against employees who raise ADA claims regardless of whether the initial claims of discrimination are meritless.” Dickerson v. Bd. of Education, 657 F.3d 595, 602 (7th Cir. 2011). In a discrimination action, a plaintiff can establish a valid case of retaliation using either the direct or indirect method of proof. Kersting v. Wal-Mart Stores, Inc. 250 F.3d 1109, 1117 (7th Cir. 2001). Povey attempts to establish a claim of ADA retalia- tion under the direct method of proof. Under the direct 10 No. 11-1896 method, to prove retaliation, the plaintiff must offer evidence that: (1) she engaged in statutorily protected activity; (2) the defendant subjected her to an adverse employment action; and (3) a causal connection existed between the two events. Id. There is no dispute that Povey complained to Calabro about her co-worker Han- cock making continuous harassing comments about her wrist impairment and that plaintiff’s termination constitutes an adverse employment action. The dispute is whether there is a causal connection between the two events. Povey contends that the circumstantial evidence she presented is sufficient for a jury to find a causal connection between her complaints of harassment and her termina- tion. First, Povey argues that the timing of her discharge was suspicious, occurring just three weeks after her third harassment complaint. Second, Povey testified that Wilder threatened her job by informing her that “he had no problem firing employees.” Lastly, Povey contends that Jeffersonville’s actions sur- rounding her discharge, including: holding a meeting about her termination that failed to include a person familiar with her job responsibilities, failing to meet with her in person to explain her termination and failing to offer her an accommodation as a result of her permanent restriction, suggest a causal connection between her complaints and termination. The mere fact that Jeffersonville terminated Povey three weeks after a complaint, by itself, is not sufficient to create a genuine issue of material fact to support a retalia- No. 11-1896 11 tion claim. See Turner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010). Additionally, there is no evidence to suggest that Wilder’s remark, that he had no problem firing employees, motivated the decision to terminate Povey. See Fuka v. Thompson Consumer Elecs., 82 F.3d 1397, 1403 (7th Cir. 1996). Lastly, Jeffersonville’s alleged failures in relation to the manner in which it terminated Povey are unrelated to her harassment complaint and Jeffersonville was under no obligation to provide her with a reasonable accommodation for her impairment or engage in a face-to-face meeting or any interactive process to address her abilities to perform her job because Povey is not disabled under the ADA. These facts are insufficient to establish a nexus between her termination and her protected activity. Accordingly, Jeffersonville is entitled to summary judgment on Povey’s retaliation claim. For the reasons stated herein, we affirm the granting of defendant’s motion for summary judgment dismissing each of plaintiff-appellant claims. A FFIRMED. 10-4-12	{ "pile_set_name": "FreeLaw" }
Latter v. Autry IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-92-495-CV RICHARD LATTER, APPELLANT vs. SANDRA A. AUTRY, RECEIVER OF AMERICAN PACER INSURANCE COMPANY, APPELLEE FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. 91-14791, HONORABLE JERRY DELLANA, JUDGE PRESIDING This appeal involves interpretation of the Texas Property and Casualty Insurance Guaranty Act ("the Guaranty Act"), (1) 71st Leg., R.S., ch. 1082, §§ 6.13-.14, 1989 Tex. Gen. Laws 4370, 4395-4398 (Tex. Ins. Code Ann. art. 21.28-C, §§ 5(2), 7, 12, since amended). We must determine whether an injured party may seek recovery from the guaranty fund when the tortfeasor's insurer is in receivership, even though the party has already received insurance benefits in excess of the tortfeasor's policy limits. This Court addressed a related issue in Durish v. Dancer, 819 S.W.2d 258 (Tex. App.--Austin 1991, writ denied), in which we held that, when a plaintiff's suit against the tortfeasor has proceeded to judgment, the guaranty fund's liability is determined by offsetting any subrogation lien from the final judgment rather than from the statutory cap of $100,000; the fund's liability is confined to the tortfeasor's policy limit or $100,000, whichever is less. Dancer, however, did not involve the situation presented here of a policy limit less than the subrogation lien. Relying on Dancer's policy announcement and liability calculation, we will now hold that, when the insurance benefits a plaintiff has already recovered exceed the limits of the policy issued by the insurance company in receivership, the guaranty fund has no liability. Therefore, we will affirm the trial court's summary judgment. BACKGROUND While selling newspapers for the Houston Post in August 1990, Richard Latter was struck by an automobile driven by Christopher Kingham. Latter suffered multiple injuries requiring immediate and subsequent surgery. Latter continues to experience pain and discomfort as a result of these injuries and will require additional surgery. Latter received $41,529.06 from the Houston Post's workers' compensation carrier, Liberty Mutual Fire Insurance Company ("Liberty Mutual"), for indemnity and medical expenses incurred. At the time of the accident, the tortfeasor held a liability policy issued by American Pacer Insurance Company ("American Pacer") limited to $20,000 per person per accident. American Pacer was placed in receivership on October 2, 1990. After being notified of American Pacer's receivership, Latter followed the statutory procedure and timely filed a proof of claim with American Pacer's receiver, Eugene Brodhead. (2) Liberty Mutual failed to timely file a proof of claim for its subrogation rights on benefits paid to Latter. The receiver rejected Latter's claim against the guaranty fund, declaring it invalid because it was actually a subrogation claim by Liberty Mutual. The Guaranty Act specifically excludes an insurance carrier's subrogation claim from the definition of a covered claim. Guaranty Act § 5(2). Latter filed suit against the receiver for judgment that the claim be allowed. Latter appeals the trial court's summary judgment in favor of the receiver on the ground that Latter's claim was not a covered claim for purposes of recovery from the guaranty fund. THE GUARANTY ACT The Guaranty Act establishes an association of all property and casualty insurers licensed to transact business in Texas. Guaranty Act § 7. By assessing contributions from solvent member insurers, the association maintains a guaranty fund which assumes insolvent insurers' obligations with respect to statutorily defined "covered claims," (3) limited to the lesser of the policy limit or $100,000. Id. §§ 5(2), 7. A party seeking recovery from the guaranty fund for a covered claim must first exercise its right of collection, if any, from other insurance carriers not in receivership ("exhaustion requirement"). Id. § 12. To prevent double recovery, the Guaranty Act provides that the amount of the injured party's approved claim will be offset by the amount of benefits recovered under another policy ("nonduplication of recovery"). Id. All insurers hold an absolute right to subrogation against any money an insured recovers from the tortfeasor, up to the amount of benefits paid ("subrogation lien"). Act of June 8, 1985, 69th Leg., R.S., ch. 326, § 1, 1985 Tex. Gen. Laws 1387 (Tex. Rev. Civ. Stat. Ann. art. 8307, § 6a(a) (since repealed and codified at Tex. Rev. Civ. Stat. Ann. art. 8308-4.05 (West Supp. 1993))); Reliance Ins. Co. v. Kronzer, Abraham & Watkins, 582 S.W.2d 170, 172 (Tex. Civ. App.--Houston [1st Dist.] 1979, no writ). As we noted in Dancer, a workers' compensation carrier or other insurer may not assert its lien against any sums recovered from the guaranty fund, but may only pursue its claim against the assets of the receivership. 819 S.W.2d at 263. The questions presented for our review are whether Latter has a "covered claim" against the tortfeasor's impaired insurer, and whether Latter's suit must proceed to a final judgment before the guaranty fund's liability can be determined. DISCUSSION In a single point of error, Latter claims the trial court erred in rendering summary judgment for the receiver because any subrogation interest Liberty Mutual may have does not preclude his own recovery from the guaranty fund, even though the subrogation interest exceeds the tortfeasor's policy limit of $20,000. We initially address Latter's argument that the receiver failed to prove that Liberty Mutual holds a subrogation lien against any recovery by Latter. We disagree. As noted above, an insurer holds an absolute subrogation right, which matures when the insurer pays benefits on behalf of the insured. Reliance Ins., 582 S.W.2d at 172. The question, then, is not whether Liberty Mutual holds a subrogation lien, but the amount of that lien. Latter's argument that the receiver failed to prove a lien amount of $41,529.06 is insupportable because Latter admitted in response to the receiver's requests for admissions that he had received no less than $41,529.06 in workers' compensation and medical benefits. Any matter so admitted is conclusively established as to the party making the admission, unless the trial court on motion permits withdrawal or amendment of the admission. Tex. R. Civ. P. 169(2). The record indicates neither that Latter moved to withdraw or amend his admission nor that the trial court granted any such motion. Consequently, Latter may not contest the existence or amount of Liberty Mutual's subrogation lien. (4) Relying on Dancer, Latter further argues that, in determining the guaranty fund's liability, the workers' compensation benefits he received from Liberty Mutual should be offset against a final judgment, not against the tortfeasor's policy limit. Latter misreads Dancer; the policy underlying that opinion does not require the receiver to await a final damages award against a tortfeasor before determining the guaranty fund's liability when the subrogation lien exceeds the tortfeasor's policy limit. The Guaranty Act's purpose is to provide the injured party the same recovery he would have received had the responsible insurer remained solvent. See Guaranty Act § 12; Dancer, 819 S.W.2d at 263. In this case, if American Pacer were solvent, it would be obligated to compensate Latter for his injuries, up to the $20,000 policy limit. Because Liberty Mutual paid Latter's workers' compensation benefits and medical expenses, Liberty Mutual would be entitled to indemnification, first, through any money recovered by Latter, and, second, by suit against the tortfeasor's insurance carrier. See Dancer, 819 S.W.2d at 263. Because Liberty Mutual's subrogation lien exceeds $20,000, Latter would not be entitled to any payment from American Pacer. In the instant situation, the Guaranty Act operates to compensate Latter in the same manner. The guaranty fund is obligated to pay all covered claims up to the $20,000 policy limit. Guaranty Act §5(2). By definition, when the subrogation lien exceeds the tortfeasor's policy limit, there is no "covered claim" because any amount due the injured party is subrogated to the compensation carrier or other insurer. All amounts due an insurer as a subrogation recovery are specifically excluded from the definition of "covered claim." Guaranty Act § 5(2). Because Liberty Mutual is statutorily entitled to any recovery by Latter against the tortfeasor, in an amount that exceeds the $20,000 policy limit, Latter's claim against the receiver cannot be a covered claim; it is an amount due an insurer as a subrogation recovery. Id. Our determination that Latter has no covered claim is consistent with a Massachusetts decision determining the liability of that state's guaranty fund when the subrogation lien exceeds the tortfeasor's policy limit. See Ferrari v. Toto, 417 N.E.2d 427 (Mass. 1981). Interpreting a statutory scheme almost identical to the one before us, the Ferrari court held that when the compensation carrier's lien exceeds the tortfeasor's policy limit, the injured worker's claim against the guaranty fund is not a "covered claim" within the statutory definition because it is actually an amount due an insurer as a subrogation recovery. Id. at 428. Dancer is distinguishable from the present situation because the tortfeasor's policy limit exceeded both the subrogation lien and the statutory cap; hence, the question presented was whether insurance benefits previously received should be offset against the total damages assessed by jury verdict or against the statutory cap. Although the Dancer case had proceeded to final judgment, our holding in that cause does not require a determination of actual damages under the present facts. By definition, the guaranty fund's liability will always be limited to the lesser of the tortfeasor's policy limit or the statutory cap. Therefore, when the proven subrogation lien exceeds the tortfeasor's policy limit, the guaranty fund's nonliability is established without awaiting a final judgment or settlement. We overrule Latter's point of error. CONCLUSION For the foregoing reasons, we affirm the judgment of the trial court. Bea Ann Smith, Justice [Before Justices Powers, Kidd and B. A. Smith] Affirmed Filed: May 12, 1993 [Publish] 1. 1 Because American Pacer Insurance Company became impaired under the Guaranty Act in October 1990, we must focus on the Guaranty Act as it appeared at that time. See Durish v. Channelview Bank, 809 S.W.2d 273, 275-77 (Tex. App.--Austin 1991, writ denied). Unless otherwise indicated, all statutory references are to the Guaranty Act as it appeared in October 1990. Although the numbering and organization of the Guaranty Act has since changed, the relevant text interpreted in this opinion remains virtually identical. 2. 2 Brodhead was the original receiver of American Pacer. Sandra Autry, the appellee in this suit, replaced Brodhead while the underlying proceeding was pending. 3. 3 The Guaranty Act defines a covered claim as an unpaid claim of an insured . . . which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this Act applies . . . . Individual "covered claims" shall be limited to One Hundred Thousand Dollars ($100,000) . . . . "Covered claim" shall not include any amount due any reinsurer, insurer, insurance pool or underwriting association, as subrogation recoveries or otherwise. Guaranty Act § 5(2). 4. 4 Both in its brief and at oral argument, the receiver relied on the fact that Liberty Mutual not only held a subrogation lien, but also held an assignment of recovery from Latter. Because we base our holding on the existence of a subrogation lien in an amount above the tortfeasor's policy limit, we need not determine the effect of any such assignment.	{ "pile_set_name": "FreeLaw" }
387 P.2d 305 (1963) In the Matter of the ESTATE of Anna HOSOVA, Deceased. Bozena VINSOVA and Antonin Hosa, Petitioners and Appellants, v. The STATE of Montana, Defendant and Respondent. No. 10457. Supreme Court of Montana. November 29, 1963. Rehearing Denied December 16, 1963. 306 Charles E. Davidson (argued), Great Falls, Peter A. Schwabe (argued), Portland Ore., for appellants. Forrest H. Anderson, Atty. Gen., Helena, N.A. Rotering (argued), Butte, for respondent. JOHN C. HARRISON, Justice. This is an appeal by Bozena Vinsova and Antonin Hosa, daughter and son and next of kin of Anna Hosova, deceased, from a judgment and decree entered in the estate of Anna Hosova, deceased, by the Honorable R.J. Nelson, Judge of the District Court of the Eighth Judicial District of the State of Montana, in and for the County of Cascade. Anna Hosova died intestate at Louny, Czechoslovakia, on June 10, 1946, leaving an estate in Cascade County, consisting of an undivided one-half interest in certain farm lands of substantial value. On January 27, 1960, Bozena Vinsova and Antonin Hosa, residents of Czechoslovakia, by their attorney filed a petition for determination of heirship and for order declaring reciprocity to exist. In this petition it was alleged inter alia, that reciprocity of inheritance rights between the United States and Czechoslovakia existed at the time of the death of Anna Hosova and still exists as required by R.C.M. 1947, section 91-520, and prayed that their rights as heirs of the decedent be determined by the court. The State of Montana, on March 22, 1960, filed its answer denying that such reciprocity existed on June 10, 1946, the date of death of the deceased or now exists between the United States and Czechoslovakia and prayed that "the foreign heirs be put upon their proof in establishing heirship and proving reciprocity of inheritance and reciprocity of transfer as required by law." After due proceedings the matter came on for hearing before the court, sitting without a jury on October 25, 1960. By stipulation of counsel it was agreed that the testimony of expert witnesses and other material evidence on the issue of reciprocity of inheritance would cover not only the date of death of Anna Hosova, that is, June 10, 1946, but also four other cases pending in Montana involving heirs or beneficiaries in Czechoslovakia. The dates of death in these four cases are all later 307 than the date here. However, this appeal concerns only the date of Anna Hosova's death and only evidence pertaining to that date has been reviewed. Before going into the merits of this appeal, the court would like to make the following observations. The record in this case is somewhat confused and we are not surprised that the trial judge erred in his findings. Contributing in part to this confusion was the appellants' petition for determination of heirship and for order declaring reciprocity to exist. In their prayer for relief the appellants asked that the "Court further determine that reciprocity of inheritance exists (emphasis supplied) and did exist at the time of the death of the deceased between the Republic of Czechoslovakia and the United States of America." As we shall point out later, in this case whether reciprocity exists at the present time is of no import. The main source of the confusion, however, was the attempt on the part of the litigants to present in this trial evidence on the question of reciprocity which pertains to dates after 1946 when entirely different laws were in effect, both here in Montana and in Czechoslovakia. Appellants' only specification of error is that the lower court erred in finding that reciprocity of inheritance did not exist between the United States and Czechoslovakia on June 10, 1946, the date of the death of Anna Hosova and in ordering the escheat of the distributive shares of her heirs. It is well-settled that rights vest under our statutes immediately upon the death of a testator, Gelsthorpe v. Furnell, 20 Mont. 299, 51 P. 267; In re Clark's Estate, 105 Mont. 401, 74 P.2d 401, 114 A.L.R. 496; Montgomery v. First National Bank of Dillon, 114 Mont. 395, 136 P.2d 760; or upon the death of an intestate. In re William's Estate, 55 Mont. 63, 173 P. 790, 1 A.L.R. 1639; State ex rel. Wilson v. Musburger, 114 Mont. 175, 133 P.2d 586. Thus, as the rights were settled as of that date, we must examine the evidence in the light of the requirements of the 1946 statute governing reciprocity. In 1946, what is now presently section 91-520, R.C.M. 1947, read: "No person shall receive money or property, save and except mining property, as provided in section 25, Article III, of the Constitution of the State of Montana, as an heir, devisee and/or legatee of a deceased person leaving an estate or portion thereof in the state of Montana, if such heir, devisee and/or legatee, at the time of the death of said deceased person, is not a citizen of the United States and is a resident of a foreign country at the time of the death of said intestate or testator, unless, reciprocally, the foreign country in question would permit the transfer to an heir, devisee and/or legatee residing in the United States, of property left by a deceased person in said foreign country." In 1953, this section was amended, and now in order to show reciprocity of inheritance it is necessary to prove, in addition to the prior requirements, that the foreign country places no restrictions upon the movement of money or property out of such country to an heir residing in the United States. R.C.M. 1947, section 91-520, subd. (2). Thus, it is obvious that because such requirement was added in 1953, it was not an inherent requirement in the 1946 version of the section. In viewing the evidence we must view it in the light most favorable to the party which prevailed in the lower court. Holland v. Konda, 142 Mont. 536, 385 P.2d 272. We will examine only that evidence which pertains to the date in question in order to find out if there is substantial evidence to support the finding made by the court below. The appellants first introduced petitioner's exhibit "A," a certificate by the Ambassador of the Republic of Czechoslovakia, which was properly admitted into evidence. See In re Spoya's Estate, 129 Mont. 83, 282 P.2d 452. In it, the Ambassador stated among other things, that Czechoslovakia allows and has always allowed nonresident 308 aliens the right to inherit and take real and personal property from decedents' estates situated in Czechoslovakia upon the same terms and conditions as citizens of that country, unless it could be shown that the country of which the alien in question is a citizen discriminates against the rights of Czechoslovakian citizens to inherit in that country. The appellants' first witness was Dr. Alex Bozdech of Prague, Czechoslovakia. He testified that he was educated in Czechoslovakia and that he had practiced law there for many years. At the present time he is employed by a Legal Advice Bureau where he has had experience in handling cases involving persons who died in Czechoslovakia and left heirs in America and also cases where persons died in America and left heirs in Czechoslovakia. He further stated that he had testified as an expert in American courts at other times on the subject of reciprocity of inheritance. On cross-examination he denied that he was employed by the Czechoslovakian government and stated that his salary was paid by the Legal Advice Bureau, which in turn, received its money from the clients it served. On redirect Dr. Bozdech testified that in 1946 the Austrian Civil Code was still in effect and that it provided for reciprocity of inheritance. This provision was contained in Section 33 of the Austrian Imperial Code which Dr. Bozdech translated for the record. It read: "Aliens in general have the same civic rights and duties as citizens as far as the enjoyment of such rights does not expressly require the qualification of a citizen. Aliens have also to enjoy the same rights as citizens where a doubt arises to prove that the country of which they are citizens treat citizens of this country in the same way as their own citizens as far as a specific right is concerned." In response to a question by appellants' counsel the witness explained that this section, as it pertained to the rights of an American citizen to inherit, were the same as a Czechoslovakian citizen. He further testified that he was convinced that since 1945 there was "never a difficulty about any American citizen being entitled to the same rights as far as inheritance is concerned." Appellants then offered into evidence a group of 88 decrees of distribution by Czechoslovakian courts in which American heirs or beneficiaries received a share of real or personal property situated in that country. These decrees contained the seal of the court properly authenticated and were in substantial compliance with R.C.M. 1947, § 93-1001-19, and hence were properly received into evidence. In re Spoya's Estate, supra. Although most of these decrees pertain to dates other than the one in question, three of them have dates of death within three months of the date here in question. In these cases it appears that the Czechoslovakian courts decreed that American devisees and legatees were allowed to share in the Czechoslovakian estates. As was stated in In re Miller's Estate, 104 Cal. App.2d 1, 230 P.2d 667, 676, about decrees of German courts: " * * Obviously, then, circumstantial evidence is admissible in this type of case. Actually, how better can the effect and application of the law be proved than by showing what the German probate courts and persons charged with administering property of foreigners did under it?" Appellants then called Dr. Zelemik Pisk, Third Secretary of the Czechoslokanian Embassy, who is also acting Chief of Consular Section of the Embassy in Washington. Dr. Pisk was born in Czechoslovakia and attended school there until 1952 when he graduated as a Doctor of Laws. The witness testified that in his official position at the Embassy he was concerned with the estates of persons dying in the United States going to heirs in Czechoslovakia as well as estates of persons dying in Czechoslovakia coming to American heirs. He stated that in his capacity as consular official his duty was to protect the interests of Czechoslovakian heirs and that this was the primary purpose of his testimony. He stated that after discussing the matter of reciprocity of 309 inheritance at the Ministry of Foreign Affairs, they could not find a single case in which the Czechoslovakian courts had denied reciprocity. He stated that although he had not personally handled any cases in 1946, he could say from his personal knowledge that reciprocity of inheritance existed at that time. Finally in summing up, the witness testified: "I may confirm on behalf of my government that our Courts recognize the reciprocity toward the United States of America without any reservations, that means fully." In response to a question by appellants' counsel he stated that this included the date June 10, 1946. On cross examination Dr. Pisk admitted that he did not know of any case where funds from a Czechoslovakian estate were transmitted to Montana heirs. However, on re-direct he stated that the fact that there were no Czechoslovakian decrees involving Montana heirs did not mean that they were discriminated against. The respondent State of Montana called as an expert witness Dr. Alois Rozehnal of New York City. He testified that he was born in Czechoslovakia and that after receiving his Doctor of Laws there, he practiced law from 1932 to 1948 when he was forced to leave by the Communists. At the present, he stated, he was employed by a private organization and was charged with watching the social, economic and legal development of Czechoslovakia. To do this, he stated, he read all pertinent publications published in that country. According to the witness, from 1946 to 1948, it was not possible to reject the inheritance of agricultural land and ownership of land was bound by the condition that it would be personally tilled by the owner. This, plus the fact that the owner could not readily change jobs and leave the land, made the agricultural land worthless. In response to a question as to whether he thought reciprocity of inheritance existed between the United States and Czechoslovakia, he replied that he did not. On cross examination, the witness was asked this question: "Q. Give us your definition or of your understanding of the reciprocal rights of inheritance, or what is your understanding of reciprocity of inheritance rights? A. My understanding is that the American citizen has the same unrestricted rights to his inheritance in Czechoslovakia as the Czechoslovakian citizen has to his inheritance in the United States, and because they do not have in Czechoslovakia the same rights as the citizens of this state of Montana have here I came to the conclusion that there is no reciprocity between the state of Montana and the state of Czechoslovakia." This answer by the respondent's witness would seem to indicate that his concept of what constitutes reciprocity of inheritance is somewhat different than the view taken by this court in several cases. His view would seem to require that Czechoslovakia treat aliens from Montana, in inheritance matters, the same way that Montana treats its own citizens. In other words, under his view a Montana citizen, with respect to inheritance matters, could theoretically be treated better than a Czechoslovakian citizen in his own country. This is not the law. A careful reading of the Montana cases indicates that what is required is that the foreign country treat Montana citizens as it treats its own citizens, that is, that it does not discriminate against them. See In re Nielsen's Estate, 118 Mont. 304, 165 P.2d 792; In re Estate of Gaspar, 128 Mont. 383, 275 P.2d 656; In re Estate of Spehar, 140 Mont. 76, 367 P.2d 563. Dr. Rozehnal further testified that the so-called "confiscation laws" of 1945 were, though allegedly aimed at German collaborators, instruments of Communist oppression. He further stated that he was sure that American property was confiscated under these decrees. The witness said that during the period of 1945 to 1948, he was involved in many inheritance cases where some of the heirs resided in America. When asked to name a single case or give the particulars of a single case where an American citizen living in the United States or living elsewhere was discriminated against, the witness could not 310 give one. He then stated that although he never handled a case personally, he knew of cases where attorneys could not get a permit to transfer money to the United States. In response to a question concerning the 88 decrees of the Czechoslovakian courts, the witness said, that although on the face of them, they indicated reciprocity, actually they were misleading. This was so because the land would escheat to the state if not tilled and yet it could not be sold. He further stated that the decrees, although they transfer title of land to American heirs, mean nothing because a Czechoslovakian citizen who joins the Uniform Agricultural Cooperative has only bare title and no rights to any benefit from the land. When questioned as to whether there were any Agricultural Cooperatives in June of 1946, the witness claimed that there were some on the border regions. He admitted, however, that the first law concerning Uniform Agricultural Cooperatives was not passed until three years later, in 1949, which would make it after the Communist coup, when the Democratic government of President Benes was overthrown. Dr. Rozehnal was the respondent's only authority on the question of reciprocity. The State introduced no evidence to substantiate the testimony of its sole witness. The testimony of this witness, in the main, was directed to matters which were not in issue. He spoke mostly of the laws which were in effect after the date in question, and then he was primarily concerned with the transmittal of funds in and out of the country. On cross-examination Dr. Rozehnal indicated what he believed was required to have "reciprocity of inheritance," this, as we pointed out previously, differs from what this court has required. This detracts from the weight which can be given his testimony. Not once in his testimony did he cite a single instance where an American was discriminated against by the Czechoslovakian courts. This court is well aware of the time-honored rule that a finding of fact made by the trial court below should not be disturbed on appeal unless the evidence clearly preponderates against it. However, this court would be derelict in its duties if it did not reverse a finding where such was the case. Such is the case here. The appellants, in the lower court presented a wealth of evidence to support their contention that reciprocity of inheritance existed between the United States and the Republic of Czechoslovakia on June 10, 1946; whereas, the respondent presented a single witness, who throughout most of his testimony testified as to matters other than the point in issue. The law in this case relates back to the law as it existed in 1946, and not to the law as given to us by the Legislature by the 1951 amendment. Had the Legislature intended a different result it was their privilege to so legislate. By 1951, the world was well aware of the political facts of life so far as the Czechoslovakian people were concerned. The Communists had overthrown the Democratic Government of the country and had purged President Benes. We were aware then, as we are now, that in judging the credibility of statements made by officials of a Communist controlled country the state of affairs existing within their borders did not always compare with the actual facts. The Legislature should have been aware that the chances for legatees who were Nationals of a foreign country actually getting money out of that country were questionable. The Legislature could have amended our statute, as was done by the Oregon Legislature to require of foreign countries that before foreign legatees or heirs can receive property from estates of persons dying in this state that there must be a showing that citizens of the United States who are heirs or legatees to estates in that country have a right at the time the estate is ready for distribution to take said estate from that country without confiscation, in whole or in part, by that country. See Oregon Revised Statutes, 111.070. Such legislation would fill a needed gap in our present law in dealing with such cases. *311 The evidence in question fails to sustain the trial court's finding that reciprocity of inheritance did not exist on June 10, 1946, and its conclusions of law and decree are contrary to law. Accordingly, the decree is reversed and the cause remanded to the district court with directions to set aside, vacate and strike the trial court's finding and conclusions and to enter a judgment for the petitioners. MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICE CASTLES concur. MR. JUSTICE DOYLE (specially concurring): With reluctance and repugnance, I find myself compelled by reason of my oath of office to concur in this decision. No man will ever know, if he be mentally honest, the mental torture and problems into which fate and destiny have hurtled him, as a member of an appellate court. It is my opinion the named beneficiaries of this estate will never personally receive a penny, or enjoy any part of its largess. Supporting this premise is the book by Karl Marx, written in 1847, which volume has been deified by the Communists of this earth entitled the "Communist Manifesto." It states that the proletarian society shall abolish all right of inheritance. In this year of 1963, the Central Committee of the Communinst Party of the U.S.S.R. issued the following directive to all of its member. "We fully stand for the destruction of imperialism and capitalism. We not only believe in the inevitable destruction of capitalism, but also are doing everything for this to be accomplished by way of the class struggle, and as soon as possible." Hence, in affirming this decision the writer is knowingly contributing financial aid to a Communist monolithic satellite, fanatically dedicated to the abolishing of the freedom and liberty of the citizens of this nation. By reason of self-hypnosis and failure to understand the aims and objective of the international Communist conspiracy, in the year 1946, Montana did not have statutes to estop us from making cash contributions to our own ultimate destruction as a free nation. This statute, section 91-520, R.C.M. 1947, as amended, can and should be further amended by the following language "Upon strict proof that such foreign heirs, distributees, devisees or legatees may receive the benefit, use or control of money or property from the estates of persons dying in this state without confiscation, in whole or in part, by the governments of such foreign countries," thus forever precluding a comparable situation such as this to again arise. Unable to find any loophole, escape hatch or valid legal reason to ignore the cases of In re Nielsen's Estate, 118 Mont. 304, 165 P.2d 792; In re Estate of Gaspar, 128 Mont. 383, 275 P.2d 656; In re Estate of Spehar, 140 Mont. 76, 367 P.2d 563, previously decided by this court, I find myself agreeing to put another strand in the rope that will strangle the liberty of the people of the shrinking free world. I do not want it to be understood that this writer is critical of these prior decisions of this Court. My brethren were obligated to follow the law as it was then written and abjure their personal beliefs. MR. JUSTICE ADAIR (dissenting): I dissent for the reasons and upon the grounds stated by me in my dissenting opinions in the cases of In re Stoian's Estate, 128 Mont. 52, at pp. 59, 60 and 61, 269 P.2d 1085, and In re Estate of Stoian, 138 Mont. 384, at p. 396, 357 P.2d 41, and for the reasons stated by Mr. Justice Bottomly in In re Stoian's Estate, 128 Mont. 52 at pp. 61 to 65, inclusive, 269 P.2d 1095, and also his dissent in In re Spoya's Estate, 129 Mont. 83, at pp. 94 and 95, 282 P.2d 425.	{ "pile_set_name": "FreeLaw" }
12/19/2017 IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON September 20, 2017 Session DERMON-WARNER PROPERTIES, LLC V. STEVE H. WARNER Appeal from the Chancery Court for Shelby County No. CH-12-0976 Jim Kyle, Chancellor No. W2016-02051-COA-R3-CV A member of a limited-liability company withdrew from the company with a deficit in his capital account. The company filed suit against the withdrawing member on the ground that he had an obligation to repay the deficit amount. The withdrawing member filed a counter-complaint arguing that the company was estopped from collecting the debt because the debt had been forgiven. Thereafter, the parties filed cross-motions for summary judgment. The trial court denied the withdrawing member’s motion and granted the company’s motion, finding that the withdrawing member failed to prove that the company forgave the debt. The withdrawing member appealed. We affirm the trial court’s decision. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed ANDY D. BENNETT, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined. Robert L.J. Spence, Jr., and Andrew Mark Horvath, Memphis, Tennessee, for the appellant, Steve H. Warner. Louis Jay Miller, Memphis, Tennessee, and Jerry Alan Schatz, Germantown, Tennessee, for the appellee, Dermon-Warner Properties, LLC. OPINION FACTUAL AND PROCEDURAL BACKGROUND Dermon-Warner Properties, LLC (“DWP”) is a Tennessee limited-liability company that was formed on August 28, 1997 for the purpose of managing commercial and residential properties. It consisted of two members, Dave Dermon Co. and Steve H. Warner. Both members owned a fifty percent interest in DWP. DWP established and maintained a capital account for each member pursuant to its operating agreement. Concerning the capital accounts, Article 4.1 of the operating agreement provided, in pertinent part, as follows: Capital Accounts. In general, each Capital Account shall be credited with the amount of each Member’s Contributed Capital and each Member’s share of Net Profits. Each Member’s Capital Account shall be debited with that Member’s share of Net Losses and with the amount of all distributions made by the Company to that Member. The operating agreement also addressed the treatment of capital accounts in the event a member withdrew from DWP. Article 9.5 provided: Withdrawal. A Member may withdraw from the Company for any reason after ninety (90) days’ written notice to the Company and remaining Members. The Company shall pay to such Withdrawing Member an amount equal to the value of such Withdrawing Member’s Capital Account balance as of his date of withdrawal . . . within six (6) months of the determination of such amount. On December 31, 2010, Mr. Warner withdrew as a member of DWP with a negative balance in his capital account in the amount of $399,657.00. Mr. Warner did not pay DWP the negative balance in his capital account when he withdrew from the company. In 2011, Mr. Warner received an Internal Revenue Service (“IRS”) Schedule K-1 Form issued by DWP depicting income to him in the amount of the capital account deficit. Wayne Vanderford, the certified public accountant for DWP, prepared the 2011 Schedule K-1. DWP sent a letter to Mr. Warner’s attorney on February 8, 2012, demanding that Mr. Warner pay to the company the negative balance in his capital account or dispute the claim and provide documentation supporting his position. When Mr. Warner failed either to pay DWP for the negative balance or dispute the claim, DWP initiated this lawsuit on June 12, 2012, asserting claims for unjust enrichment and breach of the operating agreement. Following discovery, DWP filed a motion for partial summary judgment seeking a judgment against Mr. Warner for the negative capital account balance pursuant to Article 9.5 of the operating agreement. Recognizing that Article 9.5 does not address the obligation of a withdrawing member to reimburse DWP for a capital account deficit upon withdrawal, DWP asserted that it was only “logical and equitable” for such an obligation to exist because DWP had an obligation to pay a withdrawing member’s positive capital account balance at the time of withdrawal. The trial court agreed and, on March 17, 2015, it entered an order granting DWP partial summary judgment. The trial court -2- further found that the sole remaining issue was what effect the issuance of the 2011 Schedule K-1 had on Mr. Warner’s obligation to repay the deficit amount. Mr. Warner did not appeal the trial court’s partial summary judgment determination. On April 15, 2015, Mr. Warner filed a counter-complaint alleging that the debt had been forgiven by the issuance of the 2011 Schedule K-1. He asserted affirmative defenses including equitable estoppel and set-off. DWP filed a motion to dismiss the counter-complaint as not timely filed, which the trial court denied on July 30, 2015. Mr. Warner filed a motion for summary judgment as to his counter-complaint on July 2, 2015. In his motion and supporting documents, Mr. Warner admitted he had an obligation to pay DWP the negative balance in his capital account but argued he was entitled to a set-off in the amount he owed because the issuance of the 2011 Schedule K-1 constituted forgiveness of his obligation. On October 1, 2015, DWP filed a cross-motion for final summary judgment on both Mr. Warner’s counter-complaint and DWP’s original complaint. DWP argued that (1) Mr. Warner had an obligation to pay DWP for the negative balance in his capital account pursuant to the order granting it partial summary judgment in March 2015, (2) Mr. Warner’s only defense for not paying the debt was that issuance of the 2011 Schedule K-1 represented a forgiveness or discharge of his obligation, and (3) the 2011 Schedule K-1 contains no indication that DWP discharged or forgave the debt. The trial court heard the cross-motions for summary judgment on April 27, 2016, and entered an order on May 6, 2016, denying Mr. Warner’s motion and granting DWP’s motion for final summary judgment. The court reasoned that because Mr. Warner “admitted the creation and existence of a debt,” he had the burden of proving “release, cancellation or discharge of the debt, by a preponderance of the evidence.” The court found that Mr. Warner failed to carry his burden because the record contained no proof that DWP either discharged or forgave the negative balance in Mr. Warner’s capital account. On June 1, 2016, Mr. Warner filed a motion to alter or amend the order denying Mr. Warner’s motion for summary judgment and granting final summary judgment to DWP. Mr. Warner contended that the trial court applied an incorrect standard of review by requiring that he prove his claims or defenses by a preponderance of the evidence at the summary judgment stage. The trial court denied the motion because “there was no proof in the Record brought forth by the Defendant showing any intent of forgiveness or cancellation of the debt on the part of [DWP].” Mr. Warner perfected this appeal and raises the following issues: (1) whether the issuance of the 2011 Schedule K-1 constituted a forgiveness of Mr. Warner’s obligation to pay DWP the negative balance in his capital account and (2) whether the trial court erred in not considering his equitable estoppel defense. -3- STANDARD OF REVIEW Whether a party is entitled to summary judgment is a matter of law, which means that we review the trial court’s judgment de novo, according the trial court’s decision no presumption of correctness. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008); Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” TENN. R. CIV. P. 56.04. When a party moves for summary judgment but does not have the burden of proof at trial, the moving party must either submit evidence that affirmatively “negates an essential element of the nonmoving party’s claim” or demonstrate “that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.” Tenn. Code Ann. § 20-16-101. Once the moving party has satisfied this requirement, the nonmoving party “‘may not rest upon the mere allegations or denials of [its] pleading.’” Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 2015) (quoting TENN. R. CIV. P. 56.06). Rather, the nonmoving party must respond and produce affidavits, depositions, or responses to interrogatories that “set forth specific facts showing that there is a genuine issue for trial.” TENN. R. CIV. P. 56.06; see also Rye, 477 S.W.3d at 265. If the nonmoving party fails to respond in this way, “summary judgment, if appropriate, shall be entered against the [nonmoving] party.” TENN. R. CIV. P. 56.06. When the moving party fails to make the required showing, however, “‘the non-movant’s burden to produce either supporting affidavits or discovery materials is not triggered and the motion for summary judgment fails.’” Martin, 271 S.W.3d at 83 (quoting McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)). Because any party may move for summary judgment under Tenn. R. Civ. P. 56, cases sometimes involve cross-motions for summary judgment. CAO Holdings, Inc. v. Trost, 333 S.W.3d 73, 82 (Tenn. 2010). As the Tennessee Supreme Court explained in CAO Holdings v. Trost: Cross-motions for summary judgment are no more than claims by each side that it alone is entitled to a summary judgment. The court must rule on each party’s motion on an individual and separate basis. With regard to each motion, the court must determine (1) whether genuine disputes of material fact with regard to that motion exist and (2) whether the party seeking the summary judgment has satisfied Tenn. R. Civ. P. 56’s standards for a judgment as a matter of law. Therefore, in practice, a cross-motion for summary judgment operates exactly like a single summary judgment motion. Id. at 83 (citations omitted). -4- In determining whether a party is entitled to summary judgment, we must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of the nonmoving party. Martin, 271 S.W.3d at 84 (citing Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000)). “The nonmoving party’s evidence must be accepted as true, and any doubts concerning the existence of a genuine issue of material fact shall be resolved in favor of the nonmoving party.” Id. (citing McCarley, 960 S.W.2d at 588). A disputed fact is material if it is determinative of the claim or defense at issue in the motion. Id. (citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). ANALYSIS A. Legal Effect of the Schedule K-1 Mr. Warner first argues that the trial court erred in finding there was no proof in the record that DWP discharged or forgave the debt. He asserts that the 2011 Schedule K-1 constituted a discharge or forgiveness of the outstanding negative balance in his capital account because the form reported a capital account balance of zero and showed income to Mr. Warner in the amount of the negative balance. He further asserts that he relied upon this representation of debt forgiveness and claimed it as income on his personal income tax returns, incurring personal income tax liability. Mr. Warner urges this Court to hold that the issuance of the 2011 Schedule K-1 reflected that the debt had been discharged and operated to estop DWP from subsequently collecting the debt. There are no Tennessee cases addressing whether the issuance of a Schedule K-1 tax form reflects discharge of a debt. Mr. Warner relies on cases involving IRS tax form 1099-C to support his argument. A Form 1099-C is filed by creditors to report cancelled income for debtors. I-75 Partners, LLC v. Stefanutti, No. 310324, 2014 WL 702332, at 10 (Mich. Ct. App. Feb. 20, 2014). Courts have reached differing conclusions regarding whether issuance of a Form 1099-C operates to discharge a debt. Id. Mr. Warner advances what is considered the minority view. Under the minority view, “the filing of an IRS Form 1099-C alone is prima facie evidence of a discharge, which then requires the creditor to prove that the form was filed by mistake or pursuant to other IRS requirements.” Flathead Bank of Bigfork v. Masonry by Muller, Inc., 383 P.3d 215, 216 (Mont. 2016). Courts following the minority view have noted that “‘it would be inequitable to permit a creditor to collect the debt after having received the benefit of the “charge off” of the debt from filing the Form 1099-C.’” Id. at 217 (quoting Fed. Deposit Ins. Corp. v. Cashion, 720 F.3d 169, 178 (4th Cir. 2013)). A majority of courts, however, have concluded that the form is simply a method for complying with IRS reporting requirements and does not, alone, bar a creditor from collecting payment of a debt. Id. at 218; see also In re Reed, 492 B.R. 261, 268 (E.D. Tenn. 2013). -5- We begin by recognizing that inherent differences exist between the Schedule K-1 in this case and a 1099-C form. A creditor must file a 1099-C form to report a discharge of indebtedness upon the occurrence of an identifiable event. Cashion, 720 F.3d at 178 (citing 26 C.F.R. § 1.6050P-1(a)). “The identifiable events include discharge through the debtor’s filing for bankruptcy, the expiration of the statute of limitations for collection, discharge by agreement of the parties, a creditor’s decision ‘to discontinue collection activity and discharge debt,’ and ‘expiration of the non-payment testing period.’” Id. (quoting 26 C.F.R. § 1.6050P-1(b)(2)(i)). Schedule K-1 forms, on the other hand, are filed by partnerships to report income or loss that flows through a partnership to its partners. Owen v. Hutten, No. M2012-02387-COA-R3-CV, 2013 WL 5459035, at 3 (Tenn. Ct. App. Sept. 27, 2013). The term “partnership” may include limited-liability companies for federal income tax purposes. See https://www.irs.gov/pub/irs- pdf/i1065.pdf (Definitions for the General Instructions section). Unlike a 1099-C, the Schedule K-1 form does not require the occurrence of an “identifiable event” to trigger the filing requirement. As Wayne Vanderford, the certified public accountant who prepared the 2011 tax Schedule K-1 regarding Mr. Warner’s capital account, explained in his deposition, the law requires a partnership to file a tax return each year and the Schedule K-1 is a part of the partnership return. See 26 U.S.C.A. § 6031(a), (b) (requiring a partnership to file a tax return each year and to “furnish to each person who is a partner . . . a copy of such information required to be shown on such return”). A 1099-C form from 2011 clearly refers to a discharge of a debt because it includes the language “Cancellation of Debt” in bold type at the top right corner of the document, see https://www.irs.gov/pub/irs-prior/f1099c--2011.pdf, whereas the Schedule K-1 in this case contains no such language. The 2011 Schedule K-1 at issue shows that Mr. Warner had an “Ending capital account” balance of zero and income in the amount of $399,657.00, which Mr. Warner argues indicated that DWP discharged his debt. Mr. Vanderford, however, explained in his deposition why the negative balance was reported as income to Mr. Warner: “His capital account was in the negative. And when the capital account is in the negative and you leave without repaying that capital account, that is considered income for federal tax purposes and is reported as such.” Mr. Vanderford further explained that the Schedule K-1 reflected a zero balance in Mr. Warner’s capital account “for tax accounting purposes.” Thus, in this context, we do not find the cases concluding that filing a 1099-C form is prima facie evidence that a debt has been discharged to be persuasive. In light of the differences between a 1099-C form and the Schedule K-1 in this case and Mr. Vanderford’s testimony, we believe the issuance of the 2011 Schedule K-1 does not indicate that DWP forgave Mr. Warner’s debt. A thorough examination of the record reveals no evidence suggesting that DWP discharged or forgave Mr. Warner’s debt. We, therefore, conclude that the trial court did not err in granting DWP’s motion for summary judgment based on its finding that the record contained no proof that DWP discharged or forgave the outstanding negative balance of Mr. Warner’s capital account. -6- B. Equitable Estoppel Defense Mr. Warner next argues that the trial court erred in not considering his equitable estoppel defense. Specifically, Mr. Warner argues that the trial court prematurely cut off its analysis of the issue after finding that the 2011 Schedule K-1 did not constitute proof that DWP discharged or forgave his debt. Mr. Warner asserts that the trial court should have considered his equitable estoppel argument because the 2011 Schedule K-1 estopped DWP from collecting the outstanding negative capital account debt when he relied upon the Schedule K-1 as forgiveness of the debt, claimed the forgiven debt as income, and incurred tax liability. Equitable estoppel is an affirmative defense. TENN. R. CIV. P. 8.03. Mr. Warner had the burden of proving that DWP was estopped from collecting the debt. Tenn. Farmers Mut. Ins. Co. v. Farrar, 337 S.W.3d 829, 837 (Tenn. Ct. App. 2009). The requirements of an equitable estoppel claim are as follows: “The essential elements of an equitable estoppel as related to the party estopped are said to be (1) Conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) Intention, or at least expectation that such conduct shall be acted upon by the other party; (3) Knowledge, actual or constructive of the real facts. As related to the party claiming the estoppel they are (1) Lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) Reliance upon the conduct of the party estopped; and (3) Action based thereon of such a character as to change his position prejudicially.” Consumer Credit Union v. Hite, 801 S.W.2d 822, 825 (Tenn. Ct. App. 1990) (quoting Callahan v. Town of Middleton, 292 S.W.2d 501, 508 (Tenn. Ct. App. 1954)). When DWP moved for final summary judgment, it challenged the sufficiency of Mr. Warner’s evidence to establish an essential element of his equitable estoppel claim. Specifically, DWP challenged the element pertaining to false representation. DWP asserted that the 2011 Schedule K-1 did not reflect that the debt had been discharged or forgiven. DWP further asserted that it did not intend to forgive the debt. As support for the latter assertion, DWP attached to its motion a letter to Mr. Warner’s attorney demanding payment of the outstanding negative capital account balance. The burden then shifted to Mr. Warner to produce evidence of specific facts demonstrating the existence of an issue of material fact. See TENN. R. CIV. P. 56.06. Mr. Warner produced the 2011 Schedule K-1, arguing that it was prima facie evidence that DWP discharged or forgave his debt. -7- As previously mentioned, Mr. Warner relies on cases involving 1099-C forms where a minority of courts held that the form reflected forgiveness of a debt. There are cases where debtors relied on a 1099-C form and claimed the discharged debt as taxable income. See In re Reed, 492 B.R. at 271; In re Welsh, No. 06-10831ELF, 2006 WL 3859233, at *1 (Bankr. E.D. Pa. Oct. 27, 2006); Franklin Credit Mgmt. Corp. v. Nicholas, 812 A.2d 51, 54 (Conn. Ct. App. 2002). The courts applying the minority view have held that the creditor was estopped from pursuing collection of the debt because: It is inequitable to require a debtor to claim cancellation of debt income as a component of his or her gross income and subsequently pay taxes on it while still allowing the creditor, who has reported to the Internal Revenue Service and the debtor that the indebtedness was cancelled or discharged, to then collect it from the debtor. In re Reed, 492 B.R. at 271 (footnote omitted). As discussed above, however, we do not find the cases concluding that 1099-C forms demonstrate debt forgiveness to be persuasive in this case and do not consider the 2011 Schedule K-1 as prima facie evidence that DWP forgave the debt. As a result, the 2011 Schedule K-1 alone does not amount to a false representation that DWP discharged or forgave the debt. An examination of the record reveals no evidence that DWP falsely represented that the debt had been discharged or forgiven. In fact, the record contains evidence to the contrary. DWP attached to its motion for final summary judgment a letter to Mr. Warner’s attorney demanding that Mr. Warner pay to DWP the negative capital account balance, thus demonstrating DWP’s intent to collect the debt. The record also contains evidence indicating that the 2011 Schedule K-1 was not issued to convey the impression that DWP discharged or forgave the debt. Mr. Vanderford explained in his deposition that the 2011 Schedule K-1 reflected a zero balance in Mr. Warner’s capital account and income to Mr. Warner in the amount of $399,657.00 for accounting purposes and in accordance with tax laws. Another essential element of an equitable estoppel claim is that the party claiming estoppel experienced a prejudicial change in position due to reliance on the conduct of the estopped party. Consumer Credit Union, 801 S.W.2d at 825 (citing Callahan, 292 S.W.2d at 508). The record includes the affidavit of Mr. Warner in which he states that he reported the information from the 2011 Schedule K-1 on his 2011 personal income tax return. Because Mr. Warner is the nonmoving party, we must accept this evidence as true. Thus, the record contains evidence that Mr. Warner relied on the 2011 Schedule K- 1 issued by DWP. Mr. Warner, however, submitted no evidence proving that he actually incurred tax liability as a result of the 2011 Schedule K-1. As a result, Mr. Warner did not prove he suffered a prejudicial change of position due to his reliance on the 2011 Schedule K-1. -8- In light of the foregoing, we conclude that Mr. Warner did not carry his burden of proof to show that DWP should be estopped from collecting the debt. We conclude, therefore, that the trial court did not err by denying Mr. Warner’s motion for summary judgment and granting DWP’s motion for final summary judgment.1 CONCLUSION The judgment of the trial court is affirmed. This matter is remanded with costs of appeal assessed against the appellant, Steve H. Warner, for which execution may issue if necessary. ________________________________ ANDY D. BENNETT, JUDGE 1 Mr. Warner asserts that the trial court erred by applying an incorrect burden of proof analysis when it found that he did not carry his burden to prove by a preponderance of the evidence that DWP discharged or forgave the debt. In light of our conclusion that the trial court did not err by denying Mr. Warner’s motion and granting DWP’s motion, we find his argument is without merit. -9-	{ "pile_set_name": "FreeLaw" }
NO. 07-07-0386-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D MARCH 7, 2008 ______________________________ JOEY NICKOLAS VALLEJO, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY; NO. 18022-B; HONORABLE JOHN BOARD, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. ON MOTION TO DISMISS Pending before the Court is appellant’s motion to dismiss his appeal. Appellant and his attorney both have signed the motion. Tex. R. App. P. 42.2(a). No decision of this Court having been delivered to date, we grant the motion. Accordingly, the appeal is dismissed. No motion for rehearing will be entertained and our mandate will issue forthwith. James T. Campbell Justice Do not publish. to a guilty plea, appellant Gary Dale Phelps was granted deferred adjudication for forgery of a financial instrument, placed on community supervision for two years, and assessed a $1,000 fine. Upon the State’s motion to adjudicate guilt for violations of community supervision, the trial court granted the motion and imposed punishment at two years confinement and a $1,000 fine. Sentence was pronounced on October 5, 2005. On February 28, 2006, appellant filed a pro se “Motion to Appeal.” We dismiss for want of jurisdiction. A defendant must file a written notice of appeal with the trial court clerk within 30 days after the date sentence is imposed. Tex. R. App. P. 25.2(c) & 26.2(a)(1). The Rules of Appellate Procedure provide for a 15-day extension in which to file the notice of appeal if it is accompanied by a motion for extension of time. Tex. R. App. P. 26.3 & 10.5(b)(2). This Court is without jurisdiction to address the merits of an appeal and can take no action other than to dismiss if an appeal is not timely perfected. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Cr.App. 1998). Appellant’s sentence was imposed on October 5, 2005. No post-conviction motion was filed; thus, the deadline for filing the notice of appeal was November 4, 2005, or 15 days thereafter if accompanied by a compliant motion for extension of time. Appellant was directed by letter from the Clerk of this Court to explain why the appeal should not be dismissed for want of jurisdiction. Appellant filed a response expressing dissatisfaction with appointed counsel and asserting counsel had advised him an appeal would be filed. Nevertheless, the notice of appeal filed on February 28, 2006, is untimely and does not invoke our jurisdiction. Accordingly, the purported appeal is dismissed for want of jurisdiction. (footnote: 1) Don H. Reavis Justice Do not publish. FOOTNOTES 1:	{ "pile_set_name": "FreeLaw" }
227 P.3d 1127 (2009) 347 Or. 374 Eric PARKS and Yolanda Parks, Petitioners on Review, v. FARMERS INSURANCE COMPANY OF OREGON, Respondent on Review. (CC 0306-06214; CA A127316; SC S055403). Supreme Court of Oregon, En Banc. Argued and Submitted September 30, 2009. Decided December 24, 2009. Kathryn H. Clarke, Portland, argued the cause and filed the brief for petitioners on review. With her on the brief was Robert E.L. Bonaparte, of Shenker & Bonaparte, LLP, Portland. Beth Cupani, of Bullivant Houser Bailey PC, Portland, argued the cause and filed the brief for respondent on review. GILLETTE, J. This attorney fee dispute arises under ORS 742.061, which requires an insurer to pay an insured's reasonable attorney fees if (1) the insurer fails to settle the insured's claim within six months of the date that the insured files a "proof of loss," and (2) the insured brings an action against the insurer 1128 and recovers more than any tender that the insurer has made. The trial court awarded attorney fees to plaintiffs (the insureds) under that statute, based in part on its conclusion that certain telephone conversations between plaintiffs and their insurance agent constituted the requisite "proof of loss." The Court of Appeals reversed the award, holding that the telephone conversations could not amount to a "proof of loss" for purposes of ORS 742.061. Parks v. Farmers Ins. Co., 214 Or.App. 1, 6-11, 162 P.3d 1088 (2007). We allowed plaintiffs' petition for review, and now reverse the decision of the Court of Appeals. Plaintiffs Eric and Yolanda Parks owned a rental propertya housethat was insured under a "Landlord Protector Package" policy issued by defendant Farmers Insurance Company of Oregon. In 2003, while the policy was in force, plaintiffs received notice that police had discovered a methamphetamine lab in the house, had seized the house and placed it under quarantine. Ms. Parks hired a decontamination contractor to evaluate the problem and deal with any damage to the house. The contractor told Ms. Parks that insurance companies sometimes help with losses in such cases. On April 14, 2003, Ms. Parks called a Farmers agent, Pascone, whose business was in the town where the property was located, and asked if Farmers could "help [her] with [her] loss." There are some factual disputes about the content of that conversation, but it is undisputed that Ms. Parks told Pascone about the seizure of the methamphetamine lab and subsequent quarantine of the house, and that she provided Pascone with the address of the house and the name and telephone number of the decontamination contractor. Depending on whose testimony is credited, either Ms. Parks or Pascone suggested that there might not be coverage in the policy for methamphetamine lab contamination. It is undisputed, however, that Pascone told Ms. Parks that "other things * * might be covered," and that Ms. Parks should call her if she got any more information. Ms. Parks did not call Pascone again. However, Mr. Parks called Pascone about a month later, on May 19, 2003. Mr. Parks told Pascone that a methamphetamine lab had been "busted" at his rental property at the end of April, that his wife already had called Pascone about the matter, and that, to date, he had paid $6,710 for cleaning up the property and had been quoted a figure of $2,000 to $3,000 to get the property in shape to rent. Mr. Parks testified that he asked Pascone to "reconsider the denial of the claim," and that Pascone told him that there was no coverage for the cleanup because the policy contained an exclusion for "pollution." Although Mr. Parks initially testified at deposition that he told Pascone that some of the damage to the property had been caused by vandalism, he later acknowledged that "all [he] told * * * Pascone about damage to the rental was the methamphetamine contamination." Pascone's memory of the conversation with Mr. Parks was somewhat different. According to her, Mr. Parks told her that he and his wife did not want to file a claim because they felt that there was no coverage for the methamphetamine contamination and that the cost of repairing the other damage that he had described to hertwo broken windows would be less than the insurance policy's deductible. In any event, Pascone did not send any paperwork to Mr. Parks, did not refer him to Farmers' claims hotline, and did not otherwise tell him how to file a claim. Plaintiffs had no further contact with Farmers or its agents until June 11, 2003. On that date, plaintiffs brought an action against Farmers for, among other things, breach of Farmers' duties to them under the insurance policy.[1] In their complaint, plaintiffs alleged that their rental property was insured by 1129 Farmers, that the property had suffered unspecified "accidental physical damage," that the losses suffered as a result of that damage were within the coverage of the policy, that Farmers had breached the insurance contract by denying coverage for those losses, and that, as a result of that breach of contract, plaintiffs had been damaged in the amount of $75,000$70,000 in damage to the dwelling and $5,000 in loss of the property's rental value. Farmers filed an answer that raised, among other things, an affirmative defense that referred to policy wording that excluded coverage for "release, discharge or dispersal of contaminants, pollutants, * * or hazardous gases or chemicals." On October 16, 2003, plaintiffs sent a written settlement demand to Farmers seeking (among other things) $10,338 for vandalism damage, $10,000 for diminution in the value of the rental property, $12,000 for attorney fees, and $6,800 for methamphetamine cleanup costs. On November 19, Farmers sent a letter to plaintiffs that questioned some and outright rejected other aspects of plaintiffs' settlement demand. In that letter, Farmers stated that the "pollution exclusion at issue has previously been upheld by the Circuit Court of Multnomah County." On December 10, 2003, Farmers made a settlement offer of its ownit offered "to allow entry of judgment against it and in favor of plaintiffs on all claims alleged in this matter in the total amount of $22,021.31," exclusive of any legally recoverable costs and attorney fees. Plaintiffs immediately accepted the offer and, on January 22, 2004, the circuit court entered judgment in accordance with the offer. Plaintiffs thereafter filed a petition for attorney fees under ORS 742.061, which provides, in part: "[I]f settlement is not made within six months from the date proof of loss is filed with an insurer and an action is brought in any court of this state upon any policy of insurance of any kind or nature, and the plaintiff's recovery exceeds the amount of any tender made by the defendant in such action, a reasonable amount to be fixed by the court as attorney fees shall be taxed as part of the costs of the action and any appeal thereon." Plaintiffs' theory was that, for purposes of the statute, they had filed "proof of loss" by their April 14, 2003, and May 19, 2003, telephone calls to Pascone, and that Farmers had failed to tender its settlement offer within six months of those calls. Farmers denied that the telephone calls qualified as proof of loss and argued that, at best, plaintiffs had triggered the six-month period provided in ORS 742.061 when they filed their complaint on June 11, 2003. The trial court ultimately concluded that the Parks's telephone calls to Pascone and, particularly, Mr. Parks's May 19, 2003, call, constituted a sufficient proof of loss and entered a supplemental judgment awarding plaintiffs $50,000 in attorney fees. In explaining its decision, the court explicitly rejected Farmers' contention that, because those telephone calls pertained to methamphetamine contamination, they could not serve as "proof of loss" with respect to the losses that were at the heart of plaintiffs' action (and which Farmers characterized as vandalism losses). The court concluded that plaintiffs' claim for "accidental physical damage" included a claim for damage caused by methamphetamine contamination and that Farmers had not "knock[ed] out" that part of the claim prior to settlement. Farmers appealed, arguing that plaintiffs' telephone calls to Pascone were not "proof of loss" within the meaning of ORS 742.061 for two reasons: (1) a "proof of loss" must be in writing; and (2) a "proof of loss" must allow an insurer to ascertain its liabilities, and plaintiffs' conversations with Pascone about methamphetamine contamination did not provide Farmers with any information that would have allowed it to ascertain its liabilities with respect to the only potentially covered loss that plaintiffs could claima claim for vandalism. The Court of Appeals essentially accepted the second reason, holding that the Parks's telephone calls did not and could not have served the essential purpose of a proof of loss, viz., to allow the insurer to ascertain its liabilities, taking into account the insurer's obligation to investigate and clarify claims that are uncertain: "Here, there was no objective reason for [Farmers] to investigate before this action was filed because, until then, the only 1130 claim that plaintiffs had asserted was excluded under the policy, and plaintiffs did not ask [Farmers] to investigate a claim for any other damages. Thus, there was no `uncertain claim' that triggered [Farmers'] duty to investigate." Parks, 214 Or.App. at 11, 162 P.3d 1088. Before this court, plaintiffs argue that the Court of Appeals erred in assuming that the issue of coverage for methamphetamine contamination could not be considered "uncertain" and that a conversation that focused on that sort of damage would not provide any reason for an insurer to investigate further. They also continue to maintain that, contrary to Farmers' view, ORS 742.061 does not require that "proof of loss" be in writing. They insist, in short, that their telephone conversations with Pascone could and did constitute "proof of loss" and that, because Farmers' settlement offer, which they accepted, came more than six months after those conversations, the statute requires Farmers to pay their attorney fees.[2] This is not the first time that this court has considered what ORS 742.061 requires by way of a "proof of loss." In Dockins v. State Farm Ins. Co., 329 Or. 20, 985 P.2d 796 (1999), this court examined the statute and concluded that, when the legislature used that term, it intended something more than the particular form or submission an insurance policy might specify. Id. at 26-27, 985 P.2d 796. Based on prior cases dealing with the term, this court held that, in the context of ORS 742.061, "proof of loss" has a functional meaningthat is, it pertains to any "event or submission" that accomplishes the purpose of a proof of loss. That purpose, the court concluded, is "to afford the insurer an adequate opportunity for investigation, to prevent fraud and imposition upon it, and to enable it to form an intelligent estimate of its rights and liabilities before it is obliged to pay.'" Dockins, 329 Or. at 28, 985 P.2d 796 (quoting Sutton v. Fire Insurance Exch., 265 Or. 322, 325, 509 P.2d 418 (1973) (quoting 14 Couch, Cyclopedia of Insurance Law § 49:373, p. 15 (2d ed.))). We further concluded (again, based on prior case law), that insurers operate under a duty of inquiry and that, "even if a submission is insufficient to allow the insurer to estimate its obligations, it will be deemed sufficient if the insurer could accomplish that purpose through reasonable investigation." Dockins, 329 Or. at 28, 985 P.2d 796. Synthesizing those ideas into a single definition, this court announced that "[a]ny event or submission that would permit an insurer to estimate its obligations (taking into account the insurer's obligation to investigate and clarify uncertain claims) qualifies as `proof of loss' for purposes of [ORS 742.061]." Id. at 29, 985 P.2d 796. More recently, in Scott v. State Farm Mutual Auto. Ins., 345 Or. 146, 190 P.3d 372 (2008), we applied the functional definition of "proof of loss" that we had announced in Dockins in the context of an uninsured motorist (UM) insurance claim. The plaintiff in Scott was injured in a car accident and, after discussing her coverage with one of her automobile insurer's claim representatives and providing a statement about the accident, submitted a claim for personal injury protection (PIP) on a form entitled "application for benefits" that the claim representative provided. The insurer processed the form for purposes of a PIP claim but did not forward it to the insurer's UM insurance department. About a month later, the plaintiff indicated to the claims representative that she might pursue a UM claim, and the claims representative instructed the plaintiff to sign and return a medical authorization form, which plaintiff did. The plaintiff later brought an action against the insurer, alleging that it had not paid UM benefits owed to the plaintiff and seeking attorney fees under ORS 742.061. Plaintiff asserted that her submission of an "application for benefits" on a form provided by the insurer constituted proof of loss for purposes of that statute. The Court of Appeals rejected that assertion, holding that, to constitute proof of loss with respect to a UM claim, the plaintiff was required to submit a written claim specifically stating her intention 1131 to pursue a UM claim, and that the "application for benefits," which had been submitted for purposes of a PIP claim, did not qualify. Scott v. State Farm Mutual Auto. Ins., 213 Or.App. 351, 161 P.3d 944 (2007). This court, however, relied on the functional meaning of the term "proof of loss" that we had announced in Dockins and concluded that the plaintiff had provided "proof of loss" when she submitted the application for PIP benefits. Scott, 345 Or. at 152-56, 190 P.3d 372. We noted that the plaintiff would not have been aware of the insurer's practice of separately processing PIP and UM claims, that the insurer was aware that the plaintiff might want UM benefits, and that the insurer was in the best position to know to which coverage plaintiff was entitled. Id. at 156, 190 P.3d 372. Plaintiffs in the present case have argued that their telephone calls to Pascone constituted "proof of loss" under the foregoing definition from Dockins and Scotti.e., that the information that plaintiffs supplied in those calls and that Farmers could have obtained in a reasonable investigation triggered by those calls was sufficient to permit Farmers to estimate its obligations vis-à-vis plaintiffs' obvious and/or uncertain claims. Farmers contends, however, that, even if the content of the telephone conversations was sufficient in that regard (and they deny that it was), the fact that the information was conveyed orally, and not in writing, is incompatible with a conclusion that it constituted a "proof of loss." Farmers contends that it is clear from the text and context of ORS 742.061 that, for purposes of triggering the six-month period in that statute, a "proof of loss" must be in writing. In support of that argument, Farmers first points to the use of the term "filed" in conjunction with the phrase "proof of loss" ("if settlement is not made within six months from the date proof of loss is filed with an insurer"). Farmers suggests that the term "filed" strongly implies a writing. But while that may be true with respect to court filings, we are not persuaded that the term carries that same connotation in the world of insurance and beyond. Certainly, car and unemployment insurance claims often are "filed" orally by telephone, as are newspaper stories and ordinary complaints to businesses and government agencies. By itself, the use of the term "filed" is not persuasive. Farmers also contends that "proof of loss," as it is used in ORS 742.061, involves a writing because that is how the term is used in other statutes in ORS chapter 742. Farmers notes, for example, that ORS 742.053 requires insurers to furnish "forms of proof of loss" upon an insured's written request. It also notes that ORS 742.230, a statute that sets out certain provisions that must be included in fire insurance policies, requires "written notice" to the insurer of any loss and also requires that, "within 90 days after receipt of proof of loss forms," an insured "shall render to [the insurer] proof of loss, signed and sworn by the insured." Farmers argues that if "proof of loss" so clearly refers to a written instrument in those related statutes, it must have the same meaning in ORS 742.061. In our view, however, the statutes that Farmers relies on do not support its point. Particularly in light of what this court said in Dockins about substantial, as opposed to formal, compliance with the "proof of loss" requirement in ORS 742.061, the fact that a related statute requires insurers to provide "proof of loss forms" upon an insured's request cannot mean that the only way to file "proof of loss" for purposes of the attorney fee statute is by means of similar forms. Neither does the fact that a statute that dictates that a particular kind of insurance policy (fire insurance) includes a provision that imposes specific "proof of loss" requirements (including that proof of loss be "signed") imply anything about what the legislature intended by the term "proof of loss" in an older and more broadly applicable statute like ORS 742.061.[3] In short, the "context" that Farmers points to is unhelpful. 1132 Farmers argues, finally, that this court's own cases indicate that "proof of loss" must be in writing. In that regard, Farmers observes that, although this court has assigned a functional, rather than a formal, meaning to the term "proof of loss" in the context of ORS 742.061, it never has held that a telephone call, or any other "event or submission" that has not been reduced to writing, qualifies as proof of loss. Farmers points out that, even in Dockins, the "event or submission" that this court identified as sufficient proof of loss was a written documenta complaint. But the fact that, in the handful of cases that have considered the meaning of ORS 742.061, this court has identified some written documents as sufficient "proof of loss" for purposes of the statute does not mean that we have concluded that only a writing is sufficient; it simply reflects that, heretofore, this court has had no reason to consider the issue. And, as we consider it now, we conclude that a writing requirement would be incompatible with a functional interpretation of the statutory term. An oral contact with an insurer can be just as effective as a writing in providing insurers with information adequate to allow insurers to make an intelligent estimate of their rights and liabilities. It also can provide an adequate opportunity to investigate before deciding whether to pay. We conclude that there is no requirement in ORS 742.061 that "proof of loss" be in writing. That brings us to the ground upon which the Court of Appeals decision for Farmers actually rests, viz., that the information that the Parks conveyed to Pascone in their telephone calls did not amount to "proof of loss" even under the functional definition set out in Dockins. The Court of Appeals correctly summarized that functional definition in terms of whether the information provided is sufficient to allow the insurer to estimate its obligations through a reasonable investigation. Applying that standard to plaintiffs' claim, the court then concluded that, because the two telephone calls to Pascone only addressed a type of loss that the court believed was excluded from coverage under a policy provision pertaining to damage caused by "pollutants,"[4] those calls could not qualify as "proof of loss." That was so, in the court's view, because the information imparted in the telephone calls would not permit Farmers to estimate its obligations with respect to any claim that in fact was covered by the policy, and neither would it leave Farmers with a degree of uncertainty about its obligations that would trigger a duty to investigate further. Parks, 214 Or. App. at 8-11, 162 P.3d 1088. Before this court, plaintiffs argue that the Court of Appeals' analysis of the "uncertainty" of their claims is erroneousthat is, that contrary to that court's position, the issue of coverage for methamphetamine lab cleanup costs under the policy at issue is far from "certain." They cite a number of cases in which the Court of Appeals has held that methamphetamine cleanup costs were not excluded under policy provisions that purported to exclude "contamination." They also note that the issue of coverage for methamphetamine contamination was never litigated in this case, either by a summary judgment motion, or otherwise. Plaintiffs conclude that a claim for methamphetamine contamination had not been foreclosed as a matter of law, and they argue that, in light of that fact, their telephone calls to Pascone, and, particularly, Mr. Parks's statements about the amount that he had paid and expected to pay in the future to clean up the damage from the lab, provided Farmers with enough information that it should have triggered an investigation into a contamination claim. Farmers responds to that argument on two fronts. It contends, first, that plaintiffs' reliance on Mr. Parks's cleanup cost estimates is misguided, because the claim plaintiffs ultimately took to court did not involve a 1133 claim for methamphetamine contamination but, instead, was based on a claim for vandalism damage. Farmers argues that nothing in the Parks's telephone calls would have put it on notice of a potential claim for that sort of damage.[5] However, as plaintiffs point out, there is no support in the record for Farmers' supposition that the claims that plaintiffs brought and that both parties settled were only about vandalism damage. In fact, plaintiffs couched their complaint in very broad terms, simply alleging that their rental property had suffered "accidental, physical damage" while it was covered by a policy issued by Farmers. Although the content and scope of "accidental physical damage" is not immediately obvious, it is clear that the term could refer to methamphetamine contamination just as easily as it could to vandalism damage. Moreover, it would appear from the depositions, correspondence, and filings in the record that Farmers had every reason to suspect that plaintiffs were including contamination damage in their claim. Still, Farmers made no attempt to remove that aspect of the claim from the case through a summary judgment motion, a motion to make more definite and certain, or other motion, before it settled "all claims alleged in this matter" with plaintiffs. Accordingly, we cannot accept Farmers' contention that plaintiffs' telephone calls to Pascone could not trigger a duty to investigate a potential claim. Farmers argues that, even if there is some correlation between Mr. Parks's description of his damages in the May 19, 2003, telephone call and the damage that plaintiffs ultimately claimed in their legal action, the fact remains that those particular damages were excluded from coverage as a matter of law and, as such, could not trigger an obligation to investigate. Farmers relies, in that regard, on what it asserts to be the "plain" wording of the policy exclusion (which is quoted above, 347 Or. at 377-78, 227 P.3d at 1128-29) and a single Court of Appeals case that purports to interpret substantially similar wording and that was reversed by this court on other grounds.[6] We reject that line of reasoning because we do not accept its premise. Quite simply, we cannot say that the law surrounding this type of exclusion is so clear, and that the exclusion was so clearly applicable to the facts that Mr. Parks reported to Farmers' agent, that Farmers was relieved of any obligation to investigate further or, in the alternative, to litigate the matter before settling "all claims alleged in this matter." In a related vein, Farmers contends that the Court of Appeals correctly "assumed" that plaintiffs' policy excluded coverage for methamphetamine contamination. Parks, 214 Or.App. at 8, 162 P.3d 1088. The Court of Appeals explained that assumption as arising from the fact that plaintiffs had never challenged the applicability of the methamphetamine exclusion, and did not argue that the policy provided coverage for methamphetamine claims. Id. The court acknowledged that plaintiffs did assert, at the attorney fee hearing, that, in light of the fact that their complaint alleged that all of their losses were covered under the policy and that Farmers had not moved to require more specificity, Farmers' settlement of "all claims alleged in this matter" encompassed decontamination damages. The court asserted, however, that plaintiffs had not "developed" that argument and, therefore, the court declined to address it, "except to observe that [Farmers] consistently rejected plaintiffs' assertion that the methamphetamine cleanup costs were covered under the policy, and there was no evidence that [Farmers] actually intended to compensate plaintiffs for those costs in making its offer of judgment." Id. at 8-9 n. 6, 162 P.3d 1088. As we read the record of the attorney fee hearing, however, the latter statement is inapposite. The trial court explicitly stated its 1134 reasoning for granting the attorney fee request in the following terms: "The insurance company is contending that they had the ability to knock out the methamphetamine part of the claim, but they * * didn't file a Rule 21, which they had time to do within the six months and get a ruling on it with our expedited courts[. I]f they [had] come in and said: Hey, we've got this six-month thing, we've got to get a hearing[,] Judge Baldwin would have found a judge. He did that to me last week. I got it done. They got a ruling. He then ruled in favor of the defense incidentally. Then they settled the case that day. So that's the way our system can work if people act quickly. "Now you've mentioned * * * you guys didn't think * * * to confer and ask [plaintiffs' attorney, `]You send us a letter at least telling us in detail what you are claiming, or we're going to file a motion to make more definite and certain at the least[.' S]o I'm going to rule in favor of the plaintiff on this." From the foregoing ruling, it is clear that the trial court intended to compensate plaintiffs for attorney fees associated with their claim for methamphetamine decontamination costsnot because it believed that those costs actually were covered by the policy in question (that issue never was litigated), but because Farmers had not taken appropriate steps to formally and legally remove them from the case before settling on "all claims alleged in this matter." Plaintiffs cannot be faulted for failing to "develop" the very argument that the trial court adopted to explain its ruling. The Court of Appeals was wrong to use that supposed failure as a basis for treating the exclusion of plaintiffs' decontamination costs as an established legal fact. We hold that plaintiffs' telephone calls to Farmers' agent, and particularly, Mr. Parks's May 19, 2003, call reciting the amounts that he had paid and expected to pay to clean up the contamination caused by the methamphetamine lab, conveyed sufficient information to allow Farmers to ascertain its obligations vis-à-vis a possible claim for methamphetamine damage, taking into account Farmers' duty to investigate and clarify uncertain claims. That telephone call qualified as "proof of loss" for purposes of such a claim. Plaintiffs' action against Farmers for breach of an insurance policy included an allegation that Farmers was obligated, but refused, to pay a claim for methamphetamine damage, and that, in making a tender and ultimately settling "all claims alleged in this matter" without first removing that part of the claim from the case, Farmers settled the methamphetamine damage claim. It follows that plaintiffs provided "proof of loss" within the meaning of ORS 742.061 for their claim more than six months before December 10, 2003, when Farmers made the tender that settled the claim. Plaintiffs therefore are entitled to attorney fees under the statute. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed. NOTES [1] Plaintiffs also alleged intentional interference with economic relations (specifically, that by failing to pay for the damage to the rental property, Farmers had interfered with plaintiffs' business relationships with their tenants and vendors that serviced the property) and negligent misrepresentation (specifically, that Farmers had negligently and erroneously represented to plaintiffs that the policy they were offering to them would cover any and all damage to the rental property, and that plaintiffs had relied upon that representation when they purchased the policy). [2] Plaintiffs also contend that, even using their complaint as the "proof of loss" trigger, Farmers did not meet the six-month deadline in ORS 742.061 because its settlement offer did not qualify as a "tender" for purposes of that statute. Because we conclude that plaintiffs' telephone calls did constitute proof of loss, we need not consider that alternative argument. [3] As we explained in Scott, ORS 742.061 was originally enacted in 1919 as General Laws of Oregon, chapter 110, sections 1 and 2 and, although it has been renumbered and amended over the years, the term "proof of loss" has remained the same. 345 Or. at 155, 190 P.3d 372. [4] The court "assumed" that the exclusion for damage from pollutants applied in the manner described, noting that (1) plaintiffs had not argued otherwise and (2) plaintiffs had not sufficiently "developed" an argument made at trial that, in light of the fact that the complaint alleged that all of plaintiffs' losses were covered under the policy and that the parties had settled "on all claims alleged in this matter," the actual legal application of the exclusion was irrelevant. Parks, 214 Or.App. at 8-9 n. 6, 162 P.3d 1088. [5] Farmers notes that, in fact, Mr. Parks acknowledged in his deposition testimony that he was not concerned with vandalism damage at the time of the call, but was focused only on the methamphetamine cleanup costs. [6] Farmers refers to Fleming v. United Services Automobile Assn., 144 Or.App. 1, 925 P.2d 140 (1996), rev'd on other grounds, 329 Or. 449, 988 P.2d 378 (1999). Fleming involved an exclusion for "discharge, dispersal, seepage, migration, release or escape of pollutants."	{ "pile_set_name": "FreeLaw" }
Court of Appeals of the State of Georgia ATLANTA, June 07, 2016 The Court of Appeals hereby passes the following order A16A1531. WOODROW HALL et al. v. PETRA SPICE. The appellant in this case failed to comply with the notice of docketing mailed by this Court and with Court of Appeals Rules 22 (a) and 23 (a), regarding the filing of an enumeration of errors and brief within twenty days after the appeal was docketed. See also Court of Appeals Rule 13. On May 13, 2016, this Court ordered the appellant to file an enumeration of errors and a brief no later than May 23, 2016. As of the date of this order, the appellant's enumeration of errors and brief still have not been filed. Accordingly, this appeal is deemed abandoned and is hereby ordered DISMISSED. Court of Appeals Rules 7, 23 (a). Court of Appeals of the State of Georgia Clerk's Office, Atlanta, June 07, 2016. I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk.	{ "pile_set_name": "FreeLaw" }
782 F.2d 1047 Shivev.U.S. 85-1009 United States Court of Appeals,Eighth Circuit. 10/3/85 1 W.D.Mo. AFFIRMED	{ "pile_set_name": "FreeLaw" }
592 F.3d 645 (2009) Laurie M. COOPER, Plaintiff-Appellant, v. HEWLETT-PACKARD CO., Disability Plan, Defendant-Appellee. No. 09-20087. United States Court of Appeals, Fifth Circuit. December 16, 2009. 647 Lonnie Roach, Bemis, Roach & Reed, Austin, TX, for Cooper. Lonie A. Hassel, Julia Elizabeth Zuckerman, Groom Law Group, Chartered, Washington, DC, for Defendant-Appellee. Before BENAVIDES, DENNIS and ELROD, Circuit Judges. BENAVIDES, Circuit Judge: This is an appeal of the district court's grant of summary judgment upholding the denial of Appellant Laurie Cooper's claim for continued disability benefits under the Hewlett-Packard Company Disability Plan (the "Plan"), governed by 29 U.S.C. §§ 1001 et. seq. ("ERISA"). Cooper argues that she was denied a full and fair review of her claim and that the denial of benefits was an abuse of discretion because it was not supported by substantial evidence. Based on the following analysis, we affirm the judgment of the district court. I. Laurie Cooper worked for Hewlett-Packard ("H-P") for 16 years in the position of content manager, which involved 648 writing documentation regarding how to accomplish certain technical solutions at H-P. Most of her work was performed in front of a computer. As a result of her employment at H-P, Cooper became eligible to receive benefits under the Plan. Benefits provided by the Plan are funded by H-P, and administered by VPA, Inc. ("VPA"). On March 24, 2004, Cooper stopped working at HP. Cooper, then 43 years old, applied for Short Term Disability ("STD") benefits pursuant to § 2(q)(I) of the Plan because of neck and back pain she had been experiencing. Section 2(q)(i)'s definition of "Totally Disabled" provides that "[d]uring the first twenty-six (26) weeks following the onset of an injury or sickness, the Participant is unable to perform the material and essential functions of his Usual Occupation in the Participating Company." The Plan defines "Usual Occupation" as "the customary work assigned to the Participant by the Participating Company which employs the Participant and performed on the Participant's customary schedule ...." In support of her claim, Cooper submitted medical evidence, including reports from her psychiatrist, Dr. Riaz Mazcuri, M.D., and another treating physician, Dr. Mehboob Nazarani, documenting chronic back pain, depression, bipolar disorder, and generalized anxiety. On April 20, 2004, VPA approved Cooper's application for STD benefits under § 2(q)(i). Following the initial 26-week period of STD benefits under § 2(q)(i), Cooper applied for Long Term Disability benefits under § 2(q)(ii) of the Plan. Section 2(q)(ii) provides that a participant is "Totally Disabled" under that section if "[a]fter the initial twenty-six (26) week period and prior to the twenty-four (24) month period following the onset of injury or sickness, the Participant is unable to perform the material and essential duties of his Own Occupation." The Plan defines "Own Occupation" as "the type of work in which the Participant was engaged prior to the onset of his Total Disability and is not limited to the Participant's Usual Occupation or to jobs that provide any particular earnings level." Cooper submitted evidence of her continuing chronic back pain, depression, bipolar disorder, and generalized anxiety from her treating physician, Dr. Arthur Tullidge. Based on this evidence, VPA determined that Cooper was eligible for disability benefits under § 2(q)(ii), effective September 23, 2004. On September 19, 2005, VPA again contacted Cooper regarding continuing eligibility for disability benefits, under § 2(q)(iii) of the Plan. The § 2(q)(ii) period of benefits would end on March 25, 2006, and VPA gave Cooper the opportunity to present any other diagnoses by any other treating physicians. Section 2(q)(iii) imposes a stricter standard for eligibility than those in §§ 2(q)(i) and (ii), requiring a participant to demonstrate that she is unable to perform "any occupation for which he is or may become qualified by reason of his education, training or experience"not just the participant's "Usual Occupation" or "Own Occupation." Additionally, VPA notified Cooper that, unlike under §§ 2(q)(i) and (ii), under § 2(q)(iii) nervous or mental disorders are disregarded in the determination of the participant's disability. In support of her claim for benefits under § 2(q)(iii), Cooper submitted medical documentation from several physicians and other medical professionals relating to procedures she underwent to treat her chronic back pain and resulting pain management procedures. On November 1, 2005, Dr. James Rose, a neurosurgeon who examined Cooper following her October 19, 2005 anterior cervical discectomy and fusion surgery, remarked that Cooper's neck and hand were healing well and that Cooper's 649 main problem was a possible kidney stone. Margarita Lyons, P.A., one of Cooper's pain management providers, examined Cooper on January 9, 2006. During the examination, Cooper reported that she was feeling "much, much better" since the surgery, and that she had been able to decrease all her medications, had started an exercise regimen, planned to lose weight, and was looking for a job. Cooper ranked her pain on a scale of 1 to 10 (with 10 being the worst and 2 to 3 being acceptable) currently as 2/10, usually as 3/10 to 4/10, least pain as 2/10, and most pain as 6/10. Lyons noted further, "The patient has been doing remarkably well. She has been able to decrease some of her medications. She has noted she has a mild increase in anxiety; however, with regard to her pain, she is doing very well." On January 12, 2006, Dr. Tullidge noted that Cooper's condition was "improved," and that Cooper said the "pain [was] gone" and that she was feeling "so much better." Dr. Madhuri Are, also Cooper's pain management provider, examined Cooper on April 10, 2006. Cooper reported to Dr. Are that her pain level was currently 4/10, and usually was a 2/10. Her least pain was a 2/10 and most pain was a 6/10, with 4/10 as the "acceptable" pain level. Dr. Are found "some tenderness" in Cooper's axial region and lower back, but documented that Cooper was in "no acute distress," had a good range of motion, and had well-healed scars. VPA ordered an independent medical evaluation before determining whether to grant or deny benefits to Cooper under § 2(q)(iii). Dr. Andres H. Keichian, a neurologist, conducted the independent medical evaluation. In his April 19, 2006 report, Dr. Keichian found that Cooper had a moderate range of motions limitation of the cervical and lumbar spine. In evaluating her physical capabilities, Dr. Keichian determined that Cooper was able to stand, walk, sit, and drive for up to four hours each per day for one hour each at a time; occasionally to lift up to 10 pounds, bend, squat, crawl, reach above shoulder level, and fine manipulate with both hands; and frequently to push/pull and simple grasp with both hands. VPA also referred Cooper's file, including Dr. Keichian's report, to a vocational specialist, Renee Lange. Lange used Cooper's medical history, including the physical capabilities determined by Dr. Keichian, to identify jobs in Cooper's geographic area that Cooper could perform notwithstanding her physical restrictions. Based on this information, Lange identified three positions program manager, computer operations manager, and department managerthat Cooper could perform and that would not require sitting or standing for more than an hour at a time and allowed for alternating positions. Furthermore, Lange noted these occupations allowed for modifications such as a sit/stand workstation. On July 19, 2006, VPA denied Cooper's claim for benefits under § 2(q)(iii).[1] The claim denial letter stated that medical and vocational evidence demonstrated that, while Cooper may have been unable to return to her former position as content manager, she was capable of performing other occupations for which she was qualified or could become qualified by the date on which her disability benefits under § 2(q)(ii) ended. VPA highlighted Cooper's improving medical condition, specifically referring to the comments of Drs. Rose and Keichian. VPA also explained that the vocational specialist had considered Cooper's education, training, and experience in addition to Dr. Keichian's evaluation in finding that Cooper could 650 perform the jobs of program manager, computer operations manager, and department manager. VPA noted the fact that Cooper needed to change physical positions every hour in deciding that Cooper could perform the above three occupations. On February 13, 2007, Cooper appealed VPA's decision. In support of her appeal, Cooper submitted further medical documentation from Dr. Rose. This documentation included a November 28, 2006 note in which Dr. Rose remarked that the "fusion of course [was] healing pretty well at [Cooper's] C5-C6 and C6-C7" discs. He also commented, however, that Cooper "continue[d] to have some discomfort and neck pain which was aggravated by [her] work." Dr. Rose stated that while the discs that had been operated upon were healing well, Cooper had "degenerative disc disease at other levels above and below the fusion" and that he thought this problem was giving Cooper pain to the point where she was "disabled from [her] work." He commented that he thought Cooper had a "significant physical disability" and that her condition "has prevented [her] from doing any meaningful work, especially doing [her] usual work, which is working at a computer and the like and writing." Dr. Rose concluded that Cooper "[had] found that [she could] not work because of the increased pain." Additional notes submitted from Dr. Tullidge, Cooper's treating physician, dated March 21, 2006, stated that Cooper would "start [working at the] jewelry store next week," that Cooper's condition was "stable," and that Cooper was "not happy about ending of long term disability." In notes from April 21, 2006, Dr. Tullidge commented that Cooper was "working part time," "experiencing pain," and "tolerat[ing] med[ication]s." On June 28, 2006, Dr. Tullidge noted that Cooper was "working part time (25 hours [per week])" and made no reference to any complaints of pain on the part of Cooper. On September 18, 2006, Cooper saw Dr. Are, one of her pain management providers, for an examination following an epidural injection to reduce pain. Dr. Are documented that Cooper had "increased pain and pain going down her left thigh to her knee." Dr. Are remarked that Cooper was in no acute distress and had intact reflexes. Dr. Are examined Cooper again on October 30, 2006. On that date, Cooper ranked her pain as a 4/10. Dr. Are again documented that Cooper was in no acute distress and had intact reflexes, and commented that she had some tenderness in the low lumbosacral region as well as painful flexation. Dr. Are scheduled Cooper for a caudal epidural steroid injection which was performed the following day, October 31, 2006. At a January 18, 2007 follow-up visit with Dr. Are after the epidural injection, Cooper reported that pain control following the injection did not last very long, and that her pain was currently at the 4-5/10. During another examination by Dr. Are on February 12, 2007, Cooper ranked her pain as currently at 5/10. Dr. Are remarked that Cooper was working at a jewelry store as a sales clerk and was abiding by her restrictions of "no prolonged sitting or standing for more than 20-30 minutes." He noted that Cooper was in chronic pain due to disc bulges in her thoracic and lumbar spine, that he "strongly doubt[ed]" she was able to work on a full-time basis, and that she was "very restricted" in her abilities and mobility due to her "chronic disabling" pain from disc disease. VPA requested and received copies of Cooper's pay stubs from her employment as a sales clerk at the jewelry store. The pay stubs indicated that Cooper had been working between 28.44 to 92.61 hours at Ben Bridge Jewelers per two-week pay 651 period since the date her disability benefits ended on April 1, 2006. VPA also considered Cooper's application for Social Security disability benefits. On July 11, 2006, the Social Security Administration denied Cooper's application because of her work and the amount she earned. In an April 17, 2007 letter, Cooper's counsel stated that it was his understanding that Cooper "was denied social security disability benefits because of her part time job at the jewelry store." On May 16, 2007, VPA denied Cooper's claim on appeal. The denial letter noted Cooper's examination by Physicians Assistant Lyons when Cooper reported that her symptoms were much better and ranked her pain level at 2/10. The letter further stated that VPA had attempted to contact Dr. Keichian following Cooper's request that VPA clarify information with him, but that Dr. Keichian had not responded to VPA's repeated requests for information. VPA did repeatedly note that the fact that Cooper was actually working supported its conclusion that Cooper could not establish her inability to perform "any occupation" as required to qualify for continuing benefits under the Plan. On May 23, 2007, apparently in response to VPA's earlier request, Dr. Keichian sent a four-sentence letter to VPA, stating that "[t]he primary diagnoses of Mrs. Cooper that impair her ability to work are cervical laminectomy and fusions, persistent spinal pain, and bipolar disease. She also has a retroperitoneal tumor resected, of unclear prognosis. In view of her medical pathology, Cooper is totally disabled and unable to be gainfully employed." Cooper filed this action against the Plan on September 6, 2007. The district court granted summary judgment in favor of the Plan on January 14, 2009. Reviewing VPA's decision under the abuse of discretion standard, the district court rejected Cooper's position that VPA had shifted the grounds for denying Cooper's claim. The district court noted that, while VPA weighed Cooper's new employment as strong evidence that Cooper did not meet the § 2(q)(iii) standard, Cooper lost her appeal on the same specific grounds as she lost the initial claim: her improved medical condition. The district court determined that substantial evidence supported VPA's denial of Cooper's claim for disability benefits, finding that no doctor had opined that Cooper was unable to perform "any occupation" within the meaning of § 2(q)(iii). The district court highlighted the vocational specialist's finding that Cooper was capable of performing three occupations, and the fact that Cooper herself reported feeling better and planning to lose weight and look for a job. That Cooper did begin employment a few months later, the district court found, tended to confirm that VPA was correct in relying on the signs of improvement shown by the vocational specialist's report and on Cooper's statements about her medical improved condition. Cooper timely appealed. II. "Standard summary judgment rules control in ERISA cases." Vercher v. Alexander & Alexander Inc., 379 F.3d 222, 225 (5th Cir.2004). This Court reviews a district court's grant of summary judgment de novo, applying the same standards as the district court. Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 805 (5th Cir.2007). Under de novo review, we "review the Plan's decision from the same perspective as did the district court, and we directly review the Plan's decision for an abuse of discretion." Meditrust Fin. Servs. Corp. v. Sterling Chems. Inc., 168 F.3d 211, 214 (5th Cir. 1999) When an ERISA benefits plan provides the plan administrator with discretionary authority to construe the terms 652 of the plan, the plan administrator's denial of benefits is reviewed for abuse of discretion.[2]Gosselink v. American Tel. & Tel. Inc., 272 F.3d 722, 726 (5th Cir.2001). Abuse of discretion review is synonymous with arbitrary and capricious review in the ERISA context. Meditrust, 168 F.3d at 214. "When reviewing for arbitrary and capricious actions resulting in an abuse of discretion, we affirm an administrator's decision if it is supported by substantial evidence." Id. at 215. "Substantial evidence is `more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th Cir.2005). A decision is arbitrary only if made without a rational connection between the known facts and the decision or between the found facts and the evidence. Meditrust, 168 F.3d at 215 (citation omitted). III. First, Cooper argues that she was denied the full and fair review mandated by § 1133(2) of ERISA because VPA did not provide review of its specific basis for rejecting her claim. 29 U.S.C. § 1133(2). To comply with the "full and fair review" requirement in deciding benefit claims under ERISA, a claim administrator must provide the specific grounds for its benefit claim denial. Robinson v. Aetna Life Ins. Co., 443 F.3d 389, 393 (5th Cir.2006). Challenges to ERISA procedures are evaluated under the substantial compliance standard.[3]See Lacy v. Fulbright & Jaworski, 405 F.3d 254, 257 (5th Cir.2005). Viewing her appeal in light of the substantial compliance standard, we conclude that Cooper received a full and fair review of the specific grounds upon which her benefit claim was initially denied. Cooper's claim that VPA changed its basis for denying her claim on appeal is without merit. VPA's basis for denying Cooper's claim on appeal was the very same as its original basis: the fact that her medical evidence failed to establish that she was incapable of employment.[4] Cooper's 653 claim for long-term disability benefits was originally denied because, based upon a review of the medical evidence in her record, "it was determined that [she] could perform the following jobs: Program Manager[;] Computer Operations Manager[; and] Department Manager."[5] When Cooper appealed VPA's initial decision, her own medical records from Anderson Cancer center indicated that she "was employed at Ben Bridge Jewelers, Inc." Thus, on appeal, VPA reviewed its original assessment of the medical evidence (that is, the assessment that she was capable of employment), coupled with her medical records from Anderson Cancer Center indicating she was in fact employed, and concluded that its original assessment regarding Cooper's lack of a "Total Disability" was correct. Cooper, however, contends that VPA changed its original grounds for denying her claim when, on administrative appeal, VPA referenced Cooper's subsequently acquired part-time jobinstead of referring exclusively to the medical and non-medical evidence the Administrator relied upon in the original denial of benefits. To support this position, Cooper relies on this Court's decision in Robinson, in which this Court held that "section 1133 requires an administrator to provide review of the specific ground for an adverse benefits decision."[6] 443 F.3d at 393. Cooper, therefore, avers that because VPA highlighted the Anderson Cancer Center records proving her employment in its review letter denying her claim, VPA failed to lawfully provide review of the "specific grounds" for the Administrator's original adverse benefits decision. Cooper's interpretation of Robinson is mistaken, and provides the Court with the opportunity to highlight the significant differences between the bait and switch tactic at issue in Robinson, and the honest, fair, and full review Cooper received here, with VPA. Cooper's argument that Robinson applies is misplaced because although the VPA mentioned a new, additional fact that the Administrator had not considered in the initial denial of her claim (this new fact 654 being her employment), the mention of that new fact did not constitute different or separate "specific grounds" for the initial denial of Cooper's claim. Instead, the specific ground remains the same: the Administrator denied her claim on the grounds that she failed to demonstrate with sufficient medical evidence that she was unable to perform "any occupation" as required under § 2(q)(iii) of the Plan. The fact that Cooper is now gainfully employed does not provide the VPA with a different basis for affirming the Administrator's initial denial of Cooper's claim, but rather, it provides the VPA with a concrete affirmation that the Administrator's original assessment of the medical evidence in the record was correct. Thus, while the Court agrees with Cooper that Robinson mandates that as a claimant, she "be specifically notified of the reasons for an administrator's decision" regarding the denial of her application (443 F.3d at 393), the Court disagrees with Cooper that she was not notified of the specific reasons supporting the Administrator's decision in her case. The present case does not contain the bait and switch tactic this Court was presented with in Robinson.[7] In contrast to Robinson, this is not a case where the claimant's claim was initially denied based on a factual assessment that the claimant was physically capable of performing a certain task necessary to a certain occupation, and then on administrative appeal, denied based on a new interpretation from a vocational expert that the performance of that task was no longer considered necessary to the claimant's ability to maintain that certain occupation. That is, in the present case, VPA did not change the analysis at hand to conclude that the original basis for denying Cooper's claim had become superfluous, but instead, VPA observed that this new evidence merely supports the VPA's conclusion that the original assessment of the medical and vocational evidence on record is correct. The dissent mistakenly reads our precedent in both Robinson and Lafleur v. La. Health Serv. & Indem. Co., 563 F.3d 148 (5th Cir.2009), as requiring us to conclude that Cooper did not receive a "fair and full review." As support for this proposition, the dissent cites VPA's review letter on appeal, specifically the sentence: "As a result, Ms. Cooper does not meet the any occupation definition of disability noted above." According to the dissent, VPA's use of "[a]s a result," following its discussion of Cooper's employment, indicates that the basis for VPA's decision on appeal changed from Cooper's ability to maintain employment to the fact that she is maintaining employment. Such a shift does not indicate a shift in the basis that first formed VPA's decision, but rather, highlights two different aspects of the same basis for denying Cooper's claim: her ability to maintain employment. The shift in language the dissent points to constitutes nothing more than a technical noncompliance. In both Robinson and Lafleur, this Court recognized that such a "technical noncompliance with ERISA procedures will be excused so long as the purpose of section 1133 has been fulfilled." Lafleur, 563 F.3d at 154 (quoting Robinson, 443 F.3d at 393). In the present case, there can be no doubt that "the purpose of section 1133 has been fulfilled." Id. "The purpose of 655 section 1133 is `to afford the beneficiary an explanation of the denial of benefits that is adequate to ensure meaningful review of that denial.'" Id. (quoting Schneider v. Sentry Long Term Disability, 422 F.3d 621, 627-28 (7th Cir.2005)). And in Robinson, we concluded the purpose behind "mandating review of the specific ground for a termination [was to] encourag[e] the parties to make a serious effort to resolve their dispute at the administrator's level before filing suit in district court." 443 F.3d at 393. Here, Cooper received notice that her claim was denied because VPA considered her capable of employment. It should come as no surprise that on appeal, VPA would consider her employment to be an affirmation that its original assessment of the medical evidence was correct. Because VPA's initial reason for denying Cooper's claim was the conclusion that her medical evidence indicated she was capable of employment, we cannot read § 1133(2) to require VPA to blind itself to the fact that Cooper, on appeal, is arguing she cannot maintain employmentwhile simultaneously maintaining employment. It is an insurmountable challenge to imagine just how requiring Administrators to ignore the disability claimant's medical records mentioning a claimant's current employment would serve to resolve a dispute before it reaches the district court. That is, were we to agree with the dissent and send Cooper's claim back to VPA based on the dissent's analysis, we would be sacrificing the true statutory purpose behind section 1133's "fair and full review" for an unfortunate adherence to counterproductive technicalities. To attribute such a flawed reading to § 1133(2) would make a mockery of ERISA's "full and fair review" and undermine the integrity of the administrative process as whole. Where the evidence of subsequently acquired employment merely serves to support the Administrator's original decision to deny the claimant's claim based on the medical evidence contained within the record, we decline to interpret 29 U.S.C. § 1133(2) as requiring VPA to blind itself to the fact that the claimant is asserting she cannot maintain employment and simultaneously maintaining employment. Cooper had an adequate and fair opportunity to put forth evidence demonstrating that she cannot maintain "any occupation" as required under § 2(q)(iii) of the Plan. The record reveals that she failed to adequately do so. IV. Cooper also contends that there is no "concrete evidence" to support VPA's finding that she not unable to perform "any occupation," as required by § 2(q)(iii) of the Plan.[8] Cooper relies heavily on Dr. Keichian's May 23, 2007 addendum letter 656 to VPA, which stated that "[t]he primary diagnoses of Mrs. Cooper that impair her ability to work are cervical laminectomy and fusions, persistent spinal pain, and bipolar disease. She also has a retroperitoneal tumor resected, of unclear prognosis. In view of her medical pathology, Ms. Cooper is totally disabled and unable to be gainfully employed." We are not persuaded that this evidence undermines support for VPA's decision that Cooper was not disabled as defined under 2(q)(iii) of the Plan. There is no evidence to show that Dr. Keichian examined Ms. Cooper during the time between his original report which concluded that Cooper could stand, walk, sit and drive for one hour each at a time, for a total of four hours per day of each activityand his addendum. His addendum does not cancel out the specific findings in his original evaluation. Furthermore, Dr. Keichian's conclusory statement that Cooper is "totally disabled" does not suffice to establish disability under the language of the Plan, a determination which is a legal conclusion left to the Plan administrator. Cf. Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir.2003) (noting that a doctor's conclusion that a social security disability applicant is "disabled" or "unable to work" is not a medical opinion entitled to deference, but rather a legal conclusion "reserved to the Commissioner"). Dr. Rose's and Dr. Are's statements to the effect Cooper was incapable of "meaningful work" and "full-time work"though entitled to some weightare similarly inconclusive of the determination of disability under the language of the Plan. Under § 2(q)(iii), Cooper was required to demonstrate she was unable to perform "any occupation"; there were no limitations as to earnings level, or whether the work was "meaningful" or "gainful[]" employment. Support for the plaintiff's claim is not controlling because we must defer to the administrator's decision if the plan administrator's denial is supported by substantial evidence. Ellis, 394 F.3d at 273 ("We are aware of no law that requires a district court to rule in favor of an ERISA plaintiff merely because he has supported his claim with substantial evidence, or even with a preponderance."). VPA's conclusion that Cooper is not disabled as defined in § 2(q)(iii) of the Plan is supported by substantial evidence. Lange, the vocational specialist, found that Cooper was able to perform three occupations based on the physical activities that Dr. Keichian found her capable of performing: program manager, computer operations manager, and department manager. Furthermore, Dr. Are noted significant improvements in Cooper's condition and acknowledged Cooper's ability to perform part-time work. The letter denying Cooper's claim on appeal noted that Cooper had to establish she was disabled, under § 2(q)(iii) of the Plan, by March 25, 2006, the day her initial period of disability benefits under another part of the Plan, § 2(q)(ii), ended. Approximately three months before the date on which Cooper needed to qualify for benefits under § 2(q)(iii), Lyons noted that she had been able to decrease all medications, had started an exercise regimen, planned to lose weight, and was looking for a job. Cooper's claims that no "concrete evidence" supports VPA's conclusion is even further undermined by the fact that Dr. Tullidge, her own treating physician, stated on March 21, 2006 that she would "start [working at the] jewelry store next week," that Cooper's condition was "stable," and that Cooper was "not happy about ending of long term disability." In notes from April 21, 2006, Dr. Tullidge commented that Cooper was "working part time," "experiencing pain," and "tolerat[ing] med[ication]s." On June 28, 2006, Dr. Tullidge noted that Cooper was "working part time (25 hours [per week])" and made no reference to any complaints of pain on the 657 part of Cooper. That is, the medical evidence in the record indicates not only that Cooper hypothetically could maintain employment, but rather, her medical records demonstrate that at the time of VPA's initial July 19, 2006 decision, Cooper was maintaining gainful employment. Thus, we conclude that the record contains substantial evidence to support VPA's conclusion that Cooper did not meet the definition of "Total Disability" since following the termination of her benefits under § 2(q)(ii) of the Plan, she was not unable to perform "any occupation" as required by § 2(q)(iii). V. Based on the foregoing analysis, the judgment of the district court upholding the administrator's denial of benefits is AFFIRMED. JENNIFER W. ELROD, Circuit Judge, dissenting: The majority deviates from the "substantial compliance" standard and affirms VPA's decision based on a reason VPA never gave when it initially terminated Cooper's benefits. We may typically affirm the district court on "any grounds in the record to support the judgment." Mangaroo v. Nelson, 864 F.2d 1202, 1204 n. 2 (5th Cir.1989). This is not our standard, however, when we review the procedural adequacy of an administrator's review of a benefit termination, as "substantial compliance" with 29 U.S.C. § 1133(2) requires that a plan administrator disclose the precise "basis for its decision ... so that beneficiaries can adequately prepare for any further administrative review, as well as an appeal to the federal courts." Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 394 (5th Cir. 1998) (citation and internal quotation marks omitted). At the review stage, VPA based its decision solely on a ground raised for the first time, which Cooper has never had an opportunity to contest on the merits at the administrative level. It is not our task to recast this flawed review as having had another basis, as such a result deprives Cooper of her right to a "full and fair review" mandated by § 1133(2). See Lacy v. Fulbright & Jaworski, 405 F.3d 254, 257 (5th Cir.2005). Accordingly, I dissent. VPA's review of Cooper's original benefits termination did not comport with the requirements set out in § 1133 and this court's interpretation of those requirements. ERISA requires that every employment benefit plan "(1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant" and "(2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim."[1] § 1133 (emphasis added). In Robinson v. Aetna Life Ins. Co., this court interpreted these subsections to require a review of the "specific reasons" given in the initial claim denial "rather than [a review of] the termination of benefits generally." 443 F.3d 389, 393 (5th Cir.2006). An ERISA claimant is confined to the administrative record when appealing 658 her denial of benefits to the courts. Following her initial denial, the claimant's sole opportunity to submit evidence for inclusion in the record is at the administrative appeal stage. It therefore is imperative that the administrator give the "specific reasons" for its denial of a claim so that the claimant has a fair opportunity to gather evidence to submit for the record, with which the claimant will challenge the specific reasons for denial.[2] Where a claimant is not given a review of the specific reasons for the original termination of her benefits, she is denied her right to a "full and fair review" guaranteed under 29 U.S.C. § 1133. Robinson, 443 F.3d at 393. A. I would hold that Cooper was denied a full and fair review because, just as the court found in Robinson: "the specific reason for terminating [Cooper's] benefits has never been reviewed at the administrative level." Id. Both parties agree that Cooper's benefits were originally terminated on the basis that Cooper's spinal condition had improved to the point that she would not meet the 2(q)(iii) definition of "Totally Disabled." A different reason Cooper's employment at Ben Bridge Jewelers, which she acquired after the relevant date to determine benefit eligibilitywas given for her benefit termination on appeal. The majority attempts to characterize VPA's decision on appeal as one based on Cooper's "medical evidence," with Cooper's new employment serving "merely [as] support [for] the Administrator's original decision to deny the claim based on the medical evidence contained within the record." The plain reading of the review letter supports no such interpretation. In regard to the medical evidence supporting Cooper's improved health conditionthe sole reason given for Cooper's original termination of benefitsthe two-and-a-half page, single-spaced review letter offered only three terse sentences: During the office examination, Ms. Cooper reported that her symptoms were much better. She reported a decrease in pain medications, starting an exercise regiment, and was looking for a job. She ranked her pain at 2/10.[3] These sentences offer no insight on the propriety of VPA's original determination regarding whether these improvements disqualified Cooper from meeting the definition of "Total Disability." Rather, they are mere recitations of facts contained in the record accompanied by no analysis. The majority states that these sentences immediately followed a discussion of "the significance of the medical evidence on record that established Cooper was capable of employment." The paragraphs in question, however, provide no "discussion" or analysis of the evidence. Rather, they contain only a listing of Cooper's ailments, rote descriptions of the procedures she underwent to correct them, and descriptions of documents in the record that attest to these facts. These paragraphs are analogous to the "fact" section in a judicial opinion, as they contain no language weighing or judging the evidence. The actual analysis of the claim begins with a paragraph discussing Cooper's employment: 659 As you are aware, Ms. Cooper's claim and appeal are being reviewed based on the definition of Total Disability noted above .... We noted in the medical records from Anderson Cancer Center that Ms. Cooper was employed at Ben Bridge Jewelers, Inc. Thereafter, VPA focuses on the Ben Bridge Jewelers job throughout the remainder of the letter. The majority nevertheless suggests that Cooper's jewelry store employment, which Cooper accepted only after the relevant deadline for establishing her benefit eligibility, and thus could not have been considered at the time of her original benefit termination, was simply "support" for VPA's ultimate conclusion based on her health improvements.[4] This is not the case. If the jewelry store discussion was merely "support," like suspenders added to an existing belt, VPA's analysis could stand on its own without them. But if the portions of the letter which discuss the jewelry store job are removed, all that remains is a bare-bones factual summary, concluding with a statement that "[w]e are therefore, reaffirming the termination of benefits effective March 25, 2006." By themselves, the three sentences on Cooper's improved health, which constitute no more than factual recitations, are woefully insufficient to constitute a "meaningful review" of this reason for terminating her benefits. See Robinson, 443 F.3d at 393. Despite these inadequacies, the majority contends that no bait-and-switch occurred as the review had the same "basis" as the original termination: Cooper's "ability to maintain employment." This might be correct if the initial termination letter had given, as a reason for decision, Cooper's ability to maintain some form of employment, regardless of the skill-level or experience necessary to perform some occupation. This was not its reasoning, however. The specific reason given for the initial termination was that medical evidence demonstrated Cooper was able to perform certain managerial jobs related to her "education, training, [and] experience." Although the majority may believe that "Total Disability" under 2(q)(iii) is determined without regard to a beneficiary's experience, education, or training, such an interpretation must be recognized for what it is a decision on the merits, not a "specific reason" supplied by the VPA in the initial termination. Section 2(q)(iii) defines Total Disability as being "continuously able to perform any occupation for which [s]he is or may become qualified by reason of [her] education, training or experience" (emphasis added). The initial termination letter never stated that Cooper's ability to be employed in any occupation would bar her from obtaining benefits. To the contrary, this letter explicitly considered Cooper's "education, training, and experience," in determining that medical evidence supported Cooper's ability to perform certain skilled managerial occupations which offered compensation comparable to the $95,000 salary she earned as a manager at Hewlett-Packard. Therefore, any subsequent finding on appeal based on Cooper's mere ability to "maintain" some form of 660 employment must be considered a new and separate basis. The majority also suggests that the medical evidence and Cooper's jewelry store employment are not really two different reasons, but merely "two different aspects of the same basis for denying Cooper's claim: her ability to maintain employment." But a supporting factor must be considered a separate basis when its omission from the initial termination decision prevents the beneficiary from being able to "adequately prepare ... for any further administrative review, as well as an appeal to the federal courts." See Robinson, 443 F.3d at 394 (quoting Schadler, 147 F.3d at 394). Cooper's employment here must be considered a separate basis, rather than support, where its omission from the initial termination letter deprived Cooper of the opportunity to adequately prepare for her appeal. As noted by the district court, Cooper's benefits were initially terminated for the specific reason that her medical condition had "improved" to the point where she no longer met the definition of "Total Disability." Cooper dedicated her efforts to assembling medical evidence to refute this "specific reason," but this evidence was disregarded totally because Cooper was "in fact working."[5] Cooper's potential to perform a non-technical, non-managerial sales position was not implicated by the specific reason given in the initial termination letter, so Cooper was never on notice that she should argue that her ability to perform some occupation does not preclude her from showing "Total Disability." In its haste to terminate Cooper's benefits because she "was working," VPA denied Cooper any opportunity to present evidence that her work at the jewelry store was not sufficiently related to her college education and skilled work history to impact her eligibility under section 2(q)(iii). She was likewise denied the chance to rebut VPA's conclusion that she worked overtime at the jewelry store. She contends on appeal that she actually worked less than forty hours per week, but that any work performed on Saturdays was labeled as "overtime" pay on her pay-stubs. The lack of notice that her jewelry store employment would be a basis for decision prejudiced Cooper's ability to alter VPA's decision terminating her benefits. If the requirement that an administrator provide a "full and fair review" means anything, it must mean that a plan administrator may not deny the claimant the opportunity to refute the specific reason given in the initial determination under the guise of labeling a new basis as mere "support" for the old. B. The review of Cooper's benefit termination was also insufficient for the second reason espoused in Robinson: Cooper "never had an opportunity to contest at the administrative level [the] new basis for terminating [her] benefits." See Robinson, 443 F.3d at 393. Although the majority attempts to cast a Robinson-style bait-and-switch as the only manner in which an administrative review can run afoul of substantial compliance with ERISA's procedural review requirements, our precedent identifies another. Even in absence of a 661 bait-and-switch, an ERISA administrator does not meet the standard of "substantial compliance" with the requirements of § 1133 where the initial notice of termination relies on one ground for termination, and additional grounds are provided and relied upon on appeal. Lafleur v. La. Health Serv. & Indem. Co., 563 F.3d 148, 155-56 (5th Cir.2009); see also McCartha v. Nat'l City Corp., 419 F.3d 437, 446 (6th Cir.2005). In summarizing its reasons for affirming the initial decision to terminate benefits, VPA unmistakably characterized its decision as one based primarily, if not exclusively, on Cooper's employment: It is your contention Ms. Cooper is Totally Disabled for any occupation. In fact, Ms. Cooper is employed for another employer. She is performing the job of a Sales Clerk for Ben Bridge Jeweler, Inc. and has been doing so since the end of March 2006. As a result, Ms. Cooper does not meet the any occupation definition of disability noted above. We are therefore, reaffirming the termination of benefits effective March 25, 2006. (emphasis added). Cooper's employment was again singled-out as the reason for decision in VPA manager's review following the receipt of Dr. Keichian's requested addendum containing medical evidence that Cooper was totally disabled. Instead of relying on the new medical information, the VPA manager's review again affirmed the decision based on Cooper's employment: "[Dr. Keichian] has indicated `in view of her medical pathology, Ms. Cooper is totally disabled and unable to be gainfully employed.' While this is his opinion, the fact remains that [Cooper] is in fact working and therefor does not meet the ... definition of disability under the Plan. My reaffirm stands." At a minimum, these conclusory statements dispel any notion that Cooper's employment was something less than a free-standing reason for VPA's decision. These statements establish that Cooper's employment was a separate basis, if not the only basis, for VPA's decision on appeal. The majority's opinion attempts to brush off VPA's reliance on Cooper's employment as an irrelevant "mention of [a] new fact," as if the mention of Cooper's employment consisted of some single insignificant phrase, buried somewhere in a thorough analysis of medical evidence. The review letter's focus on the consequences of Cooper's jewelry store employment, detached from any analysis of the medical evidence, and the manager review's express reliance upon Cooper's employment dispel any such notion. As such, our established precedent prevents a finding of substantial compliance. See Lafleur, 563 F.3d at 156 ("[D]efendants were not in substantial compliance with the requirements of § 1133 because McCartha was never timely informed that the failure to provide current medical opinions as to her long-term disability would be one of the bases for the termination of her benefits." (quoting McCartha, 419 F.3d at 446)). Where a plan administrator "fails to substantially comply with the procedural requirements of ERISA," as VPA failed to do in this case, "[r]emand to the plan administrator for full and fair review is usually the appropriate remedy." Id. at 157. It is true that remand is unnecessary where it would amount to no more than a "useless formality," but this futility exception is "narrowly construed and sparingly applied," as an "administrator's failure to substantially comply with the procedural requirements of ERISA will usually prevent a plaintiff from adequately developing the administrative record and presenting his arguments."[6]Id. at 158 n. 22. Here, 662 no one can contend seriously that remand would be futile. Cooper was unaware that her jewelry store employment would be the basis of her benefit termination on appeal, and this lack of notice denied her the opportunity to present these arguments and include information about the jewelry store job in the administrative record. Therefore, she has yet to receive the "full and fair" review which ERISA guarantees her by right. Accordingly, I would vacate the district court's decision and remand the case to the plan administrator to be reviewed in compliance with the procedural requirements of ERISA. I express no view as to what the ultimate outcome on the merits ought to be. I respectfully dissent. APPENDIX May 16, 2007 Bernis, Roach & Reed 4100 Duval Rd, Biding 1, Ste 200 Austin, TX 78759 Re: Laurie Cooper Hewlett-Packard CompanyLTD Claim #: 600224 Dear Mr. Reed: We have made a careful review of Ms. Cooper's claim and appeal of the decision to terminate benefits under her employer's Long Term Disability Plan for the period of March 25, 2006 and continuing. The Hewlett-Packard Company Plan defines Total Disability following the initial 24-months as: "(q) "Totally Disabled" and "Total Disability" mean the because of injury or sickness: (iii) Following the initial twenty-four (24) month period after onset of the injury or sickness, the Participant is continuously unable to perform any occupation for which he is or may become qualified by reason of his education, training or experience." In addition, the Plan states: "With respect to any Total Disability caused or contributed to by mental illness or alcohol or drug abuse, the following limitations shall apply: (A) Mental Illness During the period described in (iii) above, nervous or mental disorders shall be disregarded in the determination of Total Disability. An illness shall be considered a nervous or mental disorder if: (1) The illness has psychological or behavioral manifestations or results in impairment or mental functioning due to any causes including, but not limited to, social, psychological, genetic, 663 physical, chemical or biological; and (2) The illness a primary diagnosis that either is listed in the American psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition-Revised (or the successor thereto), or falls within diagnostic codes 290 through 319 in the International Classification of Diseases, 9th Revision (or the successor thereto). The limitations of this paragraph (A) shall not apply to a Total Disability due to Alzheimer's disease, multiple sclerosis, amyotrophic lateral sclerosis, traumatic brain injuries, schizophrenia, or other organic, degenerative, progressive diseases as determined by the Claims Administrator." The Plan further states under Section 5.(c), Duration of Benefit: "A Participant who is receiving the benefit under this Section 5 shall continue to do so until the earliest of the following dates: (iv) The date the Participant becomes self-employed or the employee of another employer without previously having given written notice of such employment to the Claims Administrator and receiving approval pursuant to Section 5(i)." The information in file documents Ms. Cooper was claiming Total Disability as a result of cervical spinal stenosis, status post laminectomy and fusion, status post resection or the right retoperitoneal paraganglioma, status post left carpel tunnel release, status post radiofrequency ablation of right L2 to S1 median branch nerves. There is also documentation that Ms. Cooper suffers from chronic depression, bipolar disorder, and anxiety. The chronic depression, bipolar disorder and anxiety all fall under the 24-month Plan limitation for mental/nervous conditions and cannot be taken into consideration for determining Total Disability after the initial 24-months. The initial 24-month period for Ms. Cooper's claim ended on March 24, 2006, with the above definition of disability, limitations and restrictions applying to the claim effective March 25, 2006. It is on this date the Ms. Cooper must establish she met the above definition of disability for a condition not limited to the initial 24-month period by the Plan. Medical records from Anderson Cancer Center dated January 9, 2006 document Ms. Cooper underwent radiofrequency ablation of the median branch from L2 to S1, right side, on October 12, 2005. She again had radiofrequency ablation of the median branches from L1 through 15, including the sacral ala and S1, on October 20, 2005. During the office examination, Ms. Cooper reported that her symptoms were much better. She reported a decrease in medications, starting an exercise regimen, and was looking for a job. She ranked her pain at 2/10. In your letter of appeal, you asked that we clarify information with the IME physician, Dr. Keichian. Your request to clarify information was forwarded to Dr. Keichian. To date, despite follow-ups, we have not had a response. As you are aware, Ms. Cooper's claim and appeal are being reviewed based on the definition of Total Disability noted above. Ms. Cooper must be Totally Disabled for any occupation for which, she is or may become qualified by reason of his education, training or experience. We noted in the medical records from Anderson Cancer Center that Ms. Cooper was employed at Ben Bridge Jewelers, Inc. As requested, you furnished our office with copies of her pay stubs from her employment. 664 The pay stubs in file document Ms. Cooper has been employed with Ben Bridge Jeweler, Inc. beginning with the pay period that ended April 1, 2006, with the most recent pay stub provided covering payroll through the pay period ending February 18, 2007. Although this position has been represented as part-time, many of the pay period provided represent full-time hours, and often exceed full-time hours. The Provision noted above documents benefits will end at the point the employee fails to request advance written approval for self-employment or employment with another employer. Ms. Cooper never made us aware of her employment. It is your contention Ms. Cooper is Totally Disabled for any occupation. In fact, Ms. Cooper is employed for another employer. She is performing the job of a Sales Clerk for Ben Bridge Jeweler, Inc. and has been doing so since the end of March 2006. As a result, Ms. Cooper does not meet the any occupation definition of disability noted above. We are therefore, reaffirming the termination of benefits effective March 25, 2006. This decision is the Claim Administrator's final decision. You have the right to bring a civil action under ERISA 502(a). You are entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to your claim for benefits. We regret that our response could not have been more favorable. Should you have any questions, please feel free to contact our office at (800)599-7790. Sincerely, /s/ Janet Curry Janet Curry Appeals Manager cc: Hewlett Packard Company NOTES [1] Up until that point, the Plan had consistently paid Cooper her short-term disability benefits for twenty-four months, pursuant to Sections 2q(i) and (ii) of the Plan. Thus, Cooper's disability payments terminated on March 24, 2006. [2] The parties do not dispute that VPA, the Plan's administrator, has discretionary authority to construe the terms of the Plan. Cooper argues in her brief that the abuse of discretion standard applicable to administrators with discretionary authority may be altered in light of Metropolitan Life Ins. Co. v. Glenn, ___ U.S. ___, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). However, Glenn addressed only the standard of review employed when the administrator has a conflict of interest, i.e. where a plan administrator "both evaluates claims for benefits and pays benefits claims." 128 S.Ct. at 2348. Here, as Cooper conceded, there is no conflict of interest because H-P employs VPAa contract administratorto evaluate claims under the Plan. Therefore, the Court's holding in Glenn does not affect the standard of review employed in this instance. [3] Given the fact that we review VPA's decision on appeal under the substantial compliance standard, we are puzzled as to why the dissent attempts to cast the Court's decision as a review for harmless error. In contrast to the dissent's assertion that we have reviewed Cooper's appeal for "any grounds in the record to support the judgment" Mangaroo v. Nelson, 864 F.2d 1202, 1204 n. 2 (5th Cir. 1989), a more thorough review of the analysis contained herein clearly demonstrates that VPA's decision on appeal has been reviewed in full compliance with the correct standard. See Lacy, 405 F.3d at 257 (holding that "the substantial compliance standard" is the appropriate standard of review). It is under this substantial compliance standard of review that we conclude that Cooper did receive a "full and fair review" of the VPA's initial determination that her medical condition did not qualify as a "Total Disability" under the Plan. [4] The definition of "Total Disability" requires Cooper to demonstrate that, due to her alleged medical condition, she "is continuously unable to perform any occupation for which [s]he is or maybe become qualified by reason of [her] education, training or experience." (emphasis added). [5] Thus we consider it important to note that VPA's initial assessment of Cooper's condition was not an assessment of medical records alone. In addition to the medical records from her doctors, VPA consulted with a vocational specialist. Based on the vocational specialist's review that Cooper was capable of performing several different occupations, coupled with her medical records, VPA concluded that Cooper was "capable of performing other occupations for which [she was] or could become qualified as of March 25, 2006." [6] Cooper, however, is mistaken in her assertion that VPA relied on her recently acquired employment as the "specific grounds" for affirming the Administrator's decision. While the review letter did highlight the fact that Cooper had subsequently acquired employment, the review letter first discussed, in great detail, the significance of the medical records that alone initially supported the Administrator's denial of Cooper's claim. The review letter noted that Cooper had to establish she was disabled, under § 2(q)(iii) of the Plan, by March 25, 2006, the day her initial period of disability benefits ended. The letter then noted that on January 9, 2006, less than three months before the date she needed to qualify for long term disability under 2(q)(iii) of the Plan, she was evaluated by the Anderson Cancer Center and was assessed as feeling decreased symptoms, requiring less medication, undertaking an exercise regimen, and looking for employment. The review letter stated that at that time, Cooper reported her "symptoms were much better" and her pain was only a 2/10. It is with great import that we note that VPA did not discuss Cooper's employment until after first discussing the significance of the medical evidence on record that established Cooper was capable of employment as of January, 2006prior to any recorded employment. [7] In Robinson, the Court concluded that the procedural requirements of § 1133 were not met where the plaintiff was initially denied disability benefits on the grounds that his vision had improved sufficiently, but was subsequently denied benefits on appeal on different groundsnamely that good vision was not necessary to meet the definition of "capable of employment" under that plan. 443 F.3d at 393. [8] Cooper argues that "any occupation for which [Cooper] is or may become qualified by reason of [her] education, training or experience," the language used in § 2(q)(iii) of the Plan, should not include the ability to perform part-time work such as the work she performed at the jewelry store. However, there is no such restriction in the Plan. See Dramse v. Delta Family-Care Disability and Survivorship Plan, 269 Fed.Appx. 470, 481 (5th Cir. March 12, 2008) (affirming the district court's holding that the term "any occupation" included part-time work); Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181 (1st Cir.1998) (holding that claimant's ability to perform part time work precluded him from establishing that his disability prevented him from engaging in "any occupation for which he is or may become suited by education, training or experience"). Even if the Plan language would not apply to part-time work, there is evidence in the record, namely the analysis of the vocational consultant, that Cooper could perform work for eight hours a day in alternating positions. [1] Further, 29 C.F.R. § 2560.503-1(g) requires that an ERISA claim denial letter "set forth in a manner calculated to be understood by the claimant(i) [t]he specific reason or reasons for the adverse determination, (ii) [r]eference to the specific plan provisions on which the decision is based, (iii) [a] description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary." [2] See Schadler v. Anthem Life Ins., 147 F.3d 388, 394 (5th Cir.1998) (explaining that a plan administrator must "disclose the basis for its decision" so "beneficiaries can adequately prepare for any further administrative review."(internal quotation marks omitted)); accord Robinson, 443 F.3d at 393 ("[E]ffective review requires `a clear and precise understanding of the grounds for the administrator's position.'") (quoting Hackett v. Xerox Corp. Long-Term Disability Income Plan, 315 F.3d 771 (7th Cir.2003)). [3] The letter is attached as an Appendix. [4] There is no indication in the review letter that VPA intended to cast Cooper's employment as supporting evidence of its earlier determination that her health had improved to the point that she was not "Totally Disabled." Even if her employment could logically be considered support for VPA's original decision regarding the medical evidence concerning Cooper's health status, we may not affirm based on the adequacy of a correlation that VPA did not actually make. When we are judging the procedural adequacy of a review of a benefit termination under ERISA, we determine whether the affirmation was based on a review of the original "specific reason" given for termination. See Lafleur v. La. Health Serv. & Indem. Co., 563 F.3d 148, 155-56 (5th Cir.2009). [5] Dr. Keichian provided the medical evidence about Cooper's limitations and restrictions which the vocational specialist then used in concluding that Cooper could perform certain skilled jobs, which were noted in the initial termination letter. In the months following Dr. Keichian's initial report, during which time Cooper alleges that her health deteriorated, Cooper sought an addendum to Dr. Keichian's report. After the appeal, VPA received Dr. Keichian's addendum, which concluded that she was unable to work due to her medical impairments, but the appeals manager affirmed the decision on the ground that "Cooper is in fact working." [6] Our circuit gives the "useless formality" exception a narrower interpretation than the Sixth Circuit. Compare Lafleur, 563 F.3d at 158 n. 22 (noting that the exception is appropriate only in rare circumstances, such as when "much or all" of the evidence supports a finding that the plaintiff is not covered under the policy's terms, or when the plaintiff dies and submitting new evidence is impossible), with McCartha, 419 F.3d at 445 (6th Cir.2005) (holding that remand is a "useless formality" where the plan administrator provides one reasonable basis for denying benefits, even if another reason is given for denying the claim of which the petitioner was previously unaware).	{ "pile_set_name": "FreeLaw" }
706 S.W.2d 664 (1986) Charles Howard JONES, Appellant, v. The STATE of Texas, Appellee. No. 406-85. Court of Criminal Appeals of Texas, En Banc. March 26, 1986. Janet Seymour Morrow, Houston, for appellant. John B. Holmes, Jr., Dist. Atty. and J. Harvey Hudson, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State. Before the court en banc. OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW ONION, Presiding Judge. A jury found appellant guilty of aggravated assault, and the trial court assessed his punishment at eight years' confinement in the Department of Corrections. On appeal the appellant raised two grounds of error. One complained the trial court erred in refusing appellant's request to read to the jury all the testimony relevant to a disputed issue in response to a jury note, which error was an abuse of discretion under Article 36.28, V.A.C.C.P., and a violation of due process. The Court of Appeals rejected both grounds of error and affirmed the conviction. Jones v. State, 680 S.W.2d 25 (Tex.App.-Houston [1st] 1984). We granted appellant's petition for discretionary review to determine if the Court of Appeals was correct in determining that the trial court did not abuse its discretion in refusing to have read to the jury all the testimony on the disputed issue. The background and the facts become important to the proper disposition of the issue before us. The appellant Jones was charged with aggravated assault upon Don Ricardo Williams. Williams testified he and Frank Barnes had been drinking beer on April 15, 1981 outside a liquor store on Cullen Boulevard in Houston. They decided to take a shortcut through a laundromat to a parking lot where Williams' car was 665 parked. Williams related appellant Jones, manager of the laundromat, approached them and accused him (Williams) of taking "his stuff." Williams testified he didn't know what the appellant was talking about, and told the appellant he had the wrong person. Appellant insisted it was Williams. At one point Williams stated that after the initial conversation of two to three minutes, appellant pulled a gun and shot him, and then got in his car and left. At another point Williams related that after the initial conversation appellant got in his car and drove off, returned in about five minutes, again accused him of stealing and then shot him before driving off again. Williams related he had no weapon with him. Williams testified he spent nine months in the hospital and had seven operations due to the bullet wound in his abdomen. Frank Barnes testified that as he and Williams took their shortcut through the laundromat appellant approached them and told Williams "I want my thingsmy stuff ." He recalled that Williams denied he had anything that belonged to the appellant. Barnes related that appellant then went to his car and drove off, but returned in five or ten minutes at which time he and Williams were outside the back door of the laundromat. Barnes testified appellant came from his car with a gun in his hand and stated he wanted something that belonged to him; that Williams "put his hands up after he seen the gun," and denied he had anything belonging to appellant. At this juncture appellant shot Williams and Barnes ran to the nearby liquor store to call the police. Barnes expressly stated that he did not see Williams produce any weapon and did not see him reach for his back pocket immediately before the shooting. Clyde Allen also testified for the State. He was at the rear of the laundromat with the appellant when Williams and Barnes came through the front door and called appellant's name and engaged appellant in conversation. Allen, at this point, went out the back door and sat on a bench and drank his beer. He did not hear any conversation. Later he saw Williams come out of the laundromat and then appellant came out and went to his car. He then stated: "Mr. Jones went to his car, came back, and it was money spoken, and he stepped back and that's when the shot fired and Mr. Williams was shot." Allen testified both on direct and cross-examination about what transpired just before the shot was fired. The appellant testified on the day in question he had been sitting on the hood of his car when Williams, who had been drinking, approached him and asked to borrow money; that a little later Barnes came through the front door of the laundromat calling his name and stating he wanted to talk. He testified Barnes was distracting him and pulling him away from the back door, but he observed Williams "ease" in the back door; that he saw Williams reach up on the wall ledge where he kept his money and get his sack of money. Appellant kept telling Barnes to release him as the man (Williams) was taking his money. When appellant requested Williams give him the money, Williams denied having taken the money. Appellant told Williams he was going to his car, and when he returned he expected the money "to be back up there." Williams responded, "Everybody got what you got." Appellant testified he got the gun from his car and started back in when he saw Williams outside and asked Williams if the money had been returned. Williams replied, "No, ..., but I got something else for you," and then Williams reached for his back pocket as he was moving to the right. At this time appellant admitted he shot Williams. Appellant related he thought Williams had a weapon, a gun as he had earlier said, "I got what you got," and he reached "for something"; that he (appellant) was in fear of his life. Appellant testified that after the shooting Williams told him Frank Barnes had the money. 666 The trial court, inter alia, charged on the law of deadly force self-defense and the contested issue in the arguments to the jury was self-defense. This was not surprising in light of the testimony of Williams and Barnes that Williams was not armed and made no gestures or movements to his back pocket at the time of the shooting, and appellant's testimony that in addition to Williams' statements he made a hip pocket movement. Clyde Allen was the only eyewitness who was not implicated in the claimed theft or the alleged offense. He testified about Williams' gestures or movements just prior to the shooting, both on direct and cross-examination. After the jurors retired to deliberate at the guilt stage of the trial, they sent a note to the trial judge stating: "We would like a copy of Mr. Allen's testimony. Steven Blye, Foreperson." The court responded: "Dear Jurors: You must require a reading back only to resolve a bona fide dispute. You must pinpoint that testimony, for example, which attorney was conducting the examination or the subject matter under dispute." (Emphasis added.)[1] The jury sent out a second note or request: "We have a dispute as to whether or not Clyde Allen testified that Williams made a threatening gesture, that is to reach for his back pocket. Send us court records from the DA's questions." At this juncture appellant's counsel asked the court to include in any reading of Allen's testimony all the testimony, on direct and cross-examination, touching upon the disputed issue. The court refused, expressing fear that to do so would go beyond the scope of the jury's request in light of the reference to the "DA's questions" and might even be a comment on the weight of the evidence. The appellant "excepted" to the ruling calling attention to the court's response to the jury's first note that may have caused the jury to refer only to the DA's questions and observed that it had been four or five days since Allen's testimony was given. The testimony re-read to the jury by the court reporter was only that from the direct examination of the witness Allen. "Q: And what did you see Mr. Williams do, if anything? "A: Mr.I seen Mr. Williams make one step backwards or two, I'm not sure, but he did this (indicating). "Q: Could you demonstrate to the Jury what he did? "A: Whatever was said between the two about the money, well, he made a step back and then he did this (indicating) and then a gun fired and he was hit. "Q: Now, you testified that Mr. Williams stepped back and put his hand on the side (indicating)? "A: Yes, ma'am. "Q: Mr.uhMr. Allen, now, during this whole course of events, did you see the complainant make any threatening move to the defendant in this case? "A: No more than step backwards." (Emphasis added.)[2] 667 Appellant requested the trial court to include the re-reading of the following from the cross-examination of Allen which the court declined to do. "Q: Now, is it your statement that the man that was shot stepped back and some words were mumbled as he reached for his back pocket? "A: Well, he reached back. "Q: Well, he reached back is what I mean. "A: Yes, sir, he did." Article 36.28, V.A.C.C.P., provides: "In the trial of a criminal case in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute, and no other; but if there be no such reporter, or if his notes cannot be read to the jury, the court may cause such witness to be again brought upon the stand and the judge shall direct him to repeat his testimony as to the point in dispute, and no other, as nearly as he can in the language used on the trial." (Emphasis added.) The statute controls and limits the reading of testimony to the jury during their deliberations. If the jury requests the reading of certain testimony without more, it is proper for the court to instruct the jurors that it cannot comply with their request unless the jurors state they are in disagreement about a witness' statement or a particular point of testimony, and only this testimony and no other can be read to them. In Iness v. State, 606 S.W.2d 306 (Tex.Cr. App.1980), it was written: "It is well settled that the trial court may allow a disputed portion of a witness' testimony to be read to the jury and refuse additional testimony. Article 36.28, V.A.C.C.P.; Nichols v. State, 494 S.W.2d 830 (Tex.Cr.App.1973); Johnson v. State, 444 S.W.2d 765 (Tex.Cr.App. 1969). "When the jury asks that certain disputed testimony be re-read (sic), the court must first determine if the request is proper under Article 36.28, supra. If it is proper, the court must then interpret the communication; decide, in its discretion, what sections of the testimony will best answer the query, and limit the testimony accordingly. See Bonsal v. State, 502 S.W.2d 813 (Tex.Cr.App.1973); Swidell v. State, 491 S.W.2d 400 (Tex.Cr. App.1973); Duncan v. State, 454 S.W.2d 736 (Tex.Cr.App.1970); Alvear v. State, 341 S.W.2d 426 (Tex.Cr.App.1960). "In the instant case the jury's request stated that they were in disagreement concerning the penetration testimony of the witness. Although the note mentioned the direct examination by the State, the Court did not abuse its discretion in interpreting the sentence `we are in disagreement concerning this matter' as an expression of disagreement concerning the prosecutrix' entire testimony relating to penetration. This was later borne out by another request to have a second reading of the appellant's cross-examination of her." (Emphasis added.) In the case, sub judice, the jury after retirement to deliberate initially asked for Allen's testimony. The court responded there must be a "bona fide dispute" and instructed the jurors they must pinpoint testimony by "which attorney was conducting the examination or the subject matter under dispute. The jury in its next note identified the dispute as to whether or not Allen testified Williams made a "threatening gesture, that is, to reach for his back pocket." Having clearly identified the subject matter of the dispute, the jury added, "Send us court records from the DA's questions." Appellant's trial counsel repeatedly asked the trial court to have the court reporter read to the jury Allen's testimony on the dispute issue from both the direct and cross-examination. He pointed out 668 that the court's answer to the jury's first note was misleading in telling the jury in the alternative to point out which attorney was conducting the examination and this accounted for the last sentence in the second note. He insisted in fairness such sentence should not be used to limit the reading of Allen's testimony on the clearly disputed issue. His request was overruled. The Court of Appeals wrote: "In the present case, the court interpreted the jury's request as asking only for the testimony elicited by the district attorney. From the text of the note, and the requirement of the article allowing the reading of the testimony requested, we do not find the trial court abused its discretion. "Appellant's first ground of error is overruled." We do not agree. Given the circumstances, the evidence offered, the well defined dispute expressed in the jury's note, and the court's somewhat confusing answer about identifying which attorney was conducting examination, appellant's counsel's request and "exception," and the fact the evidence on cross-examination clearly bore on the disputed issue, we conclude the trial court failed to give a realistic interpretation to the jury's note.[3] While the trial court was undoubtedly being cautious, fairness did not prevail, and appellant was deprived of a fair trial. The trial court abused its discretion. The judgments of the Court of Appeals and the trial court are reversed and the cause is remanded to the trial court. CLINTON, J., concurs in the result. NOTES [1] The court's answer or response was clearly no model, though there was no objection at the time. It referred to the necessity of a "bona fide dispute" (apparently referring to Allen's testimony though not mentioned) and then gave the jurors two alternatives. One was to state there was a bona fide dispute and point out which attorney was conducting the examination at the time. The second was to state there was a bona fide dispute and point out the subject matter of the dispute. Under the first alternative the jury could state there was a dispute without identification and point out the attorney who was conducting the examination (if they could remember which attorney). Thus all of that attorney's examination of the witness could be read to the jury without the subject matter of dispute ever being revealed. This alternative is not in accordance with Article 36.28, V.A.C.C.P., and is why the language of the response is confusing. [2] Everyone in the courtroom at the time may have known what the witness was "indicating," but the appellate record was not protected and does not reflect what the witness meant. It may be questioned when read to the jury later whether they could recall what the witness had then "indicated." This type of interrogation is not to be commended. [3] In Pugh v. State, 376 S.W.2d 760 (Tex.Cr.App. 1964), a driving while intoxicated prosecution, the record reflects after the jury retired it sent a question to the court asking, "What was the date and hour the defendant was picked up by the Highway Patrolman." The parties stipulated the date and hour as shown by the evidence and the jury again retired. Nevertheless, the trial court on its violation recalled the jury, over objection, and apparently as a result of the question, had read to them the testimony of the arresting officer, none of which related to the date and hour in question. This action was held unauthorized under the statute and erroneous as bolstering the State's case. In Pugh the trial court had too much read to the jury, and in the instant case the trial court did not have enough read to the jury. Both actions, however, served to unnecessarily bolster the State's case.	{ "pile_set_name": "FreeLaw" }
`FILEa " AUG 1 1 2017 UNITED STATES DISTRICT COURT mem U.S_ mgmt & Bankmptcy FGR TH.E DISTRICT OF COLUMBIA Courts torthe District ot Columbla L. Ruther, ) ) Plaintiff, ) ) v. ) Civil Action Nos. l7-l379 (UNA) ) 17-1386 (UNA) 1 ) Sequential Brands Group lnc., ) ) Defendant. ) MEMORANDUM OPINION` This matter is before the Court on its initial review of plaintiff’s pro se complaint and application for leave to proceed in forma pauperis. The Court will grant the in forma pauperis application and dismiss the case because the complaint fails to meet the minimal pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Pro se litigants must comply with the F ederal Rules of Civil Procedure. .]arrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987). Rule S(a) of the Federal Rules of Civil Procedure requires complaints to contain “(f) a short and plain statement of ihe grounds for the court’s jurisdiction [and] (2) a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a); see Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C. Cir. 2004). The Rule 8 standard ensures that defendants receive fair notice of the claim being asserted so that they can prepare a responsive answer and an adequate defense and determine whether the doctrine of res judicata applies. Browri v. Califarzo, 75 F.R.D. 497, 498 (D.D.C`. 1977). 1 Plaintiff resides in Manassas, Virginia. He has filed a purported complaint against what appears to be a private business. The complaint is incomprehensible and thus fails to provide any notice of a claim and the basis of federal court j urisdiction. A separate order of dismissal accompanies this Memorandum Opinion. »ilnw» Date: August LO, 2017 'U'nited §ates District Judge	{ "pile_set_name": "FreeLaw" }
Case: 13-12695 Date Filed: 11/06/2013 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-12695 Non-Argument Calendar ________________________ D.C. Docket No. 0:13-cv-61109-RSR RONALD R. ADDVENSKY, Plaintiff-Appellant. versus JIM LNU, Pharmacy Manager - CVS, CVS PHARMACIES CORP, STATE OF FLORIDA, Defendants-Appellees. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (November 6, 2013) Before PRYOR, MARTIN and BLACK, Circuit Judges. PER CURIAM: Case: 13-12695 Date Filed: 11/06/2013 Page: 2 of 3 Ronald Addvensky, proceeding pro se, appeals the sua sponte dismissal with prejudice of his complaint brought under 42 U.S.C. § 1983 against Jim, last name unknown, a CVS pharmacy manager, CVS Pharmacies Corporation, and the State of Florida. The complaint was not clear in its allegations, but the district court discerned causes of action for (1) breach of contract between Addvensky and CVS; (2) a drug-trafficking conspiracy among Jim LNU, CVS, and the State of Florida; (3) violation of the Equal Protection Clause; (4) discrimination against physicians in Florida; and (5) violation of the Due Process Clause. Addvensky argues broadly on appeal that the district court was biased and incorrect. Generally, if a legal claim or argument has not been briefed before this Court, with citations to authority and parts of the record relied upon, it is deemed abandoned and its merits will not be addressed. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004); Fed. R. App. P. 28(a)(9)(A). We construe pro se briefs liberally, but will not argue an appellant’s case for him. See GJR Investments Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.1998), overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010). A pro se litigant who offers no argument on an issue abandons the issue on appeal. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). 2 Case: 13-12695 Date Filed: 11/06/2013 Page: 3 of 3 Addvensky’s appellate brief offers little to go on and follows none of the requirements of Federal Rule of Appellate Procedure 28. We cannot determine which, if any, of the district court’s particular rulings he challenges. Accordingly, Addvensky has abandoned any argument on appeal. See Timson, 518 F.3d at 874; Access Now, 385 F.3d at 1330. Even if Addvensky had preserved issues for appeal, we could discern no error in the district court’s opinion. For the foregoing reasons, we affirm the district court’s dismissal of Addvensky’s complaint with prejudice. AFFIRMED. 3	{ "pile_set_name": "FreeLaw" }
669 F.3d 873 (2012) MISSOURI BEVERAGE COMPANY, INC., Appellant, v. SHELTON BROTHERS, INC., Appellee. Missouri Beer Wholesalers Association; Missouri Wine and Spirits Association, Amici on behalf of Appellant. No. 11-2456. United States Court of Appeals, Eighth Circuit. Submitted: January 12, 2012. Filed: February 28, 2012. 875 Diana Carter, argued, Johnny Richardson, Charles E. Smarr, on the brief, Jefferson City, MO, for appellant. Edward Charles King, argued, Silver Spring, MD, for appellee. Paul Vincent Herbers, argued, Kansas City, MO, John Louis Gianoulakis, David A. Castleman, on the brief, St. Louis, MO, for amici Missouri Beer Wholesalers Association and Missouri Wine and Spirits Association. Before WOLLMAN, LOKEN, and MELLOY, Circuit Judges. WOLLMAN, Circuit Judge. Missouri Beverage Company (MoBev) appeals the district court's[1] order denying its motion for partial summary judgment and granting Shelton Brothers, Inc.'s (Shelton's) motion for summary judgment on MoBev's claims for violation of Missouri franchise law.[2] Because the plain language of the Missouri franchise statute at issue unambiguously requires that the general definition of "franchise" applies to liquor supplier-wholesaler relationships and the relationship between MoBev and Shelton does not satisfy this definition, we affirm. I. MoBev, a Missouri corporation with its principal place of business in Missouri, is a wholesale distributor of spirits, wines, beers, juices, and sodas throughout Missouri. Shelton, a Massachusetts corporation with its principal place of business in Massachusetts, supplies wholesalers with artisanal beers from around the world. In 2004, MoBev and Shelton entered into an oral agreement, the precise terms of which are in dispute. The parties agree, however, that MoBev could purchase beer from Shelton, that MoBev was not obligated to order any particular amount of beer from Shelton, and that Shelton was not required to supply any particular amount of beer. Shelton filled beer orders placed by MoBev from 2006 through 2009. As required by Missouri law, Shelton sent the State of Missouri letters from 2004 through 2008 notifying the State of MoBev's appointment as distributor for different Shelton products in various Missouri counties. See Mo.Code Regs. Ann. tit. 11, § 70-2.270. MoBev also conducted two sampling events focusing on Shelton's beers in 2008 or 2009. On August 8, 2008, Shelton sent an email to MoBev and other distributors thanking them for their work to build Shelton's brands and outlining a uniform policy under which Shelton would refund a credit against future invoices for products used for sampling. Although the parties never discussed MoBev's use of Shelton's name or logo in promotional literature, Shelton testified that MoBev "can always use our name if they want to" and could have used the logo had a request been made.[3] Shelton Dep. at 74-75. MoBev did not believe that it was obligated to develop Shelton's name or goodwill, and MoBev did not focus on developing Shelton. MoBev has had fifty to one hundred suppliers over the years, and MoBev's sales of Shelton's beers never exceeded 1.16% of MoBev's gross annual sales of all alcoholic products. 876 In January of 2010, Shelton stopped providing products to MoBev and sent a letter removing MoBev as Shelton's Missouri distributor. MoBev brought a Missouri state court action against Shelton, claiming that Shelton violated Missouri franchise law by failing to give proper notice of franchise termination, under Mo.Rev.Stat. § 407.405, and by unlawfully terminating a franchise, under Mo.Rev.Stat. § 407.413. Shelton removed the action to federal court under diversity jurisdiction. The district court denied MoBev's motion for summary judgment and granted Shelton's motion for summary judgment, concluding that the business relationship between MoBev and Shelton was not that of franchisor-franchisee under Missouri law. II. "We review the district court's grant of summary judgment de novo, applying the same standards as the district court and viewing the evidence in the light most favorable to the nonmoving party." Zike v. Advance Am., Cash Advance Ctrs. of Mo., Inc., 646 F.3d 504, 509 (8th Cir. 2011) (quoting Travelers Prop. Cas. Co. of Am. v. Gen. Cas. Ins. Co., 465 F.3d 900, 903 (8th Cir.2006)). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). III. The threshold issue is whether the business relationship between Shelton and MoBev constituted a franchisor-franchisee relationship under Missouri law. Mo.Rev. Stat. § 407.400(1) contains the definition of "franchise." A 1975 amendment added an express inclusion of liquor wholesalers and suppliers into the definition. The relevant excerpt of the definition is as follows, with the amended language in boldface: "Franchise" means a written or oral arrangement for a definite or indefinite period, in which a person grants to another person a license to use a trade name, trademark, service mark, or related characteristic, and in which there is a community of interest in the marketing of goods or services at wholesale, retail, by lease, agreement, or otherwise, including but not limited to a commercial relationship of definite duration or continuing indefinite duration, between a "wholesaler," such wholesaler being a person as defined in this section, licensed pursuant to the provisions of chapter 311, to sell at wholesale, intoxicating liquor, as defined in section 311.020, to retailers, duly licensed in this state, and a "supplier," being a person engaged in the business as a manufacturer, distiller, rectifier or out-of-state solicitor whose brands of intoxicating liquor are distributed through duly licensed wholesalers in this state, and wherein a wholesaler is granted the right to offer, sell, and distribute within this state or any designated area thereof such of the supplier's brands of intoxicating liquor, or all of them, as may be specified; except that, the term "franchise" shall not apply to persons engaged in sales from warehouses or like places of storage, other than wholesalers as above described. . . .[4] Mo.Rev.Stat. § 407.400(1); see also Mo. H.B. 810 (1975) (enacted); Brown-Forman Distillers Corp. v. McHenry, 566 S.W.2d 194, 198-99 (Mo. banc 1978). 877 A. Whether the general definition of "franchise" under § 407.400(1) applies to liquor supplier-wholesaler business relationships The parties dispute whether only the criteria outlined in the statutory text specifically referring to liquor wholesalers (the specific definition) need be satisfied to demonstrate the existence of a franchise in the liquor distribution industry, or whether the criteria from the language in the original franchise legislation (the general definition)which was unchanged by the 1975 amendmentalso apply. Under the general definition, which Shelton argues applies, the existence of a franchise requires proof of the following elements: (1) a written or oral arrangement, (2) in which a person grants to another person a license to use a trademark or related characteristic, and (3) in which there is a community of interest in the marketing of goods or services. Mo.Rev.Stat. § 407.400(1). Under the specific definition, one would need to prove only (1) the existence of a commercial relationship of definite duration or continuing indefinite duration between a wholesaler and supplier to sell intoxicating liquor (2) wherein a wholesaler is granted the right to offer, sell, and distribute any of the supplier's brands. Id. Under Missouri law, "[t]he seminal rule of statutory construction is to ascertain the intent of the legislature from the language used and to consider the words used in their plain and ordinary meaning." St. Louis Cnty. v. Prestige Travel, Inc., 344 S.W.3d 708, 713-14 (Mo. banc 2011) (citing Turner v. Sch. Dist. of Clayton, 318 S.W.3d 660, 665 (Mo. banc 2010)). When a statute's language is clear, Missouri courts give effect to its plain meaning and "refrain from applying the rules of construction unless there is some ambiguity." Id. (quotation omitted). "Where statutory interpretation is necessary, statutory language is considered in context and in comparison with other sections to determine its meaning." Id. (citation omitted). The district court correctly concluded that a plain reading of § 407.400(1) makes clear that the general definition indeed applies to franchise relationships within the liquor industry the same as it applies to all other businesses. This is apparent from the statute's use of the word "including" after the general definition of "franchise," as opposed to "or," "except," or some other language denoting that liquor sales relationships were to be analyzed differently from relationships in other industries. This interpretation is supported by the Missouri Supreme Court's explanation that § 407.400(1) "contains both an original, general definition of `franchise,' applying to all types of businesses and not limited to liquor franchises, as well as a specific definition added by the legislature in [1975] to specifically include liquor franchises," and "[t]he statute first contains a general definition of `franchise' applicable generally to all types of businesses; it then contains a specific definition of liquor distribution agreements that are included." High Life Sales Co. v. Brown-Forman Corp., 823 S.W.2d 493, 500-01 (Mo. banc 1992) (emphasis added). Thus, the specific definition simply illustrates a type of relationship that could be covered under the statute, provided that such relationship also satisfied the general definition of "franchise." MoBev counters that High Life Sales actually supports its position, because the case included an analysis only of the specific definition in determining whether the relationship at issue constituted a franchise. When read in its entirety, however, the case suggests that the Missouri Supreme Court confined its analysis to the language of the 1975 amendment because the disputed issue concerned whether a 878 liquor wholesaler's business satisfied the specific definition. See High Life Sales, 823 S.W.2d at 500-02.[5] Even had § 407.400(1) been ambiguous concerning whether the general definition applies to liquor supplier-wholesaler relationships, examination of the statute's context further demonstrates that the general definition applies to such relationships. Before the 1975 amendment, one could have read § 407.400(1) as ambiguous with respect to whether a liquor supplier-wholesaler relationship could be a franchise, because of the text stating that "the term `franchise' shall not apply to persons engaged in sales from warehouses or like places of storage." The 1975 amendment's explicit inclusion of language pertinent to the liquor industry served to clarify that certain business relationships in the liquor industry are not precluded from being deemed a franchise even though liquor wholesalers generally are "engaged in sales from warehouses." See McHenry, 566 S.W.2d at 197 (noting that "the passage of [the 1975 amendment] made it clear [that the liquor industry] had the same protection in this area of merchandising practices as other businesses."); see also Maude v. Gen. Motors Corp., 626 F.Supp. 1081, 1085 (W.D.Mo.1986) (noting that "the warehouse sales exclusion proved troublesome in the liquor industry" and resulted in the 1975 amendment). MoBev and amici devote large shares of their briefs to discussion of the 21st Amendment to the United States Constitution and the history of the three-tiered liquor distribution system between suppliers, wholesalers, and retailers in the United States, apparently to argue that the Missouri legislature, cognizant of this history, intended to create special franchise privileges for those in the liquor industry. However interesting that historical account may be, we do not find it relevant to the interpretation of the statutory provision at issue. We conclude that the plain language of § 407.400(1) requires liquor supplier-wholesaler relationships to satisfy the general definition to be deemed a franchise. B. Whether the business relationship between MoBev and Shelton satisfies the general definition of "franchise" under Missouri law Because the general definition of "franchise" applies to liquor supplier-wholesaler business relationships, it remains to be determined whether MoBev and Shelton's relationship satisfies that definition. It is undisputed that an oral agreement existed between the parties (though the terms of that agreement are in dispute), thus satisfying the first element of the general definition. The parties dispute the remaining two elements: whether Shelton granted MoBev a license to use a trademark or related characteristic, and whether a community of interest exists. 1. Whether Shelton granted MoBev a license to use a trademark or related characteristic "Courts have referred to interpretations of New Jersey's very similar statutory definition of `franchise' in interpreting the Missouri statute." Am. Bus. 879 Interiors, Inc. v. Haworth, Inc., 798 F.2d 1135, 1139 (8th Cir.1986) (citing McHenry, 566 S.W.2d at 196) (relying on interpretation of New Jersey Franchise Practices Act); ABA Distribs., Inc. v. Adolph Coors Co., 542 F.Supp. 1272, 1287-88 (W.D.Mo. 1982). Like § 407.400(1), the New Jersey statute also requires "the grant of a license in the franchisor's trade name," and "a community of interest in a business enterprise." Haworth, 798 F.2d at 1139-40; see N.J. Stat. Ann. § 56:10-3. "[A] hallmark of the franchise relationship is the use of another's trade name in such a manner as to create a reasonable belief on the part of the consuming public that there is a connection between the trade name licensor and licensee by which the licensor vouches, as it were, for the activity of the licensee in respect of the subject of the trade name." Neptune T.V. & Appliance Serv., Inc. v. Litton Microwave Cooking Prods. Div., 190 N.J.Super. 153, 462 A.2d 595, 599 (App.Div.1983) (citations omitted). "[N]ot every grant of permission to use a trademark in the sale of goods or services is a `license' within the meaning of the Franchise Act . . . The license contemplated by the Act is one in which the franchisee wraps himself with the trade name of the franchisor and relies on the franchisor's goodwill to induce the public to buy." Liberty Sales Assocs., Inc. v. Dow Corning Corp., 816 F.Supp. 1004, 1009-10 (D.N.J. 1993) (quoting and citing Instructional Sys., Inc. v. Computer Curriculum Corp., 130 N.J. 324, 614 A.2d 124, 138-40 (1992)). Shelton never granted MoBev a license to use its trademark or any related characteristic. MoBev never used Shelton's name in any marketing efforts, never requested to use Shelton's name, and never received Shelton's express permission to call itself an authorized Shelton dealer or otherwise use Shelton's name. Shelton's testimony that it would have given MoBev permission to use Shelton's name had a request been made plays no part in the analysis. Moreover, MoBev stated in its district court motion papers that rather than relying on or cloaking itself with the goodwill inherent in Shelton's name, MoBev relied on its own reputation to sell Shelton's products. Pl.'s Suggestions in Opp. of Def.'s Mot. for Summ. J. ¶ 26 ("[C]ustomers do business with MoBev because they associate MoBev with good products. MoBev salespeople mention the supplier if the supplier has a reputation of carrying good quality products, with the goal of promoting the product.") (citation omitted). Thus, it is clear that Shelton did not grant to MoBev a "license to use a trade name, trademark, service mark, or related characteristic" as a matter of Missouri law. 2. Whether Shelton and MoBev engaged in the same "community of interest" In the absence of any discussion by the Missouri courts regarding the community of interest requirement, for guidance we consider interpretations of similar statutes. Looking again to interpretation of the very similar New Jersey franchise law: The community of interest signalling a franchise relationship does not imply a sharing of profits. Rather it is based on the complex of mutual and continuing advantages which induced the franchisor to reach his ultimate consumer through entities other than his own which, although legally separate, are nevertheless economically dependent upon him. Neptune, 462 A.2d at 600-01 (internal citation omitted). From Neptune and its progeny, the Third Circuit distilled the following two-part test for determining whether a community of interest exists: "(1) the distributor's investments must have been substantially franchise-specific, and (2) the distributor must have been required to make these investments by the parties' agreement or the nature of the 880 business." Cooper Distrib. Co. v. Amana Refrigeration, Inc., 63 F.3d 262, 269 (3d Cir.1995) (internal quotation and citation omitted). Courts interpreting the New Jersey statute have in turn sought guidance from the very similar Wisconsin Fair Dealership Law (WFDL), see Neptune, 462 A.2d at 599-600, under which a community of interest may exist under one of two circumstances: (1) "when a large proportion of an alleged dealer's revenues are derived from the dealership," or (2) "when the alleged dealer has made sizable investments (in, for example, fixed assets, inventory, advertising, training) specialized in some way to the grantor's goods or services, and hence not fully recoverable upon termination."[6]Frieburg Farm Equip., Inc. v. Van Dale, Inc., 978 F.2d 395, 399 (7th Cir.1992) (citations omitted); see Wis. Stat. § 135.02 (defining "[c]ommunity of interest" as "a continuing financial interest between the grantor and grantee in either the operation of the dealership business or the marketing of such goods or services"). Given the strong similarities between the "franchise" definitions in Missouri, New Jersey, and Wisconsin, we believe that the Missouri Supreme Court would determine the existence of a "community of interest" under a standard commensurate with those articulated by the Third Circuit in Cooper Distributing and the Seventh Circuit in Frieburg. Applying either the Cooper Distributing or Frieburg standard, no community of interest existed between the parties in the marketing of Shelton's products. MoBev's sales of Shelton's products never exceeded 1.16% of MoBev's annual sales throughout the parties' relationship,[7] MoBev did not use Shelton's name in marketing during the parties' relationship, and MoBev was not required to makeand did not makeany sizeable investments particular to Shelton. In light of these circumstances, MoBev's investments cannot reasonably be deemed substantially franchise-specific, and MoBev cannot reasonably be deemed economically dependent on Shelton or to have unequal bargaining power in the relationship. In sum, then, we conclude that Shelton and MoBev's relationship was not that of franchisor-franchisee under Missouri law. IV. The judgment is affirmed. NOTES [1] The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri. [2] The Missouri Beer Wholesalers Association and Missouri Wine and Spirits Association filed an amicus brief in support of reversal and participated in oral arguments. [3] MoBev did use sales materials containing logos of various imported beers supplied by Shelton. There is no indication in the record, however, that MoBev ever used Shelton's name or logo in marketing its brands or products, and MoBev does not argue that it used Shelton's name or logo in such manner. [4] One difference exists between the language of the 1975 amendment and the current text quoted abovein 1998 the Missouri Legislature changed "spiritous liquor and wine(s)" to "intoxicating liquor" throughout the statute. Mo. H.B. 957 (1998) (enacted). [5] One unpublished district court opinion, without including any analysis or citing any authority, ruled that § 407.400(1) applies "to a wholesaler/supplier relationship for the distribution of spirituous liquor and wines, without the need to independently establish the existence of" a license or a community of interest. Missouri Conrad Liquor Co. v. Brown-Forman Corp., No. 89-0141-CV-W-6, 1990 WL 36133, at 1, 1990 U.S. Dist. LEXIS 3373, at 1 (W.D.Mo.1990). We conclude that the Missouri Supreme Court's subsequent decision in High Life Sales vitiates whatever persuasive effect Missouri Conrad Liquor may otherwise have had. [6] The Frieburg court also "suppose[d] that some combination of revenues and investments could manifest a community of interest, even if neither could standing alone." Id. [7] In contrast, the alleged franchisee in High Life Sales derived "approximately 98%" of its sales from the alleged franchisor. High Life Sales, 823 S.W.2d at 494; see also Kenosha Liquor Co. v. Heublein, Inc., 895 F.2d 418, 419-20 (7th Cir.1990) (concluding that 5.8% of sales was insufficient to establish a franchise relationship under WFDL when no other factors weighed in favor of such a relationship).	{ "pile_set_name": "FreeLaw" }
610 F.2d 823 U. S.v.Carr No. 79-1245 United States Court of Appeals, Ninth Circuit 12/5/79 1 D.Ariz. AFFIRMED	{ "pile_set_name": "FreeLaw" }
STATE OF MICHIGAN COURT OF APPEALS CARLETON BUCK, UNPUBLISHED July 16, 2015 Plaintiff-Appellant, v No. 320967 Wayne Circuit Court CITY OF HIGHLAND PARK, CURTIS WHITE, LC No. 12-010985-NO and JANE DOE, Defendants-Appellees. Before: FORT HOOD, P.J., and SAAD and RIORDAN, JJ. PER CURIAM. Plaintiff appeals as of right the order granting summary disposition in favor of defendants. We affirm. This case arises from a shooting that occurred during an armed robbery at the Gold Nugget, a pawnshop in Highland Park, Michigan. Although the facts are highly disputed, defendant police officer Curtis White, along with his partner police officer Heather Holcomb (presumably defendant “Jane Doe”), both employees of defendant City of Highland Park (Highland Park), responded to a robbery alarm at the Gold Nugget. Upon arriving, the officers entered the pawn shop. Plaintiff entered the pawn shop directly after the officers. Shortly thereafter, the armed burglars in the pawn shop fired at the officers. White and plaintiff were shot and injured. Plaintiff subsequently filed a complaint against defendants alleging constitutional violations pursuant to 42 USC 1983. Defendants filed a motion for summary disposition, which the trial court granted. Plaintiff thereafter filed a motion for reconsideration, which was denied. Plaintiff appeals the order granting defendants’ motion for summary disposition and the order denying plaintiff’s motion for reconsideration. We affirm. I. MOTION FOR SUMMARY DISPOSITION We first address plaintiff’s argument that the trial court erred in granting defendants’ motion for summary disposition. We disagree. Defendants brought a motion for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). In rendering its decision, the trial court granted the motion for summary disposition for -1- the reasons stated in defendants’ brief in support of the motion for summary disposition. Because defendants moved for summary disposition on multiple grounds and the trial court ruled on the motion without specifying the subrule under which it decided the issue but considered material outside the pleadings, this Court will review the decision as based on MCR 2.116(C)(10). Cuddington v United Health Servs, Inc, 298 Mich App 264, 270; 826 NW2d 519 (2012). This Court reviews de novo a trial court’s decision regarding a motion for summary disposition. Pew v Mich State Univ, 307 Mich App 328, 331; 859 NW2d 246 (2014). A motion for summary disposition under MCR 2.116(C)(10) challenges whether a plaintiff provided sufficient factual support for the claims in his complaint. Stone v Auto-Owners Ins Co, 307 Mich App 169, 173; 858 NW2d 765 (2014). This Court considers “the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Id. (citation and quotation marks omitted). “Mere conclusory allegations that are devoid of detail are insufficient to demonstrate that there is a genuine issue of material fact for trial.” Bennett v Detroit Police Chief, 274 Mich App 307, 317; 732 NW2d 164 (2006). 42 USC 1983 provides a federal remedy against any person who, under the color of state law or custom having the force of law, deprives another of rights protected by the constitution or laws of the United States. The statute does not provide the source of the rights, but only provides the remedy for a violation of the United States constitution or a federal statute. Lavigne v Forshee, 307 Mich App 530, 537; 861 NW2d 635 (2014). In order to prevail in an action under 42 USC 1983, a plaintiff must show “that (1) defendants acted under color of state law and (2) that defendants’ conduct deprived [him] of a federal right.[]” Id. at 539. Plaintiff alleged that defendants violated his due-process rights under the United States and Michigan Constitutions. The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that a state shall not “deprive any person of life, liberty, or property, without due process of law.” US Const, Am XIV, § 1. The Due Process Clause of the Michigan Constitution “provides protection coextensive with its federal constitutional counterpart.” By Lo Oil Co v Dep’t of Treasury, 267 Mich App 19, 32; 703 NW2d 822 (2005). “In the context of individual governmental actions or actors . . . to establish a substantive due process violation, ‘the governmental conduct must be so arbitrary and capricious as to shock the conscience.’ ” Cummins v Robinson Twp, 283 Mich App 677, 701; 770 NW2d 421 (2009) (citation omitted). In general, the government’s failure to protect an individual against a third party does not violate the individual’s due-process rights. DeShaney v Winnebago Co Dep’t of Social Servs, 489 US 189, 197; 109 S Ct 998; 103 L Ed 2d 249 (1989). However, several exceptions to the general rule exist, including the failure to train and the state-created danger doctrine. Plaintiff asserts that defendants are liable pursuant to both doctrines. A. STATE-CREATED DANGER DOCTRINE “[A] state might still be liable for private acts of violence that result from the state’s affirmative acts that greatly increase the risk of harm to its citizens.” Manuel v Gill, 270 Mich App 355, 366-367; 716 NW2d 291 (2006), aff’d in part on other grounds, rev’d in part on other -2- grounds by 481 Mich 637 (2008). The state-created danger theory of liability provides that a government entity is liable to a plaintiff if the plaintiff shows: 1) an affirmative act by the state which either created or increased the risk that the plaintiff would be exposed to an act of violence by a third party; 2) a special danger to the plaintiff wherein the state’s actions placed the plaintiff specifically at risk, as distinguished from a risk that affects the public at large; and 3) the state knew or should have known that its actions specifically endangered the plaintiff. [Id. at 367 (citations and quotation marks omitted).] The trial court did not err when it granted defendants’ motion for summary disposition because plaintiff failed to provide factual support for his claim that the affirmative actions of Officers White or Holcomb created or increased that plaintiff would be exposed to an act of violence by a third party. Plaintiff alleged that the officers committed an affirmative act that increased the risk of danger when they entered the Gold Nugget. Plaintiff claims that the officer’s presence caused the robbers to start shooting. We reject plaintiff’s assertions for several reasons. Primarily, we do not agree that the officers’ entry into the building constituted an affirmative act which increased the risk to plaintiff. This argument completely ignores that the primary act that caused plaintiff’s injury was the armed robber shooting plaintiff. Plaintiff’s argument attempts to deflect blame from the robber to the officer in an illogical manner. Moreover, we do not agree that the officers’ entry into the building, the alleged affirmative act, increased the risk to plaintiff. Rather, the presence of the officers decreased the risk of harm to plaintiff since the officers were in a position to protect him from the robbers. Finally, we reject plaintiff’s assertion that the officers committed an affirmative act that increased the risk of danger when they drew their handguns inside of the Gold Nugget. The undisputed evidence shows that the police officers did not draw their handguns until after the robbers began shooting. Plaintiff also claims that the officers should not have parked directly in front of the pawn shop. However, the evidence showed that the police parked at least one space away and looked in the windows of the Gold Nugget before going inside. Moreover, as plaintiff admits, the shooting did not occur until the officers entered into the pawn shop, not because of where the officers parked their vehicle. Plaintiff’s remaining arguments regarding the officers’ alleged affirmative acts relate to a multitude of inactions by the officers that he claims created or increased the risk to him. Primarily, plaintiff argues that the officers failed to establish a perimeter around the scene of the incident or advise plaintiff and other patrons not to enter the pawn shop. According to plaintiff, the officers knew that an armed robbery was occurring and should have done more to protect plaintiff. We agree with plaintiff that these failures are troubling. However, the failure to act does not constitute an “affirmative act” under the state-created danger doctrine. Jones v Reynolds, 438 F3d 685, 691 (CA 6, 2006). Accordingly, we do not agree that the officers committed an affirmative act that created or increased the risk of danger to plaintiff. Because plaintiff cannot establish an affirmative act, his state-created danger theory of liability fails. Accordingly, we conclude that it is unnecessary to address the remaining arguments relating to this issue. B. FAILURE TO TRAIN -3- Plaintiff also argues that his due process rights were violated by Highland Park’s failure to train its police officers. We disagree. A municipality cannot be liable solely because an act of its employee violated the plaintiff’s constitutional rights. See Payton v Detroit, 211 Mich App 375, 398; 536 NW2d 233 (1995). However, “[a] municipality can be held liable under § 1983 for its policies that violate the constitution or laws of the United States.” Id. The policy does not need to be unconstitutional in and of itself. York v Detroit, 438 Mich 744, 755; 475 NW2d 346 (1991). Instead, a plaintiff must show that the constitutional violation was a result of action taken under an official municipal policy. Payton, 211 Mich App at 398. “[The] first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” Id. (citations and quotation marks omitted; alteration in original). Although there is usually formal approval for a municipal policy, “the plaintiff may assert and prove that the policy-making officials of the municipality deliberately approved an unconstitutional custom or practice.” Id. at 399 (emphasis added). Mere negligence is insufficient to give rise to municipal liability under the statute. Id. Instead, the plaintiff must prove that the municipality acted with deliberate indifference. Id. The term “deliberate indifference” includes “ ‘knowledge, actual or constructive, and a conscious disregard of a known danger’ by the policy-making official.” Id. (citation omitted). A municipality may be liable for failing to train its police officers if it had a policy of failing to train and the failure to train caused a violation of the plaintiff’s constitutional rights. Id. at 400. The trial court did not err when it granted defendants’ motion for summary disposition regarding Highland Park’s failure to train because plaintiff failed to show that the constitutional violation was a result of action taken under an official municipal policy. See id. at 398. First, plaintiff failed to show that Highland Park had a formal or informal policy or custom of failing to train its police officers. See id. at 398-399. While Highland Park did not have a police academy or a training division, Officer White testified that he received formal training through the Detroit Police Academy, as well as informal training from veteran officers at the Highland Park police department and through his years on the job. He also received a copy of the Highland Park Municipal Code and a copy of the Highland Park Police Department Regulations. More specifically, Officer White stated that he was trained in crime scene investigation and in establishing a perimeter around the scene of an assaultive crime. Officer White testified that the correct procedure to protect bystanders at the scene of an assaultive crime was to inform the bystanders to vacate the area. Based on the submitted evidence, we do not agree that plaintiff established a question of fact that Highland Park maintained a policy or custom of not training its officers. See id. Further, plaintiff failed to provide factual support for his assertion that Highland Park acted with deliberate indifference. See id. at 399-400. As defendants assert, there is no indication that Highland Park knew that training was necessary or that the lack of training would lead to a violation of plaintiff’s constitutional rights. Therefore, the trial court did not err in granting defendants’ motion for summary disposition with regard to plaintiff’s allegation of failure to train. C. FINDINGS OF FACT -4- Plaintiff argues that the trial court had to make improper findings of fact in order to grant summary disposition in favor of defendants. As discussed above, plaintiff failed to provide sufficient factual support to survive a motion for summary disposition on his claims even when all factual disputes are resolved in his favor. See Stone, 307 Mich App at 173. Therefore, plaintiff’s argument fails. II. DISCOVERY Plaintiff also argues that the trial court erred when it granted defendants’ motion for summary disposition before plaintiff ascertained certain discovery. Specifically, plaintiff asserts that the trial court should have withheld its decision until after plaintiff received the Michigan State Police investigation report, the audiotape recordings of the 911 telephone calls and dispatch calls from the incident, and training materials from the Highland Park Police Department. We disagree. We review a trial court’s decision regarding discovery for an abuse of discretion. PCS4LESS, LLC v Stockton, 291 Mich App 672, 676; 806 NW2d 353 (2011). “An abuse of discretion occurs when the trial court chooses an outcome falling outside a range of principled outcomes.” Id. at 676-677. A trial court prematurely grants summary disposition if a party has not had the opportunity to conduct discovery. Huntington Nat’l Bank v Daniel J Aronoff Living Trust, 305 Mich App 496, 513; 853 NW2d 481 (2014). “However, the mere fact that the discovery period remains open does not automatically mean that the trial court’s decision to grant summary disposition was untimely or otherwise inappropriate. The question is whether further discovery stands a fair chance of uncovering factual support for the opposing party’s position.” Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292; 769 NW2d 234 (2009). First, we note that the court granted summary disposition after the close of discovery, which had already been extended once. Although defendants filed the motion for summary disposition before the close of discovery, the trial court did not err because it decided the motion after the close of discovery, and plaintiff could have continued to conduct discovery during this period. See id. Furthermore, there was not a fair chance of uncovering factual support for plaintiff’s position. First, the audiotape recordings of the 911 telephone call and the dispatch call from the 911 operator to the Highland Park Police Department were played on the record during the hearing on defendants’ motion for summary disposition. Thus, the court was fully appraised of its contents when rendering its decision. Second, defendants had previously explained that the specific training materials that plaintiff requested did not exist, and the court ordered defendants to give the materials to plaintiff if found. Third, the court addressed at the hearing on the motion for summary disposition the issue of the Michigan State Police investigation report. The court stated that defense counsel did not have the responsibility to provide the report to plaintiff, and ruled that plaintiff should have requested the report from the Michigan State Police directly. Further, we are not convinced that the investigation report would have supported to plaintiff’s position, especially in light of our disposition regarding defendants’ motion for summary disposition. Again, plaintiff cannot show that the officers’ engaged in an affirmative act that increased the danger to plaintiff. While the report may show that the officers failed to act -5- appropriately, it would not change the fact that plaintiff cannot establish an affirmative act by the officers. See Jones, 438 F3d at 691. Accordingly, we reject plaintiff’s claims. III. MOTION TO AMEND COMPLAINT Plaintiff next argues that the trial court erred when it refused to consider his motion to amend his complaint. We disagree. This Court reviews a trial court’s decision to deny a motion to amend the complaint for an abuse of discretion. Diem v Sallie Mae Home Loans, Inc, 307 Mich App 204, 215-216; 859 NW2d 238 (2014). In general, a trial court should grant a motion to amend the complaint. Id. MCR 2.118(A)(2) provides, “Except as provided in [MCR 2.118(A)(1)], a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires.” MCR 2.116(I)(5) provides that when a party brings a motion for summary disposition under MCR 2.116(C)(8), (9), or (10), the trial court must allow the parties to amend a pleading unless the amendment would not be justified. A trial court may deny a motion to amend for the following reasons: (1) undue delay, (2) bad faith or dilatory motive on the part of the movant, (3) repeated failure to cure deficiencies by amendments previously allowed, (4) undue prejudice to the opposing party by virtue of allowance of the amendment, or (5) futility of the amendment. Absent bad faith or actual prejudice to the opposing party, delay, alone, does not warrant denial of a motion to amend. [Diem, 307 Mich App at 216 (citation and quotation marks omitted).] The trial court denied plaintiff’s motion because amendment would be futile. Plaintiff first asserts that he should have been permitted to amend his complaint because, in granting the motion for summary disposition, the court noted that plaintiff had only pleaded conclusory statements with regard to the alleged constitutional violation. We conclude that amendment would be futile because, as discussed above, plaintiff failed to allege a constitutional violation in his complaint sufficient to survive a motion for summary disposition pursuant to MCR 2.116(C)(10). Further, plaintiff failed to explain in the trial court or on appeal how he would have amended the complaint to include addition factual support for his claims. In addition, plaintiff attached an amended complaint to his motion for reconsideration, which included citations to Highland Park ordinances and regulations, but did not allege any additional factual support that was not considered by the trial court. Therefore, we agree with the trial court that amendment of the complaint would have been futile. See Diem, 307 Mich App at 216. Second, plaintiff argues that he would have alleged a claim of gross negligence had he been given the opportunity to amend his complaint. MCL 691.1407(2) provides: Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency . . . is immune from tort liability for an injury to a person or damage to property caused by the officer, employee, or member while in the course of employment . . . while acting on behalf of a governmental agency if all of the following are met: -6- (a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority. (b) The governmental agency is engaged in the exercise or discharge of a governmental function. (c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage. Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). “Therefore, for a plaintiff to be successful in a tort action against a governmental employee, the plaintiff must prove both that (1) the governmental employee’s conduct demonstrated a substantial lack of concern for whether his conduct would cause injury to the plaintiff, and (2) the alleged misconduct was the proximate cause of the plaintiff’s injury.” Tarlea v Crabtree, 263 Mich App 80, 83; 687 NW2d 333 (2004). In Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000), the Michigan Supreme Court held that the phrase “the proximate cause” means “the one most immediate, efficient, and direct cause preceding an injury.” Plaintiff fails to argue in his brief on appeal that the police officers acted with a substantial lack of concern for whether an injury would result from their actions. As discussed above, there was no indication from the record that the officers were aware of the danger to plaintiff. Even assuming that the officers exhibited a substantial lack of concern for whether an injury would result from their actions, the police officers’ conduct was not the proximate cause of plaintiff’s injury. See Tarlea, 263 Mich App at 83. Instead, the robbers who shot plaintiff were the most immediate, efficient, and direct cause preceding plaintiff’s injury. See Robinson, 462 Mich at 459. Therefore, the trial court did not err because an amendment of plaintiff’s complaint to add a gross negligence claim would have been futile. See Diem, 307 Mich App at 216. IV. QUALIFIED IMMUNITY Plaintiff next argues that the trial court erred when it ruled that Officer White’s conduct was protected by qualified immunity. We disagree. This Court reviews de novo the issue whether a defendant is entitled to qualified immunity. Morden v Grand Traverse Co, 275 Mich App 325, 340; 738 NW2d 278 (2007). This Court also reviews de novo a motion for summary disposition. Pew, 307 Mich App at 331. “A defendant is entitled to summary disposition under MCR 2.116(C)(7) if the plaintiff’s claims are barred because of immunity granted by law.” Id. at 332-333. This Court considers plaintiff’s complaint to be true, unless the documentary evidence contradicts it. Id. at 332. The movant may support the motion with documents in the record if the documentation would be admissible at trial. Id. “If reasonable minds could not differ on the legal effects of the facts, whether governmental immunity bars a plaintiff’s claim is a question of law.” Id. The issue of whether a police officer’s actions are protected by qualified immunity is distinct from the merits of the underlying claim. See Morden, 275 Mich App at 342. “Qualified immunity shields an officer from suit when [he] makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances [he] confronted.” Id. -7- (citation omitted). “A police officer may invoke the defense of qualified immunity to avoid the burden of standing trial when faced with a claim that the officer violated a person’s constitutional rights.” Lavigne, 307 Mich App at 542. The plaintiff has the burden to show that a police officer is not protected by qualified immunity before trial. Id. Thus, if there was no violation of a plaintiff’s constitutional rights, then the court does not need to make a further inquiry into the issue of qualified immunity. Morden, 275 Mich App at 341. The trial court did not err when it ruled that plaintiff’s claim against Officer White was barred by qualified immunity. As discussed above, there was no constitutional injury in this case. Therefore, there is no need to conduct a further inquiry into whether Officer White was entitled to qualified immunity. See id. V. MOTION FOR RECONSIDERATION Plaintiff also argues that the trial court abused its discretion when it denied his motion for reconsideration. We disagree. “This Court reviews a trial court’s decision on a motion for reconsideration for an abuse of discretion.” Huntington Nat’l Bank, 305 Mich App at 515. Plaintiff’s primary argument is that the trial court judge who decided the motion for reconsideration erroneously determined that she was not in a position to reconsider the ruling of a predecessor trial judge on the motion for summary disposition. Based on our disposition regarding the merits of plaintiff’s claim, it is unnecessary for us to address plaintiff’s argument, and we conclude that the trial court properly denied plaintiff’s motion for reconsideration because there was no palpable error necessitating correction. MCR 2.119(F)(3). Affirmed. Defendants, the prevailing parties, may tax costs. MCR 7.219. /s/ Karen M. Fort Hood /s/ Henry William Saad /s/ Michael J. Riordan -8-	{ "pile_set_name": "FreeLaw" }
615 P.2d 863 (1980) Richard Raymond HOEHNE, Claimant and Respondent, v. GRANITE LUMBER CO., Employer, Alaska Pacific Assurance Company, Defendants and Appellants. No. 79-16. Supreme Court of Montana. Submitted on Briefs April 3, 1980. Decided July 28, 1980. Utick & Grosfield, Helena, for defendants and appellants. H.L. McChesney, Missoula, for claimant and respondent. 864 HASWELL, Chief Justice. The Workers' Compensation Court found that claimant-respondent Richard Hoehne suffered a compensable injury arising out of and in the course of his employment with Granite Lumber Company. Alaska Pacific Assurance Company (Alaska Pacific), Granite Lumber's insurance carrier, appeals. Richard Hoehne commenced employment with Granite Lumber Company in Phillipsburg, Montana, in early March, 1978. His job consisted of removing 2" by 4" studs from a conveyor system and stacking them in a pile. About two weeks after commencement of the job, claimant's fingers started going numb which caused pain and resulted in sleeplessness. Hoehne continued to work and the pain in his wrists and arms steadily increased. Mr. Hoehne had no prior history of medical problems with his hands and it is unquestioned that his condition was caused by the continual strain involved in lifting and stacking lumber. Claimant consulted with Dr. Cunningham, a local physician who in turn referred him to Dr. Cooney, a neurologist in Missoula, Montana. Dr. Cooney examined the claimant on May 10, 1978, and diagnosed the condition as a "compressive neuropathy of the median nerves in the carpal tunnels bilaterally" (i.e. bilateral carpal tunnel syndrome). Hoehne was then referred to Dr. Gary, a Missoula neurosurgeon who performed surgery on the claimant's hands on May 16, 1978. He was able to commence working in other capacities in late June or early July, 1978. No permanent disability resulted from the injury and Mr. Hoehne is now able to do the same type of work as he was able to do prior to his employment with Granite Lumber. Richard Hoehne filed a claim dated May 7, 1978, with the Division of Workers' Compensation. He sought reimbursement of medical expenses and temporary total compensation benefits from March 16, 1978, through June 19, 1978. Alaska Pacific denied liability for the injury on the basis that claimant had not suffered a compensable injury pursuant to the Montana Workers' Compensation Act. Mr. Hoehne requested a hearing before the Workers' Compensation Court which was held on October 18, 1978. On August 28, 1979, the court issued its findings of fact and conclusions of law in the matter and entered judgment in claimant's favor. The findings of fact reveal: that the claimant's injury "was related to his activity on the job and that it arose out of and in the course of his employment"; and that although claimant could not relate his condition to any specific incident or happening on the job, it "developed gradually" and "got steadily worse." The sole issue on appeal is whether the claimant suffered an injury as defined in section 39-71-119(1), MCA, which provides: "`Injury' or `injured' means: (1) a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom and excluding disease not traceable to injury, except as provided in subsection (2) of this section;" The appellant does not attack the Workers' Compensation Court's findings of fact, instead it is contended that the findings do not support the legal conclusion of a compensable injury. The heart of this contention is that a condition which arises and gradually becomes worse over a period of time, attributable to no specific incident, is not a "tangible happening of a traumatic nature from an unexpected cause or unusual strain." Respondent, on the other hand, contends that a series of "tangible happenings of a traumatic nature" and "unusual strain" related to the work activities of a lumber stacker over a two and one-half month period resulted in an injury within the definition of section 39-71-119(1), MCA. Thus, the sole difference between the parties on appeal is that one believes a gradual development of job-related injury which is not attributable to one specific incident is an "injury" and the other believes it is not. 865 The issue of whether an injury fits within the definitional requirements of the Workers' Compensation Act has been presented to this Court in numerous cases. In James v. V.K.V. Lumber Company (1965), 145 Mont. 466, 401 P.2d 282, a lumber stacker suffered a back injury when he bent over to pick up a 10 to 15 pound cement block. This act was within the claimant's normal work activity. The case was decided on the basis of section 92-418, R.C.M. 1947, which provided: "Injury or injured defined. `Injury' or `injured' means a tangible happening of a traumatic nature from an unexpected cause, resulting in either external or internal physical harm, and such physical condition as a result therefrom and excluding disease not traceable to injury." (Emphasis added.) In a 3-2 decision, we found no injury within the previous definition, since the cause of the injury was not unexpected. "Lifting the fifteen pound block was expected and done routinely..." 145 Mont. at 469, 401 P.2d at 283. A case similar to James was presented in Jones v. Bair's Cafes (1968), 152 Mont. 13, 445 P.2d 923. An employee, hired as a dishwasher, suffered a back injury from picking up a heavy tray of dishes. However, the 1967 legislature had amended section 92-418, R.C.M. 1947, to include "unexpected cause, or unusual strain." This language has not been amended since 1963 and has now been codified in section 39-71-119(1), MCA. In Jones we found an "injury" within the statutory definition and stated: "Now, in 1967, the legislature included the words `or unusual strain.' What is the meaning? How do we measure `unusual strain.' It seems clear that the legislature intended to change and modify the James decision. By adding the separate distinct phrase, `or unusual strain,' the legislature intended to cover just such a situation as we have here. There was no `unexpected cause' but there was an `unusual strain;' thus the measure would seem to be the result of a tangible happening of a traumatic nature which results in physical harm, be it a rupture, a strain or a sprain. We can only rely on credible medical evidence to determine it. Here we have such medical evidence." 152 Mont. at 19, 445 P.2d at 926. We here express our agreement with the decision in Jones. The legislative amendment was intended to change the majority's decision in James and to allow claimants relief when an injury is the result of an "unusual strain" occurring on the job. With regard to the requirement of a "tangible happening of a traumatic nature," this Court has stated: "Not only must claimant show an unusual strain, but that the strain must result from a tangible happening of a traumatic nature ... A tangible happening must be a perceptible happening, Webster's Third New International Dictionary. Some action or incident, or chain of actions or incidents, must be shown which may be perceived as a contributing cause of the resulting injury ..." Erhart v. Great Western Sugar Company (1976), 169 Mont. 375, 380-381, 546 P.2d 1055, 1058. (Emphasis added.) In our present case the tangible happening was not a single isolated incident, as was the situation in Jones, but rather a chain of actions or incidents, i.e. the stacking of lumber on a daily basis. Under the preceding definition either situation is a "tangible happening." No attack has been made on the causal connection and the record clearly establishes that respondent's injury resulted from his work activities as an employee of Granite Lumber. As a result numerous cases which find no "injury" because of a failure of proof on the element of causal connection simply do not apply to the present appeal. These cases generally arise in cases involving heart conditions or mental illness. See Moen v. Decker Coal Co. (1979), Mont., 604 P.2d 765, 36 St.Rep. 2220 (myocardial infarction); Dumont v. Wickens Bros. Const. Co. (1979), Mont., 598 P.2d 1099, 36 St.Rep. 1471 (heart attack); Erhart v. 866 Great Western Sugar Company, supra; (mental breakdown); Hurlbut v. Vollstedt Kerr Company (1975), 167 Mont. 303, 538 P.2d 344 (myocardial infarction); McAndrews v. Schwartz (1974), 164 Mont. 402, 523 P.2d 1379 (arteriosclerosis). Affirmed. DALY, HARRISON and SHEA, JJ., concur. SHEEHY, Justice, dissenting: In determining what is an "injury" (section 39-71-119(1), MCA), under the Workers' Compensation Act, this Court has demonstrated a quixotic ability to mount its horse and ride off in all directions. In McAndrews v. Schwartz (1974), 164 Mont. 402, 523 P.2d 1379, compensation was denied to a claimant with arteriosclerosis obliterans in a femoral artery principally because the Act excluded "disease not traceable to injury." In Erhart v. Great Western Sugar Company (1976), 169 Mont. 375, 546 P.2d 1055, compensation was denied to a claimant who suffered a mental breakdown because there was no tangible happening of a traumatic nature from an unexpected cause or unusual strain. In Ness v. Diamond Asphalt Company (1964), 143 Mont. 560, 393 P.2d 43, compensation was denied where an employee suffered a myocardial infarction while at work, but not because of his work. In Greger v. United Prestress, Inc. (1979), Mont., 590 P.2d 1121, we held that contact dermatitis caused by repeated exposure to chromate ions in materials used by the claimant in his work was an occupational disease, compensable as such, and not as an industrial accident. In Hurlbut v. Vollstedt Kerr Company (1975), 167 Mont. 303, 538 P.2d 344, we held that unusually cold weather did not constitute an "unusual strain" to make a myocardial infarction suffered thereby in an otherwise diseased heart compensable. In Dumont v. Wickens Bros. Const. Co. (1979), Mont., 598 P.2d 1099, 36 St.Rep. 1471, we held that a claimant found dead in bed had not established a heart condition "traceable to injury" from long hours, stresses and strains on the job, and we denied compensation. In the recent case of Moen v. Decker Coal Co. (1979), Mont., 604 P.2d 765, 36 St.Rep. 2220, the majority denied compensation in a myocardial infarction case on the basis of no tangible happening of a traumatic event. I dissented because the evidence showed that the infarction occurred on the job, after which the claimant was subjected to further unusual strain of an unexpected nature which aggravated his condition and led to his death. In the instant case, we have a claimant who was doing the job he was hired to do, stacking lumber. While he was doing the ordinary chores of his job, his tendons swelled, pinching the nerves in his hands. Where is the traumatic happening of a tangible event? Where is the unexpected cause or unusual strain, if his job is to stack lumber? These elements simply do not exist. It is far more likely that claimant is entitled to compensation under the Occupational Disease Act of Montana. (Sections 39-72-101 et seq., MCA). The swelling of his tendons from the repeated exertions of stacking lumber is not unlike the development of contact dermatitis from repeated exposures to chromate, as in Greger, supra. Here is the anomaly of these decisions: Section 39-71-119, MCA, defining a compensable "injury," provides that "injury" excludes disease not traceable to injury, but excepts three classes of diseases: cardiovascular, pulmonary, or respiratory. Under the decisions of this Court, it has constantly ruled myocardial infarctions are not compensable, though they are within the exception. Here we make something akin to tendonitis compensable, though it is outside the exception. I would hold that the claimant is entitled to compensation under the Occupational Disease Act of Montana. His benefits would be the same, but he would not be entitled to benefits for partial disability. 867 (Section 39-72-703, MCA.) Here that is not important, because no residual disability is claimed.	{ "pile_set_name": "FreeLaw" }
506 A.2d 209 (1986) STATE of Maine v. Harry CROCKER. Supreme Judicial Court of Maine. Argued January 16, 1986. Decided February 25, 1986. Michael E. Povich, Dist. Atty., Carletta M. Bassano (orally), Asst. Dist. Atty., Machias, for State. Silsby & Silsby, Sandra Hylander Collier (orally), Ellsworth, for defendant. Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN and SCOLNIK, JJ. WATHEN, Justice. Defendant Harry Crocker appeals from three convictions resulting from a jury trial in Superior Court (Washington County). Defendant was convicted of two counts of criminal threatening with the use of a dangerous weapon, 17-A M.R.S.A. § 209 (1983), and one count of reckless conduct with the use of a dangerous weapon, 17-A M.R.S.A. § 211 (1983).[1] Defendant's principal claim on appeal arises from the Superior Court's refusal to instruct the jury on the competing harms defense and the justifiable use of deadly force in defense of persons. We find no error and affirm the convictions. I. The relevant facts of this case may be summarized as follows: On June 28, 1983, defendant engaged in a confrontation with Burleigh Sprague in Bucks Harbor. One of the two counts of criminal threatening and the single count of reckless conduct relate to this incident. During the course 210 of the evening defendant also confronted Owen Moody, thus providing the basis for the second count of criminal threatening. Burleigh Sprague testified that at approximately 6:00 p.m. he received a phone call from his wife stating that the defendant was at the Sprague residence threatening "to get" Sprague. Sprague returned home accompanied by Dennis Moody, Phil Moody, and Norman Johnson and found that defendant had left. Sprague and the others, with the addition of Mark Sprague, set out to find him. Sprague stated that he "just wanted to talk with" Crocker. The group encountered defendant Crocker in his automobile travelling through Bucks Harbor and followed him to his mother's house where Crocker was living at the time. Sprague testified that upon arriving in his mother's driveway, Crocker, accompanied by Emery Miller, jumped out of his vehicle with a .22 caliber revolver in his hand. Sprague proceeded past the Crocker residence and turned around at a cemetery at the end of the road.[2] After turning around, Sprague entered a nearby home and called the police. He then returned to his vehicle intending to attempt to drive by the Crocker home and return to the main road. As he drove toward the Crocker home, however, he saw the defendant in the yard still holding the gun and stopped the car about one hundred yards from Crocker. Emery Miller approached the Sprague vehicle making threats and calling on Sprague to fight. Sprague got out of the vehicle to talk to Miller. During this discussion, Sprague also saw and heard the defendant hollering threats and shaking his fists. Sprague then heard a shot and saw the gun, pointed in the air, recoil. After the first shot, Sprague called Miller a "boy" and the latter became very angry. As Miller approached Sprague, Sprague removed a baseball bat from his car and placed it on his shoulder. While continuing to converse with Miller, Sprague saw Crocker aim the gun at him. He ducked behind his car and immediately heard another gunshot. Thereafter, a neighbor intervened and attempted to calm things down. Sprague returned to the neighbor's house to await the arrival of police. Shortly after Sprague had first driven by the Crocker home, Owen Moody and Daniel Johnson arrived at the scene in a different automobile driven by Moody. As they drove by the Crocker home, the defendant ran toward the car pointing his pistol into the window of the car. Moody drove past the defendant's home and encountered Sprague about to call the police. He then turned his vehicle around and returned to the main road. After Moody's vehicle had returned to the main road, someone at the Crocker home moved a car from the driveway into the road so as to block passage from the cemetery end of the road, where Sprague and company remained, to the main road. The defense witnesses relate a different version of events. Julie Sprague, cousin of Burleigh Sprague and girlfriend of defendant's brother, testified that Burleigh Sprague's car, with Dennis Moody driving, drove by the Crocker home several times at a fast rate of speed. This reckless driving endangered a small boy playing in the area, so defendant's brother blocked the road with a car to prevent further passage by the house. As to the confrontation between Burleigh Sprague and Emery Miller, a prosecution witness testified that Sprague carried the bat when he first got out of his car to talk to Miller but that he held the bat low and did not threaten Miller with it. Julie Sprague testified for the defense that Burleigh Sprague was swinging the bat but never swung it at Miller. Hubine Sprague and the defendant's brother also testified that Burleigh Sprague was swinging the bat, but they provided no further detail. 211 The jury returned a verdict of guilty on all three counts and defendant now appeals from the resulting convictions. II. The presiding justice instructed the jury on the justifiable use of nondeadly force in defense of self or a third person, 17-A M.R.S.A. § 108(1) (1983) and in defense of premises, 17-A M.R.S.A. § 104(1) (1983). Defendant's request for a similar instruction with regard to the use of deadly force, 17-A M.R.S.A. § 108(2) (1983), was refused. In addition the court refused to instruct on the doctrine of competing harms. 17-A M.R.S.A. § 103(1) (1983). The court committed no error in refusing to instruct on the use of deadly force because the issue was not generated by the evidence. To warrant an instruction, evidence must be sufficient to "make the existence of all facts constituting the defense a reasonable hypothesis for the factfinder to entertain." State v. Glidden, 487 A.2d 642, 644 (Me.1985). The statute dealing with deadly force provides in relevant part: 2. A person is justified in using deadly force upon another person: A. When he reasonably believes it necessary and he reasonably believes such other person is: (1) About to use unlawful, deadly force against himself or a 3rd person. 17-A M.R.S.A. § 108(2) (1983). Defendant did not testify, and thus, there is no direct evidence as to any belief that he might have entertained when he confronted either of the victims. Beyond that, the circumstances would not support the conclusion that defendant reasonably believed in the necessity of using deadly force, without retreating, in order to protect himself. When defendant fired the gun, Sprague was standing at a distance of 100 yards. Similarly, defendant could not have reasonably believed that deadly force was about to be used against Emery Miller, nor could he have reasonably believed that deadly force, as opposed to physical intervention, was necessary. The court properly refused the requested instruction. Defendant backed up his request for a deadly force instruction by requesting an instruction on competing harms. Our criminal code provides in relevant part: 1. Conduct which the actor believes to be necessary to avoid imminent physical harm to himself or another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the crime charged. 17-A M.R.S.A. § 103(1) (1983). The presiding justice denied the request, concluding that instructions on section 104(1) and section 108(1) "cover the factual situations generated in this case." Essentially defendant argues that the risk of harm involved in his conduct was outweighed by the risk of harm presented by the conduct of Sprague. We need not weigh the opposing harms in the balance[3] because the existence of the specific defenses in sections 104 and 108 precludes resort to the more general provision dealing with competing harms. The competing harms defense was not intended as an overlay of self defense, but rather was designed to codify the principle inherent in the common law defense of necessity. See State v. Dorsey, 118 N.H. 844, 845, 395 A.2d 855, 856 (1978). The comments to section 103 state: "The problems covered by this section do not seem to be the subject of statutory or case law." An examination of the Model Penal Code, progenitor of section 103, makes *212 clear that the competing harms defense applies only in the absence of explicit legislative provision. The Code expresses the following limitation that is implicit in section 103: (1) Conduct which the actor believes to be necessary to avoid an evil to himself or another is justifiable, provided that: ..... (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved: Model Penal Code § 3.02 (Tent.Draft No. 8, 1958). The comments to the Code state that in order for the defense to be considered, "[t]he issue of competing values must not have been foreclosed by a deliberate legislative choice, as when the law has dealt explicitly with the specific situation that presents the choice of evils." Id. Sections 104 and 108 of the Maine Criminal Code deal specifically and comprehensively with the use of force in defense of self, third persons and premises. A defendant who is unable to present an effective defense under these specific provisions is precluded from justifying his use of force under the general provision for competing harms. No error was committed in the present case. The remaining issues raised on appeal are lacking in merit and require no discussion. The entry is: Judgments of conviction affirmed. All concurring. NOTES [1] Both offenses are Class D crimes, which, when committed with the use of a dangerous weapon, are enhanced to Class C offenses. See 17-A M.R.S.A. § 1252(4) (1983). [2] Sprague testified that the road was impassable beyond the cemetery, except to trucks and four wheel drive vehicles. Witnesses for the defense testified that the road was passable and provided a means of egress. [3] The Model Penal Code, on which section 103 is based, explicitly contains the following limitation: "The necessity must be avoidance of an evil greater than the evil sought to be avoided by the law defining the offense charged." Comment, Model Penal Code § 3.02 (Tent.Draft No. 8, 1958). In the words of section 103, it is not readily apparent that the evil presented by Sprague outweighed the evil sought to be prevented by the statutes prohibiting criminal threatening and reckless conduct with the use of a dangerous weapon.	{ "pile_set_name": "FreeLaw" }
417 P.2d 339 (1966) George HINEX, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error. No. A-13892. Court of Criminal Appeals of Oklahoma. July 27, 1966. Scott Hendon, Shawnee, for plaintiff in error. Charles Nesbitt, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error. 340 BRETT, Judge. On December 15, 1964 George Hinex, hereinafter referred to as the defendant, was charged in the district court of Pottawatomie County with burglary in the second degree, after former conviction of a felony. He was tried before a jury, found guilty as charged, and was sentenced to serve not less than three years, and not more than nine years in the state penitentiary. "Motion in arrest of judgment and sentence, and for new trial" was duly filed and overruled. On January 21, 1965 judgment and sentence was pronounced, at which time defendant gave notice of intention to appeal to the Court of Criminal Appeals. Appeal bond was set by the court, which defendant did not make, so he was transported to the penitentiary to commence serving his sentence. His appeal was not perfected. On July 28, 1965, without aid of counsel defendant filed his petition for delayed appeal, which petition was dismissed for the reason it was not properly verified. Defendant refiled his petition. On November 3, 1965, for what appeared justified reasons, this Court directed the district court of Pottawatomie County to appoint appellate counsel for defendant, and to furnish him with a casemade for the purpose of appeal. Mr. Scott Hendon was appointed counsel, and defendant's appeal was lodged with this Court on December 29, 1965, and defendant's brief in support thereof was duly filed. The Attorney General thereafter filed answer brief. Defendant was charged with having broken into the APCO Filling Station in Tecumseh, in Pottawatomie County, and to have robbed a cigarette machine in the station. The State returned defendant's accomplice, Archie Lee McBrayer, from the state penitentiary to testify at defendant's trial. He testified to joining defendant in Seminole, Oklahoma, on the night in question. Soon thereafter he and defendant robbed a lumber yard in Seminole, and then proceeded on to Tecumseh, where they broke into the APCO Station. Witness stated that he remained in the defendant's automobile while defendant broke into, and robbed, the station. He testified that they then proceeded on to Shawnee, where they 341 planned to burglarize a laundromat, but their plan was interrupted when the laundromat lights were turned on. They then went to another filling station to commit burglary, but their plans were again interrupted; after which they proceeded to still another filling station with plans to burglarize that station. The attempted burglary at the laundromat was reported to the Shawnee police, who immediately proceeded to apprehend the burglars. McBrayer's testimony revealed that when he and the defendant were in the process of breaking into the last service station, defendant had reached the rear of the station when he heard the police car. When he heard the police car, he commenced to run from the scene. McBrayer remained in the defendant's automobile and proceeded to drive away. He was later apprehended in Seminole. While the police were driving around the vicinity of the laundromat they discovered the defendant running, and pursued him for some twenty minutes prior to apprehending him. When the defendant was taken to the police station, the police discovered he had the following currency in his pockets: 15 quarters, 22 dimes, two nickels, and three bills in the denominations of $1, $5, and $10 respectively. Before the police commenced to question the defendant, he stated that he was tired and if they would let him rest a little while, he would tell them all about it; so, the police gave defendant a drink of water and let him sleep. When defendant was awakened he proceeded to inform the officers concerning the APCO Filling Station robbery at Tecumseh. The police verified the fact that the station had been broken into and robbed, so defendant was held in custody. The APCO Filling Station operator and two boys who worked for him testified to the fact that the station was broken into and robbed. Witness Archie Lee "Jiggs" McBrayer corroborated the story told to the police by defendant. The Shawnee and Seminole Police, as well as a certain agent of the State Bureau of Investigation, testified as to their findings, as the result of their investigations, all to the satisfaction of the jury. Defendant introduced, as part of his defense, certain documents which indicated that he had been sent to Taft State Hospital, at Taft, Oklahoma, in July, 1963, and was discharged the same month as "nonpsychotic". Then on August 27, 1963 he was committed to the same hospital, diagnosed as "manic depressive". On November 28, 1963, defendant was released by the hospital to the care and custody of his father, as improved. On November 30, 1964 defendant was issued a "Certificate of Restoration to Mental Competency" and discharged by the medical authorities of the hospital. Defendant offers three reasons for reversal of this conviction: that defendant was permitted to waive preliminary hearing; error of the court in refusing to commit defendant for mental observation; and, error of the court in failing to strike the testimony of the accomplice, Archie Lee McBrayer. As to defendant's first point of contention, defendant was 21 years of age and no stranger to the courts. At this stage of the proceedings, this complaint comes too late, as this Court has held on numerous occasions that the entire preliminary proceedings may be waived. Such proceedings are waived by failure to file motion to quash or set aside the information, as provided by statute, before entering a plea on the merits; and after a plea of not guilty is entered upon arraignment in the district court, without filing a motion to quash the information, the question as to failure to have a preliminary examination is waived and may not be raised in the appellate court. Browning v. State, 31 Okl.Cr. 373, 239 P. 272; Parker v. State, Okl.Cr., 330 P.2d 1049; In re Application of Igo, Okl. Cr., 331 P.2d 969; Murff v. State, Okl.Cr., 379 P.2d 710. 342 We are of the opinion that the trial court did not err in permitting the defendant to waive preliminary hearing. Much of defense counsel's argument, in his brief, is directed to the fact that the trial court overruled his motion to have defendant committed to the State Mental Hospital for observation; all of which is based upon his previous commitments to Taft State Hospital. As pointed out by the Attorney General, the trial judge had ample opportunity to observe the defendant in court on several occasions. This Court has held on other occasions that the doubt referred to in Title 22 O.S.A. § 1162 is the doubt which must arise in the court's mind. While discussing this proposition, this Court said in Acuff v. State, Okl.Cr., 283 P.2d 856, 869: " * * [T]hat the doubt justifying the impaneling of a separate jury to try the issue of the defendant's present sanity, under the statue, must arise in the mind of the court from the facts and circumstances, which facts and circumstances should be of a substantial character." (Emphasis added) See also Maas v. Territory, 10 Okl. 714, 63 P. 960, 53 L.R.A. 814; Grayson v. State, 85 Okl.Cr. 266, 188 P.2d 696. The only authority cited by defense counsel is Marshall v. Territory, 2 Okl.Cr. 136, 101 P. 139. In that case, as in the many others considered by the Court, it is stated: "If there exists in the mind of the court a doubt as to the sanity of the defendant, as expressed in the statute, means if the court has been advised from a reputable source that is, if a statement is made to the court by credible person, or persons, under oath that the defendant is insane a doubt is raised. While there is a judicial discretion left to the court to determine whether there exists in the mind of the court a doubt, nevertheless such discretion should not be arbitrarily exercised, and its positive declaration and statement, as above indicated, that the defendant is insane necessarily presents a condition calling for investigation. The court may look to the source of information, the motive, opportunity, etc., of the party making it, but if the court denies the inquiry by a jury, it must do so under circumstances excluding all doubt of the truthfulness of the declaration that the defendant is insane." (Emphasis added) In the instant case, counsel's motion and application for defendant's commitment to Central State Hospital for treatment was not verified, under oath; nor was there any other affidavit attached to support his motion. We presume, since counsel does not set out otherwise, that the trial court considered the documents of commitment to Taft State Hospital, and the certificate of discharge, when the motion was overruled. These items were submitted to the jury when defendant stood trial on this charge. This Court, in Laslovich v. State, Okl.Cr., 377 P.2d 977, 981, discussing this proposition, quoted with approval from Bingham v. State, 82 Okl.Cr. 5, 165 P.2d 646, as follows: "Before a trial court empanels a separate jury to try the issue of defendant's present sanity, under the Statute, a doubt must arise in the mind of the court. * * * (B)ut the existence of a doubt as to defendant's sanity must arise from facts and circumstances of a substantial character. In other words, there must exist reasons to believe that the claim of insanity made on behalf of the accused is genuine and not simulated as a means of defeating or delaying the law's penalties in cases where all other means of evading punishment would seem hopeless." (Emphasis added) We are of the opinion that the trial court sufficiently satisfied the requirements of Title 22 O.S.A. §§ 1171 and 1172, when defendant's motion for observation was presented and overruled. Those sections provide, in substance, that the application may be filed thereby suspending the trial until 343 such application is ruled on by the district court. Section 1172 provides further: "In the event the District Court determines that there is a doubt as to the present sanity of the individual, he shall be ordered committed to a State Hospital * *." We consider that the doubt referred to in section 1172 to be the same "doubt" considered in Title 22 O.S.A. § 1162, which provides for a jury trial to determine the defendant's sanity, as hereinbefore discussed. We believe, also, that the court acted within its discretion, when it considered: the nature of the alleged insanity; the basis for the previous commitments, that is, the violence of defendant prior to his previous examinations which precipitated those examinations and commitments, as compared to the lack of such condition at the time of his arrest and confinement in jail on this charge. Likewise, his past medical history reflected tendencies to commit suicide, which are not reflected in this record, as existing at the time of this confinement. We are of the opinion that these were some of the facts and circumstances of substantial character, to which this Court has previously referred, as being those which the court should consider. Further, we are of the opinion that when the trial court included four separate instructions concerning the sanity of the defendant, in face of what had transpired prior thereto, the question of defendant's sanity was considered by the jury. We are therefore of the opinion that this defendant received due process of law, insofar as these matters were submitted to, and considered by the jury. The jury, as well as the court, observed this defendant and was in a position to evaluate his apparent condition, in face of his contentions. Each case of this nature must be considered on its own merits, and under these facts and circumstances the trial court did not commit error, when defendant's motion was overruled. As to defendant's third contention, that the testimony of his accomplice should have been stricken, we are of the opinion that the trial court properly overruled defendant's motion to strike. After reviewing this record, we are satisfied that the accomplice's testimony was sufficiently corroborated to sustain defendant's conviction. See: Scott v. State, 72 Okl.Cr. 305, 115 P.2d 763; and Blumhoff v. State, 72 Okl. Cr. 339, 116 P.2d 212. Finding no error substantially prejudicing the rights of defendant, the judgment and sentence of the district court of Pottawatomie County is sustained. BUSSEY, P.J., and NIX, J., concur.	{ "pile_set_name": "FreeLaw" }
This version includes the errata dtd 4Sep07 - e UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO . 05-2302 EDMUND WOEHLAERT , JR ., APPELLANT , V. R. JAMES NICHOLSON , SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Decided August 24, 2007 ) Michael R. Viterna, of Northville, Michigan, was on the brief for the appellant. Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel, Carolyn F. Washington, Deputy assistant General Counsel; and Brent A. Bowker, all of Washington, D.C., were on the brief for the appellee. Before LANCE, DAVIS, and SCHOELEN, Judges. LANCE, Judge: The appellant, Edmund Woehlaert, Jr., through counsel, appeals a June 16, 2005, decision of the Board of Veterans' Appeals (Board). In that decision, the Board denied the appellant's request to reopen his previously disallowed service-connection claim for a heart condition because new and material evidence had not been presented. Record (R.) at 1-12. This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Two questions are presented on appeal. First, if VA performs a medical examination of a claimant after the regional office (RO) reopens a previously adjudicated claim, may the Board nevertheless decide not to reopen that claim on appeal? Second, if the Board can decide not to reopen such a claim and the Court determines that it has properly done so, is the adequacy of VA's new medical examination a viable issue on appeal? For the reasons stated herein, the Court holds that the Board must review the RO's decision to reopen a previously disallowed claim even if a new medical examination of a claimant is performed pursuant to 38 U.S.C. § 5103A(d). The Court further holds that if the Board properly decides not to reopen such a claim, the adequacy of any new VA medical examinations conducted pursuant to 38 U.S.C. § 5103A(d) is not a viable issue on appeal. Accordingly, the Court will affirm the Board's decision. I. FACTS The appellant served in the U.S. Army from April 1943 to September 1943. R. at 16, 23, 35. In June 1943, he was hospitalized for coughing, shortness of breath, a severe headache, generalized weakness, and a cold of several weeks' duration. R. at 31-34. A heart murmur was detected during his initial examination. R. at 31. The appellant remained in the hospital until his discharge from service. R. at 18-20, 35-43. His final, primary diagnosis was "neurasthenia, severe, caused by psychoneurosis." R. at 16, 23; see STEADMAN 'S MEDICAL DICTIONARY 1206 (27th ed. 2000) (defining "neurasthenia" as "[a]n ill-defined condition, commonly accompanying or following depression, characterized by vague fatigue believed to be brought on by psychological factors"). The Board of Medical Officers (BMO) later confirmed this diagnosis. R. at 22-23. The BMO also concluded that this was a preexisting and permanently disabling condition, rendering the appellant unfit for further duty. Id. The appellant was discharged shortly thereafter. R. at 23. His service medical records do not include a diagnosis for a heart condition or rheumatic fever. In February 1955, a private physician, Joseph B. Conti, M.D., diagnosed the appellant with a heart condition, mitral stenosis. R. at 49. Two months later, a VA examiner diagnosed the appellant with "organic heart disease, probably rheumatic" and "psychoneurosis, anxiety and conversion, moderately severe, of life long duration." R. at 60. In May 1955, the Detroit, Michigan, RO denied the appellant's claims for service connection for a heart condition and a nervous disorder. R. at 62. The RO found that the appellant had not incurred or aggravated either of those disabilities in service. Id. The appellant did not appeal. The appellant has received medical treatment for his heart condition since the RO initially denied his claim. R. at 69-71, 78-90, 120, 220-21. VA has received some of those treatment records as well as additional lay evidence, including a 1974 letter from the appellant's wife and two personal 2 statements from the appellant that were drafted during the pending adjudication. R. at 64, 66, 69, 78, 87, 92, 120, 220-23, 244. In May 2002, the appellant sought to reopen his heart disorder claim, because he "believe[d] [he] was hospitalized while in service for rheumatic fever." R. at 92. In June 2003, the RO reopened the appellant's claim, but denied it on the merits. R. at 212-15. The appellant appealed. R. at 217-18. In December 2003, the appellant received two new VA medical examinations. R. at 220-24. A decision review officer later denied the appellant's claim on the merits. R. at 228-42. In June 2005, the Board issued the decision here on appeal. R. at 1-12. After reviewing the evidence of record, the Board denied the appellant's request to reopen his heart disorder claim. R. at 10-12. The Board found that the evidence presented since the RO's May 1955 decision was not new and material. Id. II. ANALYSIS The appellant raises three arguments on appeal. First, he argues that the Board had to decide the merits of his claim, because the RO reopened the claim and the Secretary performed two new medical examinations during the pending adjudication. Appellant's Brief (Br.) at 14-15. Second, he argues that the Board erroneously found that new and material evidence had not been presented, and that inadequate reasons or bases were provided in support of its decision. Br. at 7-14, 16. Finally, he argues that the Board erroneously failed to find that VA violated the duty to assist when it provided an inadequate medical examination pursuant to 38 U.S.C. § 5103A(d)(1)-(2) and 38 C.F.R. § 3.159(c)(4) (2006). Br. at 15. The Secretary has responded by defending the Board's decision in all respects. A. The Board's Authority To Deny a Request To Reopen a Previously Adjudicated Claim The appellant argues that the RO decision denying his claim should be reopened under the new and material evidence exception to the rule of finality. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156(a) (2006); see Suttman v. Brown, 5 Vet.App. 127, 135-36 (1993). This exception allows a veteran to reopen a previously disallowed claim if new and material evidence is submitted with respect to that claim. 38 U.S.C. §§ 5108, 7105(c). A claim to reopen requires a sequential analysis of two questions. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). Has the necessary new and material evidence been presented to justify reopening the claim? Manio, 1 Vet.App. at 145. If so, 3 is the veteran entitled to an award of benefits based on all of the evidence of record? Id. The first question, whether new and material evidence has been presented, is a jurisdictional issue for the Board. See Prillaman v. Principi, 346 F.3d 1362 (Fed. Cir. 2003); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Butler v. Brown, 9 Vet.App. 167 (1996). Therefore, it must be asked and answered by the Board de novo whenever a claim to reopen is filed. See Barnett, 83 F.3d at 1383. More importantly, an unfavorable answer to this question requires a summary dismissal of the claim, i.e., without consideration of the second question or any other issues concerning the merits. A review of the relevant cases in this area confirms this conclusion. In Barnett v. Brown, a case involving the attempted reopening of a claim subsumed in a final Board decision, see 38 U.S.C. § 7104(b), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "the [Board] is required to determine whether new and material evidence has been presented before it can reopen a claim and re-adjudicate service connection or other issues going to the merits." 83 F.3d at 1384. The Federal Circuit further held that "[w]hat the regional office may have determined in this regard is irrelevant[,] . . . [because] the Board's jurisdiction [does not vary] according to how the regional office ruled." Id. at 1383. In Butler v. Brown, supra, we later concluded that "[Barnett] teaches that the Board must preliminarily decide that new and material evidence has been presented in a case it has previously adjudicated, before addressing the merits of the claim." Id. at 171. Finally, in Jackson v. Principi, the Federal Circuit held that "the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board." 265 F.3d 1366, 1369 (Fed. Cir. 2001). These decisions eliminate any doubt as to the jurisdictional nature of the new and material evidence requirement. Turning to the merits of the first issue presented, the appellant argues that because "the RO reopened [his] claim . . . and undertook additional medical development in the form of conducting two . . . examinations thereafter, the Board was obligated to conduct a merits evaluation of the claim." Br. at 14. We disagree. As previously discussed, the new-and-material-evidence requirement is jurisdictional. See Prillaman, Jackson, Barnett, and Butler, all supra. Therefore, the Board had to decide whether new and material evidence had been presented, regardless of the RO's prior decision or subsequent actions. Barnett, 83 F.3d at 1383. This does not mean that the Board 4 can simply ignore the evidence developed after the RO reopens a claim. See 38 U.S.C. § 7104(a) (requiring the Board to decide each claim "based on the entire record in the proceeding and upon consideration of all evidence and material of record"). To the contrary, the Board must consider all of the evidence of record, including any new medical examinations performed after the RO reopens a claim, when determining whether new and material evidence has been presented. Id. That being said, the Board cannot even consider–much less decide– the merits of a previously adjudicated claim once it finds such evidence lacking. Butler, 9 Vet. App. at 171 ("[O]nce the Board finds that no [new and material] evidence has been offered, that is where the analysis must end."). For these reasons, the Court holds that even though the RO reopened the appellant's claim and ordered two new medical examinations, the Board was not bound to decide the merits of his claim. B. The Board's New-and-Material-Evidence Determination The Court reviews the Board's determination of whether new and material evidence has been presented since a prior adjudication under the "clearly erroneous" standard. Elkins v. West, 12 Vet.App. 209, 217 (1999) (en banc); see also Prillaman, 346 F.3d at 1367 (upholding the application of the "clearly erroneous standard" of review to the Board's new-and-material-evidence determinations); Fortuck v. Principi, 17 Vet.App. 173, 178-79 (2003) (Board determinations as to whether new and material evidence has been presented are reviewed under the "clearly erroneous" standard of review). "New and material evidence" is defined as follows: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2006) (effective August 29, 2001); Voracek v. Nicholson, 421 F.3d 1299 (Fed. Cir. 2005). The RO originally denied the appellant's claim because there was no evidence "of in- service incurrence or aggravation" of heart disease. See Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995). Therefore, before the merits of his claim can be readjudicated, the appellant must present new evidence that, "by itself or when 5 considered with previous evidence of record, relates to an unestablished fact necessary to" and "raise[s] a reasonable possibility of" substantiating the in-service incurrence or aggravation of his heart disease. 38 C.F.R. § 3.156(a); see Voracek v. Nicholson, 421 F.3d 1299 (Fed. Cir. 2005). The appellant, citing the new medical records and lay statements he has submitted since the prior adjudication, argues that such evidence has been presented here. Br. at 7-14, 16. However, the Board reviewed this evidence and found it to be "merely cumulative" of the evidence already of record. R. at 10-12. The Board further concluded that this evidence did not relate to the RO's original basis for denying the appellant's claim. Id. Because we are not "'left with the definite and firm conviction that a mistake has been committed,'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)), the Court holds that the Board's determination that new and material evidence has not been presented is not clearly erroneous. First, we cannot conclude that the new medical evidence presented by the appellant either relates his heart disease to his military service, see 38 C.F.R. § 3.303(a), or otherwise raises a reasonable possibility of demonstrating the in-service incurrence or aggravation of his heart condition. 38 C.F.R. § 3.156(a). The 1974 letter from the appellant's private physician mentions only his treatment of the appellant from October 1973 onward. R. at 64. Likewise, the appellant's July 1976 hospital discharge summary only provides information about a recent period of treatment, and the report specifically dates the onset of his heart disease to 10 years after his discharge from service. R. at 69 (stating the appellant has a "[h]istory of rheumatic heart disease since he was 28 years old"). The appellant's March 1979 VA examinations also date his initial diagnosis for heart disease to 1953 or 1954, a decade after his military service had ended. Cf. R. at 81 with R. at 87. The October 2002 hospital discharge summary includes no discussion of the appellant's military service (R. at 120), and the December 2003 VA heart examination report states that "[t]here [i]s no documentation of rheumatic fever, arthritis or any heart condition" in service. R. at 220. Having been given no indication that a relationship exists between the appellant's heart condition and his military service, we simply cannot conclude that the Board clearly erred in finding that the medical evidence submitted was not material. The appellant's new lay evidence is similarly deficient. The 1974 letter from the appellant's wife only provides new information about his heart condition from 1946 onward. R. at 66. We also 6 agree with the Board's finding that the appellant's statements that he had rheumatic fever in service are immaterial. Unlike varicose veins, Barr v. Nicholson, Vet.App. , No. 04-0534 (June 15, 2007), or a dislocated shoulder, Jandreau v. Nicholson, F.3d , No. 2007-7029 (Fed. Cir. July 3, 2007), rheumatic fever is not a condition capable of lay diagnosis. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Moreover, the appellant's service medical history is meticulously documented, and it does not include a rheumatic fever diagnosis. R. at 16, 18-20, 22-23, 31-43. In addition, none of the medical opinions of record establish an affirmative relationship between his alleged contraction of rheumatic fever, his heart condition, and his military service. Cf. Jandreau, slip op. at 6-8. Finally, the RO's May 1955 decision denying the appellant's claim noted that his heart disease was "probably rheumatic." R. at 62. For these reasons, the Court holds the Board did not clearly err in finding that the appellant has not presented new and material evidence since the prior adjudication of his claim. The represented appellant also argues that "the Board failed to support its conclusion with adequate reasons or bases." Br. at 16. The Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; that statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate informed review in this Court. See 38 U.S.C. 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza, 7 Vet.App. at 506; Gilbert, supra. The appellant's entire argument on this issue consists of the single sentence paraphrased above. This Court has consistently held that it will not address issues or arguments that counsel for the appellant fails to adequately develop in his or her opening brief. See Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (stating that an appellant must "plead with some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant's arguments"); Cromer v. Nicholson, 19 Vet.App. 215, 219 (2005) (holding that the Court will not address any argument "in the absence of the necessary factual predicate"); see also U.S. VET. APP. R. 28(a)(5). The Court therefore rejects the appellant's argument on this basis alone. 7 C. The Medical Examination Component of the Duty to Assist Having concluded that the Board did not clearly err in not reopening the appellant's claim, we must now determine whether we can review the adequacy of the Secretary's new medical examinations of the appellant. VA has a general duty to assist a veteran in developing his or her claim. See 38 U.S.C. §§ 5103; 5103A; see also 38 C.F.R. § 3.159. This includes providing a current medical examination if one "is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1)-(2); 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet.App. 79 (2006). However, the Secretary is not required to provide a new medical examination of a claimant seeking to reopen a previously and finally disallowed claim unless new and material evidence had been presented. See Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-1343 (Fed. Cir. 2003) (holding that "in the absence of new and material evidence, VA is not required to provide assistance to a claimant attempting to reopen a previously disallowed claim, including providing a medical examination or obtaining a medical opinion"). The Secretary had a conditional or provisional duty to provide the appellant with new medical examinations, but this duty was extinguished once the Board found that new and material evidence had not been presented. In this case, the RO properly ordered the Secretary to conduct new medical examinations of the appellant after erroneously concluding that sufficient new and material evidence had been presented to warrant reopening his claim. R. at 212-15. However, the appellant later appealed this decision to the Board. R. at 217-18. In so doing, the appellant authorized the Board to issue a new ruling on the RO's decision to reopen his claim. See Bernard, 4 Vet.App. at 390-91. When the Board later found that new and material evidence had not been presented, the Secretary's duty to provide the appellant with new examinations was extinguished, see Paralyzed Veterans of Am., supra, and the issue of the inadequacy of his new medical examinations became moot because the Board was barred by statute from considering any "issues going to the merits." Barnett, 83 F.3d at 1384. For these reasons, we hold that once the Board decided that the appellant's claim could not be reopened, the Secretary's conditional duty to provide the appellant with a new medical examination was extinguished. We further hold that the adequacy of the Secretary's new medical examinations became moot, because a readjudication of the merits of the appellant's claim was barred by statute. See Butler, 9 Vet.App. at 171 ("[O]nce the Board finds that no [new and material] evidence has been offered, that is where the analysis must end."); see also 38 8 U.S.C. §§ 5108, 7104(b), 7105(c); 38 C.F.R. § 3.156(a). As the appellant has not argued on appeal that the Secretary violated his duty in any other respect, the Court holds that the Board did not err in failing to find the Secretary in violation of the duty to assist. Our holding today is distinguishable from the Court's recent decision in Barr, supra. In that case, the claim before the Secretary had not been previously adjudicated. Therefore, the Secretary's duty to provide the claimant with a medical examination was not contingent upon his presentation of new and material evidence, and the merits of his claim was not subject to a jurisdictional bar. In those circumstances, we held that "once the Secretary undertakes the effort to provide an examination when developing a service-connection, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided." Id., slip op. at 10. However, in this case, any development of the merits of the appellant's claim was subject to a jurisdictional bar, the one applicable to the readjudication of final VA decisions. And unless that bar was properly removed, the Secretary had no obligation to develop–and the Board could not consider–the merits of his claim Finally, as previously discussed, we do not hold that the Secretary's examinations of the appellant are irrelevant. The Board must consider all of the evidence of record when determining whether new and material evidence has been presented, including any medical examinations obtained by the RO prior to its decision. 38 U.S.C. § 7104(a); see Falzone v. Brown, 8 Vet.App. 398, 404-06 (1995); Butler, 9 Vet.App. at 171 (explaining that "[t]he Board's review of the evidence of record is necessary to determine whether new and material evidence has been submitted"). Rather, we hold that this Court's obligation to ensure the Secretary's compliance with this duty does not arise and could serve no purpose when the adjudication of the merits of a claim is barred. Accordingly, the Court will affirm the Board's decision. 9 III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's June 16, 2005, decision is AFFIRMED. 10	{ "pile_set_name": "FreeLaw" }
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) RANDOLPH S. KOCH, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-2111 (PLF) ) Civil Action No. 11-1645 (PLF) ELISSE WALTER, Chairman, ) Civil Action No. 12-0301 (PLF) Securities and Exchange Commission, ) et al., ) ) Defendants.1 ) ____________________________________) MEMORANDUM OPINION AND ORDER This matter is before the Court on the following motions: (1) defendant’s motion to dismiss or, in the alternative, for summary judgment in Koch v. Walter, Civil Action No. 09-2111; (2) defendant’s motion to dismiss in Koch v. Holder, Civil Action No. 11-1645; and (3) defendants’ motion to dismiss, or, in the alternative, for summary judgment in Koch v. Walter, et al., Civil Action No. 12-0301. Plaintiff Randolph S. Koch, although a lawyer, is acting pro se in the three cases listed above as well as in three additional cases pending before this Court. See Civil Action No. 08-1521, Civil Action No. 10-0150, Civil Action No. 12-1934.2 Mr. Koch has failed to respond 1 Elisse Walter, the current Chairman of the Securities and Exchange Commission, has been substituted for former Chairman Mary L. Schapiro pursuant to Rule 25(d) of the Federal Rules of Civil Procedure in Civil Action Nos. 09-2111 and 12-0301. 2 The government submitted dispositive motions in Civil Action Nos. 08-1521 and 10-0150, and, after a series of extensions, Mr. Koch responded to these motions on February 8, 2013. to the dispositive motions listed above, despite numerous extensions. See April 25, 2012 Order, Civil Action Nos. 09-2111 and 11-1645 (finding that “[t]he time has come for Mr. Koch to pursue his cases or abandon them”); June 25, 2012 Order, Civil Action Nos. 09-2111 and 11-1645 (setting briefing schedule); Minute Orders dated August 16, 2012 and September 19, 2012, Civil Action No. 09-2111 (granting extensions); November 2, 2012 Minute Order, Civil Action No. 12-0301 (granting extension); Minute Orders dated November 19, 2012, November 28, 2012, Civil Action No. 11-1645 (granting extensions); January 4, 2013 Memorandum Opinion and Order, Civil Action No. 09-2111 (denying plaintiff’s Rule 56(d) motion and ordering plaintiff to respond on or before February 8, 2013); January 7, 2013 Minute Order, Civil Action No. 11-1645 (granting extension but stating that no extensions of time would be granted beyond January 11, 2013); January 7, 2013 Minute Order, Civil Action No. 12-0301 (granting extension but stating that no extensions would be granted after January 25, 2013). Because the defendant’s motion could potentially dispose of this case, the Court will advise this pro se plaintiff of a plaintiff’s obligations under the Federal Rules of Civil Procedure and the Local Civil Rules of this Court. See Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988); Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). The plaintiff’s attention therefore is directed to Local Civil Rule 7(b), which states: Within . . . such . . . time as the Court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to [a] motion. If such a memorandum is not filed within the prescribed time, the Court may treat the motion as conceded. LOC. CIV . R. 7(b). 2 Thus, the Court may treat as conceded any motion not opposed within the time limits set forth in the ordering paragraph of this Memorandum Opinion and Order. Alternatively, the Court may consider on the merits any motion not opposed within the time limits set forth in this Order. As a result, any failure to respond to the defendants’ pending motions to dismiss or for summary judgment carries with it the risk that the plaintiff’s complaints will be dismissed or that judgment will be entered for defendants. Accordingly, it is hereby ORDERED that, by February 28, 2013, the plaintiff shall respond to defendants’ dispositive motions: (1) defendant’s motion to dismiss or, in the alternative, for summary judgment in Civil Action No. 09-2111 [Dkt. 8]; (2) defendant’s motion to dismiss in Civil Action No. 11-1645 [Dkt. 6]; (3) defendants’ motion to dismiss, or, in the alternative, for summary judgment in Civil Action No. 12-0301 [Dkt. 15]. If the plaintiff does not respond by that date, the Court may treat the defendant’s motion as conceded. SO ORDERED. /s/________________________ PAUL L. FRIEDMAN DATE: February 15, 2013 United States District Judge 3	{ "pile_set_name": "FreeLaw" }
694 F.2d 281 224 U.S.App.D.C. 161 Portsmouth Terminals, Inc.v.Federal Maritime Com'n 81-2374 UNITED STATES COURT OF APPEALS District of Columbia Circuit 11/9/82 1 F.M.C. AFFIRMED	{ "pile_set_name": "FreeLaw" }
NOT RECOMMENDED FOR PUBLICATION File Name: 20a0321n.06 No. 19-3377 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Jun 03, 2020 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR TROY DAVIS, ) THE NORTHERN DISTRICT OF ) OHIO Defendant-Appellant. ) ) BEFORE: BOGGS, GRIFFIN, and LARSEN, Circuit Judges. BOGGS, Circuit Judge. Troy Davis appeals two enhancements applied to his sentence on thirty-three counts related to a drug conspiracy: one enhancement for “maintain[ing] a premises for the purpose of . . . distributing” drugs, U.S.S.G. § 3B1.1(a), and another for being the “organizer or leader of a criminal activity that involved more than five participants . . . .” U.S.S.G. § 3B1.1(a). We readily affirm the premises enhancement—the evidence shows clearly that Davis was using his home as a central location in his drug dealing. The leadership enhancement is a closer question. For this enhancement to apply, the court must find that a defendant directed at least one other participant in the criminal scheme. Despite some initial problems, however, the district court did in fact make this finding. Therefore, we affirm this enhancement as well. FACTUAL AND PROCEDURAL HISTORY Troy Davis (“Davis”) dealt and distributed cocaine, cocaine base (crack), fentanyl, various fentanyl analogues, and heroin in Elyria, Ohio. Following an investigation that involved 45,000 Case No. 19-3377, United States v. Davis recorded phone calls, the use of multiple criminal informants, controlled buys, and multiple arrests of Davis himself when he was carrying drugs, Davis and twenty-four confederates (several of whom were his cousins) were arrested and charged in a fifty-nine count indictment.1 On November 14, 2018, Davis pled guilty without a plea agreement to the thirty-three counts in which he was charged. An uncontested portion of the record describes Davis’s offense conduct as conspiring “to distribute 100 grams of Furanyl Fentanyl, 280 grams of cocaine base, 500 grams of cocaine, 100 grams of heroin, 40 grams of Fentanyl, and 10 grams of Carfentanil and various other types of Fentanyl.” After the Probation Office submitted its Presentence Investigation Report (“PSR”), Davis objected to both the organizer enhancement and the premises enhancement, as well as another enhancement that was dependent upon the organizer enhancement.2 Davis also objected to three factual statements in the PSR: that another defendant, Fennell, had “sold ‘for’ Davis”; “that sources confirmed activities ‘executed on behalf of’ Davis”; and that Davis “has a large network of couriers, runners, and street traffickers[.]” Davis’s sentencing hearing was held on April 9, 2019. As described below, the proceedings were not a model of clarity. In the end, the district court found that the enhancements applied and, after making several other calculations not at issue in this appeal, sentenced Davis to 151 months in prison, which was at the highest end of the applicable advisory Guidelines range of 121 to 151 months. The government had argued, inter alia, that because some other members of the 1 For clarity, we refer to Troy Davis as “Davis” and the other Davises who are involved in this case by their full names, e.g., “Elonzo Davis.” 2 This was a two-level enhancement under U.S.S.G. § 2D1.1(b)(16)(E) that applies when, provided the defendant has already been found to have had an aggravating role in the offense (here, an organizer or leader) under § 3B1.1, he is also found to have engaged in a pattern of criminal conduct as a livelihood. 2 Case No. 19-3377, United States v. Davis conspiracy who were not as important as Davis would be receiving career-offender sentences due to their more extensive criminal histories, it was important that Davis be given a sentence at the top of the range to reflect his more senior role. Davis timely appealed. STANDARD OF REVIEW A claim that a district court improperly calculated the applicable guidelines range, including that it improperly applied a sentencing enhancement, presents a question of procedural reasonableness. See United States v. Rayyan, 885 F.3d 436, 440-41 (6th Cir. 2018). The government’s underlying burden at sentencing is to “prove by a preponderance of the evidence that a particular sentencing enhancement applies.” United States v. Davis, 924 F.3d 899, 902 (6th Cir. 2019). “The district court must provide a statement of reasons sufficient ‘to satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.’” United States v. Kamper, 748 F.3d 728, 739 (6th Cir. 2014) (alterations in original) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). Davis and the government disagree as to whether he preserved his claim of error as to the premises enhancement. If the claim was correctly preserved, we review the district court’s factual findings for clear error and its legal conclusions de novo. See Davis, 924 F.3d at 902. We review unpreserved procedural-reasonableness claims, on the other hand, for plain error. See United States v. Jackson, 877 F.3d 231, 236 (6th Cir. 2017); United States v. Gibbs, 626 F.3d 344, 349 (6th Cir. 2010). Davis undisputedly did preserve his claim of error as to the organizer enhancement. The application of an organizer or leader enhancement is subject to a special standard of review designed to reflect the reality that that the “trial judge is most familiar with the facts and is best 3 Case No. 19-3377, United States v. Davis situated to determine whether someone is or is not a ‘leader’ of a conspiracy.” United States v. Washington, 715 F.3d 975, 983 (6th Cir. 2013). Therefore, we review the district court’s “legal conclusion that a person is an organizer or leader under § 3B1.1 deferentially, and its factual findings for clear error.” United States v. Sexton, 894 F.3d 787, 794 (6th Cir. 2018) (cleaned up). ANALYSIS This appeal raises two questions. Did the district court err in applying a four-level enhancement for being an “organizer or leader of a criminal activity that involved five or more participants,” pursuant to U.S.S.G. § 3B1.1(a)?3 And did the district court err by applying a two- level enhancement for “maintain[ing] a premises for the purpose of . . . distributing” drugs, pursuant to U.S.S.G. § 2D1.1(b)(12)? We examine each in turn. A. Organizer Enhancement Section 3B1.1(a) of the Sentencing Guidelines provides for a four-level increase “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive . . . .” U.S.S.G. § 3B1.1(a). There is no doubt that the Elyria drug ring involved more than five people: as noted previously, twenty-four others were indicted with Davis. Two comments in the guidelines play a crucial role in understanding what, beyond this, is required for § 3B1.1(a) to apply. Comment four to § 3B1.1 reads, in pertinent part: In distinguishing a leadership and organizational role from one of mere management or supervision, titles such as “kingpin” or “boss” are not controlling. Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree 3 Upon this question depends another enhancement, under U.S.S.G. § 2D1.1(b)(16)(E). This applies when, if a defendant has already been found to have had an aggravating role in the offense (here, an organizer or leader) under § 3B1.1, he is also found to have engaged in a pattern of criminal conduct as a livelihood. There is no question that Davis engaged in a pattern of criminal conduct as a livelihood, so this enhancement will stand or fall based on the underlying organizer-or-leader enhancement. 4 Case No. 19-3377, United States v. Davis of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy. U.S.S.G. § 3B1.1 cmt. n.4. “A district court need not find each factor in order to warrant an enhancement.” United States v. Castilla-Lugo, 699 F.3d 454, 460 (6th Cir. 2012). Davis clearly qualifies as a leader or organizer under this comment. Davis was repeatedly described as the “hub” in a “hub-and-wheel-spoke-type conspiracy.” In the Probation Office’s response to Davis’s objection to the leadership enhancement, the probation officer wrote that: The defendant’s role as a leader included ordering supplies of drugs, discussing prices, cooking cocaine into crack, traveling out of state to pick up drugs for redistribution, taking sale orders from distributors, and operating several homes that were used specifically to manufacture and distribute drugs. The court read this portion of the probation officer’s response into the record at the sentencing hearing, and, with one exception, it is not challenged before us today.4 This description of Davis’s role tracks many of the factors in comment four—most notably, “the degree of participation in planning or organizing the offense . . . .” And as the district court found, Davis also played a significant role in recruitment. But another comment, note two, creates a problem. This comment instructs that “[t]o qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants.” U.S.S.G. § 3B1.1 cmt. n.2 (emphasis added). The comment further makes it clear by implication that the enhancement does not apply to one who “exercised management responsibility over the property, assets, or activities of a criminal organization” but “did not organize, lead, manage, or supervise another participant[.]” 4 The exception is the phrase regarding the “homes used . . . used specifically to manufacture and distribute drugs[,]” which goes to the premises sentencing enhancement. See below, Section III.B. 5 Case No. 19-3377, United States v. Davis Ibid. We have repeatedly recognized, therefore, that “a defendant must have exerted control over at least one individual within a criminal organization for the enhancement of § 3B1.1 to be warranted.” United States v. Gort-DiDonato, 109 F.3d 318, 321 (6th Cir. 1997) (emphasis added); see, e.g., United States v. Vandeberg, 201 F.3d 805, 811 (6th Cir. 2000) (same); United States v. Kamper, 748 F.3d 728, 748 (same); United States v. Turner, 738 F. App’x 856, 861 (6th Cir. 2018) (same). Davis contended at the sentencing hearing that although he had “occup[ied] an important role in . . . this conspiracy[,]” he had not exercised control over anyone else. Instead, he characterized his coconspirators “as independent contractors,” by pointing to the government’s own description of the conspiracy. As the AUSA put it, this was “a hub-and-wheel-spoke-type conspiracy as opposed to a pyramid structure. The center of the hub and wheel is Mr. Davis.” The other participants relied on Davis to use “[his] connections to . . . suppliers in order to get his drugs.” Notably, in dealing with the other participants, Davis did not, the government acknowledged, take an authoritarian tone: I’ll concede Mr. Thompson’s point that these are not the type of calls where he’s saying, “Hey, you, do this,” or “Hey, you, do that.” This is a much more nuanced argument where it requires basically Mr. Davis to just do what he does and network and make connections so that these low-level, mid-level distributors who are on the street, who sometimes are often trying to buy drugs for themselves from Mr. Davis, are relying on his network and connections to then procure the larger amounts of drugs. Similarly, at another point the AUSA said that: [Davis i]s explaining, not the type of direction maybe I would give a subordinate, but the type of direction saying, “Hey, Mr. Hobson, you know, I can’t get to do X, Y or Z, so I need your assistance in making this transaction happen.” 6 Case No. 19-3377, United States v. Davis (Emphasis added.) These descriptions enabled Davis to argue, below and on appeal, that the conspiracy consisted of buyer-seller relationships, which are insufficient grounds for the leadership enhancement. As we shall see, there was sufficient evidence to contradict this characterization and show that Davis, in fact, had directed other participants. However, there was delay and confusion in discussing this evidence at sentencing because both the prosecutor and the court were not always clear as to the requirements for applying U.S.S.G § 3B1.1. The AUSA extensively analyzed Davis’s behavior in terms of a comment to U.S.S.G § 3B1.2 (concerning mitigating-role reductions) rather than § 3B1.1.5 More concerning, the court itself was unsure whether it needed to find that Davis had directed another participant in order to apply the organizer enhancement. At a crucial moment, the defense attorney pointed out to the court that “[s]upplier and manager/leader are different” and clarified that he was arguing that Davis was a supplier but not a manager/leader. The court responded, in part, that: “Without his source of drugs, those folks who are the spokes aren’t obtaining the drugs. That’s another description of a leader of a criminal drug conspiracy.” Similarly, the court noted that in sentencing Davis’s codefendants, it had seen each of them identify Davis as the leader of the conspiracy–but then, minutes later, rephrased that statement as “almost each one of them identifies Mr. Davis as the primary supplier.” 5 Section 3B1.2 details offense-level reductions to be granted in recognition of a defendant’s lesser responsibility (“Mitigating Role”) in the criminal enterprise, just as § 3B1.1 concerns enhancements for more significant participation, e.g. as an organizer or leader (“Aggravating Role”). Therefore, the factors to be considered in many ways mirror one another: e.g., both comment 4 to § 3B1.1 and comment 3(C) to § 3B1.2 require the court to consider the defendant’s decision-making authority. As a result, the discussion yielded facts and analysis that could be applied to the question that was actually before the court. Nevertheless, the extensive discussion of the wrong standard is troubling. 7 Case No. 19-3377, United States v. Davis Davis’s attorney repeatedly returned the discussion to the threshold requirement for the enhancement. Due to this, the court finally ruled that Davis had indeed “exerted control” over another participant: [J]ust today I’ve heard exerting control. “Get the drugs from your son. I’m not giving Shorty any more dope.” That’s an exertion of control. The withholding of supply is an exertion of control. And that’s just what I’m recalling from what I’ve heard in the last 15 minutes. The court here appears to be referring to two different incidents that had recently been described. The first was the prosecutor’s statement, a few minutes before, that: In paragraph 320, Your Honor, Mr. Davis again instructs Alvin Fennell when he asks for some drugs, Mr. Davis says, “Call your son.” In other words, I just gave Alkeem Fennell some drugs. If you’re looking for those, talk to him, don’t talk to me, I’m busy right now or can’t otherwise fulfill this sale. Paragraph 320 of the indictment indeed reads: On or about February 4, 2018, at approximately 6:45 p.m., TROY DAVIS received an incoming text message from ALVIN FENNELL on the telephone. The text message says, “I need a gram (of cocaine) I got the money.” At approximately 9:34 p.m., TROY DAVIS received an incoming call from ALVIN FENNELL on the telephone. During the conversation, ALVIN FENNELL said, “I need two of them.” TROY DAVIS said, “Call your son (ALKEEM FENNELL).” [6] This, then, is what the court meant by “Get the drugs from your son.” The next phrase, “I’m not giving Shorty any more dope,” appears to refer to a separate incident, recited in paragraph 171 of the indictment, in which Davis declared that, “I’m not giving Shorty [William Solomon] no drugs,” because Solomon had mishandled a previous supply.7 6 [The indictment appears to use parentheses where standard usage would have brackets.] 7 Paragraph 171 of the indictment gives the complete story: On or about November 27, 2017, at approximately 12:22 p.m., TROY DAVIS called WASHINGTON, who stated, “I'm not even helping Shorty (WILLIAM SOLOMON). I’m not giving Shorty no drugs.” TROY DAVIS responded, “Right.” WASHINGTON stated, “He ain’t getting no more drugs out of me... I'm like, I’ll help Shorty a different way, but I ain’t giving that nia no more drugs to fk up.” Later in the conversation, TROY DAVIS stated, “I said ‘cuz.’ 8 Case No. 19-3377, United States v. Davis The court and the defense attorney engaged in a colloquy over whether “[t]he withholding of supply is an exertion of control.” Davis’s attorney argued that such a holding would turn every supplier relationship into an event that would qualify for a leadership enhancement. The court countered that, in circumstances that are not those of a legitimate market, denial of an expected supply is in fact a form of control, because the person expecting the supply has no other options. That debate continues on appeal. The court then summarized its conclusion: It makes no sense, this co-op of drug dealing scenario that you suggest. Like everybody’s just in a commonplace on Bell Street and having access to drugs without anybody being in control. Whether it’s a gentle or firm form of control, Mr. Troy Davis was in control. Whether he was a good organizer or not, I don’t know. The district court thus found that Davis was an organizer or leader and overruled his objection to the four-point enhancement. Davis also objected to several specific factual statements in the PSR that had a bearing on his leadership role. Most notably, the district court proceeded to Davis’s objection to the PSR’s “conclusion that Fennell sold ‘for’ Davis.” The probation officer’s reply, which the court noted, stated: “According to the case agents, Fennell sold drugs for the defendant. The agents indicated I said, ‘that’s a lie!’ I said ‘because me and Miko (WASHINGTON) gave you a couple of them things together, Bro. The same day, my nia. The same day, Bro! You keep....” WASHINGTON responded, “Hell no, I ain’t giving him st. I gave the nia a nine pack (nine ounces of cocaine)! ... Joey stepped up and gave him some ... them nias gave him somethin’.” TROY DAVIS stated, “Listen, but me and you had got that st that one day, Bro. I gave him one, you gave him one. You remember that st, cuz? I gave him a whole one (an additional nine ounces)! ... You gave him one, Bro.” WASHINGTON then responded, “And I gave, and I gave him, and I gave him something after that.” TROY DAVIS stated, “And then he f*ed that up! ... Nias giving you nine packs, you fking it up, nia. Ain’t the first one, He ain’t the only one to give you one! Somebody else give you one too and you fk it up!” (Ellipses and alterations in original.) 9 Case No. 19-3377, United States v. Davis that Fennell worked directly for Davis, and this was supported by monitored phone calls that occurred between Fennell and Davis.” The court overruled Davis’s objection to the statement. Similarly, Davis had objected “to the conclusion that sources confirmed activities ‘executed on behalf of’ Davis.” Again quoting from the probation officer’s response, the court said: “Case agents utilized confidential sources of information to purchase drugs and provide information. Information received from those sources assisted law enforcement in confirming that other coconspirators were acting on the direction of the defendant, Mr. Troy Davis. This was also supported by monitored phone calls that occurred between the defendant and the coconspirators.” Mr. Thompson [defense attorney], this might collide with your theory of Mr. Davis’s involvement, but I find it credible and representative of Mr. Davis’s role in the offense. I overrule the objection. In context, “your theory of Mr. Davis’s involvement” refers back to the earlier debate over the organizer enhancement. When the district court overruled the objection, it found that Davis did give “direction” to other coconspirators. Had the court articulated this determination before applying the organizer enhancement, it would clearly have been enough to satisfy the Gort- DiDonato requirement that the defendant had “exert[ed] control over at least one person.” 109 F.3d at 318. As it was, the court was speaking after it had already made its ruling on the organizer enhancement, in the context of a different objection (albeit one that surely was made because it bore directly upon the organizer issue). But both objections were raised in the papers before the hearing started. It is reasonable to take the court’s awareness of these facts into account when assessing its evaluation of the organizer enhancement. On the other hand, in the face of Davis’s objection to the PSR’s statement that he “had a large network of couriers, runners, and street traffickers,” the government agreed to modify it to 10 Case No. 19-3377, United States v. Davis “had access to” in order to reflect “nuance.” This ended all discussion of the objections bearing factually or legally on the organizer enhancement. We find this a close call, but we affirm the district court’s application of the organizer enhancement. This is not a case, as in Kamper or McDonald, where the district court failed to actually make the finding that Davis supervised one or more people. See Kamper, 748 F.3d at 748 (“[T]he district court erred because it failed to make a factual finding that Head managed or supervised other individuals involved in the conspiracy.”); United States v. McDonald, 800 F. App’x 364, 368 (6th Cir. 2020). Rather, despite the detours along the way, the district court did find that Davis supervised at least one person and that the enhancement otherwise applied. Davis stresses that “a mere buyer-seller relationship does not make one of the participants a leader/organizer . . . even if one of them fronts drugs to the other[.]” McDonald, 800 F. App’x at 367. Similarly, Davis’s attorney argued at sentencing that Davis’s coconspirators “were acting as independent contractors.” In particular, he argued that when Davis told Fennell senior to get his drugs from Fennell junior, it was like a vendor redirecting a customer to another supplier. But this is unconvincing. The Fennell exchange does not have the air of a shop owner who is out of an item referring a potential customer to a competitor to retain goodwill. Rather, it smacks of a busy shop owner referring the customer to his employee, who will look after his needs. Similarly, a dealer refusing to sell to someone might, in the abstract, be evidence of a buyer-seller relationship—but here, in the context of an ongoing network that depended on Davis to keep everything moving, Davis’s refusal to give “Shorty” any more drugs is more akin to terminating (or suspending) an employee. Each, then, is evidence that Davis exerted control over another conspirator. Moreover, as we have seen, the district court made four different factual findings that support the organizer enhancement: two in the colloquy with Davis’s lawyer (cutting off “Shorty” 11 Case No. 19-3377, United States v. Davis from his supply and directing Fennell senior to Fennell junior for drugs) and two in overruling the factual objections to the PSR (that “Fennell sold ‘for’ Davis” and that drug conspiracy activities were “executed on behalf of” Davis). Together they add up to a picture of pervasive if polite control of the drug ring. In sum, the court made sufficient factual findings that show Davis directed one or more members of the conspiracy and, thus, qualified for the enhancement. Finally, we recall that the standard for a leadership enhancement is uniquely deferential. To reflect the reality that the “trial judge is most familiar with the facts and is best situated to determine whether someone is or is not a ‘leader’ of a conspiracy,” Washington, 715 F.3d at 983 we review even the district court’s “legal conclusion that a person is an organizer or leader under § 3B1.1 deferentially . . . .” Sexton, 894 F.3d at 794 (emphasis added). Here, the district court was overseeing not only Davis’s case but those of his co-conspirators. There is good reason, therefore, to be confident in its grasp of the dynamics of this drug ring—which is exactly what the standard of review is designed to reflect. Other, uncontested evidence makes it clear that Davis qualified under comment four for the organizer enhancement, so long as it can be shown under comment two that he directed at least one other participant. Given that the district court eventually acknowledged the need to find that Davis had exerted control over another participant, and pointed to two pieces of evidence that he had in fact done so—combined with its experience sentencing all the other participants—the “deferential[]” standard of review leads us to affirm.8 B. Premises Enhancement The government and Davis disagree over the standard of review that ought to apply to Davis’s objection to the premises enhancement. The government contends that Davis’s objections 8 For the foregoing reasons, we also uphold the enhancement under U.S.S.G. § 2D1.1(b)(16)(E). 12 Case No. 19-3377, United States v. Davis were insufficiently specific as to the issue he raises on appeal. “If defense counsel does not object with a reasonable degree of specificity to a purported procedural error, a plain error standard of review applies.” Gibbs, 626 F.3d at 349; see also United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004). But even assuming Davis is correct regarding the standard of review, he still cannot prevail. Davis’s argument regarding the premises enhancement focuses on one specific statement by the prosecution at the sentencing hearing: THE COURT: The guidelines suggest also how frequently the premises were used for manufacturing or distributing [is an important consideration for application of this enhancement]. During the length of your investigation, how frequently would you say -- you use what measure you’d like, but how frequently would you say that it was evident to your investigators that the defendant was dealing from the 360 High Street address? MS. DARDEN [AUSA]: Daily, Your Honor. Davis argues that the district court committed a factual error “by relying on the government’s unsupported claim” that he dealt drugs “daily” from his home. Section 2D1.1(b)(12) provides for a two-level enhancement “[i]f the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance[.]” The application note specifies that: Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses for the premises. In making this determination, the court should consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes U.S.S.G. § 2D1.1 cmt. n.17. The insuperable problem for Davis is that the record is replete with evidence from which the court could, by a preponderance of the evidence, find that he did in fact deal drugs daily from his home. Paragraph 173 of the indictment tells how, in response to a request 13 Case No. 19-3377, United States v. Davis to buy cocaine, Davis responded, “Yeah, you know where I’m at. Just come to my house.” Similarly, just after midnight one night, Davis responded to a request to buy cocaine with “K let me no when u outside.” And one incident in the indictment suggested Davis’s methods for running his trade out of his house with greater specificity: On or about December 1, 2017, at approximately 1:04 p.m., TROY DAVIS made an outgoing phone call to WASHINGTON. During the conversation, TROY DAVIS stated, “I’m home.” WASHINGTON replied, “Go out the back door, look by that oil can... look by that oil jug, inside that box.” TROY DAVIS stated, "Oh, I see it." WASHINGTON stated, “It had them goodies in that box.” TROY DAVIS said, “Alright.” As the AUSA told the court, investigators later confirmed that the arrangements described in the conversation conformed to the description of Davis’s house. That Davis was using his porch as a mailbox for his drug-dealing operation is further confirmed by the fact that at another point in the indictment, Davis complains that someone “[c]ame on my back porch and stole nine thousand dollars’ worth of my st (drugs), man.” Probably not coincidentally, a police source at one point estimated that Davis made about $8,000 a day dealing drugs. The inference would seem clear that he used his porch to facilitate such dealing while maintaining some plausible deniability, and that one time this had the unfortunate result of leaving him vulnerable to other criminals. The prosecution catalogued these incidents for the district court at sentencing. The AUSA also directed the court to U.S.S.G. § 2D1.1 cmt. n.17, which instructs that: Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses for the premises. In making this determination, the court should consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes. U.S.S.G. § 2D1.1 cmt. n.17. The AUSA then argued that: 14 Case No. 19-3377, United States v. Davis [W]e know that Mr. Davis didn’t have any other source of income. So his primary use of that home day in and day out, if he wasn’t sleeping there or otherwise entertaining his family, was to use it for the purpose of selling drugs This argument tracks language from our cases. In Bell, for instance, we observed: “From January 2011 to October 2012, Bell had no job other than cooking crack cocaine and selling it. He cooked the cocaine in the kitchen of his house.” United States v. Bell, 766 F.3d 634, 637 (6th Cir. 2014). We held that the enhancement applied. Id. at 638. More broadly, in Bell we recognized the reality that defendants often will both live in and conduct drug business from their homes. Ibid. As long as both purposes can reasonably be characterized as “one of the defendant’s primary or principle purposes,” the enhancement still applies. Ibid. (quoting U.S.S.G. § 2D1.1 cmt. n.17 (emphasis added)); see also United States v. Hagan, 766 F. App’x 356, 359 (6th Cir. 2019) (“The more the home looks like a business[,]” the more likely the enhancement is to apply.). Davis attempts to argue that the incidents in the indictment to which the AUSA adverted were “insufficient” to show that Davis’s drug dealing was a primary purpose for maintaining his home, and that the court instead erroneously relied on the AUSA’s characterization that he did so “daily,” which (Davis further argues) is not evidence. But this is unpersuasive. These incidents from the indictment give ample reason to infer that Davis routinely operated in such a manner. And the court did not ask the AUSA to give testimony; it asked the AUSA to summarize the findings of the investigators. (“[H]ow frequently would you say that it was evident to your investigators that the defendant was dealing from the 360 High Street address?” (Emphasis added.)) Meanwhile, the meaning of the “purpose” language in the sentencing guidelines has long been settled by our decisions. Under these decisions, Davis clearly fits the requirements for such an enhancement. 15 Case No. 19-3377, United States v. Davis The two cases on which Davis relies are unavailing. Davis argues primarily that “an attorney’s assertions are not evidence[,]” citing United States v. Webb, 616 F.3d 605, 610 (6th Cir. 2010). Webb concerned a counterfeiter who, inter alia, wished to argue that a confession he had given to the Secret Service was unreliable for sentencing purposes because he was drunk at the time he gave it. Id. at 608. But the only grounds for believing that this was true—i.e., that he really had been drunk—was his attorney’s statement at sentencing. And an attorney’s statement is not evidence, as the court observed in weighing whether the enhancement should apply. Id. at 610. This is very different than saying that a court cannot consider an attorney’s characterization of the record at sentencing, which is what Davis needs to argue here. Unlike in Webb’s case, where there was no underlying evidence that Webb had been drunk, here there was ample evidence that Davis had used his house daily for drug dealing. The second case Davis cites, United States v. Whiteside, 747 F. App’x 387 (6th Cir. 2018), contradicts his argument. He cites it for the proposition that, “[p]roof of one drug transaction inside the home and another drug transaction on the street nearby, without more, does not sufficiently establish that drug activity was a primary use of the premises.” Id. at 395 (emphasis added). But here we have far more than “[p]roof of one drug transaction inside the home.” Id. As we have seen, the record is replete with proof of many drug transactions within the home. Thus there is “more,” which militates toward a finding that the premises enhancement should apply. Therefore, no matter the standard of review, we cannot say that the district court erred in accepting that Davis dealt drugs “daily” from his home. We accordingly uphold the premises enhancement. CONCLUSION For the foregoing reasons, the sentence imposed by the district court is AFFIRMED. 16	{ "pile_set_name": "FreeLaw" }
116 U.S. 13 (1885) SAXONVILLE MILLS v. RUSSELL, Collector. Supreme Court of United States. Argued December 4, 1885. Decided December 14, 1885. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS. 17 Mr. Charles Levi Woodbury for plaintiff in error. Mr. Assistant Attorney-General Maury for defendant in error. MR. JUSTICE MATTHEWS delivered the opinion of the court. After stating the facts in the language reported above, he continued: The duties chargeable upon the importations in question were levied and collected under § 1 of the act of March 2, 1867, "to provide increased revenue from imported wool and for other purposes." 14 Stat. 559. It provides that "from and after the passage of this act, in lieu of the duties now imposed by law on the articles mentioned and embraced in this section, there shall be levied, collected, and paid on all unmanufactured wool, hair of the alpaca, goat, and other like animals, imported from foreign countries, the duties hereinafter provided." For the purpose of fixing the duties to be charged thereon, the articles mentioned are divided into three classes, as follows: Class 1, clothing wool; class 2, combing wools; class 3, carpet wools and other similar wools, the last being "such as Donskoi, native South American, Cordova, Valparaiso, native Smyrna, and including all such wools of like character as have been heretofore usually imported into the United States from Turkey, Greece, Egypt, Syria, and elsewhere." The importations affected by this suit were of this class. It was further provided, that, "upon wools of the third class, the value whereof at the last port or place whence exported into the United States, excluding charges in such port, shall be twelve cents or less per pound, the duty shall be three cents per pound; upon wools of the same class, the value whereof at the last port or place whence exported to the United States, 18 excluding charges in such port, shall exceed twelve cents per pound, the duty shall be six cents per pound." By the act of June 6, 1872, 17 Stat. 230, § 2, the duties on wool, imposed by the act of 1867, among other things, were reduced ten per centum of such duties. As the value of the wool in question, at the last port or place whence exported into the United States, excluding charges in such port at the time of shipment, was less than twelve cents per pound, under these provisions of the law, standing alone, it would be subject to a duty of but three cents per pound, and it is contended by the plaintiff in error that the case is governed exclusively by these sections. But as the wool was bought in Rosario, and was shipped from there to the United States, and was invoiced there and entered at the custom house in Boston at the price paid for it in the currency and weight in which it was bought, which, upon being reduced to United States currency and weight, showed the cost to be above twelve cents per pound, it is contended on the part of the collector, that it was properly chargeable according to that value, with the duty actually exacted of six cents per pound. This conclusion is based upon a proviso, occurring in § 7 of the act of March 3, 1865, "amendatory of certain acts imposing duties upon foreign importations," 13 Stat. 491, 493, and repeated in § 9 of the act of July 28, 1866, "to protect the revenue, and for other purposes," 14 Stat. 328, 330. The first of these sections is as follows: "SEC. 7. And be it further enacted, That in all cases where there is or shall be imposed any ad valorem rate of duty on any goods, wares, or merchandise imported into the United States, and in all cases where the duty imposed by law shall be regulated by, or directed to be estimated or based upon, the value of the square yard, or of any specified quantity or parcel of such goods, wares, or merchandise, it shall be the duty of the collector within whose district the same shall be imported or entered to cause the actual market value or wholesale price thereof, at the period of the exportation to the United States, in the principal markets of the country from which the same shall have been imported into the United States, to be appraised, 19 and such appraised value shall be considered the value upon which duty shall be assessed. That it shall be lawful for the owner, consignee, or agent of any goods, wares, or merchandise which shall have been actually purchased, or procured otherwise than by purchase, at the time, and not afterwards, when he shall produce his original invoice, or invoices, to the collector, and make and verify his written entry of his goods, wares, or merchandise, as provided by section thirty-six of the act of March two, seventeen hundred and ninety-nine, entitled "An Act to regulate the collection of duties on imports and tonnage," to make such addition in the entry to the cost or value given in the invoice as in his opinion may raise the same to the actual market value or wholesale price of such goods, wares, or merchandise, at the period of exportation to the United States, in the principal markets of the country from which the same shall have been imported; and it shall be the duty of the collector within whose district the same may be imported or entered to cause such actual market value or wholesale price to be appraised in accordance with the provisions of existing laws, and if such appraised value shall exceed by ten per centum or more the value so declared in the entry, then, in addition to the duties imposed by law on the same, there shall be levied, collected, and paid a duty of twenty per centum ad valorem on such appraised value: Provided, That the duty shall not be assessed upon an amount less than the invoice or entered value, any act of Congress to the contrary notwithstanding." The other section is as follows: "SEC. 9. And be it further enacted, That in determining the dutiable value of merchandise hereafter imported, there shall be added to the cost, or to the actual wholesale price or general market value at the time of exportation in the principal markets of the country from whence the same shall have been imported into the United States, the cost of transportation, shipment, and transshipment, with all the expenses included from the place of growth, production, or manufacture, whether by land or water, to the vessel in which shipment is made to the United States, the value of the sack, box, or covering of any kind in 20 which such goods are contained; commission at the usual rates, but in no case less than two and a half per centum; brokerage, export duty, and all other actual or usual charges for putting up, preparing, and packing for transportation or shipment. And all charges of a general character incurred in the purchase of a general invoice shall be distributed pro rata among all parts of such invoice, and every part thereof charged with duties based on value shall be advanced according to its proportion, and all wines or other articles paying specific duty by grades shall be graded and pay duty according to the actual value so determined: Provided, That all additions made to the entered value of merchandise for charges shall be regarded as part of the actual value of such merchandise, and if such addition shall exceed by ten per centum the value so declared in the entry, in addition to the duties imposed by law, there shall be levied, collected, and paid a duty of twenty per centum on such value: Provided, That a duty shall in no case be assessed upon an amount less than the invoice or entered value: Provided further, That nothing herein contained shall apply to long-combing or carpet wools costing twelve cents or less per pound, unless the charges so added shall carry the cost above twelve cents per pound, in which case one cent per pound duty shall be added." In our opinion the rule declared in the provisos in both these sections, that the duty shall not be assessed upon an amount less than the invoice or entered value, is applicable to the valuation of wools, for the purpose of determining the rate of duty chargeable upon them under the acts of 1867 and 1872, and was therefore properly applied in the present case. It is quite true that the act of 1867 provides a different classification of wools, and imposes a specific and not an ad valorem duty; but, nevertheless, the duty varies according to the value per pound of the article, and a valuation is, therefore, as necessary to the ascertainment of the rate of duty, as if it were strictly an ad valorem duty, and there is nothing in the act of 1867 which, by express words or necessary implication, repeals the proviso in question, as found in the previous acts of 1865 and 1866. *21 In the act of 1865, the rule is declared to be of general application, not only "in all cases where there is or shall be imposed any ad valorem rate of duty on any goods, wares, or merchandise imported into the United States," but also "in all cases where the duty imposed by law shall be regulated by, or directed to be estimated or based upon, the value of the square yard, or of any specified quantity or parcel of such goods, wares, or merchandise." There is no more inconsistency between this provision and the act of 1867, than if the proviso had been expressly added to the section of the latter act, which contains the substituted classification of wools for dutiable purposes, and fixes the varying rates of duty upon them. It would be an unsound and unsafe rule of construction which would separate from the tariff revenue system, consisting of numerous and diverse enactments, each new act altering it, in any of its details, or prescribing new duties in lieu of existing ones on particular articles. The whole system must be regarded in each alteration, and no disturbance allowed of existing legislative rules of general application beyond the clear intention of Congress. "In the interpretation of our system of revenue laws, which is very complicated," as was said in the case of The United States v. Sixty-seven Packages of Dry Goods, 17 How. 85, 93, "this court has not been disposed to apply with strictness the rule which repeals a prior statute by implication, where a subsequent one has made provision upon the same subject, and differing in some respect from the former, but have been inclined to uphold both, unless the repugnancy is clear and positive, so as to leave no doubt as to the intent of Congress." The judgment of the Circuit Court is Affirmed.	{ "pile_set_name": "FreeLaw" }
Case: 12-11637 Date Filed: 10/22/2012 Page: 1 of 17 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-11637 Non-Argument Calendar ________________________ D.C. Docket No. 7:09-cv-00076-HL STATE FARM FIRE AND CASUALTY COMPANY, llllllllllllllllllllllllllllllllllllllllPlaintiff - llllllllllllllllllllllllllllllllllllllllCounter Defendant- llllllllllllllllllllllllllllllllllllllllAppellee, versus LLOYD J. LEBLANC, JR., EDNA G. LEBLANC, PRODUCTOS MEXICANOS DON JOSE, INC., LEBANCS' LLC, DIRECT SOURCE IMPORTS, INC., JEFF LEBLANC, LLOYD LEBLANC, III, MAXAM WHOLESALE OF GA INC., llllllllllllllllllllllllllllllllllllllllDefendants- llllllllllllllllllllllllllllllllllllllllCounter Claimants- llllllllllllllllllllllllllllllllllllllllAppellants, Case: 12-11637 Date Filed: 10/22/2012 Page: 2 of 17 B AND F SYSTEM INC. lllllllllllllllllllllllllllllllllllllllllDefendant. ________________________ Appeal from the United States District Court for the Middle District of Georgia ________________________ (October 22, 2012) Before MARTIN, JORDAN and ANDERSON, Circuit Judges. PER CURIAM: Appellants appeal from the district court’s grant of summary judgment to State Farm Fire and Casualty Company in a declaratory judgment action. I. On December 6, 2007, B&F Systems filed an initial Complaint against Appellants Lloyd J. LeBlanc, Jr., Jeff LeBlanc, and Lloyd LeBlanc, III, and their businesses, Maxam Wholesale of Atlanta, Inc. and Direct Source Imports, Inc., alleging ten claims, including federal law claims for trademark infringement; unfair competition; cyberpiracy; as well as state law claims for deceptive trade practices; breach of contract; conversion; and interference with contractual and business relations. The LeBlancs retained counsel to defend the litigation. They had three insurance policies with State Farm, not all of which were in effect at the 2 Case: 12-11637 Date Filed: 10/22/2012 Page: 3 of 17 time B&F Systems filed its complaint. The LeBlancs contacted a State Farm agent about the B&F Systems lawsuit sometime in April 2008, when one of the LeBlancs inquired if their various insurance policies covered the litigation.1 The LeBlancs did not contact State Farm earlier because they did not realize they might have coverage under their policies. State Farm hired defense counsel for the LeBlancs beginning on June 12, 2008, just weeks after it was notified of the lawsuit. State Farm gave this defense subject to a reservation of its rights under the insurance policies, which the LeBlancs accepted. On March 19, 2010, B&F Systems filed an Amended Complaint against the LeBlancs and their businesses, adding more defendants and asserting new causes of action.2 The LeBlancs assert, and State Farm does not dispute, that State Farm received immediate notice of the Amended Complaint. State Farm defended all defendants named by B&F Systems in the Amended Complaint. The case went to trial, and the jury returned a verdict against the LeBlanc defendants, with the 1 The date of initial contact is disputed by the parties. Lloyd LeBlanc, III testified in his deposition that the date of initial contact was sometime in April 2008. His affidavit says that he contacted the office of his local agent on or about May 10, 2008. State Farm disputes both dates and says that the date of notice was May 14, 2008. On summary judgment, we construe the evidence in favor of the non-moving party. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1211 (11th Cir. 2008). 2 The new causes of action included state law claims for trade dress infringement, defamation, misappropriation of trade secrets, breach of license agreement, common enterprise and disregard of the corporate entity. 3 Case: 12-11637 Date Filed: 10/22/2012 Page: 4 of 17 exception of LeBlanc, LLC, in February 2012. As mentioned, the LeBlancs had three insurance policies with State Farm. There was a business policy for Maxam Wholesale of GA (Maxam policy), effective from May 2007 to May 2008; a business policy for Direct Source Imports (DSI policy), effective from February 2008 to February 2009; and a personal umbrella policy for Lloyd LeBlanc, Jr., effective from July 2006 to July 2007. Each of the policies included a duty to defend and indemnify in the event of legal action against the policy holder, subject to various restrictions and requirements. The Maxam policy, under the section, “General Conditions,” and the subsection, “Duties in the Event of Occurrence, Claim or Suit,” provided: If a claim is made or suit is brought against any insured, you must see to it that we receive prompt written notice of the claim or suit. The DSI Policy contained an identical notice provision. The personal umbrella policy also contained a provision under the section, “Your Duties to Us,” which stated in relevant part: These are the things you must do for us. We may not provide coverage if you refuse to: .... notify us of a claim or suit. If a claim or suit is filed against you, notify your underlying insurer and us right away. You must send us every demand, notice summons or other process you receive. 4 Case: 12-11637 Date Filed: 10/22/2012 Page: 5 of 17 II. On June 16, 2009, State Farm filed suit against the LeBlancs and B&F Systems, seeking a declaratory judgment that it had no duty to defend or indemnify the LeBlancs or their businesses under the insurance policies. The LeBlancs filed a counterclaim for failing to defend them following the initial filing of the B&F Systems liability action. On March 1, 2012, the district court granted summary judgment in favor State Farm. It ruled that the LeBlancs violated the notice provisions on the Maxam policy and the personal umbrella policy by waiting five months to notify State Farm of the B&F Systems lawsuit. Because the court read the provisions to be conditions precedent to coverage, it held that State Farm had no duty to defend or indemnify under the circumstances. The court also ruled that timely notice on the Amended Complaint did not satisfy the notice provisions on the insurance policies. For the DSI policy, the court noted that the policy was in effect only from February 2008 until February 2009. It ruled that the policy did not cover occurrences outside of the effective dates of the policy, thereby excluding coverage for the B&F Systems lawsuit filed in December 2007. By this ruling, the Court granted summary judgment to State Farm on its declaratory judgment 5 Case: 12-11637 Date Filed: 10/22/2012 Page: 6 of 17 action, and dismissed the LeBlancs’ counterclaim. The LeBlancs appealed. III. We review a district court’s grant of summary judgment de novo, construing all facts in favor of the non-moving party. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1211 (11th Cir. 2008). Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). We review de novo a district court’s interpretation of an insurance contract. Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 773 n.7 (11th Cir. 2011). IV. The LeBlancs raise a number of issues on appeal. We address each argument in turn. A. Notice Provisions as Conditions Precedent The LeBlancs argue that the notice provisions here are not conditions precedent to coverage, and therefore, the district court erred in failing to consider whether State Farm was prejudiced by the delay in notifying the company of the lawsuit. State Farm argues that the LeBlancs waived this argument by failing to present it in the district court. The LeBlancs state that, by arguing State Farm was not prejudiced by the delay in the district court, they implicitly challenged whether 6 Case: 12-11637 Date Filed: 10/22/2012 Page: 7 of 17 the notice provisions were conditions precedent, because prejudice is only a factor when a notice provision is not a condition precedent to coverage. We need not decide the waiver issue because we believe the notice provisions are clearly conditions precedent to coverage. Under Georgia law, a notice provision in an insurance policy is not considered a condition precedent unless it expressly states that a failure to provide such notice will result in a forfeiture of the insured’s rights or uses language which otherwise clearly expresses the intention that the notice provision be treated as a condition precedent. Res. Life Ins. Co. v. Buckner, 698 S.E.2d 19, 27 (Ga. Ct. App. 2010) (quotation marks and alterations omitted) (emphasis added). The LeBlancs assert that because the words “condition precedent” do not appear in any of the notice provisions, and because the notice provisions do not otherwise clearly express the parties’ intent to treat the provisions as such, the policies are not conditions precedent. We disagree. As to the Maxam policy and the DSI policy, we are aware that Georgia courts have treated similar mandatory language—“you must see to it”—without more, as conditions precedent. See, e.g., Forshee v. Emp’rs Mut. Cas. Co., 711 S.E.2d 28, 30–31 (Ga. Ct. App. 2011); Kay-Lex Co. v. Essex Ins. Co., 649 S.E.2d 602, 606–07 (Ga. Ct. App. 2007). Beyond that, the notice provisions appear under sections entitled, “General Conditions,” and a subsection entitled, “Duties 7 Case: 12-11637 Date Filed: 10/22/2012 Page: 8 of 17 in the Event of . . . Claim or Suit.” This language clearly expresses the intention that the notice provisions be treated as conditions precedent to coverage. In considering the personal umbrella policy, we are aware that conditions precedent may also be created by using conditional language, such as “if,” “provided,” or “on condition that.” Hall v. Ross, 616 S.E.2d 145, 147 (Ga. Ct. App. 2005). The personal umbrella policy informed the LeBlancs that “[w]e may not provide coverage if you refuse to” provide adequate notice. We read this language to render State Farm’s duties to the LeBlancs sufficiently conditional that the notice provision in the personal umbrella policy is a condition precedent to coverage. There is no requirement under Georgia law that State Farm show it was prejudiced by the LeBlancs’ alleged failure to give timely notice. See Caldwell v. State Farm Fire & Cas. Ins. Co., 385 S.E.2d 97, 99 (Ga. Ct. App. 1989); see also Se. Express Sys., Inc. v. S. Guar. Ins. Co. of Ga., 482 S.E.2d 433, 436 (Ga. Ct. App. 1997). Therefore, we cannot agree with the LeBlancs that the district court erred in failing to consider whether State Farm was prejudiced by their delay in giving notice. B. Immediacy Requirement The Maxam and DSI policies required “prompt” notice of a lawsuit, and 8 Case: 12-11637 Date Filed: 10/22/2012 Page: 9 of 17 the personal umbrella policy required that the LeBlancs notify it of a lawsuit “right away.” The LeBlancs argue that the district court erred in construing the purportedly vague notice provisions to require immediate notification, in contravention of Georgia law. See Barret v. Nat. Union Fire Ins. Co. of Pittsburgh, 696 S.E.2d 326, 331 (Ga. Ct. App. 2010) (stating that insurance policies are to be liberally construed in favor of coverage). However, we do not find these terms to be vague. Georgia precedent shows that “prompt” has the same meaning as terms like “as soon as practicable” and “immediate.” Advocate Networks, LLC v. Hartford Fire Ins. Co., 674 S.E.2d 617, 620 (Ga. Ct. App. 2009); Burkett v. Liberty Mut. Fire Ins. Co., 629 S.E.2d 558, 560 (Ga. Ct. App. 2006); see also Roberson v. Weaver, 89 S.E. 769, 773 (Ga. 1916) (“The phrases ‘immediate notice,’ ‘notice forthwith,’ ‘as soon as possible,’ ‘as soon as practicable,’ used in policies of guaranty insurance providing that notices of loss shall be given to the insurer . . . hav[e] practically the same meaning . . . .” (quotation marks omitted)). We further note that “prompt,” when used as an adjective, denotes “responding instantly,” or “immediately.” Merriam-Webster’s Third New International Dictionary Unabridged 1816 (1976). Therefore, we find no basis to draw a material distinction between notice provisions requiring “prompt” notice or “immediate” notice. In the same vein, we see no reason to 9 Case: 12-11637 Date Filed: 10/22/2012 Page: 10 of 17 give “right away,” as used in the personal umbrella policy, a materially different meaning than “immediate.” Therefore, we find no error by the district court in construing the policies to require immediate notice of any legal claim. C. Issues of Material Fact The LeBlancs argue that whether the notice they provided to State Farm was “prompt,” “right away,” or “immediate” were issues of fact for a jury to resolve. The LeBlancs are correct that there is a dispute of fact about when State Farm received actual notice of the B&F Systems lawsuit. They point us to evidence indicating that State Farm received notice in April 2008. State Farm alleges that notice was received in May 2008. The district court therefore erred when it construed the facts in favor of State Farm as to the date of notification. See Schwarz, 544 F.3d at 1211. Under these facts, the LeBlancs seek to present their case to a jury to determine whether the four-month delay from December 2007 to April 2008 was reasonable. In support of this argument, the LeBlancs cite Sawhorse, Inc. v. Southern Guaranty Insurance Co. of Georgia, 604 S.E.2d 541, 546–47 (Ga. Ct. App. 2004), in which a six-month delay was held to create an issue of fact for the jury. However, Sawhorse is readily distinguishable. There the insured party 10 Case: 12-11637 Date Filed: 10/22/2012 Page: 11 of 17 failed to send the insurance company papers in connection with a counterclaim until six months after the claim was filed, but it had previously notified the insurer of the claim and requested coverage for any damages arising out of the pending lawsuit. Id. Here, the LeBlancs did not notify State Farm of B&F Systems’ first Complaint for four months. While the LeBlancs argue that Georgia courts have allowed the jury to decide the reasonableness of lengthier delays, those cases are different because they considered the delay between the date of the incident giving rise to the lawsuit (as opposed to the date on which the lawsuit was filed) and the date of notice. More importantly, the insured parties in those cases offered viable excuses under Georgia law for their delay in providing notice. See JNJ Found. Specialists, Inc. v. D.R. Horton, Inc., 717 S.E.2d 219, 225–26 (Ga. Ct. App. 2011) (holding that delay was not unreasonable as a matter of law where insured was unaware of incident giving rise to lawsuit, but notified insurance company within three months of the filing of the lawsuit); Newberry v. Cotton States Mut. Ins. Co., 531 S.E.2d 362, 363–64 (Ga. Ct. App. 2000) (holding that delay from incident to notice was not unreasonable as a matter of law where insured believed that injured party would seek workers’ compensation instead of file suit); S. Guar. Ins. Co. v. Miller, 358 S.E.2d 611, 612 (Ga. Ct. App. 1987) 11 Case: 12-11637 Date Filed: 10/22/2012 Page: 12 of 17 (holding that fourteen-month delay from incident to notice was not unreasonable where insured party thought incident giving rise to litigation was trivial). Here, State Farm argues that the delay from the filing of the original Complaint to the date of notice was unreasonable. Georgia courts have held that a delay of as little as three months between the filing of a lawsuit and notice to the insurer is unreasonable as a matter of law. See Diggs v. S. Ins. Co., 321 S.E.2d 792, 793 (Ga. Ct. App. 1984). Therefore, the LeBlancs’ four-month delay is unreasonable under Georgia law, absent a valid excuse. The LeBlancs’ only justification for the delay—ignorance of the contents of the policy—has been roundly rejected by Georgia courts. As the district court noted, Georgia law “requires more than just ignorance” to avoid the enforcement of a notice provision. Allstate Ins. Co. v. Walker, 562 S.E.2d 267, 268 (Ga. Ct. App. 2002) (rejecting insured’s mere ignorance of contents of policy as viable excuse for failing to comply with notice provision). In the cases cited by the LeBlancs, the insured parties offered excuses that involved something more than mere ignorance, such as a reasonable belief that the underlying incident would not give rise to a claim against the insured, or a reasonable belief that the underlying allegation was entirely baseless. See, e.g., Newberry, 531 S.E.2d at 363–64; Standard Guar. Ins. Co. v. Carswell, 384 S.E.2d 213, 215 (Ga. Ct. App. 1989) 12 Case: 12-11637 Date Filed: 10/22/2012 Page: 13 of 17 (“In the instant case there was evidence that no notice was given because the insured believed . . . [the allegation] was specious and manufactured. It is not that he did not know the contents of his policy.” (emphasis added)). Because the LeBlancs justify their four-month delay only by referencing their lack of knowledge of the contents of the policy, we agree with the district court’s ruling that notice on the initial Complaint was unreasonable as a matter of law. D. Immediacy Requirement in Seeking Declaratory Relief Under Georgia law, when an insurer defends an insured party against a claim, in order to avoid estoppel, it must give notice of its reservation of rights to deny coverage; take steps to avoid default on the claim; and immediately seek declaratory relief as to its obligations under the contract. Richmond v. Ga. Farm Bureau Mut. Ins. Co., 231 S.E.2d 245, 248 (Ga. Ct. App. 1976). However, the insurer is not obligated to immediately file an action for declaratory relief if the insured party does not object to the reservation of rights. Kay-Lex, 649 S.E.2d at 608–09. The LeBlancs concede here that they accepted State Farm’s reservation of rights. Nevertheless, they argue that the district court erred in applying an incongruously lenient immediacy standard to State Farm’s thirteen-month delay in filing its action for declaratory relief, when compared to the stringent 13 Case: 12-11637 Date Filed: 10/22/2012 Page: 14 of 17 immediacy standard the Court applied to their notice obligations. The problem with this argument is that the district court correctly applied Georgia law, which does not impose an immediacy requirement where the insured party fails to object to the reservation of rights. Id. E. Timely Notice of the Underlying Occurrence State Farm argues for the first time on appeal that summary judgment is also appropriate because the LeBlancs failed to provide timely notice of the occurrence that gave rise to the litigation—a May 2007 cease and desist letter from B&F Systems. Although we may affirm a judgment on any legal ground supported in the record, Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1275 (11th Cir. 2012), we may also exercise our discretion to decline to do so when appellate review would benefit from additional proceedings in the district court. See, e.g., Palmyra Park Hosp. Inc. v. Phoebe Putney Mem’l Hosp., 604 F.3d 1291, 1307 n.15 (11th Cir. 2010); La Grasta v. First Union Secs., Inc., 358 F.3d 840, 851 (11th Cir. 2004). It is not apparent to us, and the parties cite to no record evidence to resolve, whether the cease and desist letter triggered the LeBlancs’ obligation to notify State Farm of an occurrence under the policy. See State Farm & Cas. Co. v. Walnut Ave. Partners, LLC, 675 S.E.2d 534, 539 (Ga. Ct. App. 2009); Newberry, 531 S.E.2d at 364. For at least this reason, this issue is not 14 Case: 12-11637 Date Filed: 10/22/2012 Page: 15 of 17 sufficiently developed in the record or on appeal to decide it in the first instance. F. DSI Policy Coverage The DSI policy took effect on February 14, 2008, roughly two months after the B&F Systems lawsuit was filed. The district court ruled that because the DSI policy specifically states it only covers occurrences within the policy period, State Farm had no duty to defend or indemnify under the DSI policy. The LeBlancs argue for the first time on appeal that the DSI policy provides coverage because the Amended Complaint alleged damages for conduct that occurred during the coverage period. Because the LeBlancs raise this argument for the first time on appeal, we decline to consider it. Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d 1239, 1249. This being the case, we affirm the district court’s grant of summary judgment as to the DSI policy. G. Amended Complaint The LeBlancs argue that the district court erred in ruling that they failed to give timely notice under the insurance policies for the B&F Systems’ Amended Complaint. The district court rejected the notion that timely notice for the claims in the Amended Complaint satisfied the notice provisions in the policies as to those claims. The LeBlancs argue that Georgia courts have held insurance companies are 15 Case: 12-11637 Date Filed: 10/22/2012 Page: 16 of 17 obligated to provide coverage to claims arising from an amended complaint, even where the claims in the initial complaint were not covered. See Nationwide Mut. Fire Ins. Co. v. Kim, 669 S.E.2d 517, 551–52 (Ga. Ct. Ap. 2008). From this, the LeBlancs argue that because B&F Systems asserted new claims and added new parties in its Amended Complaint, we should examine the timeliness of the notice given for the Amended Complaint independently of the initial Complaint. We find this argument persuasive. Georgia courts, in determining whether notice was timely under an insurance policy, do not require parties to predict all types of claims that might arise. See Newberry, 531 S.E.2d at 363–64; Carswell, 384 S.E.2d at 214–15. If insured parties do not have an obligation to predict all future claims for the purposes of notice provisions, it follows we must separately analyze the timeliness of notice for each claim asserted. State Farm only argues that notice of the Amended Complaint was untimely because notice for the initial Complaint was untimely. It does not argue that notice as to the Amended Complaint, in and of itself, was untimely. In effect, State Farm asks us to adopt a blanket rule that if notice on an initial complaint is untimely, then notice on an amended version of that complaint is also untimely, 16 Case: 12-11637 Date Filed: 10/22/2012 Page: 17 of 17 even if the amended version alleges new and unforeseeable claims.3 State Farm cites to no authority for this rule. Therefore, we reverse summary judgment for the claims added in the Amended Complaint. V. We affirm the district court’s ruling on the DSI policy. For the Maxam and personal umbrella policies, we reverse the grant of summary judgment on the new claims added in the Amended Complaint and remand for further proceedings, insofar as notice on those claims was not untimely as a matter of law. We also reinstate the LeBlancs’ counterclaim as it applies to the new claims in the Amended Complaint. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 3 We can imagine a complaint that alleges claims entirely unrelated to the insurance policy, and an amended complaint that asserts new claims which fall squarely within the policy’s terms of coverage. Under this scenario, we cannot say Georgia law mandates that the failure to notify the insurer of the initial complaint would bar coverage of the later claims if notice were properly given. 17	{ "pile_set_name": "FreeLaw" }
362 F.2d 798 James E. GARRISON, Appellant,v.Alonzo L. LACEY, Special Agent, E. M. Garnett, U.S.Commissioner, and Mr.Baylark, U.S. Marshal, Appellees. No. 8620. United States Court of Appeals Tenth Circuit. June 22, 1966. Tom C. Triplett, Wichita, Kan., for appellant. F.T. Wetzel, Asst. U.S. Atty. (William T. Thurman, U.S. Atty., on the brief), for appellees. Before BREITENSTEIN and SETH, Circuit Judges, and LANGLEY, District judge. PER CURIAM. 1 Appellant-plaintiff Garrison sued various federal officials alleging false arrest and arraignment. The trial court sustained a motion to dismiss. 2 Garrison was charged with violation of 18 U.S.C. 2312, found guilty by a jury, and sentenced to a term of imprisonment. On appeal the judgment was affirmed. See Garrison v. United States, 10 Cir., 353 F.2d 94. Circumstances related to this criminal case form the basis for the civil action with which we are now concerned. The instant action was brought while Garrison was a prisoner in a federal penitentiary. On this appeal Garrison's appointed counsel argues only that the district court erred in appointing an attorney in this civil case as a friend of the court to review Garrison's claims instead of appointing an attorney as an advocate. Although under 28 U.S.C. 1915(d) the court may appoint an attorney for an indigent, it is not required to do so. The Constitution does not force a lawyer on a litigant. See Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268. The record shows that Garrison chose to be his own lawyer. 3 The hazards which beset a layman when he seeks to represent himself are illustrated by this appeal. The record contains no final judgment. The order sought to be reviewed dismissed the complaint but did not dismiss the action. Hence it is nonappealable. See Midwestern Developments, Inc. v. City of Tulsa, Oklahoma, 10 Cir., 319 F.2d 53, certiorari denied 379 U.S. 989, 85 S.Ct. 702, 13 L.Ed.2d 610. 4 Appeal dismissed for lack of a final judgment.	{ "pile_set_name": "FreeLaw" }
Court of Appeals, State of Michigan ORDER David H. Sawyer Todd Peck v Rachel Patricia Ann Peck Presiding Judge Docket No. 332814 Jane E. Markey LC No. 14-052965-DM Colleen A. O'Brien Judges The Court orders that the October 10, 2016 opinion is hereby AMENDED to correct a clerical error. The opinion is corrected to read November 10, 2016 as the date of the opinion. In all other respects, the opinion remains unchanged . A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on NUV 1 8 2016 Date	{ "pile_set_name": "FreeLaw" }
180 Cal.App.4th 1110 (2009) CELLPHONE TERMINATION FEE CASES. Nos. A122765, A122768. Court of Appeals of California, First District, Division Five. December 31, 2009. CERTIFIED FOR PARTIAL PUBLICATION[] 1113 Bandas Law Firm, Christopher A. Bandas; Liuzzi/Murphy/Solomon and Frank C. Liuzzi for Objector and Appellant Sulekha Anand in No. A122765. Bramson, Plutzik, Mahler & Birkhaeuser, Robert M. Bramson, Alan R. Plutzik, L. Timothy Fisher; Law Offices of Scott A. Bursor and Scott A. Bursor for Plaintiffs and Respondents Katherine Zill, William MacKenzie and Linda MacKenzie in No. A122765. 1114 Quinn Emanuel Urquhart Oliver & Hedges, Dominic Surprenant, A. Brooks Gresham, Daniel H. Bromberg and Cheryl A. Galvin for Defendants and Respondents Sprint Spectrum, L.P., and Wirelessco L.P. in No. A122765. Quinn Emanuel Urquhart Oliver & Hedges, Dominic Surprenant, A. Brooks Gresham, Daniel H. Bromberg and Cheryl A. Galvin for Defendants, Appellants and Cross-respondents Sprint Spectrum, L.P., and Wirelessco. L.P. in No. A122765. Bramson, Plutzik, Mahler & Birkhaeuser, Alan R. Plutzik, L. Timothy Fisher; Law Offices of Scott A. Bursor and Scott A. Bursor for Plaintiffs, Respondents and Cross-appellants, Katherine Zill, William MacKenzie and Linda MacKenzie in No. A122768. OPINION SIMONS, J. Appellants Sprint Spectrum, L.P., and Wirelessco, L.P. (hereafter Sprint), are defendants in the present class action relating to Sprint's practice of locking its cell phone handsets, which prevents the use of the phones on other service providers' networks. Sprint appeals from the trial court's judgment dismissing the action pursuant to the parties' settlement and awarding attorney fees to counsel for cross-appellants, named class plaintiffs Katherine Zill, William MacKenzie, and Linda MacKenzie (hereafter plaintiffs). Sprint contends the trial court erred in refusing to enforce a provision in the settlement whereby the parties agreed the amount of the attorney fee award would be determined by an arbitrator, who would select an amount within a specified range. This case presents an issue of first impression: Did the trial court abuse its discretion in refusing to approve the fee arbitration provision, where it had already determined that the range of possible fee awards was reasonable and that there was no evidence of collusion by the parties to the settlement? We conclude the court did abuse its discretion, because its ruling accorded too large a role to objecting class members in the fee setting process. However, we also conclude that Sprint has failed to show actual prejudice resulted from determination of the amount of the attorney fee award by the court rather than by the arbitrator selected by the parties. We reject the cross-appeal by plaintiffs, as well as a separate appeal by an objector to the settlement, appellant Sulekha Anand (Anand). We affirm the judgment. BACKGROUND In January 2006, plaintiffs filed a sixth amended consolidated complaint in this class action against Sprint. Plaintiffs alleged that cell phone handsets sold by Sprint secretly had been locked with programming locks "to make it 1115 impossible or impracticable for customers to switch cell phone service providers without purchasing a new handset."[1] The complaint alleged causes of action for fraudulent, unlawful, and unfair business practices, and violation of the Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.). Plaintiffs sought injunctive and declaratory relief, as well as restitution and/or disgorgement of all amounts wrongfully charged to the class members. After discovery, the case was assigned to Judge Steven Brick for trial. Sprint filed 12 motions in limine, and, in June 2007, Judge Brick tentatively granted 10 of the motions in limine, including those seeking to exclude plaintiffs' two experts on damages. Before Judge Brick completed a multiday hearing on the motions and issued final rulings, the parties reached a settlement. Under the settlement, a national class would be certified, and that class would release all claims concerning Sprint's handset locking practices. Although plaintiffs had claimed nearly $800 million in damages for a California-only class, Sprint did not agree to pay any money in the settlement. Instead, Sprint, among other things, agreed to inform its customers that its handsets contain software programming locks and to unlock handsets for customers who have satisfied their contractual obligations to Sprint. The parties were unable to reach an agreement on the amount of an attorney fee award for plaintiffs. Although plaintiffs preferred that the trial court make the determination, Sprint insisted that the amount of the award be determined in arbitration. Ultimately, the parties agreed the amount of an award for attorney fees and expenses would be determined through arbitration with a cap on the award of $2.95 million, which is a little under the hourly fees and expenses class counsel claimed to have incurred. Plaintiffs were guaranteed an award of at least $500,000, which is approximately the amount of expenses claimed by class counsel.[2] The parties agreed that any trial court rulings regarding attorney fees would not affect the settlement on the merits of plaintiffs' claims. 1116 Judge Brick referred the matter to Judge Bonnie Sabraw, the judge presiding over the coordination proceeding that included the present case, for approval of the settlement. Judge Sabraw preliminarily approved the settlement and notice was given to the class. Only two class members objected to the settlement. The objectors contended the settlement was inadequate because, among other things, it did not provide compensation for any damages. Judge Sabraw rejected that objection, finding the settlement was "fair to the class given the strength of the claims and defenses in the case." The objectors also complained the fees claimed by class counsel were excessive in light of the limited benefits of the settlement. The court found reasonable the range of fees authorized by the fee provision, based on argument and documentation provided by plaintiffs. Ultimately, however, the trial court refused to approve the fee arbitration provision. One of the objectors, Tom Gray, complained the provision did not permit him to participate in the arbitration. The only interest identified by objector Gray was an interest in ensuring the reasonableness of the fee award. Sprint was willing to allow the objectors to participate, but plaintiffs argued the agreement did not permit the objectors to do so. Class counsel informed the trial court that plaintiffs "strongly prefer to have [the trial court] determine the amount of a reasonable fee," that plaintiffs "accepted a fee arbitration with the range limitations reluctantly, only as a concession to Sprint," and that plaintiffs "certainly would not have agreed to allow objector participation in the arbitration." After taking additional evidence on collusion, the court found the fee provision was negotiated separately from the settlement on the merits and counsel had not agreed to a larger fee in exchange for a less favorable settlement. Nevertheless, the court concluded the fee arbitration provision was "void in its entirety because it improperly excluded the members of the class from the fee application process." The trial court conducted proceedings to determine a reasonable attorney fee award. The court determined plaintiffs were entitled to a fee award under Code of Civil Procedure section 1021.5 and Civil Code section 1780, subdivision (d), and, based on the hours worked by class counsel and reasonable hourly rates, the lodestar amount was nearly $2.3 million. The court found that class counsel had achieved only limited success, but still awarded fees in the lodestar amount after applying positive and negative multipliers that offset each other. The court also awarded approximately $200,000 in costs for a total award of almost $2.5 million. A judgment of dismissal was entered on June 11, 2008. 1117 Sprint filed a timely appeal, challenging the trial court's refusal to approve the fee arbitration provision. Plaintiffs filed a timely cross-appeal, challenging the court's failure to include in the award approximately $300,000 in expenses. Anand also appealed, challenging the reasonableness of the fee award.[3] We jointly consider all the appeals and issue a single opinion. (Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 551 & fn. 3 [96 Cal.Rptr.3d 127].) DISCUSSION I. Appeal No. 122768 (Sprint and Plaintiffs) A. The Trial Court Erred in Refusing to Approve the Fee Arbitration Provision Sprint contends the trial court abused its discretion in refusing to approve the fee arbitration provision in the settlement. We agree. 1. General Principles Regarding Settlement of Class Actions (1) The settlement of a class action requires court approval to prevent fraud, collusion, or unfairness to the class. (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1800 [56 Cal.Rptr.2d 483] (Dunk).) "The court must determine the settlement is fair, adequate, and reasonable. [Citations.] The purpose of the requirement is `the protection of those class members, including the named plaintiffs, whose rights may not have been given due regard by the negotiating parties.' [Citation.]" (Id. at p. 1801, fn. omitted.) "`The court has a fiduciary responsibility as guardian[] of the rights of the absentee class members when deciding whether to approve a settlement agreement.' [Citations.]" (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 129 [85 Cal.Rptr.3d 20] (Kullar).) (2) "The trial court has broad discretion to determine whether the settlement is fair. [Citation.] It should consider relevant factors, such as the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement. [Citation.] . . . Due regard should be given to what is otherwise a private consensual agreement between the parties. The inquiry 1118 `must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.' [Citation.]" (Dunk, supra, 48 Cal.App.4th at p. 1801; see also In re Microsoft I-V Cases (2006) 135 Cal.App.4th 706, 723 [37 Cal.Rptr.3d 660] (Microsoft).) "[A] presumption of fairness exists where: (1) the settlement is reached through arm's-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small. [Citation.]" (Dunk, at p. 1802; see also Microsoft, at p. 723.) "Public policy generally favors the compromise of complex class action litigation. [Citation.]" (Microsoft, at p. 723, fn. 14; see also 7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1151 [102 Cal.Rptr.2d 777] (7-Eleven).) (3) Rule 3.769 of the California Rules of Court sets forth the procedures for settlement of class actions in California. (See also Code Civ. Proc., § 581, subd. (k).) A two-step process is required. First, the court preliminarily approves the settlement and the class members are notified as directed by the court. (Cal. Rules of Court, rule 3.769(c)-(f).) "The notice must contain an explanation of the proposed settlement and procedures for class members to follow in filing written objections to it and in arranging to appear at the settlement hearing and state any objections to the proposed settlement." (Cal. Rules of Court, rule 3.769(f).) Second, the court conducts a final approval hearing to inquire into the fairness of the proposed settlement. (Cal. Rules of Court, rule 3.769(g).) If the court approves the settlement, a judgment is entered with provision for continued jurisdiction for the enforcement of the judgment. (Cal. Rules of Court, rule 3.769(h).) Trial court orders approving class action settlements and awarding attorney fees are reviewed for abuse of discretion. (7-Eleven, supra, 85 Cal.App.4th at pp. 1145-1146, 1164.) "The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712 [76 Cal.Rptr.3d 250, 182 P.3d 579], fns. omitted.) Moreover, "`[t]he discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown. [Citation.]'" (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355 [188 Cal.Rptr. 873, 657 P.2d 365] (Westside); see also Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393-394 [33 Cal.Rptr.3d 644].) 1119 2. The Trial Court Lacked a Legal Basis to Refuse to Approve the Fee Provision (4) In reviewing an attorney fee provision in a class action settlement agreement, the trial court has an independent duty to determine the reasonableness of the award. (Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 128 [12 Cal.Rptr.3d 737]; Dunk, supra, 48 Cal.App.4th at p. 1801.) The court should also consider whether there is any evidence of fraud or collusion in the fashioning of any agreement as to attorney fees. (Dunk, at p. 1801.) As the Dunk court explained, "`. . . "[A] defendant is interested only in disposing of the total claim asserted against it[;] . . . the allocation between the class payment and the attorneys' fees is of little or no interest to the defense." [Citations.] . . . [¶] [T]he divergence in financial incentives [between the class and counsel] creates the "danger . . . that the lawyers might urge a class settlement at a low figure or on a less-than-optimal basis in exchange for red-carpet treatment for fees." [Citations.]' [Citation.]" (Dunk, supra, 48 Cal.App.4th at p. 1808.) The trial court in this case expressly found that the fee range provided for in the fee arbitration provision was reasonable. From the class members' perspective, review of the reasonableness of the fee award is a safeguard against the possibility of collusion. "If fees are unreasonably high, the likelihood is that the defendant obtained an economically beneficial concession with regard to the merits provisions, in the form of lower monetary payments to class members or less injunctive relief for the class than [the defendant] could otherwise have obtained." (Staton v. Boeing Co. (9th Cir. 2003) 327 F.3d 938, 964.)[4] At the time the trial court determined the fee range was reasonable, the court had before it extensive documentation and argument from plaintiffs. This included plaintiffs' oral and written argument justifying a fee award at the maximum end of the range in light of the benefits of the settlement and the difficulty and risk of the litigation, as well as six declarations from class counsel documenting the hours expended on the litigation and the reasonableness of the hourly rates. In its order, the court stated: "Based on the [c]ourt's knowledge of the case and the representations at the hearing, the [c]ourt is comfortable that the range is reasonable and that the arbitrator could award fees and costs anywhere in the range without abusing his or her discretion." Because the trial court found that a fee award 1120 at even the top of the range would not be excessive, the purposes of review of the award for reasonableness were satisfied from the perspective of the class.[5] Not only did the trial court find the fee range reasonable, but it also found there was no evidence of collusion. The court made that finding based on briefs on the collusion issue from the parties and an objector, and declarations from counsel regarding the settlement negotiation process. The court found the parties reached agreement on the material terms of the settlement before negotiating a fee for class counsel, class counsel did not seek a larger fee award in exchange for a smaller class recovery, and "the substantive settlement was not linked to the fee award in a way that might have prejudiced the members of the class." The fact that class counsel did not receive "red-carpet treatment" on fees (Dunk, supra, 48 Cal.App.4th at p. 1808) also justified diminished concern about collusion. Class action settlements frequently contain a "clear sailing" agreement, whereby the defendant agrees not to object to an attorney fee award up to a certain amount. (See Consumer Privacy Cases, supra, 175 Cal.App.4th at pp. 552-553.) Plaintiffs in this case obtained no such agreement; instead they secured only an agreement to a range with a floor equal to their expenses and a ceiling slightly lower than class counsel's lodestar plus expenses with no multiplier. At the fee determination stage, Sprint vigorously opposed plaintiffs' request for fees at the top of the range and argued plaintiffs should receive an award at the bottom of the range. Finally, the parties' agreement that the substantive terms would stand even if the court refused to approve the fee arbitration provision significantly reduced the possibility of any conflict of interest affecting the substantive terms of the settlement. (See Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 450 [25 Cal.Rptr.3d 387] (Robbins).) Although the trial court found reasonable the range of fees in the fee arbitration provision and found the provision was not the product of collusion, the court declared the provision "void in its entirety" because it did not provide for the participation of objecting class members in the arbitration. Notably, the notice to the class of preliminary approval of the settlement described the range of permissible fee awards in the arbitration. The objectors had an opportunity to present their objections to the settlement's fee provision in light of the documentation provided by plaintiffs' counsel; objector Gray did in fact present his objections to the fee provision in writing and at 1121 the hearing on approval of the settlement.[6] And the documentation provided by plaintiffs at the approval stage alone would have been sufficient to support a fee award determination. (See Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 254-255 [110 Cal.Rptr.2d 145] (Wershba).) Nevertheless, the court asserted, "[t]he settlement agreement (and the included fee and cost arbitration provision) is between the class and Sprint, so the members of the class should have the opportunity to make filings and presentations at the fee arbitration ...."[7] The court also asserted that it "has the obligation to ensure both that a class settlement is substantively fair and that the settlement process is transparent and permits class members to participate." (5) The trial court's statements reflect a misapprehension of the limited role of unnamed class members in class actions, including in settlements. "A class action is a representative action in which the class representatives assume a fiduciary responsibility to prosecute the action on behalf of the absent parties. [Citation.] The representative parties not only make the decision to bring the case in the first place, but even after class certification and notice, they are the ones responsible for trying the case, appearing in court, and working with class counsel on behalf of absent members. The structure of the class action does not allow absent class members to become active parties, since `to the extent the absent class members are compelled to participate in the trial of the lawsuit, the effectiveness of the class action device is destroyed.' [Citation.] The very purpose of the class action is to `relieve the absent members of the burden of participating in the action.' [Citation.]" (Earley v. Superior Court (2000) 79 Cal.App.4th 1420, 1434 [95 Cal.Rptr.2d 57], fn. omitted.) The court's responsibility to scrutinize the fairness of settlements rests, in part, on the fact that unnamed class members are not direct participants in settlement negotiations. (See Mark v. Spencer (2008) 166 Cal.App.4th 219, 227 [82 Cal.Rptr.3d 569].) In this case, there was particularly little justification for the participation of unnamed class members in the fee arbitration because, although the amount of the fee arbitration award was of great concern to Sprint, the award would have had no direct impact on the class members, who would have received the same relief regardless of the results of the arbitration. (Cf. Robbins, supra, 127 Cal.App.4th at pp. 449-450 [size of attorney fee award in shareholders' derivative suit will have "direct pecuniary impact on the shareholders, or the 1122 corporation, or both, as the negotiated fee can or might reduce the amount of any common fund recovered by the stockholders as a result of the litigation, be paid out of the corporation's assets, or where covered by insurance, result in increased premiums or difficulty in obtaining insurance in the future"].) In other words, the class members had no clear interest in determining the amount class counsel received within the range specified in the settlement agreement.[8] A similar point was made by the court in State of New York v. Philip Morris Inc. (N.Y.App.Div. 2003) 308 A.D.2d 57 [763 N.Y.S.2d 32], which involved the settlement of a class action against the tobacco company defendants. The trial court approved a settlement agreement under which the amount of fees would be determined by a panel of arbitrators if the defendants' and the plaintiffs' counsel were unable to agree on a fee. (Id. at pp. 59-61.)[9] The State of New York was not separately represented at the arbitration, "because any fee award would come solely out of [the] defendant tobacco companies' pockets and would not affect the [s]tate's recovery in any fashion." (308 A.D.2d at p. 66.) The court pointed out that "[t]he whole concept of `collusion' ... makes no sense in the context of this litigation. If the tobacco defendants had wanted to `collude' in paying too high a legal fee, ... they could have reached an agreement with [o]utside [c]ounsel without going through the time, expense and uncertainty of arbitration." (Ibid.) That reasoning applies equally in this case. (6) Moreover, the decisionmaking process in class actions is not, generally speaking, transparent to the unnamed class members, whether the decisions relate to litigation strategy or the settlement process. This lack of transparency is reflected in the limited ability of objectors to obtain discovery regarding settlement negotiations. "`It is well established ... that objectors are not entitled to discovery concerning settlement negotiations between the parties without evidence indicating that there was collusion between plaintiffs and defendants in the negotiating process.' [Citations.]" (Cho v. Seagate Technology Holdings, Inc. (2009) 177 Cal.App.4th 734, 748 [99 Cal.Rptr.3d 1123 436].) Ultimately, the key consideration for the trial court is the substantive fairness of the settlement terms, as well as the reasonableness of the fee award and any evidence of collusion, rather than the transparency of the process by which the terms of the settlement were accomplished. As the court stated in In re Corrugated Container Antitrust Litigation (5th Cir. 1981) 643 F.2d 195, 212: "[T]he district court's most important function in reviewing compromises of class actions is its consideration of the settlement terms. [Citation.] It is, ultimately, in the settlement terms that the class representatives' judgment and the adequacy of their representation is either vindicated or found wanting." The fee arbitration contemplated in this case effectively would have been an extension of the settlement negotiations; it was the process settled upon by the parties for determining a fee award amount within the range presented to the trial court for approval. If the parties had been able to agree upon a single figure to present to the trial court, the objectors would have had no opportunity to participate in the determination of that figure. Moreover, under the fee arbitration provision, the unnamed class members would not have been denied adequate opportunity to address the issue of attorney fees. After tentative approval of the settlement, the unnamed class members had an opportunity to present any evidence of collusion and to object to the reasonableness of the fee range provided for in the agreement, in light of plaintiffs' extensive documentation. The objectors would have had no greater opportunity to object had the agreement been for a specific amount of fees. It is instructive to compare this case to Wershba, supra, 91 Cal.App.4th 224. There, the parties reached a settlement on the merits of a class action but were unable to reach a settlement on fees. (Id. at p. 232.) The issue was submitted to mediation before a retired judge and concluded with a "`last offer'" or "`baseball'" arbitration "based upon briefing and argument by the parties." (Id. at pp. 232, 254.) The mediator selected the figure proposed by the defendant and the entire settlement was preliminarily approved by the trial court and fully approved after a hearing in which objectors participated. (Id. at pp. 232-234.) On appeal, an objector contended the award of fees was improper because it was not based on either the lodestar method or the percentage of recovery method, "but rather was the result of an arbitrary procedure whereby the mediator was instructed to choose between [the defendant's] last offer and the plaintiffs' attorneys' last demand." (Id. at p. 254.) The Court of Appeal rejected that argument because "[t]he [trial] court made clear that it did not use this method for calculating attorney fees, but that it was making `an independent assessment of the appropriate amount' of a fee award and on that basis found that the fees requested were `reasonable.'" (Ibid.) The difference between the present case and Wershba is that the trial court here made the determination of reasonableness as to the range of fee awards before the fee arbitration took place. It appears the trial 1124 court in Wershba had no more information before it regarding the hours spent by class counsel on the class action than the trial court in this case did at the time it refused to approve the fee arbitration provision. (Id. at pp. 254-255.) Thus, the objectors in Wershba had no greater opportunity to participate in the determination of the amount of fees obtained by class counsel than the objectors would have had in this case under the settlement agreement.[10] What is unexplained in the trial court's ruling in this case is why the objectors must be permitted to participate in the arbitration to determine the ultimate figure simply because the parties were able to agree only on a fee range or because they did not conduct the arbitration before presenting the settlement agreement to the court.[11] (7) It is true that, had the settlement agreement provided for the trial court to determine the amount of fees, objectors would have had an opportunity to participate in that process. In fact, counsel for objectors in the present case did participate in the court's fee determination proceedings. However, the fact that objectors might have that opportunity where a court is determining the amount of fees does not mean the trial court in this case had a legal basis to require the participation of objectors in the arbitration. As noted previously, the "purpose" of requiring court approval of class action settlements is to protect class members "...`... whose rights may not have been given due regard by the negotiating parties.' [Citation.]" (Dunk, supra, 48 Cal.App.4th at p. 1801.) Objectors may participate in settlement approval proceedings relating to fees to assist in determining whether there is any indication of collusion and the reasonableness of the overall fee award. (Id. at pp. 1800-1801; accord, Microsoft, supra, 135 Cal.App.4th at p. 723.) Where, as here, the objectors have had an opportunity to present their views on those matters, in light of documentation adequate to support a reasonableness determination, and the trial court has determined there was no collusion and 1125 the fee range is reasonable, the court has satisfied the purposes of its review of the agreement on fees. (See Dunk, at p. 1801 [the court's inquiry "`must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of'" collusion and that the settlement is reasonable].)[12] Here, the trial court's refusal to approve the fee arbitration provision was not tethered to that purpose; that is, the trial court's requirement of objector participation in the arbitration lacked any nexus to the goal of protecting unnamed class members, whose interests would not have been affected by the fee arbitration. Ultimately, the court misapprehended its role in the class action settlement process and failed to give "[d]ue regard ... to what is otherwise a private consensual agreement between the parties." (Dunk, at p. 1801; see also Evans v. Jeff D. (1986) 475 U.S. 717, 726-727 [89 L.Ed.2d 747, 106 S.Ct. 1531].) Importantly, the trial court could have, and perhaps should have, delayed final approval of the settlement, including determination of the reasonableness of the fee award, until after the arbitration, which would have made this case essentially identical to Wershba, supra, 91 Cal.App.4th 224.[13] However, in the circumstances of this case, the court had no legal basis to refuse to approve the fee arbitration provision for lack of objector participation. The trial court's ruling was particularly problematic in light of the public policies favoring arbitration and the settlement of complex class actions. (See Bouton v. USAA Casualty Ins. Co. (2008) 43 Cal.4th 1190, 1203 [78 Cal.Rptr.3d 519, 186 P.3d 1]; Microsoft, supra, 135 Cal.App.4th at p. 723, fn. 14.) The trial court abused its discretion in refusing to approve the fee arbitration provision. (See Westside, supra, 33 Cal.3d at p. 355.) B. Sprint Has Not Shown It Was Prejudiced by the Trial Court's Error Although Sprint has shown the trial court abused its discretion in refusing to approve the fee arbitration provision, the error is not cause to reverse the judgment unless Sprint demonstrates prejudice. 1126 (8) Under article VI, section 13 of the California Constitution, "No judgment shall be set aside ... for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (See also Code Civ. Proc., § 475 [a judgment may be reversed only for prejudicial error, and prejudice may not be presumed]; Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 347-348 [48 Cal.Rptr.3d 875].) Under People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243] (Watson), the miscarriage of justice standard for reversal requires a showing "that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (See also Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802 [16 Cal.Rptr.3d 374, 94 P.3d 513] (Cassim).) "`[A] "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]" (Cassim, at p. 800.) The Watson test applies to the type of error at issue in this case, which involves submission of the fee determination to the trial court rather than to the arbitrator selected by the parties. (See Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d 1383, 1397 [1 Cal.Rptr.2d 446] (Beasley) [Watson test applied where trial court erred in submitting an equitable issue to the jury]; see also Cassim, at pp. 801-802 [citing Beasley with approval].) Sprint acknowledges the Watson test of prejudice applies. It argues it is reasonably probable the arbitrator's fee award would have been more favorable to it because, due to the "minimal practical benefits" obtained by plaintiffs in the settlement, there was "ample ground for reducing class counsel's fees far below the lodestar." Sprint emphasizes, among other things, that plaintiffs obtained no monetary recovery, despite the fact that plaintiffs' "economist" calculated "$789 million in damages" for a California class alone; the injunctive relief allows class members to unlock their handsets in only limited circumstances, at the end of a lengthy contract term or after payment of a significant early termination fee; there is no evidence unlocked handsets can be used on other service providers' networks; and the other provisions of the settlement provide little practical benefit. Sprint makes a strong argument that the arbitrator selected by the parties could reasonably have exercised his discretion to apply a significant negative multiplier to class counsel's lodestar, but Sprint fails to appreciate the difficulty of showing prejudice in the circumstances of this case. The present case is not analogous to those in which a piece of relevant evidence was excluded at trial, or where a jury was exposed to improper evidence, argument, or instructions. In such circumstances, it is relatively straightforward for the reviewing court to analyze whether, for example, it is reasonably probable the jury would have rendered a different verdict had inadmissible evidence been excluded. (See, e.g., People v. Lindberg (2008) 45 Cal.4th 1, 26 1127 [82 Cal.Rptr.3d 323, 190 P.3d 664].) The prejudice issue in this case is not whether the outcome would have been different had the decision maker considered different evidence, instructions, or argument. Instead, Sprint must show it is reasonably probable the arbitrator would have reached a more favorable conclusion based on the same evidence and argument presented to the trial court. In this context, it is not enough for Sprint to show that a different reasonable decision maker could have rendered a more favorable fee determination. Instead, Sprint must show a likelihood that it was denied a fair and impartial determination of the issue. The error in this case is comparable to that in Beasley, supra, 235 Cal.App.3d 1383. In that case, a class action challenging a bank's fees assessed to credit card customers, the trial court erred in submitting to the jury the legal question of whether the fees were valid as liquidated damages. (Id. at pp. 1388-1389.) The Court of Appeal rejected the bank's contention the error was reversible per se and required the bank to show actual prejudice under the Watson test. (Beasley, at pp. 1396-1397.) The validity question turned on an assessment of witness credibility, but the court did not frame the prejudice issue as whether the evidence was such that the trial court could have reached a different conclusion than the jury. Instead, the court framed the issue in terms of the fairness of the proceedings: "the presumption is indulged that [the appellant] had a fair trial, and [the appellant] has the burden of showing otherwise. [Citation.]" (Id. at p. 1397; see also Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1704 [283 Cal.Rptr. 128] (Gann) ["it is presumed that the party had the benefit of a fair and impartial trial"].) The court acknowledged this presented a great obstacle to relief on appeal, stating, "[i]ndeed, it is difficult to conceive how actual prejudice might be demonstrated in such a situation." (Beasley, at p. 1397; see also Gann, at p. 1704.) (9) The burden of showing actual prejudice is very onerous in this case as well. It is well established that "[t]he `experienced trial judge is the best judge of the value of professional services rendered in his [or her] court ....' [Citations.]" (Serrano v. Priest (1977) 20 Cal.3d 25, 49 [141 Cal.Rptr. 315, 569 P.2d 1303] (Serrano); see also Consumer Privacy Cases, supra, 175 Cal.App.4th at p. 556.) Sprint does not argue the trial court abused its discretion in determining the amount of the ultimate fee award, and it points to nothing in the trial court's order indicating that the court misunderstood the nature of the action or settlement. Absent a showing of actual bias, equivalent unfairness, or some other exceptional circumstance, it is entirely speculative whether, based on the same evidence and argument, the arbitrator selected by the parties would have applied a larger negative multiplier to the 1128 fee award.[14] This is particularly true in light of the careful consideration reflected in the trial court's order on fees[15] and the fact that the agreed-upon range already accounted for the minimal success to some extent, since the top of the range was class counsel's lodestar with no multiplier.[16] Moreover, the arbitrator might have awarded the over $300,000 in expenses that the trial court declined to award under the applicable fee shifting statute. This does not mean that Sprint was without any effective remedy when the trial court refused to approve the fee arbitration provision. Immediate review by extraordinary writ was an available vehicle to challenge the trial court's ruling. (Beasley, supra, 235 Cal.App.3d at p. 1397; Gann, supra, 231 Cal.App.3d at p. 1704.) "[A]s a practical matter, by omitting to seek immediate writ review, [the defendants] presented [themselves] with the daunting (perhaps impossible) task of proving actual prejudice on appeal." (Beasley, at p. 1398.) One reason to allow judgments to stand where the error relates only to the identity of the decision maker is the aggrieved party "should not be able to play `Heads I win. Tails you lose' by waiting until after judgment to seek review." (Gann, at p. 1704; see also McIntosh v. Bowman (1984) 151 Cal.App.3d 357, 363 [198 Cal.Rptr. 533].) Moreover, this approach to prejudice avoids the waste of judicial resources that would result from reversing the trial court's judgment as to the fee award where the court's error could have been corrected before the trial court conducted its fee determination proceedings. (Beasley, at p. 1398; see also Byram v. Superior Court (1977) 74 Cal.App.3d 648, 654 [141 Cal.Rptr. 604].) (10) We therefore conclude that, although the trial court erred in refusing to approve the fee arbitration provision, the error is not a basis for reversal 1129 because Sprint has failed to demonstrate any actual prejudice. (See Beasley, supra, 235 Cal.App.3d at p. 1398.) C. Plaintiffs Have Forfeited Their Claim on Cross-Appeal[] II. Appeal No. A122765 (Anand)[] DISPOSITION The trial court's judgment is affirmed. All parties shall bear their own costs on appeal. Jones, P. J., and Needham, J., concurred. NOTES [] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I.C and II. [1] The initial complaint in this case also challenged the validity of early termination fees in Sprint's cell phone contracts. The case was consolidated with other actions concerning other cell phone service providers' termination fees and handset locking practices. Thereafter, the trial court directed that the handset locking claims against Sprint be resolved separately from the other claims. [2] The agreement's fee arbitration provision states in pertinent part: "Sprint shall pay reasonable attorneys' fees, costs and expenses in an amount to be determined by binding arbitration to be concluded within 30 days after [f]inal [a]pproval of the settlement. In that arbitration proceeding, Sprint shall not ask that attorneys' fees, costs and expenses be determined to be lower than $500,000, and [c]lass [c]ounsel shall not ask for attorneys' fees, costs and expenses be paid in an amount higher than $2,950,000. Class [c]ounsel will apply to the [c]ourt for approval of its attorneys' fees and costs, and that [a]pplication shall indicate that the fee award will be heard and determined by binding arbitration within 30 days following the [f]inal [a]pproval [h]earing, but that the amount of fees, costs and expenses awarded will be no less than $500,000 nor more than $2,950,000, all inclusive." [3] On August 26, 2009, we dismissed an earlier appeal by Anand in Cellphone Termination Fee Cases (A121576) (Alameda County Super. Ct. JCCP No. 4332I). [4] "`California courts may look to federal authority for guidance on matters involving class action procedures.' [Citations.]" (Apple Computer, Inc. v. Superior Court (2005) 126 Cal.App.4th 1253, 1264, fn. 4 [24 Cal.Rptr.3d 818].) [5] The trial court did not find that disapproval of the fee arbitration provision was necessary to ensure that class counsel received an adequate fee because, for example, the bottom of the range was too low to constitute a reasonable fee for class counsel. Accordingly, we need not and do not address whether there may be circumstances justifying disapproval of a fee arbitration agreement on such grounds. [6] As we discuss later, the trial court could have withheld final approval until after the fee arbitration, in which case the objectors could have presented any objections to the actual fee award selected by the arbitrator. [7] Subsequently, the trial court reached the opposite conclusion, finding that the parties to the settlement agreement were Sprint and the class representatives, which prevented class members from participating in the arbitration under the arbitration association rules. The court did not address how that conclusion affected its earlier justification for requiring the participation of unnamed class members in the arbitration. [8] Plaintiffs do not contend the California Rules of Court provide objectors a right to participate in fee arbitrations. California Rules of Court rule 3.769(f) simply provides for notice to the class and an opportunity to "appear at the settlement hearing and state any objections to the proposed settlement." The objectors in this case did have an opportunity to present their objections to the settlement, including their objections to the fee range in the fee arbitration provision, in light of the documentation provided by plaintiffs. Rule 23(e) of the Federal Rules of Civil Procedure (28 U.S.C.), relating to settlement of class actions, also provides only a right to present objections. Federal Rules of Civil Procedure, rule 23(h) (28 U.S.C.), relating to attorney fees awards, provides a right to object to motions for fees, gives the court discretion to hold a hearing, and permits the court to refer issues to a special master or magistrate judge, without providing for participation by objectors in such proceedings. [9] Approval of the settlement had occurred in an earlier decision, State of New York v. Philip Morris Inc. (N.Y.App.Div. 1999) 263 A.D.2d 400 [693 N.Y.S.2d 36]. [10] The trial court cited to Wershba in its order on fees, adding a parenthetical, "arbitrator decided what fees the parties would submit to the [c]ourt, but the [c]ourt made `an independent assessment of the appropriate amount' in a public proceeding." In fact, the trial court in Wershba merely determined that the amount selected by the arbitrator was reasonable (Wershba, supra, 91 Cal.App.4th at p. 254), which is the same determination made by the trial court in this case regarding the range provided for in the fee arbitration provision. [11] Although apparently somewhat uncommon, arbitrations to determine fee awards in class actions are not unknown. (See Bradlow v. Castano Group (U.S. Dist. Ct., N.D.Cal., Apr. 3, 2008, No. C06-05344 MJJ) 2008 WL 929613 [nonpub. opn.]; Brown & Williamson Tobacco Corp. v. Chesley (2004) 7 A.D.3d 368 [777 N.Y.S.2d 82]; State of New York v. Philip Morris Inc., supra, 308 A.D.2d 57 [763 N.Y.S.2d 32]; Wershba, supra, 91 Cal.App.4th at p. 232; Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117, 1144 [269 Cal.Rptr. 844]; see also Dickerson, Class Actions: The Law of 50 States (2009) § 10.01, p. 10-5 ["Alternatively, the parties may provide in stipulation of settlement that a panel of arbitrators may resolve such issues as attorneys' fees."]; Kullar, supra, 168 Cal.App.4th at pp. 122-124 [fee amount determined in mediation].) There is no indication in any of these cases that objectors participated in the fee arbitrations. [12] The full language from Dunk, previously quoted in full (pp. 1117-1118, ante), instructs the trial court to watch out for fraud, overreaching, or collusion and to ensure that the settlement is "`fair, reasonable and adequate to all concerned.'" (Dunk, supra, 48 Cal.App.4th at p. 1801.) For the sake of simplicity, we refer only to collusion and reasonableness. We believe the reasonableness inquiry encompasses the fairness and adequacy of the settlement. It is conceivable that in some cases there could be fraud or overreaching without collusion, but in this case the trial court considered all the concerns raised by the objectors under the rubrics of collusion and reasonableness. [13] That suggestion was made by Sprint's counsel below, who told the trial court, "if Your Honor would feel more comfortable retaining jurisdiction so we can go have the fee arbitration ... and then come back here for your ultimate approval, that would be acceptable." [14] Sprint asserts it preferred to have the fee award determined by an arbitrator rather than by Judge Sabraw because of prior decisions the judge made that were favorable to plaintiffs. On March 11, 2009, Sprint filed a request for judicial notice of two prior decisions of Judge Sabraw, which it contends are relevant on this point. We grant the request for judicial notice. However, the decisions do not demonstrate any bias on the part of Judge Sabraw, and, in fact, Sprint disclaims any contention that the judge was biased. Sprint does claim it perceived Judge Sabraw had a favorable view of class counsel's performance, but Sprint acknowledges that does not constitute the type of bias that can render a proceeding unfair. (See Liteky v. United States (1994) 510 U.S. 540, 550-551 [127 L.Ed.2d 474, 114 S.Ct. 1147].) [15] The trial court acknowledged the "strong dispute" between the parties regarding the benefit conferred on the class and discussed each of the substantive elements of the settlement in light of the parties' arguments and evidence. The court recognized that the settlement would confer a monetary benefit on "a relatively small percentage of the total class" and that plaintiffs' contention that the settlement would be a catalyst for change in the industry was speculative. [16] The trial court's award actually reduced the lodestar by applying a negative multiplier of 0.75 in light of plaintiffs' limited success, but offset that reduction with a positive multiplier for the contingent risk assumed by counsel and for counsel's effective coordination of cases in different states. [] See footnote, ante, page 1110.	{ "pile_set_name": "FreeLaw" }
300 S.E.2d 869 (1983) George T. HEERY, Stanley Meyerson, Thomas B. Crumpler, and Mrs. Lean Pippin v. TOWN OF HIGHLANDS ZONING BOARD OF ADJUSTMENT: John Baumrucker, Ligon Creswell, Emma Pell, Eugene Houston and Carl Tally; The Board of Commissioners of the Town of Highlands: Harry T. Wright, Mayor, Neville Bryson, John Cleaveland, Steve Pierson, Ron Sanders and Charles Zachary; and Shelby Place, Ltd., and Jack Faul, Trustee. No. 8230SC471. Court of Appeals of North Carolina. April 5, 1983. 870 Herbert L. Hyde, Asheville, for petitioners-appellees. Coward, Coward & Dillard by Orville D. Coward, Jr., Franklin, for respondents-appellants. HEDRICK, Judge. Respondents contend that petitioners lacked standing to seek review of the Zoning Board of Adjustment's decision. N.C. Gen.Stat. § 160A-388(e) authorizes an "aggrieved party" to seek review of board of adjustment decisions made under zoning ordinances. Thus, petitioners had standing only if they were aggrieved persons within the meaning of the statute. Earlier versions of N.C.Gen.Stat. § 160A-388, which contained review provisions similar to the present statute, were interpreted to mean that "the appealing party must have some interest in the property affected." Pigford v. Bd. of Adjustment, 49 N.C.App. 181, 270 S.E.2d 535 (1980), disc. rev. denied and appeal dismissed, 301 N.C. 722, 274 S.E.2d 230 (1981) (citations omitted). However, the "property affected" is not limited to the property subject to the special use permit. An order of a board of adjustment which exceeds its authority under the zoning ordinance may be appealed by nearby landowners who will sustain special damage from the proposed use. Jackson v. Board of Adjustment, 275 N.C. 155, 161-162, 166 S.E.2d 78, 82-83 (1969) (emphasis added). The Court defined "special damage" as "a reduction in the value of his [petitioner's] own property." Id. at 161, 166 S.E.2d at 82. Petitioners fail to meet the Pigford and Jackson test for standing. They alleged that they were property owners who would suffer a decline in the value of their land. The Superior Court concluded they had standing because they were property owners and Ms. Pippin's land was adjacent to the proposed development. Yet there was no finding of fact that petitioners would experience a loss in property value. In depositions before the Superior Court, petitioners' claim that general land values in the town would decrease was rebutted by respondents' expert on real estate appraisal. Even more importantly, the petitioners failed to allege, and the Superior Court failed to find, that petitioners would be subject to "special damages" distinct from the rest of the community. Without a claim of special damages, the petitioners are not "aggrieved" persons under N.C.Gen. Stat. § 160A-388(e), and they have no standing. The Superior Court also granted standing on the basis that petitioners were seeking to have declared invalid a portion of the ordinance under which the special use permit had been issued. The ordinance in question authorized issuance of special use permits upon a three-fifths concurring vote of the Board of Adjustment. The ordinance also stated that more restrictive statutory provisions would control. N.C. Gen.Stat. § 160A-388(e) requires special use permits to be granted by at least a 871 four-fifths majority. Since the challenged permit was unanimously agreed to by all five members of Highland's Board of Adjustment, petitioners were not adversely affected by any invalidity in the ordinance concerning the necessary majority. Without being adversely affected by the ordinance, petitioners had no standing to challenge it. Taylor v. City of Raleigh, 290 N.C. 608, 227 S.E.2d 576 (1976). The order appealed from is vacated, and the matter is remanded to the Superior Court for the entry of an order (1) dismissing the petition for a writ of certiorari filed 3 September 1981; (2) vacating the writ of certiorari granted 4 September 1981; and (3) reinstating the amended ruling of the Board of Adjustment dated 8 September 1981. The petitioners and respondents on the appeal to this Court will be taxed one-half (½) each of the costs of appeal. Vacated and remanded. WHICHARD and BRASWELL, JJ., concur.	{ "pile_set_name": "FreeLaw" }
859 So.2d 1049 (2003) Geneva KELLEY and Barry Kelley, Appellants, v. GRENADA COUNTY, Mississippi, Appellee. No. 2002-CA-01265-COA. Court of Appeals of Mississippi. November 18, 2003. 1051 John R. Reeves, Christopher Paul Palmer, attorneys for appellant. John S. Hill, Tupelo, Holly Stubblefield Mathews, attorneys for Appellee. Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ. SOUTHWICK, P.J., for the Court. ¶ 1. Barry and Geneva Kelley filed suit against Grenada County for injuries arising from a collision with a vehicle operated by a sheriff's deputy. The circuit court found that the county was entitled to an immunity for what was only negligent conduct by the deputy. Summary judgment was granted. On appeal, the Kelleys argue that a fact question existed that the officer may have acted in reckless disregard of their safety and was not merely negligent. We find no error and affirm. STATEMENT OF FACTS ¶ 2. In February 2000, at approximately 7:00 P.M., Grenada County Sheriff's Deputy Jimmy Miller was stationed in a parking lot on Highway 7. He received a call from a fellow officer requesting assistance because four people had just stolen a vehicle. Deputy Miller left the parking lot and began driving south on Highway 7. He did not use his siren because of a concern that other vehicles would stop abruptly and cause an accident. Miller recalls reaching to turn on his flashing lights just before the collision occurred. He was not speeding as he responded to this call. ¶ 3. Mrs. Kelley was in her van in a nearby Texaco gas station parking lot also on Highway 7. The lanes of the highway were divided by double solid yellow lines. She was exiting the station, preparing to cross over the highway in order to make a left turn and proceed north on the highway. There was no traffic approaching from Mrs. Kelley's right side. Coming from her left was a pickup that was turning into the station. Mrs. Kelley pulled in front of the truck to cross the highway. ¶ 4. Deputy Miller was close behind the truck that was turning into the station. In order to avoid the truck as it was turning, Deputy Miller crossed over the center double solid lines to steer around it. At the same time, Mrs. Kelley was turning onto the highway. Her van and Deputy Miller's vehicle collided. Mr. Kelley arrived at the scene of the accident within minutes of the collision. ¶ 5. Mrs. Kelley filed suit under the Mississippi Tort Claims Act against the county for her injuries. Mr. Kelley joined in the suit, claiming loss of consortium. The circuit court granted the county's motion for summary judgment based on immunity. From this decision, the Kelleys appeal. DISCUSSION 1. Reckless disregard ¶ 6. A summary judgment is a useful mechanism to determine if there are any fact issues for which a trial is needed or only legal issues for which a trial would be needless. The trial court in granting a summary judgment makes a decision based completely on legal considerations, including that there are no disputes of material fact. On appeal, we review the 1052 same materials as did the trial judge and apply the same standard. Aetna Cas. and Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss. 1996). We decide whether there is a genuine issue of a material fact, and if not, whether the legal conclusions drawn from the undisputed facts are correct. Townsend v. Estate of Gilbert, 616 So.2d 333, 335 (Miss.1993). In order to be material, a factual issue must be "outcome determinative...." Simmons v. Thompson Mach. of Miss., 631 So.2d 798, 801 (Miss.1994). ¶ 7. The Mississippi Tort Claims Act provides the exclusive civil remedy against a governmental entity or its employees for torts. Miss.Code Ann. § 11-46-7(1) (Rev.2002). There are immunities that apply, including the following relevant for today's appeal: (1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: (c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury; Miss.Code Ann. § 11-46-9(1)(c) (Rev. 2002). The governmental actor here was a law enforcement officer. In order for liability to exist, there must be reckless and not merely negligent conduct. ¶ 8. There was discovery in the case on the question. Officer Miller and Mrs. Kelley each gave a deposition. Mr. and Mrs. Kelley executed affidavits regarding the characteristics of the highway at that location. Also submitted were a photograph of Mrs. Kelley's van and the police officer's report of the collision. ¶ 9. The Kelleys argue that there was a genuine dispute as to whether Deputy Miller acted with reckless disregard for the safety of Mrs. Kelley. They claim that he was reckless when he did not sound his siren or flash his lights to alert her of his presence. They also claim he was reckless since he steered around the truck turning into the Texaco station rather than coming to a stop. The county argues that the deputy was merely negligent. ¶ 10. Competing arguments regarding what legal standard better categorizes certain conduct do not create a dispute of fact. There is no evidence disputing Deputy Miller's statement that he was responding to a call for assistance from a fellow officer. He was acting in the scope of his duties as a deputy when the collision with Mrs. Kelley occurred. There is no evidence that Deputy Miller was speeding when the collision occurred. He testified under oath that he was not exceeding the speed limit of 55 miles per hour. Mrs. Kelley never claimed Deputy Miller was speeding. She testified that she never even saw him. Her view was obscured by the truck turning into the station. ¶ 11. Based on these undisputed facts, first the trial court and now this appellate one is to determine whether there is an issue to be tried on whether reckless disregard could be attached as a label to Miller's actions. ¶ 12. Reckless disregard is a high standard. While reckless disregard includes gross negligence, it is a higher standard than gross negligence by which to judge the conduct of officers. City of Jackson v. Lipsey, 834 So.2d 687, 691-92 (Miss.2003). The court's reasoning was that "disregard" of the safety of others is at least negligence if not gross negligence. By placing the word "reckless" before "disregard," the legislature was elevating the standard from simply a disregarding of 1053 the safety of others. Id. at 692. Law enforcement officers are immune from negligence claims. For an officer to be found reckless, the actions must be "wanton or willful." Id. This kind of conduct is only one step removed from specific intent. Turner v. City of Ruleville, 735 So.2d 226, 229-30 (Miss.1999). "Our case law indicates `reckless disregard' embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act." Id. at 230. ¶ 13. We review precedents in which the immunity did not apply in order to understand the nature of the required conduct. In one appeal, the Supreme Court considered a police officer who was speeding without using his siren or flashing his lights when he collided with another vehicle. City of Jackson v. Perry, 764 So.2d 373, 375 (Miss.2000). This officer was not responding to an emergency call but rather going to meet others for dinner. Id. The Supreme Court held the officer's conduct "showed a reckless disregard of the safety and well-being of others." Id. at 378. ¶ 14. In another suit, a deputy sheriff backed his car up an incline to the entrance of the county jail in a non-emergency situation. Maye v. Pearl River County, 758 So.2d 391, 392 (Miss.1999). At the same time, another car was turning into the parking lot and the two cars collided. Id. Although he checked his mirrors before backing up his car, the deputy sheriff testified he could not see the road from the parking lot because his view was obstructed. Id. This was found to be a conscious indifference to the consequences of his actions, and those actions rose above "simple negligence to the level of reckless disregard of the safety and well-being of others." Id. at 395. ¶ 15. We review one final precedent in which immunity was not obtained. A police officer responded to an auto burglary although he was not the primary nor secondary unit. Lipsey, 834 So.2d at 692. The judge found that the officer had not turned on his flashing lights or sounded his siren; the officer admitted to speeding. Id. The Court found that the officer was acting in reckless disregard for the safety of others. Id. at 693. ¶ 16. Of the precedents in which immunity was found, the one that is most analogous here is Maldonado v. Kelly, 768 So.2d 906 (Miss.2000). A deputy was driving a police vehicle when he collided with a citizen. At the time of the accident, a water tower partially blocked the deputy's view at an intersection, but the officer crossed into the intersection anyway and hit another vehicle. The Supreme Court held that the county and officer were entitled to immunity. The needed recklessness was described this way: These terms apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended. The usual meaning assigned to [the] terms is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow. Maldonado, 768 So.2d at 910 (quoting Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 224 n. 3 (5th Cir.1991)). ¶ 17. The court characterized suits in which no immunity was found as having demonstrated an appreciation by the law enforcement official of the risk of injury and also an intentional disregard of this risk. Maldonado, 768 So.2d at 910-11. 1054 The officer in Maldonado did not have this same appreciation of and indifference to the risk. Id. That applies to Miller's actions as well. ¶ 18. Deputy Miller was not speeding and was responding to a call from a fellow officer. He did not sound his siren because he did not want there to be any accidents resulting from motorists coming to an abrupt stop. Though failing to anticipate that another vehicle might be pulling out from the blind spot in front of the truck in front of him, Miller's decision to steer around that turning truck did not exhibit a wilful or wanton disregard for the safety of others. It showed negligence but not virtually a "willingness that harm should follow." ¶ 19. The grant of summary judgment is affirmed. ¶ 20. THE JUDGMENT OF THE GRENADA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANTS. McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.	{ "pile_set_name": "FreeLaw" }
148 Cal.App.3d 849 (1983) CALIFORNIA STATE PSYCHOLOGICAL ASSOCIATION et al., Plaintiffs and Appellants, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents. Docket No. 28003. Court of Appeals of California, Fourth District, Division One. October 21, 1983. 851 COUNSEL Frank L. Asaro and Asaro & Keagy for Plaintiffs and Appellants. Joseph Kase, Jr., Acting County Counsel, Lloyd M. Harmon, Jr., Chief Deputy County Counsel, and Arlene Prater, Deputy County Counsel, for Defendants and Respondents. OPINION STANIFORTH, J. Petitioner California State Psychological Association (CSPA) appeals a judgment of dismissal entered upon an order sustaining without leave to amend the general demurrer of respondent County of San Diego (County) to CSPA's first amended petition. The pleadings allege: CSPA is a nonprofit corporation whose members include psychologists qualified under California law to provide psychological services within the San Diego County Mental Health Services (MHS) program. Coplaintiff Thomas E. Overbaugh is a psychologist practicing in the County of San Diego and a member of CSPA. Respondents are the County, its board of supervisors and the deputy director of mental health services. 852 The County is required to provide a local mental health program under the Short-Doyle Act (Short-Doyle). (Welf. & Inst. Code, § 5600 et seq.) Short-Doyle mandates, in the organization and implementation of a local health program, the County shall include the fullest possible, most appropriate participation of all mental health disciplines including psychology. Under Short-Doyle no regulations shall be adopted nor any procedures implemented which prohibit a psychologist from employment at any local mental health program in any technical or administrative position in mental health services. The complaint alleges the County has adopted a plan which does not comply with Short-Doyle particularly because: (a) the County patient referral procedure is discriminatory resulting in only a limited number of referrals to psychologists; and (b) the County has adopted procedures and practices which preclude psychologists from performing certain functions which psychologists are legally authorized to perform, specifically to hold the position of (1) team leader with overall supervision and clinical responsibility for the evaluation and treatment of adult inpatients and outpatients, (2) clinical coordinator with overall supervision and clinical responsibility for evaluation and treatment of adult outpatients, (3) primary therapist with overall supervision and clinical responsibility for adult patients, and have authority to (4) authorize 72-hour detention or to evaluate and treat an adult so detained, (5) certify an adult for 14 days' intensive treatment and certify an additional 14-day intensive treatment, (6) deny patient rights pursuant to Welfare and Institutions Code section 5326. The petition further alleges the County's practices exclude psychologists from overall review and supervision of patients and the entire evaluation of nonpatients, areas in which psychologists are qualified to practice. These rules, procedures and practices, it is charged, violate the mandatory provisions of Short-Doyle as well as the Lanterman-Petris-Short Act (LPS). CSPA asserts Short-Doyle and LPS present a comprehensive scheme for mental health services in California and local governments are required to organize local mental health services in compliance with these laws; local governments are preempted and precluded from employing or imposing conflicting requirements. It is further alleged the CSPA organization and its members are healing arts practitioners regulated by Business and Professions Code sections 500-4905. Psychologists are required to be licensed. (Bus. & Prof., §§ 2900-2918.) 853 The practice of psychology is particularly defined.[1] Psychologists are authorized to use certain biofeedback instruments (Bus. & Prof. Code, § 2903.1) but the practice of psychology does not include prescribing drugs, performing surgery or administering electroconvulsive therapy. (Bus. & Prof. Code, § 2904.) Psychologists should be distinguished from psychiatrists or physicians who specialize in psychiatry. A physician is licensed under the State Medical Practices Act which is also contained in the healing arts division of the Business and Professions Code. (§ 2000 et seq.) The County filed a general demurrer to this first amended petition for writ of mandate. After a hearing the trial court sustained the demurrer without leave to amend upon the grounds the petition failed to state facts sufficient to issue the writs; and, as the acts sought to be compelled are discretionary, there was no allegation of facts sufficient to show an arbitrary abuse of discretion by the County. In sum, CSPA alleges it is entitled relief in three general areas: (1) the practice of alleged discriminatory referrals to the private sector,[2] (2) duties, practices, procedures and guidelines which exclude psychologists from holding three specified positions, and (3) all the counties' practices, procedures and guidelines but without specific allegations. In short CSPA claims the County does not properly employ and utilize psychologists, thwarting the legislative intent of Short-Doyle and LPS. DISCUSSION In assessing the sufficiency of the petition against a general demurrer, certain basic rules must be observed. (1) We treat the demurrer as admitting all facts properly pleaded (Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 549 [99 Cal. Rptr. 745, 492 P.2d 1137]) and in reviewing an order sustaining a demurrer without leave to amend, the allegations of the petition must be liberally construed. (Youngman v. Nevada Irrigation Dist. 854 (1969) 70 Cal.2d 240, 244-245 [74 Cal. Rptr. 398, 449 P.2d 462].) Taking the facts as pleaded, we then look to the statutes to test their sufficiency. I STATUTORY SCHEME A review of the provisions of both Short-Doyle and LPS (Welf. & Inst. Code, §§ 5000-5466) demonstrates the fundamental goal of these acts is to provide satisfactory service to mentally disabled persons. The State Department of Mental Health is the state's mental health authority and administers both acts as well as other applicable state and federal statutes. The State Department of Mental Health in consultation with the California Conference of Local Mental Health Directors and the Citizen Advisory Counsel also sets broad policy for the delivery of mental health services statewide. It establishes priorities, standards and procedures within which mental health services operate. It monitors, reviews and evaluates the actual operation of the services. The Short-Doyle Act (Welf. & Inst. Code, §§ 5600-5803) was first enacted in 1957. The goal of Short-Doyle is to promote, develop and reimburse costs for an array of support services for persons who are mentally disordered. The services include prevention and control of mental illness through community education, consultation, crisis intervention and emergency care, 24-hour care, outpatient care and long term episode management. (Welf. & Inst. Code, § 5600.) The act recognizes new emphasis upon deinstitutionalization, development of mental health services at the local level and helping persons to remain at least partially self-supportive. Under Short-Doyle counties are responsible for providing mental health services to their residents. Services are provided through a system of local programs and state-operated hospital programs with costs shared by the state and the county through a specified formula method. Annually each county must develop and adopt a mental health program specifiying the services to be provided in county facilities, state hospitals and through private agencies. In 1968 the Legislature passed the Lanterman-Petris-Short Act (Welf. & Inst. Code, §§ 5000-5466) dealing with the civil commitment process for mentally disordered persons and linking voluntary treatment of such persons to community mental health systems. LPS sought to remove financial disincentives for using community rather than state hospital services. LPS protects the rights of civilly committed mentally disordered persons, developmentally 855 disabled persons and persons impaired by chronic alcholism. The act provides for prompt evaluation and treatment while protecting public safety and safeguarding individual rights through judicial review. LPS provides for individualized treatment, supervision and placement through a conservatorship program. The act encourages full use of all existing agencies, professional personnel and public funds to accomplish these objectives, to prevent duplication of service and unnecessary expenditures. The legislative intent of LPS is set forth in Welfare and Institutions Code section 5001; for Short-Doyle in Welfare and Institutions Code section 5600. The primary concern of the code is the satisfactory treatment of the mentally disordered. To meet these legislative goals the County's mental health program must have discretion and flexibility. Neither act interferes with the county's discretion to staff the most satisfactory, efficient mental health service so long as that discretion is not arbitrarily exercised. II LEGISLATIVE INTENT (2) Legislative intent should be gathered from the whole statute or act rather than from isolated parts or words. (Mazza v. Austin (1938) 25 Cal. App.2d 85, 87 [76 P.2d 533].) To find legislative intent, statutes and acts relating to the same subject matter must be read together and harmonized whenever possible, giving effect to each part. (Kalina v. San Mateo Community College Dist. (1982) 132 Cal. App.3d, 48, 53 [183 Cal. Rptr. 12].) Thus the emphasized provisions of Short-Doyle and LPS must be examined in detail as well as in the context of the whole set of complex laws governing county mental health programs. Plaintiffs rely upon section 5751 of the Welfare and Institutions Code but omit certain important provisions: "[P]rovided that any service delivery functions shall be performed within the scope of his or her license. No person shall be considered for a position which is outside his or her scope or licensure. "This section shall not require the hiring of any person. The administrators of the Short-Doyle program shall be responsible for determining who is hired. "Appointments of directors, program chiefs and comparable positions, and unit or treatment team leaders shall be made on the basis of professional competence. No local program or its contractors may restrict such appointments 856 to one discipline. Each local program and its contractors shall consider applications from, and make appointments equally open to, all professions that are eligible pursuant to this section." (Italics added.) Welfare and Institutions Code section 5751.3 also was not cited in full by the plaintiffs. An omitted provision markedly limits the scope of the professionals generally authorized to be used. "[P]rovided that any service delivery functions shall be performed within the scope of his or her license." (§ 5751.3; italics added.) There is no doubt under the provisions of Short-Doyle and LPS a psychologist is eligible for appointment as director of local mental health services. (Cal. Admin. Code, tit. 9, § 620, subd. (b).) And a psychologist who fulfills the criterion set forth in section 624 is eligible to serve as director of inpatient services (§ 663), director of outpatient services (§ 680, subd. (a)), director of partial hospitalization services (§ 690), director of rehabilitative services (§ 740, subd. (a)) and director of consultation, education and information services (§ 716). Psychologists are also eligible to be members of the professional staff in each of these services. The statutes, however, do not mandate or guarantee psychologists must be employed or utilized in any particular positions. For example, marriage, family and child counselors are named in those claimed-to-be "mandatory" hiring provisions of Welfare and Institutions Code sections 5751 and 5751.3, yet, it would strain interpretation of legislative intent beyond the breaking point to say the Legislature intended a child counselor be the director of an acute inpatient hospital facility or the County's adult psychiatric program. The intent of the statute is to encourage full utilization of four specified categories of professionals as appropriate within their particular specialization. III STATE STATUTES The whole legislative scheme (Cal. Admin. Code, tit. 9, subch. 3 and the Short-Doyle Act) concerns authorized psychologist activities. However there are requirements certain functions be performed only by a particular profession such as a physician. For example, title 9, California Administrative Code, section 522, provides: "Medical Responsibility. A physician meeting the qualifications of Section 620(a) shall assume responsibility for all those acts of diagnosis, treatment, or prescribing or ordering of drugs which may be performed by a licensed physician." 857 While title 9, California Administrative Code, section 663, provides the minimum staff for inpatient services (a psychiatrist, psychologist, social worker and nursing staff), this section requires the psychiatrist be available "at all times" and responsible for assuming medical responsibility as defined in section 522. On the other hand the psychologist may be present on a "time-limited basis." Title 9, California Administrative Code, section 680, which provides for minimum staff requirements for outpatient services likewise provides for various health care professionals. However, it is the psychiatrist who must assume medical responsibility as defined in section 522 and be present at least half-time when services are provided. Title 22, division 5 of the California Administrative Code contains regulations for licensing and certification of health facilities. Chapter 2 section 71000 et seq. regulates acute psychiatric hospitals. These hospitals, again, provide services by various categories of professionals, yet there are special requirements calling for psychiatrists. Section 71203 provides: "Medical Service General Requirements. (a) The medical service shall consist of the following organized and staff elements: "(1) Psychiatric component. "(A) A psychiatrist shall be responsible for the diagnostic formulation for each patient and the development and implementation of the individual patient's treatment plan. "(B) A psychiatrist shall be available at all times for psychiatric emergencies. ".... .... .... .... .... .... . "(3) Psychological component. "(A) Psychological service shall be provided by psychologists under the direction of the medical staff." And section 71205 provides in part: "Medical Service Staff. (a) A physician shall have overall responsibility for the medical service. "(b) Psychiatric component. 858 "(1) A psychiatrist shall coordinate the psychiatric services provided. "(2) There shall be sufficient psychiatrists on the staff to meet the needs of the patients. ".... .... .... .... .... .... . "(d) Psychological component. "(1) One or more psychologists shall be employed on a full-time, regular part-time or consulting basis." IV FEDERAL LAW (3) The provisions of LPS and Short-Doyle are but part of a total constellation of laws controlling county mental health programs. A complex range of related requirements, imposed at both state and federal levels, enter into the County's determinations criticized by the petition. (See Admin. Code, tit. 9; tit. 22, div. 5.) Federal as well as state requirements must be met for patients receiving aid when Medi-Cal or Medicare funds are involved. The state acts must be read in light of the requirements of federal statutes, which set forth conditions for hospitals participating in Medicaid and Medicare programs. Every patient must be under the care of a physician. (42 U.S.C. § 1395x(e)(4).) Responsibility for the organization and conduct of the medical staff rests with a physician. (42 C.F.R. § 405.1023.) The director of inpatient services must be a psychiatrist. (42 C.F.R. § 405.1038.) State Medi-Cal services also have certain similar requirements for a physician and psychiatrist who assume medical responsibilities. V THE PETITION (4a) The first amended petition fails to set out facts or law establishing a mandatory duty upon the County to hire a psychologist for any particular position or any of the services required under Short-Doyle or LPS. Nor does the petition allege any facts showing discrimination or arbitrariness by the County in its present hiring practices. The petition contains only conclusory allegations. It does not allege facts to show there has ever been an 859 abuse of discretion nor offer any specifics for how or in what detail the referral system is discriminatory. Plaintiffs emphasize the word "shall" is used throughout the cited provisions and contend this makes their employment mandatory. (5) Whether the term "shall" is directory or mandatory is determined by an examination in its statutory context in light of the legislative intent. Hogya v. Superior Court (1977) 75 Cal. App.3d 122 [142 Cal. Rptr. 325], recited the cardinal rule of statutory construction which requires the court ascertain the intent of the Legislature so as to effectuate the purpose of the law. As to the interpretation of the word "shall" the court said: "[J]ustice is not the slave of grammar, and `shall' has sometimes been judicially construed as directory or permissive [citation]. The pertinent principles of construction in this regard were summarized in People v. Municipal Court, 145 Cal. App.2d 767 ...: `"It is true that `shall,' used in a statute, does not always import that its provisions are mandatory, although in most cases it does. ..." [Citation.] The test is this: "If to construe it as directory would render it ineffective and meaningless it should not receive that construction." [Citations.] Thus, a statute was held to be mandatory where "to construe this provision of the section as directory merely would be to defeat the very purpose of its enactment." [Citation.] "... [I]t appears that if public policy is in favor of the imperative meaning, the words referred to will be held mandatory." [Citation.] "In construing a statute matters of substance are to be construed as mandatory." [Citation.]' (Id., at p. 775.)" (Hogya, at p. 134.) Thus in the final analysis it is the intent of the Legislature that determines the meaning to be given. (Marrujo v. Hunt (1977) 71 Cal. App.3d 972 [138 Cal. Rptr. 220]; Estate of Mitchell (1977) 20 Cal.2d 48 [138 Cal. Rptr. 220].) Considering the goals of the acts to provide an effective and efficient mental health program, various other federal and state statutes and regulations controlling county mental health services, and the nature of patients served by the County's adult services, it cannot be said (assuming the allegations to be true for purposes of the demurrer) the County has abused its discretion by declining to assign psychologists to the particular functions specified in the amended petition. (6) Mandamus issues only to compel the performance of an act which the law specifically enjoins (Code Civ. Proc., § 1085) and will not lie to control discretion within an area lawfully entrusted to the administrative agency. (Faulkner v. Cal. Toll Bridge Authority (1953) 40 Cal.2d 317 [253 P.2d 659].) Courts, as a general principle, will not substitute their judgment 860 or notions of expediency, reasonableness or wisdom for those which have guided the agency. CSPA points to the requirement placed on the county board of supervisors to adopt an annual Short-Doyle plan which "shall provide for the most appropriate and economical use of all existing public and private agencies, licensed private institutions and personnel [and] ... shall include the fullest possible and most appropriate participation by existing city Short-Doyle programs, ... psychologists, social workers, public health nurses, psychiatrict technicians, and all such other public and private agencies...." (Welf. & Inst. Code, § 5650; italics added.) Welfare and Institutions Code section 5653 reiterates the same basic approach. The County Short-Doyle plan shall make optimum use of appropriate local public and private organizations. CSPA also cites the provisions of LPS: "To encourage the full use of all existing agencies professional personnel...." (Welf. & Inst. Code, § 5001, subd. (f).) CSPA emphasizes Welfare and Institutions Code section 5751.3 expresses the legislative intent that "No regulations shall be adopted by the Director of Mental Health which prohibit a psychiatrist, psychologist, [or] clinical social worker ... from employment in a local mental health program...." And section 5751 directs local authorities as to the eligibility requirements for certain executive and administrative positions, stating "Appointments of directors, program chiefs and comparable positions and unit or treatment team leaders shall be made on the basis of professional competence. No local program or its contractors may restrict such appointments to one discipline...." CSPA argues the County has only a ministerial duty in following these statutory objectives. A decree treating these choices as "ministerial" in nature would be a disastrous interference with the day-to-day operations of the MHS program. Clearly, neither hiring nor referral practices are mandated under Welfare and Institutions Code sections 5751 or 5751.3. The code does not interfere with the County's discretion to provide mental health services so long as that discretion is not arbitrarily abused. VI CONCLUSIONS Plaintiffs have cited permissive statutes and regulations which authorize a psychologist to perform certain functions but follow the statutory recitation with only general allegations of discrimination in the hiring and assignment *861 practices of the County. (7) In order to state a cause of action warranting judicial interference with the official acts of the administrative body the plaintiff must allege more than mere conclusions of law; it must allege specific facts from which the conclusions entitling it to relief follow. (Faulkner v. Cal. Toll Bridge Authority, supra, 40 Cal.2d at pp. 329-330.) Plaintiffs have not done so. (4b) After examining this whole complex of laws we reach the unqualified conclusion there is no basis for issuance of a writ of mandate. The provisions relied upon by CSPA must be interpreted to conform to the entire scheme of laws regulating MHS. A pari materia view of this legal framework teaches that full utilization is encouraged, as appropriate, of all mental health professionals, not just psychologists, but also psychiatrists, clinical social workers, and marriage, family and child counselors. Although the California acts provide a multidisciplinary approach to the rendition of medical health services, the law specifically states only certain professionals such as psychiatrists and medical doctors are authorized to fill some positions or perform some duties. No language in any of the acts cited mandates the job assignments sought by CSPA. No statutory provision directs or guarantees that psychologists shall be employed or utilized in particular positions. The County must have discretion and flexibility to provide the most satisfactory services. The request for reasonable attorney fees pursuant to Government Code section 800 and Code of Civil Procedure section 1021.5 is denied. Judgment of dismissal is affirmed. Cologne, Acting P.J., and Wiener, J., concurred. NOTES [1] The statutory definition is rendering and offering to render any psychological service involving the application of psychological methods and procedures of understanding, predicting and influencing behavior; interviewing, counseling, psychotherapy, behavior modification and hypnosis; constructing, administering and interpreting tests of mental abilities, aptitude, interests, attitudes, personal characteristics, emotions and motivations; and the application of such principles in the diagnosis, prevention, treatment and amelioration of psychological problems and emotional and mental disorders. (Bus. & Prof. Code, § 2903.) [2] CSPA admits the current referral procedure (adopted Dec. 31, 1981) is adequate and nondiscriminatory but alleges as of January 15, 1982, in practice referrals were made on a "discriminatory basis."	{ "pile_set_name": "FreeLaw" }
Case: 13-60326 Document: 00513215837 Page: 1 Date Filed: 10/01/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 13-60326 Fifth Circuit FILED October 1, 2015 RENE E. FLORES ESQUIVEL, Lyle W. Cayce Clerk Petitioner, v. LORETTA E. LYNCH, U.S. ATTORNEY GENERAL, Respondent. Petitions for Review of an Order of the Board of Immigration Appeals Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges. E. GRADY JOLLY, Circuit Judge: In this appeal, we reject the Board of Immigration Appeals’s (BIA) interpretation of the statute it administers and vacate the BIA decision under review. We do so because the plain language of the relevant statute clearly contradicts the interpretation that the BIA would give it. Under § 237 of the Immigration and Nationality Act (INA), aliens are rendered removable by most drug convictions, except those that constitute “a single offense involving possession for one’s own use of 30 grams or less of marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i). The BIA has interpreted this “personal-use exception” to cover only offenses that, in addition to constituting “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” are also the “least serious” drug offenses under the law of the state Case: 13-60326 Document: 00513215837 Page: 2 Date Filed: 10/01/2015 No. 13-60326 in which they were committed. Here, the BIA relied solely on this interpretation of the exception in holding the petitioner, Rene Flores Esquivel, ineligible for cancellation of removal. See 8 U.S.C. § 1229b(d)(1). Because we find no statutory basis for the additional requirement that the BIA’s interpretation has tacked onto the personal-use exception, we GRANT Flores’s petition for review, VACATE the BIA’s decision, and REMAND this matter to the BIA for further proceedings. I. Flores is a native and citizen of Mexico. In 2001, when he was 16 years old, he was admitted to the United States as a lawful permanent resident (LPR). In 2003, he was convicted of the Class A misdemeanor of possession of marijuana within 1,000 feet of his high school, a “drug-free zone” under Texas law. Tex. Health & Safety Code Ann. §§ 481.121(b)(1), 481.134(f)(1). According to the probable-cause affidavit, a drug dog assigned to sniff cars in the parking lot of Flores’s high school alerted authorities to the possible presence of narcotics in Flores’s car. The resulting search of the car yielded 4.6 grams of marijuana. In 2011, Flores was again convicted of possession of marijuana, a Class B misdemeanor. Id. § 481.121(b)(1). Flores traveled briefly to Mexico in 2012. When he sought reentry to the United States, the U.S. Department of Homeland Security (DHS) discovered his prior convictions. It then instituted removal proceedings against him, alleging that he was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) because of his 2011 conviction for possession of marijuana. In proceedings before the Immigration Judge (IJ), Flores conceded that the 2011 conviction rendered him inadmissible. He sought relief, however, in the form of cancellation of removal under 8 U.S.C. § 1229b(a). That statute permits an LPR to apply to have the Attorney General cancel his removal, so long as, among other things, the LPR “has resided in the United States 2 Case: 13-60326 Document: 00513215837 Page: 3 Date Filed: 10/01/2015 No. 13-60326 continuously for 7 years.” Id. § 1229b(a)(2). DHS challenged Flores’s eligibility to apply for cancellation of removal, contending that, in the light of his 2003 conviction and § 1229b’s “stop-time rule,” Flores did not satisfy the continuous- residence requirement. The stop-time rule, § 1229b(d)(1), provides that an alien’s period of continuous residence is “deemed to end” when the alien has committed an offense that renders him inadmissible under § 1182(a)(2) or removable under 8 U.S.C. § 1227(a)(2) or (a)(4). Agreeing with DHS, the IJ determined that Flores’s 2003 conviction rendered him inadmissible under § 1182(a)(2)(A)(i)(II), such that, under the stop-time rule, Flores’s period of continuous residence ended in 2003. Accordingly, the IJ concluded that Flores was ineligible for cancellation of removal, and ordered him removed to Mexico. Flores appealed to the BIA. In a single-member ruling, the BIA affirmed the IJ, but on a different ground. The BIA held that Flores’s 2003 conviction triggered the stop-time rule not because (as the IJ had held) it rendered him inadmissible under § 1182(a)(2)(A)(i)(II), but because it rendered him removable under § 1227(a)(2)(B)(i). Nonetheless, the result, according to the BIA, was the same: under the stop-time rule, Flores’s 2003 conviction terminated his period of continuous residence “long before he had accrued the necessary 7 years” to be eligible to apply for cancellation of removal. 1 1 Although it is unclear why the BIA declined to rest its affirmance of the IJ on the ground that Flores’s 2003 conviction rendered him inadmissible under § 1182(a)(2)(A)(i)(II), the BIA may have been influenced by Flores’s rationale for why it should not have done so— that because Flores was not seeking admission in 2003, § 1182(a)(2)’s admissibility requirements are irrelevant. Recently, a panel of this court rejected this rationale, holding that an LPR who is not seeking admission may nonetheless have his period of continuous residence stopped by an offense rendering him inadmissible under § 1182(a)(2). Calix v. Lynch, 784 F.3d 1000, 1005–12 (5th Cir. 2015). Regardless, we may not consider whether, under Calix, the IJ correctly determined that Flores was ineligible for cancellation of removal under § 1182(a)(2)(A)(i)(II), because “we may usually only affirm the BIA on the basis of its stated rationale.” Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010) (citing SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)); see also infra p. 4. 3 Case: 13-60326 Document: 00513215837 Page: 4 Date Filed: 10/01/2015 No. 13-60326 Flores filed a motion to reopen with the BIA, which the BIA denied. He then filed a petition for review with this court. II. Whether an individual is statutorily ineligible for cancellation of removal because of § 1229b(d)(1)’s stop-time rule is a question of law that we review de novo. Miresles-Zuniga v. Holder, 743 F.3d 110, 112 (5th Cir. 2014). When, as here, the BIA’s decision agrees “in certain respects” with the IJ’s decision but does not rely on that decision, “our review is confined to the BIA’s analysis and reasoning.” Enriquez-Gutierrez, 612 F.3d at 407. III. A. The sole question before us is whether the BIA erred in determining that Flores’s 2003 conviction for possession of marijuana in a drug-free zone rendered him removable under § 1227(a)(2)(B)(i). Section 1227(a)(2)(B)(i) provides as follows: Any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable. Flores acknowledges that his conviction constitutes an offense “relating to a controlled substance.” He argues, however, that the conviction nonetheless does not render him ineligible for cancellation of removal because of the “personal-use” exception of § 1227(a)(2)(B)(i). Under the personal-use exception, an alien is not rendered removable by “a single offense involving possession for one’s own use of 30 grams or less of marijuana.” § 1227(a)(2)(B)(i). According to its plain language, then, the exception applies if four elements are met—the offense must be (1) a single offense; (2) involving possession for one’s own use; (3) of 30 grams or less; (4) 4 Case: 13-60326 Document: 00513215837 Page: 5 Date Filed: 10/01/2015 No. 13-60326 of marijuana. See In re Davey, 26 I. & N. Dec. 37, 39 (B.I.A. 2012) (“[The personal-use exception] refers not to a common generic crime but rather to a specific type of conduct (possession for one’s own use) committed on a specific number of occasions (a ‘single’ offense) and involving a specific quantity (30 grams or less) of a specific substance (marijuana).”). Here, Flores has presented evidence—and the government has not disputed—that these four elements are met: Flores’s 2003 conviction was his first; it was for possession for his own use, not for distribution; and he possessed 4.6 grams of marijuana. Thus, we can reach no conclusion other than that the exception applies. 2 B. In concluding to the contrary, the BIA’s decision relied exclusively on the BIA’s interpretation of the personal-use exception, which it first articulated in Matter of Moncada-Servellon, 24 I. & N. Dec. 62 (B.I.A. 2007); see also Davey, 26 I. & N. Dec. at 40 n.3. There, an LPR who had been convicted of possession of marijuana while in prison in violation of a California statute asserted that he was eligible for cancellation of removal under the personal-use exception. Moncada-Servellon, 24 I. & N. Dec. at 63. The BIA disagreed. According to 2 As explained in the text, the BIA has held that, because the personal-use exception “refers not to a common generic crime but rather to a specific type of conduct,” we should apply a “‘circumstance-specific’ inquiry,” Davey, 26 I. & N. Dec. at 39, determining whether an alien’s offense satisfies the exception by “look[ing] to the facts and circumstances underlying [the] conviction.” Nijhawan v. Holder, 557 U.S. 29, 34 (2009); see also Mellouli v. Holder, 719 F.3d 995, 1001–02 (8th Cir. 2013) (applying the circumstance-specific approach to the personal-use exception), rev’d on other grounds sub nom. Mellouli v. Lynch, 135 S. Ct. 1980 (2015); Martel-Martinez v. Holder, 537 F. App’x 757, 758 (9th Cir. 2013) (same); Grant v. Att’y Gen. of the U.S., 492 F. App’x 286, 288–89 (3d Cir. 2012) (same). Here, neither party argues that Davey is incorrect, such that we instead should determine whether the personal- use exception applies using the “categorical approach” outlined by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990). Even under the categorical approach, however, Flores’s 2003 conviction would still satisfy the personal-use exception because no element of the statute of conviction restricts its application to possession of at least 30 grams of marijuana. See Tex. Health & Safety Code § 481.134(f)(1) (making “an offense otherwise punishable under Section . . . 481.121(b)(1) . . . a Class A misdemeanor if it . . . was committed” near a school); id. § 481.121(b)(1) (prohibiting possession of “two ounces or less” of marijuana). 5 Case: 13-60326 Document: 00513215837 Page: 6 Date Filed: 10/01/2015 No. 13-60326 the BIA, the personal-use exception encompasses “the least serious drug violations only—that is, those involving the simple possession of small amounts of marijuana.” Id. at 65. In other words, the BIA read the statutory phrase “possession for one’s own use,” § 1227(a)(2)(B)(i), to be “interchangeable” with “the concept[] of ‘simple possession’.” Id. at 67. Thus, in the BIA’s view, “[t]he personal-use exception is not intended or understood by Congress to apply to offenses that are significantly more serious than simple possession by virtue of other statutory elements that greatly increase their severity.” Id. at 65. And because the LPR’s offense of possessing marijuana in prison was “significantly more serious than simple possession,” the BIA—applying its newly minted interpretation of the personal-use exception—held him ineligible for cancellation of removal. Id. at 64–67. Citing Moncada-Servellon, the BIA here concluded that Flores’s conviction for possession of marijuana in a school zone is, like the conviction for possession of marijuana in prison at issue in Moncada-Servellon, “significantly more serious than simple possession” because it is treated as such under Texas law. Accordingly, the BIA held that Flores is ineligible for cancellation of removal. C. We do not see it quite the same way. We feel compelled to apply the plain language of the personal-use exception, not the gloss put upon it by the BIA in Moncada-Servellon. To be sure, precedential BIA decisions issued by a three-member panel—like the decision in Moncada-Servellon—may be entitled to Chevron deference. See Dhuka v. Holder, 716 F.3d 149, 154–56 (5th Cir. 2013). But “no deference,” under Chevron or otherwise, “is due to agency interpretations at odds with the plain language of the statute itself.” Pub. Emps. Ret. Sys. v. Betts, 492 U.S. 158, 171 (1989); see also Texas v. United States, 497 F.3d 491, 501 (5th Cir. 2007) (“Judicial deference is due only ‘if the 6 Case: 13-60326 Document: 00513215837 Page: 7 Date Filed: 10/01/2015 No. 13-60326 agency interpretation is not in conflict with the plain language of the statute.’” (quoting Nat’l R.R. Passenger Corp. v. Bos. & Me. Corp., 503 U.S. 407, 417 (1992))). For several reasons, we conclude that Moncada-Servellon’s interpretation of the personal-use exception is contrary to the plain meaning of the statute, and thus is not entitled to Chevron deference. First and most importantly, Moncada-Servellon’s interpretation reads into the text of the personal-use exception a requirement that simply isn’t there. See Bates v. United States, 522 U.S. 23, 29 (1997) (“[W]e ordinarily resist reading words or elements into a statute that do not appear on its face.”). As noted, under Moncada-Servellon, an offense does not fall into the personal-use exception if it is “significantly more serious than simple possession.” 24 I. & N. Dec. at 65. But on its face, the personal-use exception says nothing about the severity of the offense in comparison to “simple possession.” Instead, it says only that an offense falls into the personal-use exception if it is “a single offense involving possession for one’s own use of 30 grams or less of marijuana.” § 1227(a)(2)(B)(i). Interpreters “must presume that a legislature says in a statute what it means and means in a statute what it says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992). Here, Congress has said in the statute that aliens are not rendered removable by “single offense[s] involving possession for one’s own use of 30 grams or less of marijuana.” § 1227(a)(2)(B)(i). The BIA’s preferred caveat—basically, “unless that possession occurs in a prison or school zone”—is nowhere to be found. Second, Moncada-Servellon’s interpretation runs afoul of the “elementary canon of construction that when Congress uses different terms, ‘each term is to have a particular, nonsuperfluous meaning.’” Silva-Trevino v. Holder, 742 F.3d 197, 203 (5th Cir. 2014) (quoting Bailey v. United States, 516 U.S. 137, 146 (1995)). In at least five different provisions of the INA, Congress accorded special treatment to aliens whose drug convictions are for “a single 7 Case: 13-60326 Document: 00513215837 Page: 8 Date Filed: 10/01/2015 No. 13-60326 offense of simple possession of 30 grams or less of marijuana.” 8 U.S.C. § 1254a(c)(2)(A)(iii)(II) (emphasis added); see also id. § 1160(c)(2)(B)(ii)(III); id. § 1182(h); id. § 1255(h)(2)(B); id. § 1255a(d)(2)(B)(ii)(II). By contrast, in § 1227(a)(2)(B)(i), Congress spoke not of “simple possession” but of “possession for one’s own use.” The BIA’s interpretation of § 1227(a)(2)(B)(i) equates the two terms, taking Congress to have meant “simple possession” when it said “possession for one’s own use.” Moncada-Servellon, 24 I. & N. Dec. at 67 (“[T]he concepts of ‘simple possession’ and ‘possession . . . for one’s own use’ were understood by Congress to be interchangeable . . . . ”). But the rest of the INA demonstrates that when Congress meant to say “simple possession,” it knew how to do so. Thus, Congress’s use of the term “possession for one’s own use” suggests that it meant just that—possession of marijuana for the alien’s own use, without regard to whether the possession takes place in a prison, a school, or elsewhere. Finally, the practical consequences of Moncada-Servellon’s interpretation indicate it a most unlikely reflection of congressional intent. Again: under Moncada-Servellon the determinative question with respect to the personal-use exception is whether the alien’s offense of conviction was “significantly more serious than simple possession by virtue of other statutory elements that greatly increase [its] severity.” 24 I. & N. Dec. at 65. Accordingly, because Flores possessed marijuana in a school zone, and because Texas law treats possession of marijuana in a school zone as more serious than possession of marijuana elsewhere, see Tex. Health & Safety Code Ann. § 481.134(f)(1), the BIA concluded that Flores is not entitled to the personal- use exception. This interpretation of § 1227(a)(2)(B)(i) produces anomalous and arbitrary consequences, however, because some states do not distinguish between possession in a school zone and possession generally. See, e.g., Miss. Code Ann. § 41-29-142(1) (prescribing enhanced penalties for a list of drug 8 Case: 13-60326 Document: 00513215837 Page: 9 Date Filed: 10/01/2015 No. 13-60326 crimes, but not for possession, if the crime occurs within 1,500 feet of a school). Had Flores possessed marijuana in a school zone in one of these states, there would be no “statutory elements that greatly increase the[] severity of the offense” relative to simple possession. Moncada-Servellon, 24 I. & N. Dec. at 65. Thus, he presumably would be entitled to the personal-use exception— even though his conduct for § 1227(a)(2)(B)(i) purposes was exactly the same (i.e., in both situations, he “possess[ed] for [his] own use . . . 30 grams or less of marijuana”). “Because [this] makes scant sense, the BIA’s interpretation . . . is owed no deference under” Chevron. Mellouli v. Lynch, 135 S. Ct. 1980, 1989 (2015); cf. Lopez v. Gonzales, 549 U.S. 47, 59 (2006) (“[I]t is just not plausible that Congress meant to authorize a State to overrule its judgment about the consequences of federal offenses to which its immigration law expressly refers.”). D. The BIA in Moncada-Servellon offered two justifications for its reading of § 1227(a)(2)(B)(i), but neither is persuasive. First, citing the five provisions of the INA that invoke the concept of “simple possession,” see supra pp. 7–8, the BIA reasoned that, in order to “harmonize . . . disparate statutory sections into a complementary whole,” the personal-use exception must be read to encompass only simple possession. Moncada-Servellon, 24 I. & N. Dec. at 65–66. As explained above, however, this reasoning gets it exactly backward. According to an “elementary canon” of statutory interpretation, Congress’s use of the term “simple possession” in some provisions of the statute—but not in the personal-use exception— suggests, consonant with ordinary usage, that “possession for one’s own use” 9 Case: 13-60326 Document: 00513215837 Page: 10 Date Filed: 10/01/2015 No. 13-60326 differs from “simple possession,” not that the two terms are the same. See Silva-Trevino, 742 F.3d at 203. 3 Second, the BIA pointed to the legislative history of § 1227(a)(2)(B)(i), which, in its view, shows that Congress intended the personal-use exception to cover only “simple possession.” Moncada-Servellon, 24 I. & N. Dec. at 66–67. But it is well settled that “[l]egislative history, for those who take it into account, is meant to clear up ambiguity, not create it.” Milner v. Dep’t of the Navy, 562 U.S. 562, 574 (2011); see also Miss. Poultry Ass’n v. Madigan, 992 F.2d 1359, 1364 n.28 (5th Cir. 1993) (“[W]e do not consider the legislative history of a statute when construing the plain language . . . ; we do so after— but only after—a statute is first found to be ambiguous or silent.”) Again, § 1227(a)(2)(B)(i) unambiguously provides that so long as an offense is (1) a single offense; (2) involving possession for one’s own use; (3) of 30 grams or less; (4) of marijuana, then it does not render an alien removable. Legislative history cannot amend this unambiguous language to add a more-serious-than- simple-possession exception. 4 3 In any event, the BIA's “harmoniz[ation]” would itself be disharmonious in some respects. For example, one of the INA provisions that the BIA in Moncada-Servellon sought to “harmonize” § 1227(a)(2)(B)(i) with was § 1182(h), which under some circumstances gives the Attorney General discretion to waive an alien's inadmissibility “insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana.” But as the Supreme Court has recognized, “the statutory bases for excluding and deporting aliens have always varied,” Judulang v. Holder, 132 S. Ct. 476, 479 (2011); so it is little surprise that the possession exceptions to mandatory exclusion and deportation should vary also. 4 Even if we were to look to the legislative history the BIA cited, it is far from conclusive. The BIA cited a single committee report that explains the rationale behind § 1227(a)(2)(B)(i) as being to give the Attorney General discretion to cancel removal “as it relates to simple possession of marihuana” or when removal “is based solely on possession of small amounts of marihuana for one’s own use.” Moncada-Servellon, 24 I. & N. Dec. at 66– 67 (citing H.R. Rep. No. 97-264, at 12 (1981)). At no point does the report say that “possession for one’s own use” means “simple possession,” however, and “[w]ith no precise legislative history to rely on, we should generally not stray from the language in an attempt to implement ‘legislative intent.’” In re Miller, 570 F.3d 633, 639 (5th Cir. 2009). 10 Case: 13-60326 Document: 00513215837 Page: 11 Date Filed: 10/01/2015 No. 13-60326 * * * In sum, Chevron deference “‘is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.’” Calix v. Lynch, 784 F.3d 1000, 1005 (5th Cir. 2015) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)). In § 1227(a)(2)(B)(i)’s personal-use exception, however, there is simply no “gap” for the BIA to fill. Because Flores’s 2003 conviction satisfies the personal-use exception as Congress wrote it, and because the BIA’s decision under review identified no other ground for holding him ineligible for cancellation of removal, we GRANT Flores’s petition for review, VACATE the BIA’s decision, and REMAND to the BIA for further proceedings consistent with this opinion. 5 5 Our disposition makes it unnecessary to consider Flores’s argument that the BIA erred in denying his motion to reopen. 11 Case: 13-60326 Document: 00513215837 Page: 12 Date Filed: 10/01/2015 No. 13-60326 OWEN, Circuit Judge, dissenting: With great respect, the majority opinion adopts a perverse construction of 8 U.S.C. § 1227(a)(2)(B)(i), and in particular, fails to give the words “other than” their natural and commonly-understood meaning. Congress chose to draft broadly when it said in this section of the Immigration and Nationality Act: Any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable. 1 This language means that our analysis of whether Flores Esquivel was deportable begins with the universe of all controlled substance offenses. The “other than” exception that carves out the possession of marijuana for personal use from this universe is narrowly drawn. If a controlled substance offense is an offense “other than” “possession for one’s own use of 30 grams or less of marijuana,” then it is a deportable offense. Flores Esquivel was convicted under Texas law for possessing 4.6 grams (less than one ounce) of marijuana, but there was another element to his conviction. He was convicted of knowingly or intentionally possessing marijuana in a school zone. 2 This element of Esquivel’s conviction removes it from the exception in § 1227(a)(2)(B)(i), regardless of whether we apply a “circumstance-specific” 1 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). 2 TEX. HEALTH & SAFETY CODE ANN. §§ 481.121(b)(1), 481.134(f)(1) (West 2003). 12 Case: 13-60326 Document: 00513215837 Page: 13 Date Filed: 10/01/2015 No. 13-60326 approach 3 or a “categorical” approach 4 in construing and applying § 1227(a)(2)(B)(i). The possession of marijuana in a drug-free zone—in this case, a school zone—is an offense that “involv[es]” something “other than” the mere possession of marijuana for one’s own use. The offense of possession of marijuana in a school zone focuses on potential or possible harms beyond those emanating from the offense of possession for one’s own use. Criminalizing possession of marijuana in a school zone reflects concerns for potential harm beyond harm to the individual possessing the drug. Those concerns include, but certainly are not limited to, the apprehension that marijuana may be shared with a student, thereby adversely affecting or influencing someone other than the original possessor of the marijuana; that a student who is in possession may use the drug during or just before the school day to the detriment or disruption of the educational process; that a person in possession of marijuana on school property will smoke or ingest the drug while still on school property and then drive under the influence in a school zone; or that someone in possession of marijuana and under the influence will drive through a school zone. In this case, Flores Esquivel admitted to smoking marijuana in the morning before attending class. He was escorted from class after a drug- sniffing canine detected marijuana in his car at 10:15 a.m. He consented to a search of his vehicle and told the principal that marijuana was present. The officer who conducted the search found a “joint” and several “roaches” in the ashtray and a plastic bag containing 3.1 grams of marijuana. 3 See Nijhawan v. Holder, 557 U.S. 29, 34 (2009). 4 See Taylor v. United States, 495 U.S. 575, 577 (1990). 13 Case: 13-60326 Document: 00513215837 Page: 14 Date Filed: 10/01/2015 No. 13-60326 If 4.6 grams of marijuana had been found in Flores Esquivel’s home, clearly, he would not be deportable under § 1227(a)(2)(B)(i). But when he took the additional step of bringing the marijuana into a drug-free zone, he committed an offense that differs from the offense of possession for one’s personal use. The BIA correctly recognized this distinction. In an earlier decision, the BIA also correctly recognized that possession of less than 30 grams of marijuana in a prison or other correctional setting is an offense that is outside the narrow exception for possession for one’s own use in § 1227(a)(2)(B)(i). 5 The BIA recognized that “the statute under which the alien was convicted has a formal element requiring that the possession of marijuana be in a prison or other correctional setting.” 6 The BIA further reasoned that “the respondent was convicted of possessing marijuana in prison, an offense that is significantly more serious than ‘simple possession’ because of the inherent potential for violence and the threat of disorder that attends the presence of drugs in a correctional setting.” 7 In the case presently before us, the Texas statute under which Flores Esquivel was convicted had as a formal element the requirement that the possession of the marijuana be in a school zone. As already discussed, the rationale for creating such an offense and authorizing punishment more severe than that for mere possession of marijuana for personal use is the potential for harm to others and for disorder that bringing marijuana onto a school campus creates. The majority opinion’s holding requires future panels of our court to conclude that possession of less than 30 grams of marijuana in a prison is also 5 In re Moncada-Servellon, 24 I. & N. Dec. 62, 65 (B.I.A. 2007). 6 Id. at 64 (emphasis added). 7 Id. at 65. 14 Case: 13-60326 Document: 00513215837 Page: 15 Date Filed: 10/01/2015 No. 13-60326 within the exclusion in § 1227(a)(2)(B)(i). The test, the majority opinion says, is simply this: According to its plain language, then, the exception applies if four elements are met—the offense must be (1) a single offense; (2) involving possession for one’s own use; (3) of 30 grams or less; (4) of marijuana. See In re Davey, 26 I. & N. Dec. 37, 39 (B.I.A. 2012) (“[The personal-use exception] refers not to a common generic crime but rather to a specific type of conduct (possession for one’s own use) committed on a specific number of occasions (a ‘single’ offense) and involving a specific quantity (30 grams or less) of a specific substance (marijuana).”). Here, Flores has presented evidence—and the government has not disputed—that these four elements are met: Flores’s 2003 conviction was his first; it was for possession for his own use, not for distribution; and he possessed 4.6 grams of marijuana. Thus, we can reach no conclusion other than that the exception applies. 8 This same analysis would apply in a case in which a person had been convicted of possessing marijuana in prison. If the offense has these four elements, it matters not that the offense also has one or more other elements, the majority opinion says. But such an analysis achieves the opposite of what § 1227(a)(2)(B)(i) directs. The majority opinion gives no effect to the words “other than” in § 1227(a)(2)(B)(i). The offense of possession of marijuana in a prison (or a school zone) has an element “other than” possession of less than 30 grams for one’s own use. Other aspects of the majority opinion’s reasoning are suspect. The opinion states that the BIA (and my) interpretation of the personal use exception “produces anomalous and arbitrary consequences . . . because some states do not distinguish between possession in a school zone and possession 8 Ante at 5. 15 Case: 13-60326 Document: 00513215837 Page: 16 Date Filed: 10/01/2015 No. 13-60326 generally.” 9 Does this mean that unless all fifty states enact a prohibition of possession of marijuana in a prison, Congress intended for such an offense to come within the personal use exclusion? If all fifty states were to distinguish between possession generally and possession in a prison, would the meaning of the personal use exception change? Whether some states have or have not enacted an offense that has elements in addition to possession of less than 30 grams of marijuana does not bear on how we are to interpret the language that Congress chose. Congress said that all offenses “relating to a controlled substance” result in an alien being deportable unless the offense is one “other than” a conviction for “possession for one’s own use of 30 grams or less of marijuana.” Possession of marijuana in a school zone or in a prison is an offense “other than” possession for one’s own use because those offenses have an element that possession for one’s own use does not have. Courts routinely recognize that criminal statutes may largely overlap, but if an offense has one element that is in addition to the elements of an otherwise identical statute, then there are two offenses. For example, battery can be defined as an offensive touching. 10 But if the battery is accompanied by the brandishment of a deadly weapon, the offense may be something other than simple battery and termed aggravated battery with a correspondingly greater penalty. 11 I also note that although the Supreme Court has not addressed the issue in the present case, there is an indication that the Court generally agrees with the BIA’s view of the personal possession of marijuana exception in 9 Ante at 9-10. 10 See WAYNE R. LAFAVE, CRIMINAL LAW § 16.2(a) (5th ed. 2010). 11 Id. § 16.2(d). 16 Case: 13-60326 Document: 00513215837 Page: 17 Date Filed: 10/01/2015 No. 13-60326 § 1227(a)(2)(B)(i). In Padilla v. Kentucky, the Court explained that this section “addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses.” 12 Possession of marijuana in a school zone or in a prison are not trivial offenses. One may ask, what difference does the majority opinion’s holding today make in light of our court’s decision in Calix v. Lynch? 13 We held in Calix that the stop-time rule considers whether an alien would be inadmissible under § 1182(a)(2), or would be removable under § 1227(a)(2). We concluded that because the alien was inadmissible under § 1182(a)(2), due to a conviction for possession of marijuana, the stop-time rule applied. 14 It was accordingly irrelevant whether he was also removable under § 1227(a)(2). Presumably, in the present case, on remand to the BIA, it will be determined that Flores Esquivel would be inadmissible under § 1182(a)(2) because of his conviction for possession of marijuana, and Flores Esquivel will be found removable because of the application of the stop-time rule. Nevertheless, today’s decision matters because it has authoritatively construed § 1227(a)(2)(B)(i). In a case in which only removability is at issue, and not the stop-time rule, today’s decision will be controlling in this Circuit. * * * I would deny the petition, and I accordingly dissent. 12 559 U.S. 356, 368 (2010). 13 784 F.3d 1000 (5th Cir. 2015). 14 Id. at 1011-12. 17	{ "pile_set_name": "FreeLaw" }
Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 5-2-2006 Jackson v. Carroll Precedential or Non-Precedential: Non-Precedential Docket No. 04-9012 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Jackson v. Carroll" (2006). 2006 Decisions. Paper 1165. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1165 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NO. 04-9012 ________________ ROBERT W. JACKSON, III, Appellant v. THOMAS CARROLL, Warden 1 ____________________________________ On Appeal From the United States District Court For the District of Delaware (D.C. Civ. No. 01-cv-00552) District Judge: Honorable Sue L. Robinson _______________________________________ Before: MCKEE, RENDELL and GREENBERG, Circuit Judges. (Filed May 2, 2006) _______________________ OPINION _______________________ PER CURIAM As the parties are familiar with the background of this capital case, we need not set it forth here. For present purposes it is sufficient to note that on December 20, 2005, we denied Jackson’s application for a certificate of appealability. See Jackson v. Carroll, 1 Amended - See Clerk’s Order dated January 6, 2005. 2005 WL 3477556. The mandate issued on January 12, 2006. On March 14, 2006, the United States Supreme Court granted Jackson an extension of time – until May 19, 2006 – to file a petition for a writ of certiorari. May 19, 2006, is also the date for which his execution has been scheduled. Meanwhile, the Office of the Federal Community Defender has entered an appearance in the Supreme Court and is evidently preparing Jackson’s certiorari petition. Accordingly, Jackson has filed a motion to recall the mandate and for stay of execution “to allow full and fair review of the certiorari proceedings.” In support thereof, he argues that the motion should be granted to prevent an injustice. Jackson explains that the only reason why the execution date was set as early as May 19, 2006, is that after we denied his request for a certificate of appealability, counsel – Thomas M. Foley, Esq. – erroneously represented in state court that Jackson would not pursue further litigation. I “Issuance of the mandate formally marks the end of appellate jurisdiction.” Johnson v. Bechtel Associates Professional Corp., D.C., 801 F.2d 412, 415 (D.C. Cir. 1986); see United States v. Jerry, 487 F.2d 600, 607 (3d Cir. 1973). As a result, we cannot rule on the motion to stay execution unless we recall the mandate. The Supreme Court has explained that although “the courts of appeals are recognized to have an inherent power to recall their mandates, subject to review for an abuse of discretion . . . the power can be exercised only in extraordinary circumstances . . 2 . [and] is one of last resort, to be held in reserve against grave, unforeseen contingencies.” Calderon v. Thompson, 523 U.S. 538, 549-550 (1998) (citations omitted). Moreover, in federal habeas corpus proceedings courts should consider “not only . . . standards of general application, but also . . . the statutory and jurisprudential limits applicable in habeas corpus cases.” Id. at 553.2 The reason Jackson gives for recalling the mandate amounts to little more than the need for more time to prepare his certiorari petition and, as such, plainly fails to meet the standard for recalling the mandate. Even assuming that Foley’s misstatement in state court, resulting in the May execution date, qualifies as a “grave, unforeseen contingency,” recalling the mandate is far from a “last resort” in this context. Jackson has been granted an extension of time by the Supreme Court and can seek a stay of execution from that Court. When the normal avenue of relief is not only available but pending, there is no need to resort to extraordinary means.3 2 Thus, the Court went on to hold that “where a federal court of appeals sua sponte recalls its mandate to revisit the merits of an earlier decision denying habeas corpus relief to a state prisoner, the court abuses its discretion unless it acts to avoid a miscarriage of justice as defined by our habeas corpus jurisprudence.” Calderon v. Thompson, 523 U.S. 538, 558 (1998). 3 Jackson notes that in Holloway v. Horn, C.A. Nos. 01-9009 & 9010, we recalled the mandate to give the Commonwealth an opportunity to pursue a certiorari petition. However, in Holloway, the Commonwealth had not filed a certiorari petition when it asked us to recall the mandate. Our order granted the motion to recall the mandate pursuant to Fed. R. App. P. 41(b) in order “to give the Commonwealth an opportunity to file a timely Petition for Certiorari.” See Order dated April 21, 2004. By contrast, Jackson is already pursuing a petition for a writ of certiorari. The other cases cited by Jackson are similarly different. See Hercules Inc. v. United States, 309 F.3d 781 (Fed. 3 II For the foregoing reasons we deny Jackson’s motion to recall the mandate. Accordingly we lack jurisdiction to rule on his motion to stay execution and, therefore, dismiss that motion without prejudice to his filing another stay motion in the Supreme Court. TO THE CLERK: Please file the foregoing opinion. Cir. 2002) (granting motion to allow appellant to file certiorari petition where appellant had shown good cause and appellee had given conditional consent); United States v. Hinds, 2002 WL 32076932 (4 th Cir. 2002) (granting motion to allow appellant to file petition for rehearing and certiorari petition where appellant had shown “extraordinary circumstances”). Neither decision involved federal habeas corpus proceedings.	{ "pile_set_name": "FreeLaw" }
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-545V Filed: November 4, 2016 TO BE PUBLISHED ********************************* CATHERINE HENRY, * * Petitioner, * v. * * Attorneys’ Fees and Costs; SECRETARY OF HEALTH * Special Processing Unit (“SPU”); AND HUMAN SERVICES, * Hourly Rates * Respondent. * * **************************** Michael McLaren, Black McLaren Jones Ryland & Griffee PC, Memphis, TN, for petitioner. Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS 1 Dorsey, Chief Special Master: On May 28, 2015, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine Act”). Petitioner alleged that she suffered a shoulder injury following receipt of a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine on June 3, 2014. On May 9, 2016, the undersigned issued a decision awarding compensation to petitioner based on the parties’ stipulation. ECF No. 35. Petitioner now moves for attorneys’ fees and costs, which are awarded in the amount of $31,594.44, reduced from $33,833.44 for the reasons described below. 1 Because this decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). I. Procedural History and Party Positions On July 1, 2016, petitioner filed a motion for attorneys’ fees and costs to be awarded to petitioner’s counsel, Black McLaren Jones Ryland & Griffee, P.C., of Memphis, Tennessee (hereinafter “the McLaren firm”). ECF No. 40. Petitioner’s motion requested total compensation of $33,833.44. ECF No. 40-2, p. 19. This includes charges for 115.10 hours of work performed by various attorneys, paralegals and law clerks at the McLaren firm, resulting in $31,654.50 in fees for services rendered, as well as $2,178.94 in advances and expenses. Id. In accordance with General Order #9, petitioner filed a signed statement confirming that petitioner incurred no expenses pursuing this claim. ECF No. 40-3. Citing McCulloch v. HHS, No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), petitioner’s counsel requests forum rates comparable to those paid in McCulloch to the firm of Conway Homer & Chin-Caplan, arguing that “petitioner’s counsel is highly qualified, has significant experience handling vaccine cases, and has a strong reputation through the program for performing quality work.” ECF No. 40, p. 5. Specifically, counsel’s billing records reflect the following hourly rates: • For 2014: - Michael G. McLaren (“MGM”): $395 - Christopher J. Webb (“CJW”): $285 - Paralegals/Law Clerks (“SAB,” “CMG,” “LLH,” “VAC”): $130 • For 2015: - MGM: $410 - William E. Cochran (“WEC”): $345 - CJW: $295 - Paralegals/Law Clerks (“CMG,” “SRW”): $145 - Paralegals/Law Clerks (“VAC”): $135 • For 2016: - MGM: $425 - WEC: $355 - CJW: $305 - Paralegals/Law Clerks (“SRW,” “CMG”): $150 ECF No. 40-2. Petitioner notes that Mr. McLaren has been a practicing attorney since 1976 (40 years), has practiced vaccine law for 33 years, and has been involved with the Vaccine Program since its inception. ECF No. 40, p. 5. Mr. Cochran has been practicing law since 2001 and has represented vaccine petitioners since 2003. Id., p. 6. Mr. Cochran’s full time law practice is devoted mostly to vaccine cases. Id. Mr. Webb graduated from law school in 2007 and has been involved in vaccine litigation since joining the McLaren firm in 2008. Id., pp. 7-8. 2 By way of further argument in support of the requested rates, petitioner also attached to the application for attorneys’ fees and costs a brief filed by the McLaren firm in another case before Special Master Hamilton-Fieldman. ECF No. 40-4. That brief, originally filed in Hoehner v. HHS, No. 14-637V, addresses the question of whether petitioner’s counsel should be awarded fees at a local or forum rate. 3 Id. On July 18, 2016, respondent filed a response to petitioner’s motion. ECF No. 41. Respondent disputes that petitioner’s counsel is entitled to forum rates, but declined to further address the specifics of petitioner’s request, instead deferring to the special master’s discretion with regard to the reasonableness of the requested hours and expenses. ECF No. 41, p. 12. Nonetheless, respondent asserted that a reasonable amount for fees and costs in the present case would fall between $15,000.00 and $17,000.00. ECF No. 40, pp. 12-13. Respondent provided only minimal explanation of how she determined this range. Id. In a reply filed on July 25, 2016, petitioner contended that respondent’s proposed range is arbitrary and should be considered to “carry no persuasive value.” ECF No. 42, p. 4. Petitioner further contended that respondent’s response was limited to disputing the application of a forum rate and urged that respondent be deemed to have waived any arguments regarding the specific forum rate at issue or the hours or expenses billed. Id., p. 1, fn. 1, p. 5. II. Background Information About Attorneys’ Fees and Costs Litigation Prior to 2016, respondent routinely resolved attorneys’ fees and costs informally by stipulation. Many of these stipulations were based, in part, on ongoing agreements between respondent and the petitioner’s counsel of record. See, e.g., Dorego v. HHS, No. 14-337V, 2016 WL 1635826 (Fed. Cl. Spec. Mstr. April 4, 2016) (describing respondent’s prior agreement with the Homer firm spanning from 2006 until 2015). The breakdown of respondent’s agreement with the Homer firm led to Special Master Gowen’s below-discussed decision McCulloch v. HHS, No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), regarding appropriate forum rates for the Vaccine Program, the reasoning and hourly rates from which have since been widely followed. Respondent did not seek review of the McCulloch decision, but instead contended in subsequent cases that while respondent “stands by the arguments and evidence she put forth in McCulloch . . . in light of the decision in McCulloch . . . respondent has determined that her resources are not wisely used by continuing to litigate the issues addressed in that decision.” Dorego, 2016 WL 1635826, at 3 (quoting respondent’s response to petitioner’s motion for attorneys’ fees and costs). Subsequently, beginning in early 2016, respondent began routinely asserting in many cases that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys’ fees and costs.” DiPietro v. HHS, No. 15-742V (Fed. Cl. Spec. Mstr. Oct. 6, 2016), p. 3 (quoting respondent’s brief). Respondent has further declined to continue entering into stipulations regarding attorneys’ fees and costs, stating that “[r]espondent no longer has 3 Special Master Hamilton-Fieldman initially filed a decision in the Hoehner case awarding fees at a local rate, but subsequently withdrew the decision to entertain a motion for reconsideration. That motion remains pending. 3 sufficient resources to provide detailed objections to requests for attorneys’ fees and costs, which it previously provided as a courtesy to the Court. In addition, in respondent’s experience, providing detailed objections leads to a ‘second major litigation’ over fees, as cautioned against by the Supreme Court in Fox, as well as supplemental fee requests that are routinely granted by the Court (i.e., ‘fees for fees’), which negated any purpose of the objections asserted by respondent.” Id. III. The Special Master’s Authority to Determine the Amount of Fees and Costs Since the petition for compensation was successful, the undersigned will award reasonable attorneys’ fees and costs to petitioner. See § 15(e)(1) (emphasis added). Reasonable attorneys’ fees and costs in Vaccine Act cases are determined using the lodestar approach, which begins with an assessment of a reasonable hourly rate multiplied by a reasonable number of hours expended in the case. Avera v. HHS, 515 F.3d 1343,1347-48 (Fed. Cir. 2008.) The determination of the amount of reasonable attorneys' fees is within the special master's discretion. See, e.g., Saxton v. HHS, 3 F.3d 1517, 1520 (Fed. Cir. 1993). Special masters have “wide latitude in determining the reasonableness of both attorneys’ fees and costs.” Hines v. HHS, 22 Cl. Ct. 750, 753 (Fed. Cl. 1991). Moreover, special masters are entitled to rely on their own experience and understanding of the issues raised. Wasson v. HHS, 24 Cl. Ct. 482, 483 (Fed. Cl. 1991), aff’d in relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam). Petitioner “bears the burden of establishing the hours expended” and the reasonableness of the requested fee award. Wasson, 24 Cl. Ct. at 484. Notwithstanding respondent’s failure to raise any specific objections to petitioner’s fee application, “the Special Master . . . [is] not limited to endorsing or rejecting respondent’s critique.” Duncan v. HHS, No. 99-455V, 2008 WL 4743493 (Fed. Cl. 2008). Furthermore, “the Special Master [has] no additional obligation to warn petitioners that [she] might go beyond the particularized list of respondent’s challenges.” Id. IV. Guidance and Background Regarding Local Versus Forum Rates In the Vaccine Program The appropriate hourly rate for counsel in Vaccine Act litigation is the forum rate, unless the “Davis exception” applies. Avera, 515 F.3d at 1349 (citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755 (D.C.Cir.1999)); see also Rodriguez v. HHS, 632 F.3d 1381, 1384 (Fed. Cir. 2011) (affirming a determination of the forum rate in Vaccine Act cases). The Davis exception applies when the bulk of the work in a case is performed outside the forum (Washington, DC, in Vaccine Act cases), and there is a very significant difference between local and forum rates. Avera, 515 F.3d at 1349. There is no bright-line rule for what constitutes a difference significant enough to trigger the Davis exception; such a determination is within the special master's discretion. Hall v. HHS, 640 F.3d 1351, 1356 (Fed.Cir.2011). In addition to the evidence in the record, a special master may use 4 her experience in the Vaccine Program to determine an hourly rate. Id. at 1357; Saxton, 3 F.3d at 1521. Several Federal Circuit precedents have addressed the application of the Davis exception to vaccine cases. Each has dealt with a difference between local and forum rates in excess of 50%. Avera, 515 F.3d at 1350 (noting forum rates to be “nearly three times” the local rate); Masias v. HHS, 634 F.3d 1283, 1288 (Fed. Cir. 2011) (noting the special master’s finding of a 59% difference between forum and local rates); Hall, 640 F.3d at 1357 (noting a 59% difference between forum and local rates). The Davis County case itself involved a 70% difference between rates. Davis County, 169 F.3d at 757 (noting the D.C. rates at issue to be “approximately 70% higher” than the local rate). In Hall, the Federal Circuit noted that the special master had based his opinion on cases with fee differentials ranging from 46% to 60%, but only determined the 59% difference in the case at hand to be very significantly different while also explicitly refusing to create a bright-line rule, calling such a rule “stifling and impractical.” 640 F.3d at 1357. More recently, the McCulloch decision exhaustively examined the question of appropriate hourly rates in the Vaccine Program and established tiered ranges of reasonable attorney forum rates based on years of legal experience. 4 McCulloch, 2015 WL 5634323. Using those rates, Special Master Gowen set rates for several attorneys practicing with a Boston, Massachusetts, firm. 5 In reaching his conclusion, Special 4 After discussing the potential approaches to setting a forum rate and reviewing cases and material from both within and without the Vaccine Program, Special Master Gowen concluded that the following factors should be considered: (1) the prevailing rate for comparable legal work in Washington, DC; (2) the prevailing rate for cases in the Vaccine Program; (3) the experience of the attorney(s) in question within the Vaccine Program; (4) the overall legal experience of the attorney(s); (5) the quality of work performed by the attorney(s) in vaccine cases; and (6) the reputation of the attorney(s) in the legal community and community at large. McCulloch, 2015 WL 5634323, at 17. Applying those factors, Special Master Gowen found that a reasonable forum rate for Vaccine Program cases is: $350-425 per hour for attorneys with 20 or more years of experience, $300-375 an hour for attorneys with 11 to 19 years of experience, $275 to $350 an hour for attorneys with eight to ten years of experience, and $225 to $300 per hour for attorneys with four to seven years of experience. McCulloch, 2015 WL 5634323, at 19. Special Master Gowen further noted that “[t]he higher end of the range should be awarded to those with significant Vaccine Program experience who perform high quality legal work in vaccine cases.” Id. 5 Specifically, the following rates were awarded in the McCulloch decision: Kevin Conway (45 years legal experience, 26 years vaccine experience) $415 Ronald Homer (24 years legal experience, 22 years vaccine experience) $400 Sylvia Chin-Caplan (30 years legal experience, 22 years vaccine experience) $400 Christine Ciampolillo (6 years vaccine experience) $300 Amy Schwader (7 years vaccine experience) $285 Joseph Pepper (6 years legal experience, 5 years vaccine experience) $290 Meredith Daniels (5 years vaccine experience) $280 Law Clerks $145 Paralegals $135 McCulloch, 2015 WL 5634323, at 19-21. 5 Master Gowen rejected as “astonishing” respondent’s contention that Washington, D.C. forum rates are 52% higher than in Boston. McCulloch, 2015 WL 5634323, at 7-13. He found that “while the prevailing rates in Washington, D.C., appear to be somewhat higher than Boston rates, they are not significantly so.” McCulloch, 2015 WL 5634323, at 13. Special Master Gowen also observed that during the course of litigating McCulloch, respondent agreed that a 27% difference would not trigger the Davis exception. 6 McCulloch, 2015 WL 5634323, at 4. Although respondent did not seek review in McCulloch, much of the reasoning of the McCulloch decision was later examined approvingly in Garrison v. HHS, No. 14- 762V, 2016 WL 4784054, --- Fed. Cl. --- (Fed. Cl. Aug. 17, 2016). In the underlying Garrison decision, Special Master Gowen extended his McCulloch analysis and concluded that an attorney in Twin Falls, Idaho, was also entitled to forum rates, because the 18.5% difference between that attorney’s local and proposed forum rates was not very significantly different under Avera. Garrison v. HHS, 14-762V, 2016 WL 3022076, at 7 (Fed. Cl. Spec Mstr. April 29, 2016), aff’d 2016 WL 4784054, --- Fed. Cl. --- (Fed. Cl. Aug. 17, 2016). On review, Judge Kaplan concluded that Special Master Gowen had not abused his discretion. Contrasting the facts of Garrison with Avera and with the Davis County case itself, she observed that while the 18.5% difference found in Garrison was “not insignificant,” it was not unreasonable for the Special Master “to conclude – on balance – that the use of the forum rate would not result in ‘vast overcompensation’ of counsel.” 7 Garrison, 2016 WL 4784054, at 8. Subsequently, Special Master Corcoran found that attorneys in Sarasota, Florida, are likewise entitled to compensation at forum rates. Dezern v. HHS, No. 13-643V, (Fed. Cl. Spec. Mstr. Oct. 14, 2016). Significantly, Special Master Corcoran noted that his finding was a departure from prior decisions that found Sarasota to be subject to the Davis exception. Id., p. 8. He explained, however, that circumstances have changed within the last five years and observed that: The rates paid to Vaccine Program counsel may well have been held down for the past several years, whether due to slow economic growth generally or informal compensation/rate agreements struck between frequent Program counsel and the Department of Justice that have now been deemed (not surprisingly, by the petitioners’ bar) stale. At the same time, McCulloch may have lowered the ceiling on what constitutes a forum rate. McCulloch itself accepts the premise that Program attorneys do not receive the same hourly rate that they would from more complex litigation, and attempted to set a reasonable forum rate in light of such constraints, even though it would be a lower rate. Id., pp. 8-9 (internal citations omitted). 6 Of course respondent is not bound by her arguments in McCulloch. 7 It is also worth noting that Judge Kaplan was not persuaded by respondent’s argument in Garrison that failure to apply the Davis County exception in that case would have essentially eliminated the exception entirely. Garrison, 2016 WL 4784054, at 8-9. 6 V. Setting Counsel’s Hourly Rate in This Case A. Examining the Appropriate Local Rate Under the lodestar approach, whether looking at the local or forum rate, the undersigned must award “rates that are compatible with the prevailing market rate.” Rupert v. HHS, 52 Fed. Cl. 684, 688 (2002); Avera, 515 F.3d at 1349. The prevailing rate is the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Avera, 515 F.3d at 1348 (quoting Blum v. Stenson, 465 U.S. 886, 896, fn. 11 (1984).) Prior Vaccine Act cases have noted that petitioners may demonstrate a prevailing market rate in a number of ways, including: (1) affidavits of other attorneys or experts; (2) citations to prior precedents showing reasonable rate adjudications for the fee application, for comparable attorneys, or for comparable cases; (3) references to fee award studies showing reasonable rates charged or awarded in the relevant community; (4) testimony of experts or of other attorneys in the relevant community; (5) discovery of rates charged by the opposing party; (6) reliance on [the] court’s own expertise to recognize applicable prevailing rates. Morris v. HHS, 20 Cl. Ct. 14, 28-29 (1990). Special Masters have in several recent cases relied, at least in part, on local federal district court cases involving fee shifting statutes in order to determine the applicable local rate. See, e.g., J.B., No. 15-67V, 2016 WL 4046871 (Fed. Cl. Spec. Mstr. July 8, 2016)(assessing local rates for Hershey, Pennsylvania based in part on decisions reported by the U.S. District Court for the Middle District of Pennsylvania); Garrison, 2016 WL 3022076 (referencing decisions reported by the U.S. District Court for the District of Idaho); Dezern, No. 13-643V (assessing local rates for Sarasota, Florida, in light of decisions reported by the Middle District of Florida). Moreover, this approach has recently been affirmed on review at the Court of Federal Claims. Garrison, 2016 WL 4784054, at 6-7. i. Petitioner’s Contentions In this case, petitioner presents three approaches for examining the McLaren firm’s local rates. First, petitioner’s counsel cites the firm’s current local hourly rates for non-complex general litigation matters. 8 ECF No. 40-4, p. 5. Second, petitioner’s counsel cites former Chief Special Master Vowell’s 2011 Heath decision, which addressed the McLaren firm’s rates at that time, and extrapolates the rates from that decision to a current value 9 based on the 3.7% rate of growth for attorneys’ fees 8 These rates are: MGM: $405; WEC: $300; CJW: $250; Paralegals/Law Clerks: $130. ECF No. 40-4, p 5. 9 Because the Heath case involved work performed from 2007 to 2011, counsel extrapolated rates both from 2007 and 2011. Applying a 3.7% rate of growth from 2011, petitioner’s counsel cites the following 2016 rates: MGM: $336; WEC: $298; Paralegals: $102. Applying the same rate of growth beginning in 2007, petitioner’s counsel cites the following 2016 rates: MGM: $388; WEC: $332; Paralegals: $118. ECF 7 identified in the above-discussed McCulloch decision. 10 ECF No. 40-4, pp. 5-6 (citing Heath v. HHS, No. 08-86V, 2011 WL 433646 (Fed. Cl. Spec. Mstr. Aug. 25, 2011)); see also McCulloch, 2015 WL 5634323, at 16. And finally, counsel additionally cites a number of decisions from the Western District of Tennessee. ECF No. 40-4, pp. 6-7. Looking at these three metrics, petitioner’s counsel suggests that the McLaren firm’s local rates fall within the following ranges: MGM: $336 - $407 WEC: $294 - $332 CJW: $250 - $270 Paralegals/Law Clerks: $102 - $130 ECF No. 40-4, pp. 4-5. 11 With regard to the district court cases supporting Mr. McLaren’s rates, petitioner cites Cole v. City of Memphis, No. 2:13-cv-02117-JPM-dkv, 2015 U.S. Dist. LEXIS 113742 (W.D. Tenn., Aug. 27, 2015)(awarding a rate of $350 per hour in 2015 to an attorney with 29 years of experience for work performed from 2013 to 2015) and Doe v. Bd. of Educ. of Memphis City Sch., No. 05-2411 D/P, 2007 U.S. Dist. LEXIS 103207 (W.D. Tenn., Jan. 9, 2007)(awarding a rate of $425 per hour in 2007 to an attorney with over 40 years of experience for work performed between 2005 to 2007). ECF No. 40-4, p. 8. Adjusting these rates first for the 3.7% rate of growth identified in McCulloch, and then for an 18.3% risk premium, 12 petitioner suggests the rates in these decisions are equivalent to 2016 hourly rates of $319 and $517 respectively. ECF No. 40-4, p. 9. No. 40-4, p. 6. Petitioner’s counsel did not calculate a 2016 rate based on the $195 local rate identified for Mr. Webb within the Heath decision. See Heath, 2016 WL 4433646 at 14. The undersigned confirmed that the rates cited in petitioner’s brief (ECF No. 40-4, p. 5) accurately reflect the rates billed in the prior Heath case. Averaging out the two approaches above results in rates as follows: MGM: $362; WEC: $315; Paralegals: $110. 10 Special Masters may use the consumer price index (“CPI”) for purposes of adjusting hourly rates for inflation. See, e.g., Hocraffer v. HHS, No. 99-533V, 2011 WL 3705153, at 17-19 (Fed. Cl. Spec. Mstr. July 25, 2011), mot. for review den’d, 2011 WL 6292218 (Fed. Cl. Nov. 22, 2011) (applying CPI calculator in adjusting hourly rate to account for inflation). The undersigned has also used the CPI in the past. See, e.g. J.B., 2016 WL 4046871, 4. In this case, however, the undersigned accepts petitioner’s use of the 3.7% figure cited in the McCulloch decision. Since petitioners are specifically seeking application of the McCulloch rates, utilizing the growth rate identified in McCulloch should result in greater consistency when comparing rates across different cases. 11 Although petitioner does not specifically indicate so, it appears based on the various figures and calculations included in petitioner’s brief that petitioner is referring to ranges of hourly rates for the year 2016. 12 A difficulty that arises in comparing Vaccine Act cases to other fee-shifting schemes is that petitioners in this Program are entitled to reasonable attorneys’ fees and costs – win or lose – provided that the claim is brought in good faith and there is a reasonable basis for the claim. See § 15(e)(1). In fact, this is a point raised in respondent’s brief on this motion. ECF No. 41, pp. 3-4. For this reason, rates outside of the Vaccine Program – such as those in the Laffey Matrix – must be adjusted before they can be directly compared. See, e.g., McCulloch, 2015 WL 5634323, at 19. In Garrison, Special Master Gowen suggested that 18.3 % is an appropriate discount rate. Garrison, 2016 WL 3022076, at 4. 8 In support of Mr. Cochran’s suggested local rate, petitioner cites: Macklin v. Delta Metals Company, Inc., No. 2:08-cv-02677, 2011 U.S. Dist. LEXIS 159025 (W.D. Tenn., July 6, 2011)(awarding a rate of $300 per hour in 2011 to an attorney with 9 years of experience for work performed from 2008 to 2011); Jeffrey Jacobs v. Memphis Convention and Visitors Bureau, No. 2:09-cv-025999, 2012 U.S. Dist. LEXIS 137344 (W.D. Tenn., Sep. 7, 2012)(awarding $300 per hour in 2012 for an attorney with 12 years of experience for work performed from 2009 to 2011). Applying the same adjustments as above for rate of growth (3.7%) and risk premium (18.3%), petitioner contends that these cases support 2016 hourly rates of $328 and $294 respectively. ECF No. 40-4, p. 11. In support of Mr. Webb’s rates, petitioner notes that Cole, supra, also addressed the reasonable rate for an attorney with about seven years of experience. ECF No. 40- 4, p. 12 (citing Cole, 2015 U.S. Dist. LEXIS 113742, at 17-20). In that instance, the attorney was awarded a rate of $270 per hour in 2015 for work performed from 2013 to 2015. Id. Additionally, petitioner also cited Monroe v. FTS USA, LLC, No. 2:08-cv- 02100-JTF-cgc, 2014 U.S. Dist. LEXIS 128451 (W.D. Tenn., July 28, 2014) (awarding $300 per hour in 2014 to an attorney with eight years of experience for work performed from 2008 to 2012). Petitioner argues that these rates can be adjusted for rate growth and risk premium to anywhere from $212 to $328 per hour. ECF No. 40-4, p. 13. ii. Respondent’s Contentions In her response, respondent cites several prior vaccine cases in which petitioner’s counsel billed the following hourly rates as late as August 2015 13: MGM: $300 WEC: $275 CJW: $240 Paralegals/Law Clerks: $100 ECF No. 41, pp. 3-4. Moreover, respondent contends that even these rates may be too high compared to local rates for Memphis, Tennessee. ECF No. 41, p. 4. In particular, respondent stresses that local federal cases are often more complex than Vaccine Act cases and that other fee-shifting regimes usually include a prevailing party requirement. Id. Like petitioner, respondent cites a number of cases from local federal courts. Specifically, respondent cites Oakley v. City of Memphis, 566 Fed. Appx. 425 (6th Cir. 2014)(citing a reasonable range of $200 to $275 and reducing counsel and co-counsel’s 13 In reply, petitioner stresses that the rates cited by respondent were negotiated rates, not reflective of what petitioner’s counsel believes local Memphis rates to be, and were understood by the parties not to be a concession of what an actual reasonable rate would be. ECF No. 42, p. 2. 9 rates from $375 to $275 and $225 to $180 respectively) 14; All Secure & Patrol Services, Inc. v. Federal Home Loan Mortgage Corp., No. 14-2575, 2015 WL 7302789 (W.D. Tenn. Nov. 18, 2015)(awarding rates as requested where attorney averred that $300 to $335 were prevailing market rates); and Taylor v. Brennan, No. 13-2216, 2015 WL 4658898 (W.D. Tenn. Aug. 5, 2015)(finding a rate of $250 per hour to be reasonable). 15 ECF No. 41, pp. 4-5. Additionally, respondent points out that in Cole v. City of Memphis, Tenn., cited by petitioner, an additional attorney was awarded only $170 per hour and the defense submitted an affidavit indicating that local partner rates are between $230 and $275. ECF No. 41, p. 5. Respondent contends that the rates awarded in Cole over defendant’s objections were due to special circumstances of the case, including the level of complexity and counsel’s specialized experience. Id. Finally, respondent attached to her response excerpts from the 2014 Real Rate Report. ECF No. 41-1. Respondent contends that the median rates for Memphis, Tennessee, at best support the argument that Mr. McLaren should receive $300 per hour for 2015. 16 ECF No. 40, p. 6. Respondent does not specifically address either Mr. Cochran’s or Mr. Webb’s rates. iii. Identifying the Applicable Local Rate: Based on all of the above as well as the undersigned’s experience assessing prior fee applications under the Vaccine Act, the undersigned finds that reasonable local rates for 2016 for the McLaren firm attorneys and paralegals are as follows: $350 per hour for Mr. McLaren, $300 per hour for Mr. Cochran, $260 per hour for Mr. Webb, and $120 per hour for paralegals. 17 Notably, these rates are within the ranges proposed by petitioner, but closer to the bottom of those ranges. Although none of the above- discussed data points is perfect, the undersigned finds on the whole that petitioner has adequately substantiated her contentions regarding the appropriate local rates and that respondent’s arguments are largely unpersuasive when considered in light of these lower rates. In particular, the undersigned finds it significant that, in addition to being consistent with the federal district court case law cited by the parties, these amounts are also largely consistent on an adjusted basis with the rates awarded by Special Master Vowell’s 2011 Heath decision (see fn. 9, supra), which is the last time that the McLaren 14 Significantly neither the 6th Circuit’s decision nor the decision below indicates the level of experience for the two attorneys whose rates were set. Oakley, 566 Fed. Appx. at 432; Oakley, No. 06-2276, 2010 U.S. Dist. LEXIS 143303 (W.D. Tenn. Nov. 22, 2010). 15 Like Oakley, supra, this decision does not address the years of experience held by the attorney in question. 16 In reply, petitioner takes issue with respondent’s comparison to small, general liability firms, as well as respondent’s failure to adjust the 2013 and 2014 rates to more contemporaneous figures. ECF No. 41, p. 3. 17 Of note, the McLaren firm’s current paralegal, Ms. Ward (“SRW”) holds a J.D. from the University of Memphis Law School. ECF No. 40, p. 9. 10 firm litigated fee rates in this Program. The undersigned further notes that the McLaren firm has an excellent reputation for high quality work within the Vaccine Program. Petitioner’s citation to Doe v. Board of Education of Memphis City Schools is not persuasive. That case has been rejected as representative of local rates due to an upward adjustment related to the undesirability of the subject matter of the case. Oakley, 566 Fed. Appx. At 432. However, even removing that outlier, the undersigned is satisfied that petitioner’s reading of the local federal cases cited by the parties better reflects the prevailing local market overall than does respondent’s. 18 Notably, respondent’s concern regarding the fact that fee shifting provisions are usually limited to prevailing parties is mooted by the fact that petitioner adjusted the resulting fee rates to reflect the risk premium identified in Garrison. Respondent cites to the defense affidavit submitted in the Cole case for the proposition that prevailing market rates evidenced by that case are lower than petitioner contends, but that affidavit was effectively rejected by the court’s analysis of the prevailing market rate. Although, as respondent suggests, there were factors considered in that case that are inapplicable here, the court also addressed prevailing rates based in significant part on the attorneys’ years of experience and on local billing practices generally. See Cole, 2015 U.S. Dist. LEXIS 113742, at 17-20. Other cases cited by respondent offered minimal analysis of the local rates. See, e.g., Taylor, 2015 WL 4658898, at 1-2 (awarding $250 per hour without identifying years of experience or citing to any prior cases or evidence regarding prevailing rates). In All Secure & Patrol Services, Inc. v. Federal Home Loan Mortgage Corp., the attorney in the case represented that the requested rate of $335, which was accepted, was actually reduced from his normal rates. 2015 WL 7302789, at 5. Finally, although the Real Rate Report submitted by respondent does provide some evidence of the prevailing local rates for Memphis, without more it is not persuasive in this case. As petitioner noted, the Real Rate Report is not a perfect “apples to apples” comparison for vaccine practitioners. See, e.g., McCulloch, 2015 WL 5634323, at 9 (accepting as a “point well taken” petitioner’s criticism of the RRR and noting that the experience and billing models of Vaccine and other personal injury practices are not necessarily comparable to the small general liability firms studied in the RRR). Moreover, respondent has provided an outdated edition of the report. B. Examining the Appropriate Forum Rate As noted above, in McCulloch, Special Master Gowen found that a reasonable forum rate for Vaccine Program cases is: $350-425 per hour for attorneys with 20 or more years of experience, $300-375 an hour for attorneys with 11 to 19 years of 18 The persuasive value of any individual case depends in significant part on the extent to which it discusses attorney services “similar” to that performed in the Vaccine Program. Avera, 515 F.3d at 1348; Rodriguez, 632 F.3d at 1384-86 (distinguishing streamlined Vaccine Act cases from the complex federal litigation for which the Laffey Matrix is used). The district court cases cited by the parties address attorney rates in a number of different contexts, including civil rights cases under U.S. Code Sections 1981 and 1983 (Doe, Cole, Oakley, Taylor) as well as under the Fair Labor Standards Act (Macklin, Monroe), and copyright infringement (Jacobs). 11 experience, $275 to $350 an hour for attorneys with eight to ten years of experience, and $225 to $300 per hour for attorneys with four to seven years of experience. McCulloch, 2015 WL 5634323, at 19. Special Master Gowen further noted that “[t]he higher end of the range should be awarded to those with significant Vaccine Program experience who perform high quality legal work in vaccine cases.” Id. The undersigned finds McCulloch, which is extensively reasoned, to be persuasive, and adopts Special Master Gowen’s tiered framework for the instant analysis. Moreover, the undersigned finds that the attorney rates requested by the McLaren firm, as reflected within the submitted billing records, are appropriate rates under this McCulloch framework. 19 The rates requested by the McLaren firm are consistent with prior cases in which this framework has been used to determine forum rates for other experienced Vaccine Program counsel. See, e.g., Boylston v. HHS, No. 11-117V, 2016 WL 3080574 (Fed. Cl. Spec. Mstr. May 10, 2016)(awarding rates of between $400-$430 per hour for work performed in 2015 and 2016 to attorneys Clifford Shoemaker and Renee Gentry, both of whom have over 20 years of legal experience and extensive vaccine litigation experience); Rodd v. HHS, No. 13-122V, 2016 WL 2727147 (Fed. Cl. Spec. Mstr. April 13, 2016)(finding reasonable rates of $400 per hour for Lawrence Cohan, an attorney with 36 years of legal experience and 25 years of vaccine experience, but $275 per hour for David Carney, an attorney with 5.5 years of vaccine experience); L.A. v. HHS, No. 12-629V, 2016 WL 1104860 (Fed. Cl. Spec. Mstr. Feb. 29, 2016)(following McCulloch and awarding Sabrina Knickelbein $350 for work performed in 2015); Harborth v. HHS, No. 08-777V, 2016 WL 3176545 (Fed. Cl. Spec. Mstr. May 18, 2016)(finding reasonable rates for attorney Scott Doody, with legal experience of between 6-11 years of experience, ranging from $225 per hour for work performed in 2008 to $300 per hour for work performed from 2013 to the present); and Dineen v. HHS, No. 15-700V, 2016 WL 1627199 (Fed. Cl. Spec. Mstr. April 4, 2016)(ratifying as reasonable a requested rate of $350 per hour for Martin Martinez, an attorney with 35 years of legal experience, but significantly less vaccine experience). Although respondent challenges petitioner’s counsel’s entitlement to forum rates, she does not specifically address whether the requested rates would constitute a reasonable forum rate if forum rates did apply. Instead, for purposes of addressing the Davis exception, respondent contrasts the requested rates to those local rates that she deems appropriate. ECF No. 41, p. 9. C. Setting Counsel’s Rates In light of all of the above, the undersigned finds that the McLaren firm should receive attorneys’ fees at the above-described forum rates. For 2016, those rates are as follows: MGM: $425; WEC: $355; CJW: $305; Paralegals: $145. The applicable 2016 local attorney rates identified within this decision ($350, $300, $260) range from about 17-21% lower than the requested forum rates for the same attorney. 20 This 19 However, paralegal and law clerk hourly rates for 2016 are more appropriately set at a rate of $145 as compared to the $150 reflected in the billing records. Specifically, the difference between Mr. McLaren’s forum and local rates is 21.43%. The differences for 20 Mr. Cochran and Mr. Webb are 18.33% and 17.31% respectively. 12 difference is much closer to the 18.5% differential identified in Garrison than it is to any of the fee differentials discussed in the applicable circuit precedents, which considered differentials of 59% and upward. 21 Indeed, as noted above, respondent herself contended in the McCulloch case that a 27% differential would not trigger the Davis exception. 22 McCulloch, 2015 WL 5634323, at 4. In that regard, the undersigned finds significant Judge Kaplan’s conclusion that an 18.5% differential, though potentially significant, does not necessarily rise to the level of vast overcompensation that Davis County and Avera were intended to prevent. Garrison, 2016 WL 4784054, at 8. Although the requested rates represent a large increase from rates that the McLaren firm has previously accepted, the undersigned is satisfied that the firm will not see a windfall since the evidence herein suggests that the McLaren firm’s rates have been long stagnant. For example, as respondent has suggested, it appears that Mr. McLaren has accepted a rate of $300 per hour on a stipulated basis as late as August of 2015 despite the fact that he was awarded a rate of $280 by former Chief Special Master Vowell for work performed in 2007. 23 A $20 increase in hourly rates over the course of nearly a decade falls well short of basic inflation, 24 let alone accounting for additional accumulated experience and reputation growth. Finally, the undersigned further notes that consistency favors the application of forum rates in that the Heath decision previously awarded the McLaren firm fees at a forum rate. Heath, 2011WL 4433646, at 13-14. VI. Reasonable Number of Hours and Requested Costs Upon review of the billing records filed in this case, the undersigned finds no cause to reduce either the costs or number of hours billed. The undersigned notes, however, that Mr. Webb billed 7 hours for travel time on June 4, 2015, and a further 8 hours on June 5, 2015, amounting to billing of $4,425.00. ECF No. 30-2, p. 7. Notwithstanding the fact that Mr. Webb was noted to be working on case review en route, the undersigned reduces these hours by 50%. See, e.g., Hocraffer v. HHS, No. 99-533V, 2011 WL 3705153, at 24 (noting that “Special masters consistently award compensation for travel time at 50% of the billing rate in the Vaccine Program.”). This results in a reduction of $2,212.50. Additionally, as noted above, the undersigned concludes that the hourly rate for paralegals and law clerks in 2016 should be reduced 21Garrison is particularly valuable for comparison, because both Garrison and the instant analysis utilize the same McCulloch framework when setting forum rates. 22 Of course, as noted above, respondent is not bound by her arguments in McCulloch; however, particularly in light of her long history of resolving fee applications informally (see Section II, above) her prior arguments are illuminating with regard to the historical understanding and treatment of hourly rates within the Vaccine Program. 23 Although the Heath decision addressed work performed as late as 2011, former Chief Special Master Vowell simply determined the requested rates for Mr. McLaren to be reasonable. See Heath, 2016 WL 4433646 at 14. Nothing in the Heath decision necessarily suggests that Mr. McLaren could not have successfully litigated a higher rate for those later years. 24 See http://www.bls.gov/data/inflation_calculator.htm (last accessed on October 25, 2016). 13 from $150 to $145. The undersigned tallies 5.3 hours of paralegal and law clerk time in 2016, resulting in a $26.50 reduction from $795.00 to $768.50. ECF No. 40-2, pp. 13- 19. VII. Conclusion Based on all of the above, the undersigned finds that petitioner’s counsel is entitled to reasonable attorneys’ fees and costs as follows: Requested attorneys’ fees (based on 115.10 total hours): $31,654.50 Less 50% reduction for 16.5 travel hours: -$2,212.50 Less 2016 paralegal rate reduction: ___-$26.50 Adjusted total: $29,415.50 Costs: $2,178.94 Total Attorneys’ Fees and Costs Awarded: $31,594.44 Accordingly, the undersigned awards a lump sum of $31,594.44, representing reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, Black McLaren Jones Ryland & Griffee, P.C. The clerk of the court shall enter judgment in accordance herewith. 25 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master 25 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 14	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE FILED May 19, 1998 Cecil Crowson, Jr. JAMES A. HELM and JUDY NELSON, ) C/A NO. 03A01-9710-PB-00497 Clerk Appellate C ourt ) Plaintiffs-Appellants, ) CUMBERLAND PROBATE AND ) FAMILY COURT v. ) ) HON. JAMES A. BEAN, HELEN A. HAYES and HARRY ) JUDGE SABINE, ) ) AFFIRMED AND Defendants-Appellees. ) REMANDED DUDLE Y W. TAY LOR, THE TAYLO R LAW FIRM, Knoxville, for Plaintiffs- Appellants. JOE M. LO ONEY, LO ONEY & LOONE Y, Crossville, for Defendants-Appellees. O P I N IO N Franks, J. After the w ill of the testatrix M ildred L. Fin k had bee n admitted to probate, plaintiffs, children of deceased, filed this action contesting the validity of the will, alleging th at “she lack ed testame ntary capacity” to m ake a will. The testatrix, at the time she executed her will, advised her attorney that she had no child ren and a statem ent to tha t effec t was in corpor ated into her wil l. Plaintiffs assert that this establishes that the testatrix was suffering from an insane delusion, and the W ill should be declared void. A fter an evidentiary hearing before the Judge without a jury, the Trial Judge ruled that the Will was valid, by concluding the testatrix had the requisite tes tamentary cap acity to make a Will. The order of the Probate Court admitting the will to probate, was prima facie evidence of the valid ity of the will, 1 and the burden shifted to opponents of the will to p rove th at the T estatrix w as of u nsoun d mind . See Matlock v. Simpson, 902 S.W.2d 3 84; Harper v. Watkins, 670 S .W.2d 611, 62 8 (Ten n. App . 1983) . The courts of this state have recognized that a person suffering from an insane delu sion that ma terially influences the disposition s made in th eir wills wo uld be a basis to void such wills. This Court has explained an insane delusion thus: A person is possessed of a delusion - that is, an insane delusion - when he conceives something extravagant or unreasonable to exist which has no existence except in his own abnormal imagination, but having once conceived the thing or conditioned to exist, it is impossible to reason him out of it. Melody v. Ham blin, et al., 21 Te nn. Ap p. 687, 7 01 (19 37). Accord: Gass’ Heirs v. Gass’ Executors, 22 Tenn. 278 at 28 3-4 (1842). Plaintiffs made out a prima fac ie case that the testatrix was suffering from a delusion, that is, the statement to her attorney and in her will that she had no children. The proponents of the will then offered evidence from the preparer of the will, witness to the will, the testatrix’s treating physician and testatrix’s sisters that convinced the Trial Judge that the testatrix was not suffering from a delusion at the time she execu ted her w ill. The issue thus becomes whether the evidence preponderates against the finding s of the Trial Ju dge. T .R.A.P . Rule 1 3(d). The evid ence estab lished that the testatrix aban doned h er two ch ildren in the early 1950's when they were ages 5 and 6, and their abusive father took them and placed them in a foster home. The testatrix had no further contact with these children throughout the remainder of her life, except she was approached by the son in the 1 The will was executed on March 17, 1994, and testatrix died on February 25, 1995. 2 1980's when she told him she had no children. The attorney who prepared the testatrix’s will testif ied that after h er death he learned tha t she did hav e children, an d it was his opinion “that she deliberately chose not to tell me the truth” about having children. The testatrix’s sister testified at length about having numerous conversations with the testa trix about the se children o ver the years, an d that the testatrix would enquire about them periodically. She testified as follows: Q. Did you speak with her [testatrix] with some degree of frequency right up until the time she died in February of 1995? A. Yes. Q. Did you continue to discuss family matters with her in many of those conversations? A. Yes. Q. And by family matters, did that also include discussion of these children? A. Yes. The testatrix’ personal p hysician, the on ly expert to testify, said th at to a reason able degree of medical ce rtainty, he had no reason to b elieve that she “could no t direct a will in a competent manner”. The Trial Judge found the sister, Mrs. Partin, credible, and relied upon her testimony in finding that the testatrix was not suffering from an insane delusion. He stated: So, based on what Mrs. Partin testified to, obviously the testatrix knew she had children, acknowledged she had children, but for some reason, chose no t to make th em bene ficiaries in her will. When we look to another item, we can all speculate that perhaps as a result of her hospitalization with a nervous breakdown that this blocked her knowledge of these children. However, I think that’s refuted by Mrs . Partin’s testim ony. Also, the Judge relied on the doctor’s testimony to buttress his finding. We conclude the evidence does not preponderate against the Trial Court’s finding that at the time of the execution of the Will the testatrix knew of the 3 existence of her two children, and was therefore not suffering from an insane delusion which wo uld void her Will. T.R.A .P. Rule 13(d). The judgment of the Trial Court is affirmed and the cause remanded, with the cost of the appeal assessed to appellants. __________________________ Herschel P. Franks, J. CONCUR: ___________________________ Don T. McM urray, J. ___________________________ Charles D. Susano, Jr., J. 4	{ "pile_set_name": "FreeLaw" }
Cambridge Petroleum Holdings, Inc. v Lukoil Ams. Corp. (2015 NY Slip Op 04939) Cambridge Petroleum Holdings, Inc. v Lukoil Ams. Corp. 2015 NY Slip Op 04939 Decided on June 11, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 11, 2015 Tom, J.P., Renwick, Andrias, Manzanet-Daniels, Kapnick, JJ. 15397 650081/12 [*1] Cambridge Petroleum Holdings, Inc., Plaintiff-Respondent, vLukoil Americas Corporation, Defendant-Appellant. Akin Gump Strauss Hauer & Feld LLP, New York (Deborah J. Newman of counsel), for appellant. Eisenberg & Carton, Port Jefferson (Lloyd M. Eisenberg of counsel), for respondent. Order, Supreme Court, New York County (Lawrence K. Marks, J.), entered October 23, 2014, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the remaining causes of action in the amended complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint. In 2010, defendant began to search for potential purchasers of a financially distressed subsidiary, GPMI. Plaintiff's offer to acquire GPMI for one dollar in exchange for a $25 million cash infusion into GPMI was accepted by defendant, in the hopes that plaintiff could turn the company around. The parties executed a Stock Purchase Agreement memorializing the transaction, which closed on February 28, 2011. Plaintiff subsequently commenced this action for the breach of certain warranties contained in the transaction. However, the Stock Purchase Agreement explicitly limited defendant's requirement to indemnify plaintiff to certain circumstances, such as income tax payments and third-party claims. Plaintiff's causes of action herein are not for damages arising from such claims, but rather, are for breaches of the warranties that defendant allegedly made directly to it. These claims are not permitted under the agreement. That these restrictions leave plaintiff without a remedy is of no moment, as a party may not rewrite the terms of an agreement because, in hindsight, it dislikes its terms (see Ambac Assur. Corp. v EMC Mtge. LLC, 121 AD3d 514, 520 [2014]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JUNE 11, 2015 CLERK	{ "pile_set_name": "FreeLaw" }
679 F.2d 261 220 U.S.App.D.C. 84 Continental Grain Co.v.Interstate Commerce Commission 81-1318 UNITED STATES COURT OF APPEALS District of Columbia Circuit 4/9/82 1 I.C.C. AFFIRMED 2 --------------- * The judgment or order is accompanied by a Memorandum explanatory of the judgment. Such memorandum is not included with the opinions of the Court that are printed, and it may not be cited in briefs or memoranda of counsel as precedents, under local rule.	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-81,246-01 EX PARTE GLEN EARL NOBLES, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 6780-A IN THE 273RD DISTRICT COURT FROM SABINE COUNTY Per curiam. ORDER Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty and was convicted of failing to comply with registration requirements and sentenced to ten years’ imprisonment. Applicant contends that he was not required to register as a sex offender, therefore he was denied due process of law and is actually innocent. He also contends that counsel was ineffective for failing to investigate his duty to register as a sex offender. Applicant was charged with failing to register with an offense date of May 16, 2012. According to the record, information provided to the District Attorney’s office by DPS and TDCJ 2 indicated that Applicant had a prior conviction for attempted sexual assault, and was required to register in accordance with Chapter 62 of the Code of Criminal Procedure, until January 11, 2014. However, according to Chapter 62.102 of the Texas Code of Criminal Procedure, Applicant had a duty to register as a sex offender for ten years post discharge for a conviction of attempted sexual assault. TEX . CODE CRIM PROC. Art 62.102; TEX . PENAL CODE § 22.01. Therefore, the period during which Applicant was required to register as a sex-offender expired on November 24, 2011. Applicant was no longer required to register as a sex offender after this date. The State and the trial court both recommend granting relief. Applicant’s claim is supported by the habeas record. Relief is granted. The judgment in Cause No. 6780-A in the 273rd District Court of Sabine County is set aside, and Applicant is remanded to the custody of the Sheriff of Sabine County to answer the charge against him. The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues. Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Parole Division. Filed: January 14, 2015 Do not publish	{ "pile_set_name": "FreeLaw" }
[Cite as Phoenix Fin. Solutions, Inc. v. Gonzales, 2014-Ohio-3897.] COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT JUDGES: PHOENIX FINANCIAL SOLUTIONS, : Hon. W. Scott Gwin, P.J. INC. : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. Plaintiff-Appellant : : -vs- : Case No. CT2013-0056 : APRIL GONZALES : : OPINION Defendant-Appellee CHARACTER OF PROCEEDING: Civil appeal from the Muskingum County Court, Case No. CVF-1201012 JUDGMENT: Reversed and Remanded DATE OF JUDGMENT ENTRY: September 5, 2014 APPEARANCES: For Plaintiff-Appellant JAMES BLUNT II 445 W. Longview Avenue Mansfield, OH 44903 [Cite as Phoenix Fin. Solutions, Inc. v. Gonzales, 2014-Ohio-3897.] Gwin, P.J. {¶1} Appellant appeals the September 18, 2013 and November 5, 2013 judgment entries of the Muskingum County Court that released the wage garnishment filed by appellant. Facts & Procedural History {¶2} On December 27, 2012, appellant Phoenix Financial Solutions, an assignee of Dutro Used Cars, Inc., filed a complaint against appellee April Gonzales. The complaint alleged that appellee was in default of a retail installment sales contract for the purchase of a 1994 Mercury Grand Marquis. After certified mail service was completed on appellee on April 29, 2013, appellant filed a motion for default judgment on May 31, 2013. On June 4, 2013, default judgment was granted in favor of appellant against appellee in the amount of $3,351.41 plus interest at 21% from July 16, 2012. {¶3} Appellant filed a garnishment on August 2, 2013. On August 19, 2013, appellee filed a request for hearing stating that she never drove the car and that she could not afford the debt. On September 5, 2013, the trial court set a garnishment hearing for September 18, 2013. {¶4} On September 11, 2013, appellant filed an affidavit in lieu of appearance written by appellant’s attorney listing the remaining balance on the judgment and stating that appellee’s wages are not exempt from garnishment, to the best of his knowledge. On September 18, 2013, the trial court issued a release of garnishment and dissolution of the order of attachment. {¶5} Appellant filed a motion for findings of fact and conclusions of law on September 26, 2013, requesting findings of fact and conclusions of law as to why the Muskingum County, Case No. CT2013-0056 3 garnishment was released. On November 5, 2013, the trial court issued a judgment entry that stated as follows: The Plaintiff filed an Affidavit in Lieu of Appearance dated September 11, 2013. The Defendant appeared at said Hearing. The Plaintiff did not appear. Therefore, the Court released the Wage Garnishment file dated August 12, 2013. {¶6} Appellant appeals the September 18, 2013 and November 5, 2013 judgment entries of the Muskingum County Court and assigns the following as error: {¶7} “I. THE TRIAL COURT ERRED BY RELEASING THE WAGE GARNISHMENT WHERE THE JUDGMENT CREDITOR FILED AN AFFIDAVIT IN LIEU OF APPEARANCE AND THE JUDGMENT DEBTOR FAILED TO PROVIDE ANY EVIDENCE THAT THE GARNISHMENT PROCEEDS WERE EXEMPT FROM EXECUTION.” I. {¶8} Appellant argues the trial court erred in dismissing its garnishment solely for failing to appear at the hearing when they submitted an affidavit in lieu of appearance. We agree. {¶9} R.C. 2716.13 allows a judgment debtor to request a hearing for the purpose of disputing the judgment creditor’s right to garnish the judgment debtor’s personal earnings. The subject matter of the hearing is “* * * limited to a consideration of the amount of the personal earnings of the judgment debtor, if any, that can be used in satisfaction of the debt owed by the judgment debtor to the judgment creditor.” R.C. 2716.13. Muskingum County, Case No. CT2013-0056 4 {¶10} The judgment debtor has the burden of proving the existence of an exemption or defense to the garnishment. State of Ohio v. Cipriano, 5th Dist. Guernsey No. 03CA000032, 2005-Ohio-249, quoting Monogram Credit Card Bank of Georgia v. Hoffman, 3rd Dist. Union No. 14-02-24, 2003-Ohio-1578; Ashtabula County Med. Ctr. v. Douglass, 11th Dist. Ashtabula No. 1331, 1988 WL 59836 (June 3, 1988). Accordingly, the failure of a judgment creditor or his counsel “to attend the hearing should not result in an automatic finding in favor of the judgment debtor due only to the creditor’s failure to appear. The judgment debtor must still go forward and meet his burden of proof.” Ashtabula County Med. Ctr. v. Douglass, 11th Dist. Ashtabula No. 1331, 1988 WL 59836 (June 3, 1988); Monogram Credit Card Bank of Georgia v. Hoffman, 3rd Dist. Union No. 14-02-24, 2003-Ohio-1578; State of Ohio v. Cipriano, 5th Dist. Guernsey No. 03CA000032, 2005-Ohio-249 (adopting the holding in Monogram Credit Card). {¶11} By not appearing at the garnishment hearing, the creditor does waive his right to challenge the claims of the judgment debtor; and the trial court, upon proper presentation of evidence by the debtor, has the right to determine the debt to be all or partially satisfied. Ashtabula County Med. Ctr. v. Douglass, 11th Dist. Ashtabula No. 1331, 1988 WL 59836 (June 3, 1988). “That is the risk the creditor runs when he fails to appear.” Id. {¶12} We find the rationale in Ashtabula County Medical Center v. Douglass and Monogram Credit Card Bank of Georgia v. Hoffman to be persuasive. 11th Dist. Ashtabula No. 1331, 1988 WL 59836 (June 3, 1988); 3rd Dist. Union No. 14-02-24, 2003-Ohio-1578. The trial court erred in issuing a release of garnishment and Muskingum County, Case No. CT2013-0056 5 dissolution of the order of attachment as it appears from the record that the trial court vacated the garnishment solely because appellant filed an affidavit in lieu of appearance instead of making a personal appearance at the hearing. {¶13} Based on the foregoing, appellant’s assignment of error is sustained. The September 18, 2013 and November 5, 2013 judgment entries of the Muskingum County Court are reversed and remanded for further proceedings in accordance with this opinion. By Gwin, P.J., Farmer, J., and Baldwin, J., concur	{ "pile_set_name": "FreeLaw" }
January 8, 2015 JUDGMENT The Fourteenth Court of Appeals CARENU, LLC, Appellant NO. 14-14-00964-CV V. IT DEVICES ONLINE, Appellee ________________________________ Today the Court heard appellant’s motion to dismiss the appeal from the order signed by the court below on November 10, 2014. Having considered the motion and found it meritorious, we order the appeal DISMISSED. We further order that all costs incurred by reason of this appeal be paid by appellant, Carenu, LLC. We further order that mandate be issued immediately. We further order this decision certified below for observance.	{ "pile_set_name": "FreeLaw" }
SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 391 KA 11-02159 PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V ORDER JIMMY L. HARRIS, DEFENDANT-APPELLANT. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), rendered August 25, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed for reasons stated in the decision at County Court. Entered: March 20, 2015 Frances E. Cafarell Clerk of the Court	{ "pile_set_name": "FreeLaw" }
Filed 6/22/16 In re R.G. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO In re R.G., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E064181 Plaintiff and Respondent, (Super.Ct.No. INJ1500074) v. OPINION E.H., Defendant and Appellant. APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge. Affirmed. Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent. 1 Defendant and appellant E.H. (Mother) appeals from the juvenile court’s jurisdictional and dispositional findings as to her 17-year-old son R.G. She contends that (1) there was insufficient evidence to support the juvenile court’s jurisdictional findings under Welfare and Institutions Code1 section 300, subdivisions (a) and (b)(1), and (2) the court’s dispositional orders were not authorized by the statutory scheme rendering those orders void or voidable. For the reasons explained below, we affirm. I FACTUAL AND PROCEDURAL BACKGROUND The family came to the attention of the Riverside County Department of Public Social Services (DPSS) on March 12, 2015, when a referral was received alleging general neglect and physical abuse of then 16-year-old R.G. and his half sister, then 10-year-old H.H.2 The referral alleged that R.G. was observed with a burn or abrasion to his right hand, and when asked what happened, R.G. reported his mother had burned him with a lighter. The reporting party stated that R.G. was participating in an activity at school involving fire and R.G. became afraid when the lighter was lit to conduct the project. R.G. asserted that he was afraid of fire because his mother burned him and repeated this statement over and over. R.G. was interviewed by a social worker at his high school on March 18, 2015. The social worker was informed that R.G. was diagnosed as autistic with mild intellectual 1 All future statutory references are to the Welfare and Institutions Code unless otherwise stated. 2 H.H. is not a party to this appeal. 2 ability. The social worker noted that although R.G. was 16 years old at the time, he “presented as a child in a much younger development range.” The social worker assessed R.G.’s ability to distinguish between the truth and a lie and he was able to articulate and demonstrate his understanding. R.G. stated that he lived with his mother, stepfather (W.H.), and his half sister H.H. R.G. reported seeing his mother hit W.H. He also said that his mother kicked him in the groin area and that she had punched him with her fist. When the social worker asked him about any marks, bruises or injury on his body, R.G. held out his right hand and a small pinkish color circular mark was observed on the hand. R.G. said that his mother was mad at him and burned him with her cigar. At the conclusion of the interview, law enforcement was called. A joint assessment was thereafter conducted by the social worker and a police officer. During the assessment, R.G. stated Mother had burned him with her yellow “cigar lighter.” He also stated that he started crying, yelling and screaming after being burned. R.G. denied receiving any medical care. He stated that he did not feel safe at his home because of Mother and that he was afraid of Mother because she had burned him. Mother was called and interviewed at the school. She reported that she learned of R.G.’s injury a week prior when the school nurse called her and that she did not know how it occurred, but R.G. told her that he got the injury from falling off his scooter. She also stated that by the time she saw the mark it was already healed and the scab had fallen off. Mother further asserted that R.G. could have gotten the injury from anywhere as he disappears from their home on a daily basis, leaving at 6:00 a.m. and returning all hours of the night; that she was unable to stop R.G. from leaving as he becomes combative; and 3 that she has no idea of his whereabouts until he returns. Mother initially denied smoking, reporting she had quit a long time ago, and also denied owning a cigarette lighter. She also said that no one in the house smoked. As the investigation continued, she recanted her initial statements and admitted to occasionally smoking cigars. She, however, remained firm that she did not burn R.G. with her cigar, claiming she never smoked around her children. Mother did not know why R.G. would say she burned him and reported that R.G. was a liar with a history of making things up. She further asserted that R.G. was a very difficult child and that he physically beats her up, leaving marks and bruises all over her body. She also stated R.G. beats up H.H. and that H.H. was afraid of R.G. H.H. stated that Mother smoked cigars every day. She believed R.G. received his injury when he fell off his scooter but denied ever seeing him fall off his scooter. She admitted to hearing R.G. crying, screaming, and yelling in his room but denied knowing what happened. She had never seen Mother hurt R.G. but had seen R.G. hurt her mother. She also claimed that R.G. hit her and Mother and that she was afraid of R.G. W.H. also denied knowledge of any burns to R.G. He admitted that he smoked cigarettes and Mother smoked cigars. He also reported ongoing problems with R.G., noting R.G. was out of control and he leaves the house and returns after midnight. He also stated R.G. was very combative and physically abused Mother and H.H. and that he was afraid for them. W.H. showed the social worker several holes in the walls that W.H. claimed were caused by R.G. and reported that when R.G. cannot have his way, he becomes violent and punches things, throws things, or attacks. 4 Mother had a prior child welfare history involving general neglect, physical abuse, and sibling at risk. In October 2005, it was reported that R.G. was observed with a bruise on his left ear. The referral was, however, closed as unfounded. Another referral was received in December 2006 alleging general neglect of the children after H.H. was pushed into the swimming pool accidentally. The referral also stated that the home had dog feces; that H.H. was seen running in the feces; and that the home was unsafe. This referral was also closed as unfounded. At the conclusion of the investigation, a safety plan was developed. Mother agreed to allow R.G. to be placed with his maternal aunt and to cooperate with DPSS until a Child Abuse and Neglect Assessment (CAN) could be completed. DPSS allowed H.H. to remain in her parent’s home. R.G. underwent the CAN examination on March 20, 2015 with Dr. Mark Massi. Dr. Massi found the injury to R.G.’s hand was “consistent with that of a cigar burn.” The results also indicated that R.G. suffered from physical abuse, not neglect, and that the relationship between R.G. and his mother appeared unhealthy. R.G. was thereafter taken into protective custody and formally placed with his maternal aunt. On March 24, 2015, DPSS filed a petition on behalf of the children pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (g) (no provision for support against R.G.’s father),3 and (j) (abuse of sibling). 3 At that time, the whereabouts of R.G.’s father, T.G. (father), were unknown. It was later determined Father resided in New York. Father is not a party to this appeal. 5 The detention hearing was held on March 25, 2015. Mother appeared, and Father appeared by telephone. The court formally detained R.G. as to Mother, and Mother was provided with supervised visitation with R.G. When the social worker met with R.G. again on April 7, 2015, the injury to R.G.’s hand had healed and the original injury was only “slightly visible.” R.G. reported that he did not get the injury to his hand from a burn but from falling off his scooter. The social worker then spoke with R.G. regarding his promise to tell her the truth and reassessed R.G.’s understanding as to the difference between a truth and a lie. R.G. demonstrated again that he knew the difference. The social worker then asked R.G. if he was telling the truth or a lie about falling off his scooter. R.G. stated he was telling her “a lie” and reported several times that his mother burned him with her cigar. When the social worker asked R.G. if anyone had told him to tell the social worker he fell off his scooter, R.G. responded “yes,” but would not tell the social worker who had asked him to lie. The maternal aunt reported that R.G. was adjusting to her home. She also noted that R.G. was not capable of distinguishing the difference between the truth and a lie, even though R.G. had answered the social worker’s questions. W.H. was also interviewed again and said he was home but not in the room when R.G. and Mother “got into it.” He reiterated that R.G. lies and noted that “no one knows the truth.” He did not believe Mother burned R.G. He also reiterated that R.G. kicks, punches, and beats his mother and that R.H. is violent and out of control and is afraid for Mother and H.H. R.G.’s father also found it hard to believe Mother had burned R.G., noting he was “shocked” that Mother would burn R.G and that Mother had never been 6 violent. Father also stated that Mother had prevented him from visiting with R.G.; that he paid monthly child support for R.G.; and that he desired custody of his son and was willing and able to take care of him. The social worker also spoke with Doug Christiansen, Consumer Service Coordinator for Inland Regional Center (IRC). Christiansen said that R.G. frequently lied and that he did not believe Mother had harmed R.G. When asked about the frequency of his contact with the family, Christiansen said he primarily spoke with Mother by telephone related to services or problems and visited with the family in-person only once a year. R.G.’s Individual Education Plan (IEP) dated October 17, 2014, indicated that R.G. was able to initiate conversation with peers and adults with good speech intelligibility and adequate sentence structure. R.G. got along with his peers and staff and was described as a very social person who enjoyed interacting with his friends and staff. The IEP also noted R.G. was a very happy person at school and always tried to do his best. On June 29, 2015, the court granted DPSS’s request to allow R.G. to visit with his Father in New York from June 29, 2015 through July 12, 2015. This visit reportedly went “extremely well.” During a home visit by a New York social worker, R.G. was observed to be “happy” and reported “things were good.” The New York social worker observed that an existing relationship and bond existed between R.G. and his Father. At a hearing in April 2015, R.G. expressed enthusiasm in seeing his father and reported “it was the best day.” R.G. had recognized his father upon contact, hugged him, and 7 expressed that he loved him and was happy to see him. Father reported that he was ready and willing to assume custody of R.G. Father had already made arrangements for mental health services R.G. required and for R.G. to attend a school that serviced children with autism and special needs if R.G. was placed in his care. The contested jurisdictional/dispositional hearing was held on July 13 and 30, 2015. At that time, several witnesses testified, including R.G. In relevant part, Dr. Massi testified that he was “[r]easonably certain” R.G.’s injury was consistent with being burned with a cigar, cigarette, or cigarillo. Dr. Massi also clarified that even if R.G. had not disclosed his mother had burned him, he “would have still concluded that the appearance of the lesion is most consistent with a burn” and that he “would still have concern about how that occurred.” R.G. testified that his time with his father and stepmother in New York was “good”; that he wanted to stay with his mother and visit his father; that he did not want to live with his maternal aunt because she was “mean”; and that he had actually burned his own hand with a cigar. Upon questioning by the court, R.G. stated that Mother smoked cigars; that he loved his mother; that Mother had accidentally burned his hand; and that sometimes Mother gets mad at him and kicks him. R.G. later stated that the injury was caused by falling off his scooter. However, when questioned as to how long his mother’s cigar touched his hand, R.G. stated “[a] lot” and that he cried out in pain. Following R.G.’s testimony, the court noted that R.G. had consistently stated his mother’s cigar caused the burn. 8 A speech pathologist, who had met R.G. on two occasions at the request of the maternal aunt, also testified. In pertinent part, she believed that R.G. was 100 percent unreliable because he gave inconsistent, irrelevant, and illogical responses, and that he had difficulty distinguishing between fantasy and reality. R.G.’s respite care provider for almost 10 years testified that she had never observed anything to suggest Mother was abusing R.G.; that R.G. had never told her anyone was hurting him; that R.G. tends to tell different stories; and that R.G. told her the injury to his hand occurred when he fell at school. The social worker testified that she believed Mother posed a threat to R.G.’s safety and well-being, not only due to the cigar burn but also due to Mother’s inability to control R.G. and their unhealthy relationship. The social worker also stated that she was recommending R.G. be placed with Father because he was a nonoffending parent and that it was not uncommon to place a child with a nonoffending parent even if the child had never lived with the nonoffending parent. Mother testified that she had cared for R.G. since his birth; that she had support from respite care, IRC, and in-home services; that she did not have difficulty controlling R.G.; and that neither she nor H.H. were afraid of R.G. She explained that R.G. did not disappear from her home all day on a daily basis and that he often went to the homes of his friends for a few hours. Following argument, the juvenile court found allegations a-1 and b-1 true and allegations b-2, g-1, and j-1 not true. The petition as to H.H. was dismissed. The court thereafter heard testimony from Father and his wife. Following argument as to disposition, the court awarded sole physical and legal custody of R.G. to Father and 9 visitation for Mother. The court also ordered the dependency case terminated with family law orders and Father’s counsel to prepare the orders. This appeal followed. II DISCUSSION A. Jurisdictional Findings Mother argues there is insufficient evidence to support the juvenile court’s jurisdictional findings pursuant to section 300. We disagree. As to allegation a-1, the petition alleged: “The child has suffered non-accidental harm and continues to be at risk of harm in that the child sustained a burn mark to his right hand which was inflicted by his mother.” As to allegation b-1, the petition stated: “The mother neglects the health, safety and well[-]being of the child, [R.G.] in that he sustained a lighter burn to his right hand inflicted by his mother. In addition, the child reports being scared of his mother as a result. Furthermore, the mother continues to deny that she caused said injury, thus continuing to place the child[] at risk of harm.”4 “ ‘ “A dependency proceeding under section 300 is essentially a bifurcated proceeding.” [Citation.] First, the court must determine whether the minor is within any of the descriptions set out in section 300 and therefore subject to its jurisdiction.’ [Citation.] ‘ “The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child who is the subject of a petition comes under the juvenile court’s jurisdiction.” ’ [Citation.] ‘The basic question under section 300 is whether 4 At the jurisdictional hearing, DPSS amended allegation b-1 to omit “lighter” and to state “burn.” 10 circumstances at the time of the hearing subject the minor to the defined risk of harm.’ ” (In re A.S. (2011) 202 Cal.App.4th 237, 243-244.) When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) We review the entire record to determine whether substantial evidence supports the juvenile court’s findings, resolving all conflicts and drawing all reasonable inferences in support of the findings. (Ibid.) Those inferences “must be reasonable and logical; ‘inferences that are the result of mere speculation or conjecture cannot support a finding.’ ” (In re B.T. (2011) 193 Cal.App.4th 685, 691.) “We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. The appellant has the burden to demonstrate there is no evidence of a sufficiently substantial nature to support the findings or orders.” (In re Jordan R. (2012) 205 Cal.App.4th 111, 135-136.) The juvenile court asserts jurisdiction over the children, not the parents. If sufficient evidence supported jurisdiction based on one parent’s conduct, it was proper for the court to assert jurisdiction, irrespective of the other parent’s conduct. (§ 302, subd. (a); In re James C. (2002) 104 Cal.App.4th 470, 482.) Similarly, if substantial evidence supports findings related to any of the asserted bases for jurisdiction, we will affirm the juvenile court’s jurisdictional order. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) 11 A child is within the jurisdiction of the juvenile court under subdivision (a) of section 300 when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian.” (§ 300, subd. (a).) “[A] court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent or guardian that indicate the child is at risk of serious physical harm.” (Ibid.) This “permissive language” “merely sets forth scenarios in which the statute may apply.” (In re Marquis H. (2013) 212 Cal.App.4th 718, 725.) For purposes of subdivision (a) of section 300, “ ‘serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks if there is no evidence of serious physical injury.” (§ 300, subd. (a).) “[P]arents of common intelligence can discern what injuries fall within” the scope of that subdivision. (In re Mariah T. (2008) 159 Cal.App.4th 428, 438.) Correspondingly, a child is within the jurisdiction of the juvenile court under subdivision (b) of section 300 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, . . .” (§ 300, subd. (b).) “The child shall continue to be a dependent child pursuant to [subdivision (b) of section 300] only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.” (§ 300, subd. (b)(1).) 12 As the California Supreme Court has observed, “section 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction.” (In re I.J. (2013) 56 Cal.4th 766, 773.) Subdivisions (a) and (b) of section 300 also encompass circumstances creating a “substantial risk” of specified harm. “ ‘The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.’ [Citation.]” (In re I.J., at p. 773; see § 300.2 [the purpose of dependency law].) The focus of section 300 is to avert harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 535-536.) The purpose of section 300 is “to limit court intervention to situations in which children are threatened with serious physical or emotional harm” as a result of their parent’s conduct. (In re Marilyn H. (1993) 5 Cal.4th 295, 303.) In regard to determination of jurisdiction under subdivision (a) of section 300, Mother argues there is no evidence the injury R.G. sustained was inflicted nonaccidentally, noting that although R.G. stated his mother burned him, he never said Mother did so intentionally or deliberately. We find Mother’s claim unpersuasive. R.G. consistently stated Mother burned him with a cigar. He told the reporting party, the social worker, law enforcement, Dr. Massi, and the court that Mother had burned him. He also stated that Mother burned him because she was angry at him and that he was afraid of Mother because she had burned him. He also told the court the cigar touched his hand “a lot” and that he cried out in pain. He also reported that he started crying, yelling, and screaming after being burned and his stepfather pulled his mother into the hallway. H.H. corroborated this statement, reporting that she heard R.G. screaming and 13 yelling in his room. The CAN examination concluded R.G.’s injury was the result of physical abuse and not neglect. Mother initially denied smoking or owning a lighter. She later changed her response and said she occasionally smoked cigars but not near her children. H.H., however, reported that Mother smoked daily. W.H. also reported that Mother smoked cigars and that he had a gold lighter. Mother was adamant that she did not burn R.G. with a cigar and never claimed she may have accidentally. Based on R.G.’s statements, the fact Mother smoked cigars and tried to initially conceal it, the CAN examination, and Dr. Massi’s testimony, the juvenile court could reasonably infer that Mother nonaccidentally burned R.G. on his hand with a cigar. Evidence of a single incident of serious physical harm to a child may be sufficient for the juvenile court to assume jurisdiction under section 300, subdivision (a). (See In re J.K. (2009) 174 Cal.App.4th 1426, 1439; In re Mariah T., supra, 159 Cal.App.4th at p. 438.) The evidence is sufficient to show that Mother burned R.G. on his hand long enough to leave a burn mark and did so “nonaccidentally.” (§ 300, subd. (a).) The court impliedly rejected Mother’s explanations of R.G.’s injury and we cannot reweigh the evidence. Mother also argues there is no evidence R.G.’s injury constituted serious physical harm. Section 300, subdivision (a), does not define “ ‘serious physical harm.’ ” (In re Isabella F. (2014) 226 Cal.App.4th 128, 138.) It only provides, “For purposes of this subdivision, ‘serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks if there is no evidence of serious physical injury.” (§ 300, subd. (a).) “Although there may be an ‘I know it when I see it’ component to this factual determination [of what constitutes serious physical harm] . . . parents of common 14 intelligence can discern what injuries fall within its reach.” (In re Mariah T., supra, 159 Cal.App.4th at p. 438.) Case law suggests that serious physical harm may be found where physical discipline causes more than temporary redness, for example, where it causes substantial bruising or laceration. In In re Mariah T., supra, 159 Cal.App.4th at page 438, the court did not resolve whether striking an eight-year-old on the back and leaving a red mark constituted serious physical harm, but did determine serious physical harm occurred where the parent struck a three-year-old child with a belt on the stomach and forearms, leaving deep purple bruises. In In re David H. (2008) 165 Cal.App.4th 1626, 1645, the court found serious physical harm where a seven-year-old child was struck with a belt or a cord leaving welts, bruises, and broken skin. In In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1472, pinching a child in anger, causing bruising that lasted four to 11 days and pain to the child, supported a finding the child was at risk of serious physical harm. Here, R.G.’s burn resulted in a burn mark lasting about a month. The referral was received on March 12, 2015, after the reporting party observed a burn or abrasion on R.G.’s hand. When the social worker met R.G. on March 18, 2015, she saw a small pinkish color circular mark on R.G.’s hand. The injury was “slightly visible” when the social worker met with R.G. on April 7, 2015. Mother contends that In re Isabella F., supra, 226 Cal.App.4th 128, requires us to find that R.G.’s injuries were not serious enough to warrant jurisdiction under section 300, subdivision (a). We reject this argument because the court’s conclusion in Isabella F. was based on distinguishable facts. In that case, the mother had struggled 15 with her daughter when she would not get ready for school, inflicting small scratches on the child’s face. (Isabella F., at pp. 131-132.) The mother admitted to spanking the child, but denied hitting her face and claimed that any scratches would have been accidental. (Id. at p. 132.) Photographs of the child’s injuries showed a “gouge mark” on her earlobe and a “small cut” on her cheekbone, both of which were “consistent with a fingernail injury.” (Ibid.) At the jurisdiction hearing, the mother’s counsel argued that the child’s injuries did not constitute serious physical harm, but counsel “stopped short of asking the juvenile court to dismiss the petition, apparently based on mother’s desire to receive services.” (Id. at p. 135.) The appellate court found that the fingernail scratches on the child’s face were not serious injuries for purposes of section 300, subdivision (a) jurisdiction. (Isabella F., at pp. 138-139.) The court also found that the child was not at risk of suffering serious physical harm in the future because the child had reported that the altercation with her mother was an “isolated incident.” (Id. at p. 139.) The holding of In re Isabella F. is inapplicable here because R.G.’s injury was more serious and extensive than fingernail scratches. Moreover, Mother never accepted culpability for the injury and continued to deny that she burned R.G., either intentionally or accidentally. Furthermore, while the cigar burn was the most serious incident of abuse, R.G. also reported that Mother had kicked him in the groin area and punched him in the past. We find R.G.’s burn injury qualifies as “serious physical harm.” This is an injury that any parent of common intelligence would recognize as serious physical harm. (See In re Mariah T., supra, 159 Cal.App.4th at p. 438.) It went beyond the “reasonable and 16 age-appropriate spanking to the buttocks” not resulting in serious physical harm excluded from the scope of the subdivision. (§ 300, subd. (a).) Mother is essentially asking us to reweigh the evidence, which is beyond our authority. Because the substantial evidence standard of review requires that we “ ‘accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact,’ ” (In re A.S., supra, 202 Cal.App.4th at p. 244) we conclude that the evidence is sufficient to sustain the juvenile court’s findings as to allegation a-1. Having found substantial evidence to support a finding of jurisdiction based on section 300, subdivision (a), we need not address Mother’s contention that there is insufficient evidence to support a finding of jurisdiction based on section 300, subdivision (b). (In re I.J., supra, 56 Cal.4th 766, 773 [“ ‘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 juvenile 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. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.’ ”]; see also In re I.A. (2011) 201 Cal.App.4th 1484, 1492; D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1127; In re Alexis E. (2009) 171 Cal.App.4th 438, 451; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) Accordingly, we conclude substantial evidence supports the juvenile court’s jurisdictional findings. 17 B. Dispositional Orders Mother also argues that reversal of the juvenile court’s “purported” dispositional orders is required because the court’s orders were not authorized by the statutory scheme thereby rendering those orders void or voidable. Here, the juvenile court did not expressly declare R.G. a dependent of the court pursuant to section 360, subdivision (d). The court also failed to make removal findings under section 361 prior to placing R.G. with his father pursuant to section 361.2. Although the better practice is to express each and every finding and to explain the grounds for such findings on the record, we conclude the lack of explicit findings does not compel reversal. Section 360 provides the juvenile court with several options once it has determined that a child is a person described under section 300. Section 360, subdivision (d), provides that the juvenile court may “order and adjudge the child to be a dependent child of the court,” if it finds that the child is a person described by section 300. Here, the court found R.G. to be a child described by section 300, and sufficient evidence as set forth in section II.A., ante, supports such a finding. As such, the court impliedly adjudged R.G. a dependent of the court. Indeed, Mother acknowledges that an order declaring the child a dependent of the court can be implied here. Turning to the removal findings, some provisions of dependency law expressly require the juvenile court to set forth the facts supporting its decision. One such provision is section 361, which concerns removal from parental custody. (§ 361, subd. (d) [“court shall state the facts on which the decision to remove the minor is 18 based”]; see, e.g., In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.) Another is section 361.2, which governs placement with a noncustodial parent. (§ 361.2, subd. (c) [“court shall make a finding either in writing or on the record of the basis for its determination”]; see, e.g., In re V.F. (2007) 157 Cal.App.4th 962, 973, superseded by statute on other grounds as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 58.) “Failure to make the required findings [is] error.” (In re Jason L., supra, 222 Cal.App.3d at p. 1218.) But reversal is not warranted if the error is harmless. (See id. at p. 1219.) The error is harmless if “it is not reasonably probable such findings, if made, would have” resulted in the outcome sought by the appellant. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) In other words, Mother must demonstrate a reasonable probability that, in the absence of error, the lower court would have reached a decision more favorable to her. Otherwise, any error by the court is harmless. (See, e.g., In re D’Anthony D. (2014) 230 Cal.App.4th 292, 303 [failure to make detriment finding was harmless].) Moreover, as case law recognizes, the requisite findings may be implied in a proper case. (In re Corienna G. (1989) 213 Cal.App.3d 73, 83 [permanency planning order; former § 366.25, subd. (d)]; In re Andrea G. (1990) 221 Cal.App.3d 547, 554 [same]; In re Daniel C. H. (1990) 220 Cal.App.3d 814, 838 [termination of visitation; former § 361, subd. (a)].) Conversely, there are circumstances in which appellate courts decline to imply required findings. (See, e.g., In re V.F., supra, 157 Cal.App.4th at p. 973 [observing that “the better practice is to remand” for a detriment determination 19 under § 361.2, subd. (a)]; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1830 [remanding for a detriment determination under § 361.2, subd. (a)]; In re Kevin N. (2007) 148 Cal.App.4th 1339, 1344-1345 [remanding for a detriment determination under § 361.5, subd. (e)(1)].) “By its terms, section 361 applies to a custodial parent, while placement with a noncustodial parent is to be assessed under section 361.2.” (In re D’Anthony D., supra, 230 Cal.App.4th at p. 303.) Section 361, subdivision (c), provides in relevant part: “A dependent child shall not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of . . . . [¶] (1) . . . a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, . . .” Section 361.2, subdivision (a), provides: “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” In this case, the court’s error was in failing to make express findings under section 361, subdivision (a), before proceeding to the section 361.2 findings. Rather than first finding clear and convincing evidence of a “substantial danger” to the child’s physical 20 health, safety, protection, or physical or emotional well-being of the child under section 361, subdivision (c)(1), it found clear and convincing evidence that placement with Father would not be detrimental to R.G. under section 361.2. Nonetheless, the court’s error is harmless because substantial evidence supports removal of R.G. from Mother’s custody under section 361, subdivision (c). In deciding whether there is a reasonable probability of the lower court reaching a result more favorable to Mother than it did when it expressly found clear and convincing evidence to support removal under section 361.2, “we can neither ignore the similarity between these statutes’ mandatory findings, nor disregard the evidence supporting the court’s” lack of detriment finding concerning placement with Father. (In re D’Anthony D., supra, 230 Cal.App.4th at p. 303; see, e.g., In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1507- 1508 [Applying the best interests standard and placing child in long-term foster care without considering detriment under section 361.2 was harmless error where the record contained substantial evidence to support a detriment finding.].) “Before the court may order a minor physically removed from his or her parent, it must find, by clear and convincing evidence, the minor would be at substantial risk of harm if returned home and there are no reasonable means by which the minor can be protected without removal. (§ 361, subd. (c)(1).) A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent.” (In re Diamond H., supra, 82 Cal.App.4th 1127, 1136.) Although the standard for removal under section 361 is clear and convincing evidence in juvenile court, the appellate court reviews the juvenile 21 court’s findings for sufficiency of evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) Furthermore, it is the duty of the juvenile court to determine the credibility of the witnesses. (In re Marco S. (1977) 73 Cal.App.3d 768, 781.) In this case, R.G. repeatedly stated his mother burned him because she was angry. R.G. also stated he was afraid of Mother. He further asserted that Mother had previously kicked and punched him and that he also hit Mother. Mother, W.H., and H.H. corroborated R.G.’s statements in regard to hitting Mother. H.H. also stated that she was afraid of R.G. W.H. further reported that R.G. was out of control; that he was combative when he did not get his way; and that W.H. was afraid for Mother and H.H. due to R.G.’s uncontrollable behavior. Indeed, W.H. appeared to be very frustrated with R.G. and the situation, and Dr. Massi described R.G.’s relationship with his mother as unhealthy. Mother had also reported to the social worker that she could not control R.G.; that R.G. left the home at all hours; and that he was combative. Despite Mother’s initial statements and statements made by R.G., W.H., and H.H., at the time of the jurisdictional/dispositional hearing, Mother denied that she could not control R.G. or that R.G. hit her and H.H. or that she burned R.G. The record shows that Mother’s relationship with R.G. was unhealthy; that the home environment was unstable for R.G.; and that physical abuse would likely reoccur given R.G.’s volatility in the home. Moreover, Mother failed to acknowledge any culpability. Clear and convincing evidence shows that R.G. would be at a substantial risk of harm if returned to Mother’s custody and there was no reasonable means to protect R.G. without removal. Although W.H. and H.H. appeared to be present in the home when the burn incident occurred, they 22 were unable to stop Mother from burning R.G. with a cigar because she was angry at R.G. Mother’s testimony also supports a concern that abuse of R.G. would likely reoccur if R.G. was not removed from her care. Mother denied burning R.G., either accidentally or intentionally, and claimed the burn incident never occurred or the injury to R.G.’s hand was caused by some other means, despite overwhelming evidence to the contrary. She also minimized R.G.’s combative behavior in the home, or that he hit her and H.H., or that H.H. was afraid of R.G. While we acknowledge the burn incident appears to be a one-time occurrence and that Mother had taken care of R.G.’s special needs, the record shows Mother could no longer control R.G. or her reactions to R.G.’s uncontrollable behavior. We conclude that there was sufficient evidence to support removal of R.G. from Mother’s care. Accordingly, any error was harmless. Although “the better practice would have been for the trial court to have made a required determination on the record, we perceive no practical purpose which would be achieved by” remanding for such findings. (In re Corienna G., supra, 213 Cal.App.3d at p. 83; see In re Andrea G., supra, 221 Cal.App.3d at p. 554.) This is especially true here as R.G. has turned 18. Moreover, Mother was “not prejudiced by the lack of an express determination.” (In re Corienna G., at pp. 84-85; see In re Andrea G., at p. 555.) Mother “knew that the purpose of the hearing was to” consider removal of the child and Father’s custody request and dismissal of the dependency. (In re Andrea G., at p. 555.) III DISPOSITION 23 The judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J. We concur: HOLLENHORST J. McKINSTER J. 24	{ "pile_set_name": "FreeLaw" }
719 P.2d 797 (1986) NEVADA PAY TV, a partnership, Charles Zeigler, R. Paul Zeigler, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, the Honorable John F. Mendoza, Judge, Respondent. No. 15528. Supreme Court of Nevada. May 28, 1986. Lionel, Sawyer & Collins and Mark Solomon, Las Vegas, for petitioners. Gifford & Vernon and Steven Glade, Las Vegas, for respondent. OPINION PER CURIAM:[1] Petitioners are the defendants in an action pending below. Pursuant to SCR 48.1, they filed a peremptory challenge in the district court against the respondent judge, the Honorable John F. Mendoza. Judge Mendoza entered an order striking the challenge on the ground that it was untimely. Petitioners contend, however, that the judge was required to transfer the matter to another department; they assert that he lacked jurisdiction to strike their challenge. Accordingly, petitioners bring this original petition, seeking a writ of mandamus to compel the transfer and a writ of prohibition to restrain further action by Judge Mendoza. The action below was initiated by the real party in interest Sears Roebuck & Company. Sears sought to depose several of the individual petitioners. Petitioners moved for a protective order, seeking to postpone the depositions to a more convenient date. A hearing on petitioners' motion was set for September 7, 1983, before Judge Mendoza. Thereafter, however, counsel for the parties were able to resolve their dispute and, on September 6, 1983 one day before the scheduled hearing of petitioners' motionthe matter was taken off the calendar. More than three months later, on December 27, 1983, petitioners filed their peremptory challenge. Sears responded with a motion to strike the challenge as untimely. Judge Mendoza, over petitioners' objection, presided at a hearing on the motion. He subsequently entered an order granting the motion and striking the challenge. This petition followed. During the events in issue here, Rule 48.1 provided, in pertinent part: 1. In any civil action pending in a district court, which has not been appealed from a lower court, each side is entitled, 798 as a matter of right, to one change of judge by peremptory challenge.... . . . . . 3. Except as provided in subsection 4, the peremptory challenge shall be filed: (a) Not less than 30 days before the date set for trial or hearing of the case; or (b) Not less than 3 days before the date set for the hearing of any pretrial matter. . . . . . 5. A notice of peremptory challenge may not be filed against any judge who has made any ruling on a contested matter or commenced hearing any contested matter in the action. 6. The judge against whom a peremptory challenge is filed shall transfer the case to another department of the court, if there is more than one department of the court in the district, or request the chief justice to assign the case to the judge of another district.[2] Relying upon Rule 48.1(6), petitioners first argue that Judge Mendoza lacked jurisdiction to entertain the motion to strike. At any rate, petitioners claim, the challenge was filed within the time limits established by former Rule 48.1(3) and 48.1(5) and should not have been stricken. We consider these arguments in turn. We have never had occasion to apply Rule 48.1(6) in the factual context presented here. However, NRS 1.235(5)(a), relating to challenges for actual or implied bias, is virtually indentical to Rule 48.1(6). Applying that provision, we have held that a judge is not required to transfer a case to another department where an untimely affidavit of prejudice is filed against him. See State ex rel. Dep't Welfare v. District Ct., 85 Nev. 642, 462 P.2d 37 (1969). See also Jacobson v. Manfredi, 100 Nev. 226, 679 P.2d 251 (1984). The necessary implication of these decisions is that a judge challenged for cause is not thereby divested of jurisdiction, but retains authority to determine whether the challenge is timely. We see no basis for distinguishing the situation described above from that presented here. Indeed, given the ease with which a peremptory challenge may be asserted, there is even greater danger that the device will be abusedwith all the delay and waste of judicial resources that such abuse entails.[3] Accordingly, we reject petitioners' claim that Judge Mendoza was without jurisdiction to entertain the motion to strike. We now turn to the question of whether petitioners' challenge was timely. Sears argued below, and Judge Mendoza agreed, that the challenge was untimely because it was not filed at least "3 days before the date set for the hearing" of petitioners' motion for a protective order. SCR 48.1(3)(b). In arguing to the contrary, petitioners appear to assume that the sole purpose of Rule 48.1 is the prevention of "judge shopping." While that of course is one function of the Rule, the Rule is also intended to minimize the danger that the peremptory challenge will be used as a dilatory tactic. Under the Rule, the privilege of asserting the challenge must be exercised quickly or else lost forever. The operation of the Rule will be hindered, we believe, unless its provisions are strictly construed. See United States v. Conforte, 457 F.Supp. 641, 654 n. 7 (D.Nev.1978), aff'd, 624 F.2d 869 (9th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980). Accordingly, we conclude that the 799 phrase "any pretrial matter," as used in former Rule 48.1(3)(b), must be read literally. Because petitioners' challenge was not filed at least "3 days before the date set for the hearing of any pretrial matter," it follows that the challenge was untimely. Having concluded that petitioners' arguments are without merit, we deny their petition. It is so ORDERED. NOTES [1] This petition was previously denied on the merits in an unpublished order of this court. We have determined that our decision should be issued in a published opinion. Accordingly, we hereby issue this opinion in place of our order filed April 24, 1986. [2] We acknowledge that Rule 48.1(3)(b) has recently been amended. As amended, section (3)(b) provides that a peremptory challenge must be filed at least 3 days "before the date set for the hearing of any contested pretrial matter." (Emphasis added.) Nevertheless, the policy considerations underlying the Rule, discussed below, have not been affected by the amendment. Even if our analysis of this case might be different under the present version of the Rule, we are precluded from giving the amendment retroactive application. See NRS 2.120 (amendment to supreme court's rules may not take effect less than 30 days after entry of order adopting amendment). [3] The record does not indicate, nor do we mean to suggest, that the challenge in issue here was filed with any improper motive.	{ "pile_set_name": "FreeLaw" }
Order entered July 16, 2015 In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-01229-CR JOHNNY RAY WALKER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F13-60285-Y ORDER The Court GRANTS the State’s July 15, 2015 second motion to extend time to file its brief only to the extent that we ORDER the State to file its brief by MONDAY, AUGUST 17, 2015. /s/ ADA BROWN JUSTICE	{ "pile_set_name": "FreeLaw" }
312 F.3d 589 Falk & Siemer, LLP, Plaintiff-Appellee,v.Craig Maddigan, Defendant-Appellant. Docket No. 01-5061. United States Court of Appeals, Second Circuit. Argued August 26, 2002. Decided December 9, 2002. Amended December 10, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Leonard F. Walentynowicz, Grand Island, NY, for Defendant-Appellant. Carol D. Collard, Falk & Siemer, LLP, Buffalo, NY, on the brief, for Plaintiff-Appellee. Before WINTER, SACK, and SOTOMAYOR, Circuit Judges. SOTOMAYOR, Circuit Judge. 1 Defendant Craig Maddigan appeals from a judgment of the United States District Court for the Western District of New York (Arcara, J.) affirming the bankruptcy court's finding that Maddigan's obligation for legal fees imposed by a family court during a custody proceeding was nondischargeable in bankruptcy. We hold that the bankruptcy court (Bucki, J.) correctly read the family court's order of legal fees as creating a debt Maddigan owes to his child that is "in the nature of support." As such, this debt is nondischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(5). BACKGROUND 2 Plaintiff Falk & Siemer, LLP ("Falk & Siemer") brought this action for declaratory judgment that its claim for attorney's fees against Maddigan was nondischargeable under 11 U.S.C. § 523(a)(5). 3 Maddigan and Lisa Grupposo, who were never married, are the parents of a child. At the end of their relationship, Maddigan and Grupposo both initiated proceedings in family court for custody of their daughter. Grupposo received custody, and Maddigan was granted liberal visitation rights. 4 Falk & Siemer represented Grupposo in the custody proceedings. At the end of the proceedings, Falk & Siemer moved for an award of legal fees from Maddigan. The family court directed Maddigan to pay Falk & Siemer $12,000 in fees plus interest from January 1, 2000. When payment was not made, the family court granted a money judgment to Falk & Siemer in this amount. 5 Maddigan subsequently filed a petition for bankruptcy relief under Chapter 7 of the Bankruptcy Code. Falk & Siemer thereafter commenced the instant action, seeking a determination that its claim for legal fees was nondischargeable under 11 U.S.C. § 523(a)(5).1 6 Section 523 defines a number of exceptions to the general grant of discharge provided by § 727. Among these exceptions, § 523(a)(5) provides that a discharge under § 727 does not discharge an individual debtor from: 7 [A]ny debt ... to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that ... such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. 8 11 U.S.C. § 523(a)(5). 9 The bankruptcy court identified the key issue as whether the award of legal fees was "in the nature of ... support" within the meaning of § 523(a)(5). In re Maddigan, 259 B.R. 810, 810 (Bankr.W.D.N.Y. 2001). Relying on "the well-established principle of bankruptcy law that dischargeability must be determined by the substance of the liability rather than its form," id. at 811 (quoting In re Spong, 661 F.2d 6, 9 (2d Cir.1981)) (internal quotation marks omitted), the bankruptcy court evaluated the substance of the liability imposed on Maddigan by the family court to determine whether the award of counsel fees in the custody proceeding was "truly in the nature of support." Id. After a review of the family court's custody decision and order awarding legal fees, the bankruptcy court held that Maddigan's obligation to Falk & Siemer was in the nature of support for Maddigan's child, and as such was nondischargeable under § 523(a)(5). Maddigan, 259 B.R. at 812. 10 Maddigan appealed this determination to the United States District Court for the Western District of New York (Arcara, J.), which affirmed "[s]ubstantially for the reasons set forth in the Bankruptcy Court's opinion." In re Maddigan, No. 01-CV-328A, slip op. at 2 (W.D.N.Y. Aug. 27, 2001). This appeal followed. DISCUSSION I. Standard of Review 11 Review of an order of a district court issued in its capacity as an appellate court is plenary. In re Manville Forest Prods. Corp., 896 F.2d 1384, 1388 (2d Cir. 1990). The factual determinations and legal conclusions of the bankruptcy court are thus to be reviewed independently by this Court. Id. The bankruptcy court's findings of fact are reviewed for clear error, and its conclusions of law are reviewed de novo. Id. 12 II. Whether Maddigan's Debt to Falk & Siemer is Nondischargeable in Bankruptcy 13 In order for the debt Maddigan owes Falk & Siemer to be nondischargeable under § 523(a)(5), three statutory requirements must be met. First, the debt must be "to a spouse, former spouse, or child of the debtor." 11 U.S.C. § 523(a)(5). Second, the debt must be "actually in the nature of" (as opposed to simply designated as) alimony, maintenance, or support. Id. § 523(a)(5)(B). Third, the debt must have been incurred "in connection with a separation agreement, divorce decree or other order of a court of record." Id. § 523(a)(5). We address each element in turn. 14 A. Maddigan's Debt to Falk & Siemer Is a Debt to Maddigan's Child 15 As Maddigan and Grupposo were never married, Maddigan's debt cannot be characterized as a debt to a spouse or former spouse. The question is whether Maddigan's obligation for the legal fees Grupposo incurred during the proceeding for custody of their child can be considered a debt to that child. 16 The fact that the debt is payable to a third party (here, Falk & Siemer) does not prevent classification of that debt as being owed to Maddigan's child. Our case law clearly establishes that debts in the nature of support need not be payable directly to one of the parties listed in § 523(a)(5) in order to be nondischargeable. See Spong, 661 F.2d at 10-11; In re Peters, 124 B.R. 433, 435 (Bankr.S.D.N.Y. 1991) (citing cases). 17 A separate question is whether Maddigan's obligation for legal fees incurred by the nonspouse mother of his child can be considered a debt to his child within the meaning of § 523(a)(5). We have previously held that the legal fees of an attorney appointed to represent the interests of a child in a custody proceeding can be considered a debt to the child. In re Peters, 964 F.2d 166, 167 (2d Cir.1992) (per curiam), aff'g 133 B.R. 291 (S.D.N.Y.1991). In Peters, we endorsed the reasoning of the district court below, which had explained that "[i]t is ... generally accepted that fees incurred on behalf of a child are nondischargeable because they are deemed to be support when those fees are inextricably intertwined with proceedings affecting the welfare of a child." Peters, 133 B.R. at 295; see also Spong, 661 F.2d at 9-10. Other circuits have concurred that the debt owed to an attorney appointed to represent a child in custody or support proceedings is properly considered a debt to that child within the meaning of § 523(a)(5). See, e.g., In re Miller, 55 F.3d 1487, 1490 (10th Cir.1995) (holding that debts for a guardian ad litem and a psychologist were nondischargeable under § 523(a)(5), because "the emphasis [is to be] placed on the determination of whether a debt is in the nature of support, rather than on the identity of the payee"); In re Dvorak, 986 F.2d 940, 941 (5th Cir.1993) (holding that legal fees for a child's guardian ad litem in a custody proceeding were "clearly for [the child]'s benefit and support," and as such were nondischargeable under § 523(a)(5)). 18 The facts of Peters are admittedly distinguishable from those of the instant case, in that here Maddigan's child was not appointed her own legal representative in the custody proceeding. However, it is a "well-established principle of bankruptcy law that dischargeability must be determined by the substance of the liability rather than its form." Spong, 661 F.2d at 9. Looking to the substance of Maddigan's liability, it is clear that the representation in which Grupposo's legal fees were incurred was, at least in part, for the benefit of Maddigan's child, even though the child was not appointed her own attorney. In reaching this conclusion, we do not suggest that a debt for legal services incurred by a nonspouse parent as part of custody proceedings is always for the benefit of a child within the meaning of § 523(a)(5). It is possible that legal fees in a custody proceeding may be incurred solely for the benefit of the interests of a parent. In this case, however, the custody proceeding was in substance concerned with the welfare of Maddigan's child, as is apparent from, inter alia, the family court's repeated reference to the child's welfare in making its custody determination. 19 This conclusion is supported by the legislative history of § 523(a)(5), which reflects a general concern that parents of children born out of wedlock not be able to evade child support obligations in bankruptcy. Section 523(a)(5) was amended in 1984 to change its application to debts arising "in connection with a separation agreement, divorce decree or other order of a court of record." 11 U.S.C. § 523(a)(5) (italics indicate the additional text). This clause was added to broaden the exception from discharge to include child support debts arising from non-marital relationships. See In re Furlong, 155 B.R. 517, 518 (Bankr.W.D.Mo.1993) (citing the legislative history of the 1984 and 1986 amendments to § 523(a)(5), and noting that § 523(a)(5) was amended "to plug the loophole that allowed fathers of children born out of wedlock to escape child support obligations in bankruptcy"); cf. In re Magee, 111 B.R. 359, 360 (M.D.Fla.1990) ("[B]y its enactment of [§ 523(a)(5)], Congress intended to protect the debts owed to, and for, all dependent children of the debtor.... Debts arising from the promise of a debtor to support his children may not be avoided merely because those debts are represented by a final judgment in favor of a non-spouse mother."). 20 We thus conclude that Maddigan's debt to Falk & Siemer is a debt to his child, and that the first element of the § 523(a)(5) exception to discharge is met. 21 B. Maddigan's Debt to Falk & Siemer Is "In the Nature of Support" for Maddigan's Child 22 The second requirement that must be met for a debt to be nondischargeable under § 523(a)(5) is that the debt must be "actually in the nature of ... support" for the child. We have held that the question whether a debt meets the statutory requirement for being in the nature of support is a factual determination of the bankruptcy court, and as such is subject to reversal only if clearly erroneous. See Forsdick v. Turgeon, 812 F.2d 801, 802 (2d Cir.1987) ("[Appellant] challenges the decision of the bankruptcy court that the [award] was `in the nature of alimony, maintenance or support'. We apply the `clearly erroneous' standard to review such a factual finding of the bankruptcy court."); see also In re Brody, 3 F.3d 35, 38 (2d Cir.1993). 23 1. The Bankruptcy Court's Determination Is Not Clearly Erroneous 24 The bankruptcy court below carefully analyzed the family court's decision in making its factual determination that the order of legal fees was in the nature of support. The bankruptcy court specifically noted that the family court "listed factors of support" — such as Grupposo's income, limited assets and resources, financial obligations, and inability to pay legal fees — in ordering Maddigan to pay Grupposo's fees. Maddigan, 259 B.R. at 812. The bankruptcy court concluded that the family court's "reliance on considerations of affordability for the child's primary care provider" supported a finding that "Maddigan's obligation to Falk & Siemer is in the nature of support for the debtor's child." Id. 25 Given the bankruptcy court's considered reading of the family court's decision and order, and on our own review of the family court's decision and order, it cannot be said that the bankruptcy court's determination was clearly erroneous. Maddigan argues that "[t]he Family Court decision never indicated that its award was in the nature of support." This argument is without merit. While the family court admittedly did not explicitly state that the award of attorney's fees in this case was in the nature of support, it would be unrealistic and unreasonable to expect the court to have framed its order of legal fees using the statutory terms of § 523(a)(5) — family court judges cannot reasonably be expected to anticipate future bankruptcy among the parties to a custody proceeding. 26 Nor is it significant that the family court proceeding was a custody proceeding instead of a support proceeding. See Peters, 133 B.R. at 295 ("Courts are in general agreement that obligations in the nature of alimony, maintenance and support may include the duty to pay attorneys' fees incurred by the former spouse in connection with a divorce proceeding, the obtaining and enforcement of alimony and/or support awards, or for custody disputes." (emphasis added)); see also In re Akamine, 217 B.R. 104, 108 (S.D.N.Y.1998) ("[T]he vast majority of courts have held that awards of fees inextricably intertwined with proceedings affecting the welfare of a child, such as custody or child support litigation, are deemed `support' within the meaning of § 523(a)(5)." (emphasis added)). 27 Policy considerations compel this conclusion as well. While family court judges previously heard both custody and child support matters in the same proceeding, this practice was changed by state statute in 1996. Hearing Examiners now hear and determine matters of child support, in proceedings separate from custody or other family court proceedings. See 22 N.Y.C.R.R. § 205.32; N.Y. McKinney's Family Court Act § 439(a). If the judgment of a family court could only be considered to be "in the nature of support" in cases in which the family court proceedings included an adjudication of child support matters, New York's administrative change toward the use of Hearing Examiners — which was apparently made for reasons of judicial economy — would have the effect of rendering most family court judgments dischargeable upon bankruptcy. This outcome would undermine the purpose of § 523(a)(5). 28 2. Congressional Intent Supports the Finding That Maddigan's Debt Is "In the Nature of Support" 29 The Bankruptcy Code reflects and balances a number of competing congressional goals. We have explained that the general purpose of bankruptcy law is "to provide the bankrupt with comprehensive, much needed relief from the burden of his indebtedness by releasing him from virtually all his debts." Forsdick, 812 F.2d at 802 (quoting In re Cross, 666 F.2d 873, 879 (5th Cir. Unit B 1982)) (internal quotation marks omitted). At the same time, however, the exceptions to discharge in the Bankruptcy Code prioritize considerations other than relief from indebtedness — § 523(a)(5), for example, reflects significant concern for the debtor's family obligations. See Forsdick, 812 F.2d at 802 ("By virtue of § 523(a)(5), [C]ongress has chosen between two competing interests — those of bankrupts and those of their former spouses and offspring — and it chose in favor of the latter."); see also In re Chang, 163 F.3d 1138, 1140 (9th Cir.1998) ("The § 523(a)(5) exception to discharge strikes a balance between competing policies. On the one hand, the goal of providing a `fresh start' to the bankrupt debtor requires that exceptions to discharge be confined to those plainly expressed. On the other hand, this court has recognized `an overriding public policy favoring the enforcement of familial obligations.'" (quoting Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir.1984)) (internal citation omitted)). 30 In order to promote the general goal of the Bankruptcy Code — that of providing bankrupt debtors a fresh start — the Supreme Court has cautioned that "exceptions to discharge `should be'" Kawaauhau v. Geiger, 523 U.S. 57, 62, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (quoting Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 59 L.Ed. 717 (1915)). Courts have held, however, that when due regard is given for the other policy priorities with which Congress was concerned in drafting the Bankruptcy Code, there is ample justification for construing certain statutory terms broadly, albeit within the confines of the narrow-construction rule. We have clearly stated that among the concepts to be given broad interpretation is the meaning of "in the nature of support." See Spong, 661 F.2d at 9; Peters, 133 B.R. at 295 ("The `nature of support' is a broadly construed term in bankruptcy law."); see also In re Kline, 65 F.3d 749, 750-51 (8th Cir.1995) (explaining that "[a]lthough statutory exceptions to discharge normally are subject to narrow construction, ... exceptions from discharge for spousal and child support deserve a more liberal construction" (internal citation omitted)). 31 The bankruptcy court's factual determination that Maddigan's obligation to Falk & Siemer is in the nature of support for Maddigan's child comports with the record in the family court below, the applicable case law, and congressional intent. We thus find no error in this determination. 32 C. Maddigan's Debt to Falk & Siemer Was Incurred "In Connection With" an Order of a Court of Record 33 The third and final requirement of § 523(a)(5) is that the debt be "in connection with a separation agreement, divorce decree or other order of a court of record." 11 U.S.C. § 523(a)(5). The judgment for legal fees in the family court's determination of custody is a debt "in connection with" an order of a court of record. See Peters, 124 B.R. at 435, 436; cf. Akamine, 217 B.R. at 109-10 (holding that a debt is not "in connection with" a court's order when that order only acknowledges a burden the debtor had already incurred). This element of the statutory provision is clearly met. CONCLUSION 34 For the foregoing reasons, we affirm the district court's judgment that Maddigan's obligation for legal fees imposed by the family court during the proceeding for custody of Maddigan's daughter was nondischargeable in bankruptcy pursuant to § 523(a)(5). Notes: 1 Falk & Siemer also sought a denial of discharge pursuant to 11 U.S.C. § 727(a)(3), on the ground that Maddigan had engaged in fraud, intentional misstatements, or other misconduct. In a separate order, the bankruptcy court dismissed the cause of action for denial of discharge under § 727(a)(3). The parties agree that the only issue on appeal is the question of dischargeability pursuant to § 523(a)(5)	{ "pile_set_name": "FreeLaw" }
662 F.Supp.2d 427 (2009) OLYMPUS MANAGED HEALTH CARE, INC. and Olympus Healthcare Solutions, Inc., Plaintiffs, v. AMERICAN HOUSECALL PHYSICIANS, INC., and Jonathan McGuire, Defendants. American Housecall Physicians, Inc., f/k/a Inroommd, Inc., Third-Party Plaintiff, and Counterclaimant v. Ronald A. Davis and Steven W. Jacobson, Third-Party Defendants. Case No. 3:08cv532-RJC-DSC. United States District Court, W.D. North Carolina, Charlotte Division. September 30, 2009. 430 Irving M. Brenner, H. Landis Wade, Jr., McGuirewoods LLP, Charlotte, NC, for Plaintiffs. Fred Bruton Monroe, John Robert Buric, James, McElroy & Diehl, Charlotte, NC, for Defendants/Third-Party Plaintiff, and Counterclaimant. Matthew Roger Williams, Pepper Hamilton, Arthur Christopher Young, Philadelphia, PA, John T. Jeffries, McAngus, Goudelock & Courie, P.L.L.C., Charlotte, NC, for Third-Party Defendants. ORDER ROBERT J. CONRAD, JR., Chief Judge. THIS MATTER is before the Court on Third-Party Defendants' Motion to Dismiss (Doc. No. 22), Third-Party Defendants' Memorandum in Support of Motion to Dismiss (Doc. No. 23), and Third-Party Plaintiff's Memorandum in Opposition to Third-Party Defendants' Motion to Dismiss (Doc. No. 31). The Magistrate Judge entered a Memorandum and Recommendation ("M & R") (Doc. No. 36), recommending that the Third-Party Defendants' Motion to Dismiss be granted in part, that is, granted as to Count II against Third-Party Defendant Steven W. Jacobson and denied in all other respects. Third-Party Defendants filed an objection to the M & R (Doc. No. 37), and Third-Party Plaintiff filed a Response (Doc. No. 38). The issue of whether the Magistrate Judge properly ruled that the Third-Party Defendant's Motion to Dismiss should be denied as to Count IX is now before this Court. For the reasons that follow, this Court affirms the Magistrate Judge's M & R. I. BACKGROUND Third-Party Plaintiff American Housecall Physicians, Inc. ("AHP") asserts multiple claims, including state law civil conspiracy, against Third-Party Defendants Ronald A. Davis and Steven W. Jacobson. The parties made no specific objections to the findings of fact contained in the Magistrate Judge's M & R. After a careful review of the record in this case, the Court adopts the factual findings made by the Magistrate Judge on pages two through five of the M & R filed on April 14, 2009, for purposes of this Order. II. STANDARD OF REVIEW The Federal Magistrate Act provides that "a district court shall make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983); Keeler v. Pea, 782 F.Supp. 42, 43 (D.S.C.1992). De novo review is not required by the statute 431 when an objecting party makes only general or conclusory objections that do not direct the court to the specific error in the magistrate judge's recommendations. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Further, the statute does not on its face require any review at all of issues that are not the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Camby, 718 F.2d at 200. Nonetheless, a district judge is responsible for the final determination and outcome of the case, and accordingly the Court has conducted a careful review of the Magistrate Judge's M & R. In its review of a Rule 12(b)(6) motion, "the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). The plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563, 127 S.Ct. 1955. A complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains "enough facts to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1960, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. III. DISCUSSION Davis and Jacobson object to the Magistrate Judge's finding that AHP properly set forth a claim for civil conspiracy. The Magistrate Judge recommended that an exception to the intra-corporate conspiracy doctrine[1] applied to the facts of this case. Davis and Jacobson argue that this exception, involving a defendant's "independent personal stake" in a conspiracy, does not apply because (1) AHP's counterclaims do not state that Davis and Jacobson had an independent personal stake in the alleged conspiracy, (2) the alleged independent personal stake is not "independent" from Davis and Jacobson's relationship to Olympus, the corporation with which AHP alleges they conspired, and (3) AHP's allegations regarding Davis's and Jacobson's independent personal stakes are inconsistent with the terms of AHP's counterclaims. A. Whether AHP's Counterclaims State an Independent Personal Stake Davis and Jacobson argue that AHP has not alleged in its counterclaims that Davis and Jacobson had an independent personal stake in achieving Olympus's purported illegal objective. They point to the fact that in the section of the Third-Party Complaint alleging civil conspiracy, AHP does not explicitly mention that Davis or Jacobson had an independent personal stake, while it does mention that Olympus would accrue the benefit. "[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. 432 Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007); see also Fed.R.Civ.P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."). The Court notes that AHP's civil conspiracy claim incorporates by reference all earlier allegations in the pleading. Included among these earlier allegations is the allegation that Jacobson "breached his fiduciary duties, and other duties, to AHP by, among other things . . . usurping business opportunities of AHP for the benefit of himself and Olympus." (Doc. No. 5-1 at ¶ 71). Thus AHP does explicitly contemplate on the face of its pleading that at least Jacobson stood to derive personal gain. Further, AHP argues that the exhibits to the counterclaim provide the supplemental facts to complete the picture of the Third-Party Defendants' alleged civil conspiracy. AHP attached to its pleading the Letter of Intent outlining the deal between Olympus and AHP. (Doc. No. 5-4 at 24, Exhibit H). This document is a part of the pleading for all purposes. See Fed. R.Civ.P. 10(c). From this document and the allegations in the pleadings as a whole, it is certainly plausible that Davis and Jacobson stood to gain separately and independently when they allegedly backed out of the merger and retained a larger ownership interest in Olympus. AHP has provided the factual content that allows the court to draw this reasonable inference. See Iqbal, 129 S.Ct. at 1949 ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."). B. Whether the Alleged Stake is "Independent" from the Relationship with Olympus Davis and Jacobson argue that AHP has not alleged the benefits of the purported conspiracy are independent to Davis and Jacobson. AHP counters that by refusing to go forward with the merger, Davis and Jacobson gained a benefit that Olympus did not, namely an avoidance of the diminution of their shareholder interests in Olympus. The intra-corporate conspiracy doctrine can be traced back to Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911 (5th Cir.1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953), an anti-trust action based on an alleged conspiracy between a corporation and its officers, employees and agents. The Fifth Circuit held: It is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation. Id. at 914. The Fourth Circuit first recognized this doctrine in the field of anti-trust in Greenville Publ'g Co. v. Daily Reflector, Inc., 496 F.2d 391, 399 (4th Cir.1974), but noted "an exception may be justified when the officer has an independent personal stake in achieving the corporation's illegal objective." Id. "In recent years, this `personal stake exception' has been limited, such that it applies only where a co-conspirator possesses a personal stake independent of his relationship to the corporation." ePlus Technology, Inc. v. Aboud, 313 F.3d 166, 179 (4th Cir.2002). However, where an individual defendant has a large degree of control over the corporate principal's decisionmaking process, the exception is more likely to apply than where an agent has little control over the principal. Compare Greenville, 496 F.2d at 399-400 (holding exception applied where individual 433 was defendant company's president, director, and shareholder); with Oksanen v. Page Memorial Hosp., 945 F.2d 696, 705-06 (4th Cir.1991) (noting the exception did not apply where the agents lacked decisionmaking authority within the entity). Davis and Jacobson argue that the Magistrate Judge erred by applying the exception based on their financial interest in Olympus. However, this argument mischaracterizes the personal interest that Davis and Jacobson had in not allowing their personal holdings in Olympus to be diluted. Where a corporate officer's gain is reliant upon the gain of the corporation, then the officers have no independent personal stake. See, e.g., Godfredson v. JBC Legal Group, P.C., 387 F.Supp.2d 543, 550 (E.D.N.C.2005) (holding no independent personal stake where allegations focused on the potential revenues that a firm's sole shareholder would receive from the firm). Here, however, Davis's and Jacobson's degree of interest in Olympus as its sole shareholders is distinct from any gain that Olympus may have received from failing to complete the merger. See Akande v. Transamerica Airlines, Inc., No. Civ.A. 1039-N, 2006 WL 587846, at 6 (Del.Ch. Feb. 28, 2006) (noting that intra-corporate conspiracy doctrine is inapplicable "when the officer or agent of the corporation steps out of her corporate role and acts pursuant to personal motives"). Had the merger gone through, Davis's and Jacobson's share would have been significantly diluted. On the other hand, Olympus as an entity would not have gained or lost from an increase or decrease in shareholders. Thus failing to complete the merger allowed Davis and Jacobson, Olympus's sole decisionmakers, an independent gain that Olympus did not receive: avoidance of a decrease in their piece of the ownership pie. Therefore, the Court holds that Davis and Jacobson each had an independent personal stake in failing to complete the merger that is distinct from any gain that Olympus might have realized, and the independent personal stake exception applies to the civil conspiracy claim. C. Whether AHP's Allegations are Precluded by Inconsistencies in Its Pleading Davis and Jacobson argue that finding an independent personal stake is inconsistent with AHP's counterclaims, since AHP alleges that (1) Davis and Jacobson never intended to complete the merger, and (2) the purpose of the conspiracy was to raid AHP's assets rather than effect a merger. This argument falls short of the mark. AHP need not set forth claims that are consistent with one another. Rather, it "may state as many separate claims or defenses as it has, regardless of consistency." Fed R. Civ. P. 8(d)(3). AHP's civil conspiracy counterclaim is not precluded by the alleged inconsistencies in its other counterclaims. D. Recommendations without objections Third-Party Defendants only objected to the Magistrate Judge's Recommendation as to Count IX, the civil conspiracy counterclaim. As to all other issues raised in Third-Party Defendants' Motion to Dismiss, this Court reviewed the M & R for clear error and adopts the Magistrate Judge's Recommendations regarding these claims. IV. CONCLUSION IT IS, THEREFORE, ORDERED that Third-Party Defendants' Motion to Dismiss (Doc. No. 22) is GRANTED IN PART and DENIED IN PART, that is: 434 1. GRANTED as to Count II against Third-Party Defendant Steven W. Jacobson, 2. DENIED as to Count IX, and 3. DENIED as to all other counts and arguments raised. MEMORANDUM AND RECOMMENDATION DAVID S. CAYER, United States Magistrate Judge. THIS MATTER is before the Court on the Third-Party Defendants' "Motion to Dismiss . . ." (document # 22) and "Memorandum of Law in Support . . ." (document # 23), both filed January 20, 2009; and the Third-Party Plaintiffs "Brief in Opposition. . ." (document # 31) filed February 11, 2009. On February 23, 2009, the Third-Party Defendants filed their "Reply . . ." (document # 33). On March 2, 2009, the Third-Party Plaintiff filed its "Surreply . . ." (document # 35). This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), and this Motion is now ripe for the Court's consideration. Having fully considered the arguments, the record, and the applicable authority, the undersigned will respectfully recommend that the Third Party Defendant's Motion to Dismiss be granted in part and denied in part, as discussed below. I. PROCEDURAL AND FACTUAL BACKGROUND This is a counterclaim action alleging breach of fiduciary duty, breach of contract, tortious interference with contract, violation of the North Carolina Trade Secrets Protection Act, commission of unfair and deceptive trade practices, fraud, civil conspiracy, unjust enrichment, false designation of origin, quiet title to copyright and improper use of trademark. Taking the facts as alleged in the Verified Counterclaim as true, this action stems in part from the Third-Party Defendants' alleged intentional misrepresentation to the Third-Party Plaintiff that their two companies would merge in order to unlawfully gain access to Third-Party Plaintiffs confidential information, trademarks and employees in order to set up a competing business. Third-Party Plaintiff, American Housecall Physicians, Inc. ("AHP"), is a corporation organized under the laws of the State of Nevada with its principal place of business in Charlotte, Mecklenburg County, North Carolina. AHP is in the business of providing in-room and in-home medical services through doctor networks across the United States. Olympus Managed Health Care, Inc. ("OMHC") is a corporation organized under the laws of the State of Delaware, with its principal place of business in Miami, Dade County, Florida. Olympus Healthcare Solutions, Inc. ("OHCS"), the parent company of OMHC, is a corporation organized under the laws of the State of Delaware, with its principal place of business in Miami, Dade County, Florida. OMHC and OHCS (collectively "Olympus") are in the business of providing third party administrator services for insurance companies located outside of the United States related to the management of their insureds' medical claims for medical treatment in the United States. Third-Party Defendant, Ronald A. Davis, the Chief Financial Officer of OMHC and OHCS, is a resident of the State of Florida. Third-Party Defendant, Steven W. Jacobson, the President and Chief Executive Officer of OMHC and OHCS, is a resident of the State of Florida. Davis and Jacobson are the sole shareholders of OMHC and OHCS and are the only members 435 on the Board of Directors of OMHC and OHCS. On January 1, 2006, Olympus and AHP entered into a Memorandum of Understanding concerning discussions that Olympus and AHP had about the companies working together and entering into a business relationship to combine the companies' resources. On March 15, 2006, Olympus and AHP entered into a written Distribution Agreement whereby AHP agreed to allow Olympus to act as an exclusive distributor for its housecall physician network program to foreign insurance companies. After entering into the Distribution Agreement, Jacobson was elected to the Board of Directors of AHP on January 26, 2007. In April 2007, Olympus and AHP began to consider a merger of the two companies. AHP asserts that numerous meetings and communications took place in Charlotte, North Carolina regarding the merger. On August 31, 2007, the companies executed a letter of intent (the "LOI") to pursue a merger of the two companies. Following the execution of the LOI, Olympus and AHP entered into a Services Agreement on September 10, 2007 that divided the responsibilities of the companies and formulated how they would operate in contemplation of the completion of the merger. The parties negotiated and executed a merger agreement (the "Merger Agreement") that provided for a swap of stock between AHP and OMHC. The Merger Agreement was executed by all of the parties and was to held in escrow by Olympus's attorneys until the closing date, which was set for September 30, 2008. AHP asserts that it allowed Olympus complete access to its customer base, contacts, marketing materials and other proprietary and confidential information in anticipation of the pending merger. Additionally, AHP asserts that Davis and Jacobson represented to AHP that the merger would be completed and that all of the business relationships developed by AHP would remain protected. Ultimately, the merger was not completed. AHP asserts that Olympus had warranted that there was no claim asserted by a third party that would interfere with the merger. However, on the day before closing, AHP asserts that Jacobson told AHP that because there was a pending claim against Olympus which involved Olympus' shares of stock, Olympus could not convey its stock as part of the merger and would not be able to close on the day contemplated in the Merger Agreement. Over the next few weeks, Olympus and AHP tried to find a way to complete the merger. AHP asserts that Olympus attempted to renegotiate the deal, offering to purchase AHP's assets at less than half of the value agreed to as part of the Merger Agreement. AHP also asserts that as part of the renegotiated deal, Olympus offered to convey the very stock it said it could not convey on closing day. On October 28, 2008, Olympus informed AHP that it was terminating the LOI. That same day, Jacobson resigned from AHP's Board of Directors. AHP asserts that Olympus, Davis and Jacobson never intended to complete the merger and in essence gained access to AHP's confidential information, trademarks and employees in order to set up a competitive business while intentionally misrepresenting their intentions to merge the two companies. As noted above, the Third-Party Defendant's Motion has been fully briefed and is, therefore, ripe for determination. II. DISCUSSION A. MOTION TO DISMISS THIRD PARTY DEFENDANT DAVIS FOR LACK OF PERSONAL JURISDICTION Third-Party Defendant, Ronald A. Davis, contends that his one meeting with 436 AHP in Charlotte, North Carolina is insufficient to establish "minimum contacts" under the standards of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and its progeny and therefore, the Court does not have personal jurisdiction over him for the claims brought against him by AHP. In evaluating a motion to dismiss for lack of personal jurisdiction, all factual disputes must be resolved in favor of the nonmoving party, who need make only a prima facie showing that exercise of personal jurisdiction is proper. See Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989); Vishay Intertechnology, Inc. v. Delta International Corp., 696 F.2d 1062, 1064 (4th Cir. 1982); and General Latex and Chemical Corp. v. Phoenix Medical Technology, Inc., 765 F.Supp. 1246, 1248 (W.D.N.C. 1991). Analysis of personal jurisdiction has traditionally involved two determinations: "whether the [particular state's] long-arm statute authorizes the exercise of jurisdiction in the circumstances presented and. . . whether the exercise of jurisdiction comports with Fourteenth Amendment due process standards." Ellicott Mach. Corp. v. John Holland Party Ltd., 995 F.2d 474, 477 (4th Cir.1993). However, because "the North Carolina long-arm statute [N.C. Gen.Stat. § 1-75.4] has been interpreted as the legislature's attempt to allow the exercise of personal jurisdiction in all cases where such jurisdiction does not contravene due process, [the] normal two-step inquiry merges into one." Id., citing Dillon v. Numismatic Funding Corp., 291 N.C. 674, 676, 231 S.E.2d 629, 630 (1977). The exercise of personal jurisdiction comports with due process when the defendant purposefully established "minimum contacts" in the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Ellicott Mach., 995 F.2d at 477. In addition, the court's exercise of personal jurisdiction must comport with traditional notions of "fair play and substantial justice." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (personal jurisdiction exists where defendant introduces product into stream of commerce with expectation that citizens in forum state will use the product). Later cases have emphasized that the minimum contacts must be "purposeful." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). This "purposeful" requirement rests on the basic premise that traditional notions of fair play and substantial justice are offended by requiring a nonresident to defend himself in a forum state when the non-resident never purposefully availed himself of the privilege of conducting activities within the forum state, thus never invoking the benefits and protections of its laws. See Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Moreover, "this purposeful requirement helps ensure that non-residents have fair warning that a particular activity may subject them to litigation within the forum." Plant Genetic Systems, N.V. v. Ciba Seeds, 933 F.Supp. 519, 523 (M.D.N.C.1996), citing Burger King, 471 U.S. at 472, 105 S.Ct. 2174; and World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559. A court's exercise of personal jurisdiction may be specific or general. General personal jurisdiction exists, even when an action does not arise out of the nonresident defendant's contact with the forum state, if the non-resident defendant has had continuous and systematic contact with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 437 408, 414-15, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Specific jurisdiction involves the exercise of personal jurisdiction over a defendant in an action arising out of the defendant's contacts with the forum state. See Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868; Vishay Intertech., Inc. v. Delta Int'l Corp., 696 F.2d 1062, 1068 (4th Cir.1982) (sufficient minimum contacts found under North Carolina long-arm statute when defendant wrote three letters and initiated five telephone calls to the plaintiff in North Carolina). Applying the above principles to the subject motion, Third-Party Defendant Davis has had sufficient "minimum contacts" with North Carolina to satisfy due process requirements for the exercise of personal jurisdiction. Even though the parties have agreed that Davis has not "had continuous and systematic contact" with North Carolina, Helicopteros, 466 U.S. at 414-15, 104 S.Ct. 1868, such as would justify personal jurisdiction generally, the events which give rise to the Third-Party Plaintiffs claims do support personal jurisdiction in this specific instance. Id. Indeed, taking AHP President Andrew S. Jacobson's affidavit as true, as we must at this early point in the proceedings, Davis specifically directed his contact concerning the merger to Jacobson and other Board Members of AHP in Charlotte, North Carolina. These contacts included two visits to Charlotte concerning the proposed merger, several telephone communications initiated by Davis to Jacobson in North Carolina, and multiple e-mails that Davis sent to Jacobson concerning the merger that were directed to Jacobson's office in Charlotte, North Carolina. In short, where the Defendant "purposefully directed" his activity at a resident of North Carolina, and this litigation results from alleged injuries to that resident that "arise out of or relate to" those activities, Burger King Corp., 471 U.S. at 472, 105 S.Ct. 2174, the exercise of personal jurisdiction comports with traditional notions of "fair play and substantial justice." World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. 559. Accordingly, the undersigned will respectively recommend that the Third-Party Defendant's Motion to Dismiss for Lack of Personal Jurisdiction be denied. B. MOTION TO DISMISS COUNT II, BREACH OF CONTRACT ALLEGATIONS AGAINST THIRD-PARTY DEFENDANT, STEVEN W. JACOBSON AHP concedes that it did not intend to assert a claim for breach of contract against Steven W. Jacobson. Therefore, to the extent that AHP's Verified Counterclaim contains a claim for breach of contract, the undersigned respectfully recommends that it be dismissed and the Third-Party Defendants' Motion to Dismiss Count II against Jacobson must be granted. C. MOTION TO DISMISS COUNT VII, FRAUD ALLEGATIONS AGAINST THIRD-PARTY DEFENDANTS STEVEN W. JACOBSON AND RONALD A. DAVIS, COUNT VIII, CONSTRUCTIVE FRAUD ALLEGATIONS AGAINST JACOBSON, AND COUNT IX, CIVIL CONSPIRACY ALLEGATIONS AGAINST JCOBSON AND DAVIS 1. Standard of Review "A motion to dismiss under [Fed. R.Civ.P. 12(b)(6) ] tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir.), cert. 438 denied, 510 U.S. 828, 114 S.Ct. 93, 126 L.Ed.2d 60 (1993), citing 5B C. Wright & A. Miller, Fed. Practice and Procedure § 1356 (1990). As a general rule, a plaintiffs complaint need only provide a short statement in plain English of the legal claim showing that the pleader is entitled to relief that is also sufficient to provide the defendant with "fair notice" of the claim and its basis. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted); Fed. R.Civ.P. 8(a)(2). In order to survive a motion to dismiss, however, the pleader must show through his allegations that it is plausible, rather than merely speculative, that he is entitled to relief. Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955. A complaint must do more than merely "avoid foreclosing possible bases for relief; it must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level." Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir.2008) (internal quotation marks omitted). In considering a Rule 12(b)(6) motion, the complaint must be construed in the light most favorable to the nonmoving party, assuming factual allegations to be true. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993); Martin Marietta v. Int'l Tel. Satellite, 991 F.2d 94, 97 (4th Cir.1992); and Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir.1989). 2. Fraud (Count VII) The Third-Party Defendants argue that the fraud claim must be dismissed because the claim is based on promissory misrepresentations and a defendant cannot be liable in tort for the failure to perform a future promise. The essential elements of fraud are "(1) False representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party." Rowan County Bd. of Educ. v. U.S. Gypsum Co., 332 N.C. 1, 17, 418 S.E.2d 648, 658 (1992) (quoting Terry v. Terry, 302 N.C. 77, 83, 273 S.E.2d 674, 677 (1981)). "As a general rule a mere promissory representation will not be sufficient to support an action for fraud. A promissory misrepresentation may constitute actionable fraud when it is made with intent to deceive the promisee, and the promisor, at the time of making it, has no intent to comply." Leftwich v. Gaines, 134 N.C.App. 502, 508, 521 S.E.2d 717, 723 (1999) (citing Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 255, 266 S.E.2d 610, 616 (1980)). "A statement purporting to be an opinion may be the basis for fraud if, at the time it is made, the maker of the statement holds an opinion contrary to the opinion he or she expresses, and the maker also intends to deceive the listener." Leftwich, 134 N.C.App. at 508-509, 521 S.E.2d at 723. "This rule recognizes the state of any person's mind at a given moment is as much a fact as the existence of any other thing." Id. (citations omitted). "The fraudulent nature of such statements may be proved by circumstantial evidence." Id. Viewed in the light most favorable to the Third-Party Plaintiff, AHP alleges that Davis and Jacobson each made multiple representations about the fact that the merger would be consummated. Additionally, AHP alleges that neither Davis nor Jacobson ever intended to complete the merger and instead made their statements regarding the completion of the merger in 439 order to induce AHP to disclose confidential and proprietary business information, its goodwill, its network, employees and contractors in order to organize a competing business of their own. AHP alleges that the best evidence of Davis' and Jacobson's intent is the fact that they did not return to their core business after the merger failed and instead opened a competing concierge health care program using all the information they had obtained from AHP. Based on these allegations, rather than dismissal at this early stage of the proceeding, the undersigned will respectfully recommend that the Third-Party Plaintiff be allowed to conduct discovery on this point and that the Third-Party Defendants' Motion to Dismiss Count VII be denied. And, of course, as in regard to all claims, the Third-Party Defendants will be entitled to renew their factual and legal arguments after the conclusion of discovery in a timely filed motion for summary judgment. 3. Constructive Fraud (Count VIII) As with the Third-Party Defendants fraud claim discussed above, Third-Party Defendant Steven W. Jacobson contends that the constructive fraud claim against him should be dismissed because it is based on promissory misrepresentation and a defendant cannot be liable in tort for the failure to perform a future promise. To assert a claim of constructive fraud, plaintiff must allege: (1) a relationship of trust and confidence, (2) that the defendant took advantage of that position of trust in order to benefit himself, and (3) that plaintiff was, as a result, injured. Intent to deceive is not an element of constructive fraud. The primary difference between pleading a claim for constructive fraud and one for breach of fiduciary duty is the constructive fraud requirement that the defendant benefit himself. Clay v. Monroe, 189 N.C.App. 482, 658 S.E.2d 532, 536 (2008) (quoting White v. Consolidated Planning, Inc., 166 N.C.App. 283, 294, 603 S.E.2d 147, 156 (2004)). The very nature of constructive fraud defies specific and concise allegations and the particularity requirement may be met by alleging facts and circumstances (1) which created the relation of trust and confidence, and (2) [which] led up to and surrounded the consummation of the transaction in which [the] defendant is alleged to have taken advantage of his position of trust to the hurt of [the] plaintiff. Terry v. Terry, 302 N.C. 77, 85, 273 S.E.2d 674, 679 (1981). Third-Party Plaintiff AHP asserts that the constructive fraud claim is based not only on the failed merger, but also on Jacobson's breach of fiduciary duties while a director of AHP. AHP alleges that as a director of AHP, Jacobson breached his fiduciary duties in numerous ways including obtaining confidential information, usurping business opportunities of AHP for the benefit of himself and Olympus, and allowing third parties to eavesdrop through electronic means on AHP Board of Directors' meetings. As stated above, and based on the fact that a claim of constructive fraud "defies specific and concise allegations," the undersigned will respectfully recommend that the Third-Party Plaintiff be allowed to conduct discovery on this point and that the Third-Party Defendants' Motion to Dismiss Count VIII be denied. And, of course, as in regard to all claims, the Third-Party Defendants will be entitled to renew their factual and legal arguments after the conclusion of discovery in a timely filed motion for summary judgment. 440 4. Civil Conspiracy (Counts IX) The Third-Party Defendants argue that the civil conspiracy claim must be dismissed because of the intracorporate conspiracy doctrine, which the Fourth Circuit has explained as follows: It is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation. Buschi v. Kirven, 775 F.2d 1240, 1251 (4th Cir.1985) (citations omitted). Third-Party Defendants, Davis and Jacobson, argue that as officers of Olympus, they cannot be found to have conspired with one another. However, "an exception may be justified when the officer has an independent personal stake in achieving the corporation's illegal objective." Id. at 1252. AHP contends that the LOI outlines the merger and details how Davis and Jacobson, the two shareholders of Olympus, would have had to share the benefits from the merger with the shareholders of AHP. "The current shareholders of OHCS (Steve Jacobson and Ronald A. Davis) will individually own and control sixty percent (60%) of the shares and AHP shareholders will own and control forty percent (40%) of the shares." Verified Counterclaim, Exhibit H. The merger would have diluted Davis' and Jacobson's shareholder interest in Olympus and consequently, they personally benefitted by freezing out AHP shareholders at the last minute and reducing the number of potential shareholders in the surviving company. Based on these allegations, the Third-Party Defendants' actions fall within the exception to the Intracorporate Immunity Doctrine and accordingly, the undersigned will respectfully recommend that the Third-Party Defendants' Motion to Dismiss Count IX be denied. III. RECOMMENDATION FOR THE FOREGOING REASONS, the undersigned respectfully recommends that the Third-Party Defendants' "Motion to Dismiss ..." (document # 22) be GRANTED IN PART and DENIED IN PART, that is, GRANTED as to Count II against Third-Party Defendant, Steven W. Jacobson; and DENIED in all other respects. IV. NOTICE OF APPEAL RIGHTS The parties are hereby advised that, pursuant to 28 U.S.C. § 636(b)(1)(C), written objections to the proposed findings of fact and conclusions of law and the recommendation contained in this Memorandum must be filed within ten (10) days after service of same. Page v. Lee, 337 F.3d 411, 416 n. 3 (4th Cir.2003); Snyder v. Ridenour, 889 F.2d 1363, 1365 (4th Cir. 1989); United States v. Rice, 741 F.Supp. 101, 102 (W.D.N.C.1990). Failure to file objections to this Memorandum with the District Court constitutes a waiver of the right to de novo review by the District Court. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir.2005); Wells v. Shriners Hosp., 109 F.3d 198, 201 (4th Cir.1997); Snyder, 889 F.2d at 1365. Moreover, failure to file timely objections will also preclude the parties from raising such objections on appeal. Diamond, 416 F.3d at 316; Wells, 109 F.3d at 201; Page, 337 F.3d at 416 n. 3; Thomas v. Arn, 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir.1985); United States v. Schronce, 727 F.2d 91 (4th Cir.1984). The Clerk is directed to send copies of this Memorandum and Recommendation and Order to counsel for the parties; and to the Honorable Robert J. Conrad, Jr. *441 SO RECOMMENDED AND ODERED. NOTES [1] This doctrine is also often referred to as the "intra-corporate immunity doctrine."	{ "pile_set_name": "FreeLaw" }
940 F.2d 1530 Kopjav.People of Rockwall County* NO. 91-1071 United States Court of Appeals,Fifth Circuit. JUL 31, 1991 1 Appeal From: N.D.Tex. 2 AFFIRMED IN PART. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
780 F.Supp.2d 409 (2011) Donald C. WEBB, Plaintiff, v. K.R. DRENTH TRUCKING, INC., Defendant. No. 3:09cv462. United States District Court, W.D. North Carolina, Charlotte Division. January 25, 2011. 410 Kirk J. Angel, The Angel Law Firm, PLLC, Harrisburg, NC, for Plaintiff. Joseph Smith Murray, IV, Hedrick, Eatman, Gardner & Kincheloe, Charlotte, NC, James Lanting, Lanting Paarlberg & Associates, Ltd., Schererville, IN, for Defendant. ORDER ROBERT J. CONRAD, JR., Chief Judge. THIS MATTER comes before the Court on the Defendant's Motion for Summary Judgment (Doc. No. 8) and the related briefs and filings. For the reasons set forth 411 below, the Court will DENY the Defendant's motion. I. BACKGROUND Donald Webb's tractor trailer overturned on a clover-leaf interstate exit ramp near Columbia, South Carolina. The accident caused him injuries. His employer, K.R. Drenth Trucking, Inc. ("KRD"), discharged him just six days later, explaining that he had caused a preventable accident by driving too fast on the ramp. Webb contends the real reason KRD terminated him was because he was injured and would require workers' compensation benefits. The accident occurred in the early afternoon of October 31, 2008. Little information is available regarding the events leading up to the accident. Webb reports he was traveling between 20 and 25 miles per hour on the exit ramp, where the posted speed limit was 30 miles per hour. He claims that while driving around the ramp's curve, a tire on the Defendant's truck burst, causing the load he was carrying to shift and the truck to overturn. A KRD mechanic explained that the tire's tread was completely peeled off rather than blown out at the side wall. The GPS indicates Webb was traveling 36 miles per hour only seconds before the GPS device malfunctioned. KRD asserts that the GPS malfunction was caused by the accident. After the accident, an officer arrived at the scene and assessed the situation; he did not issue Webb a speeding ticket or citation. Tom Boettler, general manager of KRD's North Carolina facility, arrived at the scene while Webb was still there. He was joined by Joe Goodman, a KRD maintenance manager and mechanic. Boettler and Goodman observed the overturned truck. Goodman reported to Boettler his opinion that the truck overturned because Webb had driven too fast on the exit ramp, causing the truck's load to shift, which in turn caused the truck's tire to blow and the truck to overturn. But Tony Dykstra, KRD's safety manager, has explained by affidavit that trucks carrying loads of garbage such as the one Webb was driving are not susceptible to shifting that would cause a rollover accident. Multiple drivers had reported to KRD that the company's GPS systems had been malfunctioning. Other than Webb, at least three other drivers had reported to Boettler or Dykstra that the GPS devices in their trucks had malfunctioned. There is no evidence that KRD followed up on these reports. See (Doc. Nos. 13-1, 13-2, 13-4: Affidavits of Fuller, Ryan, and Afranie). Further, these same three drivers report that while driving for KRD, they experienced frequent tire blowouts, one driver reporting an average of one blowout every week. Two drivers reported that the frequency of their tire blowouts was much higher at KRD than at other trucking companies for which they had worked. (Doc. Nos. 13-1, 13-4: Affidavits of Fuller and Afranie). Webb refused medical treatment at the scene of the accident, but pain in his back and hips caused him to visit the emergency room the next day, on November 1, 2008. He informed Boettler that he had sought medical treatment in connection with the accident, and Boettler suggested on November 4, 2008, that Webb should visit KRD's physician. On November 5, 2008, Webb returned to work on light duty after visiting the physician. The next day, on November 6, Boettler informed Webb that he was being terminated for causing a preventable accident. KRD informed Webb that its GPS indicated he had been traveling 36 miles per hour when the accident occurred. Webb had attended a KRD training on July 29, 2008, covering the topic of rollovers. Part of the training 412 included instruction that when entering a ramp or curve, it is a "good idea to ... reduce speed at least 5-10 MPH under the posted speed." (Doc. No. 9-2 at 5). The posted speed was 30 mph where the accident occurred. The copy of the KRD Employee Disciplinary Report provided to Webb, which documents his termination, states that the GPS reports indicate Webb was driving 35 miles per hour when the accident occurred. This number was later altered on the report, and KRD's version has a "6" written over the "5" so that it reads "36" miles per hour, to accurately reflect the GPS report. On or about July 2009, Boettler received a phone call from Glaze Independent Trucking, Inc. requesting a reference for Webb. In response to the request, Boettler stated that Webb had been terminated for causing a preventable accident. Webb hired Allison & Taylor, Inc.("A & T"), a reference checking agency, to contact KRD and obtain a reference for Webb. On February 24, 2009, an agent of A & T contacted KRD and spoke with Boettler. In response to the agent's question regarding the reason for Webb's termination, Boettler responded, "He was let go. He was going too fast and flipped [the truck] over." (Doc. No. 9-10 at 3). II. LEGAL STANDARD Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant has the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal citations omitted). Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Id. at 322 n. 3, 106 S.Ct. 2548. The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings to defeat a motion for summary judgment. Id. at 324, 106 S.Ct. 2548. The nonmoving party must present sufficient evidence from which "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir.1995). When ruling on a summary judgment motion, a court must view the evidence and any inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. "`Where the Record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Ricci v. DeStefano, 557 U.S. ___, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). III. DISCUSSION Webb, in responding to KRD's motion for summary judgment, has requested voluntary dismissal of his third claim for relief (negligent infliction of emotional distress) and his fifth claim for relief (REDA retaliation). These two claims will be dismissed, and the Court does not discuss them further. The remaining claims subject to the Motion for Summary Judgment are Webb's first claim for relief (REDA), second claim for relief (Wrongful Discharge), 413 and fourth claim for relief (Defamation). A. REDA Webb's first claim alleges KRD violated the North Carolina Retaliatory Employment Discrimination Act ("REDA"), N.C. Gen.Stat. § 95-241, when it terminated his employment. REDA prohibits employer retaliation against employees who engage in protected activity by filing claims under several enumerated state statutes concerning employment practices[1] or cooperating with investigations pursuant to claims filed by other employees. To sustain a claim under REDA, a plaintiff must establish the following: (1) he exercised his right to engage in a protected activity, such as filing a workers' compensation claim; (2) he suffered an adverse employment action; and (3) a causal connection exists between the exercise of the protected activity and the alleged retaliatory action. Wiley v. United Parcel Serv., Inc., 164 N.C.App. 183, 594 S.E.2d 809, 811 (N.C.Ct.App.2004). "`Retaliatory action' means the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment." N.C. Gen.Stat. § 95-240(2) (2007). If a plaintiff establishes a prima facie case of retaliation, the burden then shifts to the defendant to show, by a preponderance, that it "would have taken the same unfavorable action in the absence of the protected activity of the employee."[2] N.C. Gen.Stat. § 95-241(b). Webb first must establish that he exercised his right to engage in a protected activity. The parties do not dispute that Webb filed a claim for workers' compensation, which is protected activity under REDA. Wiley, 594 S.E.2d at 811. As to the second element, KRD terminated Webb's employment, which is an adverse employment action. Finally, to satisfy the causation element, "a plaintiff may present evidence of close temporal proximity between the protected activity and the adverse employment action, or a pattern of conduct." Smith v. Computer Task Group, Inc., 568 F.Supp.2d 603, 614 (M.D.N.C.2008). Here, KRD terminated Webb less than two days after Boettler discussed treatment by KRD's doctor with him. This close temporal proximity satisfies the third prong of a prima facie case for a REDA violation. KRD contends it would have terminated Webb's employment even if he had not filed a workers' compensation claim, which is an affirmative defense under REDA. It maintains that Webb was speeding, which caused a preventable accident, 414 justifying his termination pursuant to company policy. Webb, on the other hand, claims he was not speeding and that KRD's articulated reason is a pretext for the true reason they terminated him: that he filed a workers' compensation claim. "To raise a factual issue regarding pretext, the plaintiff's evidence must go beyond that which was necessary to make a prima facie showing by pointing out specific, non-speculative facts which discredit the defendant's non-retaliatory motive." Wells v. N.C. Dept. of Correction, 152 N.C.App. 307, 567 S.E.2d 803, 811 (N.C.Ct.App. 2002). There is a genuine dispute as to the reason KRD terminated Webb's employment. Webb maintains he was driving between 20 and 25 miles per hour and that a blown tire caused the rollover. He presents evidence from three other KRD drivers that they had experienced problems with the company's GPS devices reporting inaccurate data. These other drivers reported the problems to both Boettler and Dykstra, but received no follow up. Further, these same drivers all report that blown tires were a frequent occurrence with KRD trucks, more so than with previous companies for which they had worked.[3] Based on this evidence, a reasonable jury could believe that KRD's alleged reliance on the GPS report, rather than Webb's explanation that a tire blowout caused the accident, was disingenuous.[4] Finally, the timing of the events at issue, when viewed most favorably to Webb, could also be seen by a jury as indicative of pretext. The accident occurred on October 31, 2008, but KRD did not immediately terminate him, instead terminating him on November 6, 2008, only two days after the company's doctor confirmed Webb had been injured and restricted him to light-duty work. Indicative of this genuine dispute is KRD's conflicting affidavits. KRD attempts to call into question Webb's theory of the accident that a load shifted when the tire blew out. It offers the Second Affidavit of Tony Dykstra, the company's safety manager. Dykstra explains that "the loads of garbage carried by KRD trucks are not susceptible to shifting such that they would cause a rollover accident" because they are so tightly packed. (Doc. No. 16-3 at 1-2). But Joe Goodman, KRD's maintenance manager for the North Carolina division, contradicts this statement in his own affidavit, stating his opinion that "Webb's truck overturned as a result of Webb driving too fast on the Exit 16A ramp, which caused the truck's load to shift, which in turn caused the truck's tire to blow and the truck to overturn." (Doc. No. 9-6 at 2). The credibility assessments required of these witnesses' testimony, where they conflict on this material issue, is best left for a jury. While KRD presents much evidence refuting Webb's claim, this information can 415 be weighed by a jury at trial. In the light most favorable to Webb, the nonmoving party, the evidence creates a genuine dispute as to whether KRD terminated him for causing a preventable accident, or instead for exercising his workers' compensation rights. Summary judgment will be denied as to the first claim for relief alleging a violation of REDA. B. Wrongful discharge Webb's second claim for relief alleges wrongful discharge in violation of North Carolina public policy. The parties agree that Webb's wrongful discharge claim rises and falls with his REDA claim. The standards for both claims are nearly identical. Compare Salter v. E & J Healthcare, Inc., 155 N.C.App. 685, 575 S.E.2d 46, 51 (N.C.Ct.App.2003), with Wiley, 594 S.E.2d at 811. The Court thus agrees with the parties that these two claims rise and fall with each other, and summary judgment will be denied as to the claim for wrongful discharge. C. Defamation Webb's fourth claim for relief alleges defamation, and more specifically, slander per se. He claims that Boettler, while acting as KRD's general manager, communicated false statements of and concerning Webb to prospective employers. North Carolina law defines slander per se as "an oral communication to a third party which amounts to (1) an accusation that the plaintiff committed a crime involving moral turpitude; (2) an allegation that impeaches the plaintiff in his trade, business, or profession; or (3) an imputation that the plaintiff has a loathsome disease." Boyce & Isley, PLLC v. Cooper, 153 N.C.App. 25, 568 S.E.2d 893, 898 (N.C.Ct.App.2002). "[F]alse words imputing to a merchant or business man conduct derogatory to his character and standing as a business man and tending to prejudice him in his business are actionable, and words so uttered may be actionable per se." Id. (citation omitted). "[I]n order to be actionable, the defamatory statement must be false. The truth of a statement is a complete defense." Long v. Vertical Technologies, Inc., 113 N.C.App. 598, 439 S.E.2d 797, 801 (N.C.Ct.App. 1994). As with the REDA and wrongful discharge claims, this claim will also survive summary judgment. Boettler told prospective employers that Webb was terminated from KRD's employment because he caused a preventable accident. KRD does not contest that, if Boettler's statements were false, then Webb would have a claim for slander per se. KRD argues, however, that Boettler's statements to the prospective employers were true and that the verity of these statements provides a complete defense to this claim. Inherent to the Court's analysis of Webb's REDA claim is that a reasonable jury may believe that the real reason Webb was terminated was not that he caused the accident, but that he filed a workers' compensation claim. Such a finding would mean Boettler's statements to the prospective employers were untrue. As a result, the Court will deny summary judgment as to Webb's fourth claim for relief for defamation. IV. CONCLUSION IT IS, THEREFORE, ORDERED that the Defendant's motion for summary judgment (Doc. No. 8) is DENIED. NOTES [1] See N.C. Gen.Stat. § 95-241(a)(1)(a)-(h) and (a)(5): N.C. Gen.Stat. §§ 97 (North Carolina Workers' Compensation Act); 95, Art. 2A (North Carolina Wage and Hour Act); 95, Art. 16 (North Carolina Occupational Safety and Health Act); 74, Art. 2A (North Carolina Mine Safety and Health Act); 95-28.1 (prohibiting discrimination against any person possessing the Sickle Cell or Hemoglobin C trait); 127A, Art. 16 (National Guard Re-employment Rights); 95-28.1A (prohibiting discrimination based on genetic testing); 143, Art. 52 (North Carolina Pesticide Law of 1971); 90, Art. 5F (North Carolina Drug Paraphernalia Control Act of 2009); and 50B (Domestic Violence). [2] While some federal courts have applied the Title VII burden-shifting analysis to REDA claims, the North Carolina Supreme Court has not adopted this method, instead applying "the terms of the statute itself." Abels v. Renfro Corp., 335 N.C. 209, 436 S.E.2d 822, 825 (1993); see also Smith v. Computer Task Group, Inc., 568 F.Supp.2d 603, 613 n. 10 (M.D.N.C.2008). Title VII cases do, however, provide "guidance in establishing evidentiary standards and [principles] of law to be applied in discrimination cases." Id. at 827. [3] KRD has offered evidence that it terminated four other Charlotte area drivers for causing preventable accidents during the time period surrounding the Webb incident. While this evidence may show the company terminates employees for violating company policy, in the light most favorable to Webb, evidence regarding other terminated drivers does not show that KRD believed Webb caused the accident on this specific occasion. [4] KRD has offered the affidavit of Joe Goodman, the maintenance manager for the North Carolina division, as evidence to show that the tire blew out during the accident, rather than prior to it. The affidavit explains that after the accident, the truck tire tread surface was completely peeled off, indicating the trailer tilted over and the edge came into contact with the tire, peeling it as it spun. This is a plausible explanation, but it may not be the only explanation for the way the tire blew. A jury is a more appropriate fact-finder as to this issue than a court determining a summary judgment motion.	{ "pile_set_name": "FreeLaw" }
968 F.2d 1214 NOTICE: 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.Carol Sue HOWARD, Individually and as Executrix of theEstate of Joyce Ann Jensen, Plaintiff-Appellant,v.BRANHAM & BAKER COAL COMPANY, et al., Defendants-Appellees. No. 91-5913. United States Court of Appeals, Sixth Circuit. July 6, 1992. Before DAVID A. NELSON and BOGGS, Circuit Judges, and KRUPANSKY, Senior Circuit Judge. DAVID A. NELSON, Circuit Judge. 1 In 1979 the mother of the plaintiff in this case became a participant in an ERISA profit-sharing plan maintained by her employer. It appears that at one time, at least, the mother may have wished the survivor's annuity benefits payable under the plan to go to her daughter rather than to her surviving spouse. In 1984, however, Congress passed legislation requiring that such benefits go to the spouse unless waived by him in a manner prescribed by statute. The mother's employer amended its plan to conform to the new legislation. 2 Following the mother's death in 1989, the plan's administrators decided that there was no effective spousal waiver. This lawsuit followed. Agreeing with the administrators that the benefits had to be paid to the surviving spouse, the district court entered summary judgment against the daughter. 3 The daughter then moved for permission to submit "new evidence" in the form of a purported spousal waiver that had not previously been disclosed. The district court denied the motion for the reason, among others, that introduction of the new evidence would not affect the outcome of the case. The order denying the motion is now before us on appeal. 4 Although we rely on provisions of the plan not cited by the district court, we agree with the court's conclusion that the new evidence could not change the outcome of the case. Concluding that the denial of the plaintiff's motion did not represent an abuse of discretion, we shall affirm the district court's order. 5 * The plaintiff's mother, a widow named Joyce Ann Patrick, was employed by defendant Branham & Baker Coal Company. Mrs. Patrick had life insurance coverage as a participant in the company's profit sharing plan, and she designated her daughter, plaintiff Carol Sue Howard, as her beneficiary. 6 Mrs. Patrick remarried several years after the designation of Ms. Howard as beneficiary. Prior to the marriage Mrs. Patrick and her husband-to-be, Gerald Wayne Jensen, executed a pre-nuptial agreement. Under this contract, which was dated June 23, 1984, the parties agreed that their estates would not be subject to dower or courtesy and that their assets would not be affected by the marriage. Mr. Jensen agreed "to accept only such portion of [his prospective wife's] Estate as is acquired from and after the date of their marriage, by reason of activities started after the date of their marriage and not as a result of any activities started prior to the date of their marriage." 7 Shortly after the execution of the pre-nuptial agreement, Congress passed and the President signed into law the Retirement Equity Act of 1984, amending 26 U.S.C. §§ 401 et seq. The act provided for a "qualified preretirement survivor annuity," 26 U.S.C. § 401(a)(11)(A)(ii), that would automatically go to the surviving spouse of a vested plan participant unless waived in favor of another beneficiary (or another form of benefit) with the written consent of the spouse. 26 U.S.C. § 417(a)(1) and (2). Subject to an exception not relevant here, such spousal consent had to be witnessed by a plan representative or a notary public. 26 U.S.C. § 417(a)(2)(A)(i). 8 The Branham & Baker Coal Company plan was duly amended to comply with the 1984 changes in the law. With respect to a profit sharing plan participant who worked on or after August 23, 1984 (the date of enactment of the Retirement Equity Act), and who died leaving a spouse, the amended plan provided that the death benefit should be paid to the spouse unless the participant had selected another beneficiary "pursuant to a qualified election." Section 7.02(c)(3). With respect to death benefit payments, see § 7.02(c)(4), a "qualified election" was required to be in writing and to be consented to by the participant's spouse. Section 6.03(c)(3). It was further provided that "[a]ny such Spouse's consent to a waiver shall be witnessed by the Plan Administrator, or its representative, or by a notary public and, if an alternative Beneficiary other than a Spouse is to be named, shall provide for a specifically named alternative Beneficiary." Id. Finally, a designation of a beneficiary--"signed by the Participant ... and, if required, the Spouse of such Participant"--had to be "filed with the [plan] Trustee...." Section 7.03. If no such designation was on file, or if the designation was not effective for any reason, the plan provided that the participant should be deemed to have designated her spouse. Id. 9 Mrs. Jensen, as she had become, died in 1989. At the time of her death, her account balance in the profit sharing plan consisted of approximately $6,400 in general investments and life insurance of approximately $29,700. Plaintiff Howard was still named as the beneficiary, but it does not appear that a qualified election consented to by Mr. Jensen had ever been filed with the plan's trustee. 10 Through counsel, Ms. Howard asked Branham & Baker Coal Company to have the death benefits paid over to her. The plan trustee denied this request on the ground that in the absence of a valid spousal consent to the designation of another beneficiary, both the provisions of the plan and the provisions of federal law required payment to the participant's surviving spouse. 11 Ms. Howard requested review of this decision by an appeals committee appointed under the plan. The appeal was accompanied by copies of the pre-nuptial agreement and a previously undisclosed release signed by Mr. Jensen six days after his wife's death. The latter document acknowledged receipt of certain items from Mrs. Jensen's estate and said "I hereby acknowledge that these items are the only items I am entitled to receive from the Estate of Joyce Ann Patrick Jensen and hereby release any claim I would have on said Estate." 12 The committee denied Ms. Howard's appeal, concluding that neither the pre-nuptial agreement nor the release satisfied the spousal consent requirement. The committee also mentioned that the company's personnel director had given Mrs. Jensen a waiver form to be filled out by her husband; that the personnel director had explained to Mrs. Jensen that her husband's signature was needed if the designation of Ms. Howard as beneficiary were to be effective; and that Mrs. Jensen had never returned the form. 13 Ms. Howard commenced the present action in the United States District Court for the Eastern District of Kentucky to challenge the decision of the appeals committee. On cross-motions for summary judgment the district court held, citing federal regulations directly in point, that a pre-nuptial agreement could not satisfy the spousal consent requirement of federal law; that elections and spousal consents signed prior to enactment to the Retirement Equity Act were not valid under the act in any event; that Mr. Jensen's release of the claims against his late wife's "estate" did not appear to cover benefits payable to a beneficiary under the profit sharing plan; and that because the release did not describe the profit sharing plan benefits as property being disclaimed, the release could not be effective as a disclaimer of a nontestamentary transfer under Kentucky law. See Ky.Rev.Stat. § 394.035(1). 14 Ms. Howard did not perfect an appeal from the summary judgment. Instead, ten days after the entry of judgment, she moved the district court "to reopen the ... action and to permit the Plaintiff to submit new evidence which just became available." The new evidence consisted of a waiver purportedly executed by Mr. Jensen on September 4, 1986, and notarized by Mrs. Jensen on that date. The body of the waiver read as follows: 15 "I, Gerald Wayne Jensen, do hereby release any claim I would have of Joyce Ann Patrick Jensen's, my wife's, Employee Profit Sharing Plan with Branham and Baker Coal Company. I understand that this plan includes her retirement account and a life insurance benefit. I also accept that Joyce Ann Patrick Jensen has named Carol Sue Howard, her daughter, as her beneficiary." 16 The district court denied the motion to reopen on the grounds that the plaintiff had offered no explanation as to why the 1986 document could not have been produced prior to the court's decision; that the plaintiff had failed to show the exercise of due diligence in searching for such a document; and that even if the new evidence were to be admitted, it would not change the result reached earlier. In the latter connection the district court focused on the fact that the notary public before whom Mr. Jensen had purportedly signed the document was Mrs. Jensen herself--a circumstance that the court concluded would render the document ineffective as a spousal waiver. The court explained its thinking thus: 17 "Generally, it is considered contrary to public policy for a notary to take an acknowledgement of an instrument to which he or she is a party. 1 Am[.] Jur.2nd Acknowledgments Section 16. It would appear that Congress, through the [Retirement Equity Act], wanted a spouse to carefully consider a decision to waive retirement benefits without pressure from the other spouse and so imposed the requirement that the waiver be witnessed by a plan representative or a notary. To permit a spouse to act as notary to an instrument concerning their own benefits would appear to undermine this congressional intent. Therefore, even if the new evidence were to be considered by this Court, the outcome would not be changed." II 18 We find it unnecessary to pass on the validity of the specific reasons cited by the court in support of its decision not to reopen the case. As noted above, the Branham & Baker Coal Company plan document not only required that Mr. Jensen's consent to his wife's designation of a beneficiary other than himself be witnessed by a notary public or the plan administrator, it also required that the designation--signed by both the plan participant and her spouse--be filed with the plan trustee. 19 The plan is very specific as to what happens if no such designation is on file at the time of the participant's death: the participant shall be deemed to have designated her surviving spouse as beneficiary. It has never been suggested here that the newly discovered 1986 document had been filed with the trustee, so even if the document had been produced in court prior to the entry of summary judgment, Mr. Jensen would still have been deemed to be the designated beneficiary. Because the benefits would still have been payable to Mr. Jensen, there is no way we could find that the district court abused its discretion in declining to reopen the case. 20 It may seem inequitable that Mr. Jensen should be deemed the beneficiary if Mrs. Jensen's actual intent was that the benefits go to her daughter. The Retirement Equity Act says what it says, however, and so does the plan document. We must follow their provisions. It is neither unlawful nor unreasonable for the terms of a benefit plan to specify that the intent of a plan participant with respect to the designation of a beneficiary must be manifested in a writing that meets the requirements of the statute and that has been filed with the plan trustee. Such a requirement represents a simple and effective safeguard against fraud, and it reduces the likelihood that the plan trustee or administrators will have to make costly--and perhaps inconclusive--inquiries into the subjective state of mind of deceased plan participants. 21 The order appealed from is AFFIRMED.	{ "pile_set_name": "FreeLaw" }
273 F.3d 1266 (9th Cir. 2001) ROBIN ZINSER, individually and on behalf of all others similarly situated, Plaintiff-Appellant,v.ACCUFIX RESEARCH INSTITUTE, INC., formerly d.b.a. as TPLC, INC., and TELECTRONICS PACING SYSTEMS, now known as TPLC HOLDINGS, INC., a Colorado corporation; PACIFIC DUNLOP LIMITED, and NUCLEUS LIMITED; NUCLEUS LIMITED, Defendants-Appellees. No. 99-17073 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted Oct. 30, 2000.Filed June 15, 2001.Amended December 14, 2001, Elizabeth J. Cabraser, James M. Finberg (argued), Melanie M. Piech, and Scott P. Nealey, Leiff, Cabraser, Hiemann & Bernstein, LLP, San Francisco, California; C. Brooks Cutter, Friedman, Callard, Cutter & Panneton, Sacramento, California; Robert Hollingsworth, Cors & Bassett, Cincinnati, Ohio, for the plaintiff-appellant. Charles F. Preuss, Thomas J. Pulliam, Jr., and Catherine W. Levin, Preuss, Walker & Shanagher, LLP, San Francisco, California; Charles P. Goodell, Jr. (argued), Richard M. Barnes, and Ian Gallacher, Goodell, Devries, Leech & Gray, LLP, Baltimore, Maryland; John M. LaPlante, Gregory J. Fisher, Edson & LaPlante, Sacramento, California; Patrick S. Coffey, Scott J. Fisher (argued), Gardner, Carton & Douglass, Chicago, Illinois; Robert S. Epstein, Epstein, Englert, Staley & Coffey, San Francisco, California, for defendants-appellees. Appeal from the United States District Court for the Eastern District of California. Garland E. Burrell, Jr., District Judge, Presiding. D.C. No. CV-97-0414-GEB DAD. Before: Betty B. Fletcher, Diarmuid F. O'Scannlain, and Ronald M. Gould, Circuit Judges. 1 Opinion by Judge GOULD; Dissent by Judge B. FLETCHER. ORDER 2 The majority opinion filed June 15, 2001, is amended as follows: 3 1) Add the following sentence to the end of the third paragraph of section III. B. 4 (Superiority, Rule 23(b)(3)(D)): 4 Of course, we do not suggest that the causation difficulties necessarily render class certification impossible. 5 Judges O'Scannlain and Gould have voted to deny the petition for rehearing and the petition for rehearing en banc. Judge Fletcher has voted to grant the petition for rehearing and recommended granting the petition for rehearing en banc. 6 The full court was advised of the petition for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the active judges in favor of en banc consideration. Fed. R. App. P. 35. 7 The petition for rehearing and the petition for rehearing en banc are DENIED.	{ "pile_set_name": "FreeLaw" }
915 F.2d 1567 U.S.v.DeLeon* NO. 89-1679 United States Court of Appeals,Fifth Circuit. MAR 28, 1990 1 Appeal From: N.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
Petition for Writ of Mandamus Conditionally Granted and Opinion filed November 8, 2012. In The Fourteenth Court of Appeals NO. 14-12-00697-CV IN RE EXXON MOBIL CORPORATION, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS 189th District Court Harris County, Texas Trial Court Cause No. 2009-60726 OPINION On July 30, 2012, relator Exxon Mobil Corporation filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App. P. 52. In the petition, the relator asks this court to compel the Honorable William Burke, presiding judge of the 189th District Court of Harris County, to vacate his order compelling production of privileged documents. We conditionally grant the petition for writ of mandamus. I Exxon Corporation, which later became Exxon Mobil Corporation (“Exxon”), sold certain real property in Louisiana in 1994 to Trade Exploration Corporation, Bryan C. Wagner, Duer Wagner, III, and James Finley (collectively, “the Wagner Group”). As part of the sales agreement, the Wagner Group agreed to “release, defend, indemnify, and hold [Exxon] harmless from and against all damages, losses, expenses . . . civil fines, penalties, and other costs and liabilities as a result of claims, demands, and causes of action[.]” Twelve years after execution of the sales agreement, three property owners sued Exxon in three separate actions in Louisiana state court. In each case, the plaintiffs allege environmental damage and seek restoration and remediation of the land. Exxon requested defense and indemnification from the Wagner Group in all three cases, which the Wagner Group declined to provide. The Wagner Group claimed that Exxon had caused the plaintiffs’ injuries, and further maintained that the injuries occurred before the Wagner Group bought the property in question. The first case to go to trial was M.J. Farms, LTD v. Exxon Mobil Corp. et al. in Louisiana’s Seventh Judicial District Court (“the M.J. Farms case”). Exxon, the M.J. Farms plaintiffs, and Tensas Delta Exploration Company1 discussed settling the case before trial. Exxon and the Wagner Group dispute the level of the Wagner Group’s participation in the settlement negotiations. That dispute notwithstanding, the settlement negotiations were unsuccessful and trial commenced in the M.J. Farms case in Catahoula Parish in March 2011. 1 Tensas Delta Exploration Company is an independent operator located in Shreveport, Louisiana, which owns a fifty-percent undivided interest in the mineral servitude. 2 The M.J. Farms plaintiffs and Exxon settled during trial. Exxon then sued the Wagner Group for indemnification in district court in Harris County. In this indemnification action, Exxon seeks to recover the amount it paid in settlement plus whatever it may have to pay in the other two lawsuits in Louisiana. Exxon seeks damages as a result of the alleged breach of the indemnification agreement; Exxon does not seek damages for the Wagner Group’s alleged failure to defend the M.J. Farms case. In defense of the indemnification suit, the Wagner Group moved to compel production of certain documents in connection with Exxon’s defense and settlement in the M.J. Farms case. The Wagner Group sought production of “all documents relating to Exxon’s or Exxon’s Litigation Counsel’s evaluation of all or part of the [M.J. Farms] litigation”; “all files of Exxon’s Litigation Counsel relating to all or part of the [M.J. Farms] Litigation”; all communications with and analyses of jury consultants; and any outlines prepared by ExxonMobil counsel for use in connection with witness examinations during the M.J. Farms trial. The Wagner Group argued that its defense of Exxon’s indemnity claim necessitates production of settlement documents and information relating to the settlement agreement; settlement communications and negotiations; communications between Exxon and its counsel regarding Exxon’s potential liability to the M.J. Farms plaintiffs; the settlement amount; and communications addressing the cost of remediation. Exxon objected to the Wagner Group’s requests for production and resisted the motion to compel by invoking the attorney-client privilege. The Wagner Group argued in response that Exxon waived its attorney-client privilege under the offensive-use doctrine. The trial court conducted a hearing, determined that Exxon had waived the attorney-client privilege by offensive use, and ordered production of two specific documents encompassed by the Wagner Group’s requests for production and motion to 3 compel. The parties agreed to await this court’s decision on mandamus with respect to these two documents before addressing production of the remaining documents at issue. For purposes of this mandamus proceeding, Exxon produced privilege logs and two privileged documents to this court in camera. The documents are communications between Caj Boatwright, Exxon’s in-house counsel, and other Exxon attorneys and corporate representatives. II Mandamus is appropriate when the record shows that (1) the trial court clearly abused its discretion or violated a duty imposed by law; and (2) there is no adequate remedy by appeal. In re Daisy Mfg. Co., 17 S.W.3d 654, 658 (Tex. 2000) (orig. proceeding). The heavy burden of establishing an abuse of discretion and an inadequate appellate remedy rests on the party resisting discovery. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003). When a trial court erroneously orders production of privileged documents, the harm resulting from having privileged documents inspected, examined, and reproduced cannot be remedied by appeal. Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (orig. proceeding). III The parties do not dispute that the two specific documents at issue in this mandamus are protected from disclosure by attorney-client privilege. The dispute in this court focuses on whether the protection of the attorney-client privilege has been waived under the offensive-use doctrine. The offensive-use doctrine prohibits a plaintiff who is seeking affirmative relief from maintaining the action and at the same time maintaining “evidentiary privileges that protect from discovery outcome determinative information not otherwise available to the 4 defendant.” Tex. Dep’t of Pub. Safety Officers Ass’n v. Denton, 897 S.W.2d 757, 760–61 (Tex. 1995). The Texas Supreme Court has stated as follows: In an instance in which the privilege is being used as a sword rather than a shield, the privilege may be waived. Privileges, however, represent society’s desire to protect certain relationships, and an offensive use waiver of a privilege should not lightly be found. For that reason, the following factors should guide the trial court in determining whether a waiver has occurred. First, before a waiver may be found the party asserting the privilege must seek affirmative relief. Second, the privileged information sought must be such that, if believed by the fact finder, in all probability it would be outcome determinative of the cause of action asserted. Mere relevance is insufficient. A contradiction in position without more is insufficient. The confidential communication must go to the very heart of the affirmative relief sought. Third, disclosure of the confidential communication must be the only means by which the aggrieved party may obtain the evidence. If any one of these requirements is lacking, the trial court must uphold the privilege. Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993) (footnotes omitted). Exxon contends the Wagner Group failed to prove the second and third elements of offensive use because (1) the Wagner Group forfeited the right to challenge reasonableness when it denied a defense, (2) the test for whether a settlement is reasonable is objective, not subjective, and (3) the Wagner Group can obtain the evidence from non-privileged sources. Because they are dispositive, we will address the second and third issues raised by Exxon. Is the indemnification standard objective or subjective? A party seeking indemnity in connection with settlement of litigation must show its potential liability in the underlying litigation and establish that the settlement was reasonable, prudent, and made in good faith under the circumstances. Amerada Hess 5 Corp. v. Wood Group Prod. Tech., 30 S.W.3d 5, 11 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); see also Fireman’s Fund Ins. Co. v. Commercial Standard Ins. Co., 490 S.W.2d 818, 824 (Tex. 1972), overruled on other grounds by Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987). “Questions regarding the reasonableness of a settlement in most personal injury cases are questions upon which the trier of fact must be guided solely by expert testimony.” Amerada Hess, 30 S.W.3d at 11. Exxon contends that the scope of discoverable information germane to the underlying settlement does not encompass communications protected by the attorney- client privilege because the governing legal standard for indemnification in these circumstances is objective rather than subjective. According to Exxon, it need only establish that the underlying settlement was reasonable and made in good faith as measured by an objective standard through expert testimony and the like. Therefore, Exxon argues that the offensive-use doctrine is inapplicable because any subjective views held by Exxon or its lawyers about the desirability of the underlying settlement are not outcome-determinative in this indemnification dispute.. In contrast, the Wagner Group contends that an inquiry into Exxon’s good faith unavoidably entails an inquiry into the subjective beliefs of Exxon and its lawyers with respect to settlement of the underlying lawsuit as reflected in their communications. We look for guidance to Amerada Hess, a similar indemnification dispute in which this court held that expert testimony sufficiently established both reasonableness and good faith in connection with an underlying settlement in a personal-injury case. See Amerada Hess, 30 S.W.3d at 12. We determined that questions regarding the reasonableness of a settlement agreement and whether the agreement was made in good faith are questions requiring expert testimony. Id. at 11. Other courts likewise have addressed both good faith and reasonableness under an objective standard. See Sieber & Calicutt, Inc. v. La Gloria Oil & Gas Co., 66 S.W.3d 340, 348 (Tex. App.—Tyler 2001, 6 pet. denied) (in determining whether settlement was reasonable and in good faith, court considered attorney’s testimony as to “the underlying facts, the identity of the defendant, the damage elements available to a plaintiff, the specific injuries or losses incurred by a plaintiff, the settlement amounts received in similar cases, the complexity of the case, as well as the strength and resources of the opposing counsel”); Stumph v. Dallas Fire Ins. Co., 34 S.W.3d 722, 732 (Tex. App.—Austin 2000, no pet.) (court considered other lawsuits, costs of paint jobs, and testimony of expert witness that settlement was reasonable). We also look to Judge Rosenthal’s opinion in Interspan Distribution Corp. v. Liberty Ins. Underwriters, Inc., CIV. A. H-07-1078, 2009 WL 2605314 at *34 (S.D. Tex. Aug. 21, 2009), in which she concluded that the question of whether a settlement “was reasonable, prudent, and in good faith under the circumstances” is not subjective. “‘Under Texas law, where an indemnitee enters a settlement with a third party, it may recover from the indemnitor only upon a showing that potential liability existed, and that the settlement was reasonable, prudent, and in good faith under the circumstances.’” Id. (quoting XL Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 152 (5th Cir. 2008)). “If these elements are met, ‘the settling indemnitee need not prove actual liability before recovering from the indemnitor.’” Id. (quoting Ins. Co. of N. Am. v. Aberdeen Ins. Servs., 253 F.3d 878, 888 (5th Cir.2001)). “This is not a ‘subjective standard’ . . . .” Id. These cases support Exxon’s contention that the inquiry here is objective rather than subjective so as to put attorney-client communications beyond the offensive-use doctrine’s reach. The Wagner Group invites us to draw a distinction between (1) objective reasonableness as to the dollar amount of an underlying settlement; and (2) good faith as a wide-ranging subjective inquiry into all facts and circumstances surrounding a 7 settlement decision other than the dollar amount itself. The Wagner Group seeks to bolster the proffered distinction by pointing to indemnification cases stating that a putative indemnitee must establish good faith “from its standpoint.” See Mitchell’s, Inc. v. Friedman, 303 S.W.2d 775, 779 (Tex. 1957); Aerospatiale Helicopter Corp. v. Univ. Health Servs., Inc., 778 S.W.2d 492, 500 (Tex. App.—Dallas 1989, writ denied), and Pan Am. Gas Co. v. Nat. Gas Constr. Corp., 418 S.W.2d 380, 381 (Tex. App.—Waco 1967, writ ref’d n.r.e.). According to the Wagner Group, references to an indemnitee’s “standpoint” mean that good faith must be a subjective rather than an objective inquiry. We disagree with the Wagner Group’s contentions because, notwithstanding the “standpoint” catchphrase, cases upon which the Wagner Group relies used objective factors to determine both reasonableness and good faith. See Aerospatiale Helicopter, 778 S.W.2d at 500 (court found that settlement was reasonable in light of potential liability to plaintiffs); Pan Am., 418 S.W.2d at 381 (“The jury was authorized to return a negative answer to the inquiry (as to whether plaintiff acted in good faith and was reasonably justified in making the settlement) if the evidence sustains the concomitant element that plaintiff failed to establish by a preponderance of the evidence that the entire $22,000 paid was reasonable.”); see also H.S.M. Acquisitions v. West, 917 S.W.2d 872, 880 (Tex. App.—Corpus Christi 1996, writ denied) (court found that settlement unreasonable and not made in good faith based on desire of party to recover twice for same rental period). We also harbor concern that the approach advocated by the Wagner Group potentially could open the door to wide-ranging discovery into areas otherwise protected by the attorney-client privilege, and could do so without providing any clear means for establishing limits to such discovery. We held in Amerada Hess that objective expert testimony established reasonableness and good faith. 30 S.W.3d at 12. “Absent a decision from a higher court or this court sitting en banc that is on point and contrary to the prior panel decision or an 8 intervening and material change in the statutory law, this court is bound by the prior holding of another panel of this court.” Chase Home Fin., L.L.C. v. Cal Western Reconveyance Corp., 309 S.W.3d 619, 630 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Even if this panel could depart from Amerada Hess, we are not persuaded of the case law support or the desirability of doing so. The question of whether the settlement was reasonable and made in good faith is an objective determination, not a subjective one. Is the privileged information necessary to the Wagner Group’s defense? Using an objective standard, evidence of the reasonableness and good faith of the settlement may be obtained from sources other than the privileged materials the Wagner Group seeks. Exxon settled the claim without obtaining a judicial determination of its liability. Exxon settled after almost two weeks of trial in the M.J. Farms case. The record reflects that the Wagner Group had a representative sitting in the trial. The Wagner Group may be suspicious of the subjective strategy that caused Exxon to settle when it did and for the amount it did, but Exxon has assumed the risk of being able to prove the facts that might have rendered it liable to the plaintiffs as well as the reasonableness of the amount that it paid. See Gulf, C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 495 (1958). The Wagner Group has not shown that being deprived of the privileged information it seeks “prevents it from establishing its [defense], such that a trial would be a waste of judicial resources.” In re Kellogg Brown & Root, 7 S.W.3d 655, 658 (Tex. App.—Houston [1st Dist.] orig. proceeding). For these reasons, the Wagner Group has failed to establish that the information is “the only means by which [it] may obtain the evidence.” See Republic Ins. Co., 856 S.W.2d at 163. Because the Wagner Group has not established each of the three elements of offensive- use waiver, the two privileged documents at issue in this mandamus are not subject to discovery. 9 For the foregoing reasons, we conditionally grant mandamus relief and direct the trial court to vacate its order compelling production of the two privileged documents at issue in this mandamus. We are confident the trial court will act in accordance with this opinion. The writ will issue only if the trial court fails to do so. /s/ Jeffrey V. Brown Justice Panel consists of Justices Brown, Boyce, and McCally. 10	{ "pile_set_name": "FreeLaw" }
500 Pa. 1 (1982) 452 A.2d 718 FRANKLIN TOWNSHIP and County of Fayette, Appellants, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL RESOURCES, and Elwin Farms, Inc., Appellees. Supreme Court of Pennsylvania. Argued September 23, 1982. Decided December 1, 1982. 2 Michael J. Macko, Sol., Franklin Tp., Connellsville, Philip T. Warman, Sol., Fayette County, Uniontown, for appellants. Paul E. Walters, Chairman, Environmental Hearing Bd., Harrisburg, Howard J. Wein, Asst. Atty. Gen., Dept. of Environmental Resources, Pittsburgh, for appellees. Robert J. Shostak, Bernard Chanin, Philadelphia, for Elwin Farms, Inc. Thomas L. Wenger, John R. Fenstermacher, Wix, Wenger & Weidner, Harrisburg, amicus curiae for Pennsylvania State Ass'n of Tp. Sup'rs. 3 Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT and HUTCHINSON, JJ. OPINION LARSEN, Justice. On May 2, 1980, the Commonwealth of Pennsylvania, Department of Environmental Resources (DER) issued a permit for solid waste disposal and/or processing facility (Permit No. 300728) to Elwins Farms, Incorporated. The permit pertains to a facility called Elwin Farms Industrial Residue Processing Site located in Franklin Township, Fayette County, Pennsylvania. The permit was issued pursuant to an application received by the DER on September 11, 1979. It allowed and authorized the permitee to "stabilize and dispose of (using the `Stabatrol Process' as described in the approved Facility Design and Operations Plans) neutralized inorganic sludges/residues with a solids content of 12% or greater, by weight, which do not contain (1) organic solvents, (2) sodium salts of arsenate, borate, phosphate, iodate, and/or sulfides, (3) more than 1% oil and grease." The baneful deposits sanctioned by this license are acknowledged to be toxic wastes which perpetually retain their hazardous toxicity. On May 30, 1980, a timely appeal from the issuance of the permit was filed with the Environmental Hearing Board (EHB) by Franklin Township and Fayette County. The appeal was based, inter alia, on the following: (a) that the DER failed to establish permanent disposal within thirty (30) days as a requirement of the permit; (b) that proper consideration was not accorded to the existence of a high pressure gas line which runs across the subject property; (c) that the applicant furnished false, misleading, and fraudulent information in its application for a permit; (d) that no provisions for accidental spillage of large quantities of waste were provided; (e) that no consideration was given to the problem of transportation of the waste materials to and from the site; (f) that neither the applicant nor the owner of the land possess the mineral rights creating the possibility 4 of future mining operations beneath the surface; (g) that there is no method to insure that unauthorized materials will not be deposited at the site; (h) that there are several springs and seeps on the property which could become contaminated; (i) that the "stabatrol process" is not an established proven method; (j) that the land on which the facility is to be operated is not zoned for the activity proposed; (k) that the DER failed to notify the township and the county of the application for a permit and breached its duty to cooperate with the local government units in discharging its duties under the Solid Waste Management Act.[1] On motion of the permitee, Elwin Farms, Inc., the EHB dismissed the appeal on the basis that the township and the county lack standing to challenge the permit's issue. The Commonwealth Court, relying on its opinions in Susquehanna County v. Commonwealth of Pennsylvania, Department of Environmental Resources, 58 Pa.Common. 381, 427 A.2d 1266 (1981) and Strasburg Associates v. Newlin Township, 52 Pa.Common. 514, 415 A.2d 1014 (1980), affirmed the Order of the EHB dismissing the appeal for lack of standing on the part of the appellants. Upon petition, we granted allocatur. The question of standing is rooted in the notion that for a party to maintain a challenge to an official order or action, he must be aggrieved in that his rights have been invaded or infringed. This principle was thoroughly considered in Wm. Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975) where this court confirmed that to have standing, a party must (a) have a substantial interest in the subject-matter of the litigation; (b) the interest must be direct; and (c) the interest must be immediate and not a remote consequence. In Wm. Penn Parking Garage, supra, 464 Pa. XXX-XXX-XXX, 346 A.2d 269-280, 281, this Court stated: "`[The party] must have a direct interest in the subjectmatter of the particular litigation, otherwise he can have 5 no standing to appeal. And not only must the party desiring to appeal have a direct interest in the particular question litigated, but his interest must be immediate and pecuniary, and not a remote consequence of the judgment. The interest must also be substantial'. Keystone Raceway Corp. vs. State Harness Racing Commission, 405 Pa. 1, 7-8, 173 A.2d 97, 100 (1961)." "The core concept, of course, is that a person who is not adversely affected in any way by the matter he seeks to challenge is not `aggrieved' thereby and has no standing to obtain a judicial resolution of his challenge. In particular, it is not sufficient for the person claiming to be "aggrieved" to assert the common interest of all citizens in procuring obedience to the law." "It is the latter principle which lies behind the traditional formulation's requirement that the would-be "aggrieved" party must have an interest which is "pecuniary" and "substantial". Thus, for example, it is clear that some interests will suffice to confer standing even though they are neither pecuniary nor readily translatable into pecuniary terms." On the federal level, where review of federal agency action is sought, the standing requirement has been broadened to include persons who can show "that the challenged action had caused them "injury in fact" and where the alleged injury was to an interest `arguably within the zone of interests to be protected or regulated' by the statutes that the agency was claimed to have violated." Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Also see: U.S. v. Students Challenging Regulating Agency Procedures, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). The appellants, Franklin Township and Fayette County are legal persons in the sense that they exist as legal entities possessed of rights and responsibilities including the right and sometimes the duty to seek judicial or other legal relief. However, a township and a county are more than abstract entities; each is also a place populated by people. 6 They can be identified by fixed and definable political and geographic boundaries. These boundaries encompass a certain natural existence land, water, air, etc. collectively referred to as environment. Whatever affects the natural environment within the borders of a township or county affects the very township or county itself. Toxic wastes which are deposited in the land irrevocably alter the fundamental nature of the land which in turn irrevocably alter the physical nature of the municipality and county of which the land is a part. It is clear that when land is changed, a serious risk of change to all other components of the environment arises. Such changes and threat of changes ostensibly conflict with the obligations townships and counties have to nature and the quality of life. We believe that the interest of local government in protecting the environment, which is part of its physical existence, is "substantial" within the meaning of "substantial interest" as set forth in Wm. Penn Parking Garage, supra.[2] Aesthetic and environmental well-being are important aspects of the quality of life in our society,[3] and a key role of local government is to promote and protect life's quality for all of its inhabitants. Recent events are replete with ecological horrors that have damaged the environment and threatened plant, animal and human life. We need only be reminded of the "Love Canal" tragedy[4] and many like situations faced by communities and 7 local governments across the country to recognize the substantial local concerns. One of the most pressing public issues of the 1980's is the prudent establishment of waste treatment facilities and disposal sites. It is crucial that such sites be established in an efficient fashion, at a minimal cost to society, and within the framework of providing maximum protection of public health and property rights.[5] This laudable and imperative goal can best be accomplished through the combined efforts of the citizenry and government. Cooperation between and among all who have an "interest" in the environment is essential to achieve the aims of minimal cost and maximum protection.[6] 8 We have found that the interest of local government in the natural surroundings is not insubstantial. We shall now consider whether the "direct" and "immediate" requirements of standing are satisfied in this case. In Wm. Penn Parking Garage, supra., we said: "The requirement that an interest be `direct' simply means that the person claiming to be aggrieved must show causation of the harm to his interest by the matters of which he complains." Changing the inherent character and quality of the environment by the introduction of toxic wastes into the land, amply provides local government units with an interest which is direct in every meaningful sense. The same considerations which led us to the conclusion that the interest of local government in its physical attributes is substantial, apply in the determination that the interest is also direct. As we have noted, among the responsibilities of local government is the protection and enhancement of the quality of life of its citizens.[7] Indeed, it is a constitutional charge 9 which must be respected by all levels of government in the Commonwealth.[8] 10 Under section 504 of the "Solid Waste Management Act", 1980, July 7, P.L. 380, No. 97 § 504, 35 P.S. 6018.504, consultation and cooperation with local governing bodies is required.[9] If the DER neglected to comply with this requirement and failed or refused to afford the local governments an opportunity to review an application for a permit, it seems clear that, under such circumstances, the propriety of a challenge by the local government units could not be denied. We are aware that this provision of the current statute calling for cooperation is a recent enactment and was not a part of the prior law[10] in effect at the time of the issuance of the permit to Elwin Farms, Inc. Nonetheless, the cooperation mandated by the present Act is a statutory recognition of the ever-existing direct and substantial interest local governing bodies have in the character and quality of the environment. The direct and substantial interest of local government in the environment, and in the quality of life of its citizenry cannot be characterized as remote. We need not wait until an ecological emergency arises in order to find that the interest of the municipality and county faced with such a disaster is immediate. When a toxic waste disposal site is established, undoubtedly there is an instantaneous change in the land on which it is located, and an immediate risk to the surrounding environment and quality of life. These critical matters must be addressed by local government without delay. The environment which forms a part of the physical existence of the municipality or county has been altered and immediate attention must be given to the changed character if the local government is to properly discharge its duties and responsibilities. Furthermore, in the event of an environmental 11 emergency, the local municipality and county would be the first line of containment and defense. Franklin Township and Fayette County have a substantial, direct and immediate interest in the establishment and operation of a toxic waste landfill within its boundaries so as to give each standing to challenge the issuance of a permit.[11] The Order of the Commonwealth Court is reversed and this case is remanded to the Environmental Hearing Board for proceedings consistent with this opinion. ROBERTS, J., filed a concurring opinion in which O'BRIEN, C.J., joined. HUTCHINSON, J., filed a concurring opinion. NIX, J., filed a dissenting opinion. ROBERTS, Justice, concurring. I concur in the result. Throughout the Solid Waste Management Act, Act of July 31, 1968, P.L. 788, 35 P.S. § 6001 et seq. (1968), there is evidenced an express legislative concern for the protection of the interests of local governments. Section 6002(1) declares that one of the main purposes of the Act is to "[e]stablish and maintain a cooperative state and local program of planning and technical and financial assistance for comprehensive solid waste management." To achieve this stated goal of cooperative regulation, section 6006(2) specifically obliges the Department of Environmental Resources to "[c]ooperate with appropriate Federal, State, interstate and local units of government . . .," and section 6006(4) obliges the Department to "[d]evelop a Statewide solid waste management plan in cooperation with local governments . . . ." Pursuant to section 6006(5), the Department is also under a duty to "[p]rovide technical assistance to municipalities, 12 counties, and authorities including the training of personnel." These provisions make it clear that appellants, Franklin Township and the County of Fayette, have a direct interest in the means chosen by the DER to manage the disposal of solid waste materials, including the decision to grant a permit for construction and operation of a disposal facility within their boundaries. Apart from this direct interest in DER decision-making, appellants have alleged that the DER's issuance of the challenged permit will impair their interests in the environmental and economic condition of lands within their boundaries. This Court has recently held that the Administrative Agency Law, 2 Pa.C.S. § 501 et seq., permits a person "aggrieved" by agency action to seek review of that action, even though that person is not specifically afforded a right of review by the statute creating the agency, if the interest asserted is "arguably within the zone of interests sought to be protected or regulated by the statute or constitutional guarantee in question." Application of El Rancho Grande, Inc., 496 Pa. 496, 505, 437 A.2d 1150, 1154, (1981), quoting Wm. Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 198 n. 23, 346 A.2d 269, 284 n. 23 (1975) (plurality opinion). Accord, Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). Although the Solid Waste Management Act, Act of July 31, 1968, P.L. 788, 35 P.S. § 6001 et seq. (1968), contains no provisions setting forth specific criteria for the issuance of solid waste disposal permits by the DER, section 6007(e) of the Act expressly empowers the DER to revoke or suspend a permit whenever the Department determines that a solid waste processing or disposal facility "is creating a public nuisance, or . . . is creating a health hazard, or . . . adversely affects the environment or economic development of the area." 35 P.S. § 6007(e)(ii)-(iv). As this section makes clear, appellants' interests in preventing public nuisances and health hazards, as well as in preserving the economic value of private lands so that taxing revenues are not 13 reduced, are within the zone of interests sought to be protected or regulated by the Solid Waste Management Act. Because appellants have a direct interest in the decision-making of the DER, and because appellants' interests in the environmental and economic condition of lands within their boundaries are within the zone of interests protected or regulated by the Act, it must be concluded that appellants have standing to challenge the issuance of the permit. O'BRIEN, C.J., joins this concurring opinion. HUTCHINSON, Justice, concurring. I join the Majority Opinion and concur in its reasoning except I must disassociate myself from any inference in the Majority Opinion that article I, section 27 of our Constitution grants local governments, creatures of the sovereign, a right to enforce the duties that section imposes on the sovereign. Furthermore, I believe footnote eleven on p. 11, supra of the Majority Opinion in its reference to section 504 of the Solid Waste Management Act, 35 P.S. § 6018.504, is unnecessary dictum. NIX, Justice, dissenting. I dissent. The majority has misconstrued the central purpose of the Solid Waste Management Act, Act of July 31, 1968, P.L. 788, 35 P.S. § 6001, et seq., (Act) in holding that appellants, Franklin Township and Fayette County, possess standing to challenge the Department of Environmental Resources' (DER) issuance of a permit for a solid waste disposal and/or processing facility to appellee, Elwin Farms, Inc. The fact that appellants possess an interest in avoiding environmental pollution and economic loss as a result of potentially inadequate disposal of solid waste materials is not disputed. However, the legislature, in its passage of the Act, has clearly expressed a legislative judgment that protection of these environmental interests shall be vested primarily in the state, through DER. 14 The Act reflects the legislative policy to establish DER as the vehicle for overall supervision and ultimate control of the critical determination regarding when permits shall be granted, consistent with the public health and protection of the environment. The powers and duties of DER, as set forth in the Act, require the department to: (1) Administer the solid waste management program pursuant to the provisions of this act. (2) Cooperate with appropriate Federal, State, interstate and local units of government and with appropriate private organizations in carrying out its duties under this act. (3) Adopt such rules, regulations, standards and procedures as shall be necessary to conserve the air, water and land resources of the Commonwealth, protect the public health, prevent public nuisances, and enable it to carry out the purposes and provisions of this act. (4) Develop a Statewide solid waste management plan in cooperation with local governments, the Department of Community Affairs and the State Planning Board. When feasible, emphasis shall be given to area wide planning. (5) Provide technical assistance to municipalities, counties and authorities including the training of personnel. (6) Report to the legislature from time to time on further assistance that will be needed to administer the solid waste management program. (7) Initiate, conduct and support research, demonstration projects, and investigations and coordinate all State agency research programs pertaining to solid waste management systems. (8) Establish policies for effective solid waste management systems. (9) Issue such permits and orders and conduct such inspections as may be necessary to implement the provisions of this act and the rules, regulations and standards adopted pursuant to the act. * * * * * 35 P.S. § 6006. 15 Moreover, the legislature has specifically required DER to cooperate with local units of government in carrying out its duty to develop waste disposal plans beneficial to all the citizens of the Commonwealth. The cooperation between DER and local units of government mandated under the Act reflects the legislature's recognition of the concerns of these communities and establishes the parameters of their participation. However, conspicuously absent from the Act are any provisions enabling the local units of government to exercise potential vetoes over DER's judgment as to when issuance of permits furthers the statewide goal of environmental protection. The majority would rewrite the Act to enable local government units to intrude upon the ultimate authority vested in DER to establish a statewide solid waste management plan. The legislature having statutorily defined the participation of local governments, the instant situation is unlike the one presented to this Court in Application of El Rancho Grande, Inc., 496 Pa. 496, 437 A.2d 1150 (1981). In El Rancho Grande, this Court held that appellants, liquor licensees, had standing to challenge a determination of the Pennsylvania Liquor Control Board to grant a liquor license, notwithstanding the fact that appellants did not come within any of the sections of the Liquor Code, Act of April 12, 1951, P.L. 90, art. I, § 101 et seq., as amended, 47 P.S. § 1-101 et seq., which set forth specific classes of persons and institutions who may appeal from the Board's determination to grant or refuse a license. The underlying rationale for the grant of standing in El Rancho Grande was that without standing, appellants would have had no input in the decision-making process. However, in the instant case, the legislature has specifically provided (albeit not to the majority's satisfaction) for the input of appellants in its scheme. 35 P.S. § 6006(2) and (4). Therefore, the reasons for extending the traditional rules of standing which justified the result in El Rancho Grande do not exist here. The legislature, in enacting the Solid Waste Management Act, sought to achieve a balance between the statewide 16 interests in developing an environmentally sound system of hazardous waste disposal and the localized interests of communities throughout the state. In providing for cooperation between DER and local government units, the legislature determined the respective roles of the various interests involved. Today's decision has upset that balance. NOTES [1] "Pennsylvania Solid Waste Management Act", Act of 1968, July 31, P.L. 788, No. 241, § 6(2). [2] "The requirement of a "substantial" interest simply means that the individual's interest must have substance there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law. The requirement that the interest be "pecuniary" which may once have had independent significance, no longer adds anything to the requirement of an interest having substance, as defined above." Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). [3] See: Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636; and U.S. v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254. [4] A national emergency was declared at the Love Canal area of Niagara Falls, New York in August, 1978 because toxic chemicals deposited in the ground decades earlier were surfacing. The State of New York purchased the homes of approximately 240 families whose property adjoined the contaminated site and provided relocation services for them. ENV'T Reporter, August 11, 1978, Vol. 9, No. 15, p. 581. In May, 1980, President Carter declared a state of emergency at Love Canal and over 700 families, who may have been exposed to the toxic wastes, were temporarily relocated. ENV'T Reporter, May 30, 1980, Vol. 11, No. 5, p. 139. [5] "At present, there are approximately 55,000 different chemical substances in commercial use in the United States. In 1980, the chemical industry's annual sales were $162 Billion more than 5 percent of the gross national product." "One of the perplexing problems of modern life is that sometimes, and under some condition, some of the chemical substances we depend on can produce unwanted effects. When people speak of "chemicals" many think in terms of synthetic organic chemicals. This view is too narrow to meet the demands of environmental toxicologists. All types of chemical substances may be considered as potentially toxic. These substances can be as diverse as metal ore tailings, solvents, corrosives, inorganic salts and various elemental substances such as lead or phosphorus. Even a substance found on anyone's dinner table common salt (NaCl) could have serious environmental results if released in quantity to a small pond. The change in salinity could kill the fresh water fish and plants" Council on Environmental Quality, Environmental Quality, 1981. The 12th Annual Report of the Council of Environmental Quality (Washington D.C.: U.S. Government Printing Office, 1981) p. 115. [6] This kind of cooperation between and among governments and governmental agencies is now a statutory requirement under the provisions of the Solid Waste Management Act, 1980, July 7, P.L. 380, No. 97 § 504, 35 P.S. 6018.504 which provides as follows: "Applications for a permit shall be reviewed by the appropriate county, county planning agency or county health department where they exist and the host municipality, and they may recommend to the department conditions upon, revisions to, or disapproval of the permit only if specific cause is identified. In such case the department shall be required to publish in the Pennsylvania Bulletin its justification for overriding the county's recommendations. If the department does not receive comments within 60 days, the county shall be deemed to have waived its rights to review. [7] Examples of some of the duties which are associated with this important responsibility can be found in "The County Code", 1955, Aug. 9, P.L. 323, § 2101, 16 P.S. § 2101; the "Local Health Administration Law", 1951, Aug. 24, P.L. 1304 § 1 et seq., 16 P.S. § 12001 et seq., and "The Second Class Township Code", 1933, May 1, P.L. 103, 1947, July 10, P.L. 1481, § 1 et seq., 53 P.S. § 65101, et seq. The "County Code" provides: "The board of county commissioners may provide and annually appropriate from any moneys in the county treasury not otherwise appropriated such sum or sums as they deem necessary for the protection of the health, cleanliness, convenience, comfort and safety of the people of the county". The County Code, 1955, Aug. 9, P.L. 323 § 2101, 16 P.S. § 2101. The legislative findings and purposes as promulgated in the "Local Health Administration Law" provides in pertinent part as follows: "The General Assembly of this Commonwealth has determined and hereby declares as a matter of legislative finding that: (a) The protection and promotion of the health of the people in furtherance of human well-being, industrial and agricultural productivity and the national security is one of the highest duties of the Commonwealth. (b) This cardinal duty can be performed only when adequate local public health services are available to all people of the Commonwealth, when these services are maintained at a high level of professional and technical performance, and when they are administered according to units of population sufficiently large to enable full time modern health services to be provided on the most economical basis by local communities working in partnership with the Commonwealth." Local Health Administration Law, 1951, Aug. 24, P.L. 1304 § 1, 16 P.S. § 12001. Among the duties of County Health Departments is the mandate that they "shall prevent or remove conditions which constitute a menace to public health;" Local Health Administration Law, supra. § 10, 16 P.S. § 12010. Pursuant to the provision of "The Second Class Township Code", 1933, May 1, P.L. 103, 1947, July 10, P.L. 1481, 53 P.S. § 65101 et. seq. townships of the second class are, inter alia, charged with the following duties: "To regulate or prohibit the dumping or otherwise depositing of ashes, garbage, rubbish and other refuse materials within the township. To prohibit accumulations of ashes, garbage, rubbish and other refuse materials upon private property . . ." As Amended, 1961, May 9, P.L. 194 § 1, 53 P.S. 65708. To make such regulations, by ordinance, not inconsistent with state laws and regulations, as may be necessary for the promotion of the health, cleanliness, comfort and safety of the citizens of the township." 1933, May 1, P.L. 103, art. VII, § 702, cl. XXIX, added 1947, July 10, P.L. 1481 § 9, 53 P.S. 65729. ". . ., to establish and construct, singly or jointly with other municipalities, sewer and drainage systems in the township . . ." 1933, May 1, P.L. 103, art. VII, § 702, cl. XXX, added 1947, July 10, P.L. 1481, § 9, 53 P.S. 65730. ". . ., in order to promote the public health, safety, morals, and general welfare, to enact and enforce suitable ordinances to govern and regulate the construction, alteration, repairs, occupation, maintenance, sanitation, lighting, ventilation, water supply, toilet facilities, drainage, use and inspection of all buildings and housing or parts of buildings and housing constructed, erected, altered, designed, or used in whole or in part for human habitation, and of the sanitation and inspection of land appurtenant thereto. . . ." As amended 1963, July 31, P.L. 381. No. 203, § 1, 53 P.S. 65751. [8] "The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people. Constitution of the Commonwealth of Pennsylvania, Art. I, § 27. [9] See Note 5, supra. [10] "Pennsylvania Solid Waste Management Act, 1908, July 31, P.L. 788, No. 241 § 1, et. seq., 35 P.S. § 6001, et seq. [11] We would so hold even if the provisions of the "Solid Waste Management Act", 1980, July 7, P.L. 380, No. 97 § 504, 35 P.S. § 6018.504, which now require consultation and cooperation with local government units in the permit issuing process, had been adopted at the time of these proceedings.	{ "pile_set_name": "FreeLaw" }
NUMBER 13-08-00221-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ______________________________________________________________ BRIAN CHRISTOPHER TREVINO, Appellant, v. THE STATE OF TEXAS, Appellee. _____________________________________________________________ On appeal from the 377th District Court of Victoria County, Texas. ______________________________________________________________ MEMORANDUM OPINION Before Justices Yañez, Garza, and Vela Memorandum Opinion Per Curiam Appellant, Brian Christopher Trevino, attempted to perfect an appeal from a conviction for injury to a child, elderly or disabled individual. We dismiss the appeal for want of jurisdiction. Judgment of conviction was rendered on March 6, 2008. No motion for new trial was filed. Notice of appeal was filed on April 18, 2008. On April 18, 2008, the Clerk of this Court notified appellant that it appeared that the appeal was not timely perfected. Appellant was advised that the appeal would be dismissed if the defect was not corrected within ten days from the date of receipt of the Court’s directive. On August 8, 2008, the Clerk of this Court again notified appellant that it appeared the appeal was not timely perfected and requested a response within ten days. On October 6, 2008, appellant filed a motion to extend time to file appellant’s notice of appeal on the basis the request to appeal the case was not made to counsel until April 18, 2008. Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court unless a motion for new trial is timely filed. TEX . R. APP. P. 26.2(a)(1). The time within which to file the notice may be enlarged if, within fifteen days after the deadline for filing the notice, the party files the notice of appeal and a motion complying with Rule 10.5(b) of the Texas Rules of Appellate Procedure. See id. 26.3. The appellant’s notice of appeal filed with the trial court on April 18, 2008, asked for permission to file a late notice of appeal. Although the notice of appeal herein was filed within the 15-day time period for filing a motion for extension of time to file notice of appeal, no such motion for extension of time was filed with this Court until October 6, 2008. See id. This Court's appellate jurisdiction in a criminal case is invoked by a timely filed notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). “When a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction.” Olivo, 918 S.W.2d at 522. Absent a timely filed notice of appeal, a court of appeals does not obtain jurisdiction to address the merits of the appeal in a criminal case and can take no action other than to dismiss the 2 appeal for want of jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Appellant may be entitled to an out-of-time appeal by filing a post-conviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals; however, the availability of that remedy is beyond the jurisdiction of this Court. See TEX . CODE CRIM . PROC . ANN . art. 11.07, § 3(a) (Vernon 2005); see also Ex parte Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999). The appeal is DISMISSED FOR WANT OF JURISDICTION. PER CURIAM Do not publish. TEX . R. APP. P. 47.2(b). Memorandum Opinion delivered and filed this the 30th day of October, 2008. 3	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs July 12, 2010 THE HARTFORD v. JAMES R. WYRICK Appeal from the Circuit Court for Knox County No. 1-55-09 Dale C. Workman, Judge No. E2010-00478-COA-R3-CV - FILED OCTOBER 12, 2010 The defendant, acting pro se, appeals the entry of a default judgment entered against him in a subrogation action. After a thorough review of the record before us, we affirm the ruling of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS, P.J. and C HARLES D. S USANO, J R., J., joined. James R. Wyrick, Knoxville, Tennessee, pro se appellant. Zachary B. Tenry, Knoxville, Tennessee, for the appellee, The Hartford. OPINION I. BACKGROUND On August 21, 2007, while Donald Lee Jones was working as an employee of HOM Properties, LLC (“HOM”) at University Liquors on Cumberland Avenue in Knoxville, the defendant, James R. Wyrick, entered the store and demanded service. Mr. Wyrick previously had been banned from the premises by the store’s management. According to the plaintiff, the Hartford, as subrogee of Mr. Jones and HOM, Mr. Jones informed Mr. Wyrick that he would not be served and requested that he leave the premises. Mr. Wyrick thereafter became angry, came around the service counter and, as Mr. Jones was attempting to call 911, violently attacked and repeatedly struck Mr. Jones. Mr. Wyrick claims the following occurred: Jones became very belligerent toward me, as soon as he saw me. He said I was not allowed in the store and I asked him why. He said that he did not have to give me a reason. He quickly threatened me and I laughed at him. As I was leaving the store, he came between myself and the door. At this point, Donald Jones assaulted me the 1st time. He kicked and punched me several times. I was able to easily pacify [sic] my aggressor. I continued to the door, and he used the opportunity to retr[ieve] a small, metal bat, that was kept behind the cash register. Donald Jones followed me, as I left Volunteer Liquor. As soon as I cleared the front door, Jones whacked me on the head. I turned around and proceeded to defend myself. I was attacked twice by Donald Jones. Both times, I bro[ke] contact when the threat was no longer present. In its lawsuit against Mr. Wyrick, the Hartford sought reimbursement for monies paid to or on behalf of Mr. Jones and/or his employer under the Tennessee Workers’ Compensation law as a result of the injuries and treatment Mr. Jones received in the altercation with Mr. Wyrick. Mr. Wyrick was served with the lawsuit while incarcerated at the Knox County Sheriff’s Detention Facility on June 24, 2009. He failed to file and serve an answer within 30 days of service of the summons and complaint upon him. Accordingly, the Hartford filed a motion for judgment by default against Mr. Wyrick, which was served upon him at the detention center. The trial court conducted a hearing on December 4, 2009, and awarded the Hartford a judgment by default. The record indicates that Mr. Wyrick filed a handwritten response with the trial court clerk on the afternoon of December 4, 2009, but that document was never served upon the Hartford. The response read as follows: I am writing you with my response to this pending issue. All of this is very, very laughable. On Jan. 29th, Bill Swann sentenced me to 180 days in jail. My out date was Aug. 4th. On the 3rd, I was given 30 more days, for a total of 217 days. I was re-arrested on the 24th of October. My out date is now on the 21st of December, for a total of 273 days this year. -2- This attorney has served me twice at the KCDF. They know I am in jail. . . . In August of [sic] 21st of 2007, Donald Lee Jones was charged with Aggravated Assault. He came after me with a small, metal bat from a Smokies ball game. He hit me on the left side of my head and caused a 4 inch gash. The gray t-shirt I wore was cove[red] with blood. So [heres] the question, how do you get charged with Aggravated Assault and have any claim at all. I just don’t get it. I look forward to my day in court. This guy thinks that some money will sway justice or right and wrong. It will not. Please set this court date after Dec. 21st. . . . Six days later, the trial court entered an order granting judgment by default and scheduling a writ of inquiry hearing for a determination of damages. The trial court noted “that the Defendant has been duly served with Summons and a Copy of the Complaint but has neither filed a response nor had a representative enter an appearance on his behalf. . . .” Mr. Wyrick was notified of the hearing held on February 12, 2010. The trial court granted the Hartford a final default judgment against Mr. Wyrick in the amount of $5,650.36 plus court costs on February 22, 2010. Mr. Wyrick now appeals the trial court’s final judgment. On his notice of appeal, he noted the following: This guy was injured due to his own actions. His actions were criminal. These people say I am a criminal. I was charged with tres[passing]. [Mr. Jones] was charged with Aggravated Assau[lt] [which] is a felony. . . . Jones has a history of aggression. The bat he used to [whack] me in the head is his primary weapon. He even had or has a name for it, “BumBeater.” How is it possible to be ass[aul]ted with a bat and then sued? I don’t understand it. II. ISSUE Mr. Wyrick requests that this court reverse the default judgment entered by the trial court. III. STANDARD OF REVIEW In this case, Mr. Wyrick did not seek to set aside the default judgment in the trial court -3- in accordance with Tenn. R. Civ. P. 55.02. Rather, he requested a Tenn. R. App. P. 3 appeal as of right. As noted in First Union National Bank of Tennessee v. Abercrombie, No. M2001-01379-COA-R3-CV, 2003 WL 22251347 (Tenn. Ct. App. M.S., Oct. 2, 2003), Mr. Wyrick’s actions raise two questions . . . : first, whether a party against whom a default judgment has been entered may pursue an appeal without first seeking to set the default judgment aside pursuant to Tenn. R. Civ. P. 55.02; and second, if the answer to the first question is “yes,” what the proper standard of review is. Should the trial court’s decision be reviewed using the familiar Tenn. R. App. P. 13(d) standards, or should the decision be reviewed using the standards normally associated with default judgments. *** The answer to the first question depends on the substance of the default judgment. If the order granting the default judgment disposes of all the claims between all the parties, and if it leaves nothing else for the trial court [to] do . . ., it is final for purposes of Tenn. R. App. P. 3. Other courts addressing this issue have held that default judgments disposing of all claims between all the parties are appealable as of right. . . . Id. at 3 (Citations omitted). Here, the default judgment undertook to resolve all disputes between the parties. It was, therefore, final and appealable as of right. Accordingly, Mr. Wyrick could properly choose to appeal the case to this court rather than seeking relief from the trial court in accordance with Tenn. R. Civ. P. 55.02. As to the second question involving the proper standard of review, the Abercrombie court held as follows: [The answer is dictated by Mr. Wyrick’s] decision not to seek to set aside the default judment in the trial court. Generally, appellate courts review trial court decisions denying Tenn. R. Civ. P. 55.02 motions to set aside default judgments using the “abuse of discretion” standard. In this case, however, no Tenn. R. Civ. P. 55.02 motion was filed. In such cases, the default judgment is instead reviewed only for fundamental errors apparent on the face of the record. In conducting this review, we should also consider (1) the willfulness of the default, (2) whether there is a meritorious defense, and (3) the level of prejudice to the non-defaulting party if the default is set aside. -4- Id. at 3 (citations omitted). IV. DISCUSSION In the instant action, despite being served and having received notice of the Hartford’s motion for default judgment and the trial court’s hearings considering the motion and the Hartford’s damages, Mr. Wyrick failed to file anything with the trial court until after the motion for default judgment was considered by the trial court. Even then, Mr. Wyrick failed to serve opposing counsel with his response. In the handwritten filing, Mr. Wyrick asked that a hearing be held after December 21, 2009, but then failed to appear at the hearing on February 12, 2010. A default judgment is a final order disposing of a case on its merits, like any other judgment. Such a judgment is generally considered an admission of all the properly pleaded material allegations of fact in the complaint, except the amount of unliquidated damages. See Patterson v. Rockwell Int’l, 665 S.W.2d 96, 100 (Tenn. 1984). We find that despite his periods of incarceration, Mr. Wyrick had ample opportunity to participate in this action against him and failed to do so. He has admitted that he was properly served. He has cited no reason why he could not have contacted an attorney or the court in a timely fashion. We do not find Mr. Wyrick’s incarceration rendered him incompetent or excused him from participating in the proceedings. See Jimenez v. Rosenbaum-Cunningham, Inc., No. 07-1066, 2010 WL 1303449, at n.7 (E.D. Pa. Mar. 31, 2010). “His unavailability for hearings and trials [did] not prohibit him from presenting matters to the court on his behalf.” Carson v. Gilleland, No. M2002-01082-COA-R3-CV, 2003 WL 22037336, at *3 (Tenn. Ct. App. M.S., Aug. 29, 2003). Accordingly, the default judgment is proper. V. CONCLUSION The order granting the default judgment is affirmed, and this case is remanded to the trial court. Costs of the appeal are assessed to appellant, James R. Wyrick. _________________________________ JOHN W. McCLARTY, JUDGE -5-	{ "pile_set_name": "FreeLaw" }
922 F.Supp. 818 (1996) UNITED STATES of America, Plaintiff, v. Jose REYES, Francisco Medina, and Thomas Rodriguez, Defendants. No. S2 94 CR 872 (SAS). United States District Court, S.D. New York. January 3, 1996. 819 820 Bruce G. Ohr and Thomas A. Arena, Assistant U.S. Attorneys, United States Attorney's Office, Southern District of New York, New York City, for Plaintiff U.S. Diarmuid White, New York City and Don D. Buchwald, Buchwald & Kaufman, New York City, for Defendant Jose Reyes. Lee Ginsberg, Freeman, Nooter & Ginsberg, New York City, for Defendant Thomas Rodriguez. OPINION AND ORDER SCHEINDLIN, District Judge. INTRODUCTION Defendant Jose Reyes ("Reyes") has filed pretrial motions seeking various forms of 821 relief. Defendant Thomas Rodriguez ("Rodriguez") has joined in these motions to the extent they affect him and has also asked that his case be consolidated with a different pending case, or, in the alternative, that he be granted a severance.[1] After the submission of extensive briefs on the issues raised, a number of the motions were resolved. See generally Transcript of Proceedings, September 1, 1995. An evidentiary hearing was then held with respect to several of the remaining issues on October 5, 6, and 20, 1995. Post-trial briefs were submitted following the hearing. Before addressing the motions, I shall list the remaining issues and set forth the relevant facts. Reyes first moves to suppress the fruits of four searches made pursuant to search warrants issued by a Magistrate Judge in Florida.[2] The heart of that motion is that probable cause to search was lacking because the information in the affidavits was stale. Reyes also challenges the initial entry into his hotel room, pursuant to a duly issued arrest warrant; that entry provided some of the material included in the search warrant affidavits. This challenge is based on Reyes' contention that the entry into the room was illegal because the agents could not reasonably have believed that Reyes was in the room and/or that they failed to announce their presence when they knocked on the door. Reyes next moves to suppress the fruits of the "search" of three electronic paging devices, found in various locations. With respect to two of those pagers, Reyes asserts that the pagers were wrongfully seized and/or should not have been accessed. The third pager was seized from the hotel lost and found pursuant to one of the allegedly defective warrants. Finally, Reyes seeks to suppress statements he made during questioning by law enforcement agents following his arrest. Reyes argues that while the waiver of his rights was knowing, it was not voluntary given the lapse of time between arrest and arraignment and his deteriorating medical condition.[3] FACTUAL BACKGROUND On November 16, 1994, Reyes was indicted for narcotics-related offenses by a grand jury sitting in the Southern District of New York. An arrest warrant was contemporaneously issued. On Friday, December 2, 1994, the Bureau of Alcohol, Tobacco and Firearms ("ATF") received information that Reyes might be staying in the Airport Hilton Hotel in Miami, Florida. See Transcript of Hearing ("Tr.") at 202. A copy of the arrest warrant and a picture of Reyes were faxed to ATF agents in Miami. Tr. at 203. The Miami agents knew that Reyes was a paraplegic confined to a wheelchair. Tr. at 90. I. The Entry into Reyes' Hotel Room On the evening of December 2, 1994, four ATF agents (Davis, O'Keefe, Foster and Lawrence) proceeded to the Airport Hilton. Tr. at 33-34. The record is not clear as to when they arrived, but it would appear to be after 6 p.m. on Friday evening. See generally Tr. at 30. They learned from a desk clerk that Reyes was a guest at the hotel staying in Room 609. Tr. at 33. The record is unclear as to whether the agents knew or should have known that Reyes was not in his room at the time. In any event, after the agents knocked on the door and phoned the room, with no response to either, a hotel security guard opened the door to the room. The four agents entered the room and conducted a security sweep. Tr. at 16, 80, 93. They observed clothes, books, magazines, 822 and medical accessories. Tr. at 15, 93-94. No one was inside the room. Tr. at 16, 93-94. The agents removed nothing from the room. However, the agents' observation of Soldier of Fortune magazine and a book entitled Hitman in Reyes' hotel room was included in the subsequent affidavits for search warrants. II. Reyes' Arrest and the Search of the Car Later on the evening of December 2, 1994, Reyes returned to the hotel in a Lincoln Town Car driven by Victor Salazar. Salazar helped Reyes into his wheelchair and pushed him into the hotel. Reyes was then arrested in the hotel lobby. Tr. at 94. Reyes identified himself as Benjamin Polanco, not Jose Reyes. Id. The agents recovered a bag attached to Reyes' wheelchair containing a Sharp Wizard computer and a pager. Tr. at 95. A search warrant was later obtained to search the files of the Sharp Wizard computer. As noted earlier, Reyes challenges the warrantless retrieval of information contained in the pager seized from the bag on his wheelchair. Two other ATF agents, Murphy and Coad, separated Salazar from Reyes. Salazar gave the agents permission to search the car. Tr. at 117-118. A pager was found in the back seat of the car and two receipts were found in the glove compartment one for the car rental and one for ABC Mini Storage. Both receipts were in the name of Alejandra Posada. Tr. at 119, 144. When asked to whom the receipts belonged, Salazar responded that "[t]hose receipts belong to him [Reyes]. You'll have to ask him." Tr. at 119, 145. After the seizure, Agent Murphy may have informed Agent Davis that he thought Alejandra Posada might be an alias used by Reyes. Tr. at 133. Once again, Reyes challenges the warrantless retrieval of information contained in the pager seized from the car. Agents Davis and O'Keefe then transported Reyes to the Metropolitan Correction Center ("MCC") outside Miami. When Agent Davis filled out a personal history form for Reyes she listed the name "Alejandro Posada" as an alias. Reyes was lodged at the MCC. Tr. at 20-22. III. The Search Warrants On Sunday, December 4, 1994, Agent Davis, together with case Agent Horne and two investigators from New York, went to the Miami U.S. Attorney's office where search warrants were being drafted. The drafting began with an e-mailed draft prepared in New York by Assistant U.S. Attorney ("AUSA") Tom Clark. Tr. at 25, 207, 313-14. This draft was then revised by local AUSA Jose Boneau. Tr. at 318. The agents spoke with both AUSAs. Both Agents Horne and Davis reviewed the draft warrants before they were presented to the Magistrate Judge. Tr. at 25-27, 207-11. The warrants were issued later that evening. The agents searched the ABC Mini-Storage and the hotel lost and found that same night. The search of the Sharp computer was conducted the next day. Several days later, on December 7, a fourth warrant was issued. That warrant authorized a second search of the ABC Mini-Storage locker. IV. The Interview of Reyes After the warrants were signed, Agent Horne and two New York investigators went to the MCC to interview Reyes. Tr. at 180, 213. When Reyes entered the visitors room, the agents identified themselves and Agent Horne read Reyes his Miranda rights. Reyes signed a piece of paper to which the card containing the Miranda rights had been stapled, acknowledging that he had received and understood his rights. Government Exhibit ("GX") 5 (waiver of rights); Tr. at 182, 214, 354. Reyes then spoke with the agents. V. The Recovery of the Third Pager and Reyes' Arraignment A third pager was recovered from the search of Reyes' belongings that had been moved to the hotel lost and found. Tr. at 159, 219. The parties dispute whether the pager was on or off when it was found. In any event, Agent Horne kept the pager in her room overnight. Tr. at 160, 219. The next morning, during a meeting with the other agents in her hotel room, the pager went off, and the investigators recovered the messages from the pager over the course of 823 the next four days. Tr. at 161, 168. Later that morning (Monday), Reyes was arraigned in federal court in Miami. A woman identified as Alejandra Posada attended the arraignment. Tr. at 162, 220, 221. DISCUSSION I. The Entry into Reyes' Hotel Room Reyes asserts that the ATF agents acted unlawfully when they entered his room at the Miami Hilton to execute an arrest warrant. Because facts observed by the agents while in the room were used in the affidavits supporting four search warrants, Reyes argues that the evidence seized pursuant to those warrants must be suppressed. Section 3109 of Title 18, United States Code, states in part: The officer may break open any outer or inner door or window of a house or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance.... The restrictions which § 3109 imposes on law enforcement officers are of constitutional dimension. Wilson v. Arkansas, ___ U.S. ___, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). Section 3109 has been held to apply to arrest warrants, Sabbath v. United States, 391 U.S. 585, 588, 88 S.Ct. 1755, 1757, 20 L.Ed.2d 828 (1968), and to hotel or motel rooms, United States v. Nolan, 530 F.Supp. 386, 392-93 (W.D.Pa.1981), aff'd, 718 F.2d 589 (3d Cir. 1983). Finally, a hotel employee may not provide lawful consent to police entry into the hotel room of a guest. Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964). The statutory requirement that agents be "refused admittance" before forcing an entry does not require an affirmative refusal, but is satisfied when the circumstances permit the agents to reasonably infer that they have been refused admittance. See, e.g., United States v. Ramos, 923 F.2d 1346, 1356 (9th Cir.1991); United States v. Bonner, 874 F.2d 822, 824 (D.C.Cir.1989); United States v. Williams, 573 F.2d 348, 350 (5th Cir.1978); United States v. James, 528 F.2d 999, 1017 (5th Cir.), cert. denied, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976); Masiello v. United States, 317 F.2d 121, 122 (D.C.Cir.1963). Thus, the question here is whether the ATF agents reasonably inferred that they had been refused admittance when they entered Reyes' hotel room. If such an inference was unreasonable, then the entry was illegal, and the fruits of the search must be suppressed. Agent Davis testified that she knocked on the door of Room 609 at approximately 9 or 9:30 p.m. and announced that she was a federal agent with an arrest warrant. She further testified that she heard a TV on in the room, and that its volume was so loud that she had to scream when she made her announcement. After receiving no response, she telephoned the room from a house phone. Again she received no response. She then went to the lobby and got a security guard to accompany her back to the room with a set of keys. The guard then knocked on the door and identified himself. When nobody answered, he opened the door with a key. The television set was on, but no one was in the room. See generally Tr. at 15-16, 38-40. There is significant evidence in the record contradicting Agent Davis' account. Agent O'Keefe, who accompanied Agent Davis, testified that when they first came to the room, they knocked but did not announce themselves. When Agent Davis placed the phone call to the room, Agent O'Keefe could hear the phone ring, raising an issue as to the volume of the TV. Tr. at 92, 102, 105-06. In addition, although Agent Davis testified that she screamed her announcement at the door of Reyes' hotel room, and although there were other hotel room doors across the hall and 5-10 feet to the right of the door to Reyes' room, no one in any other rooms in the area came to his or her door. Tr. at 38-39. Mr. Iadanza, the hotel security officer, testified that at about 9:30 p.m., two officers came to the lobby with a picture of Reyes. Mr. Iadanza recognized Reyes as a guest and told the officers that he had not seen Reyes that day. The agents asked if they could gain access to the room to see if Reyes was there. Mr. Iadanza then accompanied them to the room, knocked, identified himself as security and opened the door. Mr. Iadanza 824 could not recall whether the TV was on. Tr. at 79-81. Agent Murphy testified that within 15 minutes of his arrival at the hotel, Agent Davis told him that Reyes was not at the hotel. Tr. at 115, 127. While Agent Murphy was unsure of the time of his arrival at the hotel, he did state that it was just starting to get dark. Tr. at 126. The testimony of Agent Davis reveals that on December 2, 1994, it started to get dark at approximately 6:30 p.m. Tr. at 43. Finally, Reyes testified that he had turned the TV off when he left the room (he left at approximately 1 p.m., and did not intend to return until 10 p.m.). He further testified that it was his usual habit to turn off the TV when he was leaving the hotel room, and that he acted in accordance with that practice. Tr. at 346-348. I credit the testimony of Agent O'Keefe that the first time the agents went to the door, they merely knocked. There is no reason for a hotel guest not to respond to a knock. There is even less reason for a hotel guest not to answer a phone call. It further appears that Agent Davis told Agent Murphy that Reyes was not in the hotel before she entered the room. According to both Agent Davis and Mr. Iadanza, the agents entered the hotel room at 9 or 9:30 p.m. On the other hand, Agent Murphy appears to have arrived at the hotel at about 6:30 p.m. The sequence of these events is confusing. Finally, the only neutral witness, Mr. Iadanza, testified that it was approximately 9:30 p.m. when the agents came to the lobby and asked if he had seen the person depicted in a photograph of Reyes. Tr. at 79. Mr. Iadanza could not recall whether the TV was on either when he was in the hall knocking at the door or when he entered the room. Tr. at 81, 87. When combined with Agent O'Keefe's testimony that he heard the phone ringing through the closed door, with Reyes' testimony that the TV was off and that he planned to be out for close to nine hours, and with the equivocal wording of the search warrant "[h]earing a television set they believed to be on inside the room," I find it more likely than not that the TV set was not on. The inference to be drawn from this finding is that the agents did not reasonably believe that they had been refused admittance to the room.[4] This case is easily distinguishable from the many cases cited by the parties in which a failure to answer a knock and announce may be deemed a constructive refusal to admit. See, e.g., United States v. Bonner, 874 F.2d 822, 824-25 (D.C.Cir.1989) (refusal where police knew suspects were inside apartment, twice knocked and announced, and heard footsteps running from door as well as thumping or bumping); United States v. Williams, 573 F.2d 348, 350 (5th Cir.1978) (refusal where no response to knock, but defendant's cars were parked outside the house); United States v. James, 528 F.2d 999, 1017 (5th Cir.), cert. denied, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976) (where reliable informant advised that fugitive was at premises, and police, in plain view, announced purpose over bullhorn, failure to respond was tantamount to refusal); cf. United States v. Nolan, 718 F.2d 589, 597 (3d Cir.1983) (where marshals heard sound of TV or radio inside motel room and motel manager told them suspect had returned to room after re-registering an hour and a half earlier, it was reasonable to conclude that defendant was in the room and might escape, and exigent circumstances existed; however, agents violated § 3109 by failing to knock and announce). The case is similar, however, to United States v. Watson, 307 F.Supp. 173, 175-76 (D.D.C.1969), where the court held that if an officer knocks on the door of a house he has reason to believe is unoccupied, he cannot reasonably conclude from the non-response that he has been refused admittance. Thus, the entry into Reyes' hotel room was unlawful. As a result, the fruits of that search must be suppressed. The reference to the evidence illegally obtained from Reyes' 825 hotel room will be addressed in the next section. II. Validity of the Search Warrants A. Summary of Information in Search Warrant Affidavits The affidavits in support of the three warrants issued on December 4[5] contained essentially identical information.[6] For convenience, I will cite to the Affidavit of Agent Laurie Horne in Support of Application for Search Warrant for ABC Mini-Storage, Dec. 4, 1994 (hereinafter "Horne Aff."). The content of the affidavits can be divided into two categories information related to narcotics trafficking at a location designated as 1770 Andrews Avenue in the Bronx ("1770") (Horne Aff. ¶¶ 3-18) and information related to Jose Reyes (id. ¶¶ 19-30). The following is my summary of the information in the first category: Two confidential informants had been providing information to the ATF since December 1992. On four occasions in June and July 1992, undercover agents bought heroin in the vicinity of 1770. In July 1992, crack cocaine and heroin were seized from 1770, together with notebooks and a handgun. On August 31, 1992, Ambiore Perez was arrested near 1770 with a large amount of crack. CI-2 identified Perez as a "former manager" of crack distribution from 1770. On January 29, 1993, two people were arrested near 1770 with 5 kilograms of cocaine. CI-2 identified these two as "members of the organization distributing drugs from this location." Horne Aff. ¶ 15. CI-2 stated that the organization began distributing drugs as early as 1989 and is still doing so. As recently as November 15, 1994, agents observed persons (identified by CI-2 as members of the organization) engaging in hand to hand transfers with other people. On November 16 and 18, 1994, agents bought heroin in the vicinity of 1770. The following is my summary of the information contained in the second category: CI-1 and CI-2 have identified Reyes "as the person they knew to be the overall `boss' of the drug distribution organization dealing from 1770...." Horne Aff. ¶ 19 (emphasis added). A third informant, CI-3, believed that he was employed by a drug distribution group led by Jose Llaca. CI-3 distributed drugs with Llaca from 1991 until June 1993 in quantities ranging from 3 to 4 kilograms of crack per week. CI-3 saw Llaca meet "Jay," a crippled person who had another person drive a van for him. CI-3 saw Llaca retrieve kilograms of cocaine from that van on many occasions. Reyes is paralyzed, having been shot in 1992. In October 1992, agents surveilled Reyes to a New Jersey hotel, where he stayed in a room rented by his driver. The driver's credit card reflected at least two airline tickets purchased in Reyes' name and rentals of many handicapped equipped hotel rooms in various locations. Hotel records also reflected phone calls to a store in New York identified by various persons (not named) as a place out of which Reyes had distributed drugs. Cash Transaction Report records revealed that Reyes' driver deposited $33,000 one day with a New Jersey bank and purchased a handicapped-equipped Volvo in New Jersey on the same date (no date was supplied for this transaction). Agent Horne believed that Reyes' driver used his credit card "since August, 1991" to charge thousands of dollars of Reyes' expenses. Horne Aff. ¶ 26. Reyes was found in Miami through phone records showing a call from the hotel to "a telephone number of an associate believed to be in communication with Reyes." Id. ¶ 27. While Reyes admitted he was the person in a prior arrest photo of Jose Reyes, he identified 826 himself as Benjamin Polanco and later as Alejandro Posada. The room at the Miami Hilton was rented since November 15, 1994 in the name of Victor Salazar, Reyes' driver, who had paid for the room with $1,000 in cash. Before arresting Reyes, the agents found Soldier of Fortune magazine and a book entitled Hitman in that room. "NYPD has developed evidence it believes to be credible" that Reyes will pay thousands of dollars for the murder of witnesses against Llaca (then on trial in New York). Id. ¶ 29. Llaca had allegedly given this information to "various persons, both inside and outside prison...." Id. Salazar said he was driving a car rented by Alejandro Posada and consented to a search of that car. A current receipt in that name for rental of a mini-storage unit was found in the car. According to interviews with unidentified persons involved in narcotics trafficking, Reyes is not employed. Finally, Agent Horne has "not received any information indicating that Reyes has ceased his association with the organization that operates from the vicinity of 1770...." Id. ¶ 31. Based on her review of all information available to her, Agent Horne concluded that Reyes has access to substantial sums of cash. B. Some of the Information in the Affidavits Was Old The first issue to be addressed is whether the information contained in these affidavits was stale. "In determining whether probable cause exists, the magistrate is required to assess whether the information adduced in the application appears to be current, i.e., true at the time of the application, or whether instead it has become stale." Rivera v. United States, 928 F.2d 592, 602 (2d Cir.1991). Informants identified Reyes "as the person they knew to be the overall `boss' of the drug distribution organization." Horne Aff. ¶ 19 (emphasis added). The time frame of this past knowledge is not provided, although the affidavit states that they began to provide information in December 1992. CI-3 saw Llaca meet with "Jay," a crippled individual, and retrieve kilograms of cocaine from his van during the period 1991 until June 1993. Thus, the informant information was 18 months old at the time the search warrants were issued. The agents' surveillance of Reyes to New Jersey occurred in October 1992. His driver's credit card records reveal substantial sums spent by Reyes since August 1991, but the affidavit does not state how current those records are. The same is true of the records of phone calls from hotel rooms to stores in New York. The allegation concerning the cash transfer for the purpose of purchasing the Volvo provides no date. Testimony provided at the hearing revealed that the date of this transaction was October 1992, and that Agent Horne knew this date some time before she signed the affidavits in support of the search warrants. Tr. at 210. C. Defining Staleness The next question, then, is when does information become stale. In United States v. Rowell, 903 F.2d 899, 903 (2d Cir.1990), the court held that even an 18-month delay between information provided by informants and the application for a wiretap did not make the information too stale to be relied upon. However, in that case, the defendant had made statements to an undercover officer about his ongoing marijuana distribution operation, thereby corroborating the information from the informants. Id. In United States v. Benevento, 649 F.Supp. 1379, 1382-84 (S.D.N.Y.1986), aff'd in part, vacated in part, 836 F.2d 60 (2d Cir.1987), cert. denied, 486 U.S. 1043, 108 S.Ct. 2035, 100 L.Ed.2d 620 (1988), the court held that there was probable cause to search the defendant's home despite a one-year gap between the date of the information in the affidavit and the date of the warrant application. This decision is noteworthy in two respects. First, it may be read to hold that no more than one year may elapse if information is to be considered current rather than stale. Second, the warrant was to search a home, a place in which evidence of past criminal activity is likely to be found. Finally, and most importantly, the warrant application identified the date of the criminal activity as occurring prior to June 1985, thereby 827 attempting to demonstrate probable cause to believe that certain specified items relating to past crimes were still at the home. Benevento, 649 F.Supp. at 1383-84. In United States v. Perry, 643 F.2d 38, 49-50 (2d Cir.), cert. denied, 454 U.S. 835, 102 S.Ct. 138, 70 L.Ed.2d 115 (1981), the court upheld a warrant based on an affidavit revealing a three-year gap between evidence of narcotics activity on both sides of the gap. There, the court held that the earlier activity was not stale because of the proof of the later (current) activity. The later evidence included statements of identified witnesses to the effect that the defendant conducted business from an unoccupied location, as well as pictures from surveillance cameras revealing automobiles (which would leave whenever the police arrived) linked to drug traffickers in the driveway. In Rivera, the court noted that "intervals of weeks or months ... [do] not necessarily make the information stale." 928 F.2d at 602 (emphasis added). See also United States v. Ponce, 947 F.2d 646, 650 (2d Cir.1991), cert. denied, 503 U.S. 943, 112 S.Ct. 1492, 117 L.Ed.2d 633 (1992) (information two weeks old not stale); United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985) (five weeks not stale); United States v. Martino, 664 F.2d 860, 867 (2d Cir.1981), cert. denied, 458 U.S. 1110, 102 S.Ct. 3493, 73 L.Ed.2d 1373 (1982) (22 days not stale). Thus, while there is no bright line for defining staleness, the information necessary to support a finding of probable cause should be no older than one year (assuming that one year is the outer limit for a reasonable interpretation of the Rivera court's designation of "weeks or months," and assuming that there are no allegations of current activity that would corroborate or update information older than one year). D. Information in the Reyes Affidavits Was Stale It is axiomatic that once a neutral and detached Magistrate has issued a warrant, generally that "finding of probable cause is entitled to substantial deference." United States v. Travisano, 724 F.2d 341, 345 (2d Cir.1983); see also United States v. Ventresca, 380 U.S. 102, 105-09, 85 S.Ct. 741, 744-46, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 110-11, 84 S.Ct. 1509, 1511-12, 12 L.Ed.2d 723 (1964). Nonetheless, in this case, I conclude that the information in these search warrant affidavits was stale as to Reyes' involvement in the alleged criminal activity. E. Some of the Information in the Affidavits Is Unreliable As neither the allegations based on the statements of the confidential informants nor the information resulting from the agents' surveillance and review of records provides any evidence of criminal activity by Reyes during the past 18 months, the only remaining sources for current information are the allegations concerning the information obtained at or around the time of Reyes' arrest. Several of those allegations have no indicia of reliability and cannot support a finding of probable cause. That Reyes was located by phone records showing a call from the hotel to a telephone number of an "associate" has no meaning. The "associate" is never identified, and there is no information establishing that the "associate" is involved in criminal activity. Thus "associate" is merely a loaded word. Similarly, references to persons who are allegedly involved in the narcotics trade with Reyes, and who stated that he is not employed, cannot be credited, as no such persons are identified and no dates provided with respect to their statements. Such allegations amount to no more than unsubstantiated rumor. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Finally, the information concerning Reyes' current offer to pay money for the murder of witnesses against Llaca is not credible for the same reason. The evidence believed to be credible by the NYPD is never identified, nor are the persons (both inside and outside prison) identified who provided such information. This again is unsubstantiated rumor. F. Some of the Information in the Affidavits Is Tainted Moreover, the affidavits presented to the Magistrate Judge contained information 828 gained from an illegal search. See pp. 822-25, 826, supra. Paragraph 28 of each affidavit details the search of Reyes' hotel room and the observation in that room of Soldier of Fortune and Hitman. G. Remaining Information in the Affidavits Provides No Current Evidence of Criminal Activity and Thus Does Not Support a Finding of Probable Cause The remaining allegations from the time of the arrest are (1) that Reyes identified himself as Benjamin Polanco and then as Alejandro Posada (though it is now conceded that Reyes never identified himself as Alejandro Posada); and (2) that the room at the hotel had been rented for two weeks with a $1,000 cash payment. Neither of these allegations, viewed separately or in combination, provides current evidence of narcotics trafficking or other criminal activity by Reyes, nor do they corroborate the earlier information of such activity. Finally, Horne's statement that she had "not received any information indicating that Reyes has ceased his association with the organization that operates from the vicinity of 1770 Andrews Avenue" (Horne Aff. ¶ 31 (emphasis added)) appears to be added to imply continuity where none exists for the sole purpose of bringing the older allegations up to date. H. There Was No Substantial Basis for a Finding of Probable Cause In determining whether probable cause exists to believe that evidence of a crime is presently to be found in a certain place, a court must consider the totality of the circumstances. See Gates, 462 U.S. at 238, 103 S.Ct. at 2332. Where an issuing "magistrate relied in part on improper information," a reviewing court must decide independently whether probable cause existed to issue a search warrant. United States v. Thomas, 757 F.2d 1359, 1368 (2d Cir.), cert. denied, 474 U.S. 819, 106 S.Ct. 66, 88 L.Ed.2d 54 (1985). Further, this court's independent determination must rely only on the information in the affidavits which was not gained from an illegal search.[7] "When an application for a search warrant includes both tainted and untainted evidence, the warrant may be upheld if the untainted evidence, standing alone, establishes probable cause." Laaman v. United States, 973 F.2d 107, 115 (2d Cir.1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993). See also United States v. Vasey, 834 F.2d 782, 788 (9th Cir.1987); United States v. Whitehorn, 829 F.2d 1225, 1231 (2d Cir.1987); United States v. Levasseur, 816 F.2d 37, 43 (2d Cir.1987); United States v. Taborda, 635 F.2d 131, 140 (2d Cir.1980). Because most of the remaining, untainted information in these search warrants was stale as to Reyes' involvement in narcotics trafficking or other criminal activity (see p. 827, supra), I find that the issuing judicial officer did not have a substantial basis to find that there was a "fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S.Ct. at 2332. In short, there was no substantial basis for the Magistrate's finding of probable cause. See United States v. Wagner, 989 F.2d 69, 72 (2d Cir.1993) (citing Gates, 462 U.S. at 236, 103 S.Ct. at 2331). The court's inquiry, however, is not yet concluded. I. The Good Faith Exception Despite the staleness of the affidavits presented to the Magistrate, and the presence in the supporting affidavits of information gained through an illegal search of Reyes' hotel room, if the agents executed the warrants in good faith reliance as to their validity, then suppression of the evidence gleaned from the searches would not be required. United States v. Cancelmo, 64 F.3d 804, 807 (2d Cir.1995); United States v. Smith, 9 F.3d 1007, 1015 (2d Cir.1993); see also United States v. Londono, 659 F.Supp. 758, 764 (E.D.N.Y.1987), aff'd sub nom. United States v. Carmona, 858 F.2d 66 (2d Cir. 1988). In creating a good faith exception to the exclusionary rule, the Supreme Court has identified circumstances that would not justify reliance on a warrant. In particular, the Court has noted that an executing officer's 829 reliance on a warrant could not be in good faith (1) where the affiant knowingly or recklessly misled the issuing magistrate; "(2) where the issuing magistrate wholly abandoned his or her judicial role; (3) where the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable; and (4) where the warrant is so facially deficient that reliance upon it is unreasonable." United States v. Moore, 968 F.2d 216, 222 (2d Cir.), cert. denied, 506 U.S. 980, 113 S.Ct. 480, 121 L.Ed.2d 385 (1992) (citing United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984)). The exclusionary rule should be narrowly confined to situations in which its application is necessary to deter official misconduct. Thus, the harsh remedy of suppression should not be applied where evidence is "obtained in objectively reasonable reliance on a subsequently invalidated search warrant." Leon, 468 U.S. at 922, 104 S.Ct. at 3420. The Government bears the burden of demonstrating the objective reasonableness of the officer's good faith reliance on the validity of the warrant. United States v. George, 975 F.2d 72, 77 (2d Cir.1992). 1. The Lack of Probable Cause The testimony at the suppression hearing demonstrates that Agent Horne and her colleagues knew or should have known that the information in the affidavits was stale. That is, they knew or should have known that the affidavits did not establish probable cause to believe that the evidence to be seized (narcotics, records of narcotics transactions, etc.) was presently at any of the specified locations. Although Agent Horne had been involved in the 1770 investigation since April 1992, she did not learn of Reyes' role before July 1994. Tr. at 243. Reyes' criminal activity in connection with narcotics trafficking was alleged to have occurred in 1992 and the early half of 1993. The only "evidence" of current illegal activity by Reyes was patently unreliable. See p. 827, supra. Agent Horne's conclusion that the information in the warrant was not stale was not objectively reasonable. 2. False or Misleading Information In what appears to be a lame attempt to beef up stale information, the affidavits contained one false statement and one misleading statement. The false statement is conceded Reyes never identified himself as Alejandra (or Alejandro) Posada. The Government argues, however, that this false statement was made accidentally, as opposed to intentionally or recklessly. The misleading statement concerns the omission of the date on which the Volvo was purchased for $33,000 in cash. This omission might have caused the Magistrate to conclude that this large cash transaction had occurred at some time proximate to the application for the warrants. a. The False Information ATF agents found two receipts in the name Alejandra Posada (a female name) in the Town Car on December 2, the night of the arrest. One receipt was for the rental of the car and the other was for the rental of a locker at the ABC Mini-Storage. Salazar, Reyes' driver, told the agents that the receipts belonged to Reyes and they would have to ask Reyes about these receipts. Tr. at 119. Salazar never identified Reyes as Alejandra or Alejandro Posada, nor did Reyes ever identify himself with either of those names. Indeed, he identified himself as Benjamin Polanco. Tr. at 365. Nonetheless, when Agent Davis prepared the personal history form to lodge Reyes at the MCC, she listed Alejandro Posada as an alias. Tr. at 21. Curiously, she did not list Benjamin Polanco as an additional alias. See GX 2. On December 3 or 4, prior to obtaining the warrants, Agent Davis learned that Alejandra Posada had come to the hotel to retrieve Reyes' property. Tr. at 70. Agent Davis informed the AUSA in New York of this fact and he instructed her to tell the hotel employees not to return any property until a warrant was issued. Tr. at 312. Thus, there is no doubt that the agents and both AUSAs knew, prior to submitting the warrant applications, that a woman named Alejandra Posada existed and that she was a friend or associate of Reyes. Under those circumstances, the statements in paragraphs 27 and 830 30 of the affidavits were at best made with reckless disregard for the facts. b. The Misleading Information Both Agent Horne and the AUSA who originally drafted the warrant applications explained that the date of the Volvo purchase was simply not available, because Agent Horne's file was in New York, Agent Horne was in Florida, and the AUSA was not entirely familiar with all of the evidence accumulated in the investigation. Tr. at 210-11, 305. However, the allegation as presented in the final draft of the affidavit does leave the impression that the information is recent, if not current. As Agent Horne testified, although she could not recall the date at the time the affidavits were drafted, she knew the actual date at some time prior to December 1994. Tr. at 210. I conclude, under all the circumstances, that the omission was misleading. 3. The Hotel Room Search I have already found that the agents had no reasonable basis to conclude that they had been refused admittance in response to their knock and announcement at the hotel room door. Based on this finding, it is apparent that the agents "knowingly or recklessly" misled the issuing Magistrate by placing tainted evidence in the affidavits. At least two decisions from this circuit address situations in which law enforcement agents sought the benefit of the good faith exception where the fruits of illegal searches were used in affidavits in support of warrant applications. However, as described below, in neither of those cases did the courts find that the agents knowingly or recklessly misled the issuing Magistrate. In United States v. Thomas, 757 F.2d 1359 (2d Cir.), cert. denied, 474 U.S. 819, 106 S.Ct. 66, 88 L.Ed.2d 54 (1985), the defendant's apartment was searched pursuant to a warrant issued by a Magistrate who found probable cause based on an affidavit stating the results of a "dog sniff" outside the apartment. Id. at 1366. The Second Circuit held that the dog sniff violated the Fourth Amendment, and that the result of the sniff should therefore not have been included in the affidavit in support of the warrant application. Without the dog's alert, the court found that there was insufficient basis for issuing the warrant. Id. at 1367. However, the court then considered "whether the agent who conducted the search acted in good faith reliance on the search warrant," as Leon requires in order for the good faith exception to apply. Id. at 1368. Because the DEA agent brought his evidence to a neutral and detached Magistrate, who determined that probable cause existed and who issued a search warrant, there was "nothing more the officer could have or should have done under these circumstances to be sure his search would be legal." Id. at 1368. Thomas is easily distinguishable from the instant case. In Thomas, the agents who initiated the dog sniff were not unreasonable in thinking the sniff was constitutional. For one thing, the Supreme Court has held that dog sniffs at airports do not constitute a search. United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983). Moreover, the agents in Thomas used a dog outside the defendant's apartment, rather than inside it. Although the court ultimately decided that the sniff infringed the defendant's reasonable expectation of privacy in his dwelling, the agents nonetheless did not act in bad faith when they nosed around outside the apartment. By contrast, as I have described above, the agents in this case could not reasonably have believed that Reyes was in his hotel room when they entered the room. Consequently, their search of the hotel room was not in good faith, and they may not now claim good faith reliance on the fruits of that search in order to obtain search warrants. Another case from this circuit, United States v. Londono, 659 F.Supp. 758 (E.D.N.Y.1987), aff'd sub nom. United States v. Carmona, 858 F.2d 66 (2d Cir.1988), addressed the good faith exception in the context of a search warrant application containing information gained through an illegal search. In that case, officers arrested the defendant inside his home and legitimately conducted a security sweep to ensure that no one else was present. Id. at 760, 762. During that sweep, an officer noticed a block-shaped object in a gap above a door. The 831 officer flicked it with his finger, the object fell to the ground, and the officer determined that the object was a package of currency totaling $10,300. Id. at 760. In applying for a warrant to search the house, the officer included the finding of cash in his affidavit. Id. at 761. In light of a subsequent Supreme Court case, the court found that the seizure of the $10,300 could not be justified by the plain view doctrine.[8]Id. at 762. Without considering the cash, the court further found that the warrant application did not support probable cause. Id. at 763. However, the court went on to apply the good faith exception, determining that "the officers acted in an objectively reasonable manner" in seizing the cash, and that their actions were "probably legal under the law of this Circuit as it stood at the time." Id. at 764. Because I have found that the agents who entered and searched Reyes' hotel room did not act in an objectively reasonable manner, I decline to apply the good faith exception that would allow the agents to rely on search warrants that were issued in part based on the fruits of the hotel room search. See United States v. Vasey, 834 F.2d 782, 789 (9th Cir.1987) (declining to apply good faith exception where warrant application was based on items found during warrantless search of vehicle that could not be justified as a search incident to arrest). Accordingly, Reyes' motion to suppress the fruits of the searches based on Horne's affidavits must be granted.[9] III. Validity of the Fourth Warrant On December 7, 1994, the Magistrate issued a warrant permitting a second search of the ABC Mini-Storage locker. The application for this warrant incorporated the December 4 affidavits by reference and added two additional paragraphs. The first, paragraph 4, recited the results of the first search of the locker pursuant to the warrant issued on December 4. The second, paragraph 6, declared that the affiant was present in court when Reyes stated he had no assets. Thus, the affiant concluded that items viewed in the storage facility (but not seized), such as fancy clothes and shoes, were in fact evidence of Reyes' criminal activity. Given this Court's finding that the December 4 warrant failed to state probable cause and that the warrant was not obtained in good faith, the fruits of that search must be suppressed. Thus, the only new untainted allegation in the second affidavit is that Reyes stated in court that he had no assets. This allegation does not state sufficient probable cause to believe that the items in the storage facility rented by Alejandra Posada, viewed by the agents during the first search, are evidence of Reyes' alleged criminal activity. The evidence seized in this subsequent search of the storage facility must also be suppressed. IV. Numbers/Messages Obtained from the Pagers A. Facts Surrounding Seizure of Pagers and Accessing of Pagers' Memory At the time of Reyes' arrest, the agents seized from Reyes' wheelchair a bag containing (among other things) a telephone paging device (hereinafter "pager"). Tr. at 18, 95. This pager shall be referred to as Pager # 1. The search of the car in which Reyes arrived at the hotel on the night of his arrest yielded, among other things, another pager. Tr. at 144. This pager shall be referred to as Pager # 2. When Agents Murphy and Coad finished searching the car, Pager # 1 sounded (with a beeping noise). Tr. at 122, 135, 145. Murphy handed the pagers to Coad. Tr. at 122. Coad, who testified that both 832 pagers were on, pressed a button on each pager. Tr. at 149. Coad then read the numbers revealed on each pager, and Murphy wrote down the numbers. Tr. at 122, 145, 149. Eight numbers were retrieved from one pager, while six numbers were retrieved from the other pager. Affirmation of Diarmuid White, Attorney for Reyes, June 29, 1995 ("White Aff."), Ex. F.[10] The agents then returned the pagers to Salazar, and Salazar left. Tr. at 124, 146. On Sunday, December 4 at around 10:30 p.m., pursuant to a search warrant, two ATF agents (Horne and Dugan) searched a box of items in the basement storage department of the Miami Hilton Hotel. Tr. at 157, 166, 206, 218-19. This box contained items found in Reyes' hotel room on the night he was arrested. Tr. at 159. During that search, Agent Dugan found another pager (Pager # 3). Tr. at 159, 167. Agent Horne testified that she did not remember whether that pager was turned on when Dugan found it. Tr. at 219. Dugan testified that the pager was on, as evidenced by a series of lines across the video display. Tr. at 159, 167. After finding the pager, Dugan "put the side button in the vibrational mode" and attempted to retrieve messages from it. Tr. at 160, 167. There were no messages in the pager at that time. Tr. at 160, 168. Horne kept Pager # 3 in her hotel room overnight. Tr. at 219. The next morning, Dugan and two others met with Horne in Horne's hotel room to examine what they had found the night before. Tr. at 160-161. Dugan placed Pager # 3 on a coffee table. Tr. at 161. At around 9:30 a.m., the pager (still in vibrational mode) went off. Tr. at 161, 168. When it began vibrating, Dugan "recorded the telephone number that was indicated on the" pager. Tr. at 161, 219. In order to record the number, Dugan pressed an access button. Tr. at 161. Dugan continued to record messages that came across the pager over the next four days, while the pager was in his possession. Tr. at 161, 168. Dugan recorded approximately 97 messages from the pager during that time. Tr. at 169-70; see also White Aff., Ex. G.[11] B. How Pagers Work According to Agent Murphy, pagers usually have a black button. When the pager is turned on, pushing that button either reveals a signal that there are no pages or displays the last number. Pushing the button again reveals the next to last number, and so on. Tr. at 123, 345. Turning off the pager erases the pager's memory. Pagers have a limited storage capacity. Murphy testified that the storage capacity of Reyes' pagers was probably ten numbers. Tr. at 123-24. In addition to telephone numbers, the pagers were used to store numerical codes that could be interpreted as coded messages. Tr. at 150; Def. Mem. at 27. These numbers/messages could contain up to 16 digits. Def.Mem. at 27; see also White Aff., Ex. F. C. Reyes' Pagers Defendant Reyes moves for suppression of the numbers that the ATF agents obtained from the pagers they seized from Reyes at the time of (and two days after) his arrest. Reyes argues that both the Fourth Amendment and the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 et seq. compel the granting of his motion. As an initial matter, the seizure of two of the pagers was constitutional. Pager # 1 was seized incident to a valid arrest, and Pager # 2 was seized in the course of a vehicle search to which the car's driver had consented. By contrast, for the reasons set forth above, Pager # 3 was illegally seized. However, in order to provide an alternative holding, I shall assume, for this purpose only, that the seizure of Pager # 3 was proper. Even though the seizures were proper, "an officer's authority to possess a package is distinct from his authority to examine its contents." Walter v. United States, 447 U.S. 649, 654, 100 S.Ct. 2395, 2400, 65 L.Ed.2d 410 (1980). Moreover, the Court accepts Reyes' 833 assertion, unopposed by the Government, that he had a reasonable expectation of privacy in the contents of his pagers' memories. United States v. Chan, 830 F.Supp. 531, 535 (N.D.Cal.1993); United States v. Blas, 1990 WL 265179, No. 90-CR-162, at 21 (E.D.Wis.1990). 1. Fourth Amendment a. Pager # 1 As stated above, the seizure of Pager # 1 resulted from a search incident to Reyes' lawful arrest. Tr. at 12, 17. Under Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969), when making a lawful arrest, police may conduct a warrantless search of the area within the arrestee's immediate control. When searching a container that is seized incident to arrest, "the general requirement for a warrant prior to the search of a container does not apply." Chan, 830 F.Supp. at 536 (citing New York v. Belton, 453 U.S. 454, 460-61, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981)). However, in some instances, law enforcement agents may require a separate warrant to search a container seized incident to a lawful arrest. United States v. Chadwick, 433 U.S. 1, 12-13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977). In Chadwick, the defendant was arrested with a large footlocker by federal narcotics agents at a train station. While some agents took Chadwick to a federal building, other agents followed with the footlocker. From the moment of Chadwick's arrest, "the footlocker remained under the exclusive control of law enforcement officers at all times." Id. at 3-4, 97 S.Ct. at 2479. Ninety minutes after the arrest, and without a warrant, the agents opened the footlocker. Id. at 4, 97 S.Ct. at 2479. The Court ruled that under these circumstances, the search of the footlocker could not be considered incident to Chadwick's arrest and that the agents were therefore required to obtain a search warrant. Id. at 15, 97 S.Ct. at 2485. The Chan court summarized this holding by declaring that the Chadwick Court "adopted a narrow exception to the incident to arrest doctrine, holding that a warrantless search of seized property cannot be justified when the search is remote in time or place from the arrest." Chan, 830 F.Supp. at 535 (citing Chadwick, 433 U.S. at 13-15, 97 S.Ct. at 2484-85). In the instant case, Agent Coad accessed the memory of Pager # 1 soon after another agent seized the pager from the bag attached to Reyes' wheelchair. While no witness testified as to the precise time of Reyes' arrest and the time that Agent Coad accessed the memory of Pager # 1, given the events described as taking place during that period, it is hard to imagine that more than twenty minutes elapsed. The search of Pager # 1's memory was not at all remote in time or place from Reyes' arrest. Therefore the narrow Chadwick exception does not apply, and the search of the memory of Pager # 1 was a valid search incident to Reyes' arrest. The Fourth Amendment does not require the suppression of numbers retrieved from that pager.[12] b. Pager # 2 As stated above, Pager # 2 was lawfully seized in the course of a vehicle search to which the driver of the car consented. Agent Murphy testified that he asked Salazar if Salazar minded if he [Murphy] looked in the car. Tr. at 118. Agent Coad similarly testified that he and Murphy asked Salazar if they could look inside the car. Both Murphy and Coad testified that Salazar allowed them to search the car. Tr. at 118, 132, 144. Coad found Pager # 2 in the back seat of the car. Tr. at 121, 144. The issue presented here is whether the scope of Salazar's consent to search the car encompassed Coad's warrantless search of the memory of Pager # 2. The only case to address this issue in the context of pagers or similar devices is United States v. Galante, 1995 WL 507249, 94 CR 633 (S.D.N.Y. Aug. 25, 1995). In Galante, three agents were led to a car containing a driver and a passenger. One agent asked the occupants to get out of the car, asked the 834 driver if the car was his, and asked if the agents could search the car. The driver said that the car was his and consented to the search. The search yielded a cellular telephone and a pager. One of the agents extracted a telephone number from both the pager and the telephone.[13]Id. at 2. In arguing that the consent of the car owner to the search did not include consent to search the contents of the cellular telephone and pager, the defendant in Galante relied on Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). That case involved a police officer who stopped a car, told the driver (Jimeno) that he had reason to believe there were narcotics in the car, and asked Jimeno for permission to search the car. Jimeno, 500 U.S. at 249, 111 S.Ct. at 1802. Jimeno consented, and the officer's search yielded a kilogram of cocaine. Id. at 249-50, 111 S.Ct. at 1802-03. The Supreme Court held that where Jimeno granted permission to search without placing "any explicit limitation on the scope of the search," and where the officer had told Jimeno that he would be looking for narcotics, "it was objectively reasonable for the police to conclude that the general consent to search [Jimeno's] car included consent to search containers within that car which might bear drugs." Id. at 251, 111 S.Ct. at 1803. The Court thus allowed the cocaine to be admitted as evidence against Jimeno. The defendant in Galante cited Jimeno for the proposition that because there was no evidence that the agents told any of the occupants of the car what they were searching for, general consent to search did not include consent to search the memory of the cellular telephone and pager. The Galante court refused to interpret Jimeno in this manner. Galante, 1995 WL 507249, at 3. Rather, the Galante court looked to United States v. Snow, 44 F.3d 133 (2d Cir.1995), in which the Second Circuit interpreted Jimeno to mean "that a defendant's lack of knowledge of what the searching officer is searching for does not change the effect of a general consent." Id. (citing Snow, 44 F.3d at 135). The Snow court held that one who consents to a search of a car "should reasonably expect that readily-opened, closed containers discovered inside the car will be opened and examined." Snow, 44 F.3d at 135. The Galante court thus declined to suppress the number obtained from the search of the pager and the cellular telephone, citing the absence of any testimony that those items could not be readily "opened." Galante, 1995 WL 507249, at 3, 3 n. 4. Here, as in Galante, there is no evidence to suggest that either Coad or Murphy told Salazar what they were looking for. Therefore, according to Snow, Salazar's general consent must be taken to include consent to search the memory of Pager # 2. The Fourth Amendment does not require the suppression of numbers retrieved from that pager.[14] c. Pager # 3 The third pager was found among the items taken from Reyes' hotel room to the basement storage department of the Miami Hilton Hotel. Tr. at 167, 219. Agents Dugan and Horne testified that they found the pager late Sunday night, that the pager was on when they found it, that Horne kept the pager in her hotel room overnight, that the pager began to sound at 9:30 a.m. Monday, and that they retrieved approximately 97 numeric messages from the pager over the course of four days. Tr. at 168, 219, 277. Reyes testified that he left the third pager turned off. Tr. at 346. 835 The Government argues that exigent circumstances justified the agents' retrieval of numeric messages from Pager # 3. Gov't Mem. at 21-22 (citing United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990) (en banc), cert. denied, 498 U.S. 1119, 111 S.Ct. 1071, 112 L.Ed.2d 1177 (1991); United States v. Zabare, 871 F.2d 282, 289-92 (2d Cir.), cert. denied, 493 U.S. 856, 110 S.Ct. 161, 107 L.Ed.2d 119 (1989)). Specifically, the Government notes that pagers have a limited memory, and that Pager # 3 "would refuse to accept incoming messages if its storage capacity was full." Affirmation of Laurie Horne in Support of Government's Response to Defendants' Pretrial Motions, Aug. 1, 1995, ¶ 6. In pointing out that "confederates and co-conspirators of [drug] traffickers" frequently leave messages on the pagers of suspects following an arrest, the Government implicitly argues that the pager messages could provide critical evidence or investigatory leads. Id. In response, Reyes emphasizes his testimony that he left Pager # 3 turned off. Tr. at 346. Reyes then argues that because the agents turned on the pager, they themselves created any exigency. Therefore, Reyes argues, the Government cannot claim the benefit of the exception to the warrant requirement for exigent circumstances. The Eighth Circuit has held that [u]nder the exigent circumstances exception, the warrant requirement is suspended "when in the press of circumstances beyond a police officer's control lives are threatened, a suspect's escape looms, or evidence is about to be destroyed ... The police themselves, however, cannot create the exigency." United States v. Johnson, 12 F.3d 760, 764 (8th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2689, 129 L.Ed.2d 821 (1994) (citing United States v. Duchi, 906 F.2d 1278, 1282 (8th Cir.1990)). The Second Circuit initially took this view in United States v. Segura, 663 F.2d 411, 415 (2d Cir.1981), but later circumscribed its position, deciding that "when law enforcement agents act in an entirely lawful manner, they do not impermissibly create exigent circumstances." MacDonald, 916 F.2d at 772. The issue then becomes whether Dugan's act of turning on Pager # 3 (assuming, as Reyes argues, that Dugan did so) was a lawful act. The search warrant for the storage department at the Miami Hilton did not authorize the agents to access the memory of Reyes' pager. See White Aff., Ex. B. Because no exception to the warrant requirement was applicable under these circumstances (for example, the search was not incident to Reyes' arrest, nor was it a consent search), if Dugan turned the pager on, that act was unlawful. If Dugan was accurate in testifying that Pager # 3 was on when he found it at 10:30 p.m. Sunday, then the following would also be true: despite the fact that the pager had received no messages from 1 p.m. Friday afternoon (when Reyes left his hotel room; Tr. at 343)[15] until 9:30 a.m. Monday morning (Tr. at 219) a span of more than 68 hours starting on Monday morning, the pager received approximately 100 messages over the next four days (Tr. at 170). This is a rate of approximately 25 pages per day. Such a scenario is highly improbable. I therefore conclude that Dugan's testimony is not credible. Dugan must have turned on the pager on Monday morning, while handling the pager (see Tr. at 278) before he placed it on the coffee table in Horne's room.[16] Consequently, Dugan himself created 836 the exigency through the unlawful act of turning on Pager # 3. Dugan "creat[ed], or at least greatly increas[ed] the risk that evidence would be destroyed." Johnson, 12 F.3d at 765. Therefore, the agents cannot claim the benefit of the exigent circumstances exception, and the retrieval of numeric messages from Pager # 3 was unconstitutional.[17]See MacDonald, 916 F.2d at 772. Reyes' motion to suppress those numbers is granted. 2. Electronic Communications Privacy Act In addition to the Fourth Amendment challenges to the retrieval of numbers from Reyes' pagers, Reyes also asserts that such retrieval violated the Electronic Communications Privacy Act ("ECPA"). In 1986, the ECPA amended the Omnibus Crime Control and Safe Streets Act of 1968, commonly referred to as the Federal Wiretap Act.[18]Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 460 (5th Cir. 1994). Title I of the ECPA proscribes "`intentionally intercept[ing] ... any wire, oral, or electronic communication', unless the intercept is authorized by court order." Id. (citing 18 U.S.C. § 2511(1)(a)). By contrast, Title II of the ECPA "generally proscribes unauthorized access to stored wire or electronic communications." Steve Jackson, 36 F.3d at 462. The first question, is whether the conduct of the ATF agents amounted to intercepting electronic communications or to accessing stored electronic communications. Only one case has addressed precisely this distinction. In Steve Jackson, the Fifth Circuit analyzed the language of the ECPA as follows. In order to understand what it means to intercept an electronic communication, one must first examine the relevant statutory definitions. Interception means "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510(4). An electronic communication is "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system ... but does not include ... any wire or oral communication...."[19] 18 U.S.C. § 2510(12). Electronic storage means "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof...." 18 U.S.C. § 2510(17). Therefore, intercepting an electronic communication essentially means acquiring the transfer of data. Taken together, the definitions thus imply a requirement that the acquisition of the data be simultaneous with the original transmission of the data. As the Steve Jackson court stated, Congress' use of the word "transfer" in the definition of "electronic communication" and its omission in that definition of the phrase "any electronic storage of such communication" (part of the definition of "wire communication") reflects that Congress did not intend for "intercept" to apply to "electronic communications" when those communications are in "electronic storage." 36 F.3d at 461-62. To be sure, the Steve Jackson decision was issued in the context of the seizure of a computer on which were stored e-mail messages that had been sent to an electronic bulletin board but not yet read (retrieved) by the intended recipients. 33 F.3d at 460. However, the court's reasoning applies with equal force to the instant case, in that agents seized pagers and accessed the pagers' memories, which contained numeric messages not yet read (retrieved) by the intended recipient. Retrieving numbers from the memory of a pager, then, is more 837 accurately described as accessing electronic communications that are in electronic storage than intercepting electronic communications. The Sixth Circuit, which is the only court yet to address precisely whether pressing a button on a pager to access the pager's memory constitutes an interception within the meaning of the ECPA, has decided that such action is not an interception. United States v. Meriwether, 917 F.2d 955, 960 (6th Cir. 1990).[20] Consequently, in retrieving numbers from the pagers' memories, the agents in this case accessed stored electronic communications. The accessing of stored electronic communications is governed by Title II of the ECPA, 18 U.S.C. § 2701 et seq.[21]Steve Jackson, 36 F.3d at 462. "Generally, a search warrant, rather than a court order, is required to obtain access to the contents of a stored electronic communication." Id. at 462 n. 7; see also 18 U.S.C. § 2703(a). As a result, the same exceptions to the warrant requirement apply to this section as apply to any other warrantless search. Therefore, since this Court has already determined that the agents legally accessed the memories of Pagers # 1 and # 2 under exceptions to the warrant requirement, neither of those searches violated the ECPA. Because neither the Fourth Amendment nor the ECPA makes illegal the retrieval of numbers from the memories of Pager # 1 and Pager # 2, the numbers retrieved from those pagers are admissible against Reyes. However, because the agents were not justified under the Fourth Amendment in retrieving numbers from the memory of Pager # 3, that search did violate the ECPA. Exclusion of the evidence is not an available remedy for this violation of the ECPA, see 18 U.S.C. §§ 2515, 2708, but the evidence from Pager # 3 is being suppressed in any event 838 because the warrant authorizing the search of the hotel lost and found department was not supported by probable cause, and because the memory of Pager #3 was accessed in violation of the Fourth Amendment. The remedy for violation of Title II of the ECPA, set forth in 18 U.S.C. § 2707, lies in a civil action against the person or entity who violated the statute.[22] V. Reyes' Post-Arrest Statements Reyes concedes that on the evening of December 4, prior to his interrogation at the MCC, Agent Horne read the Miranda warnings to him, he signed an acknowledgment to this effect and he agreed to be questioned. Tr. at 354. Nonetheless, Reyes contends that while his waiver of rights and his statements were knowingly made, they were involuntary due to the circumstances of his confinement. By the time he was interrogated, Reyes had been in custody for approximately 43 hours without being arraigned. During that time, he received no medical attention, despite complaining to the prison authorities that he believed he had a urinary tract infection. Tr. at 351-352. Because of his physical condition (paraplegia), he was unable to shower or use the facilities. Tr. at 355. Reyes testified that he agreed to be questioned because he wanted to get out of the MCC as soon as possible and be sent to a place better suited to accommodate someone in his condition. Tr. at 355. On the other hand, Reyes does not claim that he informed Agent Horne and the New York investigators of his urinary tract infection. Tr. at 354-55, 366. In fact, Agent Horne testified that Reyes stated that he wasn't sick and didn't want to be in a hospital with sick people, in response to Agent Horne's statement that the New York prisons have hospitals. Tr. at 218. And while Reyes testified that he was "drained" (Tr. at 355), he does not claim that he was confused or unable to think clearly during his questioning by the agents. Tr. at 354-55, 366. Under the circumstances, the credible evidence does not establish that Reyes was so exhausted and confused that his statements were involuntary. Section 3501 of Title 18 requires a court to consider five factors in assessing voluntariness: (1) the time lapse between arrest and arraignment of the defendant making the statement; (2) whether the defendant knew the nature of the offense with which he was charged or of which he was suspected; (3) whether the defendant was advised or knew that he was not required to make any statement and that any statement could be used against him; (4) whether the defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether the defendant was without the assistance of counsel when questioned. Reyes concedes that factors 2, 3, and 4 must be decided in the Government's favor. With respect to factor 5, while Reyes did not have counsel at the interview, he was clearly advised of his right to counsel and chose not to request an attorney. The only factor requiring any discussion is the first factor, namely the length of time between arrest and arraignment. Here, the delay in arraignment was caused by the fact that the federal courts in Miami were closed for the weekend. Reyes was not taken to the MCC until 11:45 p.m. on Friday night. See Gov't Mem. at 28. This Circuit has held that a prearraignment delay due to the unavailability of a Magistrate Judge over a weekend may be reasonable. United States v. Rubio, 709 F.2d 146, 153-54 (2d Cir.1983) (defendant's statement held admissible although it was made nearly two days after weekend arrest where, except for quite reasonable periods of time actually spent in processing and routine questioning, the hours between arrest and arraignment were spent mainly in lodging at the MCC while awaiting arraignment). I find that in this instance the delay in bringing Reyes to a Magistrate was reasonable considering all of the circumstances. 839 The courts were closed for the weekend, the arraignment could not be conducted at the Magistrate's home and Reyes was a particularly difficult prisoner to transport given his physical disabilities. Because I do not believe the delay was unreasonable, I conclude that Reyes' statements were voluntary and should not be suppressed. VI. Reyes' Remaining Arguments A. Constitutionality of 21 U.S.C. § 848(b)(2)(A) Defendant Reyes challenges the validity of 21 U.S.C. § 848(b)(2)(A) on the ground that the statute is unconstitutionally vague. This statute must be read in conjunction with 21 U.S.C. § 841(b)(1)(B), which imposes a five-year minimum jail sentence for offenses involving five grams or more of cocaine base (that is, crack cocaine), while not imposing the same five-year minimum sentence for offenses involving powder cocaine unless the offense involves 500 grams or more. Section 848(b)(2)(A) takes the amounts designated in § 841(b)(1)(B) and imposes a mandatory life sentence if the violation "involved at least 300 times the quantity of a substance described in subsection 841(b)(1)(B)."[23] As the Government points out, every circuit court (including the Second Circuit) "that has considered a constitutional vagueness challenge to the distinction between `cocaine' and `cocaine base' has rejected that challenge." Gov't Mem. at 50. See United States v. Jackson, 968 F.2d 158, 161 (2d Cir.), cert. denied, 506 U.S. 1024, 113 S.Ct. 664, 121 L.Ed.2d 589 (1992); see also United States v. Jackson, 64 F.3d 1213, 1219 (8th Cir.1995); United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir.), cert. denied, 502 U.S. 895, 112 S.Ct. 264, 116 L.Ed.2d 217 (1991); United States v. Turner, 928 F.2d 956, 960 (10th Cir.), cert. denied, 502 U.S. 881, 112 S.Ct. 230, 116 L.Ed.2d 187 (1991); United States v. Avant, 907 F.2d 623, 625-27 (6th Cir.1990); United States v. Van Hawkins, 899 F.2d 852, 854 (9th Cir.1990); United States v. Barnes, 890 F.2d 545, 552-53 (1st Cir.1989), cert. denied, 494 U.S. 1019, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990); United States v. Williams, 876 F.2d 1521, 1525 (11th Cir. 1989); United States v. Brown, 859 F.2d 974, 975-77 (D.C.Cir.1988). This Court is bound by the voluminous precedent established by this Circuit and others, and rejects Reyes' challenge to the sentencing provisions that distinguish between crack cocaine and powder cocaine. B. The Indictment's References to the "Reyes Crew" Reyes seeks redaction of the term "Reyes Crew" from the indictment pursuant to Fed.R.Crim.P. 7(d), asserting that the term is surplusage and unduly prejudicial. It is well-settled in this Circuit that "[m]otions to strike surplusage from an indictment will be granted only where the challenged allegations are `not relevant to the crime charged and are inflammatory and prejudicial.'" United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir.1990) (quoting United States v. Napolitano, 552 F.Supp. 465, 480 (S.D.N.Y.1982)). Scarpa sets forth a two-pronged test that a defendant must meet to prevail in striking an allegation: (1) evidence of the challenged allegation must be inadmissible and irrelevant to the charge, and (2) the allegation must be prejudicial and inflammatory. Here, the references to the "Reyes Crew" are both prejudicial and inflammatory. If a RICO enterprise or RICO conspiracy were established at trial, Reyes would face an insurmountable task in convincing the jury that he was not a member of the enterprise or conspiracy bearing his name. Similarly, the challenged allegation is neither admissible nor relevant. In its Memorandum, the Government states that it intends to prove that Reyes was the organizer and undisputed leader of a criminal enterprise engaged in large-scale narcotics trafficking, the murder of perceived rivals and other acts of violence. Gov't Mem. at 31. However, the 840 Government appears to concede that the term "Reyes Crew" was not used by the members of the enterprise. Id. Thus, while the Government may prove that Reyes was an organizer and leader of the enterprise, the made-up term "Reyes Crew" is neither admissible nor relevant. C. Reyes' and Rodriguez' Request for a Wade Hearing Both Reyes and Rodriguez seek a Wade hearing with respect to certain identification procedures employed by the Government. The disclosure of information regarding pretrial identification procedures at this stage would be tantamount to the disclosure of a list of the Government's witnesses. The defendants are not entitled to such discovery at this stage. Prior to a witness' testimony, the Government must disclose whether the witness made a pretrial identification of any of the defendants and the circumstances under which the identification was made. The defendants may then request that the Court conduct an inquiry outside the presence of the jury as to whether such identification testimony should be suppressed. VII. Rodriguez' Request for Consolidation or Severance Rodriguez asks that this indictment be consolidated with the indictment in United States v. Garcia, 94 Cr. 1003 (LMM), 1996 WL 51197. Failing that, he asks that his trial be severed from that of his co-defendants. The consolidation motion must be denied. As disclosed by the Government in its Memorandum, the Garcia case charges a narcotics conspiracy and two firearms counts, but no murders. The Reyes case, by contrast, charges a narcotics conspiracy and a RICO enterprise responsible for seven murders. The Garcia case, involving 23 defendants, will require proof with respect to the day-to-day operation of the narcotics conspiracy in which all of the 23 defendants were involved. The Reyes case, involving three defendants, will require proof of the details of seven murders. Under the circumstances, these indictments should not be consolidated as it would create an extremely long and possibly confusing trial. By the same token, judicial economy requires that Rodriguez be tried together with his co-defendants. Rodriguez is charged with the commission of two murders in furtherance of the racketeering enterprise charged in Count One of the indictment. The Government intends to prove that Rodriguez was a trusted member of the enterprise. Much of the proof of the existence and operations of the enterprise will be relevant to Rodriguez. Severing his case would require a substantial duplication of effort. Thus, a severance is denied. See United States v. Werner, 620 F.2d 922, 929 (2d Cir.1980) (requirement of substantial prejudice to justify severance arises from policy underlying Rule 8 that prejudice to defendant is outweighed by gains in trial economy when requirements of rule are met). CONCLUSION In sum, all of Reyes' motions to suppress are granted with the exception of the motions to suppress the numbers retrieved from Pagers # 1 and # 2 and his post-arrest statements; those are denied. The remainder of Reyes' motions are denied, with the exception of his motion to strike the term "Reyes Crew" from the indictment, which is granted. Rodriguez' motion for consolidation or a severance is denied. SO ORDERED. NOTES [1] Defendant Francisco Medina is a fugitive. As a result, he has not made or joined in any motions. [2] Three warrants, issued on December 4, 1994, permitted searches of the Sharp Wizard computer seized from Reyes at the time of his arrest; the hotel's lost and found storage vault, where the contents of Reyes' room were moved by the hotel; and a unit of a mini-storage facility in Miami. The fourth warrant, issued several days later, authorized an additional search of the mini-storage facility. [3] The other points raised by Reyes merit only brief discussion. Reyes seeks to strike certain language in the Indictment as prejudicial surplusage. He also challenges 21 U.S.C. § 848(b)(2)(A) as being unconstitutionally vague. Finally, Reyes and Rodriguez both seek a Wade hearing with respect to certain identification procedures employed by the Government. See pp. 839-840, infra. [4] Courts have sustained officers who interpreted ambiguous noises from within the place to be searched as evidence that they were being refused entry. See, e.g., United States v. Allende, 486 F.2d 1351, 1353 (9th Cir.1973), cert. denied, 416 U.S. 958, 94 S.Ct. 1973, 40 L.Ed.2d 308 (1974) (officers heard scampering sounds); Masiello, 317 F.2d at 122 (officer heard rustling or other commotion inside the room). [5] In Section III, infra, I address the validity of the fourth warrant, which permitted a second search of the ABC Mini-Storage locker. [6] The affidavit in support of the warrant to search the computer indicated that it had been seized from a bag attached to Reyes' wheelchair at the time of his arrest and that drug traffickers can store drug-related information in such computers. The affidavit in support of the warrant to search the hotel lost and found alleged that Salazar and a person who identified herself as Alejandra Posada had unsuccessfully asked the hotel to release the property which had been in the room rented in Salazar's name. [7] I am mindful of the fact that the information about Soldier of Fortune and Hitman constituted just half a page in affidavits ranging from 15 to 17 pages. [8] In Arizona v. Hicks, 480 U.S. 321, 324-35, 107 S.Ct. 1149, 1152-58, 94 L.Ed.2d 347 (1987), the Court held that merely moving an object is itself a search and requires probable cause. Seizures cannot be justified under the plain view doctrine "if the item must be moved even slightly in order to discern its incriminatory nature." Londono, 659 F.Supp. at 762 (citing Hicks). [9] To be clear, I determine that the good faith exception is inapplicable only under the first circumstance enumerated in Leon: the affiants knowingly or recklessly misled the Magistrate. There is no evidence that the Magistrate abandoned his neutral role, that the affidavit was so lacking in indicia of probable cause as to render reliance upon it unreasonable, or that the warrant was facially invalid. [10] It is not clear from the exhibit which pager was retrieved from the car and which pager was retrieved from the bag attached to Reyes' wheelchair. [11] Reyes states (Def.Reply Mem. at 18) that 78 messages were retrieved from Pager # 3. However, the evidence in the record suggests that closer to 100 messages were retrieved. [12] Because the Court holds that the accessing of Pager # 1's memory was a valid search incident to arrest, the Court need not decide whether exigent circumstances justified Coad's retrieval of the numbers from Pager # 1 under the Fourth Amendment. [13] The agent extracted the number from the cellular telephone by pressing a recall key. The opinion does not specify whether the agent obtained the number from the pager by observing it already on the display screen or by pressing a button to retrieve the number. The opinion refers once to the number as being in the pager, thus implying that the number was not already observable on the pager's display screen; once to the number as being on the pager; and once to "the extraction of information from [the pager]." Id. at 2-3. Whether or not the agent had to press a button in order to read the number from the pager, the pressing of a button to access the memory of Pager # 2 in Reyes' case is analogous to the pressing of the recall key on the cellular telephone in Galante. [14] As with Pager # 1, the Court need not reach the issue of exigent circumstances. The accessing of Pager # 2's memory was constitutional as part of the consent search of the Town Car. [15] No witness testified as to the means by which the contents of Reyes' hotel room were transported from the room to the hotel storage department. Nonetheless, the Government bears the burden of proving the existence of exigent circumstances, Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984), and I find it more probable than not that no hotel personnel adjusted the pager in the course of transporting the contents of Reyes' hotel room. Therefore, I conclude that if Dugan's testimony that the pager was already on when he found it Sunday evening is to be credited, then I must also find that the pager was on when Reyes left his room on Friday afternoon. [16] Reyes testified that Pager # 3 was a duplicate (i.e. had the same phone number) of one of the pagers seized at the time of his arrest. Tr. at 344. I find this implausible, given that Reyes brought both (ostensibly duplicate) pagers with him to Miami, rather than leaving one in New York. Tr. at 344-45. In any event, a finding that the pagers were duplicates is unnecessary to my finding that Pager # 3 was turned on when Dugan and Horne found it. [17] The Court further observes that at no point during the four days that the agents retrieved numbers from Pager # 3 did the agents attempt to obtain a warrant authorizing them to access the pager's memory. [18] Specifically, the ECPA amended Title III of the Federal Wiretap Act. Court orders described by and issued under the Federal Wiretap Act are known as Title III warrants. [19] Unlike the definition of wire communications, electronic communications do not include "any electronic storage of such communication[s]." See 18 U.S.C. § 2510(1) (definition of wire communication). [20] Reyes correctly points out what may be perceived as flaws in the reasoning of the Meriwether court. For one thing, the court enumerates several rationales for deciding that pressing a pager button is not an interception under the ECPA, but does not specify which rationale it adopts. The reasons the court gives include that: (i) retrieval of a number from a pager's memory is not an interception because the transmission of the number to the pager had ceased; (ii) the agent who pressed the pager button became a party to the communication, and there can be no interception when a party to a communication records that communication; and (iii) the agent did not acquire the contents of the communication by a proscribed method, that is, by electronic, mechanical or other device as proscribed by the definition of "intercept" (simply pressing the digital display button and then visually observing the telephone numbers, the court stated, did not constitute the use of an electronic, mechanical or other device). Meriwether, 917 F.2d at 960. With regard to the third rationale, this Court agrees with Reyes that in fact pressing a button on the pager does constitute the use of an electronic or mechanical device. However, the Court is constrained by the use of the word "transfer" in the definition of "electronic communication," and is persuaded by the reasoning of the Steve Jackson court on this issue. Another flaw that Reyes observes is that the Meriwether court began its opinion by stating that a "digital display pager, by its very nature, is nothing more than a contemporary receptacle for telephone numbers." 917 F.2d at 958. This Court explicitly disagrees with this proposition (see page 832, supra); numerical codes may be transmitted to a pager that impart messages to the recipient. Nonetheless, this Court does not think that the above-described flaws render unsound the basic holding of Meriwether that pressing a button on a pager to access its memory is not an "interception" within the meaning of the ECPA. Both Reyes and the Government also cite Brown v. Waddell, 50 F.3d 285 (4th Cir.1995). The facts of that case differ from those at issue here. In Brown, investigators used a duplicate (clone) digital display pager, which allowed them "to receive any numeric messages sent to [the suspect's] pagers at the same time that they were received and displayed on [the suspect's] pagers." 50 F.3d at 287, 294. The Brown court held that such a technique "cannot be considered the use of a `pen register' within the meaning of the ECPA," and consequently decided that the use of clone pagers is an interception under the ECPA. Id. While not directly applicable to the instant case, the Brown holding reinforces this Court's conclusion that for purposes of the ECPA, an "interception" must acquire data simultaneously with the transmission of the data. [21] Section 2701 of the ECPA states that Except as provided in subsection (c) of this section whoever (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished.... 18 U.S.C. § 2701(a). [22] The statute authorizes an award of "the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case ... less than the sum of $1,000." 18 U.S.C. § 2707(c); see also Steve Jackson, 36 F.3d at 460 n. 5. If he wishes to sue, Reyes must commence an action no "later than two years after the date upon which [he] first discovered or had a reasonable opportunity to discover the violation." 18 U.S.C. § 2707(e). [23] The indictment of Reyes charges him with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848, and alleges that the underlying violation "involved in excess of 300 times the quantity of a substance described in Section 841(b)(1)(B) of Title 21, United States Code, to wit, in excess of 1500 grams of mixtures and substances containing detectable amounts of cocaine base." Second Superseding Indictment, 1/25/95, ¶ 57. Therefore, if convicted of this charge, Reyes would face a mandatory sentence of life imprisonment under § 848(b)(2)(A).	{ "pile_set_name": "FreeLaw" }
725 S.E.2d 674 (2012) STATE v. McCORKLE. No. COA11-916. Court of Appeals of North Carolina. Filed May 15, 2012. Case Reported Without Published Opinion. No Error.	{ "pile_set_name": "FreeLaw" }
484 F.2d 509 UNITED STATES of America, Plaintiff-Appellant,v.Donald A. CYZEWSKI, a/k/a J. Scalzi, and James PeterHerbert, a/k/a J. Daly, Defendants-Appellees. No. 72-3368. United States Court of Appeals,Fifth Circuit. Aug. 29, 1973. John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellant. Thomas E. Henderson, Tampa, Fla., court-appointed, for Herbert. W. DeHart Ayala, Jr., Tampa, Fla., for Cyzewski. Before THORNBERRY, AINSWORTH and RONEY, Circuit Judges. RONEY, Circuit Judge: 1 In this case, an airport security search goes one step further than any to which this Court has previously given constitutional approbation. We are asked to discern any constitutional defects in the removal and warrantless search of checked luggage as part of the investigation of potential hijackers. The Government appeals, under the authority of 18 U.S.C.A. Sec. 3731, from the District Court's suppression as evidence of five pounds of marijuana discovered by the search. We reverse. 2 On October 5, 1971, at Tampa International Airport, James P. Herbert and Donald A. Cyzewski, traveling on a group ticket under the names of J. Daly and J. Scalzi, respectively, sought to board Eastern Air Lines Flight No. 114 to Atlanta. At the boarding area, ticket attendants pointed them out to deputy United States marshals as potential hijackers, or "selectees," according to characteristics described in the confidential Federal Aviation Agency's Behavior Pattern Profile. 3 Deputies Charles Johnston and John Hardman accosted the defendants and requested them to furnish identification. The airline tickets with the false names were presented, and the defendants explained that all their identification papers were inside their luggage, which had been checked. To confirm the identification, the deputies gave the baggage checks to an airlines' employee with instructions to retrieve the luggage from the plane and then escorted the defendants to the marshal's office near the boarding area. 4 As the luggage was brought to the office, both Herbert and Cyzewski removed from their pockets and presented to the marshals identification with their real names. The defendants made no explanation regarding the false names on the tickets. Upon requests, they refused to open their luggage for inspection, but did agree to be subjected to the magnetometer test for metal objects. 5 The magnetometer indicated, when Herbert stepped through it, that he had no metal on his person. Deputy Johnston next requested Herbert to pass through the device with his bag, a small, plaid, zippered suitcase. This time the magnetometer detected metal. 6 Deputy Johnston placed the bag on a desk, explained the results of the magnetometer test to Herbert, and requested to see the metal object. At first refusing to open the bag, Herbert stated that the only metal objects in it were buckles on a pair of shoes and volunteered to be subjected to the magnetometer test again if he could remove the shoes from the suitcase. Without receiving a reply from the marshals, Herbert unzippered one side of the bag and placed his hand inside and out of view. At that point, Deputy Hardman, exclaiming, "I'll take over from here," grabbed the bag. 7 Deputy Hardman opened the suitcase, began to search it, and found an aerosol can. He then removed a five-pound bag and asked Herbert about its contents. It was laundry, replied the defendant. Unconvinced, the deputy opened the bag and discovered five pounds of marijuana. 8 The defendants were immediately arrested and transported to jail. The motion to suppress was granted after the defendants were charged with possession with intent to distribute marijuana, in violation of 21 U.S.C.A. Sec. 844. 9 This Court's task is to determine any constitutional infirmity in the search of Herbert's luggage. In the context of the exigent circumstances of this case and the plight of American aviation, we deem the search to have been reasonable. 10 Airplane hijacking, the unlawful seizure and diversion of aircraft to unscheduled destinations, is a contemporary phenomenon with potentially catastrophic consequences.1 The high incidence of air piracy-jeopardizing passengers' lives, threatening commercial airlines' personnel and property, wreaking substantial economic loss upon both, and inhibiting citizens' exercise of the constitutional right to travel2-has demonstrated civil aviation's urgent need for security measures. 11 In response to this ubiquitous hijacking menace, the Federal Aviation Agency has established an elaborate pre-flight passenger surveillance system. With deterrence as their fundamental objective, a series of obstacles has been posed for potential hijackers: an identifying behavioral profile, an electronic examination, interrogation, and a physical search. Although all passengers today are subjected to the magnetometer and search of hand luggage, there seems to have been no mandatory procedure for screening passengers at the time of the subject incident. Generally, airlines' personnel would designate an individual as a "selectee" on the basis of the profile and would request identification. If there were any confusion regarding the selectee's identity, he would be interrogated and subjected to the magnetometer test by the airline's officer or an air marshal. If metallic objects were detected on his person, he probably would be frisked for weapons. 12 Recently, our Court in United States v. Moreno, 475 F.2d 44, 45 (5th Cir. 1973), performed the "difficult and sensitive task of balancing the individual rights protected by the fourth amendment against the overwhelming public interest in effective protection from the threat posed by air piracy" and sustained a search which revealed heroin, rather than weapons. We held that, where Moreno appeared evasive and hesitant and lied about his destination when confronted by police, security officials had a legitimate interest in making a conclusive determination regarding the subject's conduct and presence at the airport. Expressing the belief that the sheer urgency of the current air piracy problem alone is insufficient justification for a warrantless airport search, we recognized, nevertheless, that reasonableness is the ultimate standard to guide the constitutional propriety of the warrantless airport search. 13 Two other airport security searches have subsequently been considered by this Court. In United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973), we analogized the search of persons presenting themselves for boarding an air carrier to a border search and held that such searches may be based on mere or unsupported suspicion. Because Skipwith met the FAA anti-skyjack profile and stated he had no identification, a boarding agent detained him. The federal marshal discovered that the name on the defendant's ticket was false, brought him into his office, and-suspecting that a bulge in the suspect's pocket was a gun- ordered him to empty his pockets, revealing a plastic bag of cocaine. The Court concluded that the marshal 14 was justified in undertaking a search with sufficient scope to reveal any object or instrumentality that Skipwith could reasonably have used to effect an act of air piracy. 15 Skipwith, supra, 482 F.2d at 1277. Thus, the Fourth Amendment does not require suppression of narcotics found when the airline ticketholder is searched for weapons on the basis of mere suspicion by a federal marshal at the boarding gate. 16 The rationale of Moreno was the basis of this Court's decision in United States v. Legato, 480 F.2d 408 (5th Cir. 1973). There, the FBI had received an anonymous tip, Legato's conduct and hand baggage matched the information, and he and his companion departed from the terminal building to the airport parking lot when it was announced that their flight had been delayed because of a bomb threat. Approached by security officers, Legato, who was using an assumed name, denied both ever possessing the subject bag and being acquainted with his companion, who was carrying the bag and who consented to the search in the parking lot. We held that the tip and deceit provided a sufficient factual basis for the federal agent's fear of a hijack. 17 Although some searches in the vicinity of air terminals, thereby generally regarded as "airport searches," have been found unlawful, see, e. g., United States v. Soriano, 482 F.2d 469 (5th Cir. 1973); United States v. Garay and Torres, 477 F.2d 1306 (5th Cir. 1973); and Gold v. United States, 378 F.2d 588 (9th Cir. 1967), these are unrelated to the security problem. The courts have consistently held airport security measures constitutionally justified as a limited and relatively insignificant intrusion of privacy balanced against the need to protect aircraft and its passengers. United States v. Bell, 464 F.2d 667 (2d Cir. 1972); United States v. Slocum, 464 F.2d 1180 (3rd Cir. 1972); United States v. Epperson, 454 F.2d 769 (4th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972). 18 In Bell, the magnetometer's use was found to be constitutionally sound.3 Defendant Bell matched the behavioral profile, activated the magnetometer, and identified himself for the federal marshal at the airport as having recently been released from prison on bail. The marshal searched him, requested that he remove a hard object which proved to be a brown paper sack, and found heroin therein. Defendant's motion to suppress the evidence as the product of an unlawful search was denied. 19 Although expressing some reservations had the search been based solely on the magnetometer test since that device is sensitive to common items carried by a large proportion of airlines passengers, the District Court approved the use of the magnetometer as "only one of a series of screening procedures; a procedure that serves as much as a deterrent to air piracy as it does a detector." United States v. Bell, 335 F.Supp. 797, 802 (E.D.N.Y.1971). The Second Circuit, noting the magnitude of the crime sought to be prevented and the time limitations which precluded the warrant procedure, affirmed the constitutionality of the magnetometer test as a reasonable precaution. 20 Slocum rests upon the same rationale. There, the defendant met the profile, activated the magnetometer, and was unable to produce identification. When a frisk disclosed nothing which would have activated the magnetometer, the marshal searched defendant's hand luggage and found a sock containing cocaine. Upholding Slocum's conviction for possession of the narcotics, the Third Circuit found the search to be reasonable in the light of the defendant's lack of identification and failure to explain the activation of the magnetometer. 21 In Epperson, the defendant was not a "selectee," but triggered the magnetometer through which all passengers on his flight were required to walk, and a marshal's search of his person revealed a pistol. The Fourth Circuit held that, once the device detected metal, the frisk was lawful because of the marshal's reasonable fear that other passengers might be endangered: 22 Since the use of the magnetometer was justified at its inception, and since the subsequent physical frisk was justified by the information developed by the magnetometer, and since the search was limited in scope to the circumstances which justified the interference in the first place, we hold the search and seizure not unreasonable under the Fourth Amendment. 23 454 F.2d at 772. 24 Even holdings apparently contrary to this line of authority were decided on grounds not affecting our decision. United States v. Ruiz-Estrella, 481 F.2d 723 (2d Cir. 1973), held illegal a marshal's search of the bag of a passenger who fit the profile, but who had done nothing suspicious and had not been subjected to the magnetometer test. The ground for the decision was not the unconstitutionality of the security procedures, but the failure of the marshal to subject the bag to the magnetometer test before the search. If the bag had not activated the magnetometer, reasoned the Court, no search would be necessary to satisfy the demands of the airport security measures. The search in United States v. Lopez, 328 F.Supp. 1077 (E.D.N.Y.1971), was found violative of the Fourth Amendment because the defendant was possibly singled out for search by an airline official's application of an unauthorized, revised profile. Yet the Court approved use of the behavioral profile-magnetometer-interrogation-frisk procedure. In United States v. Kroll, 351 F.Supp. 158 (W.D. Mo.1973), the Court held that-although the airport security agents acted legally in searching the carry-on luggage of a passenger who fit the hijacker profile, activated the magnetometer and, during inspection, failed to open the file section of his briefcase-the agents exceeded the bounds of reasonableness by opening a small envelope found in the file section. The ten grams of "speed" found in the 10" x 4" envelope, consequently, were inadmissible at the passenger's trial. Even these decisions, therefore, though holding the particular searches illegal, sustain airport security procedures. 25 Airport security measures are reasonable, therefore, insofar as they permit government agents to determine whether a suspect presents an immediate danger to air commerce. The search may continue until the law enforcement official satisfies himself that no harm would come from the passenger's boarding the plane. To be effective, the security efforts must focus not on a single aircraft or tangible item, but on the suspect himself, his demeanor and possessions during the entire course of his airport presence.4 The marshal's duty is to make a trained judgment, as expeditiously as possible, regarding the threat posed by an individual identified by the behavioral profile. Only when it becomes unreasonable for the suspect's innocence to be further questioned does the security search itself become unreasonable. 26 The question is whether the retrieval of checked baggage and the warrantless search of it over protest is consistent with this principle. 27 We sustain the search because at no point in the authorized security procedure did defendants' innocence become clear to the marshals. To the contrary, Herbert and Cyzewski suspended themselves in a quagmire of suspicion. Both were selectees subject to close scrutiny and interrogation. At first, they offered no identification and subsequently revealed that they had lied about both their identities and their nonpossession of identification. This reversal, coupled with initial refusals to permit inspection of the bags, focused attention on the luggage. When the magnetometer registered positive, the marshal reasonably surmised that the selectee's bag contained a metallic object, possibly a weapon. Having already jeopardized his credibility, Herbert could hardly have allayed the marshal's suspicion by stating that the device was activated by shoe buckles. Herbert opened the luggage only enough to reach his hand inside. The marshals could not determine what he might have removed. Apprehensive, Deputy Hardman reached for the suitcase unzipped it, and found a bag, which Herbert claimed to contain laundry. 28 It may be argued that, had the marshals subjected defendants to the magnetometer test-presumably with negative results-before ordering the removal of the luggage, there would have been no reason for the removal because, notwithstanding the confusion regarding identities, no metallic weapon would have been accessible to defendants. This theory, however, misreads the prophylactic purpose of the security system: not simply to single out those individuals who carry aboard instruments dangerous to the aircraft, personnel and passengers, but to thwart potential hijackings by deterrence. Requiring positive identification of individuals who match the hijacker behavioral profile is an instrumental part of the deterrence system; and the airborne passenger's inability to fetch any weapon that might be concealed in his checked baggage does not gainsay the deterrent effect of removing luggage which allegedly contains the only means of identifying selectees. 29 Central to the District Court's holding was its conviction that the removal of the luggage was "not within the scope of the deputy's ordinary instructions under the anti-hijacking program" and was "without authority and in contradiction of the deputies' instructions." Deputy Johnston testified that his instructions sanctioned the demand of identification from and a magnetometer test of any persons fitting the profile. The limits of a constitutional search are not necessarily defined by the perimeter of a particular security system. The marshals' specified authority should not bar further investigation if, in the exercise of their professional judgment, their reasonable suspicions had not been allayed by the routine security check. 30 To test a law enforcement official's investigation in every context by the limits of his instructions seems to us an inappropriate, mechanistic approach. The District Court's reliance on Lopez, supra, to this end is misplaced. In Lopez, the deviation from the standard security procedure was in the application of the profile which triggered the investigation in the first place. There was, consequently, no objective basis for Lopez' designation as a selectee because the approved profile had not been used. Thus, the Lopez search was illegal not merely because of a deviation in procedure, but because the interference was not justified in the first place. Here, the designation of Herbert and Cyzewski as selectees, the legal impetus for the investigation, is not challenged. 31 Other alleged deviations from the prescribed security procedures have been dismissed as insubstantial. In Bell, supra, it was charged that the magetometer had been improperly reset to an excessively high sensitivity level, and in Slocum, supra, the defendant had not been required to pass through the magnetometer without his hand luggage before the frisk was conducted. Neither means of accomplishing the approved security tests was found to affect their validity. The same result is appropriate to the removal of a selectee's checked luggage when the identification papers which may clear him for passage are supposed to be found therein. As in Slocum, the marshals were simply seeking, within the ambit, if not the letter, of the anti-hijacking system, explanations for the apparent deception.5 32 A separate foundation for the District Court's holding was its decision that the defendants' conduct suggested not violent designs against others, but only efforts to evade detection of the contraband. This conclusion, however, results from viewing the marshals' actions from the defendants' subjective, contemporaneous position and from the retrospective knowledge that they were unarmed. The facts must be viewed from the standpoint of the marshals, in light of their information at the time. See Moreno, supra 475 F.2d at 50. In Ruiz-Estrella, supra, for example, where the defendant fit the profile, but provided no reason for suspicion and was not subjected to the magnetometer test, the Court viewed the facts through the eyes of the marshal in finding that the rationale of Terry v. State, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), would not support the search. 33 The District Court further thought it unreasonable for the marshal to open the brown bag of marijuana without first ascertaining whether it contained a hard substance. Such a test would serve little purpose in airport security searches because explosives can be soft as well as hard. The "pat down" is not an inflexible preliminary requirement for a search. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry, supra. Similar to the search of the rolled sock in Slocum, supra, the examination of this bag was justified by the claim of lies and suspicious circumstances. There was even more reason here than in Moreno, supra, given the defendants' designation as selectees and their obvious duplicity, for the "[a]irport security officials . . . [to make] a conclusive determination with respect to . . . [the defendants'] conduct and presence in the airport." 475 F.2d at 52. 34 Only after every line of inquiry had failed to eliminate the probability of danger did the marshals examine the contents of Herbert's suitcase. To underscore the marshals' observance of defendants' rights, it must be noted that- after learning the nature of the concealed goods in Herbert's luggage and the true reason for the defendants' conduct, which apparently established their innocence as hijackers-the marshals left the two remaining bags untouched for warrant procedures. 35 Having concluded that this evidence was improperly suppressed, we reverse. 36 Reversed. THORNBERRY, Circuit Judge (dissenting): 37 The exigencies of skyjacking and bombing, however real and dire, should not leave an airport and its environs an enclave where the Fourth Amendment has taken its leave. It is passing strange that most of these airport searches find narcotics and not bombs, which might cause us to pause in our rush toward malleating the Fourth Amendment in order to keep the bombs from exploding. 38 United States v. Legato, 5th Cir. 1973, 480 F.2d 408, 414 (Judge Goldberg, concurring). The majority recognize that the airport security search at issue in this case goes a step further than any we have previously approved. Specifically, that step is the retrieval of checked luggage well beyond the reach of the suspected skyjacker for the purpose of searching it. With deference, I cannot agree that the danger of air piracy warrants or authorizes upholding this search under Fourth Amendment standards. 39 Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 has served as the foundation of the airport security search cases. Under Terry a policy officer with facts giving rise to a reasonable suspicion of criminal activity, but not supplying probable cause to arrest, may make a forcible "stop" for investigative purposes. See also Adams v. Williams, 1972, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612. Further, the officer may make a pat-down search of the suspect's outer clothing if he reasonably apprehends that the suspect may be armed and dangerous to the officer or others. Though probable cause is not required to legitimate the investigative stop or the protective search, the Court in Terry stressed that the policeman's suspicion of criminal activity and apprehension of danger must arise from "specific and articulable facts." 392 U.S. at 21, 88 S.Ct. at 1880. Additionally, the Court emphasized that, "The scope of the search must be 'strictly tied to and justified by"' its protective purpose. 392 U.S. at 18, 88 S.Ct. at 1878. 40 In United States v. Moreno, 5th Cir. 1973, 475 F.2d 44 our court applied the Terry holding to an airport search and extended it slightly. We concluded there that the facts available to the law enforcement officers-including unexplained comings and goings at the airport, a false explanation to investigating officers, visible nervousness, changing lines at the ticket counter and later changing airlines, and a bulge in the suspect's pocket-reasonably warranted the suspicion that he was armed and dangerous and was engaged in criminal activity, even though the facts did not supply probable cause. Further, we held that the great danger which each individual passenger represents to fellow passengers and flight crews as a potential skyjacker made reasonable under the Fourth Amendment a more intrusive search in the airport setting than Terry would authorize for on-the-street encounters. We said: 41 Due to the gravity of the air piracy problem, we think that the airport . . . is a critical zone in which special considerations apply . . . In applying Terry were we to hold that airport officials must always confine themselves to a "pat down" search where there is a proper basis for an air piracy investigation, we think that such a per se restriction in the final analysis would be self-defeating. 42 United States v. Moreno, supra at 51. The intrusion which was upheld was the removal of the suspect's coat and an inspection of the contents of his pockets- somewhat more than a pat-down search. Again, the rationale for this extension was the great danger which skyjacking represents. 43 The Moreno principles were applied straightforwardly in United States v. Legato, 5th Cir. 1973, 480 F.2d 408 to uphold the search of a package carried by a suspect in an airport. Similarly, United States v. Slocum, 3d Cir. 1972, 464 F.2d 1180 upheld an extensive search of carry-on luggage with less than probable cause.1 44 Prior to the majority's decision today, no case has gone so far as to authorize the seizure and search of a passenger's checked luggage-I emphasize that we are not dealing here with a search of carry-on luggage-on the basis of suspicious conduct, i. e., less than probable cause. Terry, Moreno, Legato, and Slocum all dealt with a search of the suspect's person, or of his clothing or packages in his immediate possession. None of them authorized retrieval and search of a distant piece of luggage or other distant property on the basis of facts creating only suspicion of wrongdoing. Even a probable-cause arrest of a suspect would not legitimate a search of his checked luggage as incident to the arrest. Chimel v. California, 1969, 395 U. S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. Nothing less than probable cause to believe that the checked bag contained something subject to seizure-contraband or fruits, instrumentality, or evidence of a crime-would authorize a valid search, even if a warrant were not required under the circumstances. See Warden v. Hayden, 1967, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. Thus, in extending Terry to sustain a search of distant property in this case the majority go significantly beyond existing precedent. 45 Just as Moreno and Legato relied on the danger factor to uphold more intrusive searches in an airport setting than would be allowed outside an airport, contemplation of the "ubiquitous hijacking menace" and the "potentially catastrophic consequences of hijacking" has led the majority to approve the checked luggage search in this case. The day is past for questioning the soundness of the Moreno and Legato holdings, but we are not bound to, and should not, apply and extend their rationale uncritically to approve every search sought to be justified in the name of the skyjacking menace. Without minimizing the urgency of the air piracy problem, we must recognize limits to the extent of intrusion it can legitimate. 46 There can be no doubt that traditional Fourth Amendment principles and values are altered and ultimately inverted as we increase our reliance on the danger factor and the need for "security" to justify greater and greater intrusions. Traditionally, privacy has been regarded as the norm, and special justification has been required to permit a search. Probable cause is the traditional mechanism for balancing the individual interest in privacy against the public interest in detecting and preventing crime, even dangerous crime. Terry modified the equation only slightly by permitting a limited pat-down search of a suspect's person on reasonable suspicion of criminal activity plus reasonable apprehension of danger. As we accord greater weight and importance to the danger factor, whether as justification for the initiation of a search, e. g., United States v. Skipworth, supra, or for enlarging its permissible scope, e. g., United States v. Moreno, supra, search becomes more the norm and privacy more the exception. This drastic inversion of values is apparent in the majority opinion in this case. 47 Airport security measures are reasonable, therefore, insofar as they permit government agents to determine whether a suspect presents an immediate danger to air commerce. The search may continue until the law enforcement official satisfies himself that no harm would come from the passenger's boarding the plane. . . Only when it becomes unreasonable for the suspect's innocence to be further questioned does the security search itself become unreasonable. 48 Reasonable suspicion, a vague and minimal standard at best, permits the initiation of the investigation. The individual, "the suspect," must then submit to an unlimited search until the search demonstrates or he can otherwise convince the official that further intrusion is not warranted. We should be slow to increase our emphasis on the danger factor in Fourth Amendment analysis in the name of reasonableness, when the result will be to invert the fundamental values the Amendment represents. 49 In this case, I must conclude that the majority improperly allow a "protective" search to extend beyond the scope reasonably necessary to neutralize the threat of harm from appellants, as suspected skyjackers, to police officials and others. The scope of the search must be strictly tied to and justified by the circumstances which give rise to its initiation. In Terry the search was limited to a pat-down search of the suspect because weapons on the person of suspects represent a high risk to police and others. The Court observed: 50 American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives. 51 Terry v. Ohio, supra, 392 U.S. at 23-24, 88 S.Ct. at 1881. Elaborate, technically complex weapons not located on the suspect's person may be imagined which would also endanger police, but the search was limited to the suspect's person, the area which according to experience involves a high risk. To use the Terry-Moreno rationale to approve a checked luggage search we should be able to declare that would-be skyjackers commonly do, or at least reasonably could, use weapons or devices in checked luggage to commit air piracy. But the primary danger in the airport setting seems to be that the skyjacker will carry some weapon on board the aircraft with him. The screening procedues prescribed by the Federal Aviation Administration are designed to thwart the carry-on threat and do not provide for searching or magnetometer testing of checked luggage. See United States v. Slocum, supra. This seems to indicate that the FAA does not consider checked luggage to present a significant skyjacking danger. The record does not show that skyjackers commonly use devices in checked luggage, and I do not believe we may properly take judicial notice of the danger presented by any such hypothetical modus operandi. Unless the nexus between the checked luggage and the danger of air piracy is established, the "protective search" rationale cannot properly be used to uphold a checked luggage search. Being unpersuaded that checked luggage does represent a substantial skyjacking threat, I think the search went beyond its legitimate "protective" scope. 52 There is a second reason why the search in this case should not be upheld. Even if law enforcement officers could properly seize the checked bag or remove it from the aircraft for protective reasons, they had no authority to search it without a warrant. We have recently held in United States v. Soriano, 5th Cir. 1973, 482 F.2d 469 that police officers with probable cause to believe that a suitcase contained contraband were justified by exigent circumstances in seizing it without a warrant, but that they were obligated to secure a warrant before inspecting its contents. See also United States v. Garay, 5th Cir. 1973, 477 F.2d 1306. Yet the majority holds that the law enforcement officials in this case, who had only suspicion, and not probable cause to believe the bag contained any item subject to seizure, could seize and search the bag without a warrant. Surely, if a warrant is required for a probable cause search, no less can be required for a "reasonable suspicion" search. To decide this case consistently with Soriano and Garay we should reject the warrantless search of the checked bag. 53 I would affirm the ruling of the district court suppressing the marijuana found in the bag. 1 See Abramovsky, "The Constitutionality of the Anti-Hijacking Security System," 22 Buff.L.Rev. 123 (1972); Note, "Airport Security Searches and the Fourth Amendment," 71 Colum.L.Rev. 1039 (1971); McGinley and Downs, "Airport Searches and Seizures," 41 Ford.L.Rev. 293 (1972) 2 The right to travel was early recognized as one of the privileges and immunities enjoyed by American citizens. See Corfield v. Coryell, 6 Fed.Cas. p. 546 (No. 3230) (C.C.E.D.Pa. 1825); see also Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941) (Douglas and Jackson, JJ., concurring); and Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908). Recent constitutional jurisprudence has established that the right to travel emanates from the Due Process clause of the Fifth Amendment to the United States Constitution. See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965); Aptheker v. Sec'y of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958) 3 Although the magnetometer, a passive device which merely senses the deflections which ferrous metal causes in the earth's magnetic field, does not penetrate the individual or his property, Fourth Amendment problems are raised because "the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure." Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967) 4 This Court has made clear that an investigation need not be curtailed simply because a suspect decides not to take a particular flight. See Skipwith, supra; Legato, supra. We have expressly decided to reject the right-to-leave argument followed in United States v. Meulener, 351 F.Supp. 1284 (C.D.Cal. 1972). As Judge Bailey Aldrich stated in his dissent in Skipwith, a point with which the majority of that panel fully concurred, "The reasoning in Meulener, that if he then changed his mind, and elected to leave, 'he would pose no danger to the passengers and crew on the aircraft,' 351 F.Supp. at 1289, greatly damages the prophylactic purpose of the search procedure. Such an option would constitute a one-way street for the benefit of a party planning airplane mischief, since there is no guarantee that if he were allowed to leave he might not return and be more successful. Of greater importance, the very fact that a safe exit is available if apprehension is threatened, would, by diminishing the risk, encourage attempts." Skipwith, 482 F.2d at p. 1281. 5 Although Judge Aldrich has proposed an exclusionary rule to control overzealous searches, the suggestion has been rejected by this Court, Skipwith, supra 1 In our Circuit not even reasonable suspicion is required to search passengers in the preboarding area. In United States v. Skipwith, 5th Cir. 1973, 482 F.2d 1272 we held that "those who actually present themselves for boarding on an air carrier . . . are subject to a search based on mere or unsupported suspicion." Id. at 1276. Consent is not required; the individual has no right to leave to avoid the search. Id. at 1277. But see United States v. Anderson, 9th Cir. 1973 [13 Crim. L.Rptr. 2395, June 29, 1973] (passenger searches are "administrative searches" whose validity depends on consent or obtaining a warrant). As in Moreno the reason given for the paring back of the individual's right of privacy in Skipwith was "the magnitude of the perils created by air piracy." Skipwith, supra at 1275	{ "pile_set_name": "FreeLaw" }
SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 123 KA 13-00675 PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER MICHAEL H. JOHNSON, DEFENDANT-APPELLANT. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DIANE S. MELDRIM OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered March 19, 2013. The judgment convicted defendant, after a nonjury trial, of grand larceny in the fourth degree. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, following a bench trial, of grand larceny in the fourth degree (Penal Law § 155.30 [4]) in connection with the theft of a credit card from the victim’s purse, which the victim left in her car in the parking lot of a business while she was in the building. Contrary to defendant’s contention, Supreme Court properly denied that part of his omnibus motion seeking to suppress his inculpatory statement to the police. Defendant’s statement was spontaneous, i.e., it was not “triggered by police conduct which should reasonably have been anticipated to evoke a declaration from the defendant” (People v Lynes, 49 NY2d 286, 295; see People v Witherspoon, 66 AD3d 1456, 1458, lv denied 13 NY3d 942; cf. People v Lanahan, 55 NY2d 711, 713). We further conclude that the photo array shown to three eyewitnesses was not unduly suggestive (see generally People v Chipp, 75 NY2d 327, 335). The court properly determined that the subjects depicted therein were sufficiently similar in appearance so that the viewer’s attention was not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection (see People v Alston, 101 AD3d 1672, 1673; People v Weston, 83 AD3d 1511, 1511, lv denied 17 NY3d 823). Contrary to the contention of defendant, the evidence is legally sufficient to establish that he stole a credit card. Defendant was observed in the victim’s vehicle by two witnesses, and the victim -2- 123 KA 13-00675 testified that the reloadable VISA card had approximately $100 of credit, that it was not in her wallet that was in the vehicle after defendant exited the vehicle, and that the credit card was cancelled that day (see People v Howard, 167 AD2d 922, 922, lv denied 77 NY2d 961; see generally People v Bleakley, 69 NY2d 490, 495). Viewing the evidence in light of the elements of the crime in this bench trial (see People v Danielson, 9 NY3d 342, 349), we conclude that the court did not fail to give the evidence the weight it should be accorded and, thus, we further conclude that the verdict is not against the weight of the evidence (see People v Lane, 7 NY3d 888, 890; Bleakley, 69 NY2d at 495). Entered: March 20, 2015 Frances E. Cafarell Clerk of the Court	{ "pile_set_name": "FreeLaw" }
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted April 4, 2018 Decided April 5, 2018 Before DIANE P. WOOD, Chief Judge WILLIAM J. BAUER, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 17-3566 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Northern District of Illinois, Western Division. v. No. 3:17CR50031-1 DOMONIQUE V. WALKER, Defendant-Appellant. Philip G. Reinhard, Judge. ORDER A police officer saw Domonique Walker blow through five stop signs and a red light in Rockford, Illinois. When the officer activated the lights and siren on his unmarked squad car, Walker, one block ahead of the officer, accelerated through two additional stop signs before colliding with a guard rail along the road and hitting a tree. Police officers found him unconscious, sitting on a loaded .40 caliber semiautomatic handgun and smelling like alcohol and burnt marijuana. Walker—who has three prior felony convictions for controlled-substance offenses—pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and was sentenced to nine No. 17-3566 Page 2 years’ imprisonment and three years’ supervised release. Walker filed a notice of appeal, but his appellate counsel seeks to withdraw under Anders v. California, 386 U.S. 738 (1967), because he believes that any appeal would be frivolous. In his response to counsel’s motion, see CIR. R. 51(b), Walker disputes this conclusion and contends that he could argue that the district court erred when determining the recommended guidelines sentence. Counsel has submitted a brief that explains the nature of the case and addresses a single sentencing issue that an appeal of this kind might be expected to involve. Counsel’s analysis appears for the most part to be adequate, allowing us to focus on the issue he discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). Counsel does not confirm, however, that Walker is satisfied with his guilty plea. If counsel did not consult with Walker, he should have, and he should have told us Walker’s answer to this question. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). That said, we need not reject counsel’s Anders submission because the transcript of the plea colloquy demonstrates that the district court complied with the requirements of Federal Rule of Criminal Procedure 11. See United States v. Blalock, 321 F.3d 686, 688– 89 (7th Cir. 2003). The court advised Walker of his constitutional rights, the charge against him, and the possible penalties, and found that his plea was voluntary and supported by a sufficient factual basis. See FED. R. CRIM. P. 11(b). Counsel evaluates whether Walker could contest the district court’s determination that he knowingly fled police and was therefore subject to a two-level enhancement for reckless endangerment during flight, see U.S.S.G. § 3C1.2. (Counsel focuses on Walker’s asserted lack of awareness that he was fleeing police; at the sentencing hearing, Walker had conceded that his conduct was reckless but contended that he did not flee police knowingly.) A police officer who tailed Walker during the chase testified that Walker had accelerated after the officer turned on his lights and siren, which he kept on for one to two blocks, and then drove through several stop signs. Counsel appropriately concludes that it would be frivolous to argue that the district court clearly erred by crediting the officer’s unrebutted testimony— “determinations of witness credibility can virtually never be clear error,” United States v. Biggs, 491 F.3d 616, 621 (7th Cir. 2007) (internal quotation marks and citation omitted)— or by inferring from the officer’s testimony that Walker knew of police officers’ pursuit of him. As counsel further observes, any error by the district court in determining the applicability of U.S.S.G. § 3C1.2 would be harmless because the court said that it would No. 17-3566 Page 3 impose the same sentence even if it “was incorrect in assessing [this] two-point [sic] enhancement.” See United States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009). Walker outlines four potential challenges to the district court’s decision to impose a two-level increase under U.S.S.G. § 3C1.2. First he asserts that the court wrongly concluded that he knew he was evading police because his “erratic driving” is best explained by his intoxicated state. This contention, however, is frivolous because the circumstances of the chase—Walker’s acceleration upon being tailed by an officer sounding his siren and flashing his headlights—allowed the district court to reasonably conclude that Walker knew he was fleeing. Second Walker asserts that the district court wrongly determined that he fled the police because the distance with which the officer followed him with his lights and siren on was only one to two blocks. But even a short police chase is sufficient to satisfy the requirement in U.S.S.G. § 3C1.2 that a defendant be “in the course of fleeing from a law enforcement officer.” See U.S.S.G. § 3C1.2, cmt. n.3 (“‘During flight’ is to be construed broadly”); United States v. Chandler, 12 F.3d 1427, 1430, 1434 (7th Cir. 1994) (district court did not err in concluding that five-minute police chase met requirement of fleeing from law enforcement in U.S.S.G. § 3C1.2). Further Walker wrongly assumes that the chase did not begin until the police officer turned on his siren and lights; by that point the officer had already tailed him through four stop signs and a red light. Third Walker says that the testimony of the police officer provided an insufficient factual basis for the district court to conclude that his driving created a substantial risk of death or bodily injury. But the officer’s uncontradicted testimony that Walker drove 60 miles per hour through several stops signs in a residential and business-district area on a rainy night makes it pointless to argue that he did not create a substantial risk of death or bodily injury to others. See United States v. Thomas, 294 F.3d 899, 907 (7th Cir. 2002) (defendant travelling 50 miles per hour in “high-speed case” through residential neighborhood is conduct “fall[ing] squarely within the scope of section 3C1.2”). Fourth Walker says that he needed to be charged with a “formal fleeing offense” in order for U.S.S.G. § 3C1.2 to apply, but this contention is frivolous because a sentencing judge may consider the defendant’s relevant conduct, which includes “[c]onduct that is not formally charged or is not an element of the offense of No. 17-3566 Page 4 conviction.” United States v. Watts, 519 U.S. 148, 152–53 (1997) (quoting U.S.S.G. § 1B1.3, cmt. background). As a final matter, Walker contends that when determining the recommended guidelines sentence, the district court erred by not “vary[ing] downward” his offense level for acceptance of responsibility. But he misapprehends the court’s calculations: the court explained that it reduced his offense level by three levels under U.S.S.G. § 3E1.1(a), (b) precisely for acceptance of responsibility. (Doc. 40, Sentencing Tr. of Dec. 8, 2017, at 40.) Accordingly, we GRANT counsel’s motion and DISMISS the appeal.	{ "pile_set_name": "FreeLaw" }
311 B.R. 702 (2004) In re William C.B. BROWN and Mary V. Brown, Debtors. William C.B. Brown and Mary V. Brown, William C. Miller, Chapter 13 Trustee, Plaintiffs, v. Ocwen Federal Bank, Wells Fargo Bank Minnesota, N.A., Delta Funding Corporation, Brookside Mortgage, First Choice Builders, Inc., Defendants. Bankruptcy No. 03-32154DWS, Adversary No. 03-1284. United States Bankruptcy Court, E.D. Pennsylvania. June 9, 2004. 704 Maria C. Palladino, MacElhenny and Pallidino, Philadelphia, PA, for Debtors. David A. Scholl, Law Office of David A. Scholl, Newtown Square, PA, for Plaintiffs. Louis W. Schack, Reed, Smith, Shaw & McClay, LLP, Robert A. Nicholas, Emily Barnhart, Martin C. Bryce, Jr., Philadelphia, PA, Joshua Z. Goldblum, Feasterville, PA, for Defendants. MEMORANDUM OPINION DIANE WEISS SIGMUND, Chief Judge. Before the Court is the Motion of defendant Delta Funding Corp. ("Delta") to Stay Further Proceedings and to Compel Arbitration (the "Motion"). The debtors and plaintiffs William and Mary Brown ("Debtors") brought an action (the "Adversary") against Delta, Ocwen Federal Bank, Wells Fargo Bank ("Wells Fargo"), Brookside Mortgage ("Brookside") and First Choice Builders, Inc. ("Choice") alleging violation of various federal and state consumer protection statutes. The Motion seeks to shift the venue of the action only against Delta from this Court to an arbitration proceeding pursuant to a prepetition arbitration agreement entered into by the Debtors and Delta when the credit extension was made by Delta. A hearing was held at which the parties presented argument which was then supplemented by post-hearing briefs.[1] For the following reasons, the Motion is granted. 705 BACKGROUND The following facts are gleaned from the pleadings and found for the purpose of resolving this Motion. The Debtors borrowed funds from Delta to finance certain home improvements which were to have been performed by Choice. Brookside was the mortgage broker. At some point, the mortgage loan was acquired by Wells Fargo, and Ocwen appears to be the servicer of the loan. When the loan was made by Delta to Debtors, among the papers they signed was a document captioned "Arbitration Agreement." It provides in relevant part as follows: Upon your or our delivery of a written notice demanding arbitration to the other party... any Claim shall be resolved by binding arbitration pursuant to this Agreement and the applicable rules of either the American Arbitration Association, JAMS or the National Arbitration Forum ("NAF") in effect at the time of the written notice demanding arbitration. You may select which if these arbitrators to use.... Declaration of David Forman, Exhibit "Arbitration Agreement." Claim is defined as "any claim, dispute or controversy between the parties," and claims under the Truthin-Lending Act and the Home Owners Equity Protection Act which are asserted in the Complaint are specifically referenced. The Agreement also states that it is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., as it relates to a transaction involving interstate commerce within the meaning of the FAA. There is no question that the Adversary is a Claim under the Agreement and the FAA is applicable. On December 11, 2003 the Complaint initiating the Adversary was filed. Answers were due on January 12, 2004. Wells Fargo filed its answer on February 5, 2004, and Ocwen did so the next day.[2] Delta filed the Motion on February 11, 2004 seeking a stay of proceedings during its pendency. Choice filed its answer on February 18, 2004. DISCUSSION If a party to a binding arbitration agreement is sued in federal court on a claim that the party has agreed to arbitrate, the defendant is generally entitled under the Federal Arbitration Act to an order compelling arbitration and a stay (or dismissal, as appropriate) of the court proceeding pending arbitration. Sens v. John Nuveen & Co., Inc., 146 F.3d 175, 178 (3d Cir.1998) (citing 9 U.S.C. §§ 3, 4). Debtors dispute Delta's entitlement to arbitration, contending that (1) the demand to arbitrate has been waived; (2) the Agreement is not enforceable because it was not entered knowingly, voluntarily and intelligently; (3) the Agreement is not enforceable as it is unconscionable and (4) the Agreement is not enforceable because the Adversary is a core proceeding in a bankruptcy case which should be tried in the 706 bankruptcy court. I will consider each of these arguments in turn. A. Waiver In their brief Debtors acknowledge agreements to extend the answer time provided to Ocwen, Wells Fargo and Choice. They appear to also acknowledge a similar agreement to allow Delta an extension of the time to answer. Plaintiffs Memorandum of Law in Opposition to Motion at 2. As best as I can surmise, Debtors' waiver argument arises because Delta filed a motion to stay the proceeding pending its request to compel arbitration rather than an answer on the merits. Given that Delta filed a formal response consistent with the date Debtors' counsel had apparently agreed to for its answer and consistent with the date the other parties responded, I am hard pressed to understand the basis of the waiver argument. If Debtors' extension agreement was so limited, they should have filed a stipulation with the Court or at least put the agreement in writing. As Debtors have provided no legal basis for finding a waiver, I will reject the contention with no further discussion. B. Existence of Agreement Debtors assert, and I agree, that my threshold inquiry is whether there is an actual agreement to arbitrate. Sens v. John Nuveen, 146 F.3d at 178 (usual practice in arbitration cases is to ask whether there is a binding agreement to arbitrate and if so, whether the dispute is within the scope of that agreement[3]). The Debtors argue that there was no agreement to arbitrate because the Agreement was not entered into voluntarily, knowingly and intelligently. In support of this position, Debtors have submitted their affidavit stating that they are elderly and ill, the settlement clerk did not explain the papers they signed, they do not know what an "arbitration Agreement" is and they signed the Agreement only because it was in the pack of papers they were told to execute. Declarations of Debtors in Opposition to Motion. Assuming for the purposes of this Motion these facts to be true, they do not establish Debtors' cause. In Seus v. John Nuveen, supra, the plaintiff made a similar claim to the one made by Debtors herein. The Third Circuit summarizes and then rejects her argument as follows: By "knowing" and "voluntary," Seus means more than with an understanding that a binding agreement is being entered and without fraud or duress. Determining whether an agreement to arbitrate is "knowing" and "voluntary," in her view, requires an inquiry into such matters as the specificity of the language of the agreement, the plaintiffs education and experience, plaintiffs opportunity for deliberation and negotiation, and whether plaintiff was encouraged to consult counsel. She does not contend that this heightened "knowing and voluntary" standard is a generally applicable principle of contract law.... Applying that standard here would be inconsistent with the FAA and Gilmer [v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)]. Nothing short of a showing of fraud, duress, mistake or some other ground recognized by the latv applicable to contracts generally would have excused the district court from enforcing Seus's agreement. Id. at 183-84 (emphasis added). Notably Debtors do not contend any false representation 707 or the withholding of truth when it should have been disclosed. Compare Bender v. Smith Barney, Harris Upham & Co., Inc., 789 F.Supp. 155, 158 (D.N.J. 1992). Rather the thrust of their position is that Debtors signed the Agreement without any understanding of it since it was not explained to them and they are elderly and ill. A number of courts have addressed whether Debtors' averred circumstances present grounds to excuse performance of an agreement to arbitrate, and consistently have found they do not. They reason that in order for an omission to constitute grounds to ignore a contract, a plaintiff must first prove that the defendant had a duty to disclose the fact at issue. As stated by the Court in Cohen v. Wedbush Noble, Cooke, Inc., 841 F.2d 282, 287 (9th Cir.1988) overruled on other grounds, Ticknor v. Choice Hotels Int'l Inc., 265 F.3d 931, 941-42 (9th Cir.2001): We know of no case holding that parties dealing at arm's length have a duty to explain to each other the terms of a written contract. We decline to impose such an obligation where the language of the contract clearly and explicitly provides for arbitration of disputes arising out of the contractual relationship. This is not a criminal case; the Cohens' argument that there was no "showing of intelligent and knowing waiver of the substantive rights at issue," ... is simply beside the point. Id. at 287. The Court went on to opine that it saw no unfairness in expecting parties to read contracts before they sign them and to do otherwise would undermine the integrity of contracts generally and the efficacy of arbitration clauses in particular, by frustrating the very policies these clauses, and the Arbitration Act itself, are meant to promote. Id. at 287-88. Accord Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1148 (7th Cir.1997); Federowicz v. Snap-On Tools Corp., 1992 WL 55723, at 3 (E.D.Pa. March 12, 1992). In Sydnor v. Conseco Financial Servicing Corp., 252 F.3d 302 (4th Cir.2001), the Fourth Circuit Court of Appeals reversed the trial court's refusal to enforce an arbitration clause in a financing contract to make a home improvement loan finding that plaintiffs did not knowingly and voluntarily waive their right to a jury.[4] The Court reasoned: [a]n elementary principle of contract law is that a party signing a written contract has a duty "to inform himself of its contents before executing it... and in the absence of fraud or overreaching he will not be allowed to impeach the effect of the instrument by showing that he was ignorant of its contents or failed to read it" Id. at 306 (quoting Corbett v. Bonney, 202 Va. 933, 121 S.E.2d 476 (1961)). See also Rogers v. Brown, 986 F.Supp. 354, 359 (M.D.La.1997) (no case law or statutory authority for imposing duty to explain an arbitration clause in an employment contract); McCarthy v. Providential Corp., 1994 WL 387852, at 5 (N.D.Cal. July 19, 1994) (no duty to explain consequences of arbitration clause to senior citizens entering into reverse mortgage loans).[5] Debtors' case authority does not refute these consistent rulings. In Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51 (3d Cir.1980), the Court held that 708 a court should not enforce an arbitration clause that is not found to be an express, unequivocal agreement of the parties. In that case, the plaintiff had indicated that it never had intended to enter into the contract for the supply of goods when an unauthorized employee signed a form provided by the seller. Unlike the facts here, it was not merely the arbitration clause that was at issue but the contract that was allegedly invalid for lack of authorization. Ferreri v. First Options of Chicago, Inc., 623 F.Supp. 427 (E.D.Pa.1985), also deals with a question of whether the party that signed the agreement to arbitrate had the authority to bind his partner, the defendant. Sandvik AB v. Advent International Corp., 220 F.3d 99 (3d Cir.2000), merely stands for the unremarkable proposition that before compelling arbitration, a court must decide whether a valid binding agreement to arbitrate exists. In this case, the party resisting arbitration also claimed that the agent that signed the agreement on its behalf lacked authority to do so. Finally China Minmetals Materials Import and Export Co., Ltd. v. Chi Mei Corp., 334 F.3d 274 (3d Cir.2003),[6] applied that basic principle to arbitrations conducted under the Convention on the Recognition and Enforcement of Foreign Arbitration Awards, reasoning that arbitration being a matter of contract, no arbitration may be compelled without an agreement to arbitrate.[7] I agree with the general principle enunciated in these cases as I noted when I began this discussion but find that they do not support Debtors' contention that their agreement to arbitrate should not be enforced because they simply did not know what they were agreeing to. Rather I find that the Debtors signed the Agreement entering into a contract for arbitration, the enforcement of which will depend on whether there are any contract defenses such as duress, illegality, fraud or unconscionability that will excuse their performance. Choice v. Option One Mortgage Corp., 2003 WL 22097455, at 5 (E.D.Pa. May 13, 2003) (citing Harris v. Green Tree Financial Corp., 183 F.3d 173, 179 (3d Cir.1999)) (citing Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996)); Lytle v. CitiFinancial Services, Inc., 810 A.2d 643, 656 (Pa.Super.2002). C. Unconscionability and Mutuality Debtors argue that the Agreement should not be enforced because they had no choice but to accept it if they wanted the loan and because its provisions are unfair in so far as certain types of claims held by Delta are not subject to arbitration (e.g., foreclosure proceedings) whereas all claims by Debtors are. Debtors bring to the Court's attention Lytle v. CitiFinancial Services, Inc., supra, which they contend reflects the emerging Pennsylvania jurisprudence which requires a critical examination of attempts by lenders to foreclose the courts to consumers. Plaintiffs' Memorandum of Law in Opposition to Motion at 3. 709 First, I would note that there is no evidence that the Arbitration Agreement was an essential component of the loan extension. Indeed the Debtors claim they were unaware of the Agreement which would negate any effort on their part to secure the loan without this provision. In any event, even if the agreement to arbitrate was a condition of the loan, it does not render it unenforceable. These arguments were made and rejected in Dabney v. Option One Mortgage Corp., 2001 WL 410543 (E.D.Pa. April 19, 2001). There the plaintiff argues that the arbitration agreement was an adhesion contract whose essential terms are unconscionable thereby rendering it unenforceable.[8] Unconscionability has been described as an absence of meaningful choice on the part of one party together with contract terms which are unreasonably favorable to the other party.[9]Federowicz v. Snap-On Tools Corp., 1992 WL 55723, at 3 (E.D.Pa. March 12, 1992). In Dabney, the plaintiff argued that she had no meaningful choice in signing the arbitration agreement with the lender because she had already executed the repair contract. Like here, the court found no evidence that plaintiff had attempted to negotiate the challenged provision or that she could not have secured other financing. However, even if she could establish such lack of meaningful choice, the terms of the agreement did not unreasonably favor the defendant. Federal courts have found that arbitration agreements do not in and of themselves favor one party over the other. McCarthy, 1994 WL 387852, at 7. There is no basis to conclude, and Debtors have not contended, that they will be denied a full and fair consideration of their claims in arbitration under the rules of the American Arbitration Association, JAMS or National Arbitration Forum. They are not being deprived the opportunity of a jury trial as they have requested a bench trial in bankruptcy court. Thus, it is hard to understand how the Agreement can have an oppressive character so as to be found unconscionable. While I recognize that the Superior Court has stated that arbitration agreements in consumer contracts are presumptively unconscionable by reserving access to the courts for the merchant to the exclusion of the consumer, I believe the Debtors overstate the case when they contend that Lytle v. CitiFinancial Services, Inc., supra, represents a decisional trend on this issue.[10] In any event, I find that I 710 am bound by the Third Circuit's contrary decision in Harris v. Green Tree Financial Corp., 183 F.3d 173 (3d Cir.1999), which rejected the homeowners' contention that the arbitration clause in their mortgage agreement was invalid because it lacked the requisite mutuality and was unconscionable. Noting that the arbitration clause fell within the scope of the FAA, the Court recognized that the statute "was enacted to `revers[e] centuries of judicial hostility to arbitration agreements' by plac[ing] arbitration agreements upon the same footing as other contracts." Id. at 178 (quoting Shear son/American Express Inc. v. McMahon, 482 U.S. 220, 225-26, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987)). Accordingly, it reasoned that "federal law presumptively favors the enforcement of arbitration agreements." Id. That presumption was not undermined by principles of unconscionability or lack of mutuality arising from the lender's right to litigate arbitrable issues in court, while the homeowners could only invoke arbitration. The Circuit Court did not find the terms of the arbitration clause so unreasonably favorable to the lender to make the agreement unconscionable. Moreover, citing its decision in Becker Autoradio USA Inc. v. Becker Autoradiowerk GmbH, 585 F.2d 39 (3d Cir.1978), it reaffirmed that mutuality is not a requirement of a valid arbitration clause, a conclusion reached by most other federal circuits to have considered the issue. Id. at 180 (citing cases). See also Dabney v. Option One Mortgage Corp., 2001 WL 410543, at 5 (E.D.Pa. April 19, 2001) (the fact that the agreement allowed the defendant to retain rights to litigate while denying them to the plaintiff of no legal consequence). Notably the Harris decision predates Lytle.[11] However, the same argument against enforcement of an arbitration agreement was made in a subsequent Third Circuit decision, Blair v. Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir. 2002), and the Court affirmed its holding in Harris that a contract need not have mutuality of obligation as long as the contract is supported by consideration. Absent an intervening Pennsylvania Supreme Court decision enunciating the law of Pennsylvania differently than it was interpreted by the Third Circuit Court of Appeals, I am bound to follow the Third Circuit's ruling. See Largoza v. General Electric Co., 538 F.Supp. 1164, 1166 (E.D.Pa.1982); Doane v. Travelers Insurance Company, 266 F.Supp. 504, 505 (E.D.Pa.1966). The same conclusion was reached by the District Court in Choice v. Option One Mortgage Corp., 2003 WL 22097455 (E.D.Pa. May 13, 2003) where the homeowner brought similar federal and consumer claims against various entities and individuals involved in a mortgage transaction to finance home repairs. Rejecting the application of Lytle on the grounds that the arbitration agreement Choice entered did not provide her with the same access to the courts as it did the mortgage company, the Court concluded that it could not predict that the Pennsylvania Supreme Court would follow Lytle rather than Harris, and it was bound by Harris until the Pennsylvania Supreme Court held otherwise.[12] As there has been no ruling by the 711 Pennsylvania Supreme Court contrary to Harris, I respectfully decline to follow Lytle as well. D. Arbitration and Bankruptcy Proceeding Debtors' final argument is that "relegating the Proceeding, a core proceeding the outcome of which is critical to the success of the Debtors' Chapter 13 bankruptcy case, is [] precluded by the decision of the District Court affirming the bankruptcy court decision that it is not appropriate to arbitrate such matters in In re Mintze, 2003 WL 22701020 (E.D.Pa. Nov. 12, 2003), aff'g 288 B.R. 95 (Bankr. E.D.Pa.2003)." Memorandum of Law in Opposition to Motion at 2-3. Mintze enunciates the general understanding that, in a core proceeding, a bankruptcy court has discretion to decide whether to enforce an arbitration clause. Mintze, 288 B.R. at 97. While the Third Circuit in Hays & Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 885 F.2d 1149, 1161 (3d Cir.1989), held that bankruptcy courts should generally enforce arbitration clauses, that case involved a non-core proceeding and its application has been so limited. Mintze, 288 B.R. at 97 n. 6. In Mintze, both parties had stipulated that the matter at issue was a core proceeding, and the decision whether to compel arbitration was within the bankruptcy court's discretion. Id. at 97. As there has been no such agreement here, the threshold issue is whether the Adversary is a core proceeding as Debtors contend or non-core as urged by Delta. Only if Debtors' position is sustained is Mintze applicable. In support of their argument, Debtors paint a broad brush, relying on their claims against the co-defendant Wells Fargo, their current mortgagee which has filed a proof of claim in this bankruptcy case, to demonstrate the core nature of the Adversary. I agree that the Debtors' claims against Well Fargo are core, and if Wells Fargo were seeking enforcement of an arbitration clause, I would have discretion to deny the demand. However, Debtors make no case for their claims against Delta being core to this bankruptcy case.[13] Delta has not filed a proof of claim, and thus the bankruptcy claims process is not implicated here. All of the claims against Delta arise under non-bankruptcy law and are properly viewed as related to the bankruptcy case but not core. Thus, the driving considerations in Mintze are absent here: the claims are not closely tied to the viability of the Debtors' plan and the rights of other creditors are not affected if I examine solely the claims against Delta. *712 It is not controverted that an adversary proceeding may present a combination of core and non-core claims and that a core claim joined with non-core claims does not change the character of the latter. Halper v. Halper, 164 F.3d 830, 838-39 (3d Cir.1999) (adopting claimby-claim approach and rejecting view that an adversary proceeding could be characterized as core if core claims predominate). Moreover, where less than all the claims are arbitrable, as would be the case with the core claims against Wells Fargo, "the court may proceed with the non-arbitrable claims, but the court is obliged to honor the arbitration clause agreed to by the parties and to lay aside the arbitrable claims." Pierson v. Dean, Witter, Reynolds, Inc., 742 F.2d 334, 338 (7th Cir.1984). While dual proceedings may not be the most efficient and economical manner of resolving the Debtors' claims against all the defendants, the United States Supreme Court has expressly stated that this factor is not grounds to refuse to enforce an otherwise valid arbitration agreement. Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217, 105 S.Ct. 1238, 1241, 84 L.Ed.2d 158 (1985) (the FAA, through its plain meaning and the strong federal policy it reflects, requires courts to enforce the bargain of the parties to arbitrate, and not substitute its own views of economy and efficiency for those of Congress). If this principle is inappropriate when the plaintiff is undergoing reorganization in bankruptcy, as Debtors contend, they have supplied me with no evidence or legal authority to depart from the general rule for that reason. Finally, I do not accept the Debtors' premise that arbitration of the claims against Delta requires suspension of the remaining claims against Wells Fargo and the other defendants with a concomitant adverse impact on the pending Chapter 13 case. The other defendants have filed their answers to the Complaint four months ago, and I am prepared to now enter a pretrial order that will set procedures and deadlines for trial of the remaining claims. An Order consistent with this Memorandum Opinion shall issue. ORDER AND NOW, this 9th day of June 2004, upon consideration of the Motion of defendant Delta Funding Corp. ("Delta") to Stay Further Proceedings and to Compel Arbitration (the "Motion"), after notice and hearing, and for the reasons stated in the accompanying Memorandum Opinion; It is hereby ORDERED that the Motion is GRANTED. Plaintiffs' claim against Delta are stayed pending arbitration. NOTES [1] In their Memorandum of Law in Opposition to the Motion, Debtors appear to contend that an evidentiary hearing is required to elicit facts relating to the execution of the Agreement in order for this Court to properly assess its enforceability. However, other than the Declaration of the Debtors in Opposition to the Motion which was attached to their Memorandum, no evidence was presented at the scheduled hearing. While there is also some reference in the Memorandum to the need for discovery and a deferral of the disposition of the Motion pending that activity, the issue was never raised with the Court and to my knowledge, Debtors did not seek to engage in any discovery. [2] Ocwen and Wells Fargo filed a stipulation with Debtors for an extension of the answer deadline. As it was not filed in PDF format, it was stricken from the record so I do not know what their agreement was. [3] The second criterion is not disputed by the Debtor. The Adversary claims are within the scope of the Agreement. [4] Actually the perceived burden of arbitration on the Debtors here is less as they do not seek a jury trial. [5] Notably these last two cases arise in the consumer context and belie the Debtors' contention that the principles espoused by Delta arise in connection with arbitration of securities cases and are not applicable here. [6] Debtors point out that Judge Tucker relied on this case, among others, in an Order entered in DiToranto v. Household Finance Consumer Discount Co., C.A. No. 03-5951 (E.D.Pa. Feb. 24, 2004). As the unpublished Order was not attached as represented, I am unable to address the applicability of DiToranto. [7] The significance of the decision is the Court's conclusion that the international context of the arbitration did not affect the principle that the district court should decide whether there was a valid agreement to arbitrate. In this case, the arbitration had occurred and the successful party was attempting to enforce the foreign arbitration award. However, the defendant contended that the underlying contract, including the arbitration agreement, was a forgery. [8] While Debtors do not use these terms, this is the only legal theory that fits their argument. In Harris v. Green Tree Financial Corp., 183 F.3d 173 (3d Cir.1999), the Third Circuit differentiated between procedural and substantive unconscionability. The former relates to the form that the agreement takes, i.e., inconspicuous or unclear contractual language. Procedural unconscionability does not appear to be claimed here. The latter relates to the terms the agreement imposes. Id. at 182-83. The mutuality argument raised here was also raised in Harris and as the Court there noted, it overlaps with the claim of substantive unconscionability. [9] A finding that a contract is one of adhesion does not require a finding that the contract is unconscionable. Rather the terms of the contract must be analyzed to determine whether the contract as a whole, or specific provisions of it, are unconscionable. Lytle, 810 A.2d at 658. [10] In Lytle, the Court found that the arbitration clause was presumptively unconscionable because of the ability reserved for the lender to access the court for certain remedies whereas the borrower was consigned to arbitration of its claims. The Court noted that in the absence of "business realities" that would compel the use of arbitration, the provision would be unenforceable. As Citifinancial had not had an opportunity to justify the business reasons for the provision, the Court remanded to the trial court for further proceedings. [11] The Circuit Court had relied on the restatement of contracts as applied in Pennsylvania which does not require both parties to an agreement to have equivalent obligations to satisfy the standard of mutuality, noting that Pennsylvania courts appeared not to have considered whether mutuality is required in arbitration agreements. [12] The Court also noted that the provision in the arbitration agreement that the Pennsylvania court relied upon heavily to conclude that the agreement was so one-sided as to be unconscionable conscionable was the $15,000 cut-off for arbitration, a provision that was not replicated in the Option One agreement or for that matter in that of Delta. [13] Debtors' statement that "[t]he determination of the Proceeding is important to the success of the Debtor's [sic] Chapter 13 Plan" is supported by reference to the existence of claims to determine the validity of Wells Fargo's secured claim and counterclaims for damages that will offset its proof of claim. Plaintiffs' Mem. at 3-4. Indeed Debtors do not even discuss their claims against Delta in this context. Nor can they. Delta, having sold the mortgage loan, is not a creditor. As such, resolution of the claims against Delta are not implicated by Debtors' Chapter 13 plan, and Debtors' argument that the claims process would be impaired by enforcing arbitration is fundamentally flawed. Rather the claim against Delta is an asset of the Debtors which, I note, is not listed on Debtors' Schedule of Assets, and the proceeds of which are not dedicated to be distributed to creditors. Fed.R.Evid. 201 (court may take judicial notice of schedules). Thus, it would appear that the Debtors' joinder of their claims against Delta in this Adversary is the only nexus to this bankruptcy case.	{ "pile_set_name": "FreeLaw" }
389 F.2d 113 C. E. SWEENEY, Sr., Appellant,v.FLORIDA EAST COAST RAILWAY COMPANY, Appellee. No. 24686. United States Court of Appeals Fifth Circuit. January 15, 1968. Rehearing Denied February 13, 1968. Harold A. Ross, Cleveland, Ohio, Delbridge L. Gibbs, Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, Fla., for appellant, Ross & Kraushaar, Cleveland, Ohio, of counsel. John D. McKee, Jr., Miami, Fla., Terry, McKee & Stephens, Miami, Fla., and H. T. Cook, Gen. Atty., Florida East Coast Ry. Co., St. Augustine, Fla., for appellee. Before TUTTLE and WISDOM, Circuit Judges, and HEEBE, District Judge. TUTTLE, Circuit Judge: 1 On March 16, 1965, the National Railroad Adjustment Board, First Division, made an award to the appellant, C. E. Sweeney, a locomotive engineer, stating that he was "entitled to be compensated for time lost, including specifically any vacation pay due * * * for the period from the date of his dismissal, May 25, 1962, to his compulsory retirement date, April 30, 1964, (both dates inclusive)." Sweeney, having received no such compensation from the appellee railroad company, brought this suit in the United States District Court under Title 45 U.S.C.A. § 153, First (p), to enforce this award. 2 It was undisputed that Sweeney had been discharged on May 25, 1962, and that he went to work in the same capacity as engineer for Baltimore & Ohio Railroad on May 28th, which employment he continued to hold until June 25, 1963. It is also agreed by the parties that Sweeney held dual seniority on the Baltimore & Ohio and the defendant Florida East Coast Railway Company, and that "for several years prior to his dismissal, he divided his working year, usually working the months of June through October with the B & O in the Philadelphia area, and the balance of the year with the F.E.C. in the Miami area." 3 Defendant F.E.C. requires its engineers to retire at the age of seventy. Sweeney reached that age on April 30, 1964, and that was the reason for the inclusion of that date as the end of the period for which he was entitled to compensation for "time lost" by the N.R.A.B. award. The B & O has no compulsory retirement age for engineers. It does have, however, a B & O annuity plan designed to supplement retirement benefits which an employee receives under the Railroad Retirement Act. The plaintiff was a member of this B & O plan. It is financed by voluntary contributions in equal amounts by the employee and by the B & O, and beginning with employee's retirement, pays him an annuity in monthly installments in addition to the annuity under the retirement act. In order to receive monthly annuity payments under the B & O plan, the plaintiff was required to resign prior to July 1, 1963 (as noted above he retained his employment with B & O until June 25, 1963). 4 Accordingly, the plaintiff applied to the Railroad Retirement Board for and received his annuity under the Railroad Retirement Act, effective June 26, 1963. He received wages from B & O of $7,115.81 in 1962, and $7,476.29 in 1963 (prior to his retirement). During the period June 26, 1963 (the date of his retirement) to April 30, 1964, the plaintiff received $1969.28 and his wife received $378.20, a total of $2347.48, as annuity payments under the Railroad Retirement Act. 5 It is not contested that but for the improper dismissal of Sweeney he would have continued to work for the defendant, subject to his annual custom mentioned above to work part time each year for the B & O, until he reached mandatory retirement on April 30, 1964. 6 The parties stipulated in the trial court that "the only question to be determined by this court, is the amount of money, if any, plaintiff is entitled to for time lost, interest, costs, and attorneys' fees." 7 The district court found that "this is a dispute between the parties to this cause which involves an interpretation of the above described award." Then, considering the effect to be given to the amendment to the Railway Labor Act of June 20, 1966, the court concluded that it was without jurisdiction to determine "whether the Railroad Adjustment Board intended the subject award be one for gross wages or net wages lost during the said period * * * Whether the Railway Adjustment Board intended the common law rule mitigating damages be applied, thereby subtracting from any award wages which were earned or could have been earned by the employee during the subject period, or whether the Railroad Adjustment Board intended a gross award of full award for the subject period disregarding plaintiff's employment with the Baltimore & Ohio R. R. Company." 8 Thereupon the trial court dismissed the action, holding that the dispute must be resolved upon the request of either party by the Division of the Railroad Adjustment Board which rendered the award. 9 The basis for the trial court's decision, and of the appellee's argument before this court, is that by amending 45 U.S. C.A. § 153, First (m) of the Railway Labor Act, Congress withdrew from the federal courts' jurisdiction to decide such an issue as is here presented. In order to understand the reasoning back of this position it is necessary to recite a little history. 10 Prior to the amendment, this section of the Railway Labor Act, provided: 11 "The awards of the several divisions of the Adjustment Board shall be stated in writing. A copy of the awards shall be furnished to the respective parties to the controversy, and the awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award." (Emphasis supplied.) 12 The amendment of June 20, 1966, struck the italicized language in the section. 13 The parties agree that in the case of Gunther v. San Diego & Arizona Eastern Railway Co., 382 U.S. 257. 86 S.Ct. 368, 15 L.Ed.2d 308, the Supreme Court had decided that under the law as it then existed, the district court could entertain a lawsuit which could "proceed on this separable issue [a money award] `in all respects as other civil suits' where damages must be determined," and that, therefore, under Gunther this suit would be a proper controversy in the district court but for the 1966 amendment. The appellant contends that the amendment did not deprive the district court of the power to enforce the instant award because he says the award of "compensation for all time lost" is a plain and unambiguous adjudication that Sweeney is entitled to be made whole by receiving the dollar amount that he did not receive from the Florida East Coast Railway Company, on the assumption that he would have worked every day from the date of the discharge until his retirement date had it not been for the illegal termination of his services. 14 The carrier, on the other hand, contends that the term used by the Railway Labor Board "all time lost" is ambiguous and this ambiguity can be resolved only by the labor board itself under the provisions of 45 U.S.C.A. § 153 First (m) which provides: "In case a dispute arises involving an interpretation of the award, the division of the Board upon request of either party shall interpret the award in the light of the dispute." It is the appellee's contention that the elimination by Congress, in adopting the amendment of 1966, of the exception from the "final and binding" character of decisions "insofar as they shall contain a money award" deprived the federal courts of the power to enforce an award of the Adjustment Board unless such award be expressed in terms of dollars and cents. 15 The appellee reads too much into the 1966 amendment. Before that amendment the parties were at liberty to conduct a lawsuit in the district court as to the amount to which the employee would be entitled to receive upon the assumption that all of the other issues in the controversy were accepted as binding on the parties. That meant that, in the instance of this case, had an award been made for Mr. Sweeney, that in precise terms stated that he was entitled to compensation for "all time lost, without deduction for any compensation received by him for other employment," it would nevertheless be open to the railroad company to, in effect, appeal from this decision to the district court and have a new trial in an effort to establish that, instead of the award made by the adjustment board, the court should enter a judgment for an entirely different amount, arrived at by awarding compensation "for all time lost by Sweeney, after deducting compensation earned by him in similar or other capacities to the date of his compulsory retirement." In other words, the money award was subject to litigation de novo prior to the adoption of the amendment. It is no longer subject to such litigation. That is all that was accomplished by the adoption of the 1966 amendment referred to above. 16 The parties now are bound by the decision of the Adjustment Board that Sweeney is entitled to "compensation for all time lost," whatever that may mean. We find no judicial authority for the proposition that it is not a proper function of the district court, when a suit is filed to enforce this award, to determine what actual dollars and cents the employee is entitled to under such an award by the Adjustment Board. In fact, in a case in which the appealability of an award on grounds other than the amount involved was passed upon by this court, Hodges v. Atlantic Coast Line R.R. Co., 5 Cir., 363 F.2d 534, decided after the effective date of the amendment above cited, this court held "there only remains the question of further proceedings with reference to the monetary award due * * * as back pay * * *. The district court has authority under the Railway Labor Act to determine the amount of that award as stated in subdivision IV of the Gunther opinion." (Emphasis added.) 363 F.2d 534, 540. The monetary award due in that case was couched in substantially the same language as that in favor of Sweeney here. The language was "he shall be paid for all time lost since January 29, 1963." 17 While the issue now raised was not presented or discussed in the Hodges case, that decision precisely directed that the district court should carry into effect the monetary award providing for payment "for all time lost." 18 Appellant goes further and argues that this court should not only reverse the judgment of the district court dismissing the complaint, but should adjudicate the issue on the merits in order to avoid any longer delay in the payment of an amount which Sweeney became entitled to several years ago. For a man living long since past the seventy-year retirement age, this is not an insignificant consideration. 19 With reference to the several sample orders of the Railway Labor Board which sometimes provide for "all time lost," without more, and which sometimes provide for the allowance of a claim with the added proviso "earnings and other employment or unemployment compensation received during the same period will be deducted" or some such similar language, it is plain that in a substantial number of cases the Board has adopted the latter method of compensating an employee for whom it granted an award. However, there seems to be no real doubt but that when the Railway Adjustment Board undertook to do this, it used language that made it clear beyond doubt that there was to be deducted from the amount of time lost compensation earned by the employee from other sources. Moreover, it appears in some of the awards that dissents were filed by either the employee member or the carrier member that highlighted this precise point, thus indicating that the Board knew exactly how to word an award when it wished to give a monetary award for all time lost without deductions. We conclude that the language used here required that the trial court find Sweeney was entitled to the total amount of his "time lost," without deductions except for the circumstances that are stated below. 20 The appellant's brief asserts that "for several years prior to his dismissal [Sweeney] divided his working year, usually working the months of June through October with the B & O in the Philadelphia area, and the balance of the year with the F.E.C. in the Miami area." The appellee, in its brief, accepts this statement of the case without demur. Therefore, it is plain that for the period of June through October of the year 1962 following his dismissal from his job with the Florida East Coast, he did not suffer any "time lost" with the F.E.C. by reason of the illegal dismissal. Thus, in computing the money judgment to which Sweeney is entitled, the court should deduct the compensation received by him during the months June through October during the year 1962 from the B & O Railroad. This is not inconsistent with the interpretation of the language of the award to apply to the entire time lost without deductions for other compensation received by him through his efforts to diminish or minimize the damages suffered by reason of his dismissal. It is merely a recognition of the fact that the work he did for the B & O Railroad in the months of June through October, 1962, were through his choice and not on account of his dismissal by the Florida East Coast Railway Company. This time was not "time lost." 21 Although the amendment was enacted after this award was made and after the suit was filed in the district court, nevertheless both parties agree that to the extent it is applicable it controls the disposition of this case, and we have dealt with it in that manner, holding as we do that the elimination of the right theretofore existing to appeal from a money award does not deprive the federal district court of jurisdiction to determine how much is to be paid when a money award is made, as in this case, and under the circumstances here present, for "all time lost." 22 The assignment by Sweeney to the Railroad Retirement Board of the amount received from it by him out of any judgment obtained by him in this action can be given effect by the district court upon remand. 23 The judgment is reversed and the case is remanded to the district court for further proceedings not inconsistent with this opinion.	{ "pile_set_name": "FreeLaw" }
31 F.3d 1171 Hall (Cecil La'Roy), Johnson (Andre D.), Wright (Wayne)v.Carper (Thomas R.), Governor, Sullivan (Lawrence (M.), StatePublic Defender, Oberly (Charles J., III), StateAttorney General NO. 93-7433 United States Court of Appeals,Third Circuit. July 29, 1994 Appeal From: D.Del., McKelvie, J. 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
731 F.2d 888 Jasik (Leo A.), Jasik (Emma L.), L.J. Bar Ranches, Inc.v.Conrad (C.S. Jr.) NO. 83-1896 United States Court of Appeals,fifth Circuit. APR 11, 1984 Appeal From: W.D.Tex., 727 F.2d 1379 1 Denials of Rehearing En Banc.	{ "pile_set_name": "FreeLaw" }
550 F.Supp.2d 630 (2007) Rebecca WOMACK, Plaintiff, v. NISSAN NORTH AMERICA, INC., and Nissan Motor Co., Ltd., Defendants. Civil Action No. 2:06-CV-479-DF. United States District Court, E.D. Texas, Marshall Division. February 16, 2007. 632 James Andrew Holmes, Attorney at Law, Henderson, TX, David Brian Miller, Schneider & Miller PC, Richardson, TX, Jay Kutchka, Jones Jackson & Moll PLC, Fort Smith, AR, Robert Stephen Woodfin, Law Office of R. Stephen Woodfin, Kilgore, TX, William M. Sweetnam, Freed & Weiss LLC, Chicago, IL, for Plaintiff. E. Paul Cauley, Jr., Katherine Williams Binns, Ryan C. Brown, Sherman Vance Wittie, Stacy Leigh Blakeley, Sedgwick Detert Moran & Arnold, Dallas, TX, John Bachman Greer, III, Greer, McCasland & Miller, Texarkana, TX, for Defendants. ORDER DAVID FOLSOM, District Judge. Before the Court is the Motion to Dismiss for Lack of Subject Matter Jurisdiction brought by Nissan North America, Inc.[1] ("Defendant"). Dkt. No. 7. Also before the Court are Plaintiffs response and Defendant's reply. Dkt. Nos. 11 & 13, respectively. Defendant has also filed a Motion to Dismiss and Alternative Motion for a More Definite Statement, as to which Plaintiff has responded and Defendant has replied. Dkt. Nos. 8,10 & 14. Having considered the briefing and all relevant papers and pleadings, the Court finds that Defendant's motions should be DENIED. I. BACKGROUND Plaintiff brings this action under the Federal Odometer Act (the "Act"). Complaint, Dkt. No. 1 at ¶ 25;. 49 U.S.C. § 32701 et seq. Plaintiff alleges Defendant "purposefully designed the vehicle's odometer to inflate the mileage driven by the vehicle by a factor of not less than 2.0% under nominal conditions." Id. at ¶ 12. Plaintiff seeks to represent a class of: "All persons and entities who/which purchased or leased a new Nissan or Infinity automobile anywhere in the United States since November 15, 2004." Id. at ¶ 18. Pursuant to 49 U.S.C. § 32710 ("§ 32710"), Plaintiff seeks treble actual damages or, alternatively, statutory damages of $1500 per vehicle. Id. at ¶ 28. Plaintiff purchased a Nissan Altima 2.5S in the Eastern District of Texas on or about May 2, 2005. Id. at ¶¶ 4, 5 & 7. Plaintiff purchased a Basic Warranty for three years or 36,000 miles. Id. at ¶ 8. Plaintiff further purchased a Powertrain Warranty for sixty months or 60,000 miles, a Federal Emissions Performance Warranty for two years or 24,000 miles, a Federal Emissions Defect Warranty for three years or 36,000 miles, and a Federal Emissions Long Term Defect Warranty for ninety-six months or 80,000 miles. Id. at ¶ 9. Plaintiff also purchased a Parts Warranty covenanting that all Nissan parts installed by a Nissan Dealer would be free of defects for not less than one year or 12,000 miles. Id. at ¶ 10. Plaintiff complains that Defendant "deprived [Plaintiff] of the benefit of her bargain by shortening her warranties and diminishing the resale value of her vehicle." Id. at ¶ 15. Plaintiff alleges the Defendant's violation of the Act will deprive her of more than 700 miles of Basic Warranty protection and as much as 1600 miles under the other warranties. Id. Plaintiff alleges that Defendant installed a "computer software device in the vehicle which altered the odometer's performance 633 by an amount which exceeds the odometer manufacturer's design tolerance." Id. at ¶ 13. Plaintiff alleges that such action "was part of a concerted effort to defraud the American consumer." Id. at ¶ 14. In passing the Act, Congress found (1) buyers of motor vehicles rely heavily on the odometer reading as an index of the condition and value of a vehicle; (2) buyers are entitled to rely on the odometer reading as an accurate indication of the mileage of the vehicle; (3) an accurate indication of the mileage assists a buyer in deciding on the safety and reliability of the vehicle;. ... 49 U.S.C. § 32701(a). The Act defines an "odometer" as "an instrument for measuring and recording the distance a motor vehicle is driven, but does not include an auxiliary instrument designed to be reset by the operator of the vehicle to record mileage of a trip." Id. at § 32702(5). Title 49 U.S.C. § 32703 ("§ 32703") provides: A person may not (1) advertise for sale, sell, use, install, or have installed, a device that makes an odometer of a motor vehicle register a mileage different from the mileage the vehicle was driven, as registered by the odometer within the designed tolerance of the manufacturer of the odometer; (2) disconnect, reset, alter, or have disconnected, reset, or altered, an odometer of a motor vehicle intending to change the mileage registered by the odometer;. ... Id. at § 32703(a). Further, § 32710 provides for "Civil actions by private persons" and states: "A person that violates this chapter or a regulation prescribed or order issued under this chapter, with intent to defraud, is liable for 3 times the actual damages or $1,500, whichever is greater." Id. at § 32710(a). II. SUBJECT MATTER JURISDICTION A. Legal Principles In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1), a court may not grant dismissal "unless it appears certain that the plaintiffs cannot prove any set of facts in support of their claim which would entitle them to relief," and a court "must take as true all of the allegations of the complaint and the facts as set out by the [plaintiffs]." Saraw Partnership v. U.S., 67 F.3d 567, 569 (5th Cir.1995). To demonstrate standing, a plaintiff must show as follows: First, the plaintiff must have suffered an "injury in fact" an invasion of a legally protected interest which is (a) concrete and particularized, ... and (b) actual or imminent, not conjectural or hypothetical. ... Second, there must be a causal connection between the injury and the conduct complained of the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. ... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. ... Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and quotations omitted). Congress may "elevat[e]" previously inadequate injuries "to the status of legally cognizable injuries." Id. at 578, 112 S.Ct. 2130. "[T]he injury required by Article III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing." Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct, 2197, 45 L.Ed.2d 343 (1975) (citation omitted). 634 B. The Parties' Positions Defendant argues this is a "no-injury class." Dkt. No. 7 at 4-5 (quoting Coghlan v. Wellcraft Marine Corp., 240 F.3d 449, n. 4 (2001)). Defendant argues that "the `conclusory assertions' that the class had sustained damages due to a supposed lack of resale value [is] `simply too speculative'" to allow the case to go forward. Id. at 5 (quoting Briehl v. General Motors Corp., 172 F.3d 623 (8th Cir.1999)). Defendant argues that Plaintiff suffered no injury upon purchase because if the odometer registered more than the actual mileage, Plaintiff received a more valuable vehicle than she bargained for. Id. at 7-8. As to resale value, Defendant argues that the vehicle "may never be sold [or] may be wrecked beyond repair or fall victim to some other casualty." Id. at 8. Under such circumstances, Defendant argues, Plaintiff will have suffered no actual harm. As to premature expiration of warranties, Defendant argues that Plaintiffs claim is too speculative because Plaintiff would only suffer harm if: (1) she keeps her vehicle until and after the odometer registers mileage in excess of the applicable warranty; (2) the vehicle requires service that would have been covered by the warranty; (3) at a time when the vehicle's mileage is still within 2% of the limit of the applicable warranty; and (4) the time limit of the applicable warranty has not already expired. Id. at 9. Defendant concludes that Plaintiffs claim lacks ripeness because it is too "abstract" or "hypothetical." Id. at 10 (citing New Orleans Public Service Inc. v. Council of New Orleans, 833 F.2d 583, 586-87 (5th Cir.1987)). Plaintiff argues that the shortening of the warranty period is "diminishing the resale value of her vehicle." Dkt. No. 1 at ¶ 15. As to those who lease their Nissans, Plaintiff argues that they have been "deprived of the full value of their leases." Id. at ¶ 17. Plaintiff argues that the statutory damages available under the Act provide standing, and Plaintiff need not prove actual damages. Dkt. No. 11 at 7. Defendant replies that Congress could not violate Article III of the Constitution by authorizing a claim without injury. Dkt. No. 13 at 2-3 (discussing Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)). Defendant reiterates its arguments that Plaintiff has suffered no injury. Id. at 4-5. Defendant also argues that although § 32710(a) provides for statutory damages, its constitutionality can only be preserved if it "does not authorize a recovery in the absence of damages." Id. at 4. C. Discussion The purpose of the Act is to "punish odometer tamperers by imposing civil penalties upon them and to reward purchasers who discover such tampering and bring it to the attention of the federal courts." Delay v. Hearn Ford, 373 F.Supp. 791, 796 (D.S.C.1974). By including treble damages, Congress expressed its intent to enforce compliance by requiring violators to do more than simply make the victim whole. Moreover, Congress' provision for statutory damages of $1500 per vehicle allows victims to recover without proving actual damages. Attorney Gen. of Md. v. Dickson, 717 F.Supp. 1090, 1105 (D.Md.1989) ("When the victim proves no damage, he receives the minimum statutory amount of $1,500 as a penalty.") Plaintiff alleges she owns a vehicle manufactured by Defendant, and Plaintiffs case is not "abstract or hypothetical." Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir.2000). Plaintiff does not allege something akin to an unmanifested 635 "propensity for premature engine failure." Tietsworth v. Harley-Davidson Inc., 270 Wis.2d 146, 677 N.W.2d 233, 240. Instead, Plaintiff alleges a quantifiable fraud: inflated mileage. The over-registering of mileage is not "a mere possibility of future product failure" but rather is measurable every time the vehicle is operated. See Dkt. No. 1 at ¶ 16 ("[T]he inflated mileage registered by [Plaintiffs] odometer daily decreases the market value of her vehicle."). Even though Plaintiff "do[es] not allege ... [she] has actually sold a vehicle at a reduced value," Congress's recognition of mileage as probative of the "condition and value of a vehicle" counsels against a finding of no injury. Briehl, 172 F.3d 623, 628-29; 49 U.S.C. § 32701(a)(1). Additionally, Plaintiffs "fail[ure] to state the amount of [her] damages" does not justify dismissal because Congress provides statutory damages without proof of actual damages. Briehl, 172 F.3d 623, 628-29; 49 U.S.C. 32710(a); see also Dickson, 717 F.Supp. at 1105. Further, Plaintiff need not prove actual damages at this early stage because when deciding whether a plaintiff has standing, the Court must "presume that general allegations embrace those specific facts that are necessary to support the claim." Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (citation omitted). Plaintiff has alleged an "injury in fact." Lujan, 504 U.S. at 560, 112 S.Ct. 2130. The loss of value is "concrete and particularized" because Congress has recognized that "buyers of motor vehicles rely heavily on the odometer reading as an index of the condition and value of a vehicle...." Id.; 49 U.S.C. § 32701 (emphasis added). To the extent Plaintiffs odometer registers higher-than-actual mileage, Plaintiffs vehicle has a lower market value than it otherwise would. Moreover, the violation of the Act is a "concrete and particularized" invasion of Plaintiffs right to rely upon the odometer as, among other things, an indicator of "the safety and reliability of the vehicle. ..." Lujan, 504 U.S. at 560, 112 S.Ct. 2130; 49 U.S.C. § 32701(a)(3). Plaintiff alleges harm that has already taken place, i.e. that Defendant "install[ed] a computer software device in the vehicle which altered the odometer's performance" in violation of the Act. Dkt. No. 1 at ¶ 13. Plaintiffs entitlement to statutory damages upon proof of a violation done with intent to defraud also demonstrates Congress' finding that Plaintiff has suffered harm. Plaintiff has similarly satisfied the remaining requirements of standing under Lujan. Plaintiff has alleged a causal connection between the injury and the conduct complained of because "the inflated mileage registered by [Plaintiffs] odometer daily decreases the market value of her vehicle." Dkt. No. 1 at ¶ 16. Finally, the injury may be redressed by statutory damages, or treble Plaintiffs actual damages, pursuant to § 32710(a). Because Plaintiff has alleged actual harm caused by Defendant that may be redressed by damages, Defendant's motion to dismiss for lack of subject matter jurisdiction should be DENIED. III. FAILURE TO STATE A CLAIM A. Legal Principles When deciding a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim, the complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986). The district court may not dismiss a complaint for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). "[C]onclusory allegations 636 or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Southern Christian Leadership Conference v. Supreme Ct., 252 F.3d 781, 786 (5th Cir.2001) (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)). "[A] complaint ... must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Banks v. Nat'l Collegiate Athletic Ass'n, 977 F.2d 1081, 1093 (7th Cir.1992) (citation omitted). B. The Parties' Positions Defendant argues that an odometer "is only expected under the relevant [Society of Automotive Engineers] practices to be within 4% of the actual distance traveled." Dkt. No. 8 at 6. Defendant submits that "the offensive `device' [under § 32703] cannot be the odometer itself because Congress was concerned with tampering. Id. at 7. Defendant cites the Congressional purposes of the Act, which are: "(1) to prohibit tampering with motor vehicle odometers; and (2) to provide safeguards to protect purchasers in the sale of motor vehicles with altered or reset odometers." Id. at 4 (quoting § 32701(b)). Defendant argues that Plaintiff fails to plead that the mileage registered is outside of the "designed tolerance" of the odometer. Id. at 8-9 (citing § 32703(1)). Defendant also reiterates that Plaintiff has shown no harm. Id. at 10-12. Plaintiff responds that she adequately alleges a "device" and that the Act has never been limited to "under-registration or rolled back odometers." Dkt. No. 10 at 10-11. Plaintiff also argues she has "specifically alleged that the alteration was in excess of the manufacturer's design tolerance." Id. at 12 (citing Dkt. No. 1 at ¶ 13). Defendant replies that "the statute under which Plaintiff has brought this suit does not regulate the design of odometers or provide a remedy for purchasers of faulty odometers." Dkt. No. 14 at 2. Defendant also reiterates that Plaintiff has failed to allege a "device" separate from the odometer itself that inflates the mileage. Id. at 4-5. Defendant argues that Plaintiff must show some actual damages because § 32710(a) provides that a person violating the statute with intent to defraud "is liable for three times the actual damages or $1500, whichever is greater," and without actual damages "the Court cannot determine `whichever is greater.'" Id. at 9. C. Discussion The Act should be "broadly construed to effectuate its purpose," which includes "preventing odometer tampering and odometer fraud." Owens v. Samkle Automotive Inc., 425 F.3d 1318, 1324 (11th Cir.2005) (quoting Ryan v. Edwards, 592 F.2d 756, 760 (4th Cir.1979)). As discussed in § II.C, supra, Plaintiff has sufficiently alleged a present injury caused by Defendant's alleged use of a "computer software device" that "makes an odometer of a motor vehicle register a mileage different from the mileage the vehicle was driven." Dkt. No. 1 at ¶ 13; 49 U.S.C. § 32703(a). Plaintiff further alleges that Defendant inflicted this injury "purposefully" in a "concerted effort to defraud." Id. at ¶¶ 12 & 14. Further, as discussed in § II.C, supra, Plaintiff has alleged harm in the form of reduced value and premature expiration of warranty periods. Because "the purposes of the private civil remedy [are] to compensate victims for harm suffered, and to ensure strict compliance with the Odometer Act's provisions," Plaintiff thus states a claim upon which relief can be granted. Owens, 425 F.3d at 1325 (broadly construing the Act to provide enhanced damages where plaintiff did not allege intent to defraud with respect to 637 mileage but rather with respect to the identity of the vehicle's prior owner). Defendant presents evidence that a "-4% to +4%" designed tolerance is acceptable for odometers. Dkt. No. 8 at 9. Nonetheless, Plaintiff alleges that Defendant's odometers inflate mileage "by a factor of not less than 2.0%. ..." Dkt. No. 1 at ¶ 12. A question of fact exists as to how much inflation occurs, as well as to the permissible magnitude of the "designed tolerance." Because the "complaint must be liberally construed in favor of the plaintiff," these are not questions suitable for decision at the pleading stage. Campbell, 781 F.2d at 442. Defendant has thus failed to show that Plaintiff "can prove no set of facts in support of h[er] claim which would entitle h[er] to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. 99. Defendant's motion to dismiss for failure to state a claim should therefore be DENIED. IV. FAILURE TO PLEAD FRAUD WITH PARTICULARITY A. Legal Principles Rule 9(b) states: "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." A claim that fails to meet the particularity requirement of Rule 9(b) may be dismissed on a motion brought pursuant to Rule 12(b)(6) for failure to state a claim. See, e.g., U.S. ex rel. Williams v. Bell Helicopter Textron Inc., 417 F.3d 450, 455 (5th Cir.2005). In ruling on a Rule 9(b) motion, the Court must "accept as true the well-pleaded factual allegations in the complaint and construe the complaint in the light most favorable to the plaintiff." Herrmann Holdings, Ltd. v. Lucent Techs., Inc., 302 F.3d 552, 557 (5th Cir. 2002). The "three main purposes" of Rule 9(b) are: "(1) protecting a defendant's reputation from harm; (2) minimizing `strike suits' and `fishing expeditions' and (3) providing notice of the claim to the adverse party." Vicom, Inc. v. Harbridge Merchant Services, Inc., 20 F.3d 771, 777 (7th Cir.1994) (citations omitted). A plaintiff may satisfy Rule 9(b) by alleging "who, what, when, where, why, and how the false statements were made and to whom they were made." Askanase v. Fatjo, 130 F.3d 657, 676 (5th Cir.1997) (addressing fraud claim). In other words, a plaintiff pleading fraud must "specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent." Herrmann, 302 F.3d at 564-65 (citations and quotations omitted). B. The Parties' Positions Defendant argues that Plaintiffs claim under § 32710(a) is a "fraud-based" claim that must satisfy the heightened pleading requirements of Rule 9(b). Dkt. No. 8 at 12 (citing Robinette v. Griffith, 483 F.Supp. 28, 31 (W.D.Va.1979) & Levine v. MacNeil, 428 F.Supp. 675 (D.Mass.1977)). Defendant argues that "Plaintiffs Complaint fails to state (1) the type and nature of the software, (2) where it is located, (3) how it is not part of the odometer itself the instrument that `measures and records' distance traveled; and (4) how it causes incorrect odometer readings." Id. at 12-13. Defendant requests that "[a]t a minimum, the Court should require Plaintiff to make a more definite statement of her claims pursuant to Federal Rule 12(e)." Id. at 13. Plaintiff responds that she has complied with Rule 9(b) because her claims have sufficient particularity to give Defendant fair notice. Dkt. No. 10 at 14-15. Plaintiff 638 notes that "she has not alleged fraud but only conduct committed with "the intent to defraud." Id. at 14. Plaintiff argues this "intent" element may be "averred generally" under Rule 9(b). Id. Defendant replies that Plaintiffs "extraordinarily vague `software device' allegation" is inadequate because "the Complaint provides no information regarding what the device is and how it affects the measuring or recording of mileage." Dkt. No. 14 at 7. C. Discussion The Court notes that Plaintiff does not assert a claim for fraud but rather asserts "intent to defraud" as an element under § 32710(a). Rule 9(b) provides that "[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally." However, the Court need not resolve whether Rule 9(b) is more lenient as applied to the "intent to defraud" element because Plaintiffs allegations satisfy the requirements of Rule 9(b) as "strictly" applied to fraud claims. Herrmann, 302 F.3d at 565. Plaintiff sufficiently puts Defendant on notice by alleging Defendant's odometers, through the use of a "computer software device," continuously and systematically misrepresent the mileage driven. Dkt. No. 1 at ¶ 12-13. Plaintiff need not allege the detailed workings of this "computer software device" at the pleading stage because this allegation has sufficiently put Defendant on notice of "how the false statements were made" by Defendant's vehicles. Askanase, 130 F.3d at 676. Plaintiff alleges the misrepresentation of mileage is fraudulent because consumers rely upon the misrepresented mileage to their detriment by paying more than they otherwise would for the vehicles due to the shortened warranty coverage, diminished resale value, and/or deprivation of the full value of leases. Id. at ¶¶ 15-17. Having found that Rule 9(b)'s goal of providing notice has been satisfied, the Court further finds that the goals of "protecting [D]efendant's reputation from harm" and "minimizing `strike suits' and `fishing expeditions'" do not sufficiently weigh in favor of granting a motion to dismiss or motion for more definite statement in this case. Vicom, 20 F.3d at 777. In so finding, the Court emphasizes that it must "accept as true the well-pleaded factual allegations in the complaint and construe the complaint in the light most favorable to the plaintiff." Herrmann, 302 F.3d at 557. Robinette v. Griffith, cited by Defendant, is distinguishable because there the court dismissed a "bare allegation of fraud," finding that "[t]he plaintiffs complaint alleges none of the elements of fraud or circumstances which surrounded defendant's violation." 483 F.Supp. at 31. Here, by contrast, Plaintiff alleges all of the elements of a cause of action under 49 U.S.C. § 32710(a) and explains how Defendant's alleged misrepresentation of mileage has harmed Plaintiff, as discussed supra. Levine v. MacNeil, also cited by Defendant, found without analysis that the plaintiffs complaint satisfied Rule 9(b). Defendant has not presented any authority, and the Court finds none, for the proposition that a plaintiff must plead the manner in which a defendant internally arrived at the allegedly fraudulent statement before speaking it. See also Herrmann, 302 F.3d at 564-65. Because Plaintiff has satisfied the requirements of Rule 9(b), Defendant's motion for a more definite statement should be DENIED. V. CONCLUSION For all of these reasons, Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Dkt. No. 7) is hereby 639 DENIED. Defendant's Motion to Dismiss and Alternative Motion for a More Definite Statement (Dkt. No. 8) is also hereby DENIED. NOTES [1] At least at the time of filing of the present motion, defendant Nissan Motor Co., Ltd. had not been served. Dkt. No. 7 at 2, footnote 1.	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-79,378-01 IN RE HERMAN BENARD, Relator ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NO. 95033-A FROM JEFFERSON COUNTY Per curiam. O R D E R Relator has filed a motion for leave to file an application for a writ of mandamus pursuant to the original jurisdiction of this Court. In it, he contends that he filed an application for a writ of habeas corpus in the 252nd District Court of Jefferson County, that more than 35 days have elapsed, and that the application has not yet been forwarded to this Court. Relator contends that the district court entered an order designating issues on September 26, 2012. Respondent, the Judge of the 252nd District Court of Jefferson County, shall file a response with this Court by having the District Clerk submit the record on such habeas corpus application. In the alternative, Respondent may resolve the issues set out in the order designating issues and then have the District Clerk submit the record on such application. In either case, Respondent's answer shall be submitted within 30 days of the date of this order. This application for leave to file a writ of mandamus will be held in abeyance until Respondent has submitted his response. Filed: May 8, 2013 Do not publish	{ "pile_set_name": "FreeLaw" }
Case: 14-50002 Document: 00512895169 Page: 1 Date Filed: 01/08/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 14-50002 FILED January 8, 2015 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, versus TOMMY GARCIA, Defendant–Appellant. Appeal from the United States District Court for the Western District of Texas No. 3:13-CR-1512-1 Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges. JERRY E. SMITH, Circuit Judge:* Tommy Garcia appeals his 63-month sentence for importing and possess- ing marihuana with intent to distribute. He urges that the court plainly erred * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 14-50002 Document: 00512895169 Page: 2 Date Filed: 01/08/2015 No. 14-50002 in assessing criminal history points for convictions that occurred more than ten years before the instant offense and therefore should not have been consid- ered. Because the circumstances do not qualify for plain-error relief, we affirm. I. In May 2003, Garcia pleaded guilty of assault and domestic violence and was sentenced to 180 days in jail, suspended in favor of one year of probation. Later that month, he pleaded guilty of driving while impaired and was sen- tenced to another suspended 180 days. In September 2006, both probationary terms were revoked, and Garcia received concurrent 90-day jail terms. Garcia committed the instant offense in June 2013. The presentence investigation report included four criminal history points for the 2003 convic- tions, yielding a guidelines range of 63 to 78 months. At sentencing, Garcia did not challenge the assessment of those points. The court imposed concur- rent 63-month sentences. In explaining its decision, the court made the follow- ing comments regarding Garcia’s criminal history: The problem is that when you decided to come down here―and this offense was committed down here and it’s a federal offense—it puts you in a position of being a long distance from your mother, from your family. And you know, all I can do—though I appreciate the difficulties— and hopefully, while you’re incarcerated, you’ll get some help, and I’m going to recommend that—you know, various kinds of help. But I I— hopefully, you’ll get—and I can recommend a facility close to where your mother is located. But you’re looking—I mean, you have a long criminal history. The combination of this offense and your long crim- inal history puts you in a—in a bad situation. .... Based on the information provided, the circumstances of this case, your particular circumstances, in keeping with the factors of 3553(a), the goals of the sentencing guidelines, . . . a fair and reasonable sen- tence in this case is . . . 63 months of incarceration. 2 Case: 14-50002 Document: 00512895169 Page: 3 Date Filed: 01/08/2015 No. 14-50002 Now, I’m going to have it run concurrently on both counts. I know there were some objections regarding the criminal history scoring,[ 1] but I have to say to you that given your criminal history, given the deci- sion to get involved in this, I certainly think that the 63 months is fair and reasonable and appropriate under your circumstances. II. Plain-error review applies because Garcia raised his claim for the first time on appeal. United States v. Duque-Hernandez, 710 F.3d 296, 298 (5th Cir.), cert. denied, 134 S. Ct. 450 (2013). There are four requirements: (1) there must be an error or defect—some sort of [d]eviation from a legal rule—that has not been intentionally relinquished or abandoned; (2) the legal error must be clear or obvious, rather than subject to rea- sonable dispute; (3) the error must have affected the appellant’s sub- stantial rights; and (4) if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.[ 2] Garcia has satisfied the first prong: A sentence is counted for criminal- history purposes if, inter alia, it “was imposed within ten years of the defen- dant’s commencement of the instant offense.” U.S. SENTENCING GUIDELINES MANUAL § 4A1.2(e)(2) (2013). In the case of a revocation of probation, the date on which the sentence was “imposed” is “the date of the original sentence” where the term of imprisonment was one year and one month or less, and the defendant committed the offense on or after his eighteenth birthday. Id. § 4A1.2(k)(2). Because Garcia’s sentences were imposed in May 2003, more than ten years before his commission of the instant offense in June 2013, the court erred in considering them. 1 The objections mentioned here are unrelated to this appeal. 2 United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (alter- ations in original) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)) (internal quota- tion marks omitted). 3 Case: 14-50002 Document: 00512895169 Page: 4 Date Filed: 01/08/2015 No. 14-50002 Garcia has also satisfied the second prong. We have held that this type of miscalculation constitutes plain error, 3 and those precedents control. Garcia has not satisfied the third prong, however. “A sentencing error affected a defendant’s substantial rights if there is a ‘reasonable probability that, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence.’” 4 “Where . . . the sentence . . . falls inside both the correct and incorrect guidelines ranges, ‘we have shown considerable reluc- tance in finding a reasonable probability that the district court would have settled on a lower sentence.’” 5 In that situation, “we do not assume, in the absence of additional evidence, that the sentence affects a defendant’s substan- tial rights.” Id. Although such evidence exists if the court “indicat[ed] that the Guidelines range calculated . . . was a primary factor in the selection of the . . . sentence,” 6 mere “casual statements,” 7 “vague and ambiguous” comments, 8 or “evidence . . . of ambiguous or uncertain effect” 9 is insufficient. The 63-month sentence is within both the correct range of 57 to 71 months and the incorrect range of 63 to 78 months. Accordingly, Garcia must show that the court indicated the range was a primary factor in its decision; he has not done so, nor could he: The court told him that “[t]he combination of United States v. Avalos-Martinez, 700 F.3d 148, 153 (5th Cir. 2012) (per curiam), 3 cert. denied, 133 S. Ct. 1276 (2013); United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir. 2006). Avalos-Martinez, 700 F.3d at 153 (quoting United States v. John, 597 F.3d 263, 285 4 (5th Cir. 2010)). United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010) (per curiam) (quoting 5 United States v. Campo-Ramirez, 379 F. App’x 405, 409 (5th Cir. 2010) (per curiam)). 6 United States v. Pratt, 728 F.3d 463, 482 (5th Cir. 2013), cert. denied, 134 S. Ct. 1328 (2014). 7 Id. 8 United States v. Mudekunye, 646 F.3d 281, 290 (5th Cir. 2011) (per curiam). 9 Campo-Ramirez, 379 F. App’x at 409. 4 Case: 14-50002 Document: 00512895169 Page: 5 Date Filed: 01/08/2015 No. 14-50002 this offense and your long criminal history puts you in a—in a bad situation” and that “given your criminal history, given the decision to get involved in this, I certainly think that the 63 months is fair and reasonable and appropriate under your circumstances.” Those comments demonstrate that the court con- sidered Garcia’s criminal history, but they do not clearly show that the range was a primary factor. Instead, they are similar to the ambiguous statements that we have found inadequate. 10 The same is true of the other evidence Garcia identifies: the court’s consideration of mitigating circumstances and the fact that the sentence was at the bottom of the incorrect range. Garcia is correct that “sentences falling at the absolute minimum of the Guidelines provide the strongest support for the argument that the judge would have imposed a lesser sentence.” United States v. Rodriguez-Gutierrez, 428 F.3d 201, 205 (5th Cir. 2005). But “[a]lthough we do not hold that this fact alone will establish that the . . . error affected the defendant’s substantial rights, we do consider it to be highly proba- tive, when taken together with relevant statements by the sentencing judge indi- cating disagreement with the sentence imposed.” Id. (emphasis added). There is no suggestion of such a disagreement here. The court analyzed the mitigating circumstances and imposed a sentence at the low margin of the identified range, but it also emphasized Garcia’s criminal history and decision to commit yet another crime. That evidence does not clearly show that the guideline range was a primary factor, so Garcia has not established that the error affected his substantial rights. AFFIRMED. 10See, e.g., Blocker, 612 F.3d at 416 (in which court noted it was sentencing defendant to “about the middle of the guidelines range”); Campo-Ramirez, 379 F. App’x at 407 (explain- ing “that a sentence at the low end of the range is appropriate”). 5	{ "pile_set_name": "FreeLaw" }
706 F.2d 316 U. S.v.Yero 82-5404 UNITED STATES COURT OF APPEALS Eleventh Circuit 5/5/83 1 S.D.Fla. AFFIRMED 2 --------------- Fed.R.App. P. 34(a); 11th Cir. R. 23.	{ "pile_set_name": "FreeLaw" }
542 U.S. 932 CORTEZ-CARRASCOv.UNITED STATES. No. 03-10544. Supreme Court of United States. June 21, 2004. 1 C. A. 9th Cir. Certiorari denied. Reported below: 81 Fed. Appx. 638.	{ "pile_set_name": "FreeLaw" }
691 F.Supp.2d 632 (2010) EMI APRIL MUSIC INC., Yelapa Songs, Universal-Polygram International Publishing, Inc., Sony/ATV Harmony, Byefall Productions Inc., Gwen Stefani d/b/a Harajuku Lover Music, Word Music, LLC, Song of Cash Music, and Wayne Goodine Music, Plaintiffs, v. Estuardo Valdemar RODRIGUEZ and Leonor Rodriguez, Defendants. No. 1:09CV432. United States District Court, M.D. North Carolina. March 8, 2010. 634 Michael John Allen, Carruthers & Roth, P.A., Greensboro, NC, for Plaintiffs. MEMORANDUM OPINION THOMAS D. SCHROEDER, District Judge. Before the court is a motion for default judgment filed by Plaintiffs seeking certain relief for copyright infringement. (Doc. 18.) Default has been entered against Defendants, who have failed to respond to the present motion. For the reasons set forth below, the motion will be granted. I. BACKGROUND This is an action for alleged willful infringement of Plaintiffs' copyrights in six musical compositions by unauthorized performances at WLLQ radio station in Chapel Hill, North Carolina, and WLLY radio station in Wilson, North Carolina, owned and operated by Defendants under a license granted by the Federal Communications Commission. Plaintiffs are members of the American Society of Composers, Authors and Publishers ("ASCAP"), which holds a non-exclusive right to license non-dramatic public performances of their copyrighted musical compositions. Plaintiffs allege that Defendants willfully infringed copyright by giving public performances of the following protected compositions from January 29, 2008, through March 25, 2008: "Corazon Espinado," "Toxic," "The Sweet Escape," "Some Golden Daybreak," "Over the Next Hill We'll Be Home," and "I Bless Your Name." (Doc. 1.) The complaint seeks injunctive relief, unspecified statutory damages between $750 and $150,000, and costs and reasonable attorneys' fees. (Id.) Plaintiffs filed their complaint on June 17, 2009, and copies of it and summonses were served on each Defendant. Defendants failed to respond to the complaint, and on July 16, 2009, defaults were entered against them. (Doc. 17.) Plaintiffs moved for default judgment on September 24, 2009, and served notice on Defendants. (Doc. 18.) Defendants have failed to file any response. II. ANALYSIS Federal Rule of Civil Procedure 55(b)(2) requires that a plaintiff apply to the court for a default judgment where the claim is not for a sum certain. Though the motion for default judgment is unopposed, the court must exercise sound judicial discretion to determine whether default judgment should be entered as a matter of right. EMI April Music, Inc. v. White, 618 F.Supp.2d 497, 505 (E.D.Va.2009) (citation omitted). Defendants were properly served with the complaint and summonses and failed to respond. They were also served with Plaintiffs' motion for default judgment. Plaintiffs have supported their motion for default judgment with a memorandum of law as well as two affidavits detailing ASCAP's dealings with Defendants, evidence of infringement, evidence related to the damages sought, and costs and attorneys' fees expended in prosecution of this case. Defendants similarly failed to appear or indicate any desire to respond to the motion. Plaintiffs represent that Defendants are not infants, incompetents or in the military service. Defendants' recalcitrance should not delay Plaintiffs' entitlement to relief, and the court concludes that a default judgment is appropriate in this case. SEC v. Lawbaugh, 359 F.Supp.2d 418, 421 (D.Md.2005) (noting that judgment by default is available where the "adversary process has been halted because of an essentially unresponsive party"). 635 A. Injunctive Relief Under the Copyright Act of 1976, this court may grant an injunction to prevent or restrain copyright infringement. 17 U.S.C. § 502(a). Injunctive relief is appropriate where the nature of the infringement prevents a plaintiff from obtaining an adequate remedy at law. Jasperilla Music Co., M.C.A., Inc. v. Wing's Lounge Ass'n, 837 F.Supp. 159, 161 (S.D.W.Va.1993) (citation omitted). A permanent injunction is appropriate where infringement has been proven and a threat of continuing infringement exists. Bonnyview Music Corp. v. Jones E. of the Grand Strand, Inc., No. C.A. 4:XX-XXXX-XX, 1992 WL 459580, 3 (D.S.C. Nov. 9, 1992). A permanent injunction is not automatic, however, and a plaintiff must satisfy the traditional analysis. eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391-94, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). In eBay, the Court noted: According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Id. at 391, 126 S.Ct. 1837. In this case, the affidavit of Pamela Blank, account manager of ASCAP's Broadcast Licensing Department ("Blank Affidavit"), establishes that Defendants have operated radio stations WLLQ and WLLY in violation of copyright law. WLLQ and WLLY were treated as licensed by ASCAP prior to June 22, 2007, but Defendants consistently failed to pay license fees and meet other obligations owed to ASCAP. As a result, ASCAP, after due notice, informed Defendants it would no longer treat their radio stations as licensed. This notice was sent only after repeated requests for payment of past due license fees and reminders of Defendants' liability under United States copyright law. Notwithstanding such notices and warnings, Defendants continued to perform copyrighted music, including the six performances sued on, without permission by broadcasting over radio stations WLLQ and WLLY. Further, Defendants own and operate six other radio stations in North Carolina. Although Defendants have not licensed any of these stations by ASCAP either, all continue to perform ASCAP-copyrighted music without permission. Defendants' failure to appear in this litigation demonstrates their refusal to acknowledge their legal obligations, makes the threat of continued infringement likely, and underscores the ineffectiveness of a remedy at law. The court finds that Defendants have infringed Plaintiffs' copyrights and that such infringement was willful and intentional. Based on the above, the court finds that Plaintiffs have suffered irreparable injury, monetary damages are inadequate to provide a complete remedy, the balance of hardships tips in Plaintiffs' favor, and the public interest is served by protecting Plaintiffs' intellectual property rights through enjoining further violations. B. Statutory Damages The Copyright Act provides that a copyright owner may elect to recover, in lieu of actual damages and profits, an award of statutory damages in a sum of not less than $750 or more than $30,000, as 636 the court considers just. 17 U.S.C. § 504(c)(1). In the case of willful infringement, the court may increase the award of statutory damages to an amount not exceeding $150,000 for each composition infringed. 17 U.S.C. § 504(c)(2). The determination of the amount of damages within the statutory range lies within the court's discretion. F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 231-32, 73 S.Ct. 222, 97 L.Ed. 276 (1952). Among the factors the court can consider are "the expenses saved and profits reaped by the defendants in connection with the infringements, the revenues lost by the plaintiffs as a result of the defendants' conduct, and the infringers' state of mind whether wilful, knowing or merely innocent." Boz Scaggs Music v. KND Corp., 491 F.Supp. 908, 914 (D.Conn.1980). The standard for willfulness is whether the defendant knew that his conduct represented infringement or recklessly disregarded that possibility. Hamil Am., Inc. v. GFI, 193 F.3d 92, 97 (2d Cir.1999). Where a plaintiff seeks statutory rather than actual damages based on a defendant's knowing and deliberate infringement, courts typically award substantially more than the minimum of statutory damage and more than an infringer would have paid in license fees. See, e.g., EMI April Music, 618 F.Supp.2d at 508-09; Broadcast Music, Inc. v. Boogie Down Prods., Inc., No. 1:04-CV-3526, 2006 WL 2619820 (N.D.Ga. May 9, 2006); Jobete Music Co., Inc. v. Media Broad. Corp., 713 F.Supp. 174 (M.D.N.C.1988). As the Supreme Court has noted, an award of substantial statutory damages serves the deterrent purpose of the statute: [A] rule of liability which merely takes away the profits from an infringement would offer little discouragement to infringers. It would fall short of an effective sanction for enforcement of the copyright policy. The statutory rule, formulated after long experience . . . also is designed to discourage wrongful conduct. F.W. Woolworth, 344 U.S. at 233, 73 S.Ct. 222. At a minimum, it should not cost less to violate the statute than to comply with it. EMI April Music, 618 F.Supp.2d at 508 (citing Music City Music v. Alfa Foods, Ltd., 616 F.Supp. 1001, 1003 (E.D.Va.1985)). In this case, Plaintiffs offer no proof of actual damages but instead seek statutory damages. Plaintiffs have established that Defendants knowingly and deliberately infringed Plaintiffs' copyrights. Defendants were well aware of their obligations to pay Plaintiffs' license fees for musical performances of copyrighted works aired on radio stations WLLQ and WLLY. However, even after ASCAP informed Defendants it would no longer treat their stations as licensed and made repeated requests for payments of past due license fees and gave reminders of their liability under copyright law, Defendants continued to perform copyrighted music without permission virtually every hour that their stations were on the air. Moreover, Defendants continue to play copyrighted music over at least six other radio stations they own and operate in North Carolina without payment of license fees.[1] The court finds that Defendants' actions demonstrate that statutory damages in excess 637 of unpaid ASCAP license fees are appropriate as a effective sanction. Plaintiffs have established that had Defendants' radio stations WLLQ and WLLY been properly licensed by ASCAP, they would owe approximately $38,901.59 ($25,520.50 for radio station WLLQ and $13,381.09 per radio station WLLY). Plaintiffs request an award of $19,000 for infringement, for a total of $114,000, an amount less than three times the license fees that would have been owed had Defendants properly been licensed. In light of the evidence that Defendants have continued to violate copyright virtually every hour their stations are on the air, the court, in its discretion, concludes that statutory damages in the amount of $77,803.14 is appropriate. This amounts to $12,967.19 per violation and represents twice the proper license fee had Defendants complied with law. See EMI April Music, 618 F.Supp.2d at 509 (imposing statutory damages approximately twice the license fee); EMI Mills Music, Inc. v. Empress Hotel, Inc., 470 F.Supp.2d 67, 76 (D.P.R.2006) (imposing statutory damages of $15,000 per infringement for a total of $60,000, approximately three times the remaining payments due on the license fee). C. Costs and Reasonable Attorneys Fees The court may award a prevailing party full costs and reasonable attorneys' fees. 17 U.S.C. § 505. Costs and attorneys' fees are not awarded as a matter of course; rather, both lie wholly in the court's discretion. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). In determining whether an award of attorneys' fees should be made for copyright violations under 17 U.S.C. § 505, the Fourth Circuit has articulated four factors for consideration: (1) the motivation of the parties; (2) the objective reasonableness of the legal and factual positions advanced; (3) the need in particular circumstances to advance considerations of compensation and deterrence; and (4) any other relevant factor. Diamond Star Bldg. Corp. v. Freed, 30 F.3d 503, 505 (4th Cir.1994) (citation omitted). In this case, Plaintiffs' motivation was to vindicate its rights granted by Congress under the Copyright Act. Plaintiffs demonstrated that their legal and factual positions are objectively reasonable. Indeed, Defendants failed even to respond to the lawsuit. In response to Plaintiffs' multiple warnings and attempts to obtain compliance, Defendants simply thumbed their noses at their legal obligations. This is a textbook case of the need to encourage the bringing of such actions where attempts to resolve the matter have been repudiated. The court finds, therefore, that an award of attorneys' fees is appropriate. Plaintiffs have supported their requests for attorneys' fees with a declaration of its counsel, Michael J. Allen. In determining the reasonableness of any fee award, the court applies the factors set forth in EEOC v. Serv. News. Co., 898 F.2d 958, 965 (4th Cir.1990). Each factor is addressed in turn, where applicable. 1. Time and Labor Expended Plaintiffs' counsel has to date expended 12.1 hours, and his paralegals have expended 5.5 hours. 2. Novelty/Difficulty of Questions Raised The court acknowledges that copyright actions are not common and are handled by specialized lawyers, although no unusual questions of law were presented in this case. 3. Skill Required to Perform Legal Services Familiarity with copyright laws is required, and Plaintiffs' counsel, who has 638 handled copyright cases for 25 years, has considerable expertise in this area. 4. Counsel's Opportunity Costs in Pressing the Litigation No lost opportunity costs has been identified by counsel in his handling of this matter. 5. Customary Fee for Similar Work Counsel charged $285 per hour for his time and $125 per hour for his paralegals. The court finds that these amounts are well within the customary rates in the prevailing legal community. 6. Counsel's Expectations at the Outset of Litigation Counsel has obtained the desired result in obtaining injunctive relief and statutory damages. 7. Limitations Imposed by the Client or the Circumstances None was identified. 8. Amount in Controversy and Results Obtained The amount of recovery is not insignificant, and counsel has obtained favorable compensation. 9. Counsel's Experience, Reputation and Ability As previously mentioned, Mr. Allen enjoys a reputation as a specialist in copyright and trademark law. He is a frequent lecturer on the topic, active in the American and North Carolina Bar Associations' Intellectual Property Law sections, lectures on copyright law and litigation at the college level, and has served as an expert consultant in a copyright and infringement litigation matter. 10. Undesirability of the Case Within the Legal Community This factor does not apply in this case. 11. Nature and Length of the Professional Relationship Between the Attorney and the Client This factor has not been identified by counsel. 12. Attorneys Fees and Awards in Similar Cases Plaintiffs represent that they have incurred costs in the amount of $523.56 and attorneys' fees in the amount of $4,136.00, for a total of $4,659.56. The requested fee award is reasonable, compares favorably with that of similar cases, and therefore shall be awarded. Cf. EMI April Music, 618 F.Supp.2d at 513 (awarding $2,875 in attorneys' fees and $417.59 in costs); Jobete Music, 713 F.Supp. at 180 (awarding costs and fees of $2,432.47). III. CONCLUSION For the foregoing reasons, Plaintiffs' motion for default judgment (Doc. 18) shall be granted, and Defendants shall be enjoined permanently from further copyright infringement of the protected works to which Plaintiffs hold a right to grant licenses or which are in the repertory of ASCAP. Plaintiffs shall recover statutory damages in the amount of $77,803.14, reasonable attorneys' fees in the amount of $4,136, and costs in the amount of $523.56. NOTES [1] Evidence of infringement on Defendants' six radio stations not made the basis of the complaint is considered solely for the purpose of assessing Defendants' willfulness and the amount of damages that should be imposed for the six compositions made the basis of this case; the court does not award damages for performances on stations not made the basis of the complaint.	{ "pile_set_name": "FreeLaw" }
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-1132V Filed: February 5, 2018 Not for Publication ************************************* CHERON GOLDING, * * Petitioner, * * Interim attorneys’ fees and costs v. * decision; respondent defers to * Special Master’s discretion SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************************* Randall G. Knutson, Mankato, MN, for petitioner. Glenn A. MacLeod, Washington, DC, for respondent. MILLMAN, Special Master DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1 On January 15, 2018, petitioner filed a motion for interim attorneys’ fees and costs, requesting attorneys’ fees of $51,737.25 and attorneys’ costs of $3,917.31, for a total request of $55,654.56. No decision on entitlement has been issued. For the reasons set forth below, the undersigned awards petitioner $35,678.27 in interim attorneys’ fees and costs incurred up to and including December 15, 2017. PROCEDURAL HISTORY 1 Because this unpublished decision contains a reasoned explanation for the special master’s action in this case, the special master intends to post this unpublished decision on the United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the public unless they contain trade secrets or commercial or financial information that is privileged and confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact such information prior to the document’s disclosure. If the special master, upon review, agrees that the identified material fits within the banned categories listed above, the special master shall redact such material from public access. On September 13, 2016, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012) alleging that she suffered transverse myelitis, neuromyelitis optica (“NMO”), diplopia, dysarthria, facial droop, extreme incontinence and constipation, paresthesia, numbness and weakness to all extremities, and gait dysfunction as a result of her October 17, 2013 receipt of the influenza (“flu”) vaccine. Pet. Preamble. During the first status conference held on October 18, 2016, the undersigned noted that this is a good case for settlement. During a status conference held on April 18, 2017, the undersigned ordered petitioner to make a demand on respondent. On July 11, 2017, petitioner made a demand on respondent. On September 14, 2017, respondent asked for additional information from petitioner in order to evaluate her demand. Petitioner filed additional documents on November 15, 2017, December 13, 2017, and January 15, 2018 and filed her amended statement of completion on January 15, 2018. During a status conference held on January 29, 2018, the undersigned ordered respondent to respond to petitioner’s demand and file a status report saying he has done so by February 28, 2018. On January 15, 2018, petitioner filed a motion for interim attorneys’ fees and costs, requesting attorneys’ fees of $51,737.25 and attorneys’ costs of $3,917.31, for a total request of $55,654.56. On January 29, 2018, respondent filed a response to petitioner’s motion. Respondent deferred to the undersigned to determine whether or not petitioner has met the legal standard for an interim fees and costs award. Reply at 2. With that exception, respondent is satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in this case. Id. The matter of petitioner’s interim attorneys’ fees and costs is now ripe for adjudication. DISCUSSION I. Interim Fee Awards are Appropriate Under the Vaccine Act The Federal Circuit ruled that interim fee awards are permissible under the Vaccine Act in Avera v. Secretary of Health and Human Services, 515 F.3d 1343, 1352 (Fed. Cir. 2008). The Federal Circuit again found interim fee awards appropriate under the Vaccine Act in Shaw v. Secretary of Health and Human Services, 609 F.3d 1372 (Fed. Cir. 2010). A. Interim Fees are Appropriate in This Case In Avera, the Federal Circuit held that while interim fees are not banned by the statute, they were not appropriate in that case because appellants sought only higher fees after dismissal of their case. 515 F.3d at 1352. The Federal Circuit stated, “Interim fees are particularly 2 appropriate in cases where proceedings are protracted and costly experts must be retained.” Id. In denying an interim fee award, the Federal Circuit reasoned, “The amount of fees here was not substantial; appellants had not employed any experts; and there was only a short delay in the [fees] award pending the appeal.” Id. Respondent did not object to petitioner’s motion for interim attorneys’ fees and costs in his response and deferred to the undersigned to exercise her discretion to award interim fees and costs in this case. 1. Good Faith & Reasonable Basis Petitioner is entitled to a presumption of good faith. There is no evidence that this petition was brought in bad faith. Therefore, the undersigned finds that the good faith requirement is met. The undersigned reviewed petitioner’s medical records before the first status conference in this case and advised the parties in several status conferences that this is a good case for settlement. In Calise, the undersigned found petitioner developed NMO due to the receipt of flu vaccine. Calise v. Sec’y of HHS, No. 08-865V, 2011 WL 1230155 (Fed. Cl. Spec. Mstr. Mar. 14, 2011). Because this case appears to have a reasonable basis, the undersigned awards interim attorneys’ fees and costs. 2. Protracted Proceedings Additionally, interim attorneys’ fees and costs are appropriate because waiting for the conclusion of the case would place an undue hardship on petitioner. Petitioner’s case has been pending for over 16 months. Thus, the undersigned finds an award of interim fees and costs appropriate at this juncture in the case. II. Reasonableness of Requested Attorneys’ Fees and Costs A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d 1343, 1348. This rate is based on “the forum rate for the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner’s attorney.” Rodriguez v. Sec’y of HHS, 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera, 515 F. 3d at 1349). For cases in which forum rates apply, McCulloch provides the framework for determining the appropriate hourly rate range for attorneys’ fees based upon the attorneys’ experience. See McCulloch v.Sec’y of HHS, No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Once the applicable hourly rate is determined, it is applied to the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of HHS, 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 3 434 (1983)). Counsel must submit fee requests that include contemporaneous and specific billing entries indicating the task performed, the number of hours expended on the task, and who performed the task. See Savin v. Sec’y of HHS, 85 Fed. Cl. 313, 316–18 (Fed. Cl. 2008). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. Furthermore, the special master may reduce fees sua sponte, apart from objections raised by respondent and without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of HHS, 86 Fed. Cl. 201, 208–09 (Fed. Cl. 2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of HHS, 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). In her motion, petitioner requests a total of $55,654.56, comprised of $51,737.25 for attorneys’ fees and $3,917.31 for attorneys’ costs, incurred by Knutson & Casey Law Firm. The undersigned finds it necessary to reduce the hourly rates requested for counsel Mr. Knutson and his paralegal. Also, some billing entries are not compensable. 1. Appropriate Hourly Rates Mr. Knutson billed at a rate of $365.00 for his work performed in 2015, 2016 and 2017, and $130.00 for his paralegal’s work performed in 2015, 2016 and 2017. Doc. 28-2. Both amounts exceed rates previously awarded for Mr. Knutson in this Program. Spivak v. Sec’y of HHS, No. 16-0070V, 2017 WL 6503606 (Fed. Cl. Spec. Mstr. May 26, 2017); Deckert v. Sec’y of HHS, No. 16-0562V (Fed. CL. Spec. Mstr. May 17, 2017). As is consistent with other cases, Mr. Knutson is awarded $295.00 per hour for counsel’s work performed in 2015 and 2016 and $75.00 per hour for his paralegal’s work in 2015 and 2016. The undersigned awards the increased rate of $365.00 for Mr. Knutson and $130.00 for his paralegal for hours billed in 2017. Miller v. Sec’y of HHS, No. 17-0106V (Fed. Cl. Spec. Mstr. Jan. 19, 2018). As Mr. Knutson billed 56.55 hours of time for his work at a rate of $365.00 in 2015 and 2016, 37.2 hours of time for his traveling at a rate of $182.50 in 2016, and 54.7 hours for his paralegal’s work at a rate of $130.00 in 2015 and 2016, the undersigned reduces petitioner’s interim attorneys’ fees by $8,269.00. 2. Reduction of Billable Hours a. Research Petitioner’s counsel billed a total of 7.5 hours for time spent researching “case settlements for seizures and vaccines,” “shingles and tranverse myelitis,” “caselaw including Shyface, Mura, and Calise regarding damages and burden of proof,” “recent settlement for Transverse Myelitis and all court decisions,” and “stipulations and settlements.” Doc 28-2, at 5- 7, 10 (entries dated 1/24/2016; 10/17/2016; 10/18/2016; 1/17/2017; 4/17/2017). The full amount of this time should not be compensated as “it is inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine Program.” Matthews v. Sec’y of HHS, 4 No. 14-1111V, 2016 WL 2853910, at 2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). “An inexperienced attorney may not ethically bill his client to learn about an area of law in which he is unfamiliar. If an attorney may not bill his client for this task, the attorney may also not bill the Program for this task.” Carter v. Sec’y of HHS, No. 04-1500V, 2007 WL 2241877, at 5 (Fed. Cl. Spec. Mstr. July 13, 2007). Mr. Knutson has 25 years of experience and this is not his first case in the Vaccine Program. Therefore, the undersigned finds the total 7.5 hours of research is not compensable and resulting in a further deduction of $2,331.50. b. Clerical Tasks Bedrock caselaw states that billing for clerical and other secretarial work is not permitted in the Vaccine Program. Rochester v. United States, 18 Cl.Ct. 379, 387 (1989) (denied an award of fees for time billed by a secretary and found that “[these] services … should be considered as normal overhead office costs included within the attorneys’ fees rates”); Guerrero v. Sec’y of HHS, 124 Fed. Cl. 153, 156 (2015)(noting that “purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them”); Mostovoy v. Sec’y of HHS, 2016 WL 720969, at 5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016). Petitioner’s counsel’s billing records contain multiple entries that are best characterized as administrative tasks, such as scanning records, scheduling meetings, and reviewing invoices. For instance, counsel billed a combined 2.8 paralegal hours for scanning records, making labels and opening the file. Doc 28-2, at 12, 13 (entries dated 4/16/2015; 6/1/2016; 7/15/2016). Counsel billed 0.5 hours for reviewing medical bills from providers. Id. at 2. Counsel billed 4.1 paralegal hours to obtain medical records. Id. at 12-16 (entries dated 4/21/2015; 11/24/2015; 2/3/2016; 6/1/2016; 1/10/2017; 1/6/20172; and 12/11/2017). Throughout the billing invoices, counsel and his paralegal billed 0.1 to 0.2 hours for reviewing a status conference order, reviewing a scheduling order, and reviewing a minute entry for proceeding. Id. at 1-7 (entries dated 9/13/2016; 9/22/2016; 9/28/2016; 10/18/2016; 11/22/2016; 1/9/2017; 3/16/2017; 3/29/2017; 4/19/2017; 6/19/2017; 7/18/2017; 9/21/2017; and 10/5/2017) and at 13-16 (entries dated 9/13/2016; 9/14/2016; 9/21/2016; 9/27/2016; 11/22/2016; 1/9/2017; 3/16/2017; 3/28/2017; 4/18/17; 8/31/2017; 9/18/2017; 10/5/2017; 11/14/2017; and 12/14/2017). Beyond the fact that this is clerical work billed at counsel’s and paralegals’ rates, the undersigned cannot imagine how it takes six to twelve minutes to enter a date, or even three dates, on one’s calendar. These types of entries are clerical in nature and do not constitute billable time. Accordingly such entries will be deducted from the fee award, amounting to a further reduction of $1,892.00. c. Paralegal Work The undersigned will pay counsel for work which could be performed by a paralegal but will do so at a reasonable rate for a paralegal, $75.00 per hour in 2015 and 2016 and $130.00 per hour in 2017. 2 It should be 1/16/2017 according to the timeline order this entry was entered. 5 “Tasks that can be completed by a paralegal or a legal assistant should not be billed at an attorney’s rate.” Riggins v. Sec’y of HHS, No. 99-382V, 2009 WL 3319818, at 21 (Fed. Cl. Spec. Mstr. June 15, 2009). “The rate at which such work is compensated turns not on who ultimately performed the task but instead turns on the nature of the task performed.” Doe/11 v. Sec’y of HHS, 2010 WL 529425, at 9 (Fed. Cl. Spec. Mstr, Jan. 29, 2010). In this case, counsel billed a total of 0.4 hours at a $365.00 hourly rate when performing filings and requesting medical records. Doc 28-2 (entries dated: 9/11/2017; 12/13/2017). The undersigned will pay $52.00 for this work rather than the $146.00 petitioner seeks. d. Vague, Duplicative and Excessive Billing Entries Petitioner’s counsel’s billing records contain a high volume of vague, duplicative, and excessive billing entries. The undersigned has previously decreased an award of attorneys’ fees for vagueness. Barry v. Sec’y of HHS, 12-39V, 2016 WL 6835542 (Fed. Cl. Spec. Mstr. Oct. 25, 2016) (reduced a fee award by 10 percent due to vague billing entries). An application for fees and costs must sufficiently detail and explain the time billed so that a special master may determine, from the application and the case file, whether the amount requested is reasonable. Bell v. Sec’y of HHS, 18 Cl.Ct. 751, 760 (1989); Rodriguez v. Sec’y of HHS, 2009 WL 2568468 (Fed. Cl. Spec. Mstr. June 27, 2009). Petitioners bear the burden of documenting the fees and costs claimed. Id. at 8. Special masters have previously reduced the fees paid to petitioners due to excessive and duplicative billing. See Ericzon v. Sec’y of HHS, No. 10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10 percent due to excessive and duplicative billing); Raymo v. Sec’y of HHS, No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691 (2016). Special masters have previously noted the inefficiency that results when cases are staffed by multiple individuals and have reduced fees accordingly. See Sabella, 86 Fed. Cl. at 209. After reviewing the billing records, the undersigned finds that petitioner’s counsel and paralegal included entries that are so vague that they do not provide enough information to determine whether the task is reasonable and compensable. Several of the entries are simply for a review of the file, a review of an email or a message from client, “T client,” or “PC w/ client,” but do not explain for what purpose the file needed to be reviewed when counsel was actively involved in the case, what the email or message from client was about, and for what purpose counsel and the paralegal were having a telephonic conference with petitioner. Doc 28-2, at 1- 10 (entries dated 3/24/2015; 4/25/2016; 6/1/2016; 1/9/2017; 4/28/2017; 6/7/2017; 7/11/2017; 10/12/2017; 11/6/2017; and 11/13/2017) and at 13-14 (entries dated 7/21/2016; 12/22/2016; 1/3/2017; 3/22/2017; and 10/10/2017). Moreover, the undersigned finds that counsel included entries that are duplicative due to both attorney and paralegal billing for review of the same notices or documents and drafting the same documents regarding the same matters. For example, both counsel and his paralegal billed for: drafting the filing of Exhibit 13 on April 18, 2017; drafting the notice of intent to remain in 6 the Program on May 11, 2017; reviewing the 240-day order on May 11, 2017; and drafting a status report on June 16, 2017 and June 19, 2017. Doc 28-2, at 1-16. For these entries, the undersigned pays the paralegal hours only. Many billing entries which are clerical in nature as mentioned before are duplicative as well.3 In addition, the paralegal billed for attending a status conference together with counsel on October 18, 2016, January 9, 2017, August 30, 2017, and November 14, 2017. Doc 28-2, at 14-16. The undersigned finds these paralegal hours not compensable. Lastly, counsel billed a combined 16.3 hours4 of counsel time and 54 hours5 of paralegal time for reviewing and summarizing 1,362 pages of medical records. The undersigned finds this an excessive amount of time based on her over 26 years of experience in the Program. The undersigned recognizes 20 hours of paralegal time for reviewing and summarizing the records and 7 hours of counsel time for reviewing them. Accordingly, the undersigned further reduces the fee request by $7,389.79. Thus, the total amount of attorneys’ fees for Knutson & Casey Law Firm is reduced by $19,976.29 and $31,760.96 is awarded. The undersigned finds the attorneys’ costs reasonable. Therefore, the total amount paid for attorneys’ fees and costs incurred by Knutson & Casey Law Firm is $35,678.27. CONCLUSION The undersigned finds an award of interim attorneys’ fees and costs appropriate. She also finds that the majority of petitioner’s interim attorneys’ fees and costs request is reasonable. Accordingly, the court awards: $35,678.27, representing attorneys’ fees and costs. The award shall be in the form of a check made payable jointly to petitioner and Knutson & Casey Law Firm in the amount of $35,678.27. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.6 3 For example, both counsel and paralegal billed for reviewing notices of designation, assignment and appearance on September 13, 14, and 21, 2016; reviewing the initial status conference order on September 27 and 28, 2016; reviewing a status conference order or a scheduling order on November 22, 2016, March 16, 2017, October 5, 2017, and November 14, 2017; and reviewing emails from the court and respondent for rescheduling a status conference on March 16, 2017. 4 Doc 28-2, at 1, 5, 7-10 (entries dated 1/19/2016; 1/24/2016; 5/9/2016; 6/6/2016; 6/8/2016; 7/8/2016; 7/14/2016; 10/17/2016; 1/17/2017; 11/16/2017; and 11/21/2017). 5 Id. at 12-16 (entries dated 12/28/2015; 1/4-8/2016; 1/11-15/2016; 3/31/2016; 4/26/206; 5/3/2016; 6/1/2016; 10/19/2016; 1/16/2017; 6/26/2017; 11/17/2017; 11/20/2017; and 11/21/2017). 6 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or jointly, filing a notice renouncing the right to seek review. 7 IT IS SO ORDERED. Dated: February 5, 2018 s/ Laura D. Millman Laura D. Millman Special Master 8	{ "pile_set_name": "FreeLaw" }
585 F.3d 206 (2009) Christopher M. WILEY, Plaintiff-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellee. No. 09-60191. United States Court of Appeals, Fifth Circuit. October 9, 2009. 208 Joe Sam Owen, Charles Corbett Wimberly, III, Owen, Galloway & Myers, P.L.L.C., Gulfport, MS, for Wiley. Hal Scot Spragins, Hickman, Goza & Spragins, Oxford, MS, for Defendant-Appellee. Before REAVLEY, JOLLY, and WIENER, Circuit Judges. WIENER, Circuit Judge: Hurricane Katrina reduced Plaintiff-Appellant Christopher M. Wiley's home to a slab. Although he carried a homeowner's insurance policy from Defendant-Appellee State Farm Fire and Casualty Company ("State Farm"), State Farm rejected his claims thereunder because his policy contained a water damage exclusion and an anti-concurrent cause provision. Wiley subsequently entered the Mississippi Department of Insurance ("MDI") Hurricane Katrina Mediation Program, and in 2006 signed a settlement agreement (the "2006 Settlement") with State Farm in which he released all claims for known damage in exchange for $80,235. Over a year later, State Farm sent Wiley a letter offering him an additional $26,798.13 "pursuant to the agreement reached between State Farm and the Mississippi Department of 209 Insurance" in exchange for an additional release. Wiley rejected the second offer and brought suit, seeking to recover an even greater additional amount under his original homeowners' policy. The district court granted State Farm's motion for summary judgment, holding that the 2006 Settlement barred Wiley's present claims. We affirm. I. FACTS AND PROCEEDINGS In our review of a district court's grant of summary judgment, we present the facts in the light most favorable to the non-moving party.[1] The facts of this case are sadly familiar: On August 29, 2005, Hurricane Katrina completely obliterated Wiley's Biloxi, Mississippi home, save for its slab. Wiley had insured his property[2] with State Farm for $444,000. Wiley's policy contained a water damage exclusion that included an anti-concurrent cause provision, however, and State Farm denied Wiley's wind-damage claim. In October 2006, Wiley and State Farm entered the MDI's Hurricane Katrina Mediation Program. According to Wiley, the State Farm representative informed him that Mississippi law entitled State Farm to deny his entire claim because his home had been destroyed by the storm surge, an excluded peril under his policy. Wiley took this description of the law to be true, and, after considering and rejecting several offers, signed a settlement agreement (the "2006 Settlement") in exchange for $80,235. The 2006 Settlement provided that "if the insured(s) discovers additional insured damage that was not known to the parties prior to this mediation, the insured(s) may file a supplemental Katrina claim, which shall be treated as a new claim." Wiley maintains that the State Farm representative assured him that the 2006 Settlement entitled him to re-open or seek additional compensation for his Katrina-related losses. Over a year after the 2006 Settlement, Wiley received a letter from State Farm (the "2007 Letter"), which explained that "pursuant to the agreement reached between State Farm and the Mississippi Department of Insurance,"[3] State Farm had re-evaluated Wiley's claim and was prepared to offer him an additional $26,798.13. In exchange, Wiley would have to sign a release (the "2007 Release"), in which he would agree to "release[], acquit[], and forever discharge[] [State Farm] from any and all claims that [Wiley] has or could have asserted, now or in the future . . . arising out of or related to the damage or loss from Hurricane Katrina. . . ." Wiley contends that between the time of the 2006 Settlement and the 2007 Letter, he had learned from his neighbor, a civil engineer, that windand not solely storm surgehad caused part of the damage to his property. Wiley consequently refused to sign the 2007 Release and in May 2008, brought this suit against State Farm, alleging breach of contract and tortious breach of contract. After completion of discovery, State Farm moved for summary judgment seeking dismissal of all of Wiley's claims. 210 State Farm grounded its motion on the doctrine of settlement and release based on the 2006 Settlement. In December 2008, the District Court agreed, but held its order in abeyance and offered Wiley two weeks in which to present an affidavit that set forth any "new additional insured damage" that might support his claim. Wiley subsequently moved for reconsideration, which the district court denied and, in the same opinion, also rejected Wiley's argument raised for the first time in his motion to reconsiderthat the 2007 Letter and 2007 Release constituted a waiver of the 2006 Settlement. This timely appeal followed. II. ANALYSIS The district court exercised diversity jurisdiction under 28 U.S.C. § 1332(a),[4] so we apply the substantive law of the forum state, in this case Mississippi.[5] We review a district court's grant of summary judgment de novo. Summary judgment should be granted only if there is no genuine issue of material fact.[6] A fact is material only if its resolution would affect the outcome of the action,[7] and an issue is genuine only "if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party."[8] We may, however, affirm a grant of summary judgment "on any legal ground raised below, even if it was not the basis for the district court's decision."[9] The district court held that the 2006 Settlement barred Wiley's suit because it unambiguously constituted a complete release of all Katrina-related claims arising from insured damage known to Wiley at the time of the settlement, i.e., the total loss of his insured property. On appeal Wiley makes several claims of error: (1) The 2006 Settlement did not constitute a "full, final, and complete" settlement of Wiley's Katrina-related claims; (2) in the alternative, the 2007 Letter constituted a modification or waiver of the 2006 Settlement;[10] (3) State Farm should be estopped from relying on the 2006 Settlement because its agent misled Wiley with respect to State Farm's ability to deny Wiley any benefits under his policy and also with respect to Wiley's right to pursue additional payment for his Katrina-related losses under the 2006 Settlement. State Farm continues to defend on the ground that the 2006 Settlement constitutes a settlement and release of all Wiley's Katrina-related claims, as held by the district court. A. The 2006 Settlement, 2007 Letter, and 2007 Release 1. The 2006 Settlement Titled "Mississippi Department of Insurance Hurricane Mediation Program Settlement 211 Agreement," the 2006 Settlement is a standard, one-page form with blank spaces for the parties' names. It states in relevant part: This settlement amount is full, complete and total final payment by the insurance company to the insured(s) for the Katrina claim brought to the mediation. Both parties release any and all Katrina claims of any kind whatsoever against one another, except that if the insured(s) discovers additional insured damage that was not known to the parties prior to this mediation, the insured(s) may file a supplemental Katrina claim, which shall be treated as a new claim. 2. The 2007 Letter The 2007 Letter states in relevant part: [State Farm] has completed its reevaluation of your claim pursuant to the agreement reached between State Farm and the Mississippi Insurance Department ("MID"). Based upon the information you have provided, our review of pertinent components of the claim file, and our agreement with the MID, State Farm is willing to offer you $26,798.13 to conclude this disputed claim. You can accept or reject this settlement offer. This settlement offer represents a compromise and is not an admission by State Farm that your claim was not correctly evaluated during its first review or of any wrongdoing on State Farm's part or a concession by State Farm as to any interpretation of the relevant insurance policy. . . . . If you reject the offer, you can request mediation or a non-binding arbitration of your claim through the Mississippi Insurance Department. . . . You can also do nothing. If you do not accept the offer from State Farm you retain all rights that you have, including the right to pursue litigation. 3. 2007 Release The unsigned 2007 Release states in relevant part: ("Releasor") . . . RELEASES, ACQUITS, AND FOREVER DISCHARGES the Released Parties . . . [State Farm] from any and all claims that Releasor has or could have asserted, now or in the future, against the Released Parties, arising out of or related to damage or loss from Hurricane Katrina to property insured by State Farm . . . . As noted, Wiley did not accept the 2007 offer of an additional $26,798 and did not sign the 2007 Release. B. Mississippi Law The Mississippi Supreme Court has established "a three-tiered approach to contract interpretation"[11] that begins with the text and applies the familiar "four corners test," which focuses exclusively on "an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence."[12] "Only if the contract is unclear or ambiguous" is a court authorized to resort to canons of interpretation and parol evidence.[13] 1. Whether the 2006 Settlement was a final settlement There can be no serious argument that the 2006 Settlement unambiguously represented the "full, complete and a total 212 final payment" for all insured damages that were known to Wiley at the time of the settlement. It is equally unambiguous that Wiley, in exchange for the payment of $80,325, released State Farm from "any and all Katrina claims of any kind whatsoever."[14] As Wiley forthrightly admits, Hurricane Katrina had already reduced his home to a slab at the time of the 2006 Settlement. Thus, although the 2006 Settlement expressly reserved the right for Wileyor any other insured participating in the Mississippi Department of Insurance-sponsored mediationto file a new claim based on insured, Katrina-related damage unknown or as yet undiscovered at the time of the 2006 Settlement, the 2006 Settlement was final with respect to all known damage. In Wiley's case, Katrina's total destruction of his home, down to the slab, made impossible the discovery of any "additional insured damage." Wiley's contention that the "additional damage" reservation extends to the subsequent discovery of an additional or different cause of previously known damage contravenes the plain meaning of the phrase "additional insured damage." "The mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law . . . . The parties are bound by the language of the instrument."[15] 2. Whether the 2007 Letter and 2007 Release waived or modified the 2006 Settlement In the alternative, Wiley urges that the 2007 Letter and the 2007 Release modified or waived the 2006 Settlement and therefore permit his present suit. State Farm counters that these arguments were not preserved for our review because they were not raised before the district court. Although it appears that Wiley did not straightforwardly present these arguments to the district court, it did discern and address the waiver argument that Wiley now urges on appeal. To the extent that his modification argument on appeal relies on contentions identical to those made in his waiver argument in the district court, albeit under a different label, we may review it here, cautioning, however, that "[i]f a party wishes to preserve an argument for appeal, the party `must press and not merely intimate the argument during the proceedings before the district court.'"[16] We note at the outset that Mississippi's adherence to the parol evidence rule does not foreclose a court's consideration of evidence that the original written contract was subsequently modified or waived.[17] Mississippi law defines a waiver as "an intentional surrender or relinquishment" of a known and existing right, and contemplates something done designedly or knowingly, which modifies or changes 213 existing rights, or varies or changes the terms and conditions of a contract. It is the voluntary surrender of a right. To establish a waiver, there must be shown an act or omission on the part of the one charged with the waiver fairly evidencing an intention permanently to surrender the right alleged to have been waived.[18] Similarly, "[t]he subsequent actions of parties pursuant to a contract may support a finding that the original contract has been modified to an extent consistent with the subsequent course of conduct."[19] These doctrines offer only cold comfort to Wiley. In the 2007 Letter, State Farm's offer to Wiley of an additional amount was plainly made "pursuant to the agreement reached between State Farm and the Mississippi Insurance Department (`MID')," not pursuant to the 2006 Settlement. The 2007 Letter expressly stated that the additional settlement offer "is not an admission by State Farm that your claim was not correctly evaluated," nor "a concession." This language indisputably preserved the status quo established by the 2006 Settlement, and cannot reasonably be interpreted as evincing "an intention permanently to surrender the right alleged to have been waived."[20] For substantially the same reasons, the 2007 Letter and 2007 Release cannot be construed as modifying the 2006 Settlement. The 2007 Letter was, by its terms, expressly not an action taken pursuant to the 2006 Settlement between State Farm and Wiley; rather, it was issued pursuant to negotiations between State Farm and its Mississippi regulators, to which Wiley was not a party. Moreover, the 2007 Letter and 2007 Release required new consideration: In exchange for paying Wiley an additional $26,798.13, State Farm would receive an additional release from Wiley a release not limited to the known, insured damage covered by the 2006 Settlement, but extending to any claim that Wiley "has or could have asserted, now or in the future. . . ." The fact that, in the 2006 Settlement, Wileyby virtue of the total destruction of his home, and therefore the impossibility of discovering "additional damage"had already released any and all claims he might have had against State Farm does not mean that the reference to any potentially outstanding claims in the 2007 Release somehow serves to resurrect rights already relinquished in the 2006 Settlement. Neither does the 2007 Letter's statement that "if you do not accept the offer from State Farm, you retain all the rights you have, including the right to pursue litigation" somehow revive Wiley's right to litigate that which he had released under the 2006 Settlement. 3. Whether estoppel applies Wiley's recourse to the doctrine of estoppelon the grounds that State Farm's representative misled him regarding the state of Mississippi law governing Wiley's policy and the 2006 Settlementis similarly unavailing. State Farm insists that this argument was never properly before the district court, and we agree.[21] Even though "`[n]o bright-line *214 rule exists for determining whether a matter was raised below,'"[22] when, as here, a district court does not address an argument and the briefing in the trial court contained only references to facts,[23] but to no authority, that may support a claim of estoppel, we will not consider that argument for the first time on appeal. III. CONCLUSION For the foregoing reasons, the judgment of the district court is, in all respects, AFFIRMED. NOTES [1] Connors v. Graves, 538 F.3d 373, 376 (5th Cir.2008) (citing Ballard v. Burton, 444 F.3d 391, 396 (5th Cir.2006)). [2] Wiley's policy covered his dwelling, a dwelling extension, personal property, and actual loss for sustained loss of use. [3] In April 2007, after negotiations with Mississippi regulators, State Farm agreed to re-evaluate and offer additional compensation to Mississippi policy-holders. Associated Press, Katrina-related re-evaluations cost State Farm $29.8 million, CHICAGO TRIBUNE, Aug. 14, 2007, at B3. [4] Wiley is a resident of Mississippi and State Farm is incorporated in Illinois with its principal offices in Illinois. [5] Krieser v. Hobbs, 166 F.3d 736, 739 (5th Cir.1999). [6] Weeks Marine, Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir.2003). [7] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). [8] Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). [9] Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003) (citing In re Williams, 298 F.3d 458, 462 & n. 5 (5th Cir.2002)). [10] State Farm contends that Wiley makes his waiver, modification, and estoppel arguments for the first time on appeal, and that they should therefore be barred. Keelan v. Majesco Software Inc., 407 F.3d 332, 339 (5th Cir. 2005). We address this contention below. [11] Facilities Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 111 (Miss.2005) (citing Pursue Energy Corp. v. Perkins, 558 So.2d 349, 351-53 (Miss. 1990)). [12] Id. at 111. [13] Id. at 111. [14] Wiley also urges us to assess his claims under principles of accord and satisfaction. This we cannot do because the Mississippi Supreme Court instructs us to "apply contract law analysis to settlement agreements. This is true of any type of negotiated settlement." Chantey Music Pub., Inc., v. Malaco, Inc., 915 So.2d 1052, 1056 (Miss.2005). [15] Provident Life and Acc. Ins. Co. v. Goel, 274 F.3d 984, 992 (5th Cir.2001) (citing Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416 (Miss. 1987)) (internal citations omitted); Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So.2d 400, 404 (Miss. 1997). [16] Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir.2005) (internal citations omitted). [17] Leonard v. Nationwide Mut. Ins. Co., 499 F.3d 419, 441 n. 19 (5th Cir.2007) (citing Dixie S. Indus. Coating Inc. v. Miss. Power Co., 872 So.2d 769, 772 (Miss.Ct.App.2004)). [18] Taranto Amusement Co. v. Mitchell Assocs., Inc., 820 So.2d 726, 729-30 (Miss.Ct.App. 2002) (citing Ewing v. Adams, 573 So.2d 1364, 1369 (Miss. 1990)). [19] Fletcher v. U.S. Restaurant Properties, Inc., 881 So.2d 333, 337 (Miss.App.2004) (citing Kight v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1359 (Miss.1989) (citing Stinson v. Barksdale, 245 So.2d 595, 597-98 (Miss. 1971))). [20] Taranto Amusement Co., 820 So.2d at 730 (internal citations omitted). [21] "If an argument is not raised to such a degree that the district court has an opportunity to rule on it, we will not address it on appeal." FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir.1994). [22] N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 142 n. 4 (5th Cir.1996) (internal citations omitted). [23] In his summary judgment briefing, Wiley alleged that State Farm's agent told him that the anti-concurrent cause provision included in his policy entitled State Farm to deny him any recovery under his insurance plan, and that this lead Wiley to agree to settle. We recently ruled that such clauses are valid under Mississippi law. Leonard v. Nationwide Mut. Ins. Co. 499 F.3d 419, 429-36 (5th Cir. 2007). In addition, Wiley alleged that the State Farm agent misrepresented the terms of the 2006 Settlement. We note only that Mississippi law provides that "a person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract." Ballard v. Commercial Bank of DeKalb, 991 So.2d 1201, 1207 (Miss. 2008) (internal citations omitted). Moreover, when, as here, the contract is unambiguous, "[a]s a matter of law, one may not reasonably rely on oral representations, whether negligently or fraudulently made by the [other party], which contradict the plain language of the documents." Id. at 1207 (internal citations omitted).	{ "pile_set_name": "FreeLaw" }
266 So.2d 462 (1972) Lucille B. DUFRENE et al. v. Martin MILLER et al. No. 5007. Court of Appeal of Louisiana, Fourth Circuit. July 5, 1972. Rehearings Denied October 4, 1972. Writs Refused November 16, 1972. 463 Herbert Garon, Milton E. Brener, New Orleans, for plaintiff-appellant. Francipane, Regan, Post & St. Pee; Chester Francipane, Metairie, for defendant-appellee Maryland Casualty Company. Christovich & Kearney, W. K. Christovich, New Orleans, for defendant-appellee Fireman's Insurance Company of Newark, New Jersey. Porteous, Toledano, Hainkel & Johnson, Christopher E. Lawler, New Orleans, for defendants-appellees Thomas Joseph James and Allstate Insurance Company. Robert I. Broussard, Gretna, for defendant-appellee Martin Miller. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Ashton R. Hardy, New Orleans, for defendants-appellees Texaco Inc. and the Travelers Ins. Co. Before CHASEZ, REDMANN, and BAILES, JJ. BAILES, Judge. This appeal is from judgment of the trial court rejecting the demands of the plaintiffs for damages, for both property and personal injuries, arising out of a multiple vehicular accident which occurred during heavy fog on the morning of December 19, 1966, on U. S. Highway 90 about a mile and one-half east of Boutte, St. Charles Parish, Louisiana. The plaintiffs are Mrs. Lucille B. Dufrene and her husband, Mr. Paul Dufrene, Sr., both residents of Lafourche Parish, Louisiana. The defendants, seven in number, are the following: 1. Martin Miller, an uninsured motorist and a resident of Jefferson Parish. 2. Firemen's Insurance Company, the public liability insurer of Mrs. H. A. Breaux, who was the driver of a vehicle involved in the collision; 3. Texaco, Inc., owner of the vehicle driven by Fred W. Russell; 4. The Travelers Insurance Company, public liability insurer of the vehicle owned by Texaco, Inc., driven by Fred W. Russell; 5. Thomas Joseph James and his public liability insurer, Allstate Insurance Company; and 6. Maryland Casualty Company, the uninsured motorist insurer of Mr. Paul Dufrene, Sr. The sequence of events leading up to this accident are these: Mr. Paul Defrene, Sr., and his wife left their home in Lafourche Parish to go to a doctor in New Orleans, for an appointed checkup for certain 464 physical ailments, on the early morning of December 19, 1966. When about one and one-half miles east of Boutte, St. Charles Parish, they encountered on U. S. Highway 90 a dense fog or smog, which from the evidence, rendered visibility no farther than the end of the engine hood, or as stated by others, from 8 to 10 feet. Upon running into this fog bank, Mrs. Dufrene, who was driving, reduced her speed appreciably, variously fixed by her from 20 to 25 mph and again at 10 to 15 mph. At the site of the accident U. S. Highway 90 is a four lane highway, with two lanes going east and two lanes going west, with a median between. Mrs. Dufrene testified that as she was driving along in her right lane of traffic, their 1965 Chrysler automobile was run into from the rear by an automobile driven by Martin Miller. Both vehicles immediately stopped. Martin Miller, whose testimony as a whole is so overlaid with contradictions and inconsistencies it has little probative value, testified that he went to the driver's side of the Dufrene vehicle to talk to the driver. When he reached the Dufrene car he found Mrs. Dufrene was the driver and Mr. Dufrene was the passenger. He stated he advised the Dufrenes that he was going to move his car out of the highway to the shoulder. This appears, beyond dispute, to be his action as all witnesses subsequently placed the Miller car on the shoulder of the highway headed east. The next vehicle on the scene was the one driven by Mrs. H. A. Breaux. She was accompanied by her daughter. Both Mrs. Breaux and her daughter testified unequivocally that their vehicle was stopped about 10 feet from the rear of the Dufrene vehicle. Both testified that Mrs. Breaux did not strike the Dufrene vehicle. Mrs. Paulette Breaux Lundy, daughter of Mrs. Breaux, testified that she was accompanying her mother to New Orleans the morning of the accident; that her mother was driving from 20 to 30 mph in the heavy fog. In testifying, she refused to fix the distance of visibility, however, she did say she could see the taillights of a car ahead; that her mother saw the taillights and applied her brakes and that she stopped about 10 feet from the rear of the Dufrene vehicle. She stated that upon driving up to the rear of the Dufrene vehicle she saw a car parked on the shoulder of the highway and that as soon as her mother stopped, a negro man (later identified as Martin Miller) told them there had been an accident and to go ahead. Young Mrs. Lundy said she looked to the rear to see if her mother could pull out to go around the Dufrene vehicle; then she saw the headlights of a car coming, whereupon she exclaimed to her mother, "Mother, Oh my God, he's going to hit us." At that moment, Mr. Fred Russell, driving the car owned by Texaco, Inc., and insured by Travelers Insurance Company, struck the rear of the Breaux vehicle propelling it into the rear of the Dufrene automobile. Mrs. Lundy then testified, that immediate following this impact there was another harder impact which caused their automobile to again strike the Dufrene automobile. In describing the time lag between the two impacts, Mrs. Lundy stated, "There wasn't time to blink an eye between the two impacts." The second impact between the Breaux and Texaco vehicles was caused by the rear of the Texaco vehicle being struck by the automobile driven by Thomas Joseph James and insured by Allstate Insurance Company. Mr. James testified that he was passed by the Texaco Plymouth driven by Mr. Russell and that just as soon as he, Mr. Russell, turned back in front of him, the Texaco car stopped immediately; then the James vehicle struck the Texaco vehicle. Mr. Fred Russell testified that he saw the taillights of the Breaux car stopped in 465 the road; that he could see about 35 feet ahead, and that he hit the Breaux automobile, "A pretty good little tap." As the plaintiffs are vigorously contending that they remained in their vehicle and that it was struck three times while they sat in their car, and then struck again after they had alighted from it, it becomes all important to determine when they got out of their car and where they were when their vehicle was struck the second and third time. On this finding of fact depends the determination of whether the Texaco vehicle and the James vehicle inflicted any possible bodily injuries on the plaintiffs. Admittedly, they were no longer in their car at the time they contend it was struck the fourth time. To preface our finding on this point, it seems appropriate to state that we find from the testimony of Mrs. Breaux and her daughter, Paulette Breaux Lundy, that Mrs. Breaux's vehicle did not strike the Dufrene Chrysler until the Texaco car struck its rear and propelled it into the Dufrene vehicle and that the second impact to the Breaux vehicle caused by James striking the Texaco car followed the first Breaux impact by only a few seconds. Paulette Breaux Lundy testified that she and her mother got out of their car as soon as it was struck the second time. She stated that when they got out of their car, Mr. and Mrs. Dufrene were on the shoulder of the highway. This was confirmed by Mrs. Breaux. Being convinced that Mrs. Breaux did not hit the Dufrene automobile when she first stopped behind it, and it having been established by the combined testimony of Mrs. Breaux, Mrs. Lundy, Mr. Fred Russell and corroborated by Mr. James that the first and second impacts to the Breaux vehicle, which were the second and third impacts to the Dufrene vehicle, were in rapid succession, and that Mr. and Mrs. Dufrene were seen on the shoulder of the road at the time of the last impact to the Breaux vehicle, we find by a preponderance of the evidence that Mr. and Mrs. Dufrene were not seated in their automobile at the time of the first or second impact between their car and that of Mrs. Breaux. And, for whatever purpose it may serve, we find no fourth impact occurred. We are fortified in this finding by the findings of the trial judge which we quote, in part, as follows: "From the evidence it appears that Martin Miller, Fred Russell and Thomas James all failed to exercise sufficient care and alertness while driving into and in the fog bank they encountered. While there are some suggestions that Mrs. Breaux might have not actually stopped before her vehicle struck that of the Dufrene's, the evidence fails to preponderate in that direction. The testimony of Mrs. Breaux and her daughter, Mrs. Paulette Breaux Lundy, that they succeeded in stopping some ten feet from the Dufrene vehicle stands unrefuted; in fact, Mr. Fred Russell, whose vehicle first struck the Breaux vehicle in the rear, was "fairly sure" Mrs. Breaux was stopped. Tr. p. 509. Besides, he estimated there was a distance of about 6 to 10 feet between the Breaux and Dufrene vehicles. Tr. p. 522." We find that whatever bodily injuries were inflicted on both plaintiffs of necessity occurred as a result of the first impact. We note that the plaintiffs were occupying, at the time Martin Miller struck them, a heavy type Chrysler sedan. Even though the impact has been described as light, this is a relative term of no probative value. The evidence supports the finding that the impact between the Dufrene and the Miller vehicles was severe enough to spring open the trunk lid. The Dufrenes described it as an explosion. We believe the impact was of sufficient force to cause physical harm to the already crippled back of Mr. Dufrene, and also slightly injured Mrs. Dufrene. 466 The accident, the resulting bodily injuries to plaintiffs, and a part of the damages to the rear of the Dufrene automobile was caused solely and proximately by the negligence of Martin Miller in driving his car into the rear of the Dufrene vehicle. He failed to maintain a proper lookout and to keep his vehicle under proper control and to drive at a speed commensurate with the weather conditions. The jurisprudence is clear on this requirement. In Sanders v. Eilers, La.App., 217 So.2d 205 (1968), the court said: There remains only the charge that defendant Eilers failed to maintain a proper lookout and to keep his vehicle under proper control. The rule is well established that one who operates a motor vehicle on public highways has a never ceasing duty to keep a sharp lookout ahead. A motorist is therefore held to have seen that which in the exercise of ordinary care he should have seen. Rottman v. Beverly, 183 La. 947, 165 So. 153; Jackson v. Cook, 189 La. 860, 181 So. 195. Thus, though as a general rule a motorist may assume that the road ahead is safe for travel, he must when traveling after darkness or in circumstances of limited or impaired visibility observe and so control his vehicle as to avoid discernable objects in his path of travel; that is, in adverse conditions a greater degree of care must be exercised. Watkins v. Strickland Transportation Co. (1956), La.App., 90 So.2d 561, and Hernandez v. State Farm Mutual Automobile Insurance Company (1966), La.App., 192 So.2d 679. This last rule however is subject to the well established exception that a night driver is not charged with the duty of guarding against unusual or unexpected obstructions which he had no reason to anticipate he would encounter on the highway and which under the circumstances are difficult to discover. Gregoire v. Ohio Casualty Ins. Co., La.App., 158 So.2d 379; Gros v. United States Fidelity & Guaranty Co., La.App., 183 So.2d 670." For the same reasons, Mr. Russell and Mr. James were negligent in the operation of their respective vehicles. As Mrs. Breaux stopped her vehicle without striking the Dufrene automobile, there is no fault from Mrs. Breaux's action and no liability on the part of Firemen's Insurance Company, her insurer. The defense of contributory negligence on the part of the plaintiffs has been urged by the defendants. We find this defense is good and must be sustained as to whatever property damage was done to the Dufrene automobile by the Texaco vehicle driven by Mr. Russell, and the James vehicle, insured respectively by The Travelers Insurance Co., and Allstate Insurance Company. The plaintiffs had ample opportunity to remove their automobile from the highway to the shoulder after impacted by Miller, but consciously left their automobile in the highway because "there was a wreck." There is no showing that their vehicle was immobile. Under the provisions of R.S. 32:141, plaintiffs were required to clear the highway. See Ruppert v. Stout, La.App., 231 So.2d 428 (1970), wherein the court stated: The jurisprudence has consistently held that a driver of a stalled, unlighted vehicle is negligent if he fails to remove the vehicle from the main-traveled portion of the highway as soon as possible in violation of La.R.S. 32:141. * * ." There is a stipulation that the damages to the Dufrene automobile amounted to $552.30. There is no proof whatever in the record as to what portion of this damage was inflicted in the first impact, or second and third impact. In the absence of such proof, the most equitable division of these damages is to attribute one-third each to the three impacts. Under such a division or apportionment of damages, Martin Miller is liable for one-third of $552.30 or $184.10. 467 Turning now to a consideration of the physical injuries and resulting damages, the evidence shows that Mrs. Dufrene was mainly no more than shaken up and within three days was asymptomatic and able to go about her customary activities. We believe an award of $250.00 is adequate recompense for her pain and suffering. At the time of the accident Mr. Dufrene was 64 years of age. From his medical history we learn that since 1923 he has had a back pathology of some type. In 1953, his physical disorder was diagnosed as osteoarthritis and chronic low back pain, and in 1954 he was found to be suffering from what was thought to be a ruptured disc. From 1954 to 1966, the plaintiff was relatively asymptomatic, although he did have back disability from time to time. In 1962 he had stomach surgery at which time two-thirds of his stomach was removed. About one year before the accident, Mr. Dufrene had a stroke and also was found to have insufficient brain circulation. At the time of the accident Mrs. Dufrene was bringing Mr. Dufrene to his New Orleans physician for a follow-up examination of a condition for which the doctor had seen him initially on December 6, 1966, and again on December 9, 1966. The doctor testified that on December 6, 1966, he found Mr. Dufrene with chest pain, fever, cough, some bloody sputum, back and left knee trouble and a urinary problem. On his December 9, 1966, visit, he was free of discomfort and advised to return on December 19, 1966, because of urinary frequency. On the day of the accident he was seen by his treating physician within a few hours after the accident. At this time he was complaining of generalized body pain of almost every portion of his back and head. It was recommended that he be hospitalized, however, this was not effected on that date for the lack of available hospital room. Certain medicines were administered and then Mr. Dufrene was sent home for rest. His condition grew progressively worse and he returned to his New Orleans doctor at which time he was hospitalized on December 30, 1966. On January 3, 1967, Mr. Dufrene was seen by a neurosurgeon who testified that he was complaining of pain in the low back and left leg. The diagnosis was ruptured intervertebral disc at the left lumbosacral interspace. This was confirmed by surgical removal on January 9, 1967. The record substantiates the following special damages: Doctor bills $1,162.00 Ambulance 20.00 Hospital bills 1,315.06 Medicines 283.37 _________ TOTAL $2,780.43 Mr. Dufrene's physician who saw him previously and also immediately after the accident testified that as Mr. Dufrene "was previously able to carry on his normal occupational activities and was not under direct treatment at that time, it is my assumption that the accident precipitated an acute phase of difficulty which was more marked and which was more marked in terms of leg weakness and pain", and he also testified that, subsequent to the accident he had a new condition, that is, an injury to the thoracic and cervical vertebra. The neurosurgeon who operated on Mr. Dufrene attributed the necessity for the operation and removal of the ruptured disc on the acute condition brought about by the accident. It is so well understood in our jurisprudence as to hardly need citation, that a tortfeasor takes his victim as he finds and is responsible for whatever is medically attributed to an inflicted tort. See: Rumby v. Cooperative Cab Company, La. App., 207 So.2d 855 (1968) and Williams v. Reinhart, La.App., 155 So.2d 51 (1963). *468 On considering the past medical history, the physical condition of plaintiff and all of the medical testimony, we find an award of $7,500.00 for physical pain and suffering and mental pain and anguish is fair and reasonable under the circumstances. Accordingly, there is judgment herein in favor of Paul Dufrene, Sr., and against Martin Miller for the sum of $10,280.43, together with legal interest thereon from date of judicial demand until paid; and there is judgment herein in favor of Mrs. Lucille B. Dufrene and against Martin Miller in the sum of $250.00, together with legal interest thereon from date of judicial demand until paid. As Martin Miller was an uninsured motorist herein found to be guilty of negligence proximately causing this accident and the resulting injuries suffered by Paul Dufrene, Sr., and Mrs. Lucille B. Dufrene, the uninsured motorist provisions of the Family Protection Coverage (Part IV) of the policy of public liability insurance issued by Maryland Casualty Company to Paul Dufrene, Sr., is operative and effective to the maximum extent of $5,000.00 liability to each person covered thereunto suffering bodily injuries in this accident. Therefore Maryland Casualty Company is cast in judgment, in solido, with Martin Miller, in favor of Paul Dufrene, Sr., to the extent and in the amount of $5,000.00, and in favor of Mrs. Lucille B. Dufrene in the amount of $250.00, together with legal interest thereon from date of judicial demand until paid, and for all costs of court, including both the trial court and in this court. Maryland Casualty Company has filed third party petition against Martin Miller to recover judgment against him for any amount which Maryland Casualty Company is obliged to pay under the said uninsured motorist provisions of the Dufrene policy, above referred to, therefore, for that reason, there is judgment herein in favor of Maryland Casualty Company and against Martin Miller in the full sum of $5,250.00, together with legal interest thereon from date of judicial demand until paid, and for all costs of court, both in trial court and in this court. Reversed in part; affirmed in part; and rendered.	{ "pile_set_name": "FreeLaw" }
197 B.R. 803 (1996) In re R.T. CRYSTIAN, Jr., Debtor. MELLON BANK, N.A., Movant, v. R.T. CRYSTIAN, Jr., Respondent. Bankruptcy No. 95-23157 JKF. United States Bankruptcy Court, W.D. Pennsylvania. July 9, 1996. Gary W. Short, Pittsburgh, PA, for Debtor. James F. Grenen, O'Keefe, Grenen & Birsic, P.C., Pittsburgh, PA, for Mellon Bank, N.A. MEMORANDUM OPINION[1] JUDITH K. FITZGERALD, Bankruptcy Judge. The matter before the court is Debtor's Motion for New Trial and/or to Alter Judgment. 804 By Memorandum Opinion and Order dated May 9, 1996, we sustained Mellon Bank's objection to confirmation of Debtor's chapter 11 plan. After a hearing on the Motion for New Trial, we entered an order on June 20, 1996, withdrawing the Opinion and Order of May 9, 1996. We are asked to examine the applicability of 11 U.S.C. § 1123(b)(5) to the Bank's secured claim and to determine whether the mortgage is modifiable. We conclude that it is modifiable in that it is secured by security interests in property other than Debtor's principal residence. The following explains our conclusion.[2] Mellon Bank, N.A. (hereafter "the Bank"), objected to confirmation of Debtor's chapter 11 plan because the plan seeks to modify the Bank's first position mortgage on the ground that the mortgage includes collateral other than real property that is Debtor's primary residence. Section 1123(b)(5) of title 11 of the Bankruptcy Code provides that a plan may modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims . . . 11 U.S.C. § 1123(b)(5). This section was added to the Bankruptcy Code by the Bankruptcy Reform Act of 1994 which is applicable to this case.[3] There are no reported chapter 11 cases construing this section.[4] The statute provides that, unless the Bank's claim is secured by more than just an interest in Debtor's principal residence, it cannot be modified. We conclude that § 1123(b)(5) does not prevent modification of the Bank's secured claim and the claim can be modified under § 1123(a)(5)(E), if the modification is fair and equitable under § 1129(b)(2). To determine the latter, an evidentiary hearing is necessary. I. APPLICABILITY OF § 1123(b)(5) Debtor contends that the mortgage is modifiable under § 1123(b)(5) because the mortgage includes references to hazard insurance proceeds, the tax and insurance escrow, and condemnation proceeds. These items, however, are included in covenants within the mortgage and are not part of the conveyance clause. The conveyance clause grants a security interest in "all easements, rights, appurtenances, rents, royalties, mineral, oil and gas rights and profits, water rights and stock and all fixtures now or hereafter a part of the property". See Debtor's Brief in Support of Confirmation of Plan of Reorganization at 2; Debtor's Affidavit in Support of Confirmation of Plan of Reorganization at Exhibit 2 (the mortgage) (hereafter Affidavit Exhibit 2).[5] The security interest in easements, rights, etc., is an interest in realty under Pennsylvania law. "For what is land but the profits thereof for thereby vesture, herbage, trees, mines, and all whatever parcel of the land doth pass." It is presumed that a devise of the rents, issues and profits of the land, without qualification or duration of time, passes the fee. 805 In re Carmany's Estate, 357 Pa. 296, 302-03, 53 A.2d 731, 734 (1947) (citations omitted). See also Shearer v. Miller, 185 Pa. 149, 39 A. 846 (1898) (rents, issues, and profits described as conveying the right to lease or release the land, to cut off the wood for repairs, firewood, posts, rails, etc., to sell the wood from the woodland when fit to cut). See also prior opinions we issued regarding rents, issues and profits clauses under Pennsylvania law in chapter 13 cases: In re Wilkinson, 189 B.R. 327 (Bankr.E.D.Pa.1995) (addressing "rents, issues and profits"); In re Brown, 189 B.R. 3 (Bankr.E.D.Pa.1995) (addressing unaccrued rents). The other items challenged appear in covenants and are not part of the security interest granted to the Bank in the conveyance clause. See Affidavit Exhibit 2. Furthermore, the mortgage does not purport to convey a security interest in any of the other items except the escrow account. A covenant is defined as [a]n agreement, convention, or promise of two or more parties, by deed in writing, signed, and delivered, by which either of the parties pledges himself to the other that something is either done, or shall be done, or shall not be done, or stipulates for the truth of certain facts. BLACK'S LAW DICTIONARY 363 (6th ed. 1990). (i) CONDEMNATION PROCEEDS The condemnation proceeds are the subject of a covenant and are assigned to the Bank. The covenant does not purport to grant the Bank a security interest in the condemnation proceeds. Affidavit Exhibit 2 at ¶ 9. In Pennsylvania, upon condemnation, a lien is divested from the land but attaches by operation of law to the fund. Briegel v. Briegel, 307 Pa. 93, 98, 160 A. 581, 583 (1931). Although the mortgagor's claim to the fund is personalty, id. at 99, 160 A. at 583; see also Fidelity-Philadelphia Trust Co. v. Kraus, 325 Pa. 581, 583, 190 A. 874, 875 (1937), the lien of the mortgage attaches to the fund. Any disbursement to the Bank from condemnation proceeds would occur by operation of state law in the event of condemnation proceedings. Thus, the assignment of the proceeds in the mortgage covenant does not constitute additional security which allows Debtor to modify the mortgage under § 1123(b)(5). See also In re Halperin, 170 B.R. 500 (Bankr.D.Conn.1994) (condemnation proceeds are not additional security). (ii) HAZARD INSURANCE Similarly, the requirement that Debtor maintain hazard insurance is the subject of a covenant that does not purport to give the Bank a security interest in the insurance proceeds. Affidavit Exhibit 2 at ¶ 5. The covenant merely requires Debtor to maintain insurance and name the Bank as loss payee. Id. ("All insurance policies and renewals . . . shall include a standard mortgage clause").[6] Some cases hold that hazard insurance proceeds or policies are additional security. See, e.g., In re Selman, 120 B.R. 576 (Bankr. D.N.Mex.1990) (credit life and hazard insurance policies); In re Klein, 106 B.R. 396 (Bankr.E.D.Pa.1989) (hazard insurance proceeds). We find, however, that the better reasoned cases hold that hazard insurance does not constitute additional security. For example, in In re Davis, 989 F.2d 208 (6th Cir.1993), a chapter 13 case, the deed of trust required the debtor to maintain hazard insurance with the mortgagee named as loss payee. The court first examined cases dealing with credit life and disability insurance, noting that the trend is "toward a consensus that credit life and disability insurance does not constitute additional security." 989 F.2d at 211, quoting Matter of Washington, 967 F.2d 173, 174 (5th Cir.1992). The court decided that the argument that hazard insurance was not additional security was compelling. "[H]azard insurance is merely a contingent interest an interest that is irrelevant until the occurrence of some triggering event and not an additional security interest for purposes of 806 § 1322(b)(2)." In re Davis, 989 F.2d at 211. The court noted that To hold that this type [hazard] insurance coverage constitutes an additional security interest would completely eviscerate the protective exception for residential lenders found in Section 1322(b)(2). Congress would not have enacted a meaningless statute, knowing that practically all of the lenders for whom the protective exception was intended, would be eliminated from the protection solely because they routinely require fire and casualty insurance. Id., quoting In re Braylock, 120 B.R. 61, 63 (Bankr.N.D.Miss.1990). The court mentioned that most cases holding that insurance is additional security dealt with credit life and disability. Hazard insurance is "an essential protection of the underlying collateral and not . . . additional collateral". In re Davis, 989 F.2d at 212 (emphasis in original). In re Spano, 161 B.R. 880 (Bankr.D.Conn. 1993), also held that a mortgage requiring the borrower to maintain hazard insurance for the lender's benefit was protected by § 1322(b)(2). The court noted that hazard insurance proceeds have no existence independently from the property. Similarly, the requirement to maintain hazard insurance creates no additional security. The sole reason for hazard insurance is to cover loss or damage to the real property. Spano also concluded that [h]azard insurance proceeds are similar to proceeds from the condemnation of the mortgaged property, on which proceeds the mortgagee generally has a lien to secure its debt. . . . Just as rents are the money equivalent of the possessory stick from the bundle of rights that is the real property, so hazard insurance proceeds are the money equivalent of the improvements (i.e. bricks and mortar) stick from that bundle. 161 B.R. at 890 (emphasis in original). Hazard insurance is an element of adequate protection of the collateral and is not additional security. Id., citing In re Davis, supra. Because § 1123(b)(5) is identical to § 1322(b)(2), we reach the same result as did the courts in Davis and Spano. (iii) ESCROW The escrow funds require a different analysis in that, in this mortgage, they "are pledged as additional security for the sums secured by this Security Instrument". Affidavit Exhibit 2 at ¶ 2. The Court of Appeals for the Third Circuit has referred three times to "escrow" in the context of modification of mortgages in chapter 13 cases. See In re Hammond, 27 F.3d 52 (3d Cir.1994) (rehearing and suggestion for rehearing en banc denied); Sapos v. Provident Institution of Savings, 967 F.2d 918 (3d Cir.1992); Wilson v. Commonwealth Mortgage Corporation, 895 F.2d 123 (3d Cir.1990). In dicta in Hammond the court of appeals said creditors who demand additional security interests in personalty or escrow accounts and the like pay a price. Their claims become subject to modification. Their recourse, if they wish to avoid modification, is to forego the additional security. 27 F.3d at 57, referring to its opinion in Wilson, supra. However, the escrow was not at issue in Hammond, Sapos, or Wilson and the reference to escrow appears to have been added without separate discussion.[7] Nonetheless, we are constrained to follow the dicta in Hammond and find that the security interest in escrow funds contained in this mortgage is additional security. II. CHECKING ACCOUNT AGREEMENT Debtor also contends that the terms of his checking account agreement provide the Bank with additional security on its claim. The checking account was opened in July of 1979, approximately 7½ years before the 1986 mortgage. The checking account agreement provides in part: Security interest Unless your account is a Retirement Savings Money Market, you hereby grant us a security interest upon any balance in this account to secure the payment of any debt that you, or any one 807 of you, may owe us, whether direct or indirect, and whether due or to become due and you agree that we have the right to offset any such balance against any such debt. Affidavit Exhibit 7 at page 4. According to the terms of the checking account agreement, any claim the Bank would ever acquire against Debtor would become secured by the proceeds in the account. The Bank acquired the claim at issue in real property that is the Debtor's principal residence after the checking account was opened. Section 1123(b)(5) does not specify that the "claim secured only by a security interest in real property that is the debtor's principal residence" is limited to a claim arising only under the note and mortgage that created the lien against Debtor's home. Accordingly, because the statutory language is not restrictive, we conclude that the claim is not limited to that created by the note and mortgage. Thus, the checking account is additional security and the Bank's claim can be modified if the modification proposed by Debtor in the plan meets the appropriate standards for confirmation. Cf., Horbal v. Moxham Nat'l Bank, 441 Pa.Super. 463, 657 A.2d 1261 (1995), alloc. denied, ___ Pa. ___, 674 A.2d 1073 (1996) (certificate of deposit assigned to secure antecedent debt also secured by mortgage was Bank's collateral and, on default, was subject to Bank's application of proceeds to balance owed without compliance with Pennsylvania Deficiency Judgment Act). This matter will be resolved by the evidentiary hearing already scheduled. NOTES [1] This Opinion constitutes this court's findings of fact and conclusions of law. The court's jurisdiction was not at issue. [2] We have scheduled an evidentiary hearing on the issue of whether Debtor's proposed plan treatment of the Bank is fair and equitable and whether the plan is feasible. [3] The effective date is also the date of enactment. P.L. 103-394, § 702, 108 Stat. 4106. Section 702 of the Bankruptcy Reform Act of 1994 provides that (b) APPLICATION OF AMENDMENTS. (1) Except as provided in paragraph (2), the amendments made by this Act shall not apply with respect to cases commenced under title 11 of the United States Code before the date of the enactment of this Act. The only reference to § 1123 is to § 1123(d) of the Code (§ 305 of the 1994 amendments) and provides that the amendments apply only to agreements entered into after the effective date. Section 1123(d) is not at issue in this case. See § 702(b)(2)(D). [4] As amended, § 1123(b)(5) is mentioned in two chapter 13 cases. See Lomas Mortgage, Inc. v. Louis, 82 F.3d 1 (1st Cir.1996) (detailing legislative history in situation where debtor's residence was one unit of multi-unit dwelling); In re Dingley, 189 B.R. 264 (Bankr.N.D.N.Y.1995) (claim protected from cramdown or modification is one secured only by debtor's principal residence). [5] Affidavit Exhibit 1 is the original mortgage executed in 1985. The 1986 mortgage appears in Affidavit Exhibit 2. [6] The clause provides that, absent written agreement to the contrary, proceeds will be applied to restoration or repair of the property, if economically feasible and the Bank's security is not lessened. If restoration or repair is not economically feasible or the Bank's security is lessened, proceeds of the insurance will be applied to the balance due to the Bank under the mortgage. [7] The Wilson and Hammond mortgages included appliances, machinery, furniture and equipment. The issue in Sapos was cure of arrearages through the chapter 13 plan and the mortgage included a security interest in appliances and wall-to-wall carpeting.	{ "pile_set_name": "FreeLaw" }
435 F.Supp.2d 1261 (2006) SHANDONG HUARONG MACHINERY CO., LTD., Shandong Machinery Import & Export Corporation, Liaoning Machinery Import & Export Corporation, and Tianjin Machinery Import & Export Corporation, Plaintiffs, v. UNITED STATES, Defendant, Ames True Temper, Deft.-Intervenor. Slip Op. 06-88. Court No. 04-00460. United States Court of International Trade. June 9, 2006. 1262 1263 Hume & Associates, PC, Washington, DC (Robert T. Hume), for plaintiffs. 1264 Peter D. Keisler, Assistant Attorney General, Civil Division, United States Department of Justice; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Stephen Carl Tosini), for defendant. Wiley, Rein & Fielding, LLP, Washington, DC (Timothy C. Brightbill, Michael W. Schisa, and Daniel B. Pickard), for defendant-intervenor. OPINION AND ORDER EATON, Judge. This consolidated action[1] is before the court on competing USCIT Rule 56.2 motions for judgment upon the agency record filed by Shandong Huarong Machinery Co., Ltd. ("Huarong"), Liaoning Machinery Import & Export Corp., Ltd. and Liaoning Machinery Import & Export Corp. (collectively "LMC"), Shandong Machinery Import & Export Corp. ("SMC"), and Tianjin Machinery Import & Export Corp. ("TMC") (collectively "plaintiffs"), and by defendant-intervenor Ames True Temper ("Ames"). By their motions, the parties contest certain aspects of the United States Department of Commerce's ("Commerce" or "the Department") final results of the twelfth administrative review of the antidumping orders covering heavy forged hand tools ("HFHTs") from the People's Republic of China ("PRC") for the period of review ("POR") beginning February 1, 2002, and ending January 31, 2003. See HFHTs, Finished or Unfinished, With or Without Handles, From the PRC, 69 Fed. Reg. 55,581 (ITA September 15, 2004) ("Final Results"), as amended, 69 Fed. Reg. 69,892 (December 1, 2004) ("Amended Final Results"). In addition, Ames challenges the liquidation instructions issued by Commerce to the United States Bureau of Customs and Border Protection ("Customs"). The court has jurisdiction over the antidumping determination pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a(a)(2)(A)(i)(I), and over Ames' challenge to the liquidation instructions pursuant to 28 U.S.C. § 1581(i)(4). For the following reasons, Commerce's Final Results are sustained in part, and remanded in part. BACKGROUND In February 2003, in response to requests made by plaintiffs and Ames, Commerce initiated the twelfth administrative review of four antidumping duty orders originally published in 1991. See HFHTs, Finished or Unfinished, With or Without Handles, From the PRC, 68 Fed.Reg. 14,-394, 14,395 (ITA Mar. 25, 2003). The subject orders applied to merchandise categorized as bars/wedges, picks/mattocks, hammers/sledges, and axes/adzes sold by nearly ninety producers. Commerce focused its review on exporters of the subject merchandise, which included Huarong (axes/adzes, bars/wedges), SMC (axes/adzes, bars/wedges, picks/mattocks, hammers/sledges), LMC (axes/adzes, bars/wedges), and TMC (bars/wedges, axes/adzes, hammers/sledges, picks/mattocks). The Final Results were published on September 15, 2004. After commencement of the present action, certain ministerial errors contained in the Final Results were raised and corrected through a voluntary remand and the Amended Final Results were published on December 1, 2004. 1265 In the Final Results, Commerce applied adverse facts available ("AFA") to plaintiffs' sales of subject merchandise on an order-specific basis. That is, "total" AFA[2] were applied to Huarong and LMC for their sales of merchandise within the scope of the axes/adzes and bars/wedges orders, and to TMC for its sales covered by the bars/wedges order. See Final Results 69 Fed.Reg. at 55,583. Partial AFA were applied to SMC's sales under the bars/wedges order. See id. Commerce also kept in place the antidumping orders against SMC's hammers and sledges and LMC's bars and wedges. See id. at 55,581; see also 19 C.F.R. § 351.222(d)(1) (2005). Ultimately, the Department calculated the country-wide antidumping duty rates ("PRC-wide") for HFHTs as follows: bars/wedges at 139.31%; picks/mattocks at 98.77%; hammers/sledges at 27.71%; and axes/adzes at 55.74%. See id. at 55,583. STANDARD OF REVIEW When reviewing a final antidumping determination from Commerce, the court "shall hold unlawful any determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i). "Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed.Cir.2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The existence of substantial evidence is determined "by considering the record as a whole, including evidence that supports as well as evidence that `fairly detracts from the substantiality of the evidence.'" Id. (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed. Cir.1984)). "As long as the agency's methdology and procedures are reasonable means of effectuating the statutory purpose, and there is substantial evidence in the record supporting the agency's conclusions, the court will not impose its own views as to the sufficiency of the agency's investigation or question the agency's methodology." Ceramica Regiomontana, 1266 S.A. v. United States, 10 CIT 399, 404-05, 636 F.Supp. 961, 966 (1986), aff'd, 810 F.2d 1137, 1139 (Fed.Cir.1987) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); see also Elkem Metals Co. v. United States, 27 CIT ___, ___, 276 F.Supp.2d 1296, 1301 (2003). With respect to Ames' challenge to Commerce's liquidation instructions, this Court applies the standard of review set forth in 5 U.S.C. § 706(2) (2000) of the Administrative Procedure Act ("APA") and will "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Consol. Bearings Co. v. United States, 412 F.3d 1266, 1269 (Fed.Cir.2005) (quoting 5 U.S.C. § 706(2); Humane Soc'y of the United States v. Clinton, 236 F.3d 1320, 1324 (Fed.Cir.2001)) (internal quotation marks omitted). Section 706 of the APA authorizes the court to review the agency determination under three different standards: (1) arbitrary or capricious; (2) abuse of discretion; or (3) not in accordance with law. See 33 Charles Alan Wright & Charles H. Koch, Jr., Federal Practice and Procedure: Judicial Review of Administrative Action § 8334, at 167 n. 2 (2006). "Under the `arbitrary and capricious' standard the scope of review is a narrow one." Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 442, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). "Applying this standard of review, an administrative action is to be upheld if the agency has `considered the relevant factors and articulated a rational connection between the facts found and the choices made.'" Humane Soc'y of the United States, 236 F.3d at 1324-25 (quoting Baltimore Gas & Elec. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). DISCUSSION I. Plaintiffs' Motion A. Application of Total AFA to Huarong's, LMC's, and Company A's Sales of Bars/Wedges: Principal/Agent Relationships[3] Huarong, LMC, and Company A (collectively "the Companies") contend that Commerce wrongfully applied total AFA to their sales of bars and wedges based on its determination that they misrepresented the nature of purported agency relationships.[4] As part of its findings, Commerce concluded that "nearly all of the sales functions were conducted by the principal[s], and that the agent[s'] participation was limited, for the most part, to supplying invoices to the principal." Issues and Decisions Mem. for the Twelfth Admin. Rev. of the Antidumping Duty Orders on HFHTs From the PRC ("Issues and Decisions Mem.") at 46. Thus, Commerce found that the purported agents were merely vehicles employed by the principals to circumvent the payment of their assigned antidumping duty rates. See Def.'s Resp. to Mots. J. Ag. R. ("Def.'s Resp.") at 9. In Commerce's view, the Companies significantly impeded the administrative review by "continually misrepresent[ing] the true nature of their relationship with their principal or agent during the [period 1267 of review]." Issues and Decisions Mem. at 46. The Companies, on the other hand, argue for the legitimacy of their agency relationships, and insist that an application of AFA to their bars/wedges sales is not justified because they "provided all the information requested by Commerce and cooperated to the best of their ability in [their] efforts to comply with Commerce's mandate." Pls.' Mem. of Pts. and Auth. in Supp. of Mot. J. Agency R. ("Pls.' Mem.") at 17. In the Final Results, Commerce found the two claimed agency relationships to be shams. See Final Results 69 Fed.Reg. at 55,583 ("Huarong, LMC/LIMAC, and [Company A] participated in an `agent' sales scheme whereby one PRC company allowed another PRC company to enter subject merchandise under the first company's invoices."). In the first arrangement, Company A allegedly served as Huarong's agent for its sales of bars and wedges in the United States. In the second, LMC acted as Company B's purported agent for its U.S. bars and wedges sales. The Companies argue that neither relationship should serve as the basis for applying AFA because: (1)(a) the Companies submitted to Commerce all of the requested information as well as some additional documents that were not part of Commerce's demand, and thus did not impede Commerce's review and (b) that by doing so, they acted to the best of their abilities to comply with Commerce's request; and (2) despite Company A's and LMC's relatively minimal responsibilities, they performed sufficient duties to qualify both as actual agents. See Pls.' Mem. at 17-19; 21-23. As an example, in support of the first argument, Huarong claims that: In its initial submission to Commerce, Huarong fully disclosed that it utilized an agent for a portion of its sales of subject merchandise bars/wedges. It also included without request by Commerce a copy of the agent/principal contract entered into by Huarong and [Company A]. At no point did Huarong fail to provide information to Commerce or provide incorrect information. In fact, in the next submission, Commerce asked again about agent sales, and requested that Huarong report all such "agent sales" as its own. Huarong complied by providing a sales flow diagram illustrating the agency relationship, and indicated that the agent sales had indeed been reported as sales by Huarong. Pls.' Mem. at 18. Regarding Commerce's finding that the limited business activities actually undertaken by Company A and LMC prevented the establishment of an agency relationship, the companies contend that "it shows good business sense for the customer to have an open relationship with the manufacturer, not just the agent, to address [issues arising with the customer's order]." Pls.' Mem. at 19.[5] These same arguments are made with respect to Commerce's application of total AFA to Company A. Company A, which purportedly acted as Huarong's agent for sales of bars and wedges to the United States, argues that it was equally cooperative as Huarong and LMC in complying with Commerce's requests. The Companies, therefore, take the position that Commerce erred in determining that they impeded the review, thereby justifying the use of facts otherwise available pursuant to 19 U.S.C. § 1677e(a). In addition, they dispute the finding that they failed to act 1268 to the best of their abilities by participating in, and then concealing, a fraudulent invoicing scheme, thereby justifying the use of AFA pursuant to 19 U.S.C. § 1677e(b). Commerce defends its application of total AFA to the companies by stating that "`[r]enting' a dumping margin merits the application of adverse facts available." Def.'s Resp. at 9. Commerce maintains that the Companies were participants in an invoicing scheme whereby the "principal" employed an "agent," which was subject to much lower duties than the principal, as a tool to evade Commerce's orders. Based on Huarong's submitted responses regarding its relationship with Company A, Commerce found that: The record shows that [Company A], whose cash deposit and assessment rates were lower than Huarong, sold blank invoices to Huarong, which then reported the entries as [Company A's] to Customs and benefitted from the very low rates applicable to [Company A]. Likewise, the record shows that LMC and [Company A] sold their invoices to companies that reported their entries to Customs as made by LMC or [Company A], as appropriate, and, thus, benefitted from lower rates. In questionnaire responses, Huarong claimed that its relationship with [Company A] was a bona fide business arrangement whereby [Company A] acted as an agent for Huarong's sales of bars/wedges to one United States customer. However, after two supplemental questionnaires, Huarong revealed that Huarong handled all of the negotiations and shipping arrangements for the sales in question. [Company A] received a fee for simply allowing Huarong to represent to Customs that the merchandise was [Company A] merchandise, rather than Huarong merchandise. Id. at 9-10 (emphasis in original). Commerce further found that LMC provided similarly incomplete responses to the initial section A questionnaire. After reviewing the record of this review, we find that [LMC] continually misrepresented the true nature of its relationship with [Company B] during the POR. In its questionnaire responses, . . . [LMC] claimed that its relationship with [Company B] was a bona fide business arrangement whereby it acted as an agent for [Company B's] sales to one U.S. customer. However, only by issuing three supplemental questionnaires to [LMC] did the Department learn that [LMC] did not negotiate the terms of (i.e., the price and quantity), or arrange shipping for, the sales in question nor did it find new customers for [Company B]. Instead, [Company B] paid [LMC] to use its sales invoices to take advantage of [LMC's] lower cash deposit rate during the POR. Absent our requests for additional information, the Department would not have discovered that [LMC] did not provide the services expected from a true "agent". . . . Adverse Facts Available Mem. LMC (A-570-803) (ITA Mar. 1, 2004) at 4-5; Def.'s Conf.App. Ex. 17. The same finding was made with respect to Company A's submissions. See Adverse Facts Available Mem. Company A (A-570-803) (ITA Mar. 1, 2004) at 4; Def.'s Conf.App. Ex. 15. Thus, because, in Commerce's view, the Companies provided it with incomplete questionnaire responses concerning the responsibilities of the arrangement participants, the Department was justified in using facts otherwise available and AFA because they had "significantly impeded the proceedings and interfered with the assessment of accurate antidumping duties . . . [and] thus failed to cooperate to the best of their respective abilities." Def.'s Resp. at 10. 1269 The court concurs in Commerce's finding that the Companies initially failed to provide pertinent details concerning their invoicing arrangements. In its review of the record, the court examined the Companies' initial questionnaire responses, which reveal that the purported agency relationships, while claimed as legitimate, were not fully explained. See generally Huarong Resp. to Questionnaire Sec. A (May 28, 2003); Company A Resp. to Questionnaire Mini-Sec. A (Apr. 23, 2003); LMC Resp. to Questionnaire Sec. A (May 28, 2003). In addition, the information contained in the responses to the supplemental questionnaires demonstrated the true nature of the arrangements. For instance, it was not until' its September 3, 2003 response to Commerce's supplemental section A questionnaire that Huarong disclosed the details of the arrangement by stating that: Usually, the customer contacts Huarong, but places the order with [Company A]. The customer generally sends Huarong a fax copy of the order . . . The customer in the United States is a long-time customer and handles the orders as it chooses. . . . For all agent sales, however, title to the goods passed from Huarong to the U.S. customer. The agent did not take title. . . . Generally Huarong negotiated the price and quantity of the sale. . . . Generally Huarong confirmed the purchase order by telephone with the U.S. customer. . . . Huarong Resp. to Supplemental Questionnaire Sec. A at 5-7 (Sept. 3, 2003) (emphasis in original).[6] More specifically, Huarong stated that "[Company A] issued the sales invoices." Id. at 7. In other words, the record shows that all of the sales activity was performed by Huarong, that Company A received payment not for carrying out duties tied to the sale of the merchandise, but for merely providing the principal with blank invoices and packing lists, and that the true nature of the arrangement was not immediately revealed to Commerce. Similarly, both LMC and Company A ultimately reported in their supplemental questionnaire response that, for "agent" sales: (1) the U.S. customer contacted the principal directly; (2) the principal negotiated the price, quantity, and shipping terms of the merchandise; (3) the principal made the sales calls; (4) the principal filled out the invoices and the purchase orders with the relevant sales data; (5) the principal paid the freight forwarder; and finally (6) that the "agents" issued the sales invoices. See LMC Resp. to Supplemental Questionnaire Sec. A at 5-8 (Sept. 29, 2003); Company A Resp. to Supplemental Questionnaire Sec. A at 1-5 (Oct. 31, 2003). Thus, it is apparent that both LMC and Company A were agents in name only as they were not burdened with any responsibilities concerning the sales other than providing their principals with invoices and packing lists. As with Huarong, Commerce only learned these details after issuing supplemental questionnaires. As a result of the inadequate answers found in the initial section A responses, Commerce was required to issue several supplemental questionnaires in order to get the necessary information to complete its investigation. Consequently, even though the Companies ultimately disclosed the circumstances surrounding their "agency" relationships, their failure to do so until after the issuance of several supplemental questionnaires surely significantly impeded Commerce's investigation 1270 by requiring the agency to prolong its review. See 19 U.S.C. § 1677e (a); see also Shandong Huarong Gen. Group Corp. v. United States, 27 CIT ___, ___, 2003 WL 22757937, 7 (Oct. 22, 2003) (not published in the Federal Supplement) (finding that respondents significantly impeded a review by submitting inaccurate questionnaire responses that precluded Commerce from conducting verification.). Thus, the court's review of the record leads it to conclude that Commerce's use of facts otherwise available in determining the margins for the Companies' sales of bars and wedges was supported by substantial evidence and otherwise in accordance with the law under § 1677e (a). Having found Commerce's use of facts otherwise available to be justified, the court now turns to the propriety of Commerce's application of total AFA to the Companies' sales of bars and wedges to the United States. See 19 U.S.C. § 1677e(b). If an interested party "fail[s] to cooperate by not acting to the best of its ability to comply with a request for information," Commerce may then use an adverse inference when choosing from the facts otherwise available. 19 U.S.C. § 1677e(b).[7] Although the statute does not provide a standard for what constitutes acting to the best of a party's ability, the United States Court of Appeals for the Federal Circuit has held that phrase to "require[] the respondent to do the maximum it is able to do." Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir.2003). "When a respondent fails to respond to Commerce's requests and the information it requested is material to the investigation, this court previously has found such behavior to be unreasonable and the use of AFA appropriate." Chia Far Indus. Factory Co., Ltd. v. United States, 28 CIT ___, ___, 343 F.Supp.2d 1344, 1363 (2004). In accordance with this standard, the court finds that the Companies' failure initially to provide the relevant information with respect to their invoicing arrangement, information that was fully within their command, justified Commerce's application of AFA to the Companies' sales of bars and wedges. B. Commerce's Application of Total AFA to Huarong's and TMC's Forged Tamper and Scraper Sales Huarong and TMC next dispute Commerce's application of total AFA to their sales of forged tampers and scrapers. Commerce states that, because Huarong and TMC failed to provide the requested information, it was justified in using facts available. See Issues and Decisions Mem. at 37; 19 U.S.C. § 1677e(a). Commerce then applied AFA to Huarong and TMC based on its conclusion that their actions demonstrated a failure to cooperate by not acting to the best of their abilities to comply with its request for information. 19 U.S.C. § 1677e(b); see Def.'s Resp. at 13 (citing Nippon Steel, 337 F.3d at 1380). Throughout the course of the twelfth review, Commerce asked Huarong and TMC, as well as SMC, to provide information concerning sales of tampers and scrapers. See Issues and Decisions Mem. at 37. SMC "responded to the request by explaining that they did not provide the information about the sales data because they did not want to provide it while a scope inquiry on the subject merchandise was still pending." Pls.' Mem. at 13. As of the time of Commerce's request, the 1271 agency had initiated formal scope inquiries as to tampers on August 4, 2003, and for scrapers on December 2, 2003. See Issues and Decisions Mem. at 34. The tampers inquiry terminated on July 29, 2004, while the inquiry regarding scrapers remains open. Huarong and TMC maintain that their failure to provide Commerce with the requested information was the result of a miscommunication. Upon receiving Commerce's request for information relating to tampers and scrapers, SMC, apparently believing these tools were not covered by the order, notified Commerce that it would not provide the requested information because of the pending scope inquiry. See Pls.' Mem. at 13. Huarong and TMC argue that, because Commerce never contested SMC's explanation as to why the company was not going to provide the requested information, they assumed that Commerce had waived its request for information on tampers and scrapers. Id. Indeed, Huarong and TMC contend that: [They] did not purposefully try to evade Commerce's request for the sales data on scrapers and tampers. Rather, after Commerce failed to respond to SMC's explanation for its failure to supply the requested information, Huarong and TMC genuinely believed that the issue had been laid to rest. Had Commerce again requested the information from Huarong and TMC, they would have provided [it]. This was merely a miscommunication among the parties, and Huarong and TMC should not receive AFA for a mistake. Pls.' Mem. at 13. In addition, Huarong and TMC argue that nothing required a response given the pending scope inquiry concerning the products subject to the request.[8] Commerce first supports its application of total AFA to Huarong and TMC by maintaining that a pending scope determination does not cut-off a party's duty to respond to a request for information to the best of its ability. See Def.'s Resp. at 12-13; see also 19 C.F.R. § 351225(l)(4) ("[N]otwithstanding the pendency of a scope inquiry, if the Secretary considers it appropriate, the Secretary may request information concerning the product that is the subject of the scope inquiry for purposes of a review under this subpart."). In addition, Commerce insists that "`intent' is not a necessary factor for the application of [AFA]." Def.'s Resp. at 12 (citing Nippon Steel, 337 F.3d at 1381). Commerce's application of AFA to a respondent requires that agency to engage in the two-step analysis set forth in 19 U.S.C. §§ 1677e(a) and 1677e(b). With respect to a respondent's state of mind, the Federal Circuit has provided the following instruction: Under subsection (a), if a respondent "fails to provide [requested] information by the deadlines for submission," Commerce shall fill in the gaps with "facts otherwise available." The focus of subsection (a) is respondent's failure to provide information. The reason for the failure is of no moment. The mere failure of a respondent to furnish requested information for any reason requires Commerce to resort to other sources of information to complete the factual record on which it makes its determination. As a separate matter, subsection (b) permits Commerce to "use an inference that is adverse to the interests of [a respondent] in selecting from among the facts otherwise available," only if Commerce makes the separate determination 1272 that the respondent "has failed to cooperate by not acting to the best of its ability to comply." The focus of subsection (b) is respondent's failure to cooperate to the best of its ability, not its failure to provide requested information. Nippon Steel, 337 F.3d at 1381 (quoting 19 U.S.C. § 1677e) (emphasis in original). Thus, subsection (a) is triggered by a finding that a respondent has failed to provide requested information. For a respondent to be subjected to the application of AFA under subsection (b), however, a more detailed analysis is required. Before making an adverse inference, Commerce must examine respondent's actions and assess the extent of respondent's abilities, efforts, and cooperation in responding to Commerce's requests for information. Compliance with the "best of its ability" standard is determined by assessing whether respondent has put forth its maximum effort to provide Commerce with full and complete answers to all inquiries in an investigation. While the standard does not require perfection and recognizes that mistakes sometimes occur, it does not condone inattentiveness, carelessness, or inadequate record keeping. . . . To conclude that an importer has not cooperated to the best of its ability and to draw an adverse inference under section 1677e(b), Commerce need only make two showings. First, it must make an objective showing that a reasonable and responsible importer would have known that the requested information was required to be kept and maintained under the applicable statutes, rules, and regulations. Second, Commerce must then make a subjective showing that the respondent under investigation not only has failed to promptly produce the requested information, but further that the failure to fully respond is the result of the respondent's lack of cooperation in either: (a) failing to keep and maintain all required records, or (b) failing to put forth its maximum efforts to investigate and obtain the requested information from its records. Id. at 1382-83. (citations omitted); see also Hebei Metals & Minerals Import & Export Corp. v. United States, 29 CIT ___, ___, 2005 WL 2323148, 6 (Sept. 22, 2005) (not published in the Federal Supplement). Put another way, under the facts of this case, Commerce's use of an adverse inference cannot be based solely on a respondent's failure to submit requested information, but rather requires a demonstrated failure on behalf of the respondent to put forth its maximum efforts in attempting to provide Commerce with the requested data. Here, the language of 19 C.F.R. § 351.225(l)(4) makes it clear that Commerce was entitled to seek the requested information regardless of the status of the scope inquiries, and that Huarong and TMC were required to respond. The question is whether Huarong and TMC, having failed to respond, should be excused from answering the questionnaires based on SMC's representations to Commerce and the Department's subsequent silence. The court finds that it is simply not the case that Huarong and TMC had reason to believe that Commerce's silence with respect to SMC's statements meant that they need not respond to the agency's inquiries. Each company was directly asked to supply information. Neither supplied the information nor did either inquire on its own behalf whether the request had somehow lapsed. Considering the importance of the review process, Commerce's failure to reply to SMC can provide no excuse for either company's failure to supply the information. Had the respondents made inquiries of their own, the result might be different, but having exerted no independent efforts to ascertain the status 1273 of Commerce's request, they cannot now be heard as having relied upon the unanswered statements of another. Taking into account the failure of both Huarong and TMC to provide Commerce with requested information, the court does not find error in Commerce's decision to apply AFA to both companies' sales of those products. It is not clear to the court, however, that Commerce properly extended its application of AFA to cover Huarong's sales of all products covered by the axes/adzes and bars/wedges orders, and TMC's sales of all products under the bars/wedges order. See Issues and Decisions Mem. at 38 ("[W]e continue to apply total AFA to Huarong and TMC due to their failure to provide the requested data for sales of forged tampers and scrapers, respectively."). Indeed, this Court has previously found unreasonable the application of "total" AFA to a respondent when Commerce had verified some, but not all of the respondent's sales. See Goldlink Indus. Co., Ltd. v. United States, 30 CIT ___, ___, 431 F.Supp.2d 1323, 1331-32 (2006) (not published in the Federal Supplement) ("The Court, therefore, remands this issue back to Commerce to re-examine its determination to apply total adverse facts rather than partial adverse facts for the unverifiable sales.") (emphasis in original). That is, Commerce generally may use an adverse inference only with respect to the specific information that a respondent failed to provide. See Shandong Huarong Gen. Group Corp., 27 CIT at ___, 2003 WL 22757937, 19 (holding that, "the findings that justified the use of facts available and a resort to adverse facts available with respect to [respondents'] sales data and factors of production, cannot be used to accord similar treatment to issues relating to [respondents'] evidence of independence from state control."); see also Gerber Food (Yunnan) Co., Ltd. v. United States, 29 CIT ___, ___, 387 F.Supp.2d 1270, 1287 (2005). Therefore, the court remands this matter for Commerce to explain why its determination that Huarong's and TMC's failure to report information on scrapers and tampers justified its apparent application of AFA to Huarong's total sales of merchandise covered by the bars/wedges and axes/adzes orders, and TMC's total sales covered by the bars/wedges order, and not just the merchandise for which requested information was not produced. C. 139.31% AFA Rate Applicable to TMC's Exports of Bars/Wedges In selecting the rate applicable to TMC's bars and wedges in this administrative review, Commerce chose the PRC-wide rate of 139.31% from the eighth administrative review. TMC objects to the application of the rate for several reasons, among them is its claim that "the Department cannot select unreasonably high AFA rates that have no relationship to a respondent's actual dumping margin." Issues and Decisions Mem. at 51. For TMC, because it "fully disclosed every sale of subject merchandise during the POR . . . [,] the Department can calculate and assess dumping margins on all of the sales . . ." Id. In other words, TMC argues that the 139.31% rate is "unreasonably high and should be revised." Id. For its part, Commerce states that it chose the 139.31% rate because "other more recently calculated margins for bars/wedges do not offer an adequate incentive to induce TMC to cooperate in this proceeding, given that these rates are either less than, or nearly the same as, the cooperative rates calculated for TMC in the most recent reviews of its bars/wedges sales." Issues and Decision Mem. at 42. The court finds that Commerce has not justified its use of the 139.31% rate. When making a determination with respect 1274 to the application of AFA, Commerce is required to read §§ 1677e(a) (directing the agency to "use the facts otherwise available" in reaching its determination when "necessary information is not available on the record . . .") and (b) (allowing the agency to "use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available") together.[9] Indeed, Commerce may not use an adverse inference unless the use of facts otherwise available has resulted from a respondent's actions. Only having found that the use of facts otherwise available is warranted may Commerce then determine that the party has "failed to cooperate by not acting to the best of its ability to comply with a request for information . . . [and] use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available." 19 U.S.C. § 1677e(b) (emphasis added). Section 1677e(b) further states that the "adverse inference may include reliance on information derived from . . . (1) the petition, (2) a final determination in the investigation under this subtitle, (3) any previous review under section 1675 of this title or determination under section 1675b of this title, or (4) any other information placed on the record." Id. Put another way, the statute can be reasonably understood as requiring the rate selected as AFA to be factually supported in all instances. As this Court has held, an assessment rate, standing alone, is not a "fact" or a set of "facts otherwise available," and under no reasonable construction of the provision could it be so interpreted. The statute does not permit Commerce to choose an antidumping duty assessment rate as an "adverse inference" without making factual findings, supported by substantial evidence. . . . Gerber Food (Yunnan) Co., Ltd., 29 CIT at ___, 387 F.Supp.2d at 1285. Moreover, Commerce must also impose an AFA rate that is a "reasonably accurate estimate of the respondent's actual rate, albeit with some built-in increase intended as a deterrent to non-compliance." Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330, 1340 (Fed.Cir.2002) (citations and internal quotation marks omitted). Here, by merely selecting a rate from a previous review, Commerce has not provided the court with sufficient factual findings justifying its application of the 139.31% rate. In particular, the Department has failed to explain why the chosen rate represents a reasonably accurate estimate of TMC's actual rate to which it has added an amount to encourage TMC to cooperate in future proceedings. Thus, because Commerce cannot, absent adequate 1275 justification, select the highest available rate to apply as AFA, the court remands this issue to Commerce to afford it an opportunity to provide a factual basis for its selection of the 139.31% rate. D. Application of Partial AFA to SMC's Sales of Bars and Wedges For Failing to Report Finished Coating on Tool Heads as a Factor of Production In its Final Results, Commerce applied AFA to SMC's sales of bars and wedges based on its failure to provide data regarding certain factors of production for those tools. See Final Results 69 Fed. Reg. at 55,583. Specifically, Commerce cites SMC's responses to Section C and D of the questionnaire in which SMC indicated that the heads of those tools were coated with an "enamel, polyurethane, varnish or other finish (not including paint)."[10] SMC Responses to Sections C and D of Questionnaire at C-11, C-15, C-18 (Aug. 11, 2003). Despite SMC's responses, it did not provide Commerce with any information as to the cost of the finish coating. Based on SMC's failure to provide the requested finish coating cost information, Commerce used facts otherwise available to determine that cost. See 19 U.S.C. § 1677e(a); see also Issues and Decisions Mem. at 16. In addition, because it found that SMC failed to review the questionnaire response for accuracy prior to submission, Commerce determined that SMC failed to put forth its maximum efforts to provide Commerce with requested information and used an adverse inference in selecting from among the facts otherwise available. See 19 U.S.C. § 1677e(b); see also Issues and Decisions Mem. at 16. As a result, Commerce used the highest ratios of finished coating weight to steel input weight based on the data received from TMC in this investigation to calculate the normal value of SMC's bars and wedges. See Issues and Decisions Mem. at 16.[11] SMC insists that its questionnaire responses were induced by "Commerce's `introduction of a new system for reporting CONNUMs that was started for the first time in this administrative review.'"[12] Pls.' Mem. at 26 (quoting Issues and Decision Mem. at 15). According to SMC, it never meant to inform Commerce that a finish coating other than standard paint was applied to the bars/wedges and it did not report the factor of production information because, in its view, there was none to report. See id. at 26. Commerce maintains that the format of its questionnaire was in no way confusing. See Def.'s Resp. at 14, 15 ("[T]he questionnaire issued in this review was unambiguous."). It notes that the questionnaire specifically asked the respondents, in one 1276 field, to indicate whether the tool heads were painted, and in a separate field to report whether the tool heads were coated with "an enamel, polyurethane, varnish or other finish" other than ordinary paint. SMC Responses to Section C and D of Questionnaire at C-11, C-15, C-18. Commerce further supports its application of partial AFA to SMC by citing Nippon Steel for the proposition that the standard for using AFA "does not condone inattentiveness, carelessness, or inadequate record keeping." Nippon Steel, 337 F.3d at 1382. Moreover, Commerce contends that, if SMC found the questionnaire to be confusing, it should have made that known to the Department prior to submitting its answers. See Def.'s Resp. at 15. The court finds SMC's arguments unpersuasive. Upon review of the subject questionnaire, it is difficult to find any ambiguity in Commerce's request for information regarding the finish, if any, applied to the tools. The questionnaire asked in Field Number 3.10, which is entitled "Paint," whether the "bar/wedge is painted or not painted," and instructed the respondent to place a "1" in the response if the tool was painted, and a "2" in the event that no paint was applied. SMC's Responses to Sections C and D of Questionnaire at C-15. Directly below Field Number 3.10 is Field Number 3.11, which is entitled "Finish Coating." This category directed respondent to indicate whether the "[bar/wedge] head is coated with an enamel, polyurethane, varnish or other finish (not including paint)." Id. at C-16 (emphasis added). As with the paint inquiry, respondents were instructed to place a "1" in the response if their tools were finish coated and a "2" if no such coating was applied. With respect to its bars/wedges, SMC placed a "1" in both the Paint and Finish Coating columns, indicating that the tool heads were both painted and coated with some other finish. See Pls.' Conf. Appx., SMC's Responses to Sections C and D of Questionnaire. Therefore, the court agrees that the failure of SMC to report the costs associated with the requested finish coating factor of production warranted the use of facts otherwise available under § 1677e(a) because, having failed to provide Commerce with data relating to one of SMC's questionnaire responses, SMC prevented Commerce from calculating normal value based on a complete factual record, and thus impeded the investigation. "Compliance with the `best of its ability' standard [for the use of AFA] is determined by assessing whether respondent has put forth its maximum effort to provide Commerce with full and complete answers to all inquiries in an investigation." Nippon Steel, 337 F.3d at 1382. Because it "withh[eld] information that [had] been requested by the administering authority . . .," and failed to recognize, prior to submitting its response, that it had done so, SMC failed to put forth its maximum efforts to provide Commerce with the requested cost data for the finish coating. 19 U.S.C. § 1677e. In addition, Commerce limited its application of AFA to the specific area of SMC's failure, i.e., the cost of the finish coating. This being the case, the court affirms Commerce's determination. E. Commerce's Decision Not to Revoke the Antidumping Duty Order Applicable to SMC and LMC Finally, SMC and LMC contest Commerce's denial of their requests to have the antidumping duty orders applicable to their respective sales of hammers/sledges and bars/wedges revoked. See Final Results 69 Fed.Reg. at 55,582; see also Issues and Decision Mem. at 19-20, 26-27. 1277 1. SMC's Request to Revoke Antidumping Order Covering Hammers/Sledges: Commercial Quantities Commerce's regulations provide that "before revoking an order . . . the Secretary must be satisfied that, during each of the three . . . years, there were exports to the United States in commercial quantities of the subject merchandise to which a revocation . . . will apply." 19 C.F.R. § 351.222(d)(1).[13] At issue in the instant action is Commerce's finding that the antidumping duty order should remain in effect because SMC did not export its hammers and sledges to the United States in commercial quantities for three consecutive years. Neither the statute nor the regulations provide a definition of "commercial quantities." See Pls.' Mem. at 28; see also Def.'s Resp. at 22. SMC maintains that it complied with the regulations by participating meaningfully in the U.S. market. See Pls.' Mem. at 28. According to SMC, its exports significantly increased over the three-year period encompassing 2000-2001, 2001-2002, and 2002-2003.[14] While the parties agree that the total number of pieces exported during the 2001-2002 and 2002-2003 periods constituted commercial quantities, Commerce found that the hammer/sledge exports during 2000-2001 failed to meet the regulatory standard. See Pls.' Mem. at 28; see also Def.'s Resp. at 22-23. Although the levels attained in the subsequent two years were greater, SMC argues that the number of hammers/sledges exported to the United States during 2000-2001 satisfied the regulatory requirement of exporting subject merchandise in commercial quantities. Indeed, SMC emphasizes that, during the tenth administrative review, which covered 2000-2001, Commerce made no mention of any failure on SMC's part to sell the subject merchandise in commercial quantities and gave SMC a zero percent margin for its hammers/sledges exports. See Pls.' Mem. at 28; see also HFHTs From the PRC, 67 Fed.Reg. 57,789, 57,792 (Sept. 12, 2002) ("tenth review"). Because Commerce did not, at the time of the tenth review, question whether the subject merchandise was exported in commercial quantities, SMC insists that Commerce is prohibited from doing so now. See Pls.' Mem. at 29. Commerce acknowledges that neither the statute nor the regulations provide guidance with respect to the definition of commercial quantities. See Def.'s Resp. at 22. For Commerce, the absence of any formal standard requires commercial quantities to be determined on a "case-by-case basis, based on the unique facts of each proceeding." Id. Commerce explains that its current practice is to "compare[] the quantity of exports in each period of review to an appropriate benchmark period and also consider[] sales in absolute terms, examining whether the quantity in any of the periods was abnormally small." 1278 Id. (internal quotation marks omitted). In reaching its conclusion in the instant matter, Commerce asserts that it adhered to this practice and used the export levels for 2002-2003 as the benchmark period. See Def.'s Resp. at 22. In other words, Commerce compared the volume of exports by SMC to the United States from 2000-2001 and 2001-2002 to the volume exported in 2002-2003. In comparing the exports from 2000-2001 to the benchmark period of 2002-2003, Commerce found the former figures to be "dwarfed" by the latter and, thus, insufficient to support a finding that the order was no longer necessary to prevent dumping. Id. Next, Commerce asserts that the absence of a discussion within the tenth review concerning whether SMC exported hammers/sledges in commercial quantities was to be expected. Commerce is correct. As Commerce notes, "[t]he yearly review procedures do not require a `commercial quantities' analysis." Id. at 24. Commerce argues that neither the fact that SMC's exports were not discussed in terms of commercial quantities in the tenth review, nor the assignment of a zero margin supports a finding that SMC complied with 19 C.F.R. § 351.222(e). This is because whether a respondent exported the subject merchandise in commercial quantities is not a factor that Commerce considers when assigning dumping margins. See, e.g., 19 C.F.R. § 351.213 (articulating the factors and procedures to be applied in an administrative review. Notably absent from this list is a requirement that the subject merchandise be exported in commercial quantities.). "When a particular term is not expressly defined in a statute, the meaning of that term may be discerned by looking to the provisions of the whole law, and to its object and policy." Cal. Indus. Prods., Inc. v. United States, 436 F.3d 1341, 1353 (Fed.Cir.2006) (internal citations, alterations and quotation marks omitted). Commerce claims that it has satisfied the requirement of California Products, Inc. because its benchmark methodology is a "current practice" aimed at discerning meaning for the Thrase "commercial quantities" under 19 C.F.R. § 351.222(e)(1). See Def.'s Resp. at 22.[15] Using SMC's exports from 2002-2003 as the benchmark, Commerce found that the volume in 2000-2001 was "abnormally small" in comparison, and, thus, did not amount to "commercial quantities." Id. What Commerce does not explain is why its current practice fulfills the purpose of the regulation, which is to ensure that an exporter will continue to participate in fair trade practices upon revocation.[16]See Rules and Regulations, Antidumping Duties; Countervailing Duties ("Preamble"), 62 Fed. Reg. 27,296, 27,325-26 (ITA May 19, 1997). Indeed, Commerce retained the 1279 "commercial quantities" language in the regulation even after the requisite notice and comment period produced some remarks suggesting that the phrase was not needed. Specifically, Commerce stated that: [W]e believe that it is reasonable to presume that if subject merchandise, shipped in commercial quantities, is being dumped or subsidized, domestic interested parties will react by requesting an administrative review to ensure that duties are assessed and that cash deposit rates are revised upward from zero. If domestic interested parties do not request a review, presumably it is because they acknowledge that the subject merchandise continues to be fairly traded. However, neither presumption can be made when merchandise is not being shipped in commercial quantities. Preamble at 27,326; see also Pure Magnesium From Canada: Final Results of Antidumping Duty Administrative Review and Determination Not To Revoke Order in Part, 64 Fed.Reg. 12,977, 12,979 (Mar. 16, 1999) ("This requirement ensures that the Department's revocation determination is based upon a sufficient breadth of information regarding a company's normal commercial practice."). Without further explanation, however, it is difficult to see how the current "benchmark" methodology employed by Commerce would further the purpose of the regulation. That is, why is Commerce's method a reasonable way to ensure the regulation's goals. For that reason, the court remands this issue in order to allow Commerce to provide the court with an explanation as to how its methodology results in a reasonable measure of "commercial quantities." That is, Commerce must explain: (1) how it arrived at the "benchmark period"; (2) why it was reasonable in its selection; and (3) how a comparison of the two periods demonstrates that the exports for the year 2000-2001 do not constitute commercial quantities. 2. LMC's Request to Revoke Antidumping Duty Order Covering Bars/Wedges: Sale of Merchandise at Not Less Than Normal Value Commerce also denied LMC's request to have the antidumping duty order applicable to its sales of bars/wedges revoked, basing its denial on LMC's failure to sell its merchandise at not less than normal value[17] for three consecutive years. See 19 C.F.R. § 351.222(e)(1)(i).[18] Commerce's conclusion was based on its application of AFA to LMC's sales of bars and wedges for its failure to participate to the best of its ability to provide information on its invoicing practices, and LMC's consequent receipt of an above de minimis dumping margin for the period of review. See Def.'s Resp. at 25. Because of the imposition of a more than de minimis margin, Commerce found that LMC was necessarily selling its merchandise at less than normal value. See Def.'s Resp. at 25. LMC contends that the margin was assigned as a result of the Department's erroneous 1280 application of AFA to its bars/wedges sales. See Pls.' Mem. at 31. For LMC, the decision not to revoke the order covering its bars and wedges cannot be based on an unlawfully assigned margin. Commerce argues that both its application of AFA to LMC and its subsequent assignment of an above de minimis margin were appropriate, and that therefore its decision not to revoke the order was supported by substantial evidence and otherwise in accordance with law. Having previously found Commerce's application of AFA to LMC's sales of bars/wedges to be supported by substantial evidence, the court finds that the resulting margin and, consequently, Commerce's decision not to revoke based on LMC's failure to meet the regulatory requirements of 19 C.F.R. § 351.222(e)(1)(i) are supported by the same. Thus, Commerce's decision not to revoke the antidumping duty order covering LMC's sales included within the scope of the bars/wedges order is sustained. II. Ames' Motion A. Commerce's Use of Steel Billet Instead of Hexagonal Steel Bar as a Surrogate Value for TMC Ames first challenges Commerce's use of a surrogate value for steel billet when calculating the normal value of certain of TMC's merchandise. Under 19 U.S.C. § 1677b(c), when the subject merchandise is exported from a nonmarket economy country ("NME"),[19] normal value may be calculated by valuing the factors of production in a market economy country or countries considered to be appropriate by Commerce. See 19 U.S.C. § 1677b (c)(1). As TMC's merchandise is exported from China, a NME, Commerce used this methodology to determine normal value for TMC's bars/wedges, axes/adzes, and hammers/sledges. See Issues and Decision Mem. at 5-7. Ames does not argue with this methodology, but rather disputes Commerce's decision to use steel billet instead of hexagonal steel bar when valuing this input. See Def.-Int.'s Br. Supp. Mot. J. Agency R. ("Def.-Int.'s Br.") at 8. In support of its contention that Commerce valued the wrong kind of steel, Ames points to TMC's product catalog, which describes certain tools as made from hexangular stock. See id. According to Ames, the conversion of steel billet into a hexagonal shape requires equipment that has not been shown to be in TMC's possession. See id. at 9. Commerce claims that, although TMC did have descriptive language in its catalog indicating the use of hexagonal steel bar, this observation alone is not dispositive. See Def.'s Resp. at 25. Rather, Commerce relies on the record invoices from TMC's suppliers, which demonstrate that TMC bought substantial quantities of steel billet and scrap rail but no hexagonal stock. See id. at 25-26; see also Issues and Decision Mem. at 7. Thus, the Department based its determination on data that "dealt specifically with the inputs used and were linked to the raw material inventory. . . ." Def.'s Resp. at 25. Commerce concludes that the "ambiguous statement [contained in the catalog] does not overcome the documentary evidence supplied by TMC's suppliers regarding the material inputs they used to produce HFHTs." Issues and Decision Mem. at 7. 1281 As to Ames' argument that TMC does not have the equipment to transform billet into hexagonal bars, Commerce notes that, "[g]iven that the forging process heats the steel input to a degree such that the input can be shaped into the desired form," no practical barrier exists to prevent the billet from being shaped into hexagonal bar. Id. Thus, Commerce contends that the fact that TMC does not have access to a rolling mill or other such machinery does not foreclose a finding that TMC could convert steel billet into hexagonal stock. Here, Commerce's decision is supported by its review of what TMC actually purchased from its raw material suppliers. That is, Commerce "examined the invoices, which dealt specifically with the inputs used and were linked with the raw material inventory, rather than a general reference in a brochure." Def.'s Resp. at 25; see also Def. Conf. R. Ex. 14 (consisting of TMC's Response to Section D of Questionnaire (November 3, 2003)).[20] Commerce also took into account that the process TMC was known from record evidence to have used, could produce hexagonal shapes. Ames' argument, on the other hand, is largely based on conjecture. Thus, the court finds that Commerce has supported its finding with substantial evidence and sustains its conclusion. B. Commerce's Failure to Apply AFA to TMC's Sales of Axes/Adzes and Picks/Mattocks Supplied by Company C[21] Ames' next contention is that Commerce erred in not applying AFA to TMC's sales of axes/adzes and picks/mattocks supplied by Company C. Ames argues that because Commerce applied AFA to SMC for failing to report data that Company C would not provide, it should also apply AFA to TMC even though Company C did cooperate by supplying TMC with requested information. Ames contends that Commerce's past practice dictates that AFA be applied to both respondents based on Company C's status as an interested party. See Def.-Int.'s Br. at 12. Commerce maintains that applying AFA to TMC, which participated to the best of its ability in this portion of the review, would be contrary to public policy. See Def. Resp. at 19; Issues and Decisions Mem. at 30. Ames' argument is rooted in its analyses of two prior Commerce determinations: Fresh Garlic From the PRC, 68 Fed.Reg. 75,210 (Dec. 30, 2003) ("Fresh Garlic"); and Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the PRC (final results), 62 Fed.Reg. 61,276 (Nov. 17, 1997) ("Tapered Roller Bearings 1995-1996"). According to Ames, these determinations bind Commerce to apply AFA to all respondents associated with an uncooperative interested-party supplier, regardless of whether a respondent cooperated or whether the interested-party supplier cooperated with that respondent. See Def.-Int.'s Br. at 12-13. Indeed, Ames insists that: [A] supplying producer is an interested party whose failure to cooperate is attributable to the exporting respondent . . . [A]s long as one respondent received [AFA] for its response for this reason, any other respondent that also 1282 sold subject merchandise to the United States manufactured by that respondent should also receive [AFA]. Id. at 12. Central to Ames' argument is its contention that Company C is an interested party under § 1677(9).[22]Id. at 13. Ames contends that, had Commerce found Company C to be an interested party, its lack of cooperation with respect to SMC would be properly attributable to both SMC and TMC. Id. In Commerce's view, its decision to refrain from applying AFA to TMC was proper because, unlike SMC, TMC fully complied with Commerce's requests. See Def.'s Resp. at 19-20. Commerce further insists that applying AFA to TMC in this instance would be contrary to the purpose behind AFA, which is to encourage respondents to fully participate in administrative reviews. See id. at 19. For Commerce, because "[t]he purpose of the `adverse inference' is to encourage participation, [it] properly concluded that applying an `adverse inference' to TMC, notwithstanding its cooperation, would be contrary to that purpose." Id. Therefore, because TMC cooperated to the best of its ability and persuaded Company C to do the same, Commerce maintains that its decision to not apply AFA to TMC was reasonable. The court agrees with Ames that Company C, as a foreign manufacturer of the subject merchandise, is an interested party under § 1677(9)(A) (including within the ambit of "interested party" a "foreign manufacturer, producer, or exporter . . . of subject merchandise. . . ."). Nonetheless, while acknowledging that Commerce has previously applied AFA to respondents whose interested-party suppliers failed to provide relevant factors of production data, see Fresh Garlic at 75,210; see also Tapered Roller Bearings 1995-1996 at 61,276, the court finds that Commerce correctly determined that the situation presented here is distinct from that in those past investigations.[23] An examination of the facts in those two investigations demonstrates that, in Fresh Garlic, the supplier data was rejected as untimely, and in Tapered Roller Bearings 1995-1996, the respondent never actually produced any of the requested information. Thus, although these respondents made efforts to get interested parties to give them the information needed to be responsive, ultimately, they failed to obtain the information in a timely fashion or were unable to obtain the information at all. Unlike the respondents in the investigations cited by Ames, TMC was able to comply with Commerce's request because it successfully convinced Company C to provide it with the necessary data. Commerce's choice to recognize this cooperation by not applying AFA was reasonable because TMC, by its cooperation and timely production of information, did nothing that would trigger the use of either facts otherwise available or AFA. See 19 U.S.C. § 1677e. 1283 C. Propriety of PRC-Wide Rate Applicable to Huarong's Scraper Sales Ames next objects to Commerce's application of the PRC-wide 55.74% rate to Huarong's sales of scrapers because, in its view, that rate is sufficiently low that Huarong would actually benefit from it. See Def.-Int.'s Br. at 16. Commerce applied the PRC-wide rate as a result of Huarong's previously discussed failure to report factors of production data concerning its forged scrapers. See id. While Huarong challenges Commerce's decision to apply AFA to its forged scrapers sales, it does not take issue with the calculation of the rate. See Pls.' Mem. at 12-13. Because Ames believes that the 55.74% rate is insufficient to encourage cooperation, it urges the court to direct Commerce to calculate a rate using information from Huarong's questionnaire responses. See Def.-Int.'s Br. at 16. As part of its argument, Ames states that, during the investigation, it calculated a rate based on data submitted by Huarong and urged its use by Commerce.[24] Ames claims that Commerce failed sufficiently to take into account this proposed rate and thus acted in violation of 19 C.F.R. 351.309(b)(1). ("In making the final determination in a[n] . . . antidumping investigation . . ., the Secretary will consider written arguments in case or rebuttal briefs filed within the time limits in this section."). Notably, this rate was dramatically greater than the PRC-wide rate. Id. at 20.[25] Because it submitted its proposed rate in writing, Ames contends that Commerce was required by regulation to consider its claim that Huarong was benefitting from the application of the PRC-wide rate. See id. at 17. In response to an argument made by Commerce, Ames takes issue with the Department's finding that the data Huarong reported was incomplete and, thus, could not be used to calculate an accurate antidumping duty rate. Ames insists that, despite Huarong's failure to respond to supplemental questionnaires, the information contained in Huarong's initial response was sufficiently complete to support an individual rate calculation. Id. at 18. In addition, Ames asserts that, once the decision is made to apply AFA, Commerce is no longer burdened by the responsibility of calculating dumping margins as accurately as possible. Id. In response, Commerce first notes that it did consider the rate calculated by Ames but found the data used in its calculation wanting. See Def.'s Resp. at 16; see also Issues and Decisions Mem. at 18 ("Relying upon incomplete sales and [factors of production] data . . . would be contrary to our responsibility to calculate accurate dumping margins. . . . We consider the application of the AFA rate more appropriate than calculating a margin based on incomplete and unverified sales and [factors of production] data."). In other words, because "Huarong refused to answer supplemental questions on scrapers, [which] ruled out the possibility of any verification . . .," Commerce concluded that the data contained in Huarong's initial response was insufficient to make an accurate calculation. 1284 Issues and Decisions Mem. at 18. Next, Commerce points out that in the ninth administrative review, the most recent review in which an AFA rate was applied to Huarong's sales of scrapers, the rate was 18.72%. See HFHTs From the PRC, 66 Fed.Reg. 48,026, 48,029 (ITA Sept. 17, 2001) (final results) ("ninth review"); see also Def.'s Resp. at 16. For the instant review, Commerce emphasizes that "the rate selected as adverse facts available was 55.74 percent . . . [,]" which is nearly three times as high as the most recently applied rate. Def.'s Resp. at 16. That is, Commerce believes that an approximate 300% rate increase would provide a sufficient incentive to encourage cooperation in future reviews. The court agrees with Commerce's conclusion that the PRC-wide rate is adequate to encourage participation in future reviews. First, the court notes that, despite Ames' assertion to the contrary, "[i]t is clear . . . that [Congress] intended for an adverse facts available rate to be a reasonably accurate estimate of the respondent's actual rate, albeit with some built-in increase intended as a deterrent to noncompliance." Ta Chen Stainless Steel Pipe, Inc., 298 F.3d at 1340 (citation and internal quotation marks omitted). In addition, the court cannot conclude that the factors of production data provided in Huarong's original response provided a sufficient basis upon which Commerce could select an appropriate AFA rate. By failing to submit answers to Commerce's supplemental questionnaires, Huarong effectively prohibited the agency from verifying the data contained in the initial response. While "verification is a spot check and is not intended to be an exhaustive examination of the respondent's business," it does allow Commerce to ensure the validity of the submitted data, which, in turn, leads to more accurate rate calculations. Torrington Co. v. United States, 25 CIT 395, 444, 146 F.Supp.2d 845, 897 (2001). Put another way, because the information contained in Huarong's first response was incomplete and incapable of being verified, Commerce reasonably determined that the response was insufficient to support the calculation of an AFA rate. Second, it is apparent that Commerce indeed considered Ames' written argument in compliance with its regulations, but simply found Ames' calculated rate to be lacking. Finally, the court cannot find that the assigned rate will not be adequate to encourage future cooperation. The incentive to cooperate is found by the addition of "some built-in increase intended as a deterrent to non-compliance," to a reasonable estimate of the actual rate. Ta Chen Stainless Steel Pipe, Inc., 298 F.3d at 1340 (internal quotation marks omitted). Ames' rate, because it is based on unreliable data, fails to provide a reasonable estimate of what the rate should be. In addition, the magnitude of Ames' rate suggests that its purpose is to be punitive rather than merely to encourage cooperation. See id. Thus, the court affirms Commerce's application of the 55.74% PRC-wide rate to Huarong as supported by substantial evidence and otherwise in accordance with law. D. Huarong's and SMC's Failure to Report Data on Cast Tamper Sales: Application of AFA Ames' next claim is that Commerce erred in not applying AFA to Huarong and SMC for their failure to report sales information concerning cast tampers. See Def.-Int.'s Br. at 20. As has been previously discussed, Commerce applied AFA to Huarong for its failure to report on its sales of forged tampers. See supra Part I.B. In support of its decision not to apply AFA to Huarong and SMC for failing to report cast tamper data, Commerce relies on its determination in Final Results of 1285 Redetermination Pursuant to Court Remand Tianjin Machinery Import & Export Corporation v. United States and Ames True Temper ("Cast Pick Remand") (ITA July 20, 2004), that found cast picks to be outside the scope of the HFHTs orders. See Def.'s Resp. at 20. The Cast Pick Remand was issued after the respondents had submitted their responses both to Commerce's initial and supplemental questionnaires. See generally Def.'s Conf. App. (indicating that respondents submitted their responses in 2003). Although Huarong and SMC failed to submit any data concerning their sales of cast tampers, Commerce, because of the new determination that picks manufactured through a casting process were excluded from the scope of the orders, extended that finding to all cast-manufactured subject merchandise. Commerce cites this Court's holding in Am. Silicon Technologies v. United States, 27 CIT ___, ___, 273 F.Supp.2d 1342, 1346 (2003), which allowed Commerce to apply a margin that was the subject of a pending appeal as support for its position. The Department understands this case to stand for the proposition that it "may follow [a] remand decision even if [it is] still pending." Def.'s Resp. at 20; see D & L Supply Co. v. United States, 113 F.3d 1220, 1224 (Fed.Cir.1997) ("A margin that has not yet been overturned is presumed to be accurate and can properly be used in the [best information available] determination."). Thus, having determined that cast picks, and consequently cast tampers, were not included in the scope of the order, Commerce argues that "Huarong's and SMC's sales of non-subject [cast tampers] [are] immaterial to Commerce's determination and, thus, Commerce properly exercised its discretion," in deciding not to apply AFA. Def.'s Resp. at 20. Initially, Ames insists that Commerce's final scope ruling in the Cast Pick Remand is irrelevant to the question of whether Huarong and SMC were required to report their sales information for cast tampers. See Def.-Int.'s Br. at 21. Ames stresses that the subject tampers, while manufactured through a cast process, were not excluded from coverage under the order. Id. That being the case, Ames contends that the application of AFA is required because Huarong and SMC failed to cooperate to the best of their ability by not complying with Commerce's request for data on the tampers. Id. at 22. [The Cast Pick Remand] . . . would only apply to the order on picks and mattocks. It would have no relevance with respect to tampers, which are explicitly included in the order covering bars, wedges, and track tools. Therefore, absent a scope ruling directly on tampers, th[e] [bars/wedges] order would remain unaffected. Id. at 23. Relying on this argument, Ames next challenges what it refers to as Commerce's "arbitrary" decision to apply AFA for failure to report data on forged tampers and to refrain from such application with respect to similarly absent data on cast tampers. Id. Specifically, Ames argues that: Commerce applied AFA to TMC and Huarong due to their failure to provide requested data for sales of forged tampers and scrapers, but declined to do so on Huarong and SMC due to their failure to report cast tampers. There is no basis for such an arbitrary distinction. There is no final scope determination on any of these products . . . If Commerce begins to make distinctions on how to report sales based on the later results of any scope proceeding, it establishes a precedent that will only encourage respondents not to report currently subject sales. Id. The text of 19 U.S.C. § 1677e(b) gives Commerce significant discretion to decide 1286 whether to apply AFA when calculating a respondent's antidumping duty rate. As such, the statute does not require Commerce to use an adverse inference in every instance where a respondent has not supplied information. See AK Steel Corp. v. United States, 28 CIT ___, ___, 346 F.Supp.2d 1348, 1355 (2004). Indeed, this Court has found that: "[T]he purpose of section 1677e(b) is to provide respondents with an incentive to cooperate, not to impose punitive, aberrational, or uncorroborated margins." [Plaintiff] apparently interprets Nippon Steel [Corp. v. United States, 337 F.3d 1373 (Fed.Cir.2003)] to require Commerce to prove that an importer cooperated to the best of its ability every time that the agency decides not to apply adverse facts available. This runs counter to the discretion afforded to Commerce by section 1677e(b) in the application of adverse facts available. Id. (quoting F.LLI De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed.Cir.2000)) (emphasis in original) (footnote omitted). Here, Commerce determined that applying AFA to Huarong and SMC for their failure to report data on cast tampers would neither aid the investigation nor serve to encourage their cooperation. For Commerce, because picks manufactured through a cast process were found to be outside the scope of the HFHTs orders, information relating to cast tampers was "immaterial" to the review.[26] Commerce maintains that it was not an abuse of discretion to extend that finding to other cast tools since the reasoning with respect to each tool would be the same. Given the ruling on cast picks,[27] it was surely not unreasonable for Commerce to conclude that other cast tools should be treated in the same manner. As a result, the court finds that it was within Commerce's discretion to not require the submission of unneeded data. See Timken Co. v. United States, 18 CIT 486, 489, 852 F.Supp. 1122, 1126 (1994) ("It is well-established . . . that Commerce has broad discretion with regard to when the use of [AFA] is appropriate. . . . If, however, Commerce did receive all the data or exercise[d] its broad discretion in this matter and deemed the missing information unnecessary, then the dumping margin need not be recalculated."). Thus, Commerce properly refrained from using facts otherwise available under 19 U.S.C. § 1677e(a), and, in turn, appropriately did not use an inference adverse to SMC's interests under 19 U.S.C. § 1677e(b). E. Valuation of Pallets: Use of Surrogate for Scrap Steel Ames next takes exception to Commerce's valuation of the steel used by each plaintiff to manufacture its shipping pallets. See Def.-Int.'s Br. at 24. Ames contends that the Department employed an incorrect surrogate price to value the steel, 1287 and that Commerce did not account for other necessary factors involved in the pallet manufacturing process. Id. For its part, Commerce has asked for a voluntary remand of this matter, pointing to this court's holding in Shandong Huarong Mach. Co. v. United States, 29 CIT ___, ___, 2005 WL 1105110, 9-11 (May 2, 2005) (not published in the Federal Supplement). See Def.'s Resp. at 32 ("Because [it] is revisiting the valuation of pallets in the context of [another] remand, [Commerce] respectfully requests a voluntary remand concerning this issue for further analysis."). The court agrees that this matter should be remanded to Commerce for further analysis. F. Calculation of Movement Charges: Additional Expenses Pursuant to 19 U.S.C. § 1677a(c)(2)(A), Commerce shall reduce the price used to establish export price[28] ("U.S.price") by "the amount, if any, included in such price, attributable to any additional costs, charges, or expenses, and United States import duties, which are incident to bringing the subject merchandise from the original place of shipment in the exporting country to the place of delivery in the United States. . . ." 19 U.S.C. § 1677a(c)(2); see Dupont Teijin Films USA, LP v. United States, 27 CIT ___, ___, 273 F.Supp.2d 1347, 1349 (noting that "export price" is "sometimes referred to as `U.S. price.'"). Ames argues that, in its analysis, Commerce employed a surrogate value that did not account for all of the additional expenses incurred by the respondents, and thus failed to deduct those expenses from the U.S. price. See Def.-Int.'s Br. at 28. Commerce argues that, "[b]ased upon its experience, . . . the miscellaneous handling expenses and containerization charges alleged by Ames, to the extent they were incurred, are captured by the brokerage and handling and ocean freight surrogates used." Def. Resp. at 29; see also Issues and Decision Mem. at 14. Thus, Commerce contends that, had it deducted the costs that Ames urges, the potential for double-counting would have increased as would the potential for an inaccurate calculation. Ames insists that Commerce's calculation of moving charges based on an Indian surrogate value derived from Certain Stainless Steel Wire Rod from India, 64 Fed.Reg. 856 (ITA Jan. 6, 1999) (final results) ("Steel Wire Rod From India"), failed to consider, among other things, loading and containerization costs incurred by plaintiffs in the course of shipping the subject merchandise to the United States. See Def.-Int.'s Br. at 28. Ames further claims that: The Department's decision is unsupported by substantial evidence, especially when it conceded that the exporter might have incurred certain expenses that were not part of the surrogate value used by the Department. Such an approach is in direct conflict with the Department's obligation to calculate accurate dumping margins. If it is reasonable to assume that the exporter ultimately would pay for these costs, then the Department cannot ignore them and simply rely on the surrogate value without any adjustment. . . . Quite to the contrary, the absence of such expenses from the original source document may be strong evidence that the surrogate 1288 value does not contain the list of expenses cited by Ames. Id. at 29-30 (internal quotation marks omitted). In other words, Ames maintains that Commerce cannot simply base its determination not to deduct the additional expenses on its assumption that "`the brokerage and handling surrogate value captures these costs.'" Id. at 30 (quoting Issues and Decision Mem. at 14). Commerce asserts that its calculation was based on substantial evidence because nothing indicates that the costs provided by Ames were ever actually paid by plaintiffs. See Def.'s Resp. at 30. Put another way, Commerce "declined to value expenses that there was no evidence [plaintiffs] incurred." Id. In addition, Commerce states that: We reviewed the public record of Stainless Steel Wire Rod from India, but found nothing to indicate whether the miscellaneous handling expenses cited by [Ames] . . . were covered by this surrogate value. Although there are exceptions to this practice, it is the Department's experience that the freight forwarder typically pays all of the miscellaneous expenses necessary to export a product, then bills its customer (typically, the exporter) for these costs. Absent evidence to the contrary, it is reasonable to assume that the brokerage and handling surrogate value captures these costs. . . . Therefore, as it is likely that the brokerage and handling surrogate value . . . includes these miscellaneous handling expenses, to avoid possible double counting, we have not included the additional handling expenses identified by [Ames] in our calculation of net U.S. price. . . . Issues and Decision Mem. at 14. That is, without investigating whether the "miscellaneous" costs were in fact counted in the surrogate value, Commerce has nonetheless refrained from deducting those values in its net U.S. price calculation. The court finds that, despite the deference accorded to Commerce's application of the antidumping statute, its conclusory determinations cannot be said to be supported by substantial evidence. Indeed, this Court has previously remanded this issue, stating that "[a]lthough the court agrees that Commerce need not undergo an item-by-item analysis in calculating factors of production, Commerce's calculations must nevertheless be supported by substantial evidence." Shandong, 29 CIT at ___, 2005 WL 1105110, 11 (internal citation omitted); see also Burlington Truck Lines, Inc., 371 U.S. at 168, 83 S.Ct. 239 (finding an agency decision that failed to "articulate any rational connection between the facts found and the choice made," to be unsupported by substantial evidence.). As in Shandong, the court remands the issue of whether miscellaneous handling costs were properly excluded from Commerce's net U.S. price calculation. On remand, if Commerce again finds that miscellaneous expenses such as containerization and loading costs were included in the brokerage and handling surrogate, it must provide a thorough explanation for doing so. G. Application of AFA to SMC: Ocean Freight Methodology Ames' next contention centers on Commerce's decision not to apply AFA to SMC for using a methodology in calculating ocean freight that Commerce found wanting. See Def.-Int.'s Br. at 30. For Ames, SMC's failure to change its methodology to comply with Commerce's requests provides a sufficient basis to require Commerce to apply AFA to this factor of production. Ames argues that: Commerce's determination is not based on substantial evidence. . . . Ames is . . . 1289 concerned that, after explaining in detail in its brief how SMC failed to respond to Commerce's information requests, including language in the requests themselves where Commerce clearly states that the previous response was inadequate, Commerce arrived at the conclusion that SMC complied with its information requests. This, combined with Commerce's verification findings that SMC significantly underreported its ocean freight without exception, demonstrates an arbitrary bias. Therefore, Commerce's determination is without merit as it is arbitrary and unsupported by substantial evidence on the record. Def.-Int.'s Br. at 30-31. Commerce agrees that "SMC reported its per-unit ocean freight using an incorrect allocation methodology." Issues and Decisions Mem. at 23. Nevertheless, Commerce found that: Given that SMC complied with our requests for documentary evidence regarding its ocean freight expenses, and based on our discussions with company officials during verification, we conclude that SMC's use of an incorrect allocation methodology was not an attempt to distort its actual expenses, but rather stemmed from its belief that the allocation methodology was reasonable. Id. at 23-24. Because Commerce concluded that SMC had acted to the best of its ability in responding to a request for data, the Department declined to apply AFA. Id. at 23 (noting that "SMC's use of an incorrect allocation methodology was not an attempt to distort its actual expenses. . . . "). The court cannot agree with Ames' contention that Commerce's decision to calculate SMC's ocean freight without using an adverse inference demonstrated an arbitrary bias. The record indicates that SMC reported the requested information and that its use of an incorrect allocation method "stemmed from its belief that the allocation methodology was reasonable." Id. at 23-24. Moreover, the Issues and Decisions Memorandum makes it clear that the primary reason for Commerce's refusal to apply AFA to SMC was because "SMC complied with [the Department's] requests for documentary evidence regarding its ocean freight expenses. . . ." Id. at 23. In other words, because SMC supplied the necessary information, there was no need to use facts otherwise available. See 19 U.S.C. § 1677e(a). Absent a valid decision to use facts otherwise available, Commerce may not use an adverse inference. See Gerber, 29 CIT at ___, 387 F.Supp.2d at 1284 ("If Commerce makes the findings, based on substantial record evidence, that are required for invoking (b) of 19 U.S.C. § 1677e, it may use an inference that is adverse to the interests of that party. . . .") (citation and internal quotation marks omitted). Thus, the court finds that Commerce's decision not to apply AFA to SMC was supported by substantial evidence and otherwise in accordance with law. H. Commerce's Valuation of Ocean Freight Expenses Ames takes the position that Commerce's use of market economy prices paid to a market economy supplier to value ocean freight was unreasonable because the Department failed (1) to determine whether the market economy purchases were significant enough to provide a meaningful basis for valuing the input, and (2) to determine whether what SMC and TMC purchased was physically identical to the NME inputs. In other words, Ames argues that SMC's and TMC's market economy purchases did not provide a sufficient basis upon which Commerce could value ocean freight. Commerce states that, in valuing SMC's ocean freight, it took an aggregate of SMC's invoices indicating 1290 purchases from a market economy supplier that were paid for in market economy currency. Def.'s Resp. at 31. Specifically: Because the market-economy purchases were significant, Commerce utilized SMC's invoices to value ocean freight. 19 C.F.R. § 351.408(c)(1). . . . Commerce considered the purchases in aggregate, as opposed to upon a port basis, as urged by Ames. Ames cannot demonstrate that this methodology is unreasonable, instead, it simply proffers another methodology. . . . The methodology employed by Commerce is reasonable because, in determining normal value, ocean freight is one input. Accordingly, it is reasonable to aggregate freight costs rather than to add an unnecessary layer of complexity by using port-by-port calculations, as Ames suggests. Id. Commerce attempts to justify its methodology by referring to 19 C.F.R. § 351.408(c)(1)[29] and noting that, when possible, it is preferable to use market economy purchases from market economy suppliers paid for in market economy currency in valuing a factor of production under 19 U.S.C. § 1677b(c)(4). See Def.'s Resp. at 31. Moreover, in response to Ames' claim that this methodology was inappropriate for the present review, Commerce asserts that, "even if Ames' proposed methodology[30] were reasonable, `[w]hen Commerce is faced with the decision between two reasonable alternatives and one alternative is favored over the other in their eyes, then they have the discretion to choose accordingly.'" Id. (quoting Tehnoimportexport UCF America v. United States, 16 CIT 13, 18, 783 F.Supp. 1401, 1406 (1992)). Thus, it is Commerce's position that its choice of methodology, although different from what Ames would have employed under the same circumstances, was not unreasonable and was in accordance with both its regulations and the statute. Pursuant to 19 U.S.C. § 1677b(c)(1) and the accompanying regulation, Commerce is to value the factors of production "based on the best available information regarding the values of such factors in a market 1291 economy country. . . ." 19 U.S.C. § 1677b (c)(1); see also 19 C.F.R. § 351.408(c)(1). "While Congress has left it within Commerce's discretion to develop methodologies to enforce the antidumping statute, any given methodology must always seek to effectuate the statutory purpose-calculating accurate dumping margins." Shakeproof Assembly Components Div., Ill. Tool Works, Inc. v. United States, 23 CIT 479, 483, 59 F.Supp.2d 1354, 1358 (1999); see also Allied-Signal Aerospace Co. v. United States, 996 F.2d 1185, 1191 (Fed.Cir. 1993) (stating that the purpose behind the antidumping statute "is to facilitate the determination of dumping margins as accurately as possible within the confines of extremely short statutory deadlines."). Here, Commerce chose to value SMC's ocean freight based on that company's aggregate market economy purchases. Although Commerce insists that its decision to aggregate is reasonable, and that the resultant aggregated amount rendered the total significant, it has not given a sufficient explanation of why that is so. Thus, the court remands this issue to afford Commerce an opportunity to provide a more complete explanation of its decision to aggregate. See Burlington Truck Lines, Inc., 371 U.S. at 168, 83 S.Ct. 239 (holding that an agency must "articulate [a] rational connection between the facts found and the choice made."). I. Circumstances-of-Sale Adjustment to TMC's Normal Value to Account for the Commission Paid to its U.S. Sales Office Ames asserts that, because there is substantial evidence on the record to support a circumstances-of-sale adjustment to account for the commission paid by TMC to its U.S. affiliate, the calculation of normal value for TMC's U.S. sales of subject merchandise should not have been made using a surrogate value for selling, general and administrative expenses ("SG & A") that did not take the commission into account. See Def.-Int.'s Br. at 33. In other words, Ames argues that the record supports an upward adjustment[31] of TMC's normal value to reflect the commission paid to its U.S. office, which, based on TMC's submissions, was included in the reported gross unit price of the subject merchandise and was paid for in a market economy currency through a market economy bank. See id.; see also Issues and Decisions Mem. at 32. Thus, Ames is seeking a circumstances-of-sale adjustment. A circumstances-of-sale adjustment is made in order to "account for certain differences . . . in the United States and foreign markets." 19 C.F.R. § 351.410(a). Normally, the Secretary "will make circumstances of sale adjustments . . . only for direct selling expenses and assumed expenses."[32]Id. According to Ames, the level of data required 1292 for making a circumstances-of-sale adjustment was present on the record, which includes surrogate "sales values, the material values and the overhead values such that Commerce can compare . . . these to the commission rate . . . and determine whether to make an adjustment." Def.-Int.'s Br. at 35. That is, Ames argues that Commerce erred by refusing to make the circumstances-of-sale adjustment even though it had sufficient information to do so. Commerce first raises a procedural argument against Ames' claim that a circumstances-of-sale adjustment should be made, arguing that Ames has failed to exhaust its administrative remedies regarding this issue. See Def.'s Resp. at 26. Indeed, Commerce asserts that Ames is raising this claim for the first time before this court, and, in so doing, has denied the Department the chance to consider the argument. See id. In response, Ames counters that it did, in fact, raise the issue of whether the surrogate value used accounted for the commission paid by TMC to its U.S. affiliate at the agency level. Specifically, Ames contends that: [It] should not be penalized for having taken slightly different positions before the agency and before this Court. First, Ames did raise the current issue at appeal with this Court in front of Commerce during the administrative review. The core issue is exactly identical whether Commerce should increase TMC's normal value to account for the commission paid to its U.S. sales office. Ames has taken only a slightly different position with respect to the methodology used in calculating the amount of the increase. Second, Ames had only stated in the administrative review that "there is no indication that the preliminary surrogate for any factor already includes a commission." It never stated that "there was no evidence that the surrogate company's financial statements reflected the payment of selling commissions," as alleged by [Commerce]. Def.-Int.'s Rep. Br. to Def.'s Resp. to Huarong's and Ames' Mots. J. Ag. R. ("Def.-Int.'s Reply") at 12. In the alternative, Commerce argues that its determination was simply in keeping with its past practice of "[i]n [export price] situations, . . . not mak[ing] circumstances-of-sale adjustments in NME cases as the offsetting adjustments to [normal value] are not normally possible." Issues and Decisions Mem. at 32. Commerce also makes the related assertion that, in its view, the record did not contain substantial evidence to support such an adjustment. See Def.'s Resp. at 28. The court recognizes that 28 U.S.C. § 2637(d) instructs this court to, "where appropriate, require the exhaustion of administrative remedies." See United States v. Maxi Switch, 22 CIT 778, 785, 18 F.Supp.2d 1040, 1046 (1998). "The exhaustion doctrine requires a party to present its claims to the relevant administrative agency for the agency's consideration before raising these claims to the Court." Ingman v. U.S. Sec'y of Agric., 29 CIT ___, ___, 2005 WL 2138576, 3 (Sept. 2, 2005) (not published in the Federal Supplement). It also true that Commerce is accorded significant deference when determining whether to make a circumstances-of-sale adjustment. See NTN Corp. v. United States, 28 CIT ___, ___, 306 F.Supp.2d 1319, 1340 (2004). Moreover, because of the "imprecise information for distinguishing between direct and indirect selling expenses in the surrogate SG & A source . . . and the absence of non-NME information about what direct selling expenses are included in [export price] . . .," 1293 Commerce maintains an established practice of not making circumstances-of-sale adjustments in NME cases. Def.'s Resp. at 28; see, e.g., HFHTs, Finished or Unfinished, With or Without Handles, From the PRC, 68 Fed.Reg. 53,347 (ITA Sept. 10, 2003); Final Determination of Sales at Less Than Fair Value: Foundry Coke Products From the PRC, 66 Fed.Reg. 39,-487 (ITA July 31, 2001); Issues and Decisions Mem. at 32. Here, it is evident that Ames' statement at the agency level that "there is no indication that the preliminary surrogate for any factor already includes a commission," can be read as sufficiently raising the same argument presented in the instant action, i.e., that a circumstances-of-sale adjustment should be made. Def.-Int.'s Reply at 12. Thus, the court cannot agree with Commerce's contention that Ames has failed to exhaust its administrative remedies. As to the substance of Ames' claim, it is apparent that Commerce's past practice to refrain from making circumstances-of-sale adjustments in NME situations is based on its conclusion that, in most such cases, there is not enough information on the record to make a determination based on substantial evidence. While this may be true in most cases, the court observes that Commerce does not cite any evidentiary basis for its determination in this case, other than its past practice. For that reason, the court remands this issue to Commerce to allow the agency to further explain its determination that the record here was devoid of substantial evidence to permit a circumstances-of-sale adjustment. J. Assessment Instructions to Bureau of Customs and Border Protection Finally, Ames insists that Commerce erred by not specifically instructing Customs to liquidate forged tampers at the PRC-wide rate applicable to bars/wedges. i.e., 139.31%. See Def.-Int.'s Br. at 36. Ames provides two reasons as to why tampers should be singled-out in the instructions. First, it argues that Commerce did not adhere to its statement in the Final Results that it would instruct Customs to liquidate the merchandise in accordance with its Final Results. Id.; see Final Results 69 Fed.Reg. at 55,584 ("The Department will issue appraisement instructions directly to [Customs] upon the completion of the final results of these [] reviews."). For Ames, the instructions were deficient because, despite language in the Final Results indicating that "as tampers are subject to the bars/wedges order, [Commerce] will instruct [Customs] to liquidate entries of tampers . . . at the AFA rate of 139.31 percent," the Department "failed to include any language [in the instructions] directing [Customs] to liquidate tampers." Def.Int.'s Br. at 36 (internal citation and quotation marks omitted). Second, Ames contends that detailed instructions are necessary to prevent Customs from liquidating the tampers at the lower 27.71% rate applicable to hammers/sledges. See id. at 37 ("[Customs] has ruled that tampers should be classified as hammers under the HTS . . . Thus, absent specific instructions .. the Department's intent to liquidate tampers at the rate for bars will go unfulfilled. . . . "). Commerce's first argument is phrased as one contesting the court's subject matter jurisdiction over Ames' claim. See Def.'s Resp. at 32-33. According to Commerce, "the Court's residual jurisdiction is limited and, with regard to liquidation instructions, may be asserted only if the instructions differ from the final results. . . ." Id. at 32. In other words, because its instructions comply with the Final Results, Commerce argues that there is simply nothing to litigate. Although Commerce couches its first argument in terms of subject matter jurisdiction, 1294 its assertion is more accurately viewed as disputing the substance of Ames' allegation, i.e., that the instructions are not sufficient to carry out Commerce's intent. Commerce suggests that, if Ames is concerned that Customs will liquidate tampers under the incorrect rate, Ames should register its complaint with that agency. See Def.'s Resp. at 33. Moreover, Commerce states that "there is no evidence that Customs is not effectively implementing the final results of review of the order upon HFHTs." Id. That is, Customs has done nothing to require a special instruction that specifically identifies how to liquidate tampers. Commerce emphasizes that, "to specifically identify tampers, and not the various other heavy forged hand tools subject to the antidumping duty order, would, at best, be unnecessary, and, at worst, create confusion." Id. It is well settled that this Court has jurisdiction to hear challenges to liquidation instructions. See Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1304, 1305 (Fed.Cir.2004) ("`[A]n action challenging Commerce's liquidation instructions is not a challenge to the final results, but a challenge to the `administration and enforcement' of those final results. . . . Thus, . . . [s]ection 1581(i)(4) grants jurisdiction to such an action.'") (quoting Consol. Bearings, Co. v. United States, 348 F.3d 997, 1002 (Fed.Cir.2003)).[33] Thus, this court has jurisdiction to hear Ames' claim. Because Ames' claim is based in the APA, the applicable standard of review is that provided in 5 U.S.C. § 706. That is, the court will "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. . . ." 5 U.S.C. § 706(2). Applying this standard, the court finds that Commerce's issuance of liquidation instructions that did not specifically list tampers under the bars/wedges order was not arbitrary or capricious.[34] Here, Commerce provided Customs with instructions to liquidate plaintiffs' entries pursuant to the rates contained in the Final Results, but did not specify which tools were included under each category. See Def. Conf.App., Ex. 14. In other words, the instructions uniformly applied to each respondent in that, for each company, Commerce generally directed Customs how to liquidate entries of bars/wedges, axes/adzes, hammers/sledges, and picks/mattocks. Id. These instructions, then, reflect the determination found in the Final Results. That Customs might, at some point in the future, not follow these instructions, does not present the court with an issue that is ripe for judicial review.[35]See Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803, *1295 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (stating that the ripeness doctrine is "designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.") (internal citation and quotation marks omitted). In the event that Customs does not follow the instructions, Ames has a legal remedy. See J.S. Stone, Inc. v. United States, 27 CIT ___, ___, 297 F.Supp.2d 1333, 1338 n. 6 (2003), aff'd, 111 Fed Appx. 611 (Fed.Cir.2004) ("[M]isapplication of an antidumping order or the erroneous imposition of antidumping duties by Customs may be protested and suit brought before the court pursuant to § 1581(a)."); see also Xerox Corp. v. United States, 289 F.3d 792, 795 (Fed.Cir.2002). Based on the foregoing, the court holds that Commerce's instructions complied with the Final Results, and, thus, were not arbitrary, capricious, or an abuse of discretion, and were in accordance with law. Therefore, the court sustains Commerce's liquidation instructions. CONCLUSION In accordance with the foregoing, the court sustains in part, and remands in part Commerce's Final Results. Commerce's remand results are due on September 7, 2006, comments are due on October 9, 2006, and replies to such comments are due on October 20, 2006. NOTES [1] This action includes court numbers 04-00460, 04-00526, 04-00644, and 04-00652. See Order of 2/25/2005. [2] Pursuant to 19 U.S.C. § 1677e(a), if: (1) necessary information is not available on the record, or (2) an interested party or any other person (A) withholds information that has been requested by the administering authority or the Commission under this subtitle, (B) fails to provide such information by the deadlines for submission of the information or in the form and manner requested . . . , (C) significantly impedes a proceeding under this subtitle, or (D) provides such information but the information cannot be verified as provided in section 1677m(i) of this title, the administering authority and the Commission shall, subject to section 1677m(d) of this title, use the facts otherwise available in reaching the applicable determination under this subtitle. 19 U.S.C. § 1677e(a) (2000). If the agency finds the above criteria to be met, and makes the separate subjective determination that the respondent has "failed to cooperate by not acting to the best of its ability to comply with a request for information," then, under 19 U.S.C. § 1677e(b), the agency "may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available." 19 U.S.C. § 1677e(b). Here, Commerce applied what it refers to as "total adverse facts available." While this phrase is not referenced in either the statute or the agency's regulations, it can be understood within the context of this case as referring to Commerce's application of adverse facts available not only to the facts pertaining to specific sales for which information was not provided, but to the facts respecting all of respondents' sales encompassed by the relevant antidumping duty order. See Gerber Food (Yunnan) Co., Ltd. v. United States, 29 CIT ___, ___, 387 F.Supp.2d 1270, 1285 n. 3 (2005). [3] For purposes of confidentiality, when reference is made to its specific relationship with Huarong, [[]] is referred to as "Company A." [[]] is referred to as "Company B." [[]] is not a party to the instant action as the Final Results did not apply a rate to its sales of subject merchandise. [4] In particular, Commerce reviewed the relationships between Huarong and [[]], and LMC and [[]]. See Pls.' Mem. of Pts. and Auth. in Supp. of Mot. J. Agency R. ("Pls.' Mem.") at 16-23. [5] Specifically, the companies contend that "Commerce's focus on what [Company A and LMC] [did] not do as . . . agent[s] prevents it from seeing the contributions that [Company A and LMC] provide[d] . . . Pls.' Mem. at 18, [6] Similar information was provided by LMC and [[]] in their responses to the supplemental questionnaires. See LMC Resp. to Supple mental Questionnaire Sec. A at 5-8 (Sept. 29, 2003); see also [[]] Resp. to Supplemental Questionnaire Sec. A at 1-5 (Oct. 31, 2003). [7] It is pertinent to note that, although § 1677e(a) and § 1677e(b) each require independent findings, "both standards are met where a respondent purposefully withholds, and provides misleading information." Shanghai Taoen Int'l Trading Co., Ltd. v. United States, 29 CIT ___, ___, 360 F.Supp.2d 1339, 1345 (2005). [8] Commerce ultimately did not apply AFA to SMC based on its determination that the tampers sold by SMC were cast, and thus information on those tools was not required. See Issues and Decisions Mem. at 37, 38. [9] The current version of section 1677e is a result of the Uruguay Round Agreements Act of 1994, Pub.L. No. 103-465, 108 Stat. 4809 (1994). In the Statement of Administrative Action, Congress explains that the Uruguay Round amended the prior law, which "mandate[d] use of the best information available (commonly referred to as BIA) if a person refuse[d] or [was] unable to produce information in a timely manner or in the form required." H.R. Doc. No. 103-316 (1994) at 868. The new section 1677e "requires Commerce and the Commission to make determinations on the basis of the facts available. . . ." Id. at 869 (emphasis added). Congress also states that "[w]here a party has not cooperated, Commerce . . . may employ adverse inferences about the missing information to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully." Id. at 870 (emphasis added). Thus, the legislative history of section 1677e(b), its plain language, and the holdings of this Court support a reading of the statute as permitting Commerce to use an adverse inference only in "selecting from among the facts otherwise available. . . ." See Gerber, 29 CIT at ___, 387 F.Supp.2d at 1288 (quoting 19 U.S.C. § 1677e (b)). [10] As Commerce noted, SMC's response to the Section C questionnaire indicated that a finished coating was applied to SMC's hammers/sledges, bars/wedges, and axes/adzes. Issues and Decision Mem. at 16. The Section D questionnaire, however, indicated only that SMC applied a finished coating to its hammers/sledges. Id. [11] According to Commerce: [W]e divided the weight of the finish coating reported by TMC's supplier for bars/wedges by the steel input weight for TMC's bars/wedges. We applied the highest of these ratios to the steel input weight for bars/wedges reported by SMC's supplier of bars/wedges. As partial AFA, we then included this weight as the consumption rate for finish coating [in] our calculation of [normal value] for SMC's bars/wedges. Issues and Decisions Mem. at 16. [12] "Control numbers, or CONNUMs are used by Commerce to designate merchandise that is deemed identical based on the Department's model matching criteria. . . . CONNUMs are used as the basis for product identification in most cases." Koenig & Bauer-Albert AG v. United States, 24 CIT 157, 161 n. 6, 90 F.Supp.2d 1284, 1288 n. 6 (2000). [13] This requirement fits directly within the regulatory burden placed on the requesting party to submit with its request: (i) The person's certification that the person sold the subject merchandise at not less than normal value during the period of review . . . and that in the future the person will not sell the merchandise at less than fair value; (ii) The person's certification that, during each of the [three] consecutive years the person sold the subject merchandise to the United States in commercial quantities; and (iii) If applicable, the agreement regarding reinstatement in the order. . . . 19 C.F.R. § 351.222(e)(1). [14] For the period covering 2000-2001, SMC exported [[]] pieces. In 2001-2002, the exports from the Jinma factory totaled [[]]. In the 2002-2003 period, SMC exported [[]] hammers/sledges produced at the Jinma location. Pls.' Mem. at 28-29. [15] In support of its assertion that the benchmark methodology is a "current practice," Commerce cites Determination Not To Revoke the Antidumping Duty Order: Brass Sheet and Strip From the Netherlands, 65 Fed.Reg. 742, 750 (Jan. 6, 2000), and Pure Magnesium From Canada: Final Results of Antidumping Duty Administrative Review and Determination Not To Revoke Order in Part, 64 Fed.Reg. 12,977, 12,979 (Mar. 16, 1999). See Def.'s Resp. at 22. [16] The Preamble of 19 C.F.R. § 351.222 explains why Commerce believes an exporter must demonstrate that it had shipped the subject merchandise in "commercial quantities" for a three-year period. For Commerce: The underlying assumption behind a revocation based on the absence of dumping or countervailable subsidization is that a respondent, by engaging in fair trade for a specified period of time, has demonstrated that it will not resume its unfair trade practice following the revocation of an order. Rules and Regulations, Antidumping Duties; Countervailing Duties 62 Fed.Reg. at 27,326. [17] Normal value of the subject merchandise is defined as the price at which the foreign like product is first sold (or, in the absence of a sale, offered for a sale) for consumption in the exporting country, in the usual commercial quantities and in the ordinary course of trade and, to the extent practicable, at the same level of trade as the export price or constructed export price. . . . 19 U.S.C. § 1677b(a)(1)(B)(i). [18] This regulation provides in pertinent part that, along with a written request to revoke, a person must submit: "(i) The person's certification that the person sold the subject merchandise at not less than normal value during the period of review . . . and that in the future the person will not sell the merchandise at less than normal value. . . ." 19 C.F.R. § 351.222(e)(1)(i). [19] A "nonmarket economy country" is "any foreign country that the administering authority determines does not operate on market principles of cost or pricing structures, so that sales of merchandise in such country do not reflect the fair value of the merchandise." 19 U.S.C. § 1677(18)(A). "Any determination that a foreign country is a nonmarket economy country shall remain in effect until revoked by the administering authority." 19 U.S.C. § 1677(18)(C). [20] In response to question twenty of Section D of the questionnaire, which sought a list of all types of steel used to produce the subject merchandise, TMC submitted invoices from suppliers indicating that either scrap rail or steel billet was purchased from [[]]. [[]], [[]] [[]], and [[]]. See Def. Conf. R. Ex. 14. The invoices provide both the type and amount of steel purchased as well as the tool for which the steel was intended to be used. Id. [21] For purposes of confidentiality, [[]] is referred to as "Company C." See Def.-Int.'s Br. at 11. [22] Section 1677(9) provides, in pertinent part that "[t]he term `interested party' means . . . (A) a foreign manufacturer, producer, or exporter, or the United States importer; of subject merchandise or a trade or business association a majority of the members of which are producers, exporters, or importers of such merchandise. . . ." 19 U.S.C. § 1677(9)(A). [23] It is apparent that these two prior determinations are not enough to constitute an agency practice that is binding on Commerce. See Ranchers-Cattlemen Action Legal Foundation v. United States, 23 CIT 861, 884-85, 74 F.Supp.2d 1353, 1374 (1999) ("An action . . . becomes an `agency practice' when a uniform and established procedure exists that would lead a party, in the absence of notification of change, reasonably to expect adherence to the established practice or procedure."). [24] Specifically, Ames proposed a rate to Commerce that it claims accounted for: (1) the omission of an amount for foreign inland freight for the steel input from the calculation of [normal value]; (2) the omission of an amount for foreign brokerage and handling from the calculation of net export price; and (3) the inclusion of Huarong's reported scrap offset in the calculation of [normal value]. Using these assumptions and the actual data provided by Huarong, Ames calculated a dumping margin of [[]]. Del.-Int.'s Br. at 16-17. [25] Indeed, the rate was [[]] the PRC-wide rate of 55.74%. Id. at 20. [26] On May 23, 2005, Commerce issued a final ruling finding cast tampers to be outside the scope of the order covering axes/adzes. See Notice of Scope Rulings, 70 Fed.Reg. 55,110, 55,111 (ITA Sept. 20, 2005) (A-570-803: HFHTs, Finished or Unfinished, With or Without Handles, From PRC). As this determination was made after the commencement of the instant action, it is not part of the record, and, thus, cannot provide the basis for Commerce's decision. See 19 U.S.C. § 1516a (b)(1)(B)(i). [27] The orders covering HFHTs are applicable to merchandise "manufactured through a hot forge operation. . . ." Cast Pick Remand at 3. Thus, Commerce cited the fact that "it is undisputed that casting and forging are two separate and distinct production processes . . . [,]" as the basis for its ruling that cast picks were not included within the scope of the orders. Id. at 5. [28] "Export price" is "the price at which the subject merchandise is first sold . . . before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States. . . ." 19 U.S.C. § 1677a (a). [29] This regulation provides that: The Secretary normally will use publicly available information to value factors. However, where a factor is purchased from a market economy supplier and paid for in a market economy currency, the Secretary normally will use the price paid to the market economy supplier. In those instances where a portion of the factor is purchased from a market economy supplier and the remainder from a nonmarket economy supplier, the Secretary normally will value the factor using the price paid to the market economy supplier. 19 C.F.R. § 351.408(c)(1). [30] Ames' proposed methodology suggests that: First, Commerce must conduct an analysis by order. . . . [T]here are in actuality four different orders corresponding to the four classes or kinds of merchandise [and][l]ikewise, there are four sets of margin calculations per company. . . . Because there are four orders, and four margin calculations, Commerce must necessarily conduct four Shakeproof [Assembly Components Div., Ill. Tool Works, Inc. v. United States, 23 CIT 479, 59 F.Supp.2d 1354] analyses if doing so would improve the accuracy of the margin calculations. Second, Commerce failed to analyze whether the market economy inputs were "physically identical" to the non-market economy inputs. . . . A shipment from Shanghai to Los Angeles is not "physically identical" to a shipment from Shanghai to New York. . . . Commerce inappropriately addresses the issue of port-to-port analysis under the "significance" portion of the Shakeproof analysis. Under Commerce's analysis, the transportation represents a single input. Commerce's contention is facially incorrect. Def.-Int.'s Br. at 31-32. [31] Section 1677b(a)(6)(C) provides that normal value is to be increased or decreased by the amount of any difference (or lack thereof) between the export price . . . and the price described in paragraph (1)(B) [normal value] . . . that is established to the satisfaction of the administering authority to be wholly or partly due to (i) the fact that the quantities in which the subject merchandise is sold or agreed to be sold to the United States are greater than or less than the quantities in which the foreign like product is sold, agreed to be sold, or offered for sale, (ii) the fact that merchandise described in subparagraph (B) or (C) of section 1677(16) [defining foreign like product] if this title is used in determining normal value, or (iii) other difference in the circumstances of sale. 19 U.S.C. § 1677b(6)(C). [32] "Direct selling expenses" are expenses "such as commissions, credit expenses, guarantees, and warranties, that result from, and hear a direct relationship to, the particular sale in question." 19 C.F.R. § 351.410(c). Assumed expenses" are "selling expenses that are assumed by the seller on behalf of the buyer, such as advertising expenses." 19 C.F.R. § 351.410(d). [33] Under 28 U.S.C. § 1581(i)(4), the court has jurisdiction to hear "civil actions against the United States, its agencies, or its officers, that arises out of any law of the United States providing for . . . [the] administration and enforcement with respect to the matters referred to in [28 U.S.C. § 1581(i)(1)-(3)] or [28 U.S.C. § 1581(a)-(h)]." [34] Commerce's regulations provide, in relevant part, that: Not later than seven days after receipt of notice of an affirmative final injury determination by the Commission . . . the Secretary will publish in the Federal Register an "Antidumping Order" . . . that: (1) Instructs the Customs Service to assess antidumping duties . . . on the subject merchandise, in accordance with the Secretary's instructions at the completion of each review. . . . 19 C.F.R. § 351.211; see also Sandvik Steel Co. v. United States, 164 F.3d 596, 598 (Fed. Cir.1998) ("Customs applies and enforces the antidumping orders, upon referral from Commerce."). [35] Ames disputes this by pointing the court to a May 10, 1996 Customs Ruling where Customs classified tampers as hammers under the Harmonized Tariff Schedule of the United States ("HTSUS") 8205.20.6000. See Def. Int.'s Br. at 37 (citing Customs Ruling N.Y. A81379) (May 10, 1996). Indeed, this ruling stated that the tamper head acted like a hammer. This alone, however, is insufficient to require Commerce to delineate every possible HFHTs entry under each category for all respondents.	{ "pile_set_name": "FreeLaw" }
Michigan Supreme Court Lansing, Michigan Chief Justice: Justices: Opinion Robert P. Young, Jr. Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra FILED JULY 30, 2012 STATE OF MICHIGAN SUPREME COURT JAMES DOUGLAS, Plaintiff-Appellee, v No. 143503 ALLSTATE INSURANCE COMPANY, Defendant-Appellant. BEFORE THE ENTIRE BENCH YOUNG, C.J. Under the terms of the no-fault act,1 a person injured in a motor vehicle accident is entitled to recover personal protection insurance (PIP) benefits for “[a]llowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.”2 This case requires this Court to consider whether the services provided by plaintiff’s wife 1 MCL 500.3101 et seq. 2 MCL 500.3107(1)(a). constituted services “for an injured person’s care,” whether the Court of Appeals properly remanded this case to the circuit court for findings of fact regarding the extent to which expenses for services for plaintiff’s care were actually incurred, and whether the circuit court erred by awarding an hourly rate that corporate agencies charge for rendering services, rather than an hourly rate that individual caregivers receive for those services. We hold that “allowable expenses” must be “for an injured person’s care, recovery, or rehabilitation.”3 Accordingly, a fact-finder must examine whether attendant care services are “necessitated by the injury sustained in the motor vehicle accident” before compensating an injured person for them.4 However, the services cannot simply be “‘[o]rdinary household tasks,’” which are not for the injured person’s care.5 Moreover, because an allowable expense consists of a “charge[]”6 that “‘must be incurred,’”7 an injured person who seeks reimbursement for any attendant care services must prove by a preponderance of the evidence not only the amount and nature of the services rendered, but also the caregiver’s expectation of compensation or reimbursement for providing the attendant care. Because the no-fault act does not create different 3 Id. (emphasis added). 4 Griffith v State Farm Mut Auto Ins Co, 472 Mich 521, 535; 697 NW2d 895 (2005). 5 Visconti v DAIIE, 90 Mich App 477, 481; 282 NW2d 360 (1979), quoting Kushay v Sexton Dairy Co, 394 Mich 69, 74; 228 NW2d 205 (1975). 6 MCL 500.3107(1)(a). 7 Griffith, 472 Mich at 532 n 8, quoting Manley v DAIIE, 425 Mich 140, 169; 388 NW2d 216 (1986) (BOYLE, J., concurring in part). 2 standards depending on who provides the services, this requirement applies equally to services that a family member provides and services that an unrelated caregiver provides. If the fact-finder concludes that a plaintiff incurred allowable expenses in receiving care from a family member, the fact-finder must also determine to what extent any claimed expense is a “reasonable charge[].”8 While it is appropriate for the fact- finder to consider hourly rates charged by individual caregivers when selling their services (whether to their employers that commercially provide those services or directly to injured persons), comparison of hourly rates charged by commercial caregiving agencies is far too attenuated from an individual’s charge for the fact-finder simply to adopt that agency charge as an individual’s reasonable charge. In applying these principles of law to the facts of this case, we hold that the Court of Appeals correctly determined that plaintiff may recover “allowable expenses” to the extent that they encompass services that are reasonably necessary for plaintiff’s care when the care is “related to [plaintiff’s] injuries.”9 However, because the circuit court erred by awarding damages for allowable expenses without requiring proof that the underlying charges were actually incurred, we agree with the decision of the Court of Appeals to remand this case to the circuit court for a determination whether charges for allowable expenses were actually incurred. Nevertheless, we also conclude that the Court of Appeals erred to the extent that its decision limited the scope of the determination on remand to the period after November 7, 2006. Instead, the circuit court must reexamine 8 MCL 500.3107(1)(a). 9 Griffith, 472 Mich at 534. 3 on remand the evidentiary proofs supporting the entire award. While we reject defendant’s request for a verdict of no cause of action because there remain unresolved questions of fact, we caution the circuit court that a fact-finder can only award benefits that are proved to have been incurred. Finally, in determining the hourly rate for attendant care services, the circuit court clearly erred by ruling that plaintiff is entitled to an hourly rate of $40 for attendant care services because that rate is entirely inconsistent with the evidence of an individual’s rate of compensation, including the compensation that Katherine Douglas, plaintiff’s wife, actually received as an employee hired to care for plaintiff. We reverse the judgment of the Court of Appeals on this issue. Therefore, we affirm in part, reverse in part, vacate the award of attendant care benefits, and remand this case to the circuit court for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY In 1996, plaintiff, James Douglas, sustained a severe closed-head brain injury when a hit-and-run motorist struck the bicycle he was riding. Plaintiff was hospitalized for approximately one month after the accident and received therapy and rehabilitation after his discharge. Because the driver of the motor vehicle that struck plaintiff could not be identified, plaintiff sought assignment of a first-party insurance provider through the Michigan Assigned Claims Facility.10 The facility assigned defendant, Allstate Insurance 10 MCL 500.3172(1) provides that [a] person entitled to claim because of accidental bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle in this state may obtain personal protection insurance benefits through an assigned claims plan if no personal protection insurance 4 Company, to plaintiff’s claim. In the three years after the accident, defendant paid plaintiff PIP benefits for his hospitalization, medical expenses, wage loss, and attendant care, as well as for replacement services, in accordance with the no-fault act. Defendant claims that plaintiff did not seek additional PIP benefits after 1999 until he filed the instant lawsuit in 2005. In 1999, plaintiff began the first of a series of full-time jobs. However, he was unable to hold a job for very long, and he eventually stopped working. During this time, he twice attempted suicide. After the second suicide attempt, a 2005 letter written by plaintiff’s psychiatrist indicated that plaintiff “requires further treatment” because he “continues to suffer from ill-effects as a result of his closed-head injury . . . .” In particular, the psychiatrist emphasized that plaintiff suffered from short-term memory problems and impulsivity as a result of the accident and explained that plaintiff “should have the opportunity to obtain the care that will most likely restore him to a good level of functioning.” Defendant claims that it did not receive this letter before plaintiff initiated this lawsuit. Plaintiff filed the instant lawsuit on May 31, 2005, in the Washtenaw Circuit Court seeking compensation for unspecified PIP benefits that defendant “has refused or is expected to refuse to pay . . . .”11 Defendant filed three successive dispositive motions, is applicable to the injury, [or] no personal protection insurance applicable to the injury can be identified . . . . 11 Because defendant paid PIP benefits for medical bills during the pendency of the suit, the only potential PIP benefits at issue were the services that plaintiff’s wife provided. 5 only the first of which was granted.12 Relevant here, the second motion for summary disposition claimed that attendant care was not reasonably necessary because none of plaintiff’s medical providers had prescribed attendant care for plaintiff. The circuit court denied the motion without prejudice in advance of further discovery. The third motion for partial summary disposition claimed that plaintiff could not recover for attendant care services provided before November 7, 2006, because plaintiff’s treating psychologist, Dr. Thomas Rosenbaum, neither authorized nor prescribed attendant care services before that date. In opposing the motion, plaintiff offered an affidavit from Dr. Rosenbaum, which stated that plaintiff “is in need of aide care during all waking hours” and that Katherine Douglas “has been providing her husband with aide care, while the two of them are together, since the motor vehicle accident.” After hearing oral argument, the circuit court denied defendant’s third motion, ruling that Dr. Rosenbaum’s affidavit created a question of fact that precluded partial summary disposition. The parties proceeded to a bench trial on the claim for attendant care services that Mrs. Douglas allegedly provided. Defendant’s claims adjuster testified during plaintiff’s case-in-chief as an adverse witness. This witness agreed with plaintiff’s counsel that plaintiff “would have needed [attendant care] back when the lawsuit first began” in 2005 12 The first motion for partial summary disposition claimed that MCL 500.3145(1) barred any portion of plaintiff’s claim that accrued more than one year before plaintiff commenced the suit, that is, before May 31, 2004. The circuit court granted defendant’s motion for partial summary disposition with the consent of the parties. See MCL 500.3145(1), which states, in relevant part, that a claimant “may not recover [PIP] benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced.” 6 and that “it would be appropriate to pay Mrs. Douglas for some of [the] care that she provides . . . at home[.]” However, on direct examination by defendant’s counsel, the claims adjuster testified that there was no evidence that any compensable care had actually been provided to plaintiff. Katherine Douglas testified that when she was at home, her entire time was spent “babysitting” and “watching James,” even while she was performing other household chores. She believed that her presence in the house kept plaintiff from being hospitalized or incarcerated. She also testified about a series of forms, each labeled “AFFIDAVIT OF ATTENDANT CARE SERVICES,” all dated June 25, 2007, covering each month between November 2004 and June 2007. These forms totaled up the number of hours during which she claimed to have provided services and outlined the various tasks that she performed, including organizing her family’s day-to-day life, cooking meals, undertaking daily chores, maintaining the family’s house and yard, ordering and monitoring plaintiff’s medications, communicating with health care providers and Social Security Administration officials, calling plaintiff from work to ensure plaintiff’s safety, monitoring plaintiff’s safety, and cueing or prompting various tasks for plaintiff to undertake. However, she admitted that the forms were all completed in June 2007, that she did not contemporaneously itemize the amount of time she spent on any particular item, and that in completing the forms, she went through household bills to reconstruct what had occurred in her life during the relevant period. Dr. Rosenbaum testified that he began treating plaintiff on November 7, 2006, and recommended that Mrs. Douglas provide attendant care for all of plaintiff’s waking 7 hours,13 although in November 2007 he revised his recommendation to 40 hours of attendant care a week. Dr. Rosenbaum also testified that his company, TheraSupport, L.L.C., served as plaintiff’s attendant care provider and that TheraSupport had employed Mrs. Douglas to provide her husband’s attendant care. Although TheraSupport paid Mrs. Douglas $10 an hour for providing services to plaintiff, it billed plaintiff $40 an hour for those very services. Dr. Rosenbaum averred that defendant eventually paid all of TheraSupport’s bills. Defendant’s medical expert, Dr. Charles Seigerman, testified that he conducted a battery of cognitive tests on plaintiff and concluded that two hours of attendant care services a day are needed to help plaintiff organize the logistics of his treatment and ensure that he takes his medicine. Dr. Seigerman also testified that an appropriate hourly rate for these services was “around $10.00 an hour,” or “[p]erhaps a little higher,” although he acknowledged on cross-examination that he was not an expert on the appropriate rate of compensation for this service. The circuit court awarded PIP benefits to plaintiff, explaining that he “needs aide care for all of his waking hours.” The circuit court calculated that plaintiff was entitled to a total of 67 hours a week of attendant care for the period between May 31, 2004, and November 1, 2007, and 40 hours a week after November 1, 2007.14 The court established 13 Dr. Rosenbaum also noted that another of plaintiff’s medical providers had recommended in 1997 that plaintiff receive 24-hour supervisory care. 14 The 67-hour week corresponded to 7 hours each weekday and 32 hours during the weekend (16 hours each on Saturday and Sunday), while the 40-hour week corresponded to Dr. Rosenbaum’s subsequent recommendation. 8 a $40 hourly rate for those services. The judgment entered on November 18, 2009, and totaled $1,163,395.40, which included attorney fees, no-fault interest, costs, and judgment interest. The Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings. First, the panel rejected defendant’s claim that the circuit court had erred by denying its final two motions for summary disposition. In particular, the panel concluded that Dr. Rosenbaum’s affidavit created a question of fact regarding whether attendant care services were “reasonably necessary” for the period before Dr. Rosenbaum began treating plaintiff on November 7, 2006.15 The panel also rejected defendant’s claim that the circuit court had erred by awarding plaintiff benefits for replacement services because the award “was not intended to compensate Katherine for her mere presence in the home,” but instead was intended to compensate for “plaintiff[’s] required supervision,” and “Katherine was the appropriate person to provide it.”16 The Court of Appeals reversed the circuit court’s award, however, because “the trial evidence in this case did not reflect that Katherine maintained records of her claimed attendant care.”17 Although Mrs. Douglas had submitted several forms, each labeled “AFFIDAVIT OF ATTENDANT CARE SERVICES,” the panel concluded that when the descriptions on the forms had not been “left blank,” they were “vague” and only 15 MCL 500.3107(1)(a). 16 Douglas v Allstate Ins Co, unpublished opinion per curiam of the Court of Appeals, issued June 23, 2011 (Docket No. 295484), p 5. 17 Id. at 6. 9 constituted “an effort to reconstruct her time.”18 Thus, the panel remanded for further proceedings “regarding the amount of incurred expenses for attendant care from November 7, 2006, to November 18, 2009,” and to determine “whether Katherine reasonably expected compensation at the time of performance.”19 Finally, the panel upheld the circuit court’s $40 hourly rate because that rate “is supported by Rosenbaum’s testimony regarding the rate charged by his TheraSupport program for attendant care and also the testimony of defendant’s adjuster regarding rates charged by commercial agencies for home attendant care.”20 This Court granted defendant’s application for leave to appeal and ordered the parties to brief the following issues: (1) whether the Court of Appeals erred in remanding this case to the trial court for further proceedings regarding the amount of incurred expenses for attendant care from November 7, 2006, to November 18, 2009, after finding that the trial court clearly erred in awarding attendant care benefits to the plaintiff without requiring sufficient documentation to support the daily and weekly hours underlying the award; (2) whether the plaintiff presented sufficient proofs at trial to support the trial court’s award of attendant care benefits for the period before November 7, 2006; (3) whether activities performed by Katherine Douglas constituted attendant care under MCL 500.3107(1)(a) or replacement services under MCL 500.3107(1)(c); and (4) whether the trial court clearly erred in awarding attendant care benefits at the rate of $40 per hour.[21] 18 Id. at 6-7. 19 Id. at 7. 20 Id. 21 Douglas v Allstate Ins Co, 490 Mich 927 (2011). 10 II. STANDARD OF REVIEW This case involves the interpretation of the no-fault act. “Issues of statutory interpretation are questions of law that this Court reviews de novo.”22 When interpreting a statute, we must “ascertain the legislative intent that may reasonably be inferred from the words expressed in the statute.”23 This requires courts to consider “the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’”24 If the statutory language is unambiguous, “the Legislature’s intent is clear and judicial construction is neither necessary nor permitted.”25 We review de novo the denial of a motion for summary disposition.26 A motion for summary disposition under MCR 2.116(C)(10) requires the reviewing court to consider “the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.”27 22 Griffith, 472 Mich at 525-526. 23 Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). 24 Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999), quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995). 25 Griffith, 472 Mich at 526, citing Koontz, 466 Mich at 312. 26 Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). 27 Brown v Brown, 478 Mich 545, 551-552; 739 NW2d 313 (2007). 11 In civil actions tried without a jury, MCR 2.517(A)(1) requires the court to “find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment.” We review these findings of fact for clear error,28 which occurs when “‘the reviewing court is left with a definite and firm conviction that a mistake has been made.’”29 III. ANALYSIS A. LEGAL BACKGROUND OF THE NO-FAULT ACT MCL 500.3105(1) establishes that a personal protection insurance provider is liable under the no-fault act “to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.” Accordingly, MCL 500.3105(1) imposes two threshold causation requirements for PIP benefits: First, an insurer is liable only if benefits are “for accidental bodily injury . . . .” “[F]or” implies a causal connection. “[A]ccidental bodily injury” therefore triggers an insurer’s liability and defines the scope of that liability. Accordingly, a no-fault insurer is liable to pay benefits only to the extent that the claimed benefits are causally connected to the accidental bodily injury arising out of an automobile accident. Second, an insurer is liable to pay benefits for accidental bodily injury only if those injuries “aris[e] out of” or are caused by “the ownership, operation, maintenance or use of a motor vehicle . . . .” It is not any bodily injury that triggers an insurer’s liability under the no-fault act. 28 MCR 2.613(C); Adams Outdoor Advertising, Inc v City of Holland, 463 Mich 675, 681; 625 NW2d 377 (2001). 29 Ross v Auto Club Group, 481 Mich 1, 7; 748 NW2d 552 (2008), quoting Kitchen v Kitchen, 465 Mich 654, 661-662; 641 NW2d 245 (2002). 12 Rather, it is only those injuries that are caused by the insured’s use of a motor vehicle.[30] MCL 500.3107(1) further limits what benefits are compensable as PIP benefits, allowing unlimited lifetime benefits for “allowable expenses” but limiting “ordinary and necessary services” to a three-year period after the accident and to a $20 daily limit: Except as provided in subsection (2), personal protection insurance benefits are payable for the following: (a) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation. . . . * * * (c) Expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he or she had not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or herself or of his or her dependent. This Court’s decision in Johnson v Recca clarified that the “ordinary and necessary services” contemplated in subsection (1)(c)—commonly referred to as “replacement services”—constitute a category of expenses distinct from the “allowable expenses” contemplated in subsection (1)(a).31 This case requires this Court to consider whether the specific services at issue here were “allowable expenses”32 or whether they were replacement services.33 The 30 Griffith, 472 Mich at 531 (alterations in original). 31 Johnson v Recca, 492 Mich ___; ___ NW2d ___ (Docket No. 143088, issued July 30, 2012). 32 MCL 500.3107(1)(a). 33 MCL 500.3107(1)(c). 13 distinction between allowable expenses and replacement services is important in this case because the operation of the one-year-back rule, MCL 500.3145(1), prevents plaintiff from recovering benefits for otherwise allowable expenses incurred more than one year before the filing of the lawsuit. Thus, plaintiff cannot recover benefits for otherwise allowable expenses incurred before May 31, 2004, which was nearly eight years after plaintiff’s July 1996 accident. Because recovery for replacement services is limited to those services provided in the first three years after the accident, plaintiff cannot recover any benefits for replacement services. Accordingly, in this case, plaintiff can only recover benefits for services to the extent that the services were allowable expenses within the meaning of MCL 500.3107(1)(a) and incurred after May 31, 2004. It is to the definition of “allowable expenses” that we now turn. B. ALLOWABLE EXPENSES MCL 500.3107(1)(a) defines “allowable expenses” as “all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” We have recognized that the plain language of this provision imposes four requirements that a PIP claimant must prove before recovering benefits for allowable expenses: (1) the expense must be for an injured person’s care, recovery, or rehabilitation, (2) the expense must be reasonably necessary, (3) the expense must be incurred, and (4) the charge must be reasonable.34 We will address these requirements seriatim as we apply them to the facts of this case. 34 See Griffith, 472 Mich at 532 n 8. 14 1. SERVICES “FOR” AN INSURED’S CARE, RECOVERY, OR REHABILITATION MCL 500.3107(1)(a) requires that allowable expenses must be “for an injured person’s care, recovery, or rehabilitation.” As we explained in Griffith v State Farm Mutual Automobile Insurance Co, “expenses for ‘recovery’ or ‘rehabilitation’ are costs expended in order to bring an insured to a condition of health or ability sufficient to resume his preinjury life,” while expenses for “care” “may not restore a person to his preinjury state.”35 While the dictionary definition of “care” “can be broadly construed to encompass anything that is reasonably necessary to the provision of a person’s protection or charge,”36 because MCL 500.3107(1)(a) “specifically limits compensation to charges for products or services that are reasonably necessary for an injured person’s care, recovery, or rehabilitation[,] . . . [t]his context suggests that ‘care’ must be related to the insured’s injuries.”37 In comparing the definition of “care” to the definitions of “recovery” and “rehabilitation,” we concluded that “[c]are” must have a meaning that is broader than “recovery” and “rehabilitation” but is not so broad as to render those terms nugatory. . . . “[R]ecovery” and “rehabilitation” refer to an underlying injury; likewise, the statute as a whole applies only to “an injured person.” It follows that the Legislature intended to limit the scope of the term “care” to expenses for those products, services, or accommodations whose provision is necessitated by the injury sustained in the motor vehicle accident. “Care” is broader than “recovery” and “rehabilitation” because it may encompass expenses for products, services, and accommodations that are necessary 35 Id. at 535. 36 Id. at 533. 37 Id. at 534 (quotation marks omitted). 15 because of the accident but that may not restore a person to his preinjury state.[38] We reaffirm here Griffith’s definition of “care” as it relates to the scope of allowable expenses: although services for an insured’s care need not restore a person to his preinjury state, the services must be related to the insured’s injuries to be considered allowable expenses. In analyzing this requirement as applied to the particular services claimed in this case, we note that prior panels of the Court of Appeals examined the extent to which a family member’s services can be considered allowable expenses under the no-fault act. In Visconti v Detroit Automobile Inter-Insurance Exchange, the panel analogized no-fault benefits to worker’s compensation benefits and ruled that “‘[o]rdinary household tasks’” that a family member performs are not allowable expenses, but “‘[s]erving meals in bed and bathing, dressing, and escorting a disabled person are not ordinary household tasks’”39 and can therefore be considered allowable expenses pursuant to MCL 500.3107. A subsequent Court of Appeals panel applied Visconti and allowed the plaintiff to recover no-fault benefits when a family member was “required to serve his meals in bed, bathe him, escort him to the doctor’s office, exercise him in conformity with his doctor’s instructions, assist in formulating his diet, administer medication, and assist him with speech and associational therapy.”40 The Court also held that, even though the family 38 Id. at 535. 39 Visconti, 90 Mich App at 481, quoting Kushay, 394 Mich at 74. 40 Van Marter v American Fidelity Fire Ins Co, 114 Mich App 171, 180; 318 NW2d 679 (1982). 16 member who provided these services was not a licensed medical care provider, “[t]he statute does not require that these services be supplied by ‘trained medical personnel’.”41 In other words, while the no-fault act specifies and limits what types of expenses are compensable, it places no limitation on who may perform what is otherwise an allowable expense. The statutory language of MCL 500.3107 confirms the distinction between a family member providing attendant care to an injured person—which is “for an injured person’s care”42—and a family member providing replacement services to benefit the entire household—which are “ordinary and necessary services” that replace services that the injured person would have performed “for the benefit of himself or herself or of his or her dependent.”43 Accordingly, we reiterate this Court’s recent holding in Johnson that replacement services as described in MCL 500.3107(1)(c) are distinct from allowable expenses under MCL 500.3107(1)(a).44 Allowable expenses cannot be for “ordinary and necessary services” because ordinary and necessary services are not “for an injured person’s care, recovery, or rehabilitation.” In this case, defendant claims that a judgment of no cause of action should be entered because Mrs. Douglas did not perform any compensable allowable expenses, only replacement services, which are not compensable in this case because of the three- 41 Id. 42 MCL 500.3107(1)(a). 43 MCL 500.3107(1)(c). 44 Johnson, 492 Mich at ___; slip op at 5-6. 17 year time limit of MCL 500.3107(1)(c). We disagree with defendant’s claim and conclude that defendant is not entitled to relief on this issue. Defendant is correct that Mrs. Douglas’s testimony and attendant care forms indicate that she provided many services that are properly considered replacement services, including daily organization of family life; preparation of family meals; yard, house, and car maintenance; and daily chores. These services are prototypical “ordinary and necessary” services that every Michigan household must undertake.45 While replacement services for the household might be necessitated by the injury if the injured person otherwise would have performed them himself, they are not for his care and therefore do not fall within the definition of allowable expenses. Nevertheless, the fact that Mrs. Douglas performed some replacement services does not preclude recovery for the allowable expenses that actually were incurred, including attendant care services. The fact that her attendant care forms list certain replacement services is not dispositive on this issue, especially given that other services listed on those forms can reasonably be considered attendant care services, including traveling to and communicating with plaintiff’s medical providers and managing plaintiff’s medication. 45 Plaintiff also argues that while some of Mrs. Douglas’s tasks might be considered replacement services, there is therapeutic value in ensuring that plaintiff is involved with these activities, although they require Mrs. Douglas’s supervision. However, the testimony adduced at trial undermines this rationale because Mrs. Douglas explained that during the week, when she spent time cooking, washing dishes, cleaning the house, and caring for her children, plaintiff did “[v]ery little” to assist her in these chores, but instead often watched television. 18 The circuit court ruled that Mrs. Douglas “is Plaintiff’s caretaker and basically spends her free time making sure that Plaintiff is cared for, and does not harm himself as he tried to do in a suicide attempt.” This factual finding is not clearly erroneous because it is consistent with Mrs. Douglas’s testimony that she was “watching James” even while she was performing household chores by herself. Furthermore, it suggests that the circuit court adopted plaintiff’s argument that Mrs. Douglas’s supervision constituted attendant care services. The Court of Appeals rejected defendant’s claim that Mrs. Douglas only provided replacement services and compared the claimed supervision with this state’s workers’ compensation caselaw that allows “on-call” supervision,46 even when the care provider is pursuing other tasks while on call.47 We affirm the result of the Court of Appeals on this issue and hold that defendant is not entitled to a verdict of no cause of action on the basis of its claim that Mrs. Douglas only provided replacement services because there was testimony given at trial that at least some of the services she said she had provided were consistent with the requirement of MCL 500.3107(1)(a) that allowable expenses be for an injured person’s care as necessitated by the injury sustained in the motor vehicle accident.48 For instance, even if Mrs. Douglas’s claimed supervision of plaintiff does not 46 Morris v Detroit Bd of Ed, 243 Mich App 189, 197; 622 NW2d 66 (2000) (“[O]n-call care is compensable under the [workers’ compensation] statute.”). 47 Brown v Eller Outdoor Advertising Co, 111 Mich App 538, 543; 314 NW2d 685 (1981) (“The fact that Mrs. Brown might use her ‘on call’ time to perform household tasks does not alter the ‘nature of the service provided’ or the ‘need’ for the service.”). 48 See Griffith, 472 Mich at 535. 19 restore plaintiff to his preinjury state, testimony given at trial indicates that arguably at least some of this claimed supervision was for plaintiff’s care as necessitated by the injury sustained in the motor vehicle accident and not for ordinary and necessary services that every Michigan household must undertake. Accordingly, defendant is not entitled to relief on the claim that none of Mrs. Douglas’s claimed services could be considered attendant care services within the meaning of MCL 500.3107(1)(a). 2. REASONABLY NECESSARY EXPENSES MCL 500.3107(1)(a) also requires allowable expenses to be “reasonably necessary.” In Krohn v Home-Owners Insurance Co, this Court clarified that this requirement “must be assessed by using an objective standard.”49 Defendant questions the reasonable necessity of attendant care services for the period before November 7, 2006, because there was no medical prescription for attendant care services before that date. Before the circuit court’s ruling on defendant’s third motion for summary disposition, plaintiff offered the affidavit of Dr. Rosenbaum, who explained that plaintiff “is in need of [attendant] care during all waking hours” and that Mrs. Douglas had provided that care “since [the time of] the motor vehicle accident.” The circuit court based its denial of defendant’s motion in part on Dr. Rosenbaum’s affidavit. In reviewing that decision, the Court of Appeals determined that “the affiant relied on the statements of the parties to determine what activity plaintiff’s wife engaged in during the subject period and subsequently evaluated those activities and found them to meet the 49 Krohn v Home-Owners Ins Co, 490 Mich 145, 163; 802 NW2d 281 (2011). 20 definition of attendant care.”50 Thus, the panel held that the circuit court did not err by concluding that there were questions of fact sufficient to defeat defendant’s motion for partial summary disposition. We agree with the Court of Appeals that questions of fact precluded summary disposition on this issue. Moreover, we conclude that it was not clear error for the circuit court as fact- finder to conclude that attendant care services were, in fact, reasonably necessary for the period before November 7, 2006. There is a factual basis in the record to support the circuit court’s conclusion: Dr. Rosenbaum testified at trial that, as early as 1997, plaintiff’s doctors had recommended that plaintiff receive 24-hour supervision.51 Furthermore, defendant’s claims adjuster agreed with the statement of plaintiff’s counsel that, if plaintiff needed attendant care services at the time of trial, “he would have needed [those services] back when the lawsuit first began[.]” This evidence was sufficient for the circuit court to conclude that because attendant care services were reasonably necessary after November 7, 2006 (a point that defendant does not dispute), they were 50 Douglas, unpub op at 4. 51 Although the circuit court’s opinion following the trial referred to Dr. Rosenbaum’s affidavit in its conclusion that attendant care services were reasonably necessary, during trial the court had sustained defendant’s objection to the admission of that affidavit. However, its reason for granting defendant’s objection was that the court had “heard [Dr. Rosenbaum’s] live testimony.” Because that live testimony clearly supports the circuit court’s factual finding, and because the circuit court specifically concluded that Dr. Rosenbaum’s “opinion as to the reasonable attendant care needs of [p]laintiff is both appropriate and convincing,” the circuit court’s error in referring to Dr. Rosenbaum’s affidavit, rather than his live testimony, is harmless. See MCR 2.613(A) (“[A]n error in a ruling or order . . . is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.”). 21 also reasonably necessary before that date. As a result, defendant has not established that the circuit court clearly erred by concluding that plaintiff proved this element of the allowable expenses analysis. 3. INCURRED EXPENSES MCL 500.3107(1)(a) also limits allowable expenses to “charges incurred.” That is, even if a claimant can show that services were for his care and were reasonably necessary, an insurer “is not obliged to pay any amount except upon submission of evidence that services were actually rendered and of the actual cost expended.”52 Because an insurer’s liability cannot be detached from the specific payments involved, or expenses incurred, . . . [w]here a plaintiff is unable to show that a particular, reasonable expense has been incurred for a reasonably necessary product and service, there can be no finding of a breach of the insurer’s duty to pay that expense, and thus no finding of liability with regard to that expense.[53] This Court has defined “incur” as it appears in MCL 500.3107(1)(a) as “‘[t]o become liable or subject to, [especially] because of one’s own actions.’”54 Similarly, a “charge” is a “[p]ecuniary burden, cost” or “[a] price required or demanded for service rendered or goods supplied.”55 Thus, the statutory requirement that “charges” be 52 Manley, 425 Mich at 159 (emphasis added); see also Proudfoot v State Farm Mut Ins Co, 469 Mich 476, 484; 673 NW2d 739 (2003) (holding that “[b]ecause the expenses in question were not yet ‘incurred,’ the Court of Appeals erred in ordering defendant to pay the total amount to the trial court” for disbursal to plaintiff as expenses are incurred). 53 Nasser v Auto Club Ins Ass’n, 435 Mich 33, 50; 457 NW2d 637 (1990). 54 Proudfoot, 469 Mich at 484, quoting Webster’s II New College Dictionary (2001) (alterations in original). 55 1 Shorter Oxford English Dictionary (6th ed), p 385. 22 “incurred” requires some degree of liability that exists as a result of the insured’s actually having received the underlying goods or services. Put differently, because a charge is something “required or demanded,” the caregiver must have an expectation that she be compensated because there is no “charge[] incurred” when a good or service is provided with no expectation of compensation from the insurer.56 Accordingly, this Court noted in Burris v Allstate Insurance Co that caregivers must have “expected compensation for their services.”57 Without the expectation of compensation, “the evidence fail[s] to establish that the plaintiff ‘incurred’ attendant-care expenses.”58 56 Of course, a caregiver who provides services to a family member need not present a formal bill to the family member or enter into a formal contract with that family member in order to satisfy the requirement that the caregiver have an expectation of payment from the insurer (although those arrangements will, of course, satisfy the evidentiary requirements). However, even in the absence of a formal bill or contract, there must be some evidence that the family member expected compensation for providing the services and of the actual services rendered. In other words, there must be some basis for a fact- finder to conclude that the caregiver had some expectation of compensation from the insurer, even if the expectation of compensation was not the primary motivation for providing the care. Contrary to the dissent’s suggestion, a family member’s determination to provide care even in the absence of an insurer’s payment is not inconsistent with expecting compensation from the insurer, but the expectation must nevertheless be present for a charge to be incurred within the meaning of MCL 500.3107(1)(a). This expectation of compensation at the time the services were provided simply applies the dictionary definitions of the statutory phrase “charges incurred.” 57 Burris v Allstate Ins Co, 480 Mich 1081 (2008). 58 Id. The dissent reintroduces the Burris dissent’s claim that the interpretation of the word “incur” in Proudfoot “was limited to the facts of that case, in which the plaintiff sought advance payment for future expenses.” Post at 3, citing Burris, 480 Mich at 1088 (WEAVER, J., dissenting). However, the Burris concurrence correctly explained that “[t]his factual distinction . . . is irrelevant to the Proudfoot Court’s discussion of the meaning of the term ‘incur.’” Burris, 480 Mich at 1084 (CORRIGAN, J., concurring). Proudfoot adopted the dictionary definition of the word “incur,” which requires “a legal or equitable obligation to pay.” Id. Because “there is no basis to treat family members 23 The fact that charges have been incurred can be shown “by various means,” including “a contract for products and services” or “a paid bill.”59 The requirement of proof is not extinguished simply because a family member, rather than a commercial health care provider, acts as a claimant’s caregiver. Indeed, MCL 500.3107(1)(a) does not distinguish a “charge[] incurred” when a family member provides care from one incurred when an unrelated medical professional provides care.60 As a result, there is only one evidentiary standard to determine whether expenses were incurred regardless of who provided the underlying services. Any insured who incurs charges for services must present proof of those charges in order to establish, by a preponderance of evidence, that he is entitled to PIP benefits.61 differently than hired attendant-care-service workers . . . , the insured’s family members and friends, just like any other provider, must perform the services with a reasonable expectation of payment.” Id. at 1085. For these reasons, we reject the dissent’s characterization of Proudfoot. 59 Proudfoot, 469 Mich at 484 n 4. 60 Because MCL 500.3107(1)(a) does not distinguish “charges incurred” for a family member’s services from “charges incurred” for a professional healthcare provider’s services, it is the dissent’s position that lacks support in the statutory language. Put simply, “charges” must be “incurred” in order to be compensable under the no-fault act. It is this statutory language that we must consider as the expression of legislative intent because “a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.” Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002). 61 See Advocacy Org for Patients & Providers v Auto Club Ins Ass’n, 257 Mich App 365, 380; 670 NW2d 569 (2003) (noting the preponderance of the evidence standard for proof that an allowable expense is reasonable and necessary), aff’d 472 Mich 91 (2005). 24 This evidentiary requirement is most easily satisfied when an insured or a caregiver submits itemized statements, bills, contracts, or logs listing the nature of services provided with sufficient detail for the insurer to determine whether they are compensable.62 Indeed, the best way of proving that a caregiver actually “expected compensation for [her] services” at the time the services were rendered63 is for the caregiver to document the incurred charges contemporaneously with providing them— whether in a formal bill or in another memorialized statement that logs with specificity the nature and amount of services rendered—and submit that documentation to the insurer within a reasonable amount of time after the services were rendered. While no statutory provision requires that this method be used to establish entitlement to allowable expenses—a caregiver’s testimony can allow a fact-finder to conclude that expenses have been incurred—a claimant’s failure to request reimbursement for allowable expenses in a timely fashion runs the risk that the one-year-back rule will limit the claimant’s entitlement to benefits, as occurred here when plaintiff commenced a lawsuit to recover allowable expenses that were alleged to have been incurred more than one year earlier.64 62 In Proudfoot, we reiterated that payments for future services and products are not due until the expenses are actually incurred. For instance, we explained that while “[a] trial court may enter ‘a declaratory judgment determining that an expense is both necessary and allowable and the amount that will be allowed[,] . . . [s]uch a declaration does not oblige a no-fault insurer to pay for an expense until it is actually incurred.’” Proudfoot, 469 Mich at 484, quoting Manley, 425 Mich at 157. 63 Burris, 480 Mich at 1081. 64 As noted previously, it would seem to be inherent in the notion of expectation of compensation that there is some requirement for the caregiver to give notice to the insurer that payment is being sought for particular compensable services. However, MCL 500.3107(1)(a) does not require a claim for allowable expenses to occur within any 25 Moreover, once a claimant seeks payment from the insurer for providing ongoing services, the insurer can request regular statements logging the nature and amount of those services to ensure that the claimed services are compensable. The problem of a caregiver’s failure to provide contemporaneous documentary evidence of allowable expenses is aptly illustrated in this case, in which Mrs. Douglas submitted documents constructed in one day as proof of services rendered over the course of approximately three years. The lack of contemporaneous documentation implicates her credibility regarding whether the services were actually rendered in the manner documented.65 Moreover, this failure to provide contemporaneous documentation may also be relevant to the fact-finder’s determination whether Mrs. Douglas actually expected payment for providing those services. In this case, the circuit court failed to make a finding regarding whether the charges were actually incurred, including whether Mrs. Douglas expected compensation or reimbursement at the time she provided the services. Nevertheless, the circuit court awarded plaintiff attendant care benefits for 67 hours a week for the period between May 31, 2004, and November 1, 2007, and 40 hours a week for the period between November 1, 2007, and November 18, 2009. The Court of particular time. Nevertheless, the one-year-back rule may preclude recovery for a claimant who sits on his or her entitlement to benefits without doing anything to attempt recovery (including commencing a lawsuit). Thus, MCL 500.3145(1) states that a claimant “may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced.” 65 Contrary to the dissent’s suggestion, this observation does not in any way invade the province of the fact-finder, who remains in the best position to weigh the credibility of all the evidence that a claimant presents to support a claim of entitlement to benefits. 26 Appeals remanded this case to the circuit court and allowed the circuit court to “take additional testimony, if necessary, and amend its findings or render new findings, and amend the judgment accordingly.”66 The panel identified three problems with the circuit court’s award of attendant care benefits: the circuit court “clearly erred in awarding attendant care benefits to plaintiff without requiring sufficient documentation to support the daily or weekly hours underlying the award”;67 it erred by failing to consider “whether [Mrs. Douglas] reasonably expected compensation at the time of performance”;68 and it erred by failing to account for payments made to Dr. Rosenbaum’s agency, TheraSupport, which employed Mrs. Douglas as plaintiff’s attendant care provider.69 We underscore the importance of the proofs necessary to establish entitlement to benefits. The circuit court issued a judgment in favor of plaintiff without finding that the expenses were actually incurred given that its determination of the number of hours to award plaintiff had no discernible basis in the evidence presented at trial and did not examine whether Mrs. Douglas had the expectation of payment for her services. While it awarded plaintiff benefits for 40 hours a week of attendant care services for the period beginning November 1, 2007, in accord with Dr. Rosenbaum’s prescription, there is no 66 Douglas, unpub op at 7. 67 Id. 68 Id. 69 Id. Plaintiff did not cross-appeal the Court of Appeals’ determination that the circuit court clearly erred by awarding PIP benefits for allowable expenses without sufficient proof to support the underlying award. 27 basis for its findings that Mrs. Douglas actually provided 40 hours of care each week during that period. Indeed, because she was unavailable to provide services during her working hours, there is no basis for compensating her for any hours that she spent working outside the home.70 Similarly, the award for the period before November 1, 2007, was made with no discernible basis in the record. Therefore, the Court of Appeals properly recognized that that award could not be sustained and appropriately remanded this case for findings of fact based on the evidence.71 Although the Court of Appeals established the scope of the determination of remand to the period after November 7, 2006, we direct the circuit court to make findings of fact as they pertain to the entire period of the lawsuit. The Court of Appeals did not 70 The court explained, for instance, that “Katherine is the person to [provide care], but she cannot because she is employed full-time outside of the home and because [d]efendant will not pay the appropriate care rate for any hours of her care for [p]laintiff.” 71 Defendant claims that the Court of Appeals’ decision to remand was improper because plaintiff already had an opportunity to present proofs regarding the attendant care services that Mrs. Douglas provided. Instead, defendant claims that since the Court of Appeals’ ruling that the circuit court did not “requir[e] sufficient documentation to support the daily or weekly hours underlying the award” is uncontested, a verdict of no cause of action should be entered. Douglas, unpub op at 7. We disagree. The Court of Appeals acknowledged that “the trial evidence in this case did not reflect that Katherine maintained records of her claimed attendant care” and that, “[a]t most, there was evidence that Katherine completed ‘affidavit of attendant care services’ forms on June 25, 2007, for certain past months in an effort to reconstruct her time.” Id. at 6-7. The holding of the Court of Appeals emphasized the fact that the circuit court’s findings were legally insufficient, and the Court of Appeals’ decision, while highly critical of some of the proofs provided, did not indicate that the circuit court could not sustain any award for attendant care services. Accordingly, we affirm the Court of Appeals’ decision to remand for findings of fact regarding whether, and to what extent, allowable expenses were actually incurred in this case, and we do not disturb the Court of Appeals’ ruling that the circuit court may take additional testimony on remand. See MCR 7.216(A)(5). 28 explain how it decided that only the period after November 7, 2006, should be considered on remand, and more important, there is nothing in the Court of Appeals’ opinion or in the circuit court record that indicates that the circuit court’s award for the period between May 31, 2004, and November 7, 2006, falls outside the ruling of the Court of Appeals that the circuit court “award[ed] attendant care benefits to plaintiff without requiring sufficient documentation to support the daily or weekly hours underlying the award.”72 Accordingly, we vacate the entire award of attendant care benefits and clarify that on remand the circuit court must examine the entire period to determine whether plaintiff submitted sufficient proofs that allowable expenses were incurred but not reimbursed.73 4. REASONABLE CHARGE FOR EXPENSES Once a fact-finder has concluded that a plaintiff incurred allowable expenses in receiving care from a family member, the fact-finder must determine whether the charge is “reasonable.”74 In this case, the circuit court awarded attendant care benefits to plaintiff at a $40 hourly rate. Although the circuit court did not explicitly state the basis 72 Douglas, unpub op at 7. The only discernable significance of that date in the record is that November 7, 2006, represents the date plaintiff began treatment with Dr. Rosenbaum. While we considered the significance of this date in determining whether services were “reasonably necessary” in the absence of a specific prescription for attendant care, this date has no independent significance in determining whether services were actually incurred. 73 We also note the observation of the Court of Appeals that the circuit court failed to consider the extent to which defendant had already paid benefits for the attendant care services that Mrs. Douglas performed while serving as Dr. Rosenbaum’s employee. Any award issued on remand must not include services that have already been reimbursed. 74 MCL 500.3107(1)(a). 29 of its hourly rate, the Court of Appeals identified two pieces of evidence adduced at trial as justification for the circuit court’s ruling: Dr. Rosenbaum’s testimony that his company charges $40 an hour for attendant care and the testimony of defendant’s adjuster regarding the rates that commercial agencies charge for attendant care services. We conclude that this testimony regarding the rates that commercial agencies charge is based on factors too attenuated from those underlying the rate charged for an individual’s provision of attendant care services to be adopted as an individual’s reasonable charge for attendant care services. This is a particularly erroneous circuit court finding given that Mrs. Douglas was actually paid $10 an hour by Dr. Rosenbaum’s company for providing attendant care services to her husband. Why the circuit court believed that the commercial rate Dr. Rosenbaum charged was more relevant than what he paid Mrs. Douglas is unstated and unjustified on this record. Accordingly, the circuit court’s $40 hourly rate is clearly erroneous. Although this Court has not ruled on the issue, the Court of Appeals in Bonkowski v Allstate Insurance Co stated that a commercial agency’s rate for attendant care services is irrelevant to the fact-finder’s determination of what constitutes a reasonable rate for a family member’s provision of those services. Then Judge ZAHRA, writing for the court, noted that “[i]n determining reasonable compensation for an unlicensed person who provides health care services, a fact-finder may consider the compensation paid to licensed health care professionals who provide similar services.”75 The opinion went on 75 Bonkowski v Allstate Ins Co, 281 Mich App 154, 164; 761 NW2d 784 (2008), citing Van Marter, 114 Mich App at 180-181. 30 to state that the fact-finder’s “focus should be on the compensation provided to the person providing the services, not the charge associated by an agency that hires health care professionals to provide such services.”76 The compensation actually paid to caregivers who provide similar services is necessarily relevant to the fact-finder’s determination of a reasonable charge for a family member’s provision of these services because it helps the fact-finder to determine what the caregivers could receive on the open market. While a commercial agency’s fee incorporates this relevant piece of data—the compensation it pays to its caregivers—it also incorporates additional costs into its charge that family members who provide services do not incur, particularly the overhead costs inherent in the agency’s provision of services. Thus, the total agency rate is too attenuated from the particular component of the agency rate that the fact-finder must determine in the instant case—“the compensation provided to the person providing the services . . . .”77 While we do not adopt the reasoning in Bonkowski in its entirety, we agree with Bonkowski that the fact-finder’s focus must be on an individual’s compensation. Accordingly, we hold that a fact-finder may base the hourly rate for a family member’s provision of attendant care services on what health care agencies compensate their employees, but what health care agencies charge their patients is too attenuated from the appropriate hourly rate for a family member’s services to be controlling.78 Rather, the 76 Bonkowski, 281 Mich App at 165. 77 Id. 78 Contrary to the dissent’s suggestion, we believe that in appropriate circumstances the fact-finder should consider benefits that a full-time attendant care services employee 31 fact-finder must determine what is a reasonable charge for an individual’s provision of services, not an agency’s. While an agency rate might bear some relation to an individual’s rate, it cannot be uncritically adopted as an individual’s rate in the absence of specific circumstances that warrant such a rate—for instance, when the individual caregiver has overhead and administrative costs similar to those of a commercial agency.79 This case does not reflect such circumstances. Rather, there is undisputed testimony that Mrs. Douglas actually received $10 an hour in providing attendant care services to plaintiff during the time she served as Dr. Rosenbaum’s employee. Because this figure is the rate she actually received for providing attendant care services, it is highly probative of what constitutes a reasonable charge for her services. Therefore, we agree with defendant that the circuit court clearly erred by ruling that plaintiff is entitled to a $40 hourly rate for Mrs. Douglas’s attendant care services. The only evidentiary basis for that figure is the rate that commercial agencies charge for attendant care services, and that rate is far too attenuated from an individual caregiver’s actual rate of would receive as part of her total compensation package. Indeed, Bonkowski’s use of the term “compensation,” rather than “wage,” further supports this conclusion. Bonkowski, 281 Mich App at 165. 79 While this case is not about the admissibility of the agency rates, which may in fact be helpful to the fact-finder as a point of comparison in determining a reasonable charge for an individual’s provision of attendant care services, in this instance, we conclude that the fact-finder clearly erred by adopting that rate as the appropriate hourly rate for Mrs. Douglas’s provision of attendant care services. 32 compensation to serve as the sole basis for the award of benefits in these circumstances.80 Therefore, if the circuit court concludes on remand that plaintiff has proved his entitlement to benefits for Mrs. Douglas’s services, the circuit court, as fact-finder, must establish a new hourly rate based on an individual caregiver’s hourly rate. IV. CONCLUSION Today, we reaffirm that MCL 500.3107(1)(a) imposes four requirements that an insured must prove before recovering PIP benefits for allowable expenses: (1) the expense must be for an injured person’s care, recovery, or rehabilitation, (2) the expense must be reasonably necessary, (3) the expense must be incurred, and (4) the charge must be reasonable.81 Allowable expenses are distinguished from replacement services in that allowable expenses are for the insured’s care as it “relate[s] to the insured’s injuries.”82 Defendant is not entitled to relief on its claim that Mrs. Douglas provided only replacement services, not allowable expenses, because the circuit court did not clearly err by ruling that Mrs. Douglas is plaintiff’s caretaker. Defendant is also not entitled to relief on its claim that plaintiff’s attendant care was not reasonably necessary in the absence of a specific prescription for attendant care services because the testimony of Dr. 80 The dissent’s claim that “the trial court heard testimony from which it could conclude that Mrs. Douglas would need to quit her job outside the home in order to provide plaintiff with the attendant care his doctor prescribed” is simply irrelevant to determining the reasonable charge for attendant care services that were provided while Mrs. Douglas was employed outside the home. Post at 15-16. 81 See Griffith, 472 Mich at 532 n 8. 82 Id. at 534. 33 Rosenbaum and defendant’s claims adjuster provided a factual basis for the reasonable necessity of those services at all times relevant in this case. We affirm the Court of Appeals’ decision to remand this case for further proceedings, but we hold that the consideration on remand must encompass the entire period for which charges are claimed. We also emphasize the necessity that the circuit court, as the fact-finder, must base its ruling on proofs that show the extent to which Mrs. Douglas actually provided compensable attendant care services. Therefore, on remand, the circuit court must apply the standard of proof outlined in this opinion to determine whether plaintiff has proved that “charges” were “incurred” for his care. In particular, the circuit court must determine the extent to which plaintiff has proved the number of hours that Mrs. Douglas actually provided attendant care services and whether she actually expected compensation for those services. Finally, we reverse the Court of Appeals’ decision regarding the circuit court’s assessment of an hourly rate of $40 and conclude that that hourly rate is clearly erroneous because it is unrelated to an individual caregiver’s hourly rate. While we do not establish an hourly rate in this case, the circuit court must establish a rate that is consistent with an individual caregiver’s rate for services, rather than a commercial agency’s rate. Affirmed in part, reversed in part, award of attendant care benefits vacated and case remanded for further proceedings consistent with this opinion. Robert P. Young, Jr. Stephen J. Markman Mary Beth Kelly Brian K. Zahra 34 STATE OF MICHIGAN SUPREME COURT JAMES DOUGLAS, Plaintiff-Appellee, v No. 143503 ALLSTATE INSURANCE COMPANY, Defendant-Appellant. CAVANAGH, J. (dissenting). I dissent from the majority’s erroneous interpretation of the phrase “charges incurred” in MCL 500.3107(1)(a) and the resulting creation of evidentiary requirements that lack any basis in the statutory language. Likewise, I dissent from the majority’s misguided limitation on the scope of evidence that may be considered when determining whether a charge is “reasonable” under MCL 500.3107(1)(a).1 Although the rules of statutory interpretation are well established, a brief review is warranted, given the majority’s failure to adhere to these principles. This Court’s primary goal is to “discern and give effect to the intent of the Legislature.” Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). “The words of a statute 1 Additionally, I continue to believe that the interpretation of MCL 500.3105 and MCL 500.3107 from the majority opinion in Griffith v State Farm Mut Auto Ins Co, 472 Mich 521; 697 NW2d 895 (2005), which the majority applies in this case, is incorrect for the reasons provided in Justice MARILYN KELLY’s Griffith dissent. See id. at 542-554 (MARILYN KELLY, J., dissenting). provide the most reliable evidence of its intent . . . .” Id. (quotation marks and citation omitted). When the language of a statute is unambiguous, “the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written.” Id. Accordingly, “[n]o further judicial construction is required or permitted.” Id. I. “CHARGES INCURRED” Under MCL 500.3107(1)(a), personal protection insurance (PIP) benefits include “allowable expenses.” The statute goes on to explain that an “allowable expense” consists of, among other things, “charges incurred” for certain qualifying products or services. From the words “charges incurred,” the majority mysteriously divines new evidentiary requirements that an insured must satisfy in order to obtain PIP benefits. Specifically, the majority determines that, in order to show that charges were incurred, an insured must establish (1) that the caregiver expected compensation for the services rendered, see ante at 23, and (2) that the caregiver’s expectation of payment arose “at the time [the caregiver] provided the services,” see ante at 26.2 Neither of the majority’s newly created requirements are supported by the statutory language at issue. A. CAREGIVER’S EXPECTATION OF COMPENSATION I disagree with the majority’s conclusion that MCL 500.3107(1)(a) requires a showing that the caregiver expected compensation. Rather, I continue to believe that the caregiver’s expectation of payment is irrelevant because the obligation to pay “charges 2 Included within the majority’s conclusion that a caregiver must expect payment is an additional preference that documentation of the charges be provided in a “memorialized statement” because the majority considers such documentation to be the “best way of proving” entitlement to PIP benefits. Ante at 25. For the reasons discussed in part I(A), I disagree. 2 incurred” under MCL 500.3107(1)(a) lies with the insurer rather than the insured. Burris v Allstate Ins Co, 480 Mich 1081, 1088-1089 (2008) (WEAVER, J., dissenting). I also disagree with the majority’s reliance on the definition of “incur” that was adopted in Proudfoot v State Farm Mut Ins Co, 469 Mich 476; 673 NW2d 739 (2003), because, as Justice WEAVER explained in her Burris dissent, Proudfoot’s definition of “incur” was limited to the facts of that case, in which the plaintiff sought advance payment for future expenses. Burris, 480 Mich at 1088 (WEAVER, J., dissenting). Accordingly, in Proudfoot, no one had incurred an expense because no service had been provided, and an insurer “is not obligated to pay any amount except upon submission of evidence that services were actually rendered . . . .” Manley v Detroit Auto Inter-Ins Exch, 425 Mich 140, 159; 388 NW2d 216 (1986). In this case, however, plaintiff seeks benefits for past expenses resulting from services that have already been provided. Accordingly, as long as the services were actually rendered and reasonably necessary and the amount of the charges was reasonable, defendant, as the insurer, has incurred the charges because of its statutory obligation to provide PIP benefits under MCL 500.3107(1). Unlike the majority’s interpretation, Justice WEAVER’s approach in Burris is consistent with the Legislature’s intent that the no-fault act be construed liberally in favor of the insured. Turner v Auto Club Ins Ass’n, 448 Mich 22, 28; 528 NW2d 681 (1995). In addition, I disagree with the majority’s effort to further hamstring insureds’ ability to recover PIP benefits to which they are entitled by imposing burdensome and statutorily unsupported preferences for specific documentary evidence. See ante at 25 (stating that the “best way of proving” that a caregiver expected payment is a “formal 3 bill” or “memorialized statement”).3 To begin with, the majority’s determination that certain forms of evidence are always more persuasive than others is faulty because it is premised on the majority’s conclusion that the caregiver must expect compensation. However, even accepting arguendo that compensation must be expected in order for a charge to be incurred for purposes of MCL 500.3107(1)(a), nothing in the statutory language supports the majority’s gradation of the persuasiveness of various forms of evidence or the majority’s resulting preference for a formal bill or memorialized statement. Particularly telling is the majority’s failure to cite any authority in support of this preference for certain types of evidence. Indeed, the majority flatly admits that “no statutory provision requires” what the majority considers to be the “best” evidence. Ante at 25. Accordingly, although I agree that “itemized statements, bills, contracts, or logs listing the nature of services provided,” ante at 25, would be more than enough to establish entitlement to PIP benefits, simple testimony or any other form of admissible evidence should also be sufficient.4 See, generally, MRE 402 (providing that “[a]ll 3 As the majority opinion states, a formal bill or memorialized statement is not the only method sufficient to show that an insured is entitled to PIP benefits. See ante at 25 (acknowledging that “a caregiver’s testimony can allow a fact-finder to conclude that expenses have been incurred”). Accordingly, despite the majority’s unsupported conclusion that documentary evidence is “best,” any form of admissible evidence could be equally sufficient to meet an insured’s burden to prove that services were actually rendered. 4 The majority apparently interprets my dissent as asserting that when a family member provides care, the insured need not provide any evidence that attendant care was actually provided. See ante at 24 n 60. This is not an accurate characterization of my dissent, however, because I agree that an insurer “is not obligated to pay any amount except upon submission of evidence that services were actually rendered . . . .” Manley, 425 Mich at 159. Rather, as I previously stated, I disagree with the majority’s unsupported preference 4 relevant evidence is admissible . . .”) and MRE 401 (defining “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”). Although the majority may be correct that certain types of evidence may be more persuasive under the specific circumstances of a particular case, by discussing the persuasiveness of various forms of evidence in absolutes, the majority invades the province of the fact-finder. See People v Wolfe, 440 Mich 508, 514; 489 NW2d 748 (1992) (“[A]ppellate courts are not juries, and . . . they must not interfere with the jury’s role[.]”). Indeed, this error in the majority’s approach is exposed in its discussion of the specific facts of this case, particularly the majority’s statement that failure to provide certain documents “implicates [the caregiver’s] credibility . . . .” Ante at 26. However, contrary to the majority’s willingness to weigh in on witness credibility, this Court has frequently stated that appellate courts must remember that the jury is the sole judge of the facts. It is the function of the jury alone to listen to testimony, weigh the evidence and decide the questions of fact. . . . Juries, not appellate courts, see and hear witnesses and are in a much better position to decide the weight and credibility to be given to their testimony. [Wolfe, 440 Mich at 514-515 (quotation marks and citation omitted).] In summary, I disagree with the majority’s conclusion that an insured must prove that a family caregiver expected compensation in order to prove that charges were for specific documentary evidence because, in my view, any form of admissible evidence could be equally sufficient to meet an insured’s burden to prove that services were actually rendered. 5 incurred for purposes of MCL 500.3107(1)(a). In my view, the insurer incurs the charge by way of its statutory obligation to provide PIP benefits under MCL 500.3107(1)(a) when the insured proves that the services were reasonably necessary and actually rendered and that the amount of the charge is reasonable. Furthermore, accepting arguendo the majority’s declaration that an insured must prove that his or her caregiver expected compensation, I disagree with the majority’s implication that certain forms of evidence will always be the “best way” to establish entitlement to PIP benefits. Not only does the majority admit that there is no statutory support for its conclusion, see ante at 25, the idea that an appellate court can determine the best evidence in a case has been consistently rejected as an improper invasion of the fact-finder’s role as “the sole judge of the facts.” Wolfe, 440 Mich at 514 (quotation marks and citation omitted; emphasis added). B. TIMING OF EXPECTATION AND REQUEST FOR PAYMENT The majority creates another unsupported and previously nonexistent requirement when it states that a caregiver must expect compensation “at the time the services were rendered.” Ante at 25; see, also, ante at 26 (stating that the “circuit court failed to make a finding regarding . . . whether Mrs. Douglas expected compensation or reimbursement at the time she provided the services”) (emphasis added). Again, the majority fails to identify any support for this new timing requirement in either the caselaw or the statutory language of MCL 500.3107(1)(a). The reason for the majority’s failure to do so is obvious: there simply is no support for the majority’s judicially created requirement. This is particularly notable given that members of the majority have often railed against extratextual requirements. See, e.g., People v Schaefer, 473 Mich 418, 432; 703 NW2d 6 774 (2005).5 Indeed, in People v Wager, 460 Mich 118, 123-124; 594 NW2d 487 (1999), the majority opinion expressly overruled a previous Court of Appeals opinion that had inserted a “reasonable time” requirement into the statute at issue in that case, stating “[N]o sound reason exists to engraft the ‘reasonable time’ element onto the clear language of the statute.” Accordingly, I am at a loss about why the majority believes it is appropriate to engraft a time requirement onto MCL 500.3107(1)(a) despite the lack of any such requirement in the actual language of the statute.6 Although the lack of support in the statutory language is reason enough to reject the majority’s analysis, the practical implications of the majority’s burdensome new requirement is also worth consideration. Specifically, by requiring that a family 5 See, also, Johnson v Recca, 492 Mich ___, ___; ___ NW2d ___; slip op, pp 25-26 (Docket No. 143088, issued July 30, 2012), stating that it must be assumed that the language and organization of the statute better embody the “obvious intent” of the Legislature than does some broad characterization surmised or divined by judges. . . . It is not for this Court to “enhance” or to “improve upon” the work of the lawmakers where we believe this can be done, for it will always be easier for 7 judges on this Court to reach agreement on the merits of a law than 110 state representatives or 38 state senators representing highly diverse and disparate constituencies. Therefore, this Court must . . . rest its analysis on the language and organization of the statute. 6 The majority also expresses its belief that an insured should submit evidence “to the insurer within a reasonable amount of time after the services were rendered,” ante at 25 (emphasis added). See, also, ante at 25 (discussing the “risk” of “fail[ing] to request reimbursement for allowable expenses in a timely fashion . . . .”) (emphasis added). However, the majority admits that “MCL 500.3107(1)(a) does not require a claim for allowable expenses to occur within any particular time.” Ante at 25 n 64. Thus, it is unclear to me why the majority chooses to create potential confusion by injecting the statutorily unsupported phrases “within a reasonable amount of time” and “in a timely fashion” into its application of MCL 500.3107(1)(a). 7 caregiver expect compensation, not only does the majority punish a family member who nobly acts to provide care to a loved one in a time of need, the majority also rewards the insurer, rather than the caregiver, for this act of kindness by allowing the insurer to avoid providing PIP benefits that it would otherwise be required to provide. This result is not only ethically troubling, but it also turns on its head the Legislature’s intent that the no- fault act be construed liberally in favor of the insured. Turner, 448 Mich at 28. Additionally, by requiring that the caregiver expect compensation at the time the services are provided, the majority fails to recognize the reality of situations in which attendant-care services are needed. Specifically, claims for PIP benefits arise out of automobile-related accidents, which were typically sudden, unexpected events. Accordingly, family members may unexpectedly be called upon to immediately provide care to a loved one. Given the nature of most families, I believe that in the vast majority of situations, the family member would be willing to provide the care, at least initially, without any contemporaneous expectation of compensation from anyone. Thus, I believe that it may be fairly common that the caregiver is initially not even aware of the possibility of compensation and the process that must be completed in order to recover that compensation. Indeed, not every citizen is an attorney well versed in the intricacies of the no-fault act. As a result, at the time the services were provided, the caregiver would have no expectation that anyone will provide compensation. Yet under the majority’s analysis, if a family member did not expect compensation at the time the services were provided, despite the sudden and chaotic circumstances of the situation, he or she is not entitled to retroactively expect compensation for services provided in the past after discovering that compensation is a realistic possibility. This approach rewards 8 the insurer by allowing it to avoid providing PIP benefits that it would otherwise be obligated to provide under MCL 500.3107(1)(a) merely because the caregiver does not immediately demand compensation.7 II. DETERMINING WHAT IS A “REASONABLE CHARGE” Under MCL 500.3107(1)(a), PIP benefits are payable for “allowable expenses” as long as the charge is “reasonable.”8 In this case, the trial court, acting as the fact-finder in a bench trial, heard testimony from two sources regarding the rate typically charged by 7 The majority dismisses as unfounded my concerns regarding the practicalities of the majority’s new requirements, stating that “[c]ontrary to the dissent’s suggestion, a family member’s determination to provide care even in the absence of an insurer’s payment is not inconsistent with expecting compensation from the insurer, but the expectation must nevertheless be present for a charge to be incurred within the meaning of MCL 500.3107(1)(a).” Ante at 23 n 56. However, this statement only addresses the source of the compensation, not the timing of when the caregiver developed the expectation of payment, regardless of the source. Under the circumstances that I discuss, the family caregiver does not expect compensation “at the time the services were rendered,” ante at 25, which is an express requirement of the majority’s erroneous interpretation of MCL 500.3107(1)(a). The majority claims that its requirement that compensation be expected at the time the services were provided “simply applies the dictionary definitions of the statutory phrase ‘charges incurred.’” Ante at 23 n 56. However, even accepting the dictionary definitions that the majority selects, there is clearly no time component to those definitions. See ante at 22 (defining “incur” as “[t]o become liable or subject to, [especially] because of one’s own actions,” and “charge” as a “[p]ecuniary burden, cost” or “[a] price required or demanded for service rendered or goods supplied”) (quotation marks and citations omitted). Indeed, applying these definitions, it is clear that a person could “become liable” for “a price demanded for services” after the services are rendered. 8 The majority incorrectly states that “the fact-finder must determine what is a reasonable charge for an individual’s provision of services . . . .” Ante at 31-32. Rather, the plain language of MCL 500.3107(1)(a) simply requires that the charge be “reasonable.” Accordingly, although what an individual on the open market may be able to obtain as compensation is relevant, it is but one factor in a multifactor analysis to determine what is a “reasonable charge” under the circumstances of a particular case. 9 an agency to provide the care that Katherine Douglas provided. Additionally, the trial court heard testimony that while Dr. Thomas Rosenbaum’s company employed Mrs. Douglas, she was paid at a rate of $10 an hour. Furthermore, the trial court heard testimony that Mrs. Douglas was unable to provide the hours of attendant care that plaintiff’s doctor prescribed because she worked outside the home. After considering that testimony, the trial court awarded plaintiff PIP benefits at the rate of $40 an hour. In my view, agency rates are relevant to determining the proper rate of compensation for PIP benefits, and the trial court in this case properly considered the agency rates along with the other evidence submitted by the parties. Accordingly, I disagree with the majority that the trial court clearly erred in this case, and I would affirm the Court of Appeals on this issue. Although the majority concludes that agency rates are both relevant and admissible in determining a “reasonable charge” under MCL 500.3107(1)(a), see ante at 32 n 79 (stating that “this case is not about the admissibility of the agency rates” because agency rates “may in fact be helpful to the fact-finder as a point of comparison in determining a reasonable charge for an individual’s provision of attendant care services”); and ante at 32 (stating that “an agency rate might bear some relation to an individual’s rate”), the majority nevertheless relies exclusively on the Court of Appeals’ opinion in Bonkowski v Allstate Ins Co, 281 Mich App 154, 165; 761 NW2d 784 (2008), which expressly stated that agency rates are “not relevant.” I disagree with the majority’s reliance on Bonkowski for several reasons. To begin with, Bonkowski readily admitted that its entire discussion of the rate of compensation was dictum, stating that issue was not “squarely before” the Court. Id. at 10 164. Moreover, without justification, Bonkowski admittedly ignored caselaw that found agency rates relevant to determining the proper rate of compensation for a family member’s provision of care. Id. (acknowledging that the Court of Appeals had “previously embraced the notion that ‘comparison to rates charged by institutions provides a valid method for determining whether the amount of an expense was reasonable and for placing a value on comparable services performed [by family members]’”), quoting Manley v Detroit Auto Inter-Ins Exch, 127 Mich App 444, 455; 339 NW2d 205 (1983) (alteration in original). Further, Bonkowski cited no authority in support of its preferred approach to determining the proper rate of compensation for attendant care provided by unlicensed family members. Most importantly, however, Bonkowski is poorly reasoned and, as a result, unpersuasive. Particularly unpersuasive is the notion that only the hourly rate paid to an attendant-care-services provider by an agency is relevant. Indeed, even the majority rejects this perspective. See ante at 32 n 79 (acknowledging that agency rates “may in fact be helpful to the fact-finder”).9 Accordingly, the majority is unwise to rely on Bonkowski’s analysis of this issue. Rather, I would adopt the reasoning from Judge 9 The majority, however, also risks creating confusion when it states that the amount Mrs. Douglas was paid while employed by Dr. Rosenbaum “is highly probative of what constitutes a reasonable charge for her services” because “this figure is the rate she actually received for providing attendant care services . . . .” Ante at 32. This statement could be misinterpreted and lead lower courts to conclude that a professional caregiver’s hourly rate is the only relevant evidence. Thus, to clarify, I agree with the majority that agency rates may be considered by the fact-finder in determining what constitutes a “reasonable charge” under MCL 500.3107(1)(a). 11 GLEICHER’s majority opinion in Hardrick v Auto Club Ins Ass’n, 294 Mich App 651; ___ NW2d ___ (2011). Hardrick, 294 Mich App at 678-679, first noted that the question whether expenses are reasonable is generally a question for the fact-finder, as this Court stated in Nasser, 435 Mich at 55. Second, Hardrick agreed with Bonkowski that “the rates charged by an agency to provide attendant-care services are not dispositive of the reasonable rate chargeable by a relative caregiver,” but the opinion also concluded that “this does not detract from the relevance of such evidence.” Hardrick, 294 Mich App at 666. Accordingly, I find persuasive Hardrick’s decision to review the issue through the lens of the admissibility of evidence. Hardrick explained that evidence is “relevant” and thus “material” when it helps prove a proposition that is a “material fact at issue.” Id. at 667- 668. Because the “material fact at issue” is the reasonable rate for attendant-care services for an insured, and insurers routinely pay agency rates for attendant-care services, Hardrick concluded that agency rates are relevant to determining the proper compensation for relative caregivers. Hardrick emphasized that the issue “is not whether an agency rate is reasonable per se under the circumstances, but whether evidence of an agency rate may assist a jury in determining a reasonable charge for family-provided attendant-care services.” Id. at 669. Accordingly, because an agency rate commonly paid by insurers “‘throws some light, however faint,’ on the reasonableness of a charge for attendant-care services,” it is admissible. Id., citing Beaubien v Cicotte, 12 Mich 459, 484 (1864). Moreover, Hardrick explained that the fact-finder “may ultimately decide that an agency rate carries less weight than the rate charged by an independent contractor, or no 12 weight at all. But the fact that different charges for the same service exist in the marketplace hardly renders one charge irrelevant as a matter of law.” Hardrick, 294 Mich App at 669. Indeed, the insurer would be free to introduce evidence showing the actual pay received by professional attendant-care-services providers and the overhead costs incurred by agencies that provide the care along with any other relevant evidence. In fact, in this case, defendant was permitted to counter plaintiff’s evidence of the agency rate paid by Dr. Rosenbaum’s company by showing that Mrs. Douglas was paid $10 an hour and with testimony from both defendant’s medical expert and its claims adjuster. This is the critical error in the majority’s reasoning: it fails to recognize that evidence of agency rates is only one of the various types of evidence that the fact-finder may consider in determining what constitutes a “reasonable charge,” and the decision of which evidence is most relevant should be left to the fact-finder. Accordingly, I disagree with the majority’s decision to opine regarding the weight that the fact-finder should give agency rates relative to other types of evidence when determining what constitutes a “reasonable charge.” By doing so, the majority again forgets that “appellate courts are not juries, and . . . they must not interfere with the jury’s role[.]” See Wolfe, 440 Mich at 514 (1992). Indeed, by adopting Bonkowski’s emphasis on an individual caregiver’s hourly rate, the majority’s approach ignores other relevant considerations. For example, the family member might be forced to abandon a more lucrative career or move a great distance in order to be able to provide long hours of care to a loved one over an extended period. Additionally, the majority’s approach marginalizes the fact that a family member who provides attendant-care services may be left without an array of benefits that a 13 professional attendant-care-services provider would ordinarily receive. For example, a professional attendant-care-services provider who is employed by an agency might receive health insurance benefits, vacation and sick leave, and retirement benefits, among other things. None of these benefits are represented in the professional attendant-care- services provider’s hourly wage.10 Thus, by singularly focusing on the rate paid to an attendant-care-services professional in order to determine what is a “reasonable charge” for family-provided care under MCL 500.3107(1)(a), the majority fails to recognize the complexity of the inquiry at hand and reduces the determination to a purely economic decision when that is simply not the reality of the situation. Furthermore, by implying that certain evidence is deserving of greater consideration when determining a “reasonable charge,” the majority risks making the possibility of family-provided attendant care unattainable for a large number of no-fault insureds because their family members simply cannot afford to suffer the financial ramifications of that decision. This result not only potentially places families in the unenviable position of being forced to institutionalize a family member in order to make a fair living, but it also runs counter to one of the goals of the no-fault act: to keep no- fault insurance affordable. See Shavers v Attorney General, 402 Mich 554, 627-628; 267 10 I recognize that the majority briefly considers the issue of fringe benefits, see ante at 27 n 69, but the majority relegates the issue to a mere secondary consideration by repeatedly emphasizing that “Mrs. Douglas actually received $10 an hour in providing attendant care services to plaintiff,” ante at 32. See, also, ante at 32 (stating that the $10 an hour rate is “highly probative” of what is a reasonable charge under MCL 500.3107(1)(a) because it was “the rate [Mrs. Douglas] actually received for providing attendant care services”). 14 NW2d 72 (1978). Specifically, if a family member cannot afford to provide attendant care at the lower rate that the majority opinion essentially mandates, the insured may be forced into an institution, which will potentially increase the cost of attendant care and, therefore, the amount of PIP benefits that insurers must pay. Finally, although the majority is correct that this Court has not previously considered this exact issue, the Court of Appeals’ approach in Hardrick is more consistent with this Court’s opinion in Manley, 425 Mich at 154, which considered the “reasonable charge” aspect of MCL 500.3107(1)(a) and held that evidence of a daily charge by facilities for “room and board” is admissible to determine a parent’s costs for room and board of a disabled child in the parent-caregiver’s home. See, also, Manley, 425 Mich at 169 (BOYLE, J., concurring in part and dissenting in part) (stating that “comparison to rates charged by institutions provides a valid method for determining whether the amount of an expense was reasonable and for placing a value on comparable services performed by [a family member]”) (quotation marks and citation omitted). Thus, given this Court’s guidance on the issue in Manley, and because I believe that Hardrick’s analysis is more thorough and well reasoned than Bonkowski’s, I would adopt Hardrick’s analysis Applying Hardrick’s approach to this case, I would affirm the trial court’s conclusion that $40 an hour is a “reasonable charge.” The majority claims that the trial court’s finding is “unjustified on this record”; however, the majority fails to consider a variety of factors that were before the fact-finder in this case. Specifically, the trial court heard testimony from which it could conclude that Mrs. Douglas would need to quit her job outside the home in order to provide plaintiff with the attendant care his doctor 15 prescribed. Moreover, the trial court heard testimony regarding both the agency rate and individual rate of pay for the type of care that Mrs. Douglas was providing. Notably, defendant could have submitted additional evidence in support of its claim for a lower hourly rate, but it chose not to do so. Thus, while the majority is correct that it is “undisputed” that “Mrs. Douglas actually received $10 an hour in providing attendant care services to plaintiff,” ante at 32, it is also undisputed that agencies receive a higher rate of compensation for the same services, and it is also undisputed that Mrs. Douglas could not provide the attendant care that plaintiff needed while maintaining her employment outside the home. Thus, the rate paid to an individual caregiver fails to encompass all the ramifications of Mrs. Douglas’s provision of attendant care to plaintiff. Accordingly, because “[t]he trier of facts is permitted to draw natural inferences from all the evidence and testimony,” Kostamo v Marquette Iron Mining Co, 405 Mich 105, 120- 121; 274 NW2d 411 (1979), I cannot agree with the majority’s conclusion that the trial court in this case “uncritically adopted” the agency rates or that agency rates were “the sole basis for the award of benefits in these circumstances.” Ante at 32-33. As a result, I am not “left with the definite and firm conviction that a mistake has been made,” Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008) (quotation marks and citation omitted), and, thus, in my view, the trial court did not clearly err on this issue. III. CONCLUSION In summary, I dissent from the majority’s effort to extend the erroneous interpretation of MCL 500.3107 from Griffith. Specifically, I disagree with the majority’s judicially created requirements regarding what is necessary to show that a charge was incurred because those requirements are unsupported by the statutory 16 language at issue and, thus, contrary to the Legislature’s intent with regard to MCL 500.3107(1)(a). Moreover, the majority’s decision to rely, at least in part, on the reasoning from Bonkowski, 281 Mich App 154, is ill conceived because Bonkowski is poorly reasoned, particularly in comparison to the persuasive analysis in Hardrick, 294 Mich App 651. Furthermore, Bonkowski is contrary to this Court’s opinion in Manley, 425 Mich 140. Accordingly, I dissent. Michael F. Cavanagh Marilyn Kelly Diane M. Hathaway 17	{ "pile_set_name": "FreeLaw" }
818 F.2d 875 dMoquet, Ltd.v.Bongrain Int'l Corp. 86-1487 United States Court of Appeals,Federal Circuit. 1/16/87 PTO AFFIRMED 1 --------------- d Denotes patent appeals.	{ "pile_set_name": "FreeLaw" }
633 F.2d 210 Moorev.Colautti 80-1097 UNITED STATES COURT OF APPEALS Third Circuit 9/19/80 E.D.Pa., 483 F.Supp. 357 AFFIRMED	{ "pile_set_name": "FreeLaw" }
286 S.W.2d 252 (1955) Elgean SHIELD and Shield Oil & Gas Company, Appellants, v. Donald L. SHIELD et al., Appellees. No. 5102. Court of Civil Appeals of Texas. El Paso. December 7, 1955. Rehearing Denied December 28, 1955. 254 Sutton, Steib & Barr, San Angelo, for appellants. Snodgrass & Smith, San Angelo, Goldberg, Fonville, Gump & Strauss, Dallas, for appellees. HAMILTON, Chief Justice. This is an appeal from a judgment rendered below for plaintiffs, who sued for judicial determination of their ownership of minerals under four sections of land in Glasscock and Reagan Counties, Texas, and for an accounting to plaintiffs by the defendants below, who were co-tenants with plaintiffs, and who were alleged to have executed oil and gas leases covering the plaintiffs' mineral interest. The court below decreed that certain mineral interests covered by oil and gas leases executed by defendants, belonged to plaintiffs below, and decreed that a proportional share of bonus payments and rentals received by defendants belonged to plaintiffs and gave judgment to plaintiffs for such amount. It appears that a dispute between appellant Elgean Shield and plaintiffs' predecessor in title as to ownership of the minerals under the land in question began a number of years ago. A short history of the ownership of the minerals in question will be helpful: Prior to February 20, 1936, Leon L. Shield, who was the father of the plaintiffs, Donald L. Shield and Mrs. Bob Montgomery, together with his brother, I. O. Shield, his brother Elgean Shield, his sister Camille Shield Wallace, Shield Brown, and a corporation known as Texas Standard Oil & Royalties, Inc., owned certain undivided mineral interests in lands located in Coleman, Brown, Glasscock, Reagan and Montague Counties in the State of Texas. Said corporation, together with the persons just named, jointly owned the oil, gas and other minerals in and under the following described lands, among other lands situated in Reagan and Glasscock Counties, Texas: Surveys 25 and 36, Block 35, Glasscock County, and Surveys 37 and 38, Block 35, Glasscock and Reagan Counties, Texas. By instrument of date February 20, 1936, the said joint owners, including Texas Standard Oil & Royalties, Inc., partitioned the mineral interests jointly owned in the above described lands, as well as other lands in those counties. Under such partition agreement Loeon L. Shield received the surface and one-half the mineral of said Section 38, Block 35, the west 230 acres of Section 37, and the south 205 acres of said Section 36, and Texas Standard Oil & Royalties, Inc., received one-half of the oil, gas and other minerals in said lands. Elgean Shield received the surface and one-half of the minerals in Section 25, Block 35, and the north 435 acres of Section 36, Block 35, and Texas Standard Oil & Royalties, Inc., received the other one-half of all the oil, gas and other minerals in and under said lands. As can he seen from this deed, Texas Standard Oil & Royalties, Inc., owned one-half of the minerals in said Sections 25, 36, 37 and 38 in Block 35, and it is these minerals which are the subject matter of this litigation. Appellants and appellees all trace their title to the minerals owned by the Texas Standard Oil & Royalties, Inc. The surface of said lands and the other undivided 255 one-half of the minerals in these sections were subsequently conveyed to Edwin J. Glass, and were so owned at the time of this litigation and were not and are not in dispute in this case. Mrs. Emma C. Shield was the widow of Leon L. Shield, who died May 26, 1937, and acquired his stock interest in Texas Standard Oil & Royalties, Inc. under his will. Appellees herein derive their title through Emma C. Shield. On January 17, 1939, Texas Standard Oil & Royalties, Inc., was dissolved by action of all parties owning stock in said corporation. There was a dispute as to the ownership of 598 shares of stock. Mrs. Emma Shield claimed the 598 shares of stock which Elgean Shield also claimed by virtue of a certificate purported to have been issued to him. In 1943 Mrs. Emma Shield brought suit for partition of the mineral interests owned by the Texas Standard Oil & Royalties, Inc., predicating her claim to certain mineral interests upon the ownership of such 598 shares. The issue of the validity of the certificate to said 598 shares standing in the name of Elgean Shield was tried to a jury with a finding to the effect that such certificate was forged, and final judgment was entered on October 30, 1943, in the district court of Coleman County, Texas, determining the proportionate ownership of Emma C. Shield and Elgean Shield in the mineral interests owned by Texas Standard Oil & Royalties, Inc., and partitioned certain described parcels thereof in kind. The partition judgment and decree was predicated upon Texas Standard Oil & Royalties, Inc., owning a 6/25th interest in minerals under said Sections 25, 36, 37 and 38, whereas, as shown above, the corporation at the time of its dissolution and at the time of trial actually owned an undivided one-half interest in these minerals. The partition judgment, after setting out the particular interest of each party, used language which is hereinafter referred to as the "catch-all clause", to-wit: "It being further made to appear to the Court that there may be other oil and gas mineral properties located in Texas which Texas Standard Oil & Royalties, Inc., owned at the time of the dissolution of said corporation, which other properties are not described in and directly involved in the partition herein decreed, it is therefore further ordered, adjudged and decreed, in keeping with the preliminary decree and judgment herein that all oil, gas and mineral properties and all other assets whatsoever of Texas Standard Oil & Royalties, Inc., owned by said corporation at the time of its dissolution and which are not described in this decree of partition be and the same are hereby owned jointly, as follows, to-wit: "An undivided 790/1000th interest therein by the plaintiff Emma C. Shield, individually and as independent executrix of the will of the estate of Leon L. Shield, deceased, and by her attorneys, J. B. Dibrell, Jr., and C. L. South in the proportion of ½ of such undivided interest by said plaintiff, ¼ of such undivided interest by J. B. Dibrell, Jr., and ¼ of such undivided interest by C. L. South, 200/1000 undivided interest therein by the defendant Elgean Shield, and 10/1000 undivided interest by the defendant Geo. J. Schrup." There was introduced in evidence in the instant case below, a deed bearing date November 25, 1938, executed by Texas Standard Oil & Royalties, Inc., by Elgean Shield, President, to Elgean Shield, individually, purporting to convey to him all the minerals in controversy in this case formerly owned by the Texas Standard Oil & Royalties, Inc., including mineral interests under 215.16 acres of land in Montague County. This deed was shown not to have been recorded until January 1947. There was no showing that such deed was authorized by the Board of Directors, but on the contrary, a showing was made that neither the directors nor the stockholders authorized such conveyance. The genuineness and effectiveness of this deed was an issue in 1947, in case No. 10,276 in the District Court of Montague County, Texas, 256 97th Judicial District, from which the court adjudged and determined that the purported deed passed no title to Elgean Shield. Elgean Shield prosecuted an appeal to the Court of Civil Appeals for the Second Supreme Judicial District of Texas, at Fort Worth, which court affirmed the district court's adjudication, Shield v. Donald, Tex. Civ.App., 253 S.W.2d 710, and the Supreme Court on February 25, 1953, refused a writ of error on the ground of no reversible error. This purported deed was not offered by Elgean Shield in his defense during the trial of the partition suit by Mrs. Emma Shield against him in 1943. By date October 4, 1951, the appellants Elgean Shield and Shield Oil & Gas Company executed and delivered three oil and gas leases covering the lands involved herein, receiving from lessees a bonus aggregating $44,500, which consideration was paid by drafts which evidence on their face that they were in payment for the exact number of mineral acres claimed to be owned by both the appellants and the appellees together. The bonus payment of $44,500 was based upon an agreed price of $50 per acre, and there was reserved in each of said oil and gas leases a one-eighth royalty and an over-riding royalty. Appellees on the trial of the case below ratified and confirmed said leases, upon which ratification appellees based their claim for a share of the bonus money received by the appellants, based on appellees' proportionate interest of oil and gas and other minerals lying under the lands described in said leases, as well as for a like proportionate share of delay rentals, royalties and the overriding royalties provided for in said leases. After all the evidence was in, on motion of plaintiffs below, the trial court withdraw the case from the jury and rendered judgment for the plaintiffs. Appellants predicate their appeal upon five points, as follows: 1. The trial Court erred in holding that Edwin J. Glass, the owner of the surface estate and of an undivided ½ of the minerals to the lands in controversy, was not a necessary and indispensable party to the suit, and in requiring appellants to proceed with the trial without said Glass being made a party. 2. The trial Court erred in permitting the plaintiffs to file their trial amendment, which changed plaintiffs' theory of the case, to the serious prejudice and surprise of the appellants. 3. The trial Court erred in not permitting appellants to withdraw their announcement of ready and in refusing to continue the case, after granting permission to plaintiffs, over appellants' objections to file their trial amendment. 4. The trial Court erred in withdrawing the case from the jury and rendering judgment thereon in favor of the plaintiffs, there having been competent evidence on each and every issue of fact. 5. The trial Court erred in entering the judgment for the plaintiffs for the percentages of interest and in the amounts of money shown in the judgment, for the reason that said percentages of interest and said amounts of money awarded the plaintiffs are wholly without support of the competent evidence in the record, and are contrary to law, and are the result of and based upon erroneous interpretation and application of certain deeds and judgments. Appellants' point No. 1 is overruled. The one-half interest in the minerals owned by Edwin J. Glass was never at any time involved in this suit. The subject matter of the suit was the ownership of one-half of the minerals previously owned by the Texas Standard Oil & Royalties, Inc., and the only necessary parties are those who claim an interest in that mineral interest. The owner of the other one-half is not a necessary party. Bryan v. Bryan, Tex.Civ.App., 262 S.W.2d 736. Appellants' points Nos. 2 and 3 are overruled. In appellees' first amended original petition they sued for damages as well as for their proportionate amount of the bonus, delay rental and royalty. During the trial, the court allowed the appellees 257 to file a trial amendment which abandoned their plea for damages and which ratified the leases executed by appellants. We do not believe that the court abused its discretion in allowing such trial amendment. Missouri-Kansas-Texas R. Co. of Texas v. Waddles, Tex.Civ.App., 203 S.W. 2d 350; Rule 56, Texas Rules of Civil Procedure. Appellants' fourth point complains of the court withdrawing the case from the jury and rendering judgment for the plaintiffs, there having been competent evidence on each and every issue of fact. We will presume that the appellants mean there was competent evidence disputing each and every necessary fact upon which the court based its judgment. The case was tried on the theory that the appellants herein sold oil and gas leases covering appellees' mineral interests and had collected the bonus and delay rentals on appellees' proportionate mineral interests, and that although appellees were not bound to recognize said leases, they did have an option to either ratify the leases as executed by appellants covering appellees' mineral interest, or they could repudiate such leases on the ground that appellants had no authority to sell oil and gas leases on appellees' mineral interests; that the appellees having chosen to ratify the leases were entitled to a recovery against appellants for their (appellees') proportionate amount of bonus and any delay rentals that had been paid appellants by the lessees. Appellants contend they did not lease any mineral interests of appellees, but that they own all mineral interests that were purported to be leased, and were entitled to collect all the consideration provided in said leases. The necessary facts upon which the court based its judgment were: First that appellees had title to the respective mineral interests allotted to them in the judgment; Secondthat the leases executed by appellants covered those interests; Thirdthat appellants collected the bonus and rentals paid by lessees for the respective interests of appellees and have not accounted to them for same. We think the evidence with reference to these facts upon which the court based its judgment is undisputed. The court in allotting the various mineral interests to the parties, relied solely on the 1943 partition judgment, and while there may be a dispute as to the interpretation to be placed upon the judgment, there is no dispute of the fact with reference thereto. Appellants rely on the 1938 deed from Texas Standard Oil & Royalties, Inc., to Elgean Shield for title to the minerals on which they purported to execute the leases in question. We think there are two good reasons why appellants have no title to any of said minerals by virtue of the 1938 deed. First: Said deed conveyed no title to Elgean Shield because it is affirmatively shown by the evidence in this case that there was never any authority given by the Board of Directors of Texas Standard Oil & Royalties, Inc., or by the stockholders of said corporation for Elgean Shield to execute any such deed to himself. Second: This very deed was involved in a lawsuit in Montague County in 1947, where the District Court held that the deed conveyed no title to Elgean Shield. That case was appealed to the Court of Civil Appeals at Fort Worth and there affirmed, and a writ of error was refused by the Supreme Court. Shield v. Donald, Tex.Civ.App., 253 S.W.2d 710. Under the doctrine of stare decisis the adjudication in that case that no title passed by virtue of the deed of 1938 from Texas Standard Oil & Royalties, Inc., to Elgean Shield is final and binding on the courts in this state. 26 Tex.Jur. 46. Benavides v. Garcia, Tex. Com.App., 290 S.W. 739, 741. Appellants contend that the 1943 judgment only disposed of 6/25 of the interest in the minerals which the Texas Standard Oil & Royalties, Inc. owned under the lands in question, when in fact said company originally owned one-half of such minerals. However, the above quoted clause in the 1943 judgment which is referred to as the "catch-all clause", undertook to dispose of all the oil, gas and mineral properties and assets whatsoever of Texas Standard Oil & Royalties, Inc., belonging to said corporation at the time of 258 its dissolution which were not specifically described in the decree of partition. We do not think there is any question but what this clause in the judgment disposed of the entire mineral interests owned by the Texas Standard Oil & Royalties, Inc. at the time of its dissolution, and the court was correct in determining the mineral interests involved in this suit based on the specific interests partitioned in the 1943 judgment and the "catch-all clause" in said judgment. We also think there is no question but that the leases executed by appellants purported to cover the interest owned by appellees as well as appellants' interest. While the leases themselves purported to cover all of the mineral interests under the lands described, when they are construed together with the drafts attached it can easily be determined what mineral interest was intended to be covered in said leases. That where several instruments are made as part of one transaction, they will be read together and each will be construed with reference to the other, is a principle of law well established. 17 C.J.S., Contracts, § 298, pp. 714-715. Each of the leases in question had attached to it a draft drawn by the agent of lessee, payable to appellants, for the amount of bonus agreed to be paid for each lease. Each of said drafts also set out the number of mineral acres that were being leased and paid for. The lessee of the land described, except for Block number and county, the mineral acres covered, and the consideration provided for in each lease, are set out below, as follows: Lessee Land described Mineral acres Consideration. covered Lamar Hunt W/2 Sec. 38 182.5 $9,125.00 Trust Estate W/ 230 acres Sec. 37 Nelson Bunker Hunt Trust Est. E/2 Sec. 25 320 16,000.00 W/2 Sec. 36 Placid Oil Co. W/2 Sec. 25 387.5 19,375.00 E/2 Sec. 36 E/2 Sec. 38 _______________________________________________ 890.0 $44,500.00 The 890 mineral acres covered by the leases was the total amount of mineral acres owned by appellants and appellees under the lands described. It is the same number of mineral acres owned by the Standard Royalties, Inc. at the time of its dissolution and which interest was disposed of in the 1943 partition judgment. Also, it was the same amount of mineral interest that was purported to be conveyed in the Standard Royalties deed of 1938 to Elgean Shield. Elgean Shield testified that in executing the leases in question he was leasing the mineral interest of which he had record title, and that the 1938 deed was his record title. Elgean Shield testified that he sold the above leases on the basis of $50 per acre. The above drafts amount to $44,500, which is exactly fifty times 890. We do not see how the trial court could arrive at any other conclusion than that the leases purported to convey the interest of appellees as well as that of appellants. The fact that appellants, some eight or ten days after this transaction, furnished lessees with another set of leases covering the same lands, each of which had inserted after the description of the land the following: ("Representing all of the lessor's undivided interest only"). does not change the situation, even though one of the lessees, to-wit, the Lamar Hunt 259 Trust Estate, did record the second lease. There was no change in the number of mineral acres purported to be leased, there was no return of any of the consideration paid, there was no showing that appellants had abandoned their claim to all of the mineral interests purported to be covered in the 1938 deed from Standard Royalties, Inc. to Elgean Shield. The court could very properly have considered the second set of leases as executed to prevent a cloud on the title of Edwin J. Glass, who owned the other half of the mineral under the lands involved. The third necessary fact upon which the court based its judgment was that the appellants received all of the consideration for said leases and the rentals subsequently paid covering the interests of appellees. The above leases attached to the drafts were placed in the Capitol National Bank of Austin, Texas, on the 4th of October, 1951, by appellants, with instructions to deliver the leases upon payment of the attached drafs. The drafts showed they had been paid on October 5th. Elgean Shield, one of the appellants and president of Shield Oil & Gas Company, the other appellant, when asked by one of the appellees herein as to what became of the money paid for the leases, replied: "I went south with it." Appellant Elgean Shield makes the point that since all of his interest in and to said minerals had subsequently been acquired by the Shield Oil & Gas Company and was owned by the Shield Oil & Gas Company at the time the leases were executed that he could not be held personally liable for any of the money received for said leases. The leases were executed by both appellants, the drafts were made payable to both of the appellants, jointly, and the proceeds from said drafts were paid to them jointly. The rule is that when money belonging to other parties is received on the joint account of several defendants they are jointly liable. 58 C.J.S., Money Received, § 23, p. 929. There being no dispute as to these essential facts upon which the court based its judgment, we overrule appellants' point No. 4, which complains of the court withdrawing the case from the jury and rendering judgment for plaintiffs. The appellants in their point No. 5 complain of the court's rendering judgment for the plaintiffs for the percentage of interest and the amounts of money shown in the judgment. As has been stated previously, the court arrived at the amounts due plaintiffs based on the proportionate mineral interest owned by each of them as was determined in the 1943 partition judgment. In the judgment the court failed to dispose of any interest of the parties to that suit by specific reference to Survey 37 in Reagan County and Survey 25 in Glasscock County. Appellants contend that this failure was the result of a mere typographical error, and contend that the court below should have construed the judgment as though the mineral interests of such sections were disposed of by specific reference, even though there is nothing in the judgment by which one could determine that there were typographical errors. There was no pleading, neither was there any proof that Section 645 in Reagan County, Texas, was the same as Section 37, Reagan County, Texas, or that Survey 35, Glasscock County, Texas was the same as Survey 25 in Glasscock County. We understand that such proof would have to be made from the records of the case in the 1943 judgment. None was made. The court in apportioning the amount of money to the respective mineral interests under said sections 37 and 35 relied upon the above quoted "catch-all clause" in the 1943 partition judgment, and in this we think it was correct and overrule appellants' point No. 5. The judgment of the court below is in all things affirmed.	{ "pile_set_name": "FreeLaw" }
69 Cal.2d 452 (1968) WALDO E. WOODCOCK, Plaintiff and Respondent, v. FONTANA SCAFFOLDING AND EQUIPMENT COMPANY, Defendant and Appellant; ARGONAUT INSURANCE COMPANY, Intervener and Respondent. S. F. No. 22605. Supreme Court of California. In Bank. Oct. 24, 1968. Ellwood Hoskins and Cyril Viadro for Defendant and Appellant. Boccardo, Blum, Lull, Niland, Teerlink & Bell, David S. Lull and Edward J. Niland for Plaintiff and Respondent. No appearance for Intervener and Respondent. PETERS, J. Plaintiff Waldo E. Woodcock, an employee of Barrett Construction Company, was injured on December 16, 1963, at a construction site in Palo Alto. He commenced this action for damages for personal injuries against Fontana Scaffolding and Equipment Company, alleging that it had negligently stacked a number of metal scaffold frames which had fallen on him. Fontana Scaffolding denied all material allegations of the complaint, alleged negligence on the part of Barrett Construction Company, and claimed a setoff of the workmen's compensation benefits Woodcock had received. Argonaut Insurance Company, Barrett's workmen's compensation carrier, filed a $4,311.76 lien against any recovery under Labor Code section 3856, and intervened to protect its claim. The cause was tried by a jury. After instructing on the law of negligence, the trial judge explained the interest of the intervener. "Plaintiff has received certain sums, to wit, $4,311.76 as and for workmen's compensation benefits from the Argonaut Insurance Company, which carried workmen's compensation insurance for his employer, the Barrett Construction Company. If you find a verdict in favor of the plaintiff, Waldo E. Woodcock, the Argonaut Insurance Company may or may not be entitled to reimbursement from any such verdict. If you find that plaintiff's employer, Barrett Construction Company, was negligent in providing for the safety of its employees and that such negligence was a proximate 455 contributing cause of the injury in question to the plaintiff, then, the Argonaut Insurance Company will not be entitled to reimbursement from any such verdict." After completing instructions relative to the intervener's claim, the judge expounded on the proper form for the verdict. "Now, if you determine that the plaintiff is entitled to recover against the defendant, then, you will determine the full amount of the damages and insert it in that blank there. Do not subtract this other compensation claim. You determine the whole amount of the damages. The Court will determine the other situation." (Italics added.) The jury returned a verdict and special finding which recited: "We, the jury in the above-entitled cause, find a verdict in favor of the Plaintiff, Waldo E. Woodcock, and against the Defendant, Fontana Scaffolding & Equipment Company, a corporation, and assess the Plaintiff's damages in the sum of $13,000.00. We further find that the Plaintiff's injury was proximately contributed to by the negligence of the plaintiff's employer, Barrett Construction Company." [fn. 1] Judgment was entered in the full amount of the verdict. Woodcock moved for a new trial because of inadequate damages, and Fontana Scaffolding moved to correct the judgment under Code of Civil Procedure sections 473 and 663, contending that $4,311.76 previously paid as workmen's compensation benefits should have been deducted from the judgment. All motions were denied, and Fontana Scaffolding appealed. [1a] The heart of this controversy is the question whether "damages in the sum of $13,000.00" represents the total or gross amount of damages to plaintiff or a reduced or net amount of damages after exclusion of the payments made to plaintiff by intervener. If $13,000 represents the whole amount of damages, then Woodcock's "damages must be reduced by the amount of workmen's compensation he received" to avoid double recovery. (Witt v. Jackson, 57 Cal.2d 57, 73 [17 Cal.Rptr. 369, 366 P.2d 641]; see Smith v. Trapp, 456 249 Cal.App.2d 929 [58 Cal.Rptr. 229]; Souza v. Pratico, supra, 245 Cal.App.2d 651; Harness v. Pacific Curtainwall Co., 235 Cal.App2d 485 [45 Cal.Rptr. 454]; Castro v. Fowler Equipment Co., 233 Cal.App.2d 416 [43 Cal.Rptr. 589]; Conner v. Utah Constr. & Min. Co., 231 Cal.App.2d 263 [41 Cal.Rptr. 728]; Dauer v. Aerojet General Corp., 224 Cal.App.2d 175 [36 Cal.Rptr. 356]; Tate v. Superior Court, 213 Cal.App.2d 238 [28 Cal.Rptr. 548]; Chick v. Superior Court, 209 Cal.App.2d 201 [25 Cal.Rptr. 725]; City of Sacramento v. Superior Court, 205 Cal.App.2d 398 [23 Cal.Rptr. 43].) Standing alone, the verdict is ambiguous in not specifying whether the $13,000 represents the gross or net amount of damages. [2] "If the verdict is ambiguous the party adversely affected should request a more formal and certain verdict. Then, if the trial judge has any doubts on the subject, he may send the jury out, under proper instructions, to correct the informal or insufficient verdict." (Fernandez v. Consolidated Fisheries, Inc., supra, 117 Cal.App.2d 254, 263; Phipps v. Superior Court, 32 Cal.App.2d 371, 374-375 [89 P.2d 698]; Code Civ. Proc., 619.) [fn. 2] But where no objection is made before the jury is discharged, it falls to "the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions." (Fernandez 457 v. Consolidated Fisheries, Inc., supra, 117 Cal.App.2d 254, 263; West v. Duncan, supra, 205 Cal.App.2d 140, 142.) [3] Where the trial judge does not interpret the verdict or interprets it erroneously, an appellate court will interpret the verdict if it is possible to give a correct interpretation. (Mixon v. Riverview Hospital, supra, 254 Cal.App.2d 364, 374; Dauenhauer v. Sullivan, supra, 215 Cal.App.2d 231, 234; Weddle v. Loges, 52 Cal.App.2d 115, 118-119 [125 P.2d 914]; cf. 2 Witkin, Cal. Procedure, op. cit. supra, 92 et seq., p. 1821 et seq.) If the verdict is hopelessly ambiguous, a reversal is required, although retrial may be limited to the issue of damages. (West v. Duncan, supra, 205 Cal.App.2d 140, 144; Shell v. Schmidt, supra, 126 Cal.App.2d 279, 294; Fernandez v. Consolidated Fisheries, Inc., supra, 117 Cal.App.2d 254, 267.) [4a] By denying defendant's motion to correct the judgment and enter a new judgment, the trial judge interpreted the verdict's award of $13,000 as representing the net or reduced amount of damages after exclusion of the workmen's compensation benefits previously paid to plaintiff. This controversy is thus limited to the narrow question of whether the instructions support the trial judge's interpretation. [1b] The few instructions which weigh in favor of the trial court's interpretation relate to damages. "If you find in favor of the plaintiff in this action, then, in determining the amount of the award, you shall take into consideration the following items of damages, if any: The reasonable value, not exceeding the cost to plaintiff, of the examinations, attention, and care by physicians ... the reasonable value, not exceeding the cost to plaintiff, of the services of nurses. ... [T]he loss which the evidence shows with reasonable certainty to have been suffered by him [Woodcock] as a result of his inability, if any, to pursue these occupations as a result of his disability, ..." (Italics added.) (Compare BAJI Nos. 174-A, 174-D (identical medical expense instructions), 174-F (similar loss of earnings instruction).) 458 Without reference to the other instructions, these instructions are ambiguous insofar as they may suggest that the jury should determine a net cost to plaintiff for the elements covered. [fn. 3] However, the instructions cannot be read in a vacuum. They must be read with the other instructions. (Porter v. Bakersfield & Kern Elec. Ry. Co., 36 Cal.2d 582, 589 [225 P.2d 223]). The other instructions make it abundantly clear that a net figure was not desired. Initially, the court cautioned: "Neither the allegations in the complaint as to the amount of damage plaintiff claims to have been suffered nor the prayer asking for certain compensation is to be considered by you in arriving at your verdict, except in this one respect: The amount of damages alleged in the complaint does fix a maximum limit, ..." It then ordered: "Now, if you determine that the plaintiff is entitled to recover against the defendant, then, you will determine the full amount of the damages and insert it in that blank there. Do not subtract this other compensation claim. You determine the whole amount of the damages. The Court will determine the other situation." (Italics added.) [fn. 4] This last instruction is most significant because it relates to the form of the verdict and the mechanics of entering a dollar amount. It clearly and without ambiguity shows that the jury was directed to enter a gross figure. When read together with this instruction, earlier references to "cost" become comprehensible only as setting a maximum dollar limit equivalent to the total dollar amount charged for services, whether or not a larger charge might have been reasonable and justified. References to "loss" become, in context, directives to fix the 459 amount of injury or detriment without regard to the payment of workmen's compensation. Moreover, it is in this basic instruction, for the first time, that the trial judge indicated to the jury that plaintiff's total damages would be reduced by the amount of workmen's compensation he had received whether or not Barrett was found negligent. In other words, this was the first indication that plaintiff would receive a "net" amount even if Argonaut's claim failed, and the revelation was contained in the injunction: "Do not subtract this other compensation claim." Plaintiff argues that those instructions explaining that Argonaut could not recover if Barrett were found negligent indicated to the jury that they should return a net dollar amount. As noted, the jury's only intimation that plaintiff would ultimately receive a net amount was contained in a directive to ignore that fact in assessing damages. Accordingly, the information regarding Argonaut's rights in relation to Barrett's culpability plainly did not have the effect suggested. In summary, the pivotal instruction in this case is the one which commanded the jury to "determine the full amount of the damages." It illuminates the content of both the verdict and the prior damages instructions, and dispels the ambiguity which appears when the verdict and instructions are read separately. The trial judge wrongly interpreted the verdict which was, in light of all the circumstances, unequivocal. His action was error, and the judgment in favor of plaintiff for $13,000 must be vacated, and a new judgment entered in the amount of $8,688.24, reflecting a reduction of $4,311.76 for workmen's compensation benefits previously paid. [4b] This order is without prejudice to a renewal by plaintiff of his motion for a new trial on the ground of inadequate damages. [fn. 5] [5] Where an appellate court vacates a 460 judgment for plaintiff with directions to enter a new judgment in a greater amount, the defendant may move for a new trial after entry of the new judgment. (Bond v. United Railroads, 169 Cal. 273, 276 [146 P. 688]; see 3 Witkin, Cal. Procedure, supra, p. 2076; cf. Avery v. Associated Seed Growers, Inc., 211 Cal.App.2d 613, 631-633 [27 Cal.Rptr. 625].) Where the appellate court directs entry of judgment in an amount less than the original judgment, the same rule obviously applies. The plaintiff should be given an opportunity to move for a new trial after entry of the new judgment. In both situations, a party who may have been satisfied with the original judgment may in reliance upon it refrain from seeking a new trial or appealing or may have had his motion for new trial denied on the ground that the original judgment was sufficiently favorable to him. The judgment directed by the appellate court is less favorable to him, and he should be permitted to determine whether to seek a new trial and to have a motion for new trial considered in the light of the new judgment. The judgment is reversed with directions to enter judgment for plaintiff in the amount of $8,688.24. In the interests of justice, the parties shall bear their own costs on appeal. Traynor, C. J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred. McCOMB, J. I dissent. I would affirm the judgment. Waiver is not found where the record indicates that the failure to object was not the result of a desire to reap a "technical advantage" or engage in a "litigious strategy." (Phipps v. Superior Court, supra, 32 Cal.App.2d 371, 375; Dauenhauer v. Sullivan, supra, 215 Cal.App.2d 231, 234.) Thus, in Fernandez v. Consolidated Fisheries, Inc., supra, 117 Cal.App.2d 254, 262-263, where plaintiff sought damages for negligence and the intervener sought reimbursement for its workmen's compensation payments to plaintiff, the jury verdict was ambiguous when it awarded $50,000 to plaintiff and $8,813.87 to intervener without specifying whether the $50,000 represented the total amount of damages or a net sum to plaintiff. A more certain verdict was not requested. The court, weighing the merits, concluded that the trial judge had properly interpreted the verdict. In a Fernandez situation, as in many other cases, waiver is not an issue where a defect is latent and there is no hint of "litigious strategy." There was no waiver here because, in light of the instructions, the verdict was not ambiguous. (See infra.) Accordingly, there was nothing to clarify. But even if the verdict were ambiguous, there is no hint of a purpose to achieve a "technical advantage" or fulfill a "litigious strategy," and defendant should not be estopped to make his objections. Plaintiff did not appeal, and we may not consider on this appeal the issue whether the damages are inadequate. (Harris v. National Union etc. Cooks & Stewards, 116 Cal.App.2d 759, 764 [254 P.2d 673].) NOTES [fn. 1] 1. Argonaut filed a complaint in intervention, and was accordingly entitled to a formal, separate verdict. (See Lab. Code, 3852; Fernandez v. Consolidated Fisheries, Inc., 117 Cal.App.2d 254, 265 [255 P.2d 863].) The court did not submit a form which provided for such a verdict. Argonaut did not object, and Argonaut was the only party in a position to complain. (Cf. 2 Witkin, Cal. Procedure (1954) Trial, 88, pp. 1817-1818.) The general verdict-special finding procedure utilized by the court would appear to have been otherwise proper and not atypical. (See Souza v. Pratico, 245 Cal.App.2d 651, 653-654 [54 Cal.Rptr. 159].) [fn. 2] 2. Frequently, failure to object to the form of a verdict before the jury is discharged has been held to be a waiver of any defect. (E.g., Lynch v. Birdwell, 44 Cal.2d 839, 851 [285 P.2d 919]; Brown v. Regan, 10 Cal.2d 519, 523-524 [75 P.2d 1063]; Fransen v. Washington, 229 Cal.App.2d 570, 574 [40 Cal.Rptr. 458]; County of Humboldt v. Shelly, 220 Cal.App.2d 194, 200 [33 Cal.Rptr. 758]; Fairfield v. Hamilton, 206 Cal.App.2d 594, 605 [24 Cal.Rptr. 73]; 2 Witkin, Cal. Procedure, op. cit. supra, 97, pp. 1825-1827.) However, waiver is not automatic, and there are many exceptions. (E.g., Aynes v. Winans, 33 Cal.2d 206, 209 [200 P.2d 533]; Mixon v. Riverview Hospital, 254 Cal.App.2d 364, 376-377 [62 Cal.Rptr. 379]; Dauenhauer v. Sullivan, 215 Cal.App.2d 231, 234 [30 Cal.Rptr. 71]; West v. Duncan, 205 Cal.App.2d 140, 141-142 [22 Cal.Rptr. 833]; Shell v. Schmidt, 126 Cal.App.2d 279, 293-294 [272 P.2d 82].) [fn. 3] 3. Authority, however, undermines such an interpretation. In Fernandez v. Consolidated Fisheries, Inc., supra, 117 Cal.App.2d 254, 266- 267, the court held that it was error to give a loss of earnings instruction similar to the one quoted above. In that case, the jury segregated damages to plaintiff and indemnity to his employer. The court held that the instruction was improper because it suggested that plaintiff could recover a gross amount, with the result that the defendant would be charged twice for the same injuries. [fn. 4] 4. This instruction, by providing for a determination of the whole amount of damages, represents one of several acceptable procedures by which the trial judge could have effected a "segregation of items of damage so as to prevent a double recovery against the tort feasor." (Fernandez v. Consolidated Fisheries, Inc., supra, 117 Cal.App.2d 254, 265; see Eckman v. Arnold Taxi Co., 64 Cal.App.2d 229, 235 [148 P.2d 677]; cf. Sherrillo v. Stone & Webster Engineering Corp., 110 Cal.App.2d 785, 789-790 [244 P.2d 70]; Huber v. Henry J. Kaiser Co., 71 Cal.App.2d 278, 285 [162 P.2d 693].) [fn. 5] 5. In considering the motion to reduce the judgment by Fontana Scaffolding and plaintiff's motion for a new trial, the trial court stated, "I will let the record show that I am going to deny the motion for a new trial of the plaintiff on the ground of inadequacy of damages on the assumption that the $13,000 that the jury awarded him, plus the $4,000 workmen's compensation that he received, somewhere around $17,000, is a fair and adequate recovery, and if on appeal [Fontana Scaffolding] should prevail ... it should be retried also on the question of damages ...."	{ "pile_set_name": "FreeLaw" }
887 So.2d 336 (2004) CHESLOW v. STATE No. 2D03-5506 District Court of Appeal of Florida, Second District October 29, 2004. Decision without published opinion. Affirmed.	{ "pile_set_name": "FreeLaw" }
59 Cal.2d 421 (1963) 380 P.2d 652 30 Cal. Rptr. 12 RETAIL CLERKS UNION, LOCAL 770, AFL-CIO, Plaintiff and Respondent, v. THRIFTIMART, INC. Defendant and Appellant; CUSTOMERS FINANCE COMPANY, Intervener and Appellant. Docket No. L.A. 26681. Supreme Court of California. In Bank. April 18, 1963. 422 McLaughlin & McLaughlin, Joseph M. McLaughlin and Frederick A. Morgan for Defendant and Appellant. Hill, Farrer & Burrill, Carl M. Gould, Stanley E. Tobin and Barry R. Weiss for Intervener and Appellant. Arnold, Smith & Schwartz, George L. Arnold, Kenneth M. Schwartz and Laurence D. Steinsapir for Plaintiff and Respondent. TRAYNOR, J. Retail Clerks Union, Local 770 brought this action under Code of Civil Procedure section 1287 (now § 1285) for confirmation of an arbitrator's award. Customers Finance Company (doing business and hereinafter referred to as MORE) was granted leave to intervene in the confirmation proceedings. Thriftimart and MORE appeal from the judgment confirming the award on the grounds that the award invades the exclusive jurisdiction of the National Labor Relations Board and denies MORE due process of law. Thriftimart operates about 60 retail food stores in the Los Angeles area. The collective bargaining agreement between it and Local 770 expressly applies to "all locations" of Thriftimart. In May 1961 Thriftimart procured the incorporation of The W.I.T. Company with an authorized capital stock of 20,000 shares, of which 18,660 were issued. The W.I.T. Company then exchanged all of its issued stock for 67,854 shares of Thriftimart stock. W.I.T. in turn exchanged the Thriftimart stock for the physical assets of Consumers Finance Company. As a result of these transactions, Thriftimart owns all of the issued stock of W.I.T., W.I.T. owns the assets of Customers Finance Company (consisting of four discount department stores), and Customers Finance Company owns 67,854 shares of Thriftimart stock. Thereafter, Customers Finance Company transferred its corporate name and its trade name (MORE) to W.I.T. It is the new MORE that is involved in this action. After these transactions were carried out, Local 770 asserted that the collective bargaining agreement between it and Thriftimart covered certain employees of MORE. Thriftimart disputed that contention, but agreed with Local 770 to submit to arbitration (1) the question of arbitrability; (2) the issue on the merits: "Does the Collective Bargaining Agreement between the Employer and the Union, by its terms, 423 apply to and cover employees of ... MORE, employed in the appropriate classifications covered by the said contract and within the territorial area of the union, because of its acquisition by Thriftimart?" Thriftimart reserved the right to move to dismiss the proceeding on the ground that the substantive issue was not arbitrable. The contract provided that questions of arbitrability "shall be determined in the first instance by the arbitrator ..." and broadly committed to arbitration "any and all matters of controversy, dispute or disagreement of any kind or character existing between the parties and arising out of or in any way involving the interpretation or application of this Agreement...." The arbitrator found the issue arbitrable. On the merits, the arbitrator found it "clear from the ... contract ... that the parties intended the contract to apply to any new location ..." and that MORE's stores were such "new locations" within the meaning of the contract. [1] We are faced at the outset with the contention that neither this court nor the arbitrator has jurisdiction of this dispute since it involves questions of "representation" and "appropriate bargaining unit" assigned by the Labor Management Relations Act (29 U.S.C. § 141 et seq.) exclusively to the National Labor Relations Board. (See 29 U.S.C. § 159.) Since both Thriftimart and MORE are engaged in interstate commerce, this litigation is within the purview of section 301(a) of the Labor Management Relations Act. (29 U.S.C. § 185(a).) The cases cited for the board's exclusive jurisdiction are not persuasive in view of the recent decision by the United States Supreme Court in Smith v. Evening News Assn. (1962) 371 U.S. 195 [83 S.Ct. 267, 9 L.Ed.2d 246]. In that case an employee brought an action against his employer for damages resulting from the latter's alleged violation of a collective bargaining agreement. The trial court sustained the employer's motion to dismiss for want of jurisdiction on the ground that the allegations, if true, would make out an unfair labor practice and that therefore the subject matter was within the exclusive jurisdiction of the National Labor Relations Board. The Supreme Court reversed, holding that the preemption doctrine did not apply to cases arising under collective bargaining agreements, even though "the alleged conduct of the employer ... concededly, is an unfair labor practice within the jurisdiction of the National Labor 424 Relations Board. The authority of the board to deal with an unfair labor practice which also violates a collective bargaining contract is not displaced by § 301, but it is not exclusive and does not destroy the jurisdiction of the courts under § 301." (83 S.Ct. at pp. 268-269 [9 L.ed.2d at p. 249]. See Local 174, Teamsters, etc. of America v. Lucas Flour Co., 369 U.S. 95, 101 n. 9 [82 S.Ct. 571, 7 L.Ed.2d 593, 598]; Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 504 [82 S.Ct. 519, 7 L.Ed.2d 483, 485]; Atkinson v. Sinclair Refining Co., 370 U.S. 238 [82 S.Ct. 1318, 8 L.Ed.2d 462]; Sovern, Section 301 and the Primary Jurisdiction of the NLRB, 76 Harv. L. Rev. 529, 532-544 (1963).) The cases upon which Thriftimart and MORE rely (Local 1505, International Brotherhood etc. AFL-CIO v. Local Lodge 1836, Intl. Assn. of Machinists, 304 F.2d 365, cert. granted, 371 U.S. 908 [82 S.Ct. 255, 9 L.Ed.2d 169]; Local 1357, Retail Clerks Intl. Assn. v. Food Fair Stores, Inc., 202 F. Supp. 322; International Chemical Workers Union, Local 6 v. Olin Mathieson Chemical Corp., 202 F. Supp. 363; and International Union of Doll & Toy Workers v. Metal Polishers, etc., AFL-CIO, 180 F. Supp. 280), were decided before the Supreme Court's decision in Smith v. Evening News Assn., supra, and rest upon the premise, squarely rejected in the latter case, that the parties could not by private agreement oust or limit the jurisdiction of the board. The Supreme Court, however, recognizes the jurisdiction of both the courts and the board. (371 U.S. 195 [83 S.Ct. at p. 269, 9 L.Ed.2d at p. 249].) It is nevertheless contended that the Smith case recognizes judicial competence to decide contract actions that involve past unfair labor practices only, but does not authorize courts to make determinations that involve the risk of compelling the commission of unfair labor practices. It is urged that arbitrators and courts are not competent to determine whether the Thriftimart-Local 770 collective bargaining contract applies to MORE, for an erroneous decision of that issue would compel the parties to apply the collective bargaining contract to MORE's employees in violation of section 8 of the Labor Management Relations Act (29 U.S.C. § 158). (See Masters-Lake Success, Inc., 124 N.L.R.B. 580.) We are not persuaded that the United States Supreme Court would make the suggested distinction. Bargaining unit issues are commonly provided for in collective bargaining contracts and are therefore commonly adjudicated by arbitrators (see Cummings, 425 NLRB Jurisdiction and Labor Arbitration: "Uniformity" vs. "Industrial Peace," 12 Labor Law Journal 425, 429); national labor policy favors the settlement of labor disputes by arbitration (United Steelworkers v. American Mfg. Co., 363 U.S. 564 [80 S.Ct. 152, 4 L.Ed.2d 118]); and an erroneous decision in a contract action involving a past unfair labor practice may result in the continued commission of that practice. Accordingly, we hold that the court's jurisdiction to decide contract actions (Charles Dowd Box Co. v. Courtney, supra; McCarroll v. Los Angeles County etc. Carpenters, 49 Cal.2d 45, 60 [315 P.2d 322]) is not displaced by the jurisdiction of the National Labor Relations Board to remedy unfair labor practices (29 U.S.C. § 160) or to designate appropriate bargaining units (29 U.S.C. § 159). [2] The validity of MORE'S contention that the decision of the arbitrator in a proceeding to which it was not a party and without notice to or consent by MORE is a denial of due process of law depends on whether the arbitrator's award affects MORE. In an attempt to forestall adjudication of this issue, Local 770 "concedes that the judgment in its present form applies to and can be enforced only against the party Thriftimart." It is obvious, however, that enforcement of the award against Thriftimart would be enforcement against MORE, for the award provides that the contract between Thriftimart and Local 770 covers MORE and its employees. In this regard, it is significant that Local 770 is now seeking to compel specific enforcement of the award in another action.[] Thus, through proceedings nominally directed against Thriftimart alone, Local 770 seeks to affect MORE's dealings with its employees. The source of Local 770's asserted power to affect MORE is the arbitration proceeding to which MORE was not a party. Accordingly, MORE may properly challenge the legality of that proceeding. [3] The question is one of federal law. (Textile Workers Union v. Lincoln Mills, 353 U.S. 448 [77 S.Ct. 912, 1 L.Ed.2d 972]; Local 174, Teamsters, etc. of America v. Lucas Flour Co., 369 U.S. 95, 102 [82 S.Ct. 571, 7 L.Ed.2d 593, 598].) Local 770 contends that the Steelworkers cases (United Steelworkers v. American Mfg. Co., 363 U.S. 564 [80 S.Ct. 152, 4 L.Ed.2d. 118]; United Steelworkers v. Warrior & Gulf N. Co., 363 U.S. 426 574 [80 S.Ct. 1347, 4 L.Ed.2d 1409]; United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 [80 S.Ct. 1358, 4 L.Ed.2d 1424]) compel confirmation of the award and prohibit judicial review of both the issue of arbitrability and the merits of the award. This argument overlooks the premise upon which those cases rest: the consensual nature of arbitration. "Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.... The judicial inquiry ... must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made." (363 U.S. at pp. 582-583 [4 L.Ed.2d 1417].) In the Steelworkers cases, the Supreme Court sought to insulate consensual labor arbitration from judicial intervention. The arbitrator's decision on the merits is not to be disturbed, "even through the back door of interpreting the arbitration clause ..." (363 U.S. at p. 585 [4 L.Ed.2d 1419]), for it was the arbitrator's judgment of what the parties agreed to that was bargained for. In the present case, however, MORE was not a party to the collective bargaining contract and did not join in the submission of the controversy to the arbitrator. Thus, the crucial issue is whether there can be a valid arbitration award in the absence of a party directly affected by the award. The substantive federal law of collective bargaining agreements affords no solution to this question. "Until it is elaborated by the federal courts we assume it does not differ significantly from our own law." (McCarroll v. Los Angeles County etc. Carpenters, 49 Cal.2d 45, 60 [315 P.2d 322].) In Retail Clerks Local 428 v. L. Bloom Sons Co., 173 Cal. App.2d 701 [344 P.2d 51], the union sought to compel L. Bloom Sons to arbitrate whether their collective bargaining contract applied to "Bloom's Salinas, Inc.," which the union claimed was being operated by L. Bloom Sons. In that case as in this one the union did not establish that the subsidiary was the alter ego of the parent corporation as a prerequisite to enforcing the parent's agreement against the subsidiary. "The proper forum for that determination is, of course, a court of law." (173 Cal. App.2d at p. 703; Minton v. Cavaney, 56 Cal.2d 576, 579, 581 [15 Cal. Rptr. 641, 364 P.2d 473]; Motores De Mexicali, S.A. v. Superior Court, 51 Cal.2d 172, 176 [331 P.2d 1].) The court affirmed dismissal of the union's petition on the ground that Bloom's Salinas, Inc. was an indispensable party. "Appellant contends that the issue 427 must be determined by the arbitrator because it involves a controversy arising out of the contract.... It is conceded that respondent and Bloom's Salinas, Inc., are separately incorporated. Bloom's Salinas, Inc., is not a party to the contract. It did not consent to have this issue decided by an arbitrator rather than by a court of competent jurisdiction. Appellant is, in effect, urging the patently absurd proposition that two parties can by contract effectively stipulate for the mode of determination of the rights of a third party who has not only not assented to such a mode of determination but who also is not even accorded an opportunity to participate in such determination." (173 Cal. App.2d at p. 703.) Local 770 attempts to distinguish the Bloom case on the ground that it involved a suit to compel arbitration, whereas in the present case Local 770 and Thriftimart agreed to submit the issue of arbitrability to the arbitrator in the first instance. MORE, however, did not agree to that submission, and it is therefore not bound by it. The judgment is reversed and the trial court is directed to vacate the award pursuant to Code of Civil Procedure, section 1286.2, subdivision (d). Gibson, C.J., Schauer, J., McComb, J., Peters, J., Tobriner, J., and Peek, J., concurred. NOTES [] The action was stayed as premature on Thriftimart's petition for a writ of mandate. Thriftimart, Inc. v. Superior Court, 202 Cal. App.2d 421 [21 Cal. Rptr. 19].	{ "pile_set_name": "FreeLaw" }
237 P.3d 667 (2010) In the Matter of James F. STANLEY, Respondent. No. 13143. Supreme Court of Kansas. August 23, 2010. ORDER OF DISBARMENT In a letter signed August 18, 2010, addressed to the Clerk of the Appellate Courts, respondent James F. Stanley, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2009 Kan. Ct. R. Annot. 353). At the time the respondent surrendered his license, a panel hearing was pending on two complaints in accordance with Supreme Court Rule 211 (2009 Kan. Ct. R. Annot. 321). The complaints alleged that respondent violated Kansas Rules of Professional Conduct 1.1 (2009 Kan. Ct. R. Annot. 410) (competence); 1.3 (2009 Kan. Ct. R. Annot. 426) (diligence); 1.4 (2009 Kan. Ct. R. Annot. 443) (communication); 1.5(d) and (e) (2009 Kan. Ct. R. Annot. 460) (fees); 1.8(a) and (j) (2009 Kan. Ct. R. Annot. 483) (conflict of interest, acquiring interest in cause of action); 8.4 (2009 Kan. Ct. R. Annot. 602) (misconduct); and Supreme Court Rule 207 (2009 Kan. Ct. R. Annot. 303) (failure to cooperate with Disciplinary Administrator). This court, having examined the files of the office of the Disciplinary Administrator, finds the surrender of the respondent's license should be accepted and that the respondent should be disbarred. IT IS THEREFORE ORDERED that James F. Stanley be and is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked. IT IS FURTHER ORDERED that the Clerk of the Appellate Courts strike the name of James F. Stanley from the roll of attorneys licensed to practice law in Kansas. IT IS FURTHER ORDERED that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361). For the Court /s/ Lawton R. Nuss Lawton R. Nuss Chief Justice *668	{ "pile_set_name": "FreeLaw" }
5 So.3d 156 (2009) STATE ex rel. Joseph WARD v. STATE of Louisiana. No. 2008-KH-1488. Supreme Court of Louisiana. April 13, 2009. Denied.	{ "pile_set_name": "FreeLaw" }
108 N.J. Super. 88 (1969) 260 A.2d 13 PETER PILAT, PLAINTIFF, v. BROACH SYSTEMS, INC., A NEW JERSEY CORPORATION, DEFENDANT. Superior Court of New Jersey, Law Division. Decided December 9, 1969. 90 Messrs. Albano and Albano, attorneys for plaintiff. Messrs. Collins and Toner, attorneys for defendant. BRESLIN, J.D.C. (temporarily assigned). The following facts are not in dispute. Plaintiff was a stockholder and a member of the board of directors of defendant Broach Systems, Inc., and also its vice-president from the time of the corporation's inception in 1967 until May 26, 1969. On July 28, 1969 he was removed as a director and on September 19 was discharged as an employee. On June 3, 1969 plaintiff, through his attorney, made a written demand upon the corporation to inspect the corporate balance sheet, profit, loss and surplus statements, minutes of the shareholders' proceedings, the record of shareholders, and its books, records of account and minutes. The original purpose of the inspection was to ascertain the value of plaintiff's stockholdings in the corporation, but in his trial memorandum he indicated that he also wanted "to be certain whether or not there had been proper management of the corporate affairs and business." On June 18, 1969 plaintiff again requested the information set forth in the previous communication and made a formal demand for inspection pursuant to N.J.S.A. 14A:5-28. No response was forthcoming from defendant to either communication. On August 18, 1969 a complaint was filed in which plaintiff sought (1) an examination of the books and records of the corporation; (2) reinstatement as a director; (3) a declaration that the executive committee was illegal, and (4) an order restraining the corporation from removing its assets from New Jersey to Florida. 91 By letter dated October 1, 1969 defendant informed plaintiff that he would be allowed to examine the listed documents with the exception of the books, records and minutes of the corporation; that he was reinstated as a director, and that a special meeting of the board of directors would be held on October 6. At said meeting the board approved a proposed amendment to the certificate of incorporation authorizing the shareholders to remove a director without cause, as provided by N.J.S.A. 14A:6-6. On October 16 the amendment was adopted and plaintiff was thereupon removed as a director. Plaintiff asserts that he is acting in good faith, in his own interest as a stockholder and in the best interests of the corporation, and essentially requests this court to rule that (1) he is entitled to inspect the corporate books and records, and (2) the statute enabling stockholders of a corporation to remove a director without cause is unconstitutional. Defendant contends that plaintiff instituted this action only to harass the corporation and its management and to obtain personal gain; that plaintiff is not entitled to the requested inspection since he has not shown a proper purpose, and that N.J.S.A. 14A:6-6(1) is constitutional. Other contentions raised by the parties will be treated later on in this opinion. I N.J.S.A. 14A:6-6 provides: (1) One or more or all the directors of a corporation may be removed for cause by the shareholders by the affirmative vote of the majority of the votes cast by the holders of shares entitled to vote for the election of directors. If the certificate of incorporation so provides, one or all the directors may be removed without cause by like vote of the shareholders." [Emphasis added] Here, plaintiff's first removal from his position on the board of directors was without cause, and since there was no provision existing at the time in defendant's certificate of incorporation authorizing such removal, the same was improper 92 and void. As previously noted, defendant then reinstated plaintiff to his former status, but amended its certificate to provide for removal without cause. Plaintiff enjoyed this renewed status for about two weeks, until the shareholders once again voted him out. Defendant, by virtue of N.J.S.A. 14A:9-1 (allowing amendments to certificates of incorporation so long as the amendments contain only such provisions as could lawfully be contained in an original certificate filed at the time of making the amendment) and N.J.S.A. 14A:6-6, had the right to amend the certificate to provide for the removal of a director without cause. Although defendant was incorporated prior to the enactment of the present statute, it unquestionably had the right to adopt as its own the provisions of the new Corporation Act. Brundage v. New Jersey Zinc Co., 48 N.J. 450 (1967). Still, the court is of the opinion that such an exercise could not work to affect plaintiff's existing rights as a director. The precise question presented whether an amendment to a certificate, providing for the removal of a director without cause, as authorized by statute, enables the shareholders to remove a director without cause when the director had been elected prior to the amendment is novel in this jurisdiction, because before the enactment of N.J.S.A. 14A:6-6 New Jersey common law had held that a director could never be removed without cause and without reasonable opportunity for a hearing. Costello v. Thomas Cusack Co., 96 N.J. Eq. 83 (Ch. 1924). New York courts, however, faced with situations similar to the present one, have resolved the problem equitably and justly. In Abberger v. Kulp, 156 Misc. 210, 281 N.Y.S. 373 (Sup. Ct. 1935), the court reviewed the past decisions in the state and set down the following rules with reference to the removal of directors by the stockholders of a corporation. (a) That irrespective of the existence of any provision in the certificate of incorporation or of a by-law, a corporation may remove a 93 director during his term of office for cause arising from his acting in a manner inimical to the interests of the corporation; (b) during his term of office, a director may not be removed except for cause unless at the time of his election there existed a by-law that provided for the removal of a director without cause. If such by-law exists, then he has taken the office subject to the provisions of the by-laws: (c) a corporation may adopt a by-law providing for the removal of a director with or without cause, but such by-law, in so far as it refers to the removal of a director without cause, is of no value for the removal of a director who is in office at the time of the enactment of the by-law; (d) without a by-law which is in force prior to his election and at the time of his election, a director has a vested right to continue in his office to the end of his said term except if he is removed for cause. [281 N.Y.S. at 376; emphasis added] See also Tremsky v. Green, 106 N.Y.S.2d 572 (Sup. Ct. 1951), wherein the court upheld the principles set forth above. The present New York statute dealing with the removal of directors differs only slightly from our statute and was based on the past decisional law of that state. See McKinney, Consolidated Laws of New York, Business Corporation Law, § 706. It would appear that the legislature saw no inconsistency between the statute that provides for the removal of directors without cause if the certificate of incorporation or by-laws so provide, and the decision in Abberger v. Kulp, supra. New York is not the only jurisdiction to pass on the question. In Elevator Operators' & Starters' Union, etc., v. Newman, 180 P.2d 42 (Cal. D. Ct. App. 1947), the court adopted the reasoning of the above decisions as an equitable one and by analogy held: * * * as to unincorporated labor unions, where the term of office of an officer is fixed in the constitution and by-laws at a fixed term, and where at the time of election to the office the constitution and by-laws do not provide for his removal by the membership, he may be removed only for cause, and in the absence of such removal is entitled to remain in his office for the balance of his term, even though the constitution and by-laws are subsequently amended so as to shorten the term of that office * * * * * * the amendment shall be interpreted to apply prospectively to officers taking of office after its passage. [at 49] 94 A director is a fiduciary and quasi-trustee to the corporation and to the shareholders, Hill Dredging Corp. v. Risley, 18 N.J. 501 (1955); his acts as a director may lead to his personal liability, McGlynn v. Schultz, 95 N.J. Super. 412 (App. Div. 1967), and the entire management of corporate affairs is committed to his charge upon the trust and confidence that they will be cared for and managed within the limits of the powers conferred by law upon the corporation and for the common benefit of the stockholders. 19 Am. Jur.2d 679. It would appear that the burdens and responsibilities he assumes, and the many economic interests he safekeeps, all give rise to a vested interest in his position. For these reasons a director cannot be removed without cause unless the certificate of incorporation so provides at the time of his election thereto. Plaintiff, consequently, is to be immediately reinstated as a member of defendant's board of directors. II The question now to be considered is whether plaintiff has the right to inspect the corporate books and records. Defendant contends that this right will only be accorded when the applicant has shown a proper purpose and good faith, and that since plaintiff has not shown this, the requested relief should be denied. It is the law in this State that a stockholder has the right to inspect the books and records of a corporation if it is shown that he is acting in good faith and for some purpose germane to his status or interest as a shareholder. Drake v. Newton Amusement Corp., 123 N.J.L. 560 (Sup. Ct. 1939); Bruning v. Hoboken Printing & Publishing Co., 67 N.J.L. 119 (Sup. Ct. 1902); Rosenbaum v. Holthausen, 9 N.J. Super. 484 (Ch. Div. 1950). The cases, however, distinguish between the right of a shareholder and those of a director of a corporation. In 95 Siena v. Grand Lodge, etc., Order Sons of Italy, 11 N.J. Super. 507 (App. Div. 1951), It was held that the right of a stockholder to inspect the books and records, unlike that of a director, is qualified rather than absolute in that it is only judicially accorded when the stockholder acts in good faith and for a proper purpose. The court in Drake v. Newton Amusement Corp., supra, also noted the difference between the respective rights and stated that the director's right was absolute, the reason being that The directors of a private corporation bears a fiduciary relationship to the corporate body and its stockholders as well; and it is essential to the discharge of this function that the individual directors have access to the corporation's books of account and other records. It would seem to be axiomatic that the individual director cannot make his full contribution to the management of the corporate business unless given access to the corporation's books and records. [123 N.J.L., at 561.] This court is not unmindful of the decision in Mitchell v. Rubber Reclaiming Co., 24 A. 407 (Ch. 1892), where the court granted a stockholder-director's petition to inspect defendant's books and records, even though his motive may have been to gain information useful in his formation of a competing corporation. The court said: Nor should the charge that the petitioner is not acting in good faith, and that he is really seeking for information which he may use to the detriment of this company, and to establish another, which shall be rival to this, obtain control. It may be that he is willing to sacrifice all his interest in the one in order to gratify some unworthy spirit, or to promote some selfish end, in another direction. But this cannot be said to be sufficient justification for closing the doors of the office against the petitioner, if a proper cause be shown in the case at hand. [at 409] The court qualified its holding, however, by stating that: I would not be understood as saying that there can be no case where the subsequent conduct of a party ought to exclude him from the benefit of the statute. Cases may often arise where his interests are very small, and, however plain his legal rights may be, he only pursues them with such mischievous purpose. In such case, if the 96 purpose be clearly established, the court would not lend its aid to its accomplishment. The burden of proving that such a purpose exists devolves upon the party who asserts it; and such proof should be clear and convincing before the party who (seeks inspection) should be denied it. However, in view of the more recent cases, it would seem that even the above qualification is no longer the law, for if a right to inspect is to be in any way qualified, then it cannot be said to be absolute. A showing of hostile intent, therefore, will not affect a director's right of inspection. A reading of similar cases in other jurisdictions reveals a split of opinion on the matter. Some hold that a director may be denied the right to examine the corporate records where it is shown that he has a hostile or improper motive. State ex rel. Paschall v. Scott, 41 Wash.2d 71, 247 P.2d 543 (Sup. Ct. 1952); Hemingway v. Hemingway, 58 Conn. 443, 19 A. 766 (Sup. Ct. Err. 1898); Strassburger v. Philadelphia Record Co., 335 Pa. 485, 6 A.2d 922 (Sup. Ct. 1939); State ex rel. Farber v. Seiberling Rubber Company, 3 Storey 295, 53 Del. 295, 168 A.2d 310 (Super. Ct. 1961); Henshaw v. American Cement Corp., 252 A.2d 125 (Del. Ch. 1969). These cases, however, admit that the New Jersey law is to the contrary. See State ex rel. Paschall v. Scott, and State ex rel. Farber v. Seiberling Rubber Company, supra. Other jurisdictions, however, have held a director's right of inspection to be unqualified. Application of Martin, 32 Misc.2d 873, 224 N.Y.S.2d 972 (Sup. Ct. 1962); State ex rel. Watkins v. Cassell, 294 S.W.2d 647 (Mo. Ct. App. 1956). In the New York case of Davis v. Keilsohn Offset Co., 273 App. Div. 695, 79 N.Y.S.2d 540 (App. Div. 1948), it was held that The petitioner, as a director of the corporation, has an absolute right to [inspection]. All that he need show is that he is a director of the company; that he has demanded permission to examine and that his demand has been refused. It is the duty of the petitioner to keep himself informed of the business of the corporation. To perform this duty intelligently he has the unqualified right to inspect its books and records. [Citations] It is of no consequence that petitioner may 97 be hostile to the corporation. His object in seeking the examination is immaterial. His right of inspection is not dependent upon his being able to satisfy other officers of the corporation that his motives are adequate. [79 N.Y.S.2d, at 541] See also Pino v. United Democratic Regular Organization, etc., 195 N.Y.S.2d 860 (Sup. Ct. 1959); Grossman v. Central Coal Co., 11 Misc.2d 834, 173 N.Y.S.2d 423 (Sup. Ct. 1958). Even if this court were to follow the reasoning of the first-mentioned jurisdictions, there is no showing of plaintiff's hostile intent so as to preclude him from inspection. Nevertheless, this court must follow the New Jersey decisions and it is therefore held that a director has an absolute, unqualified right to inspect the corporate books and records of account, irrespective of motive, and that in the instant case plaintiff is entitled to such inspection either with or without an attorney or accountant, as soon as conveniently possible. III In accordance with the provisions of N.J.S.A. 14A:6-9, on April 1, 1969 article III, paragraph 7 of the by-laws of the corporation was adopted which provided for the appointment of an executive committee, and on May 26, 1967 Fred B. Black, Jr., William E. Todd and Fred S. Broach were appointed to that committee. Plaintiff merely asserts his belief that the creation of the committee and its actions were in contravention of the aforesaid statute. In the absence of any proof to support his contention, the third count of the complaint is dismissed. IV In respect to plaintiff's fourth count, the present New Jersey law, N.J.S.A. 14A:3-1, provides: (1) Each corporation, subject to any limitations provided in this act or any other statute of this State, or in its certificate of incorporation, shall have power 98 * * * * * * * (d) to purchase, lease or otherwise acquire, own, hold, improve, use and otherwise deal in and with, real or personal property, or any interest therein, wherever situated. * * * * * * * * (i) to conduct its business, carry on its operations, and have offices and exercise the powers granted by this act anywhere in the universe. [Emphasis added] In State v. Garford Trucking, Inc., 4 N.J. 346 (1950), it was held that a corporation created and existing under the laws of New Jersey may have a "commercial domicile" or "business situs" elsewhere for taxation and other purposes. See also In re Roche, 16 N.J. 579 (1954). N.J.S.A. 14A:4-1 provides: (1) Every corporation organized for any purpose under any general or special law of this State * * * shall continuously maintain a registered office in this State, and a registered agent having a business office identical with such registered office. It is apparent, therefore, that a corporation may carry on its business in any state, subject to the provisions of N.J.S.A. 14A:4-1. Since defendant has the right to conduct its business in Florida, and no proof having been offered of the imminent necessity for the relief plaintiff has requested, the fourth count of the complaint is dismissed.	{ "pile_set_name": "FreeLaw" }
980 A.2d 294 (2009) STATE v. GRIGGS. No. 09-218. Supreme Court of Vermont. July 7, 2009. Appeal Disposed of Without Published Opinion or Memorandum Decision Affirmed; remanded.	{ "pile_set_name": "FreeLaw" }
FILED Mar 02 2020, 8:43 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James A. Masters Kevin E. Warren Nemeth, Feeney, Masters & Campiti, Benjamin M. Redgrave P.C. South Bend, Indiana South Bend, Indiana IN THE COURT OF APPEALS OF INDIANA New Nello Operating Co., LLC, March 2, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CC-603 v. Appeal from the St. Joseph Circuit Court CompressAir, The Honorable John E. Broden, Appellee-Plaintiff. Judge Trial Court Cause No. 71C01-1703-CC-826 Mathias, Judge. [1] CompressAir obtained a judgment of $44,689.66 against Nello, Inc., a corporation the parties now refer to as “Old Nello.” Upon learning that Old Nello’s business was continuing under the corporate entity of New Nello Operating Co., LLC (“New Nello”), CompressAir filed proceedings Court of Appeals of Indiana \| Opinion 19A-CC-603 \| March 2, 2020 Page 1 of 11 supplemental naming New Nello as a garnishee-defendant. In the proceedings supplemental, New Nello argued that it was not liable for the judgment entered against Old Nello. The trial court disagreed, finding that there had been a de facto merger of Old Nello and New Nello and that the latter was a mere continuation of the former. The trial court therefore entered judgment against New Nello in the amount of $44,689.66. New Nello appeals and claims that there was no de facto merger between Old Nello and New Nello and that the latter is not a mere continuation of the former. Concluding that the trial court did not clearly err in concluding that there had been a de facto merger, we affirm. Facts and Procedural History [2] The facts underlying this case are essentially undisputed. Old Nello was founded in 2002 by Dan Ianello (“Ianello”) and was in the business of manufacturing utility and cellular telephone towers. Old Nello’s officers were: Ianello, president; Jason Lambert (“Lambert”), Vice President of Engineering; Robert Rumpler (“Rumpler”), Vice President of Manufacturing; and Kevin Brisson (“Brisson”), Chief Financial Officer. These officers also owned approximately 95–99% of the shares of Old Nello. [3] In the summer of 2016, Old Nello consolidated its facilities in Bremen, Indiana and Ft. Worth, Texas, and its administrative offices in downtown South Bend to a new building on Sheridan Street in South Bend. The consolidation took longer, and cost more, than anticipated. This caused the company fiscal Court of Appeals of Indiana \| Opinion 19A-CC-603 \| March 2, 2020 Page 2 of 11 difficulties, and by the latter half of 2016, Old Nello was in dire financial straits; it had few liquid assets and was deeply in debt. Specifically, Old Nello had taken out a $10 million secured loan with Fifth Third Bank, a $3.4 million loan with a secondary secured creditor, Live Oak Capital (“Live Oak), and a $1.4 million debt obligation to the City of South Bend’s Industrial Revolving Loan Fund. The officers of Old Nello each executed personal loan guarantees in connection with the Fifth Third loan. On November 10, 2016, Fifth Third Bank sent a demand letter to Old Nello and Ianello personally, declaring that its notes were due and payable immediately. [4] Concerned that it would lose its investment in Old Nello, Live Oak contacted Michael Clevy (“Clevy”), of the private equity firm Beckner Clevy Partners, to see if there was a way to continue Old Nello’s business. Clevy explored several options, including continuing Old Nello and paying its way out of debt, having other investors put money into Old Nello, refinancing Old Nello’s debt with another lender, or asking other private individuals in the industry to invest in or purchase Old Nello. None of these options came to fruition, and Fifth Third was ready to foreclose upon its note and liquidate Old Nello’s assets. [5] In early 2016, CompressAir had installed thousands of feet of compressed air and oxygen piping within Old Nello’s South Bend facility. The cost of the work exceeded $87,000, and by the spring of 2017, approximately $39,000 remained unpaid to CompressAir. CompressAir’s controller attempted to work out a payment agreement with Old Nello but was unsuccessful. Accordingly, in Court of Appeals of Indiana \| Opinion 19A-CC-603 \| March 2, 2020 Page 3 of 11 March 2017, CompressAir filed suit against Old Nello seeking to recover the unpaid $39,000. By that summer, six other creditors had filed complaints seeking payment for outstanding bills. [6] In April or May of 2017, Clevy created New Nello Acquisition Co., to purchase Fifth Third’s note. Clevy bought Fifth Third’s $10 million note for $3.765 million, which was more than Clevy’s $3.1 million estimate of Old Nello’s liquidation value. New Nello Acquisition Co. then formed New Nello Operating Co. as a wholly-owned subsidiary. On November 14, 2017, New Nello Acquisition Co. and New Nello Operating Co. entered into a strict foreclosure agreement with Old Nello. Thereafter, New Nello conducted the same business as Old Nello, i.e., building utility and cellular towers, operated from the same physical location as Old Nello, and retained approximately ninety percent of Old Nello’s employees, including its officers, Ianello, Lambert, Brisson, and Rumpler. These officers, however, had no ownership interest in New Nello.1 There was no public announcement of New Nello’s assumption of Old Nello’s business to either the general public or the employees, for fear of marketplace upheaval. New Nello also operated under the name “Nello.” New Nello also used the same website as Old Nello and held itself out as the same company by claiming to have been founded in 2002. 1 The chief investors in New Nello are “Third Article Trust,” and “the Bancoff Family.” Tr. p. 42. Court of Appeals of Indiana \| Opinion 19A-CC-603 \| March 2, 2020 Page 4 of 11 [7] After its acquisition of Old Nello’s assets and business, New Nello negotiated with Old Nello’s vendors and creditors that it deemed were essential to the operation of the business and paid them. Included among the essential creditors were Ianello, Lambert, Brisson, and Rumpler; New Nello paid all obligations owed to them and released them from the personal guarantees they executed in favor of the note New Nello purchased from Fifth Third.2 Other creditors of Old Nello, were listed as “unassumed liabilities” in the strict foreclosure agreement. Appellant’s App. p. 67. In October 2017, Brisson continued to negotiate with CompressAir to come up with a payment plan. Even though Old Nello’s business had been assumed by New Nello by that time, Brisson never informed CompressAir of the transaction. [8] On December 1, 2017, the trial court granted summary judgment in favor of CompressAir in its complaint against Old Nello and entered judgment in the amount of $44,689.66. CompressAir did not learn about New Nello until after it obtained judgment against the now-defunct Old Nello. On February 26, 2018, CompressAir filed proceedings supplemental naming New Nello as a garnishee- defendant. CompressAir filed a second motion for proceedings supplemental on July 6, 2018, asking the trial court to enter judgment against New Nello as the successor to Old Nello. The trial court held an evidentiary hearing on the issue 2 Specifically, New Nello paid Ianello $5,496.57, Lambert $936.25, Brisson $13,293.08, and Rumpler $5,583.08. Appellant’s App. pp. 136–40. Court of Appeals of Indiana \| Opinion 19A-CC-603 \| March 2, 2020 Page 5 of 11 on November 29, 2018. At the hearing, Clevy testified that New Nello chose to pay only those creditors of Old Nello that were essential to running New Nello. [9] On February 13, 2019, the trial court entered findings of fact and conclusions of law determining that New Nello is a mere continuation of Old Nello and that there was a de facto merger of the companies. The trial court noted that New Nello runs the same business with the same name, the same employees, and from the same location as Old Nello. The court also noted that Old Nello’s former shareholders retained management roles in New Nello. The court entered judgment against New Nello in the full amount owed to CompressAir by Old Nello: $44,689.66. New Nello now appeals. Standard of Review [10] Our standard of review in cases where the trial court enters findings of fact and conclusions of law was set forth by this court in Koch Development Corp. v. Koch as follows: When a trial court enters findings and conclusions, we apply a two-tiered standard of review: we first determine whether the evidence supports the findings; we then determine whether the findings support the judgment. In deference to the trial court's proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. We do not reweigh the evidence, and we consider only the evidence favorable to the trial court's judgment. We also will not reassess witness credibility. The party appealing the trial court’s judgment must establish that the findings are clearly erroneous. Findings are clearly erroneous when a review Court of Appeals of Indiana \| Opinion 19A-CC-603 \| March 2, 2020 Page 6 of 11 of the record leaves us firmly convinced that a mistake has been made. We do not defer to conclusions of law, which are evaluated de novo. 996 N.E.2d 358, 369 (Ind. Ct. App. 2013) (citations and internal quotation marks omitted), trans. denied.3 Discussion and Decision [11] It has long been held that when one corporation purchases the assets of another, the buyer does not assume the debts and liabilities of the seller. Ziese & Sons Excavating, Inc. v. Boyer Const. Corp., 965 N.E.2d 713, 722 (Ind. Ct. App. 2012) (citing Sorenson v. Allied Prods. Corp., 706 N.E.2d 1097, 1099 (Ind. Ct. App. 1999)); see also Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1233 (Ind. 1994) (citing Markham v. Prutsman Mirror Co., 565 N.E.2d 385, 387 (Ind. Ct. App. 1991)). There are, however, four general exceptions to this rule against successor liability: (1) an implied or express agreement to assume liabilities; (2) a fraudulent sale of assets done for the purpose of evading liability; 3 CompressAir argues that we should apply a general judgment standard of review, citing Allstate Insurance Co. v. Kepchar, 592 N.E.2d 694 (Ind. Ct. App. 1992), trans. denied. In Kepchar, we noted that “findings of fact [are] improper in proceedings supplemental.” Id. at 696 (citing In re Marriage of Hudak, 428 N.E.2d 1333, 1335 (Ind. Ct. App. 1981)). The Kepchar court thus held that there was no error where the trial court denied a request for findings and conclusions in proceedings supplemental. Id. But the Kepchar court did not hold that the entry of findings and conclusions in proceedings supplemental was prohibited. And in the case cited by Kepchar, the court merely noted the rule that specific findings and conclusions are not required in proceedings supplemental. Hudak, 428 N.E.2d at 1335 (citing Hutchinson v. Trauerman, 112 Ind. 21, 25–26, 13 N.E. 412, 414 (1887)). We therefore cannot say that the trial court erred by entering specific findings and conclusions, even though it was not required to do so. Moreover, CompressAir would prevail under either standard. Court of Appeals of Indiana \| Opinion 19A-CC-603 \| March 2, 2020 Page 7 of 11 (3) a purchase that is a de facto consolidation or merger; or (4) where the purchaser is a mere continuation of the seller. Successor liability is implicated only when the predecessor corporation no longer exists, such as in the case of dissolution or liquidation in bankruptcy. Ziese, 965 N.E.2d at 722 (citing Sorenson, 706 N.E.2d at 1099); see also Winkler, 638 N.E.2d at 1233. [12] The trial court here determined that the third and fourth exceptions applied, i.e., that New Nello’s purchase of Old Nello’s business assets was a de facto merger, and that New Nello is a mere continuation of Old Nello. New Nello contends that the trial court erred on both accounts. [13] As stated by our supreme court in Cooper Industries, LLC v. City of South Bend, 899 N.E.2d 1274, 1288 (Ind. 2009), “[c]ourts sometimes treat asset transfers as de facto mergers where the economic effect of the transaction makes it a merger in all but name.” Factors supporting a finding of a de facto merger include: (1) continuity of ownership; (2) continuity of management, personnel, and physical operation; (3) cessation of ordinary business and dissolution of the predecessor as soon as practically and legally possible; and (4) assumption by the successor of the liabilities ordinarily necessary for the uninterrupted continuation of the business of the predecessor. Sorenson, 706 N.E.2d at 1100 (quoting Hernandez v. Johnson Press Corp., 388 N.E.2d 778, 780 (Ill. App. Ct. 1979)); see also Cooper Indust., 899 N.E.2d at 1288 (listing pertinent findings that support a de facto merger as “continuity of the Court of Appeals of Indiana \| Opinion 19A-CC-603 \| March 2, 2020 Page 8 of 11 predecessor corporation’s business enterprise as to management, location, and business lines; prompt liquidation of the seller corporation; and assumption of the debts of the seller necessary to the ongoing operation of the business.”) (citations omitted). [14] The facts of the present case clearly support a finding of a de facto merger. New Nello continued Old Nello’s business enterprise as to management, location, and area of business. New Nello continued to refer to itself as “Nello,” and its website stated that it was founded in 2002, the year Old Nello was founded. Moreover, New Nello assumed the debts of Old Nello that it deemed necessary to continue the business. All of these factors support a finding of a de facto merger. [15] Even though there was no continuity of ownership, we do not consider this to be fatal to a finding of a de facto merger. See Lippens v. Winkler Backereitechnik GmbH, 31 N.Y.S.3d 340, 343 (N.Y. App. Div. 2016) (“while factors such as shareholder and management continuity will be evidence that a de facto merger has occurred . . . those factors alone should not be determinative[.]”); Gallenberg Equip., Inc. v. Agromac Int’l, Inc., 10 F. Supp. 2d 1050, 1055 (E.D. Wis. 1998) (noting that “courts have imposed successor liability without requiring continuity of corporate ownership.”), aff’d, 191 F.3d 456 (7th Cir. 1999). And even though there was no continuity of ownership in the present case, there was continuity of management, as the entire management team from Old Nello continues in the same roles in New Nello. Cf. Sorenson, 706 N.E.2d at 1100 Court of Appeals of Indiana \| Opinion 19A-CC-603 \| March 2, 2020 Page 9 of 11 (upholding finding that there was no de facto merger where the shareholders of the old corporation “never possessed the authority to participate fully in the management function” of the new corporation). [16] And although Old Nello was apparently never officially dissolved, all of its assets were acquired by New Nello. Old Nello is therefore a defunct corporation, even if not legally dissolved. Knapp v. N. Am. Rockwell Corp., 506 F.2d 361, 367 (3d Cir. 1974) (holding that sale of old corporation’s assets to new corporation was a de facto merger even though the old corporation continued its existence for eighteen months after the exchange). Nor do we find significant that Old Nello is still liable for the Fifth Third note bought by New Nello; Clevy testified that New Nello did not expect the Fifth Third note to be paid. Tr. p. 46. For purposes of successor liability, Old Nello effectively no longer exists; it has no assets, having sold them to New Nello. Old Nello continues as an entity in name only. See Chicago, I. & S.R. Co. v. Taylor, 183 Ind. 240, 108 N.E. 1, 3 (1915) (“[A] corporation which takes, as owner, all the property and assets of another corporation, which thus practically ceases to exist except as a paper organization, is liable in equity for the obligations of the old company, at least to the amount of the assets converted.”) (citations omitted). Court of Appeals of Indiana \| Opinion 19A-CC-603 \| March 2, 2020 Page 10 of 11 [17] Viewing the facts in favor of the trial court’s judgment, we are unable to say that the trial court clearly erred in concluding that there was a de facto merger between Old Nello and New Nello.4 Conclusion [18] The trial court did not clearly err in determining that there was a de facto merger between Old Nello and New Nello. The de facto merger exception to the general rule that a corporation that purchases the assets of another corporation does not assume the liabilities of the former corporation therefore applies, and the trial court properly found that New Nello is liable for the $44,689.66 judgment obtained by CompressAir against Old Nello. Accordingly, we affirm the judgment of the trial court. [19] Affirmed. Kirsch, J., and Bailey, J., concur. 4 Because we conclude that the trial court did not err in determining that there was a de facto merger between Old Nello and New Nello, we need not address New Nello’s second argument that the trial court clearly erred in concluding that New Nello was merely a continuation of Old Nello. That is, because the “merger” exception applies, there is no reason to address whether the “continuation” exception also applies. Court of Appeals of Indiana \| Opinion 19A-CC-603 \| March 2, 2020 Page 11 of 11	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED March 13, 2009 No. 08-41001 Summary Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, v. OMAR GUADALUPE PEREZ-BARRA, Defendant–Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 7:08-CR-20-1 Before KING, DENNIS, and OWEN, Circuit Judges. PER CURIAM:* Omar Guadalupe Perez-Barra appeals the sentence imposed following his guilty-plea conviction for illegal reentry after deportation, a violation of 8 U.S.C. § 1326(a). Perez-Barra challenges the imposition of an enhancement of sixteen offense levels pursuant to the United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). This enhancement was based on a determination that Perez- Barra’s prior conviction for indecency with a child under Texas Penal Code * 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. 08-41001 § 21.11(a)(1) constituted “sexual abuse of a minor” and, thus, a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). We have previously held that a conviction for indecency with a child under Texas Penal Code § 21.11(a)(1) qualifies as a crime of violence. United States v. Najera-Najera, 519 F.3d 509, 512 (5th Cir. 2008). Perez-Barra also argues that his sentence was unreasonable and that the district court failed to adequately explain his sentence. When, as in this case, a district court chooses to impose a sentence within a properly calculated guidelines range, that sentence is entitled to a presumption of reasonableness, Rita v. United States, 127 S. Ct. 2456, 2462 (2007), and little explanation is required, United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). We conclude that Perez-Barra has not rebutted the presumption of reasonableness and that the district court’s explanation was sufficient. AFFIRMED. 2	{ "pile_set_name": "FreeLaw" }
371 Mich. 593 (1963) 124 N.W.2d 795 PEOPLE v. DOBINE. Calendar No. 101, Docket No. 50,054. Supreme Court of Michigan. Decided December 2, 1963. Rehearing denied April 6, 1964. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Samuel H. Olsen, Prosecuting Attorney, Samuel J. Torina, and Dominick R. Carnovale, Assistant Prosecuting Attorneys, for the people. Goodman, Crockett, Eden, Robb & Philo (Claudia H. Shropshire, of counsel), for defendant. CARR, C.J. Defendant was tried before a jury in the recorder's court of the city of Detroit on charges of the unlawful possession of narcotics and the unlawful sale thereof.[] The date of the offenses was alleged as March 20, 1961. The jury returned verdicts of guilty on both charges and sentences were imposed. Defendant's motion for a new trial was denied and, on leave granted, he has appealed to this Court. On behalf of appellant it is argued that he was without the assistance of counsel at the preliminary examination on the charges against him, and that error was committed in this respect amounting to a denial of due process. The transcript of the proceedings had on the examination indicates that an attorney undertook to represent defendant, prior counsel having withdrawn from the case, but apparently 595 without proper authorization to do so. Defendant requested that he be allowed to defend himself. It appears that he did so, cross-examining the witnesses for the people and indicating some degree of familiarity with court procedure. It does not appear that on the examination he requested the appointment of an attorney, although at the direction of the judge conducting the proceeding the counsel who had appeared was directed to take his place beside defendant, presumably for the purpose of rendering any assistance that the latter might request or require. The examination resulted in defendant being bound over on both of the charges against him. On his arraignment in recorder's court, following the examination, defendant pleaded not guilty. By so doing he waived any defect, if such there was, with reference to the preliminary examination. Citing several prior decisions, it was said in People v. Tate, 315 Mich 76, 79, 80: "The law has long been settled in this State that after proper arraignment in the circuit court and a plea of guilty or a plea of not guilty by defendant the prior proceedings had before an examining magistrate cannot be questioned; nor can defendant complain even though there has been no examination." The above statement was quoted with approval and followed in People v. Paugh, 324 Mich 108, 112. It was also quoted in the more recent decision of this Court in People v. Barmore, 368 Mich 26, 31. In the case at bar appellant's attempt to raise the question based on the alleged failure of the judge conducting the preliminary examination to appoint counsel satisfactory to defendant comes too late. It does not appear that he was prejudiced because his request to defend himself was granted, especially in view of the fact that an attorney was seated at his 596 side pursuant to the direction of the judge. If he needed assistance he might have obtained it: We think the claim of error in this regard is without substantial merit but, in any event, under the rule recognized in the decisions above cited he waived the right to raise the question by pleading to the merits of the information. It is further claimed in appellant's behalf that error resulted from the failure of the court to strike out certain testimony adduced on cross-examination of the people's principal witness by the attorney for appellant. The witness in question was a woman who had been arrested previously on a charge of violating the narcotics law, and who apparently gave information to police officers with reference to defendant's activities. An arrangement was made whereby she undertook to go to the apartment occupied by defendant and there make a purchase of narcotics from him. The testimony in the record before us discloses that she was searched by a matron of the police department before starting on the mission in question, and that she was given money by police officers with which to make the contemplated purchase. Police officers watched her enter the apartment building where defendant lived, and waited until she came out later with capsules in her possession containing heroin which she claimed to have purchased from defendant. As a witness on the trial the woman stated that she found defendant in his apartment, that she asked for the narcotic, that he said in substance that he did not have it but would procure it for her, that he left the apartment, and that, after a lapse of time, he returned with a powder which he proceeded to place in the capsules that she delivered to the police. That said capsules contained heroin was established on the trial by the testimony of a chemist. On the preliminary examination the witness had indicated 597 in substance that defendant, when she had requested the heroin, had gone into the bedroom of his apartment to procure it. On her cross-examination on the trial defendant's counsel dwelt at some length on the contradictory statements, cross-examining the witness in an apparent attempt to discover her reason for changing her testimony. Having established such testimony, counsel proceeded to interrogate her as follows, receiving the answers indicated: "Q. All right. Now, were they true, your responses to them? "A. Because he no, because he went out and got it. But the reason when he went to his bedroom so often, I got. "Q. I just asked you "The Court: Wait, let her answer the question. "A. Until I was thinking that he went to his bedroom this time. "Q. (By Mr. Hubbell): Uh-huh. Now, you want to change that testimony, is that right? "A. No, I am not trying to change it, but I said he usually did go to his bedroom. So I got confused, and I thought he went to his bedroom this time." It is claimed that defendant was prejudiced because jurors might have inferred from the answer of the witness that she had made previous purchases of narcotics from defendant. No motion was made to strike the answer on the ground that it was not responsive nor was the court requested to instruct the jury to disregard it. It is insisted, however, that the failure of the judge to take such action constituted reversible error. The record indicates that the statement in question was made by the witness by way of explanation to defendant's counsel as to her reason for stating on the preliminary examination that defendant had gone into his bedroom to procure the heroin. It may not be said that it was wholly unresponsive, nor does the record indicate 598 that it was made intentionally. Rather, it was drawn forth from the witness by the pressing cross-examination in which counsel indulged. Furthermore, the language used did not contain a direct charge as to previous purchases. Had the trial judge pursued the course that it is now argued he should have observed, the jurors might well have concluded that he interpreted the answer of the witness as meaning that she had bought heroin before in defendant's apartment, and that he had gone into his bedroom to obtain it for her. In view of the circumstances under which the witness made the reply, above quoted, to counsel's questions, we conclude that the claim of error is not well-founded. In People v. Guise, 262 Mich 72, 73, it was said: "Error cannot be assigned upon testimony received at the trial without objection." The further claim is made by counsel for appellant that the testimony was insufficient to justify a verdict of guilty beyond a reasonable doubt. The claim apparently is that the jury should not have accepted the testimony given by the people's witness who made the alleged purchase of narcotics from the defendant. However, her testimony was not in dispute insofar as the facts involved in the purchase were concerned. Defendant did not testify in his own behalf. The question sought to be raised as to the sufficiency of the proof actually involves the credibility of the witness. The testimony in the case, including that of the witness herself, disclosed that she was a so-called "informer," and that she was employed by the police for the purpose of detecting violations of the narcotics law of the State. As the trier of the facts the jury was the final judge as to her credibility. The verdicts returned indicated the conclusions reached. 599 We find no reversible error in the case, and the conviction is affirmed. DETHMERS, KELLY, BLACK, KAVANAGH, SOURIS, and O'HARA, JJ., concurred with CARR, C.J. SMITH, J., concurred in result. NOTES [*] See CLS 1956, §§ 335.51, 335.52 (Stat Ann 1957 Rev §§ 18.1122, 18.1123). REPORTER.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1844 CHANDER KANT; ASHIMA K. KANT, Plaintiffs - Appellants, v. JAY L. COHEN, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:08- cv-00318-RWT) Submitted: January 6, 2012 Decided: March 8, 2012 Before MOTZ, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Chander Kant, Ashima K. Kant, Appellants Pro Se. Jay L. Cohen, Appellee Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Chander Kant and Ashima K. Kant appeal the district court’s order affirming the clerk’s order taxing costs. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Kant v. Cohen, No. 8:08-cv-00318-RWT (D. Md. filed July 11, 2011; entered July 12, 2011). 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	{ "pile_set_name": "FreeLaw" }

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