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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
December 16, 2003 Session
STATE OF TENNESSEE v. MUHAMMED NURIDDEN1
Direct Appeal from the Criminal Court for Hamilton County
No. 239726 Rebecca J. Stern, Judge
No. E2003-00996-CCA-MR3-CD
April 20, 2004
The appellant, Muhammed Nuridden, was found guilty by a jury in the Hamilton County Criminal
Court of possession of more than .5 grams of cocaine with the intent to sell or deliver. Additionally,
the appellant pled guilty to driving on a revoked license and possession of marijuana. The appellant
received a total effective sentence of nine years in the Tennessee Department of Correction. On
appeal, the appellant raises numerous issues for our review, including evidentiary issues and the
sufficiency of the evidence. Upon our review of the record and the parties’ briefs, we reverse the
appellant’s conviction for possession of more than .5 grams of cocaine with the intent to sell or deliver
and remand for new trial.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and
Remanded.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.
Lloyd A. Levitt, Chattanooga, Tennessee, for the appellant, Muhammed Nuridden.
Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
William H. Cox, District Attorney General; and Barry A. Steelman, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
On March 13, 2002, the Hamilton County Grand Jury returned an indictment charging the
appellant with possession of .5 grams or more of cocaine with the intent to sell or deliver, driving on
1
The indictment also reflects the following aliases: “Mustafa J. Nuridden,” “Mohomib Nardain,” and “Eric
Jason Spoon.”
a revoked license, possession of marijuana, and assault. The charges arose following a stop of the
appellant in the Emma Wheeler Homes in Chattanooga. Prior to trial, the appellant filed a motion to
suppress the crack cocaine seized pursuant to a search of his person. The trial court conducted a
hearing on the appellant’s motion on July 22, 2002.
A. Motion to Suppress
At the hearing on the motion, the State called Officer Adam Patterson of the Chattanooga Police
Department as its first witness. Officer Patterson related that he encountered the appellant on October
8, 2001, during a traffic stop. After stopping the vehicle, Officer Patterson called his dispatcher to
inquire about the status of the appellant’s driver’s license. The dispatcher informed him that the
appellant’s license had been revoked as a result of a conviction for driving under the influence.
Accordingly, Officer Patterson arrested the appellant for driving on a revoked license.
Next, the State called Detective Ralph Kenneth Freeman with the Chattanooga Police
Department. Detective Freeman testified that at the time of the hearing he was an investigator with
the “major crimes” unit of the Chattanooga Police Department, but he had previous experience in
working with narcotics investigations.
In February 2002, Detective Freeman was working a second job as a security officer for the
Chattanooga Housing Authority. Specifically, Detective Freeman was assigned to patrol the Emma
Wheeler Homes housing project. Detective Freeman had been informed by the housing authority to
particularly enforce “noise violations and traffic issues.” Detective Freeman patrolled in an unmarked
Lumina with a blue light visible in the window, and he wore his police uniform.
At approximately 11:30 or 11:45 a.m. on February 4, 2002, Detective Freeman heard “a loud
thump, boom, boom, loud thump. Some type of music.” Detective Freeman realized that the noise
was coming from a car stereo, and he pursued the vehicle from which the noise was emanating.
The vehicle soon parked in front of a residence in the Emma Wheeler Homes housing project
and the appellant exited the vehicle. Detective Freeman stated that he did not know the appellant was
driving the vehicle until he exited the car. However, he recognized the appellant immediately upon his
exit from the vehicle. Detective Freeman explained that he had previously made a traffic stop of the
appellant and was aware that he had been charged with “shooting into a home.” Moreover, he was
aware that the appellant had been “charged with narcotics in the past.” Additionally, the appellant had
been under investigation by the Chattanooga Police Department, and Detective Freeman had heard other
officers say “daily” that the appellant was driving on a revoked license. Accordingly, Detective
Freeman wanted to talk to the appellant about the noise and ask for the appellant’s driver’s license.
After exiting his vehicle, the appellant walked to a residence and knocked on the door.
Detective Freeman knew that the residence belonged to a female who was not home at the time. The
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door was answered by a man who identified himself as “Lawaun Jones.”2 Detective Freeman parked
close to the appellant and got out of his vehicle. Jones drew the appellant’s attention to the detective.
Detective Freeman verbally instructed the appellant to approach and also motioned for him to do so.
Detective Freeman testified that the appellant “looked at me and he just ignored me and got back into
his vehicle.”
As Detective Freeman approached the appellant’s vehicle, the appellant began “reaching . . .
somewhere inside the vehicle.” Fearing that the appellant was reaching for a weapon, Detective
Freeman “[g]ot him out of the vehicle. At that time I placed him – handcuffs on him and I patted him
down.” Detective Freeman arrested the appellant because of the noise violation and because the
appellant could not produce a valid driver’s license. Detective Freeman explained that he placed the
appellant in handcuffs because he was being “so combative” and had a “propensity for violence.”
Detective Freeman stated that during a “pat-down” he felt “[w]hat I perceived to be a narcotic” in the
right pocket of the appellant’s pants. Detective Freeman described the object as “a little hard rock
substance so, you know, I figured it was cocaine.” The appellant’s hands were restrained behind his
back. Nevertheless, he attempted to reach around toward his right pants pocket. Detective Freeman
testified, “At that point I reached into his pocket to pull out what I initially felt in his pocket and I pulled
out crack cocaine.” Additionally, Detective Freeman looked into the appellant’s vehicle and noticed
in plain view what appeared to be marijuana in the floorboard in front of the passenger seat of the
appellant’s vehicle.
Detective Freeman sent the substance he withdrew from the appellant’s pocket to the Tennessee
Bureau of Investigation (TBI) crime laboratory. The report from the laboratory revealed that the
substance was 3.6 grams of cocaine. Detective Freeman stated that he could not remember how many
“rocks” of crack cocaine the appellant possessed. However, upon being pressed by defense counsel,
the detective estimated that there could have been twenty-five to thirty-five “rocks.” Detective Freeman
opined that the crack cocaine may have had a street value of $2500.
The trial court overruled the appellant’s motion to suppress. Specifically, the trial court found
that “the articulable suspicion was when he knew – that he had reasonable and articulable suspicion to
detain him because of his information concerning [the] possibility that he was driving on revoked
because he recognized him and it was [the appellant] at this point and everything else follows.”
Subsequently, a trial was held on this matter.
B. Trial
Prior to trial, the appellant pled guilty to driving on a revoked license and possession of
marijuana. Additionally, the appellant stipulated that he possessed the crack cocaine; however, the
2
Detective Freeman stated that he later learned that the man had given a false name.
-3-
appellant maintained that he did not possess the crack cocaine with the intent to sell or deliver.3 The
appellant made no concessions regarding the assault charge.4
Detective Freeman testified at the appellant’s trial. His testimony largely mirrored the
testimony he gave at the suppression hearing. He stated that he was working for the housing authority
on February 4, 2002, and was on patrol when he heard the appellant’s loud stereo. He observed the
appellant leave his car with the motor running and approach the door of the residence. The appellant
also left the car stereo blasting. At the direction of the man who opened the door, the appellant
looked at Detective Freeman. The detective instructed the appellant to approach and made a “come
here” gesture. The appellant ignored Detective Freeman and got back into his car. The appellant
began reaching in the vehicle, and Detective Freeman, for his safety, removed the appellant from the
vehicle and conducted a pat-down search of the appellant. The appellant did not display any
identification when Detective Freeman requested it. Detective Freeman also saw marijuana in the
floorboard of the appellant’s vehicle when the appellant exited the vehicle.
During the pat-down, Detective Freeman felt what he believed to be drugs in the right pocket
of the appellant’s pants. The appellant, whose hands were cuffed behind his back, began reaching
toward that pocket. Thereupon, Detective Freeman removed the item from the pocket and discovered
that it was a “cookie” of crack cocaine wrapped in a plastic bag. Detective Freeman discovered no
paraphernalia for the use of crack cocaine on the appellant’s person or in his vehicle. Additionally,
the appellant was “pretty coherent” and had no signs of being a frequent user of crack cocaine.
A further search of the appellant revealed $526 in cash in the following denominations: one
one hundred dollar bill, seventeen twenty dollar bills, eight ten dollar bills, one five dollar bill, and
one one dollar bill. Detective Freeman testified that he had experience with the drug trade and was
aware that crack cocaine was most commonly sold in ten or twenty dollar denominations. At the time
of his arrest, the appellant told Detective Freeman that he was unemployed.
Detective Freeman acknowledged that at the suppression hearing he had estimated that the
appellant had twenty-five or thirty-five rocks of crack cocaine in his possession. However, he
explained that the “cookie” discovered on the appellant could be broken down into twenty-five or
thirty-five rocks. Detective Freeman admitted that he did not search the residence the appellant was
visiting for drug paraphernalia. Detective Freeman maintained that he had “never come across a
junkie with a chunk like that.”
Adam Gray, a forensic chemist with the TBI crime laboratory, testified that he examined the
“cookie” found in the appellant’s possession and determined that it was 3.6 grams of cocaine base.
Gray maintained that the average crack “rock” sent to the laboratory weighed .1 or .2 grams.
3
Immediately prior to trial, the appellant informed the trial court that he was “pleading guilty to simple
possession.” However, the record clearly reflects that the appellant was stipulating his possession of the crack cocaine,
not entering a guilty plea. See Tenn. R. Crim. P. 11.
4
The trial court granted the appellant a judgment of acquittal on the assault charge.
-4-
Over the appellant’s objection, the trial court allowed Officer Johnny Martin with the
Chattanooga Police Department to testify that he had arrested the appellant on May 17, 2000. At the
time of the arrest, the appellant possessed a large amount of crack cocaine. Officer Martin stated, “It
was packaged in, you know, sandwich bag that you cut off into many different size rocks, you know,
you can sell them for tens or twenties, depending on what size the rock was and they were cut up in
different ones like that.” Officer Martin also discovered that the appellant possessed $480 in cash,
consisting primarily of ten and twenty dollar bills. The appellant admitted to Officer Martin that he
was unemployed at the time of his arrest. At the conclusion of Officer Martin’s testimony, the trial
court instructed the jury that they were not to consider the testimony as propensity evidence, but they
could consider the testimony as proof of the appellant’s intent on February 24, 2002.
Brent Trotter, a forensic chemist with the TBI crime laboratory, testified that he examined the
substance seized by Officer Martin on May 17, 2000. Trotter stated that the substance was 11.4
grams of cocaine.
The appellant also objected to the testimony of Officer Jerry Ryke Merrill regarding another
unrelated charge. The trial court overruled the objection and allowed Officer Merrill to testify.
Officer Merrill stated that on August 4, 2001, he conducted a traffic stop of the appellant. A search
of the appellant’s vehicle revealed three “fairly large rocks” of a substance Officer Merrill believed
to be crack cocaine. Officer Merrill never submitted the substance to a laboratory for testing. During
the stop of the appellant, Officer Merrill also discovered that the appellant possessed $399.86.
Officer Merrill ultimately charged the appellant with simple possession. At the conclusion of Officer
Merrill’s testimony, the trial court again gave the limiting instruction that the testimony was to be
considered only for proof of the appellant’s intent.
The State also presented testimony from Robert C. Chester, Jr., an agent with the Drug
Enforcement Agency (DEA). Agent Chester testified that he had twenty years experience with the
DEA and, in connection with his duties as a DEA agent, he had bought and sold cocaine. Agent
Chester maintained, “Crack cocaine is broken up in rocks and distributed in rock quantity or depending
on if they want to buy sixteenths, or they want to buy an eight ball or a quarter ounce or whatever.”
Agent Chester explained that in street terms a “twenty” is a twenty dollar piece of crack cocaine. By
the same token, a “dime” is a ten dollar piece of crack cocaine. Agent Chester also explained that
crack cocaine is usually sold in ten and twenty dollar increments. Agent Chester further stated that
“ten rocks is basically equaling one gram of cocaine,” meaning that one rock is typically .1 gram.
When asked about the cash found in the appellant’s possession on February 4, 2002, Agent Chester
theorized, “Well, the denominations are consistent with, you know, lower level drug sales. Twenties,
the most were twenties and tens.”
Specifically referring to the market for drugs in Chattanooga, Agent Chester opined that 3.6
grams of crack cocaine could be broken into thirty-six to forty “rocks.” The rocks could then be sold
for ten or twenty dollars each, making the street value of 3.6 grams of crack cocaine worth between
$360 and $720. Agent Chester stated that people make smaller “rocks” to smoke by chipping away
at bigger “rocks.”
-5-
Agent Chester testified that he had witnessed people smoking as little as .036 of a “rock” or
as much as a gram. Accordingly, it was possible for 3.6 grams to be used in one day, depending upon
the number of people using and the “craving” or “appetite” of the people involved. Agent Chester also
stated that while it would be possible for one person to smoke ten “rocks” in one day, such person
would be an addict, not a casual user. He maintained that crack cocaine was “very addictive.”
David Vance was the first witness to testify on behalf of the appellant. Vance stated that he
worked in construction and obtained jobs from subcontractors. Vance sometimes employed five or
six people at a time. The appellant worked for him from November 2001 to February 2002, earning
nine dollars an hour as a general laborer. Vance did not keep records of what he paid his workers
because “I just pay off cash because that’s how I am paid for the jobs that I do.” He further stated that
he paid his workers at the completion of a job or every Friday. Vance asserted that if he had paid the
appellant over $200, “he might had a hundred, twenties and tens like that, broken down.” Vance
opined that the appellant worked twenty-five or thirty hours a week, depending on the work available
and the weather.
Vance testified that he never saw the appellant use cocaine on the job or appear to be under the
influence of any intoxicating substance. Moreover, Vance never saw the appellant in possession of
crack cocaine. Vance stated that to his knowledge the appellant did not have an operable vehicle;
instead, Vance would pick up the appellant and take him to work. However, Vance was aware that
the appellant’s father gave the appellant a yellow 1969 Impala which the appellant sold around the first
of 2002.
Jeremy Houston was the final witness to testify on behalf of the appellant.5 Houston admitted
that he was convicted of robbery in 2001. Houston testified that the appellant called him at 7:30 or
8:00 a.m. on February 4, 2002, then picked him up at approximately 9:00 a.m. Houston and the
appellant began smoking marijuana laced with crack cocaine. The two men decided to visit someone
living in Emma Wheeler Homes. Houston stated, “We had smoked two blunts, while we was riding
. . . . We was fixing to smoke another one, when we had got to the house.” Houston explained that
he and the appellant were going to the residence to see “Tommy” and “get high some more.” Houston
recalled that “we was playing the music loud.” When they arrived at the residence, they left the engine
running while they checked to see if “Tommy” was home.
Houston stated that once they were at “Tommy’s” residence, the appellant “[t]ook blunts out
of his pocket and went back outside to cut the car off or whatever and then we heard like a car slam
on its brakes. I looked out the window and I saw the Officer right there . . . with his gun on him.”
Houston thought that Detective Freeman was “fixing to kill” the appellant “until I saw his uniform
because he was in an unmarked car or whatever and the way his tone of voice and the type of stuff he
was saying, I thought it was like something was going on like they was into it. I looked, I was like,
man, that’s the police, you know, it was just crazy.”
5
Houston also used the name “Jeremy Little.”
-6-
Houston testified that he had bought and sold cocaine and was aware of its street value. He
stated that while one gram of crack cocaine was worth $40 or $50, the appellant had an “eight ball,”
which could be purchased for $120 “at the most.” Houston maintained, “If you was going to use it,
you wouldn’t break it up into rocks, you know. But you get four or five rocks per gram.” Accordingly,
3.6 grams of crack cocaine would yield twelve to fifteen “rocks.”
Houston testified that at the beginning of January 2002, the appellant sold a yellow 1970
Impala that his father had given him. Houston was with the appellant when he sold the vehicle, and
he knew that the appellant was paid $1200 in cash from someone named “Stephen.”
Based upon the foregoing proof, the jury convicted the appellant of possession of .5 grams or
more of cocaine with the intent to sell or deliver. On appeal, the appellant raised the following issues
for our review: whether the trial court erred in overruling the appellant’s motion to suppress; whether
the trial court erred in admitting the testimony of Officers Martin and Merrill regarding prior bad acts
of the appellant; whether the trial court erred in overruling the appellant’s objection to a statement
made in the State’s closing argument; and whether the trial court erred in denying the appellant’s
motion for a judgment of acquittal.
II. Analysis
A. Motion to Suppress6
In reviewing a trial court’s determinations regarding a suppression hearing, “[q]uestions of
credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18,
23 (Tenn. 1996). Thus, “a trial court’s findings of fact in a suppression hearing will be upheld unless
the evidence preponderates otherwise.” Id. Nevertheless, appellate courts will review the trial court’s
application of law to the facts purely de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001), cert.
denied, 534 U.S. 948, 122 S. Ct. 341 (2001). Furthermore, the State, as the prevailing party, is
“entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well
as all reasonable and legitimate inferences that may be drawn from the evidence.” Odom, 928 S.W.2d
at 23. Moreover, we note that “in evaluating the correctness of a trial court’s ruling on a pretrial
motion to suppress, appellate courts may consider the proof adduced both at the suppression hearing
and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).
Both the Fourth Amendment to the United States Constitution and Article I, Section 7 of the
Tennessee Constitution provide protection for citizens against “unreasonable searches and seizures.”
Generally, a warrantless search is considered presumptively unreasonable, thus violative of
6
On appeal, the State maintains that the appellant “entered a guilty plea to the charge of possession of cocaine”
and “failed to reserve a certified question of law” regarding his suppression issue. Therefore, the State argues, the
appellant “has waived this issue.” However, as we earlier noted, the appellant entered into a stipulation of fact, not a
guilty plea. Accordingly, the appellant was not required to certify a question of law in accordance with Rule 37 of the
Tennessee Rules of Criminal Procedure in order to seek appellate review of this issue.
-7-
constitutional protections. See State v. Walker, 12 S.W.3d 460, 467 (Tenn. 2000). However, a
warrantless search and seizure may be reasonable if it falls within the limited exceptions to the warrant
requirement. See State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). One such exception is an
investigatory stop, and subsequent frisk, as authorized by Terry v. Ohio, 392 U.S.1, 27, 88 S. Ct. 1868,
1880 (1968). See Yeargan, 958 S.W.2d at 630.
“It is well-established that a police officer may make an investigatory stop when the officer has
a reasonable suspicion, supported by specific and articulable facts, that a criminal offense has been or
is about to be committed.” State v. Bridges, 963 S.W.2d 487, 492 (Tenn. 1997) (citing Terry, 392 U.S.
at 21, 88 S. Ct. at 1880). Additionally, Terry authorizes a protective frisk if “the police officer has a
reasonable suspicion based on specific and articulable facts that the suspect is armed.” Id. The facts
supporting an officer’s reasonable suspicion may be derived from information from other law
enforcement personnel or agencies, information from citizens, known patterns of criminal offenders,
or deductions based upon an officer’s experience. Id.; see also State v. Winn, 974 S.W.2d 700, 703
(Tenn. Crim. App. 1998).
A protective frisk is authorized upon a law enforcement officer’s reasonable belief that the
suspect may be armed with a dangerous weapon or is “otherwise . . . dangerous when the citizen is
detained.” State v. Curtis, 964 S.W.2d 604, 612-13 (Tenn. Crim. App. 1997). Accordingly, courts
have deemed frisks reasonable when the suspected crime typically involves the use of a weapon; e.g.
“a robbery, burglary, rape, assault with a weapon, homicide, and large scale narcotics trafficking.”
Winn, 974 S.W.2d at 703. However, even if the suspected crime does not typically involve the use
of a weapon, the protective frisk may still be justified if the following “other circumstances” are
present:
“[A] characteristic bulge in the suspect’s clothing; observation of an
object in the pocket which might be a weapon; an otherwise
inexplicable sudden movement toward a pocket or other place where a
weapon could be concealed; an otherwise inexplicable failure to
remove a hand from a pocket; backing away by the suspect under
circumstances suggesting he was moving back to give himself time and
space to draw a weapon; awareness that the suspect had previously been
engaged in serious criminal conduct; awareness that the suspect had
previously been armed; [and] discovery of a weapon in the suspect’s
possession.”
Id. at 704 (quoting Wayne R. LaFave, Search and Seizure, § 9.5(a) (3rd ed. 1996 and Supp. 1997)).
In the instant case, Detective Freeman testified at both the suppression hearing and at trial that
the stereo of the appellant’s vehicle was extremely loud. Therefore, he pursued the vehicle in order
to ask the driver to turn down the music. See State v. Brent Allen Blye, No. 03C01-9508-CC-00245,
1996 WL 414412, at *2 (Tenn. Crim. App. at Knoxville, July 23, 1996). Detective Freeman
recognized the appellant when he exited the vehicle, and he suspected that the appellant was driving
-8-
on a revoked license. Detective Freeman knew from “intelligence at the police department” that the
appellant did not have a valid driver’s license. Specifically, Detective Freeman testified, “I had
discussed numerous times with other officers about him not having a valid license.” The detective
stated that these discussions occurred “possibly daily.” Therefore, Detective Freeman had reasonable
suspicion based upon specific and articulable facts that the appellant was committing a crime.
Accordingly, an investigatory stop was warranted. Next, we turn to whether Detective Freeman was
justified in performing a protective frisk.
Detective Freeman testified that initially he instructed the appellant to approach him. The
appellant ignored Detective Freeman and got into his car. When Detective Freeman approached the
appellant’s vehicle, he noticed the appellant “reaching” around inside the vehicle. Detective Freeman
testified that he knew “about a prior episode of violence in which [the appellant] was charged with
shooting into a home.” Based upon that information, Detective Freeman was concerned that the
appellant “possibly carried a handgun.” Therefore, we conclude that Detective Freeman was justified
in performing a protective frisk of the appellant.
Although the frisk of the appellant did not reveal the presence of weapons, Detective Freeman
did discover a “cookie” of crack cocaine in the right pocket of the appellant’s pants. In Minnesota v.
Dickerson, 508 U.S. 366, 113 S. Ct. 2130 (1993), the United States Supreme Court held that “if an
officer detects contraband through the sense of touch during a valid Terry frisk, the officer may seize
the contraband.” Bridges, 963 S.W.2d at 493. The Dickerson court explained:
If a police officer lawfully pats down a suspect’s outer clothing and
feels an object whose contour or mass makes its identity immediately
apparent, there has been no invasion of the suspect’s privacy beyond
that already authorized by the officer’s search for weapons; if the object
is contraband, its warrantless seizure would be justified by the same
practical considerations that inhere in the plain view context.
Dickerson, 508 U.S. at 375-76, 113 S. Ct. at 2137 (footnote omitted). Accordingly, an officer may
appropriately seize contraband under the “plain feel” doctrine if
1) a prior valid reason exists for the intrusion, i.e., the patdown must be
permissible under Terry; 2) the contraband is detected while the Terry
search for weapons legitimately is still in progress; and, 3) the
incriminating nature of the object perceived by the officer’s sense of
touch is immediately apparent giving the officer probable cause to
believe the object is contraband prior to its seizure.
Bridges, 963 S.W.2d at 494. Generally, “[p]robable cause exists when the facts and circumstances
within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that
the item may be contraband.” Id. In determining probable cause, courts must consider the totality of
the circumstances. See State v. Cothran, 115 S.W.3d 513, 524 (Tenn. Crim. App. 2003).
-9-
During the frisk, Detective Freeman “felt . . . a little hard rock substance so, you know, I
figured it was cocaine.” The detective explained that in his experience as a narcotics officer he had
located cocaine on suspects “[p]robably hundreds of times” and was familiar with the feel of crack
cocaine. Additionally, Detective Freeman stated that at the time of the stop he was aware that the
appellant had a history of dealing in narcotics. Furthermore, Detective Freeman saw the marijuana in
the appellant’s car prior to the search. After the frisk, the appellant, whose hands were cuffed behind
his back, repeatedly tried to reach into the same pocket in which the crack cocaine was found. We
conclude that based upon the totality of the circumstances, Detective Freeman had probable cause to
believe the object was contraband. See Cothran, 115 S.W.3d 524. Accordingly, the trial court
correctly denied the appellant’s motion to suppress.
B. Rule 404(b)
The appellant also complained that the trial court erred in allowing the State to present
testimony regarding his two prior possessions of crack cocaine. Tenn. R. Evid. 404 provides:
(b) Other Crimes, Wrongs, or Acts. - Evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to
show action in conformity with the character trait. It may, however, be
admissible for other purposes. The conditions which must be satisfied
before allowing such evidence are:
(1) The court upon request must hold a hearing outside the jury’s
presence;
(2) The court must determine that a material issue exists other than
conduct conforming with a character trait and must upon request state
on the record the material issue, the ruling, and the reasons for
admitting the evidence; and
(3) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.
See also State v. Parton, 694 S.W.2d 299, 302 (Tenn. 1985). Moreover, in order to permit the
admission of the evidence, the court must find by clear and convincing evidence that the appellant
committed the prior crime.7 See State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996); Parton, 694
S.W.2d at 303. A trial court’s decision regarding the admission of Rule 404(b) evidence will be
reviewed under an abuse of discretion standard; however, “the decision of the trial court should be
7
Effective July 1, 2003, Rule 404(b) was amended to also require the trial court to find the existence of the
prior act by clear and convincing evidence.
-10-
afforded no deference unless there has been substantial compliance with the procedural requirements
of the Rule.” State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).
Generally, “[o]nly in an exceptional case will another crime, wrong, or bad act be relevant to
an issue other than the accused’s character. Such exceptional cases include identity, intent, motive,
opportunity, or rebuttal of mistake or accident.” State v. Luellen, 867 S.W.2d 736, 740 (Tenn. Crim.
App. 1992). In making its decision regarding the admissibility of the testimony, the trial court must
first determine if the offered testimony is relevant to prove something other than the appellant’s
character. If the evidence is relevant, then, upon request, the court will proceed to a Rule 404(b)
hearing. See State v. Robert Wayne Herron, No. M2002-00951-CCA-R3-CD, 2003 WL 151201, at
*2 (Tenn. Crim. App. at Nashville, Jan. 22, 2003) (stating that the admission of prior act testimony
must also meet the test for relevancy contained in Tennessee Rule of Evidence 401), perm. to appeal
denied, (Tenn. 2003).
In the instant case, the State argued that it wanted to present the testimony of Officer Martin
as a “prior bad act[] . . . related to [the appellant’s] intent. If he’s unemployed, in possession of a large
amount of cash, it’s a prior bad act. . . . We offer it to show that his intent at the time was to sell.” The
appellant objected to the testimony, arguing that the testimony described a prior bad act and was
prejudicial and irrelevant.
During a jury-out hearing, Officer Martin testified that on May 17, 2000, he arrested the
appellant for possession of 11.4 grams of crack cocaine. The appellant also had $480 in his possession
even though he told the officer that he was unemployed. Officer Martin related that the possession
charges resulting from this arrest were dismissed. At the conclusion of the officer’s jury-out
testimony, the trial court ruled, “I am going to allow Mr. Martin to testify for the limited purpose of
intent.”
Additionally, the appellant objected to the testimony of Officer Merrill, contending that his
testimony was irrelevant and did not qualify for admission under Rule 404(b). During a jury-out
hearing, Officer Merrill testified that on August 4, 2001, he stopped the appellant for a traffic violation
and discovered in the appellant’s possession a pill bottle containing three “pretty good size rocks” of
crack cocaine. The appellant told Officer Merrill that he was unemployed at the time of the stop;
nevertheless, Officer Merrill found $399.86 in the appellant’s possession. The State again argued that
the officer’s testimony “goes to intent, you know, what his intention on prior occasions of possessing
a large amount of cash money when he is unemployed and cocaine.” The trial court allowed the
testimony to be admitted because “it goes to other issues other than propensity.”
Initially, we note that in the instant case, the trial court failed to specifically find that the State
proved by clear and convincing evidence that the appellant committed the prior acts. “The record must
show affirmative compliance with [this] requirement[] as a mandatory pre-requisite for review by the
appellate courts.” Parton, 694 S.W.2d at 303. Nevertheless, we will address the substance of the
appellant’s complaint.
-11-
This court has previously admitted evidence of prior drug sales to show the accused’s intent
to sell on the charged occasion. See State v. Little, 854 S.W.2d 643, 649 (Tenn. Crim. App. 1992);
State v. Samuel L. Giddens, No. M2002-00163-CCA-R3-CD, 2003 WL 1787289, at *3 (Tenn. Crim.
App. at Nashville, Apr. 4, 2003). However, in the instant case, there was no evidence of prior sales,
only of prior possessions. As the appellant argued, “the introduction of the two prior drug possessions
required the jury to essentially try three cases.” The jury needed to determine the appellant’s intent
on the prior occasions in order to make the evidence relevant to his intent on the instant occasion. Cf.
State v. Wendell Ray Williams, No. M2001-02296-CCA-R3-CD, 2003 WL 1787283, at *5 (Tenn.
Crim. App. at Nashville, Apr. 4, 2003); State v. Keith A. Otey, No. M2000-01809-CCA-R3-CD, 2002
WL 560960, at *6 (Tenn. Crim. App. at Nashville, Apr. 16, 2002). “Evidence of other offenses is not
admissible for the purpose of showing propensity or disposition on the part of the defendant to commit
the crime for which he is on trial.” Parton, 694 S.W.2d at 303. Accordingly, we conclude that the trial
court abused its discretion by admitting the testimony of Officers Martin and Merrill.
Furthermore, we conclude that the admission of the officers’ testimony regarding prior acts was
not harmless error. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). During deliberations, the
jury submitted a note to the trial court which stated, “Need clarification on verdict number one. Guilty
possess cocaine [greater than] .5 g[rams] for resale or deliver. Is this specific to arrest date or is it
intent at any time to resale or deliver.” Obviously, the jury was befuddled as to how the prior acts
testimony should be considered. Because the prior acts testimony was erroneously admitted, and
because the admission was not harmless, we conclude that the appellant’s conviction for possession
of cocaine with the intent to sell or deliver must be reversed.
C. Sufficiency of the Evidence
Although we have reversed the appellant’s conviction, because of the possibility of further
appellate review we will address the appellant’s complaint that the trial court erred in failing to grant
him a judgment of acquittal on the charge of possession of more than .5 grams of cocaine with the
intent to sell or deliver. Initially, we note that this court has observed that “[t]he standard by which
the trial court determines a motion for judgment of acquittal at the end of all the proof is, in essence,
the same standard which applies on appeal in determining the sufficiency of the evidence after a
conviction.” State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim. App. 2000). Moreover, “[a]
motion for a judgment of acquittal made at the conclusion of the proof by the state is waived when the
defendant elects to present evidence on his own behalf.” State v. Ball, 973 S.W.2d 288, 292 (Tenn.
Crim. App. 1998); see also Tenn. R. Crim. P. 29(a). Accordingly, we will address the appellant’s
complaint as a challenge to the sufficiency of the evidence.
When an accused challenges the sufficiency of the evidence, the standard is whether, after
reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). In its review of the evidence, an appellate court must
afford the State “the strongest legitimate view of the evidence as well as all reasonable and legitimate
inferences that may be drawn therefrom.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
-12-
Questions concerning the credibility of the witnesses, the weight and value to be given the evidence,
as well as all factual issues raised by the evidence, are resolved by the trier of fact, not this court. See
State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000).
Moreover, we note that a guilty verdict can be based upon direct evidence, circumstantial
evidence, or a combination of direct and circumstantial evidence. See State v. Pendergrass, 13 S.W.3d
389, 392-93 (Tenn. Crim. App. 1999). Furthermore, while a guilty verdict may result from purely
circumstantial evidence, in order to sustain the conviction the facts and circumstances of the offense
“must be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the
[appellant], and that beyond a reasonable doubt.” State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971).
In order to sustain the appellant’s conviction, the State was required to prove that he knowingly
possessed a controlled substance, namely more than .5 grams of cocaine, with the intent to sell or
deliver. See Tenn. Code Ann. § 39-14-417(a)(4) (1997). The appellant did not contest that he
possessed the cocaine; instead, he contended that the State failed to prove his intent to sell or deliver.
In connection with this issue, we note that Tennessee Code Annotated section 39-17-419 (1997)
provides that “[i]t may be inferred from the amount of a controlled substance or substances possessed
by an offender, along with other relevant facts surrounding the arrest, that the controlled substance or
substances were possessed with the purpose of selling or otherwise dispensing.”
In the instant case, the appellant possessed 3.6 grams of cocaine. Agent Chester testified that
it was possible for a person to consume 3.6 grams of cocaine, but he maintained that such person
would be an addict. Agent Chester also stated that the appellant’s possession of a large amount of
money, particularly large numbers of ten and twenty dollar bills, was consistent with the cash typically
carried by those who sell drugs. He explained that crack cocaine is usually sold in increments of ten
or twenty dollars, and stated that one rock is generally .1 gram. Detective Freeman testified that “when
you buy [crack cocaine], it’s a breakdown process. Normally it comes in what you call a cookie form.”
The detective explained that bits of the “cookie” would be broken off and sold. Detective Freeman
asserted, “I have never come across a junkie with a chunk like that.” He also stated that the appellant
did not appear to be under the influence of any type of intoxicating substance. Further, Detective
Freeman stated that the appellant did not possess any paraphernalia for the consumption of crack
cocaine at the time of his arrest. We conclude that the foregoing evidence, while not overwhelming,
would have been sufficient to sustain the appellant’s conviction for possession of more than .5 grams
of cocaine with intent to sell or deliver.
D. Waiver
The appellant maintains that “[t]he prosecution failed to establish a proper chain of custody
as to the crack cocaine seized from the appellant on February 4, 2002.” The appellant also contends
that, “The court erred in overruling the appellant’s objection to the prosecution’s closing argument
when the district attorney [referred to crack cocaine as poison].” On appeal, the appellant made no
arguments in relation to these issues, nor did he provide any citations to the record. “The brief of the
appellant shall contain . . . [a]n argument, which may be preceded by a summary of argument, setting
-13-
forth the contentions of the appellant with respect to the issues presented, and the reasons therefor,
including the reasons why the contentions require appellate relief, with citations to the authorities and
appropriate references to the record (which may be quoted verbatim) relied on.” Tenn. R. App. P.
27(a)(7). Accordingly, we consider these issues to have been waived. See Tenn. Ct. Crim. App. R.
10(b) (“Issues which are not supported by argument, citation to authorities, or appropriate references
to the record will be treated as waived in this court.”).
III. Conclusion
We reverse the appellant’s conviction for possession of cocaine with the intent to sell or deliver
and remand for new trial.
___________________________________
NORMA McGEE OGLE, JUDGE
-14-
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33 F.3d 1382
N. American Specialtyv.Mobil Oil*
NO. 93-5073
United States Court of Appeals,Eleventh Circuit.
Aug 19, 1994
Appeal From: S.D.Fla.
REVERSED AND VACATED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
| {
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933 S.W.2d 182 (1996)
Sandra A. AUTRY, as Receiver of Texas Employers' Insurance Association, Appellant,
v.
William T. DEARMAN, Individually and d/b/a William T. Dearman & Associates, Appellees.
No. 14-94-00661-CV.
Court of Appeals of Texas, Houston (14th Dist.).
August 8, 1996.
Rehearing Overruled, November 7, 1996.
*186 Loren R. Smith, Houston, for appellant.
Henry P. Giessel, John B. Wallace, B. Todd Wright, Houston, for appellees.
Before MURPHY, C.J., and AMIDEI and ANDERSON, JJ.
OPINION
ANDERSON, Justice.
This appeal concerns a workers' compensation carrier's subrogation rights to a third-party settlement pursuant to former article 8307 of the Revised Civil Statutes. After a work-related injury, Jesse Villegas ("Villegas") received compensation and medical benefits from Texas Employers' Insurance Association (now in receivership and referred to collectively with its receiver, Sandra A. Autry, as "TEIA"), which provided workers' compensation insurance for Villegas's employer. The attorney representing Villegas, appellees, William T. Dearman, Individually and d/b/a William T. Dearman & Associates ("Dearman"), obtained a settlement of a personal injury suit. After a judgment non obstante veredicto (JNOV) that TEIA take nothing in its suit against Dearman to enforce its subrogation rights to the third-party settlement, TEIA brings this appeal in twelve points of error. We affirm.
While working for a landscaping company in March 1987, Villegas was bitten by a dog owned by Yolanda Brown. He sustained injuries to his hand and also claimed he injured his back when he fell. Through September 1987,[1] TEIA paid Villegas a total of $7,478.32 in compensation and medical benefits for these injuries.
Dora Oliva, the attorney handling Villegas's compensation claim, referred the personal injury claim to Dearman, who filed suit in June 1988 against Brown for damages. Brown, through her insurance company, Republic Insurance Company ("Republic"), settled the suit for $7,500 in March 1989. Dearman retained $4,215.10 in attorney's fees and expenses from the settlement funds, out of which a $1,250 referral fee was paid to Oliva. Villegas received the balance of the settlement funds in the amount of $3,284.90. Villegas acknowledged receipt of the settlement funds on April 3, 1989, and the court entered an agreed judgment dismissing the cause on May 20, 1989.
TEIA contends that it did not discover that a third-party settlement had been reached until April 11, 1990 when its representative contacted the district clerk's office and was informed of the agreed judgment. TEIA then made demand on Dearman and Republic for satisfaction of its subrogation rights. Dearman never responded, but Republic settled with TEIA for $3,739.16, half of the total benefits paid. TEIA sued Dearman on March 2, 1992, claiming conversion, *187 breach of contract, fraud, and other causes of action. In his defense, Dearman denied he knew TEIA had paid compensation to Villegas. This contention was hotly disputed by TEIA at trial. In addition, Dearman asserted he was entitled to one-third of the recovery as attorney's fees pursuant to the workers' compensation statute. TEIA stipulated that Dearman was entitled to an offset in the amount paid by Republic.
The case was tried to a jury. The trial court refused to submit questions on fraud, constructive fraud, money had and received, unjust enrichment, or breach of contract. Instead, the trial court determined that conversion was the applicable cause of action. The jury answered four questions in favor of TEIA, finding that Dearman had knowledge of TEIA's subrogation rights on April 29, 1988, before he settled the third-party suit. The trial court disregarded the jury's answers, however, and granted Dearman's motion for judgment, which asserted, inter alia, that the two-year statute of limitations barred TEIA's conversion action brought three years after the third-party settlement. TEIA appeals from the take-nothing judgment, complaining that the trial court refused to submit all of its causes of action and erroneously found its claims barred by limitations.
When a claim for workers' compensation is made, the insurance carrier is subrogated to the rights of the injured employee and may enforce the liability of the person who caused the injury.[2]Guillot v. Hix, 838 S.W.2d 230, 231 (Tex.1992). TEIA's claim for subrogation is governed by the workers' compensation statute in effect in 1987, former article 8307 of the Revised Civil Statutes. Relevant portions of section 6a of article 8307 are as follows:
Recovery from third person; subrogation; attorney's fees. (a) If the injury for which compensation is payable under this law was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employee may proceed either at law against that person to recover damages or against the association for compensation under this law.... If compensation be claimed under this law by the injured employee or his legal beneficiaries, then the association shall be subrogated to the rights of the injured employee, and may enforce in the name of the injured employee or his legal beneficiaries the liability of said other person, and in case the recovery is for a sum greater than that paid or assumed by the association to the employee or his legal beneficiaries, then out of the sum so recovered the association shall reimburse itself and pay said costs and the excess shall be paid to the injured employee or his beneficiaries. However, when the claimant is represented by an attorney, and the association's interest is not actively represented by an attorney, the association shall pay such fee to the claimant's attorney not to exceed one-third (1/3) of said subrogation recovery or as may have been agreed upon between the claimant's attorney and the association or in the absence of such agreement the court shall allow a reasonable attorney's fee to the claimant's attorney for recovery of the association's interest which in no case shall exceed thirty-three and one-third percent (33 1/3%) payable out of the association's part of the recovery....
* * * * * *
(c) If at the conclusion of a third party action a workmen's compensation beneficiary is entitled to compensation, the net amount recovered by such beneficiary from the third party action shall be applied to reimburse the association for past benefits and medical expenses paid....
Act of May 17, 1985, 69th Leg., R.S., ch. 326, § 1, 1985 Tex. Gen. Laws 1387, repealed by Act of December 11, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(10), 1989 Tex. Gen. Laws *188 1, 114 (hereinafter referred to as article 8307).[3]
Under the act, an injured employee who proceeds against a third-party tortfeasor is not precluded from claiming against the employer's compensation carrier. Watson v. Glens Falls Ins. Co., 505 S.W.2d 793, 795 (Tex.1974). The claimant is prevented from receiving a double recovery, however, because the carrier is entitled to reimbursement for the compensation paid. Fort Worth Lloyds v. Haygood, 151 Tex. 149, 246 S.W.2d 865, 869 (1952).
When a compensation carrier pays compensation to an injured employee, the carrier has a statutory right to reimbursement out of the "first money" recovered in a subsequent suit against a third-party tortfeasor. Watson, 505 S.W.2d at 795. The carrier is not required to intervene in the third party action to enforce its right to reimbursement. Home Indem. Co. v. Pate, 814 S.W.2d 497, 500-01 (Tex.App.Houston [1st Dist.] 1991, writ denied); Travelers Ins. Co. v. Seidel, 705 S.W.2d 278, 281 (Tex.App.San Antonio 1986, writ dism'd). When the carrier is not represented by an attorney in the third-party action, the claimant's attorney's fees and court costs are to be deducted from the third-party recovery before reimbursing the carrier. Insurance Co. of N. Am. v. Wright, 886 S.W.2d 337, 344 (Tex.App.Houston [1st Dist.] 1994, writ denied); New York Underwriters Ins. Co. v. State Farm Mut. Auto. Ins. Co., 856 S.W.2d 194, 203 (Tex.App. Dallas 1994, no writ); Bridges v. Texas A & M Univ. Sys., 790 S.W.2d 831, 833-34 (Tex. App.Houston [14th Dist.] 1990, no writ).[4]
In its first four points of error, TEIA attacks the trial court's refusal to submit questions on fraud, constructive fraud, money had and received, and unjust enrichment. In point of error six, TEIA complains that the court erred in refusing to submit its question on breach of contract. However, TEIA failed to support its sixth point of error with any legal authority. A point of error not supported by authority is waived. Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex.1983).
Rule 278 requires trial judges to submit requested questions to the jury if the pleadings and any evidence support them. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992); TEX.R. CIV. P. 278. If error in the charge is found, we then review the pleadings, evidence, and the entire charge to determine if the error is harmful. Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass'n, 710 S.W.2d 551, 555 (Tex.1986). To reverse a judgment based on error in the charge, an appellant must establish that the error complained of amounted to such a denial of the its rights as was reasonably calculated to cause and probably did cause rendition of an improper judgment. Tex.R.App. P. 81(b)(1). A judgment must be reversed when a party is denied proper submission of a valid theory of recovery or a vital defensive issue raised by the pleadings and evidence, if timely raised and properly requested as part of the charge. Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex.1992).
Under the facts of this case, we hold that TEIA's claim is one for conversion. Conversion is the wrongful exercise of dominion and control over another's property in denial of, or inconsistent with, his rights. Bandy v. First State Bank, Overton, 835 S.W.2d 609, 622 (Tex.1992). An action lies for conversion of money when its identification is possible and there is an obligation to deliver the specific money in question. Houston Nat'l Bank v. Biber, 613 S.W.2d 771, 774 (Tex.Civ.App.Houston [14th Dist.] 1981, writ ref'd n.r.e.). One who accepts and benefits from at least a portion of the proceeds of a third-party settlement, while having actual notice of the compensation carrier's *189 subrogation rights, does so wrongfully and is subject to a cause of action for conversion. Pate, 814 S.W.2d at 498-99; Prewitt and Sampson v. City of Dallas, 713 S.W.2d 720, 722 (Tex.App.Dallas 1986, writ ref'd n.r.e.).
When a third-party tortfeasor pays a settlement or judgment to an employee who has been receiving workers' compensation benefits, the tortfeasor[5] and the employee are jointly and severally liable to the compensation carrier for its entire subrogation claim. Watson, 505 S.W.2d at 795; Performance Ins. Co. v. Frans, 902 S.W.2d 582, 585 (Tex.App.Houston [1st Dist.] 1995, writ denied); Home Indem. Co. v. Pate, 866 S.W.2d 277, 281 (Tex.App.Houston [1st Dist.] 1993, writ withdrawn). If a third-party tortfeasor and its insurer wrongfully pay out to the employee money that belongs to the compensation carrier, the third-party tortfeasor and its insurance company are liable for the total amount paid by the carrier. Pate, 814 S.W.2d at 498-99. This liability has been extended to an attorney representing an injured worker who benefitted by receiving a portion of settlement funds paid by the third-party tortfeasor. See Prewitt and Sampson, 713 S.W.2d at 722. Even though TEIA could have obtained full reimbursement from Republic, Brown's insurance carrier, it chose instead to settle for one-half of Republic's liability.
The right of subrogation exists only by virtue of the workers' compensation statute. Traders & General Ins. Co. v. West Texas Utilities Co., 140 Tex. 57, 165 S.W.2d 713, 716 (1942). TEIA asserts that its claims for fraud, breach of contract and other quasi-contractual theories of recovery are based on its contention that it relied on a representation by Dearman and/or his employee that he would seek recovery of its subrogation claim from the third party's insurance company. We must conclude that these claims are barred by the requirements of the statute. Article 8307, section 6a requires a written agreement for an attorney to act on behalf of the carrier in protecting its subrogation rights, in relevant part as follows:
In any case where the claimant's attorney is also representing the subrogated association, a full written disclosure must be made to the claimant, prior to actual employment by the association as an attorney, and acknowledged by the claimant, and a signed copy of the same furnished to all concerned parties and made a part of the file in the Industrial Accident Board. A copy of the disclosure with authorization and consent, shall also be filed with the claimant's pleadings prior to any judgment tendered and approved by the court.
Thus, TEIA could not have relied on any offer by Dearman to represent it or protect its rights unless there was such a written agreement approved by Villegas. There was none.
We hold that TEIA's claims of fraud, breach of contract, and its quasi-contract claims cannot succeed as a matter of law. First, there was no contractual relationship between Dearman and TEIA. Secondly, TEIA's rights are statutory. We decline to impose a fiduciary duty on Dearman to notify TEIA of the third-party settlement, as TEIA urges, where no such duty is required under the statute.
In addition, there is no evidence supporting TEIA's claims of fraud, constructive fraud, money had and received, and unjust enrichment. To be entitled to submission of its fraud and implied contract claims, TEIA was required to establish that it reasonably relied on a misrepresentation or false promise. See, e.g., DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex.1990) (fraud requires material misrepresentation known to be false and intended to be acted upon, reliance, and causation of injury). These claims are all based on TEIA's contention that it relied on Dearman's misrepresentation that he would seek recovery on its behalf from the third party's insurance company. There is no evidence of reliance by TEIA on Dearman's alleged representation to act on its behalf in asserting its subrogation rights. *190 TEIA effectively asks this court to assume it relied on Dearman to recover its compensation payments simply because it did nothing on its own to secure its rights. In none of the correspondence between Dearman's office and TEIA is there evidence of reliance. At most, there is only surmise that TEIA might have relied, which amounts to no evidence. See Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 755 (Tex.1970) ("when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, such evidence is in legal effect no evidence"). Moreover, TEIA could not have reasonably relied on any alleged representation by Dearman that he would act on its behalf because it did not obtain the required written agreement and the claimant's consent. We hold TEIA was not denied submission of valid theories of recovery. We overrule TEIA's points of error one through four.
Conversion, the only applicable cause of action under these facts, is governed by the two-year statute of limitations. TEX. CIV. PRAC. & REM.CODE ANN. § 16.003(a) (Vernon Supp.1996).[6] We therefore overrule point of error twelve which contends that TEIA's claims are not barred because the four year statute governed its fraud, constructive fraud, money had and received, unjust enrichment, and breach of contract claims.[7] TEIA also argues that because it seeks reimbursement for its subrogation claim, its suit is an action for debt and is governed by the four-year statute. We disagree. While we recognize that the term "reimbursement" is used in cases involving a compensation carrier's recoupment of the benefits it paid, the carrier's suit is not an action for debt. The carrier is the owner of the first money received in the third-party settlement, and when those funds are paid to someone else, they have been converted. Consequently, we overrule TEIA's point of error eight which asserts that the four-year statute is applicable.[8]
In points nine through eleven, TEIA argues that limitations does not bar its conversion claims. As noted earlier, Dearman moved the trial court to disregard the jury's verdict and to enter a take-nothing judgment based on limitations. JNOV is proper when the evidence is conclusive and one party is entitled to prevail as a matter of law, or when a legal principle precludes recovery. John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.Houston [1st Dist.] 1992, writ denied). When a claim is *191 barred by limitations, judgment on the verdict is precluded and JNOV is proper. Stevenson v. Koutzarov, 795 S.W.2d 313, 319-20 (Tex.App.Houston [1st Dist.] 1990, writ denied). We will affirm a JNOV when the record demonstrates that a claim found by the jury is barred as a matter of law. See Graphilter Corp. v. Vinson, 518 S.W.2d 952, 955 (Tex.Civ.App.Dallas 1975, writ ref'd n.r.e.).
First, TEIA contends in point of error nine that its claims are not barred because limitations was tolled for one year by its receivership. TEIA filed for receivership on February 1, 1991, and it contends its receiver was given an automatic one-year extension of time to file suit pursuant to article 21.28, section 4(g) of the Insurance Code.[9] We disagree with TEIA's interpretation of this provision. The only case cited by TEIA on this issue concerned bankruptcy and is not on point. See Martindale Mortgage Co. v. Crow, 161 S.W.2d 866 (Tex.Civ.App.El Paso 1941, writ ref'd w.o.m.).
Generally, the appointment of a receiver does not toll limitations. Nichols v. Wheeler, 304 S.W.2d 229, 232 (Tex.Civ. App.-Austin 1957, writ ref'd n.r.e.). If the legislature had intended to provide for tolling of limitations by section 4(g) of article 21.28, it would have done so more plainly by specifically referring to "limitations" or "tolling" in the language of the statute. Accord Durish v. Uselton, 763 F.Supp. 192, 198 (N.D.Tex.1990). By seeking to add one year to any otherwise applicable limitations period, TEIA "strains the plain language" of this provision. See id. Even if TEIA were correct that its receiver was given an automatic one-year extension of time to file suit under article 21.28(4)(g), its suit is still barred by limitations. TEIA's conversion action accrued in April 1989 when the settlement funds were disbursed to Dearman. Applying Civil Practices and Remedies Code section 16.003, the time for filing TEIA's suit expired in April 1991. Based on TEIA's argument under article 21.28(4)(g), the receiver was not required to plead until one year after her appointment on February 1, 1991. Thus, following TEIA's logic, the receiver was not required to plead by April 1, 1991, the deadline under section 16.003, but rather "after" the one-year hiatus which ended on February 1, 1992. Accordingly, any protection offered by article 21.28(4)(g) evaporated immediately upon expiration of the one-year period commencing February 1, 1991. See Durish, 763 F.Supp. at 198 (plain language of this statute gives receiver one year to file suit or defend on behalf of insolvent insurance company, commencing on date of his appointment). Since limitations had run during April 1991, TEIA's delay in filing its suit against Dearman until March 2, 1992, more than thirty days after the end of the putative suspension period and almost three years after its cause of action accrued, was fatal. Nevertheless, we conclude that section 4(g) of article 21.28 does not toll limitations. We overrule point of error nine.
TEIA complains in point of error ten that its claim did not arise until it made demand on Dearman for reimbursement and its demand was refused in April 1990. It cites the rule that where initial possession is lawful, an action for conversion does not commence until demand is made for return of the property and its return is refused. See Reese v. Parker, 742 S.W.2d 793, 797 n. 2 (Tex.App.Houston [14th Dist.] 1987, no writ). No demand is required, however, for conversion that is complete. McVea v. Verkins, 587 S.W.2d 526, 531 (Tex.Civ.App. Corpus Christi 1979, no writ). If the possessor's acts amount to a clear repudiation of the owner's rights, they are tantamount to a refusal after demand. Loomis v. Sharp, 519 *192 S.W.2d 955, 958 (Tex.Civ.App.Texarkana 1975, writ dism'd); see also Bures v. First Nat'l Bank of Port Lavaca, 806 S.W.2d 935, 937 (Tex.App.Corpus Christi 1991, no writ). First, we note that Dearman had no rights to the first money received until TEIA was paid. See Fort Worth Lloyds, 246 S.W.2d at 869. Thus, because any conversion by Dearman was completed when funds were disbursed from the settlement between Brown and Villegas in April 1989, no demand was required. We overrule point of error ten.
In point of error eleven, TEIA argues that the trial court erred in finding its cause of action barred because limitations did not begin until it discovered the third-party settlement. TEIA contends limitations did not begin until it learned in April 1990 that Dearman converted the funds, and it timely filed suit within two years in March 1992. While this argument initially may appear facially valid, it cannot withstand careful scrutiny in light of the facts and the applicable law.
The traditional rule in Texas is that a cause of action accrues and the limitations period begins to run as soon as the claimant suffers some injury, regardless of when the injury becomes discoverable. Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 262 (Tex.1994); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex.1990). The discovery rule is an exception to the general rule and tolls the running of limitations until the time the plaintiff discovers, or through the exercise of reasonable care and diligence, should have discovered the nature of the injury. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990).
TEIA argues that discovery of its cause of action is a fact question which should have been submitted to the jury. The party seeking to use the discovery rule must plead the rule, and in a trial on the merits, must prove and secure findings on the issue, or the discovery rule is waived. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex.1988) (per curiam). TEIA pled delayed discovery and tendered a substantially correct question, which was refused by the trial court. See Willis v. Maverick, 760 S.W.2d 642, 647 (Tex.1988) (holding that proper submission of discovery rule question must include "should have discovered" element).[10]
TEIA's argument and authorities under its points alleging application of the discovery rule do not comport with its submitted question, however. It contends in its reply brief that it is entitled to deferral of accrual of its cause of action because Dearman was under a duty to disclose the third-party settlement, but fraudulently concealed the facts giving rise to the cause of action from TEIA, citing Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex.1983). Fraudulent concealment is unlike the discovery rule in that it resembles equitable estoppel. Computer Assocs. Internat'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex.1994). Fraudulent concealment estops the defendant from relying on the statute of limitations as an affirmative defense to the plaintiff's claim. Borderlon, 661 S.W.2d at 908. Texas courts have recognized that fraud or concealment by the party accused of converting property may toll limitations. See, e.g., Republic Supply Co. v. French Oil Co., 392 S.W.2d 462, 464 (Tex.Civ. App.El Paso 1965, no writ).
As with the discovery rule, it was TEIA's burden to plead and secure findings on fraudulent concealment. See First Nat'l Bank of Boston v. Champlin Petroleum Co., 709 S.W.2d 4, 6 (Tex.App.Corpus Christi 1986, writ ref'd n.r.e.). TEIA waived its claim by failing to tender a question on fraudulent concealment. Furthermore, in the absence of a contractual agreement or fiduciary relationship, Dearman had no legal duty to disclose the settlement to TEIA. See Seibert v. General Motors Corp., 853 S.W.2d *193 773, 778 (Tex.App.Houston [14th Dist.] 1993, no writ). In addition, we have already found no evidence supporting TEIA's allegations of fraud in this case. We hold TEIA cannot prevail on its fraudulent concealment claim.
We now turn to application of the discovery rule apart from any fraudulent concealment. Generally, the period of limitations for conversion begins to run at the time of the unlawful taking. Pierson v. GFH Financial Servs. Corp. 829 S.W.2d 311, 314 (Tex.App.-Austin 1992, no writ). The discovery rule does not apply to toll the statute of limitations where a bank is sued for conversion on a forged endorsement. Southwest Bank & Trust Co. v. Bankers Commercial Life Ins. Co., 563 S.W.2d 329, 332 (Tex.Civ. App.-Dallas 1978, writ ref'd n.r.e.). The Corpus Christi Court of Appeals permitted application of the rule to conversion in a different context. The court held that the rule of accrual for conversion actions where possession is initially lawful and demand would be useless, or unequivocal acts of conversion have occurred, is that the cause of action accrues upon demand and refusal or discovery of facts supporting the cause of action, whichever occurs first. Hofland v. Elgin-Butler Brick Co., 834 S.W.2d 409, 414 (Tex.App.Corpus Christi 1992, no writ). The court reasoned, for example, that the discovery rule should apply in cases of conversion where chattel is placed in possession of a bailor, and the bailor secretly sells the chattel to a third person, thereby converting it. Id. The facts in Hofland are decidedly different than those here. In Hofland, Elgin-Butler brought a conversion action against Border Brick, the company that collected payments on Elgin-Butler's sales of brick. Elgin-Butler also stored brick on Border Brick's property pursuant to a lease agreement. The lawsuit arose after Border Brick sold 650,000 of Elgin-Butler's brick to a third party and retained the proceeds. Id. at 411-12. The decision turned on the fact that Border Brick's principal, Hofland, did not disclose the brick had been sold when asked and did not originally dispute Elgin-Butler's ownership, but claimed offsets for storage and other fees under its valid possessory interest. Thus, Elgin-Butler did not know, nor should it have known, of the conversion until it discovered the sale. Id. at 415. In our view, the distinguishing feature of Hofland is its application of the discovery rule to conversion cases where possession was initially lawful. Here, because Dearman had no right to the first money received until TEIA was paid, his possession was never lawful and his conversion was complete when funds were disbursed to him in 1989. Thus, we decline to follow the rationale in Hofland.
The discovery rule is a limited exception to strict compliance with the statute of limitations. Computer Assocs., 918 S.W.2d at 455 and 457; Kelley v. Rinkle, 532 S.W.2d 947, 948 (Tex.1976). The purpose of statutes of limitations is to compel the assertion of claims within a reasonable period while the evidence is fresh in the minds of the parties and witnesses. Computer Assocs., 918 S.W.2d at 455. In balancing the underlying policy of repose against the injustice of barring suit, we consider the following: (1) whether the nature of the injury incurred is inherently undiscoverable; and (2) whether the evidence of injury is objectively verifiable. Id. at 456. The requirement of inherent undiscoverability recognizes that the discovery rule exception should be permitted only in circumstances where "it is difficult for the injured party to learn of the negligent act or omission." Willis v. Maverick, 760 S.W.2d 642, 645 (Tex.1988); see, e.g., Hays v. Hall, 488 S.W.2d 412, 414 (Tex.1972) (unsuccessful vasectomy operation); Gaddis v. Smith, 417 S.W.2d 577, 578 (Tex.1967) (sponge left in patient's body during surgery). Inherently undiscoverable encompasses the requirement that the existence of the injury is not ordinarily discoverable, even though due diligence has been used. Computer Assocs., 918 S.W.2d at 456.
In considering whether to permit application of the discovery rule exception to the statute of limitations in TEIA's conversion action, we review the evidence relevant to the discoverability of the claim. TEIA knew Villegas was pursuing his claim against the third-party tortfeasor, and it knew the identity of the attorneys representing both Villegas and the third party, as well as the *194 third party's insurance carrier and adjuster. While a carrier is not required to intervene in the suit, its failure to do so is a factor that may be considered in evaluating its efforts to secure notice of the settlement. Cf. Computer Assocs., 918 S.W.2d at 457 (declining to permit application of discovery rule exception, noting that plaintiff could have discovered theft of trade secret computer source codes by using document control logs).
In Computer Associates, the Court held that trade secret misappropriation is capable of detection within the time allotted for bringing such suits. Id. To determine whether TEIA's injury due to conversion was inherently undiscoverable so as to delay the accrual date of its cause of action, we will examine the methods of discovery readily available to TEIA using reasonable diligence. The discovery rule suspends the accrual date of a cause of action until the injured party knew of, or in the exercise of reasonable diligence should have learned of, the injury giving rise to the cause of action.[11] TEIA completed the payment of benefits to Villegas during September 1987, and chose not to pursue its own action for recoupment against Brown, the tortfeasor, implicitly relying on Villegas to seek such relief, and assuming a role as an observor, monitoring the courts for information on any cause of action he might file. By early June 1988, this monitoring would have revealed the lawsuit filed by Dearman, and presented TEIA with the option to either intervene, or continue monitoring the proceeding. Pursuit of either choice by TEIA would have provided information on a timely basis about the disposition of their funds paid by the third party. Dearman's conversion in April 1989, when he disbursed the settlement, was capable of detection through reasonable diligence by TEIA.
Moreover, the record reflects that TEIA knew of, and actively utilized, various methods to detect litigation affecting its interest. By letter dated April 29, 1988, Rick Whitaker, a senior claims adjuster at TEIA during the events at issue in this case, formally notified Crawford & Crawford, Republic's adjuster, of TEIA's subrogation claim for the total amount of benefits paid. No similar notice to Dearman is in evidence. Records from TEIA's files indicated it periodically monitored the case, although its representatives testified that Dearman's office frequently failed to return calls or respond to requests for information. Curiously, Whitaker noted on one of his activity reports dated August 22, 1989 that he contacted the district clerk's office and was told, incorrectly, no suit had been filed by Villegas. However, that same report also bears the cause number of the third-party action and notes May 20, 1989 as the date of the agreed judgment. Despite these indications that TEIA had clear knowledge of the agreed judgment between Brown and Villegas during the summer of 1989, TEIA nevertheless contends it ultimately discovered the settlement of the suit on April 11, 1990, when Whitaker again contacted the district clerk's office and the adjuster for the third party's insurance carrier.
As in Computer Associates, this case turns on whether the conversion was inherently undiscoverable. See 918 S.W.2d at 458. We conclude that it was not. TEIA had ample opportunity and ability to discover that the third-party suit had settled and funds were disbursed. In fact, it ultimately discovered its cause of action well within the two-year limitations period when it learned that a settlement had been paid, and yet it waited almost two full years before filing suit. We hold that the discovery rule is inapplicable to TEIA's cause of action for conversion. Therefore, TEIA's claim was barred because it was not filed until March 1992, more than two years after the settlement funds were disbursed in April 1989, and almost five years after TEIA terminated payment of benefits to Villegas in September 1987. The trial court properly granted JNOV on Dearman's limitations defense. We overrule point of error eleven.
Having found that the trial court properly determined that limitations barred TEIA's only cause of action, we have considered *195 TEIA's other points of error and determined that discussion of these points is not necessary to disposition of the appeal. See Tex. R.App. P. 90(a). We affirm the judgment of the trial court.
NOTES
[1] The record reflects TEIA completed its payments to Villegas in 1987, except for one last payment in early 1988.
[2] Generally, rights conferred by subrogation are entirely derivative of the subrogor's interest, to which the subrogee merely succeeds. Guillot, 838 S.W.2d at 232. "There is but one cause of action against the third party tortfeasorthat of the employee, who owns it burdened by the right of the insurance carrier to recoup itself for the compensation paid." Phennel v. Roach, 789 S.W.2d 612, 615 (Tex.App.Dallas 1990, writ denied).
[3] These provisions are now codified at Tex. Lab. Code Ann. § 417.001-003 (Vernon 1996). The codification was made without substantive changes. Tex. Lab.Code Ann. § 1.001 (Vernon 1996).
[4] In view of our disposition of this appeal, we need not address appellees' first reply point, which is in the nature of a cross-point, contending that after deducting from the third-party settlement an offset for the settlement paid by Republic, and Dearman's attorney's fees and litigation costs, TEIA is not entitled to any funds from that third-party settlement.
[5] At oral submission, counsel for TEIA acknowledged that it could have filed suit against Brown, but that it did not do so.
[6] Section 16.003(a) provides in relevant part:
[A] person must bring suit for trespass for injury to the estate or to the property of another, conversion of personal property, taking or detaining the personal property of another, personal injury, forcible entry and detainer, and forcible detainer not later than two years after the day the cause of action accrues.
[7] Moreover, we note that TEIA's claims for money had and received and unjust enrichment would be barred by the two-year statute. See Cherokee Water Co. v. Advance Oil & Gas Co., 843 S.W.2d 132, 135 (Tex.App.Texarkana 1992, writ denied) (holding that cause of action for money had and received accrues when money is paid, and two-year statute of limitations applies); Hornblower & Weeks Hemphill, Noyes, Inc. v. Crane, 586 S.W.2d 582, 587 (Tex.Civ.App.Corpus Christi 1979, writ ref'd n.r.e.) (holding that unjust enrichment is governed by the two-year statute).
[8] TEIA cites two federal cases where the four-year statute of limitations was applied to suits concerning subrogation liens. See Law Offices of Moore & Assocs.. v. Aetna Ins. Co., 902 F.2d 418, 420 (5th Cir.1990) and Rockwood Ins. Co. v. Williamson, 596 F.Supp. 1524, 1528 (N.D.Tex. 1984). We decline to follow these cases. In Rockwood, the suit was against the claimant, and because it was based on a written contract, the four year statute of limitations applied. Here, TEIA had no written contract with Dearman. In Moore, an attorney sued a workers' compensation insurer to recover attorney's fees for his role in relieving the insurer of future compensation payments. The suit was based on an implied contract theory and article 8307, § 6a to recover compensation for services rendered, and the Court applied the four year statute of limitations. However, we have held that article 8307, § 6a requires a written agreement for an attorney to act on behalf of the carrier in protecting its subrogation rights, and that TEIA could not have relied on any offer of representation absent a written agreement approved by Villegas, and there was none. Moreover, we are bound to follow only United States Supreme Court and Texas Supreme Court decisions on questions of law in civil cases. See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex.1993); Mohamed v. Exxon Corp., 796 S.W.2d 751, 753-54 (Tex.App.Houston [14th Dist.] 1990, writ denied).
[9] Tex. Ins.Code Ann. art. 21.28, § 4(g) (Vernon Supp.1996) provides in relevant part as follows:
The receiver shall not be required to plead to any suit in which he may be a proper party plaintiff or defendant, in any of the courts of this State until one (1) year after the date of his appointment as receiver, and the provisions of Sections 64.033 ... Civil Practice and Remedies Code, as amended, shall not apply to insolvent insurance companies being administered under this Article.
Section 64.033 of the Civil Practice and Remedies Code provides:
A receiver may bring suits in his official capacity without permission of the appointing court.
TEX. CIV. PRAC. & REM.CODE ANN. § 64.033 (Vernon 1986).
[10] TEIA submitted the following question:
When do you find that TEIA discovered, or in the exercise of due diligence should have discovered, the settlement of the third-party case?
Dearman's failure to submit a question as to when the cause of action accrued was not error.
The question of when a cause of action accrues is one of law for the court. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990). Ponder v. Brice & Mankoff, 889 S.W.2d 637, 641 (Tex.App.Houston [14th Dist.] 1994, writ denied).
[11] The record in this case does not provide a clear basis for a determination of precisely when TEIA knew that it had suffered an injury from Dearman's conversion.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00354-CV
Meera Singh and Sam Houston, Appellants
v.
Federal National Mortgage Association a/k/a Fannie Mae, Appellee
FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
NO. 14-0635-CC4, HONORABLE JOHN McMASTER, JUDGE PRESIDING
ORDER
PER CURIAM
This cause is an appeal from a judgment against debtors in a forcible entry
and detainer case. Since perfecting their appeal in early June, the appellants, who are pro se, have
attempted to file numerous documents that are in the nature of either briefs on the merits or motions
concerning preliminary procedural matters. Many of these documents have not complied with
the requirements of the Texas Rules of Appellate Procedure, including conference and signature
requirements; consequently, our Clerk has marked them “received” rather than filing them.
In an effort to clarify the status of this appeal for the benefit of all parties and achieve
some progress toward final disposition, we have ordered our Clerk to file appellants’ documents
notwithstanding the defects and will now proceed to act on them. Several of these documents seek
some sort of relief based on an assertion by appellants that they are entitled to proceed without
advance payment of fees and costs because, they insist, they have filed an uncontroverted affidavit of
indigency. Among other actions they demand, appellants seek to compel provision of the appellate
record free of charge or without prepayment. Although the clerk’s record has already been provided
to us despite appellants’ failure to pay for it, the reporter’s record has not.
The clerk’s record reveals that while appellants filed an affidavit of indigency in
the justice court, they have not filed any such affidavit in connection with their appeal, as they
were required to do in order to proceed as indigents at this stage.1 Absent compliance with this
requirement, appellants are not entitled to proceed without prepayment of fees and costs, and we
overrule all of their pending requests for relief predicated on that claim, specifically including any
demanding a reporter’s record free of charge or without prepayment. Although the nature or intent
of appellants’ submissions are sometimes difficult to discern, those that appear to seek such relief
include (although are not necessarily limited to) “Appellant’s Request Court to Take Judicial
Notice,” “Appellant’s Move This Court for its Order for the CC4 Clerk to Forward the Entire Record
and Transcript,”and “Appellant’s Appeal Trial Court Denying Pauperis Status as Punitive and
Intentional.”2 Likewise, absent any entitlement to proceed as indigents, appellants remain liable
for filing fees in this Court related to their notice of appeal and subsequent motions, as well as any
other costs of court.
1
See Tex. R. App. P. 20.1(c) (“An appellant must file the affidavit of indigence in the
trial court with or before the notice of appeal. The prior filing an affidavit of indigence in the
trial court pursuant to Texas Rule of Civil Procedure 145 does not meet the requirements of this rule,
which require a separate affidavit and proof of current indigence,” with an exception not applicable
here).
2
We have previously overruled an additional motion predicated on appellants’ claimed
indigent status, “Defendant Houston’s Motion to Compel Release of Transcript to the Court of
Appeals at No Cost.”
2
Some of appellants’ submissions also seem to complain of the amount of the
supersedeas bond set by the trial court.3 To the extent appellants are intending to challenge the
amount of this bond through a motion under Rule of Appellate Procedure 24.4,4 they have
not demonstrated their entitlement to relief. Accordingly, we overrule any such motion or motions.5
This leaves a series of filings that appellants have styled “Supplemental Memorand[a]
of Law in Support of Opening Brief,” as well as a “Plea to the Jurisdiction.” Although titled
“Supplemental Memorand[a],” these filings are collectively in the nature of an opening brief,
evidently were intended to serve that purpose, and we will treat them as such. Accordingly,
appellee’s brief is due (barring any extensions or other delays) on or before October 2, 2014, which
is the thirtieth day after the date appellants’ opening brief or briefs was filed with this Court.6 We
will carry appellants’ “Plea to the Jurisdiction” to decide with the merits, and appellee can address
that request for relief in its brief or a separate prior or contemporaneous response. Following this
opportunity for responsive briefing, we will submit the cause for decision.
3
See Tex. Prop. Code § 24.007; Tex. R. App. P. 24.2(a)(2). We note that when setting the
bond, the trial court found explicitly that appellants “are not indigent persons.”
4
See Tex. R. App. P. 24.4. Appellants have also cited 24.4 repeatedly in connection with
a panoply of other appellate complaints unrelated to the supersedeas bond. Our jurisdiction to
review those other issues was already invoked by appellants’ notice of appeal. See id. R. 25.
5
We have previously overruled “Appellant’s Combined Application for a Protective Order,”
which, while referring to the supersedeas bond and seeking a stay of the ongoing eviction process,
consisted entirely of unsupported accusations of “corruption,” “arrogance,” or “[in]competence”
among the opposing party and counsel, various local officials, and “the foreclosure system in Texas.”
6
See id. R. 38.6(b).
3
IT IS SO ORDERED on September 8, 2014.
Before Justices Puryear, Pemberton, and Field
4
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-10119 August 22, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-02779-CV-IPJ
JAMES RICHARD HURLEY,
Plaintiff-Appellant,
versus
RACETRAC PETROLEUM, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 22, 2005)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
James Richard Hurley appeals the district court’s denial of equitable relief,
requested pursuant to the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq., after a jury returned a verdict in favor of Hurley on his ADEA
claim, but awarded no damages. The jury also returned a verdict in favor of RaceTrac
Petroleum, Inc. (“RaceTrac”) on Hurley’s claim pursuant to the American with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. On appeal, Hurley argues that,
in light of the jury’s finding on his ADEA claim -- that RaceTrac discriminated
against him by failing to hire him based on his age -- the district court erred by
denying equitable relief. After thorough review of the record and careful
consideration of the parties’ briefs, we affirm.
The relevant facts are straightforward. Hurley sued RaceTrac for age
discrimination (Count 1) and disability discrimination (Count 2), based on his
unsuccessful attempt to obtain employment with RaceTrac. In January 2003, Hurley
interviewed for employment with RaceTrac, at which time he completed a job
application. He subsequently attended an employee orientation session, during which
he completed a test on RaceTrac’s policies and procedures. At the behest of a
RaceTrac manager, he reported to the Trussville, Alabama store to pick up a work
schedule. At that time, he was informed that RaceTrac was not going to hire him. He
testified that he was told the decision was based on his age, 72 years old. Three
weeks later, Hurley filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”), alleging age discrimination against RaceTrac for its failure
2
to hire him. In May 2003, while the EEOC charge was pending, RaceTrac contacted
Hurley and offered him a job, which he refused.
At trial, it was RaceTrac’s theory of defense that, in January 2003, it extended
a conditional offer of employment to Hurley, conditioned on his completion of
required paperwork. It further argued that the May 2003 offer was an unconditional
offer of employment, which Hurley unreasonably refused. RaceTrac contended that,
based on Hurley’s unreasonable rejection of the May 2003 job offer, he was barred
from recovering on his ADEA claim.
The district court’s charge to the jury included the issuance of special
interrogatories. Hurley did not object to the court’s instructions to the jury or to the
special interrogatories. The interrogatories required the jury, in the event that they
found in favor of Hurley on any claim, to determine, inter alia, whether to award
damages to compensate for a net loss of wages and benefits to the date of trial. The
jury returned a verdict in favor of Hurley on Count 1 and in favor of RaceTrac on
Count 2. To the special interrogatory concerning damages to compensate for a loss
of wages and benefits, the jury responded “No” and indicated a “0” dollar amount to
be awarded.
Hurley then moved for equitable relief, in the form of front pay or
reinstatement, based on the jury’s verdict in his favor on Count 1. The district court
3
conducted a hearing on Hurley’s motion, at which it heard additional testimony from
Hurley concerning his earnings and the lack of benefits associated with his
independently-owned lawn care maintenance business, as well as his anticipated
earnings and benefits had RaceTrac hired him. During his testimony at the hearing
on equitable relief, as he had at trial, Hurley maintained that he continued to be
interested in working at RaceTrac during the relevant period.
The district court denied Hurley’s motion, finding that the jury awarded no
back pay due to Hurley’s rejection of an unconditional offer of employment (a result
consistent with RaceTrac’s theory of defense at trial). In its order denying equitable
relief, the district court stated:
The issue of whether the defendant’s employment offer to the
plaintiff in May, 2003 was an unconditional offer of employment was
squarely addressed in the court’s charge to the jury. The charge stated:
The defendant maintains that it made an unconditional
offer of employment to plaintiff on June 17, 2003. The
plaintiff maintains that it was not an unconditional offer of
employment as expressed in his letter to defendant on June
18, 2003. If you find that defendant made an unconditional
offer of employment, I charge you as follows:
The unconditional offer of employment by the employer
can toll or stop the continuing accrual of back pay liability.
The plaintiff’s rejection of an unconditional offer of a job
previously denied ends the accrual of back pay.
4
If you find the unconditional offer of employment made by
RaceTrac to the plaintiff was rejected and plaintiff failed to
offer any legitimate reason for rejecting RaceTrac’s
unconditional offer of employment, then you must reduce
the amount of plaintiff’s damages by the amount that
would have been reasonably realized if the plaintiff had
taken advantage of such an opportunity.
The district court denied equitable relief, noting that, consistent with the
foregoing special interrogatory and the jury’s answers to it, the jury found that Hurley
(1) rejected an unconditional offer of employment; (2) did not provide a legitimate
reason for the rejection; and (3) therefore, was not entitled to back pay. As for
reinstatement or front pay, the court, citing our decision in Lewis v. Fed’l Prison
Indus., Inc., 953 F.2d 1277 (11th Cir. 1992), concluded that Hurley’s rejection of the
unconditional offer and the unreasonable basis for that rejection (that Hurley had
relied on his attorney’s advice that the offer was a settlement offer, not a job offer)
warranted denying equitable relief. This appeal followed.
We review the district court’s decision to grant or deny equitable relief under
ADEA for abuse of discretion. See Farley v. Nationwide Mut. Ins. Co., 197 F.3d
1322, 1338 (11th Cir. 1999). The district court enjoys broad discretion in fashioning
an equitable remedy, so long as it is consistent with the statutory purposes of the
ADEA. Id. The ADEA authorizes a district court to award equitable relief to a
prevailing plaintiff. See 29 U.S.C. 626(b). However, “[t]he central purpose of [the
5
statute] is to make the plaintiff “whole,” to restore the plaintiff to the economic
position the plaintiff would have occupied but for the illegal discrimination of the
employer.” Farley, 197 F.3d at 1338 (internal citation and quotation marks omitted).
Consistent with the ADEA’s “make whole” purpose, “once liability for
harassment and constructive discharge on the basis of age is established, the injured
victim is presumptively entitled to back pay from the date of the discriminatory
discharge until the date of judgment, unless the victim obtains or could have obtained
substantially equivalent work before that time.” E.E.O.C. v. Massey Yardley
Chrysler Plymouth, Inc., 117 F.3d 1244, 1251 (11th Cir. 1997) (citing 29 U.S.C. §
626(b)) (emphasis added). Likewise, where a plaintiff requests reinstatement or back
pay, once an employer makes a “good faith” offer of reinstatement, a plaintiff who
rejects the offer forfeits his right to such equitable relief unless his refusal of the
employer’s offer was reasonable. Stanfield v. Answering Serv., Inc., 867 F.2d 1290,
1296 (11th Cir. 1989).
We require a district court to articulate its rationale for denying legal or
equitable relief to a plaintiff who insists that such relief is necessary to make him
whole. See Verbraeken v. Westingouse Elec. Corp., 881 F.2d 1041, 1052 (11th Cir.
1989). Here, the district court concluded that RaceTrac’s May 2003 job offer was
reasonable and made in good faith. The court articulated its reason for denying
6
equitable relief, that is, the jury accepted RaceTrac’s theory of defense that Hurley
refused an unconditional offer of employment. The district court found Hurley’s
reason for rejecting the offer unreasonable and, thus, concluded that he was not
entitled to equitable relief. Cf. Stanfield, 867 F.2d at 1295-96 (affirming denial of
equitable relief based on plaintiff’s unreasonable rejection of employer’s offer of
reinstatement). On this record, we can find no abuse of discretion.1
AFFIRMED.
1
Hurley did not submit an application for attorneys’ fees, nor did he argue his entitlement to
fees at the hearing on his request for equitable relief (or otherwise object at any point), in the district
court. Accordingly, his argument that there was error based on the district court’s failure to award
fees is without merit. Cf. Novak v. Cobb County Kennestone Hosp. Auth., 74 F.3d 1173, 1177 (11th
Cir. 1996) (refusing to consider errors alleged for first time on appeal) (internal citation omitted).
7
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62 F.3d 1414
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.FIRST OF GEORGIA INSURANCE COMPANY, Plaintiff-Appellee,v.Tyrone D. BRYANT, Defendant-Appellant,andKenneth D. Griffin, Defendant.
No. 94-2498.
United States Court of Appeals,Fourth Circuit.
Argued: July 10, 1995.Decided: August 7, 1995.
ARGUED: Clifford Leon Lee, II, THE LEE LAW FIRM, P.A., Fayetteville, NC, for appellant. James Aldean Webster, III, YOUNG, MOORE, HENDERSON & ALVIS, P.A., Raleigh, NC, for appellee.
Before WILKINS and WILLIAMS, Circuit Judges, and JOSEPH F. ANDERSON, JR., United States District Judge for the District of South Carolina, sitting by designation.
OPINION
PER CURIAM:
1
Tyrone D. Bryant appeals the district court's entry of summary judgment for First of Georgia Insurance Company (First Georgia). First Georgia filed a declaratory judgment action in the Eastern District of North Carolina against Bryant and Kenneth D. Griffin,1 seeking a determination that it has no obligation under its liability insurance policy which would inure to the benefit of either Bryant or Griffin. The facts giving rise to this action occurred on August 14, 1990, when Griffin fired a .25 caliber handgun four times in rapid succession in the direction of Bryant and another individual. At the time these shots were fired, Griffin and Bryant were less than a car length apart from each other, in an area made up of dirt and concrete. Griffin admits that he intended to fire the handgun but takes the position that he aimed at the ground and did not subjectively expect a bullet to ricochet and strike Bryant. Bryant suffered bodily injuries from the purported ricochet. In the aftermath of the injury, Bryant presented a written demand that First Georgia make payment to Bryant in the amount of $500,000 under a liability insurance policy issued to Griffin. First Georgia responded by bringing this declaratory judgment action.
2
At all relevant times, Griffin had liability insurance with First Georgia, which provides the following exclusion from coverage:
SECTION II--EXCLUSIONS:
3
Coverage E--Personal Liability ... do[es] not apply to bodily injury....
4
a. which is expected or intended by the insured.
5
(J.A. 266.) First Georgia filed a motion for summary judgment, which the magistrate judge recommended should be granted. Basing his reasoning on Commercial Union Ins. Co. v. Mauldin, 303 S.E.2d 214, 217 (N.C.Ct.App.1983), and Stout v. Grain Dealers Mut. Ins. Co., 201 F.Supp. 647 (M.D.N.C.), aff'd, 307 F.2d 521 (4th Cir.1962), the magistrate judge concluded that the circumstances posited by Griffin established, as a matter of law, that Bryant's injury was objectively "expected or intended" by Griffin's action of firing the gun at such close proximity. See also Allstate Ins. Co. v. Freeman, 443 N.W.2d 734, 748 (Mich.1989) (injuries from insured's discharge of firearm at claimant fall within "expected or intended" exclusion of insurance policy). Bryant filed an opposition to the magistrate judge's report and recommendation. On October 12, 1994, the district court entered an order granting First Georgia's motion for summary judgment on the same grounds as the magistrate judge. Bryant now appeals, putting forward essentially the same arguments as before the magistrate judge and the district court.
6
Upon careful consideration of the arguments of counsel and review of the record and briefs, we affirm for reasons adequately stated by the district court in its order. First of Georgia Ins. Co. v. Griffin, Case No. 91-88-CIV-3-H (E.D.N.C. Oct. 12, 1994).2
7
AFFIRMED.
1
Griffin never participated in this case and, as a result, the district court entered a default judgment against him on January 30, 1992
2
In parallel civil proceedings brought by Bryant against Griffin, Bryant alleges in his verified complaint that Griffin's firing of the gun was "willful" and "extreme and outrageous conduct." Neither party raised below, or here, the argument that the district court should stay its proceeding pending the resolution of this parallel civil litigation. Accordingly, we do not reach that issue
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555 S.W.2d 613 (1977)
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, Appellant,
v.
Daniel Evans MIDDLETON, Appellee.
Court of Appeals of Kentucky.
June 17, 1977.
Discretionary Review Denied October 3, 1977.
*614 James T. Hodge, Commissioner of Law, Charles D. Weaver, Jr., Director, Div. of Litigation, Richard V. Murphy, Corp. Counsel, Donald D. Waggener, Stephen D. Milner, Asst. Corp. Counsels, Lexington, for appellant.
F. Jerry Anderson, Lexington, for appellee.
Before GANT, HOWERTON and REYNOLDS, JJ.
GANT, Judge.
Lexington-Fayette Urban County Government appeals from a judgment in the Fayette Circuit Court awarding damages to the Appellee in the amount of $3,122.90, consisting of a $1,500.00 verdict by the jury against the Appellant and a police officer employed by the Appellant, together with $1,622.90 awarded by the court against the same parties for attorney's fees and costs incurred by the Appellee in the manner which will be hereinafter set out.
The facts in the case were in considerable dispute. Appellee testified that at approximately 4:30 in the morning of August 28, 1972, he was at the intersection of Liberty Road and Winchester Road in Fayette County, Kentucky; that when the light turned green he proceeded into the intersection intending to turn right, or eastward, on Winchester Road, and that when he was approximately half-way into the intersection two cars approached from his left, running the red light at a high rate of speed and appearing to be racing, thereby forcing him off the road and into a filling station. Appellee further testified that these two cars continued on eastward on Winchester Road, accelerating as a light changed some distance on down the street and that at the intersection of Industry Road and Winchester Road one of the automobiles turned left and parked in a deserted filling station, the *615 other car proceeding on out Winchester Road.
Appellee testified that the car which turned left and parked was occupied by Officers Gaines and Hargis, and that he pulled into the service station some eight to ten feet from the Hargis vehicle and questioned them about their problem. He testified further than one of the occupants of the Hargis vehicle asked him whether he was a police officer and that he indicated that he was not but that he was a member of the Sheriff's Association and intended to call the police about their racing and running the red light. Appellee further testified that as this dialogue continued he was aware that he "had a problem" decided not to get involved and drove on off, proceeding northward on Industry Road toward New Circle Road. Appellee further testified that as he proceeded on Industry Road another vehicle came behind him, blinking its lights, and that he pulled over. This vehicle turned out to be the car of Officer Bokal, being the vehicle which had proceeded on when the Hargis vehicle stopped at the service station. Both of these vehicles were private vehicles, owned by the police officers, and all three officers were in uniform at the time. Appellee testified that Officer Bokal placed him under arrest for "reckless driving, had been drinking."
Appellee further testified that following this the other two officers, Hargis and Gaines, came upon the scene and that both Officers Hargis and Bokal struck him, grabbed him by the hair, and that Officer Hargis charged him with disorderly conduct and impersonating a peace officer.
Appellee further testified that subsequently a cruiser arrived upon the scene, that he was taken to the Municipal Building, booked on these charges and placed in jail. Further testimony by the Appellee and others was that he had a black eye, blood in that eye and Appellee testified that he had some kidney trouble as a result of the kicking.
Officers Bokal and Hargis testified at the trial and their version was quite different. Officer Bokal testified that it was the Appellee who ran the red light, forcing him to apply his brakes; that he did not see Officer Hargis at the first intersection; that he subsequently saw Appellee's vehicle at the service station with Officer Hargis's car; that he smelled alcohol on Appellee's breath at the time of the arrest; that the arrest was orderly and that any damage to the face of the Appellee was caused when Appellee was shoved against one of the vehicles to be frisked prior to placing him in the cruiser. Officer Hargis testified that he placed the charges of disorderly conduct against the Appellee because of his abusive language and threatening at the time of the arrest and that he further placed charges of impersonating a peace officer, testifying that the Appellee claimed he was a member of the Sheriff's Department, not the Sheriff's Association. Both Hargis and Bokal denied any striking of the Appellee; both denied racing, and both denied running the red light.
This action was brought by the plaintiff-Appellee, Daniel Evans Middleton, against Officers Hargis and Bokal and against the City of Lexington, for which Lexington-Fayette Urban County Government was subsequently substituted. Three general grounds were alleged in the complaint, these being malicious prosecution, assault and battery and false arrest and imprisonment. Only the Appellant, Lexington-Fayette Urban County Government, appeals from the judgment herein, and there is no cross-appeal.
The case was submitted to the jury under instructions consisting of six interrogatories as follows:
INSTRUCTION NO. 1: The Court instructs the jury to answer the following questions.
Question No. 1: Does the jury believe from the evidence in this case that the plaintiff Daniel Evans Middleton drove his automobile in a reckless manner, at or about the intersection of Winchester and Liberty Roads and in the presence of the officer, Edward Bokal, or that the officer Edward Bokal had reasonable grounds to believe and did in good faith believe that the plaintiff did so in his presence?
*616 Answer "yes" or "no".
Question No. 2: Does the jury believe from the evidence in this case that the plaintiff Daniel Evans Middleton committed disorderly conduct in the presence of the officer, Thomas Stephen Hargis, by engaging in violent tumultuous or threatening behavior or making unreasonable noise or in a public place using abusive or obscene language with intent to cause public inconvenience, annoyance or alarm or recklessly creating a risk thereof; or that the officer Thomas Stephen Hargis, had reasonable grounds to believe and did in good faith believe that the plaintiff was so doing in his presence.
Answer "yes" or "no".
Question No. 3: Does the jury believe from the evidence in this case that Officer Edward Bokal used more force than was necessary or appeared to him in the exercise of a reasonable judgment to be necessary, in order to affect (sic) the arrest of the plaintiff.
Answer "yes" or "no."
Question No. 4: Does the jury believe from all of the evidence in the case that Officer Thomas Stephen Hargis used more force than was necessary or appeared to him in the exercise of a reasonable judgment to be necessary in order to affect (sic) the arrest of the plaintiff.
Answer "yes" or "no".
If your answer to either question No. 1 or question No. 2 is "no" or if your answers to either questions No. 3 or question No. 4 is "yes" then proceed to answer question No. 5 and question No. 6.
Question No. 5: The Court instructs the jury that the Officers Edward Bokal and Thomas Stephen Hargis were acting within the scope of their employment as police officers of the City of Lexington, if you believe from the evidence that at the time and place the plaintiff was arrested, they were acting in furtherance of the purposes for which they were employed. If you believe from the evidence that at the time and place the plaintiff was arrested, the said officers, or either of them, were acting to accomplish some private purpose of their own not related to the purposes for which they were employed, then, such officer was not acting within the scope of his employment by the City of Lexington.
Does the jury believe from the evidence in this case that the officer Edward Bokal was acting within the scope of his employment by the City of Lexington at the time he arrested the plaintiff Daniel Evans Middleton?
Answer "yes" or "no".
Does the jury believe from the evidence in this case that the officer Thomas Stephen Hargis was acting within the scope of his employment by the City of Lexington at the time he arrested the plaintiff Daniel Evans Middleton?
Answer "yes" or "no".
Question No. 6: What amount of money does the jury believe from the evidence will fairly and reasonably compensate the plaintiff Daniel Evans Middleton for the mental and physical pain and suffering indured (sic) by the plaintiff to date as a direct and proximate result of the injuries, if any inflicted upon him by the Officer Edward Bokal?
Insert then the amount, if any.
What amount of money does the jury believe from the evidence will fairly and reasonably compensate the plaintiff Daniel Evans Middleton for the mental and physical pain and suffering indured (sic) by the plaintiff to date as a direct and proximate result of the injuries, if any, inflicted upon him by the Officer Thomas Stephen Hargis?
Your total verdict shall not exceed the sum of $30,000.00, the amount claimed in the complaint.
The jury found that neither of the two officers had reasonable grounds to believe nor did they in good faith believe that the Appellee had committed the offense of reckless driving or disorderly conduct; they found that neither of the officers used more force than was necessary or appeared to them to be necessary in order to effect the arrest; they found that both of the officers were acting within the scope of their employment; *617 and they found damages against each of the two officers in the amount of $1,500.00.
Appellant urges as its first grounds for reversal that the trial court refused to submit to the jury the question of whether the arrest for false impersonation constituted a defense to the entire action. The evidence on this question was rather sparse. Of course, the Appellee denied ever stating that he was a member of the Sheriff's Department, saying that he merely said that he belonged to the Sheriff's Association and was going to call the police. Officer Hargis testified very briefly on this subject that the Appellee "stated he was with the Sheriff's Department" and "that he could put us in jail for speeding." The testimony further was that the Appellee made no effort to get out of his car; made no statement that the officers were under arrest and, in fact, drove off leaving the two officers at the filling station. Hargis further testified that after Bokal had stopped him the Appellee made a further statement that "he could still put us in jail" and "that he was an associate member of the Sheriff's Association of Kentucky."
The applicable section of the statutes urged by the Appellant is Ky.Rev.Stat. 434.060(1)(d), which states as follows:
(1) Any person who fraudulently represents or personates another, and in such assumed character does any of the following acts, shall be confined in the penitentiary for not less than one (1) nor more than five (5) years:
. . . . .
(d) Do any other act in the course of any action, by which the person so personated or represented purports to be made liable, in any event, to the payment of any debt, damages, costs or sum of money, or his rights or interests are in any manner affected."
Appellant urges that the wording of this is broad enough that by representing himself to be a member of the Sheriff's Department in the manner indicated would affect the rights of the Sheriff by subjecting him to damage suits, tainting his reputation, and undermining his standing as an elected official of the community. With this we do not agree, and, although all statutes are ordinarily liberally construed in the Commonwealth of Kentucky, such construction simply cannot be carried this far when applied to the facts of the instant case.
The second ground urged by the Appellant is that the trial court erred in entering its judgment on the basis of an ambiguous and confusing jury verdict in answering these interrogatories. The law concerning false arrest and assault and battery in the course thereof is clearly stated in the case of City of Lexington v. Gray, Ky., 499 S.W.2d 72 (1973). This case states as follows:
The burden of establishing justification was on the officer, who therefore had to persuade the jury that he had reasonable grounds to believe and in good faith believed that Mrs. Gray was committing a misdemeanor in his presence and that he used no more force than was reasonably necessary, or so appeared to him in the exercise of reasonable judgment, in order to effect the arrest. Goins v. Hudson, 246 Ky. 517, 55 S.W.2d 388 (1932).
This case went on to set out a model instruction to be used on retrial. It is the opinion of this Court that the interrogatories propounded by Judge Barker in the lower court were far superior to the Gray instruction as the Gray instruction, standing alone, would seem to place the burden of proof on the defendant when the burden of proof is always on the plaintiff. However, once the plaintiff meets his burden and establishes his case, if the defendant attempts justification of his conduct, then the burden does shift to him to establish both that he had reasonable grounds and in good faith did believe those grounds for making the arrest and that he used no more force than necessary. The absence of either of these, not both, will make him liable in an action for false arrest and imprisonment and any resulting injury therefrom. In other words, if the officer did *618 have reasonable grounds for making the arrest but used more force than necessary he would be liable and, if he only used necessary force in effecting the arrest but there were, in fact, no reasonable grounds for the arrest, he will also be liable. The latter example is appropriate in the instant case. The jury held that, although neither of the officers used more force than was necessary in effecting the arrest, they had no reasonable grounds for making the arrest and this clearly renders them liable under the laws of this Commonwealth.
Relating to the amount of damages, the Appellee actually furnished two grounds. First, he stated that he was grabbed by the hair, struck in the face, which striking resulted in a black eye and a bloody eye, and he further testified that he was taken in a police cruiser, booked at the Police Department and thrown into jail. This composite clearly justifies the verdict of the jury. In the case of Louisville & N. R. Co. v. Mason, 199 Ky. 337, 251 S.W. 184 (1923), we find the following language:
The only basis for the contention that the verdict is excessive is that there was no evidence that appellee suffered any humiliation, bodily pain, or mental anguish for which the jury allowed $3,000.00, as the instructions authorized them to do.
It is true that the appellee did not, in her testimony, say in so many words that she was humiliated or otherwise hurt, either mentally or physically, as alleged in her petition, by the acts complained of, but such was not only the necessary consequence thereof, but the only reasonable inference from her testimony, and in our judgment this contention is wholly without merit.
Thus we find that even in the absence of testimony concerning mental pain and anguish, a verdict may award such mental pain and the interrogatory No. 6 was proper. We also feel that even though the jury held that there was no excessive force used, the Appellee was entitled to be compensated for any physical pain or suffering, as well as "mental pain," as a result of this arrest and assault because of the fact that there were no reasonable grounds for the arrest itself.
The third and fourth grounds urged by the Appellant for reversal relate to the damages awarded by the jury and the court. As previously indicated, the jury awarded $1,500.00 against both Officer Hargis and Officer Bokal. The court set aside the $1,500.00 awarded against Officer Hargis for reasons which we are unable to ascertain. The testimony was that Hargis hit the Appellee in the mouth and further that Hargis arrested the Appellee and charged him with reckless driving and impersonating an officer. Had the Appellee cross-appealed, the court would feel constrained to reverse the lower court on this point as we feel that there was as much evidence against Officer Hargis as there was against Officer Bokal, but this question is not before us.
Additionally, the sum of $1,622.90 was awarded for attorney's fees and court costs incurred in the defense of the three charges, those being reckless driving, disorderly conduct and impersonating an officer. These expenses were properly proven, being the attorney's fees and cost of transcripts in the lower court, in the amount heretofore set out.
The law in Kentucky is probably best set out in the case of Ross v. Kohler, 163 Ky. 583, 174 S.W. 36, 41 (1915):
The rule applying in such cases is that the successful plaintiff is entitled to compensation for all natural and probable consequences of the wrong . . . .
The Court is not materially assisted by the annotations in 32 Am.Jur.2d False Imprisonment or in 35 C.J.S. False Imprisonment, as both of these merely indicate that those jurisdictions which have decided this question at all are fairly equally divided. This is a case of first impression in the Commonwealth of Kentucky and there are simply no Kentucky cases which are of material assistance on this problem. Apparently, Florida and Alabama have adopted the rule that they will distinguish between *619 false arrest and imprisonment and malicious prosecution and have held that damages are recoverable only to the extent that they are expended to secure the party's release from confinement or the illegal restraint. On the other hand, Vermont has held that the actual restraint does not end until the prosecution against him is ended and that expenses incident to the defense of the suit are the natural and proximate result of the wrongful act.
It probably should be pointed out at this juncture that in instances involving officers of the law there is simply no distinction between false arrest and false imprisonment. False imprisonment is always the result of a false arrest, since the individual is placed under restraint by the false arrest and there can be no imprisonment without arrest by a peace officer. The reference books have even abandoned a separate title for False Arrest and all of these cases are indexed under False Imprisonment.
It seems to this Court that retaining an attorney and acquiring a transcript of the proceedings for the purpose of defense or appeal are "natural and probable consequences of the wrong." The fact that the person wronged is actually released from jail by posting a bond or even by a recognizance does not end his problems, as he must sooner or later clear himself of the false charges placed against him and he is under some restraint from his movements as he is answerable to summons of the court and required to appear in court on the trial date for the purpose of exoneration. It is therefore the holding of this Court that reasonable attorney's fees and costs incurred in defending himself from the wrongful charges are natural and probable consequences of the wrong and recoverable in a civil action for false arrest where there is a finding that the false arrest and imprisonment were without reasonable grounds. We would not award such damages in those cases where reasonable grounds did exist but excessive force was used. In the former case, the wrong was the arrest and imprisonment without reasonable grounds and this wrong is the basis of the action. In the latter, the wrong was the assault and battery committed by the arresting officer, even though he had reasonable grounds.
The last ground for reversal urged by the Appellant is that Lexington-Fayette Urban County Government should not be held liable for the false arrest and damages resulting therefrom. We are mindful of the language contained in City of Louisville v. Louisville Seed Company, Ky., 433 S.W.2d 638, 641 (1968), in which the court said:
With rare exceptions, private business carries on no function as hazardous or exacting in detail as the work of a city fire or police department. These activities are so inherently dangerous that private business would hesitate to undertake them. . . . And it can be readily appreciated that the imposition of broad standards of tort liability upon them might be extremely burdensome and could possibly force their curtailment or even abandonment to the detriment of the general public. For this reason some reasonable compromise must be reached one that will permit the isolated citizen to recover for grievous injustices imposed upon him by a negligent society, yet protect that society from what could culminate into ruinous claims.
Appellant points out that in the cases of City of Lexington v. Yank, Ky., 431 S.W.2d 892 (1968), and City of Lexington v. Gray, supra, the court has held the city liable for assaults by police officers. Appellant seeks to distinguish the instant case by saying that in those cases there was an intentional and wrongful assault and that in this case there was a "good faith" determination to arrest in carrying out the public safety function of law enforcement. However, the jury held to the contrary and held in this case that there was not a good faith determination to arrest. For this reason, we feel that those cases are indistinguishable and that where there was a lack of reasonable grounds for making an arrest the city must suffer the damages.
It has long been held in regard to the liability of the master for the action of his *620 servant that the doctrine is founded upon the principle of agency. This doctrine is probably best set out in the case of Continental Ins. Co. of New York v. Buchanan, Ky., 108 S.W. 355 (1908), in which the court said:
Where one of two parties must suffer, he should bear the loss who sends out the agent, rather than he who innocently deals with him.
This seems particularly appropriate in the case of police officers. The Lexington-Fayette Urban County Government has adequate opportunity for screening those persons whom it hires as police officers for this government. These persons can be given tests, evaluated by psychiatrists, subjected to polygraph examinations, reviewed by boards, and their records of performance are subject to scrutiny from time to time by the employer. The public which deals with these police officers has no such opportunity.
For the reasons above stated, the case is affirmed.
All concur.
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55 P.3d 745 (2002)
Bradley Kent LAYBOURN, Appellant,
v.
Roberta Yvonne POWELL, Appellee.
No. S-10074.
Supreme Court of Alaska.
September 27, 2002.
*746 D. Scott Dattan, Law Office of D. Scott Dattan, Anchorage, for Appellant.
Tara N. Logsdon, Golter & Logsdon, P.C., Wasilla, for Appellee.
Before: FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.
OPINION
BRYNER, Justice.
I. INTRODUCTION
Bradley Laybourn challenges an order modifying his child support obligation and awarding partial attorney's fees to his former wife. We affirm, holding (1) that the superior court properly imputed income to Laybourn based on his efforts to disguise actual earnings and conceal assets, (2) that the court properly considered all of the evidence and did not express any bias against Laybourn, and (3) that the court's award of enhanced fees was authorized under Civil Rule 82 because of Laybourn's vexatious conduct.
II. FACTS AND PROCEEDINGS
Laybourn's ex-wife, Roberta Powell, moved to modify his child support payments for their daughter Kelcy. Powell argued that Laybourn's income greatly exceeded the amount on which his existing child support payments had been based in 1997. Powell further maintained that Laybourn's wages and tax returns did not accurately reflect his actual earnings because Laybourn was hiding income. She supported these claims by relying on Linda L. Saunders, a forensic accountant, who testified that Laybourn appeared to be sheltering a large amount of his actual income.
Saunders testified that Laybourn had quit a lucrative job shortly after the couple divorced in 1995 and had remained self employed as an entrepreneur since then. Although the court had reduced his child support payments in 1997, he had failed to make any payments for nearly two years. Yet according to Saunders, Laybourn established several partnerships shortly after his divorce and frequently traded his labor for in-kind payments, such as free rent in a building owned by one of the partnerships, in an attempt to hide his income and assets. Saunders also identified vast discrepancies between Laybourn's claimed income and both his lifestyle and bank account balances. In Saunders's professional opinion,
[Laybourn] has actively participated in financial activities and labor efforts concerning property interests in Alaska ... [and] has engaged business partners and his girlfriend to aid in the concealment of such activities.... [Laybourn's] financial records and representations are riddled with contradictions and claims of expenditures contrary to customary reporting practices of the IRS.... Laybourn has overtly disguised his income and worked under the table for his personal living expenses since he left the Slope in 1996.
Saunders testified on the first day of a three-day hearing. At the close of Saunders's *747 testimonyjust before Laybourn began presenting his side of the casethe trial judge commented on the compelling nature of Saunders's testimony and cautioned Laybourn about the potential legal implications of presenting evidence that might prove to be false. The case proceeded, and the rest of the hearing consisted of witnesses presented by Laybourn.
At the close of the hearing, the superior court granted Powell's motion for modification, finding that Laybourn was in fact seeking to hide income and assets to avoid paying child support. Based on evidence of his earnings history and potential, the court estimated that he was easily capable of earning an adjusted gross income of $72,000 and imputed this amount to him as annual income for purposes of determining his new child support obligation. As explained by the court, $72,000 represented Laybourn's potential income based on his skills, experience, and qualifications. The court also awarded enhanced attorney's fees to Powell, citing Laybourn's "bad faith and vexatious conduct" in "hid[ing] his income and assets." Laybourn appeals.
III. DISCUSSION
A. Imputed Income[1]
Alaska Civil Rule 90.3 governs child support and requires awards of support to "be calculated as an amount equal to the adjusted income of the non-custodial parent,"[2] multiplied by certain factors. Rule 90.3(a)(1) broadly defines "adjusted gross income" to include "the parent's total income from all sources," less certain specified deductions. Under Rule 90.3(a)(4), the court may impute "potential income" to a parent the court determines is "voluntarily and unreasonably ... unemployed or underemployed" and "also may impute potential income for non-income or low income producing assets."
Here, the court found that Laybourn had consistently underreported his income and was engaged in an ongoing scheme of concealing assets and earnings. The court estimated his annual adjusted gross income capacity to be at least $72,000. Those findings are supported by substantial evidence and are not clearly erroneous.
Laybourn nonetheless asserts that the court was required to provide a strict accounting of its methods for determining this income amount. In particular, Laybourn takes issue with several categories of expenses that he claims the superior court must have improperly considered in computing his income. But Laybourn's argument misconceives the basis of the court's finding that his adjusted annual income totaled at least $72,000: the court was not calculating his actual income; instead, it was imputing income based on an estimate of Laybourn's earning capacity because he had made it impossible to calculate his actual income accurately. Laybourn's situation is thus functionally equivalent to voluntary underemployment. Having failed to give the court any accurate basis on which to compute his actual earnings, Laybourn cannot be heard to complain that its estimate based on his earning capacity is insufficiently precise.[3]
Because the superior court did not clearly err in finding that Laybourn's total adjusted earning capacity from all sources easily exceeded $72,000, we hold that the court did not abuse its discretion in modifying his child support obligation.[4]
*748 B. Alleged Bias
Laybourn also alleges that the superior court prejudged his case and "erred in failing to consider all of the evidence." He bases his claim on the court's remarks at the close of Powell's evidence. Laybourn takes these remarks out of context. As mentioned earlier, the trial court noted the compelling nature of Saunders's expert testimony and warned Laybourn of the potential dangers of presenting a defense based on demonstrably false testimony. When read in light of the record as a whole, the court's remarks fail to support Laybourn's claim of bias. To the contrary, they evince a genuine concern about Laybourn's understanding of the potential implications of further testimony regarding what appeared to be a well-documented pattern of tax evasion and fraud: the court simply wanted to be certain Laybourn understood the evidently very real risk that he might incriminate himself or his proposed witnesses. After sounding this note of caution, the court heard two more days of testimony and, in the end, expressly declined to find Laybourn's defense entirely lacking in credibility. The court then entered detailed findings addressing all the evidence presented at the hearing. In the context of the record as a whole, then, Laybourn's claim of bias is unpersuasive.
C. Attorney's Fees
Finally, Laybourn argues that the superior court abused its discretion in awarding attorney's fees. The superior court assessed $9,392.57 in attorney's fees under Alaska Civil Rule 82(b)'s schedule of partial fees; the court enhanced this award by $607.43 based on Laybourn's vexatious conduct. The total fee award was $10,000.
Laybourn initially claims that child support modification cases qualify as "post-judgment modifications and enforcement actions" and, as such, fall under the divorce exception to Rule 82 and are not subject to fee awards under that rule.[5] But unlike post-judgment motions to modify custody, child support motions raise issues solely pertaining to money and property and, thus, do not fall under the divorce exception.[6]
Laybourn separately argues that the $607 enhancement of fees was inappropriate. The superior court found that Laybourn had "engaged in bad faith and vexatious conduct in an attempt to hide his income and assets"; the court further characterized Laybourn's conduct as "outrageous." Rule 82(b)(3)(G) expressly authorizes courts to enhance fees in cases of bad faith or vexatious behavior. The superior court's finding of vexatious conduct is supported by the record, and the nominal fee enhancement is not "manifestly unreasonable."[7] We thus find no abuse of discretion.
IV. CONCLUSION
For these reasons, we AFFIRM the superior court's judgment.
MATTHEWS, Justice, not participating.
NOTES
[1] We review a trial court's findings of imputed income for clear error. See Routh v. Andreassen, 19 P.3d 593, 595-96 (Alaska 2001) (determination of net income for child support purposes is factual finding reviewed for error); Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998) (using "clearly erroneous" standard). "We deem a factual finding to be clearly erroneous `when we are left with a definite and firm conviction on the entire record that a mistake has been made, even though there may be evidence to support the finding.' " Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991) (quoting Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979)).
[2] Alaska R. Civ. P. 90.3(a).
[3] Cf. Benson v. Benson, 977 P.2d 88, 92 (Alaska 1999) (permitting calculation of support arrearages and noting "[a] contrary holding would reward recalcitrant conduct of obligors").
[4] We review modifications of child support for abuse of discretion. Robinson v. Robinson, 961 P.2d 1000, 1002 (Alaska 1998). Under this standard, we will set aside an order for modification if a "review of the entire record leaves us with a definite and firm conviction that a mistake has been made." Hilderbrand v. Hilderbrand, 962 P.2d 887, 888 (Alaska 1998) (internal quotations omitted).
[5] See Hartland v. Hartland, 777 P.2d 636, 644 (Alaska 1989).
[6] Lowe v. Lowe, 817 P.2d 453, 460 (Alaska 1991).
[7] Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991). Laybourn argues that Kowalski supports his claim that enhanced fees are inappropriate. But Kowalski recognizes that an attempt to mislead the court for purposes of defeating a legitimate claim qualifies as vexatious conduct under Rule 82(b)(3)(G). Id. at 1373.
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644 F.Supp. 1361 (1986)
George BERNSTEIN, acting for and on Behalf of the COMMISSIONER OF BANKING AND INSURANCE OF THE STATE OF VERMONT as Receivor for the purpose of rehabilitation of Ambassador Insurance Company and James P. Corcoran, Superintendent of Insurance of the State of New York as Rehabilitor of Horizon Insurance Company, Plaintiffs,
v.
CENTAUR INSURANCE COMPANY, Defendant.
No. 83 Civ. 7989 (JMC).
United States District Court, S.D. New York.
September 8, 1986.
*1362 *1363 Leigh R. Isaacs, Kroll, Tract, Pomerantz & Cameron, New York City, for plaintiff George Bernstein.
Laurence Greenwald, Stroock & Stroock & Lavan, New York City, for plaintiff James P. Corcoran.
John M. Nonna, Werner, Kennedy & French, New York City, for defendant.
OPINION
CANNELLA, District Judge.
Following a nonjury trial on the merits, the Court finds for the defendant in part and plaintiff George Bernstein in part. Fed.R.Civ.P. 52(a).
BACKGROUND
This diversity action was brought by Ambassador Insurance Company ["Ambassador"] and Horizon Insurance Company ["Horizon"]. On November 10, 1983, the Superior Court of the State of Vermont declared Ambassador insolvent and appointed the Commissioner of Banking and Insurance as rehabilitator. On December 7, 1983, the Supreme Court of the State of New York declared Horizon insolvent and appointed the Superintendent of Insurance of New York as rehabilitator. On January 31, 1984, George Bernstein and James P. Corcoran, acting on behalf of the rehabilitators of Ambassador and Horizon respectively, were substituted as plaintiffs. See Memorandum and Order at 1-2 & nn. 1-3, 83 Civ. 7989 (JMC) (S.D.N.Y. Nov. 11, 1984) ["November Memorandum and Order"].
In this action plaintiffs allege breach of reinsurance contracts. The Court previously granted defendant Centaur Insurance Company's ["Centaur"] motion to dismiss a portion of the complaint and granted in part Centaur's motion to stay the action pending arbitration. See November Memorandum and Order; Order, 83 Civ. 7989 (JMC) (S.D.N.Y. Jan. 24, 1985) ["January *1364 Order"]. The Court ruled that two issues were to be decided by the Court: (1) whether reinsurance certificates numbered CF-719 and CF-720, the "Flexi-Van" and "X-Tra" risks respectively, are voidable, as claimed by defendant, and (2) whether reinsurance coverage on Ambassador's policy # GOA 792034 and Horizon's policy # 100894, which insured Budget Rent-a-Car for 1981-1982, was extended to cover the 1982-83 term. See January Order at 1-2. Following a more complete presentation of the issues in the pretrial briefs, it became apparent that the first of these issues could properly have been submitted to the arbitrators. However, in light of defendant Centaur's consent to submit the issue to the Court, see Supplemental Affidavit of Gerald F. Murray at ¶ 3, 83 Civ. 7989 (JMC) (filed Dec. 17, 1984), both issues were presented at trial.
The evidence adduced at trial disclosed an appalling laxity on the part of all insurance companies involved a laxity which was cleverly manipulated by one Leonard Rogers, who unfortunately failed to live to tell the tale. In addressing each of the issues before it, the Court is faced with determining which company must bear the burden of Roger's apparently fraudulent or at least extremely careless behavior. Having reviewed the evidence and considered the demeanor of the witnesses the Court makes the following findings of fact.
FINDINGS OF FACT
1. In 1981, 1982 and 1983, Ambassador was an insurance company organized under the laws of the State of Vermont and engaged in the business of writing property and casualty insurance. During the same years, Horizon was a wholly owned subsidiary of Ambassador and similarly engaged in the business of writing property and casualty insurance. At all relevant times, Arnold Chait was President of Ambassador and Horizon.[1]
2. In 1981, 1982, and 1983, Centaur, an Illinois corporation, was an insurance company licensed to do business in the State of New York. During most of the relevant period, Centaur's wholly owned subsidiary, Atlantic and Gulf Insurance Agency, Ltd. ["Atlantic & Gulf"], served as Centaur's general agent for direct insurance and facultative[2] reinsurance.[3]
3. In 1979, Leonard Rogers was hired by Atlantic & Gulf as chief facultative underwriter.[4] Rogers was later promoted to Vice-President of Production and held that title on September 1, 1981.[5] While he was employed by Atlantic & Gulf, Rogers had the authority to underwrite and accept facultative reinsurance on behalf of Atlantic & Gulf and Centaur.[6]
4. In November 1981, Rogers formed Guaranteed Insurance Underwriters ["Guaranteed"], of which he was President and principal shareholder.[7]
5. The Managing Director of Atlantic & Gulf during the period March 1978 through April 1982 was George B. McNeill.[8] Richard Pluth was a Vice-President of Operations at Centaur from April 1981 through April 1983.[9]
6. On January 19, 1982, Rogers submitted his resignation to George B. McNeill and, at the request of Richard Pluth, left the company's employ on that day.[10]
*1365 A. Budget Rent-a-Car ["Budget"] Risks
7. In 1981 Kahn-Carlin Insurance Agency was a retail insurance broker representing Budget in New Orleans and Miami.[11] In June 1981, Don Carlin, the president of Kahn-Carlin, discussed with Rogers the placement of the Budget insurance account. Rogers told Carlin at that time that he was an employee of Atlantic & Gulf.[12] Carlin said that he wanted the Budget policy written by an "A" rated company,[13] and Rogers indicated that he would submit a proposal.
8. Thereafter, Rogers proposed that Ambassador and Horizon each carry part of the Budget insurance, reinsured 100% by Centaur. Carlin understood that Rogers had arranged to have Ambassador and Horizon front[14] the Budget risk because both were A + rated companies, while Centaur had only a B + rating.[15]
9. Before agreeing to participate in this arrangement, Chait had Horizon's counsel, Michael Skay, write to Centaur, to confirm that Atlantic & Gulf was an agent of Centaur "for the purpose of arranging facultative reinsurance."[16] Owen B. Davies, President of Centaur, confirmed by letter as follows:
Thank you for your letter of August 27, 1981, relating to your arranging facultative reinsurance with our Company through Mr. Leonard Rogers.
Mr. Leonard Rogers is Vice President-Production of Atlantic and Gulf ... This Agency is a wholly-owned subsidiary of Centaur....[17]
10. On September 28, 1981, Rogers, apparently on behalf of Atlantic & Gulf, telexed Daniel Lynch, Vice-President of Underwriting for Ambassador and Horizon to confirm the coverage.[18] Thereafter, on January 28, 1982, Ambassador issued its policy number GLA 792034 to Budget for the period October 1, 1981 to October 1, 1982, and Horizon issued its policy number GLH 1008944 to Budget covering the same period. The Ambassador policy covered New Orleans operations; the Horizon policy covered Miami, Florida.[19]
11. Reinsurance certificates were not issued for these policies until the fall of 1982. Nor was Ambassador or Horizon billed for premiums until after the expiration of the policies.[20]
12. In July 1982, Horizon notified Atlantic & Gulf that the 1981-1982 Budget policy would expire on October 1.[21] No other written communication passed between the reinsurer and reinsured concerning the renewals of the policies. Following March 1982, Atlantic & Gulf had no authority to write facultative reinsurance and there are no records to indicate that it issued any such policies effective later than March 1, 1982.[22]
13. Following Rogers' departure from Atlantic & Gulf on January 19, 1982, no one at Centaur or Atlantic & Gulf informed Horizon or Ambassador that Rogers had left their employ.[23] However, there is no custom or practice in the industry for an assuming reinsurer to notify a ceding insurer when an officer or underwriter of the assuming reinsurer leaves its employment.[24] Nor was there a custom or practice *1366 at Ambassador and Horizon to notify other insurance companies when an officer or underwriter left their employment.[25]
14. Daniel Lynch knew that Rogers had left Atlantic & Gulf in January 1982. Chait, Lynch and others at Ambassador and Horizon knew that Rogers had formed Guaranteed in the fall of 1981, and Chait may have known that Rogers had left Atlantic & Gulf.[26]
15. Ambassador and Horizon never requested confirmation that Guaranteed was an agent of Centaur for the purpose of binding facultative reinsurance and were never notified that Guaranteed had such authority.[27]
16. Prior to October 1, 1982, Rogers called Chait and asked him if Ambassador and Horizon wanted to front the coverage once again on the same terms as under the prior policies. Chait agreed to have Ambassador and Horizon front the coverage as before.[28] On October 20, 1982, Rogers wrote two letters on Guaranteed's letterhead confirming the renewal coverage with 100% reinsurance by Centaur. In both letters, Rogers signed as President of Guaranteed. He did not represent himself to be an employee of Atlantic & Gulf.[29] Rogers was not employed by Atlantic & Gulf or Centaur, nor was he authorized to bind facultative reinsurance for them in October 1982.[30] Neither Atlantic & Gulf nor Centaur confirmed renewal coverage.[31]
17. In reliance on Rogers' statements that the risk was to be reinsured by Centaur, Horizon and Ambassador renewed the underlying coverage to Budget.[32]
18. On two occasions Ambassador and Horizon requested Rogers to forward the reinsurance certificates for 1982-1983. Both requests were sent to Rogers at Guaranteed.[33] The certificates were never received.
19. Martin Hoffman was an independent consultant employed by MIH Consultants, a firm retained by Centaur to institute a computerized accounting system. His duties included accounting for Atlantic & Gulf's facultative reinsurance premiums, including the Budget accounts. He also undertook to issue certificates for the 1981-1982 coverage.[34] He did not have authority to bind Centaur to any reinsurance coverage.[35] Chait was aware of this status, both because Hoffman told him he was an independent accountant and because he communicated with Ambassador and Horizon on his own MIH letterhead.[36]
20. On December 29, 1982, Hoffman and Ms. Sandra Eckenbrecht, Operations Manager for Centaur, visited Chait at his New Jersey office to discuss reinsurance premiums for the 1981-1982 coverage. Chait gave Hoffman two checks for a portion of the premium.[37] Although Chait claims that Hoffman told him that the renewal certificates were being prepared,[38] the Court, having considered the demeanor of the witnesses and the context of the conversation finds credible Hoffman's assertion that no such statement was made.[39] Hoffman may have said he would look into it. In late 1982, Hoffman spoke with Harry Rinder, the manager of Atlantic & Gulf, and told him either that Chait and Rogers had asked whether the reinsurance for the Budget risks had been renewed or that *1367 Chait and Rogers actually believed such to be the case.[40] The Court finds that it is unclear exactly what Hoffman said to Rinder in light of the fact that counsel on both sides elicited Hoffman's testimony by means of leading and inconsistent questions. Additionally, Rinder did not have authority to bind risks on facultative reinsurance.[41]
21. In January 1983 there was a meeting between representatives of Ambassador and Horizon, including Chait, and representatives of Centaur. Chait did not inquire about the Budget reinsurance.[42]
22. On March 18, 1983, Hoffman wrote a letter ["Hoffman letter"] to Sandra Eckenbrecht. In this letter he stated, inter alia:
We must also prepare the reinsurance certificates for the renewal of the Budget. ... Account for the Florida and Louisiana locations. The renewal dates for these locations are 10/1/82 through 10/1/83. We have also been advised that the Budget Rent-a-Car for Los Angeles California has attached under an individual certificate for the period 1/1/83 through 10/1/83.[43]
This statement was based on what he had been told by Rogers and Chait. He had no independent knowledge of whether the renewal was in effect nor any authority to bind Centaur on the renewal.[44]
23. Following her receipt of the Hoffman letter, Eckenbrecht told Hoffman that there was no documentation in the file to indicate Centaur had agreed to reinsure the 1982-1983 Budget risks.[45] No one at Centaur made any effort to notify anyone at Ambassador or Horizon that the renewal was not in place, despite the fact that Chait was copied on the letter.[46]
24. On April 14, 1983, Horizon and Ambassador submitted three claims arising after October 1, 1982 ["April Claims Report"]. The letter references the certificates for the 1981-1982 policy period.[47] Thereafter, an investigation was begun at Centaur to determine whether renewal coverage might be in effect, despite the absence of any documentation in the file. Thomas Hughes, an internal auditor for Borg-Warner, sent a telex to Chait requesting his file on Budget. Hughes wanted to make sure that defendant had no records indicating that a reinsurance renewal was in effect.[48]
25. The claims referenced in the April Claims Report arose in late 1982 and early 1983.[49]
26. On June 21, 1983, representatives of Centaur met with representatives of Ambassador and Horizon. Nothing was said to Centaur representatives concerning renewal of the Budget risks.[50]
27. On July 6, 1983, Joseph P. Wolonsky, Vice-President of Finance at Centaur, wrote Chait advising him that Ambassador and Horizon had erroneously included in their loss reports losses occuring after the expiration of the reinsurance.[51]
28. There is a custom and practice in the insurance industry that a ceding insurance company will initiate a request for renewal of coverage, even in a fronting situation. Neither side is obligated to automatically renew coverage.[52]
B. Flexi-Van and X-Tra Risks
29. Sometime prior to November 9, 1981, Schiff Terhune, agent for the insureds, *1368 contacted LMG Excess, Inc. ["LMG"] in respect of container insurance for Flexi-Van and X-Tra. LMG, in turn, sought to insure the risks through Agency Facilities, Inc. ["Agency Facilities"], a company which had produced considerable business for Atlantic & Gulf and Centaur. Agency Facilities contacted Atlantic & Gulf, seeking 10% participation in the Flexi-Van and X-Tra risks.[53]
30. Atlantic & Gulf made the underwriting decision to insure these risks on behalf of Centaur.[54]
31. Leonard Rogers determined that Flexi-Van and X-Tra would not accept insurance from a company rated only "B + " by Best's Insurance Reports. Consequently on November 9, 1981, Rogers, on behalf of Centaur and Atlantic & Gulf, telexed[55] Ambassador, an "A + " rated company and asked it to front[56] for Centaur on its 10% participation. Ambassador agreed to front the risk in exchange for a 12½% commission. Centaur would thus reinsure Ambassador for 100% of the risk in exchange for the premiums paid by Flexi-Van and X-Tra minus the 12½% commission.[57]
32. Because Ambassador was merely fronting for Centaur, it did not underwrite the risk, receive the gross premium, pay the producing broker a commission or actively obtain reinsurance as it would have, had it initiated the transaction.[58]
33. That Ambassador did not initiate the insurance transaction is evidenced by the fact that the Flexi-Van and X-Tra risks involved insurance of marine containers which were not a class of business Ambassador regularly insured.[59]
34. At some point after January 1, 1982, Daniel Lynch, then Chief Facultative Underwriter at Ambassador, executed two participation agreements prepared by Schiff Terhune which bound Ambassador to insure 10% of the total Flexi-Van and X-Tra risks.[60]
35. On December 29, 1981, George Zelenko of Agency Facilities, sent Rogers a telex confirming that 10% of the Flexi-Van and X-Tra risks would be bound "as part of Ambassador."[61] Thereafter, on January 11, 1982[62] and January 20, 1982[63] Zelenko communicated further with Rogers requesting that Ambassador be bound and policies issued on the risks.
36. On or after April 19, 1982, after Rogers had left the employ of Atlantic & Gulf, his name was affixed to the Ambassador policies purporting to bind these risks.[64]
37. In light of Zelenko's January requests to Rogers, the Participation Agreements signed by Lynch appear not to have been executed prior to January 20. Nonetheless, the Court finds credible Lynch's testimony that he, and not Rogers, had the authority to and did in fact bind Ambassador to these risks by signing the participation agreements.[65] The Court also finds that the policies were administrative in nature.
38. Neither Guaranteed nor Rogers received any commission from Ambassador in connection with the Flexi-Van and X-Tra insurances. Although Guaranteed had entered *1369 into a "Correspondent's Agreement" with Ambassador on December 22, 1981, the Court finds that agreement did not create an agency and was unrelated to the Flexi-Van and X-Tra risks.[66]
39. During 1982 Guaranteed received money from Agency Facilities with respect to the Flexi-Van and X-Tra risks. On December 7, 1982, Guaranteed remitted these receipts to Ambassador in partial payment of Ambassador's 12½% commission.[67]
CONCLUSIONS OF LAW
A. The Budget Risks
a. Actual Authority
1. Leonard Rogers had no actual authority to bind Centaur or Atlantic & Gulf to the renewal of the Budget reinsurance for the period October 1982 to October 1983.
2. Centaur had no duty to automatically renew the Budget reinsurance for the period 1982-1983. See 13A J. Appleman & J. Appleman, Insurance Law & Practice, § 7642, at 410-13; Casualty Co. v. United States Casualty Co., 161 App. Div. 591, 592-93, 146 N.Y.S. 957 (1st Dep't 1914), aff'd, 221 N.Y. 560, 116 N.E. 1039 (1915).
b. Apparent Authority
3. An agent or purported agent has apparent authority to bind his principal to a contract with a third party when the third party reasonably relies on manifestations of the agent's authority induced by the principal. See Frank Mastoloni & Sons Inc. v. United States Postal Serv., 546 F.Supp. 415, 417-18 (S.D.N.Y.1982); Restatement (Second) of Agency ["Restatement"] § 125, at 319.
4. Apparent authority terminates when the third person has notice of the termination of the agent's actual authority. See Restatement § 125, at 318.
5. Parties are deemed to have sufficient notice of the termination of an agent's authority if they have enough facts in their possession to put them on inquiry. See Claflin v. Lenheim, 66 N.Y. 301, 306 (1876); see also Frank Mastoloni & Sons Inc. v. United States Postal Serv., 546 F.Supp. 417-18; Restatement § 135, at 333. Additionally, it is "a well-settled principle of agency that, as a general rule, the principal is bound by notice to or knowledge of his agent in all matters within the scope of the agency." Hurley v. John Hancock Mutual Life Ins. Co., 247 App.Div. 547, 288 N.Y.S. 199, 202 (4th Dep't 1936), quoted in Scientific Holding Co. v. Plessey, Inc., 510 F.2d 15, 26 (2d Cir.1974).
6. Horizon and Ambassador did not reasonably rely on manifestations of Roger's authority induced by Centaur because they had actual notice that Rogers had left Atlantic & Gulf and they had reason to inquire into the authority with which Rogers purported to act in the summer and fall of 1982. Lynch actually knew, at the time that he received Roger's letter of October 20, 1982,[68] that Rogers no longer worked for Atlantic & Gulf. This knowledge was squarely within the scope of Lynch's agency and thus imputed to his principal. Additionally, Rogers communicated with Ambassador and Horizon concerning renewal coverage only in his capacity as president of Guaranteed, which had no authority, actual or apparent, to bind Atlantic & Gulf or Centaur on this matter. Accordingly, Rogers had no apparent authority with respect to the Budget risks.
c. Equitable Estoppel
6a. In order to prove their claim of equitable estoppel, plaintiffs must show that they actually and reasonably relied to their detriment on the other party's misrepresentation or concealment of a material fact. See 3 J. Pomeroy, Equity Jurisprudence § 805, at 190-91.
*1370 7. For the same reasons outlined above, the Court finds that there was no actual or reasonable reliance on Centaur's failure to disclose Roger's termination.
8. The only statement of Hoffman's that plaintiffs might possibly have relied on was the March 18, 1983 letter.[69] Plaintiffs, however, have failed to show that they suffered any detriment as a result of such reliance. On the contrary, the only claims on the Flexi-Van and X-Tra policies of which there is any evidence apparently arose long prior to this date. Moreover, in light of plaintiff's knowledge of Hoffman's limited authority and Roger's lack of authority to bind Centaur or Atlantic & Gulf on these reinsurance policies, the Court finds that any such reliance would be unreasonable.
d. Ratification
9. Ratification of apparent authority requires that the principal have full knowledge of all material facts and either take some action to affirm the purported agent's actions or fail to repudiate the purported agreement. See Restatement §§ 93, 94; see also Mastoloni v. United States Postal Serv., 546 F.Supp. at 421; Imero Fiorentino Assocs. v. Green, 85 A.D.2d 419, 447 N.Y.S.2d 942, 944 (1st Dep't 1982).
10. Plaintiffs rely on the following statements in making their ratification claim:
(a) Hoffman's alleged statements to Chait in December 1982.[70] The Court has found that such statements were not made and thus need not consider this basis for the claim further. In any event, Hoffman did not have apparent or actual authority to bind Centaur.
(b) Atlantic & Gulf and Centaur's silence after Hoffman made certain statements to Rinder in late 1982.[71] The Court finds that plaintiffs have failed to show that Hoffman's statements to Rinder apprised Centaur of all material facts.
(c) Hoffman's March 18, 1983 letter.[72] The Court finds this letter could not in itself have been an affirmation of the renewal because Hoffman had no authority to take such action, a fact of which plaintiffs were aware. Moreover, to the extent that plaintiffs claim that Centaur had a duty to affirmatively repudiate the alleged contract following receipt of this letter, the Court finds that Centaur initiated an investigation once the April Claims Report was received and repudiated the contract within a reasonable time thereafter. In any event, this letter did not inform Centaur of Roger's statements which formed the basis of the alleged contract and thus did not provide Centaur with all material facts.
(d) Centaur's silence after receiving notice of the April Claims Report and the "deliberately vague" letter which Thomas Hughes sent in response.[73] As noted above, the April Claims Report led to a full investigation that resulted in a relatively prompt repudiation as soon as the full facts were known. Thus, Centaur's silence did not constitute a ratification.
For the foregoing reasons, the Court finds that Centaur was not bound as reinsurer on the Budget risks for 1982-1983. Accordingly, this claim is dismissed.
B. The Flexi-Van and X-Tra Risks
11. When an agent without the knowledge and consent of his principal represents an adverse party in a transaction, his contracts relating thereto are voidable at the option of the principal. See John A. Westlund, Inc. v. O'Bryan Construction Co., 123 Vt. 301, 187 A.2d 507 (1963); Restatement § 313(2), at 52. An agent who does so act "must necessarily be unfaithful to one or the other as the duties which he owes to his respective principals are conflicting and incapable of faithful performance *1371 by the same person." Hasbrouck v. Rymkevitch, 25 A.D.2d 187, 188-89, 268 N.Y.S.2d 604, 606 (3d Dep't 1966).
12. The doctrine of voidability on the ground of dual agency is limited to dual representation in the transaction sought to be voided. The dual agency concept does not extend to situations in which one acts as agent for more than one principal in different and unrelated transactions. Therefore, an agent may act as one party's agent in respect to one matter while representing another party in a separate matter. See Koreska v. United Cargo Corp., 23 A.D.2d 37, 258 N.Y.S.2d 432, 436 (1st Dep't 1965).
13. The Correspondent's Agreement between Ambassador and Guaranteed does not give Guaranteed authority to bind Ambassador and thus does not create an agency.
14. Plaintiff Bernstein argues that the burden of proving dual agency is on defendant.[74] Neither party has cited any cases on the issue, and the Court has been unable to find any on point. However, in light of the fact that the issue of dual agency involves facts peculiarly in the control of the plaintiff and does not concern any overriding issue of public policy, the Court holds that once the defendant has raised sufficient facts to put dual agency at issue, the plaintiff bears the burden of proving the absence of dual agency. Cf. Corbin, Contracts §§ 749-51 (2d Ed.1960) (burdens of proof).
15. Plaintiff Bernstein has met his burden of proving absence of dual agency. The only evidence that Rogers acted as an agent for Ambassador with respect to the Flexi-Van and X-Tra risks are the policies to which Rogers' name was affixed. The date of these policies fell after Rogers had left his employment at Atlantic & Gulf. Moreover, the Court has found that these policies were administrative in nature not binding on Ambassador and Rogers, in any case, had no authority to bind Ambassador.
16. Rogers brought a "package deal" to Ambassador. Lynch accepted the deal on behalf of Ambassador. Any actions undertaken by Rogers on behalf of Ambassador, such as collecting and forwarding fees and processing, were merely ministerial and involved no discretion. See Empire State Ins. Co. v. American Central Ins. Co., 138 N.Y. (93 Sickels) 446, 450, 34 N.E. 200 (1893). Rogers received no compensation from Ambassador with respect to these risks.
17. For these reasons, the Court finds that Rogers was not Ambassador's agent with respect to the Flexi-Van and X-Tra policies. Because the Court finds that there was no dual agency, it does not reach the questions of defendant's acquiescence in the dual agency or its failure to protest within a reasonable time.
Accordingly, the Court finds that the Flexi-Van and X-Tra reinsurance contracts are not voidable and directs that the action be stayed pending arbitration of damages on these contracts.
CONCLUSION
For the foregoing reasons, the plaintiffs' claims with respect to the Budget Rent-a-Car risks for 1982-1983 are dismissed. Fed.R.Civ.P. 52(a). Plaintiff Bernstein's claims with respect to the Flexi-Van and X-Tra risks are stayed pending arbitration. Fed.R.Civ.P. 52(a); 9 U.S.C. § 3. The action is dismissed with leave to reopen following completion of the arbitration proceedings.
SO ORDERED.
NOTES
[1] Trial Transcript ["Tr."] at 128-29.
[2] Reinsurance is a transaction whereby the "assuming reinsurer" agrees to indemnify the "ceding insurer" (i.e. the reinsured) against all or part of a loss sustained under policies issued by the ceding insurer. "Facultative" reinsurance is the reinsurance of an individual risk. See Tr. at 613-15.
[3] Tr. at 375.
[4] Deposition of George B. McNeill at 50-51; Tr. at 36-37.
[5] Plaintiff Corcoran's Exhibit ["PCx"]-6.
[6] See id.
[7] Tr. at 155.
[8] Tr. at 574-77.
[9] Tr. at 374, 423.
[10] Tr. at 379-80; Defendant's Exhibit ["Dx"]-BB.
[11] Deposition of Don Carlin at 18, 25-26; Tr. at 11, 13.
[12] Carlin Deposition at 16, 18.
[13] Id. at 22.
[14] A "fronting" arrangement exists when a ceding company is 100% reinsured on a risk. See Tr. at 613-14.
[15] Carlin Deposition at 22-24.
[16] See PCx-5; Tr. at 132-33.
[17] PCx-6.
[18] PCx-7.
[19] PCx-1, 3.
[20] See PCx-2, 4; Tr. at 509-17.
[21] See PCx-34.
[22] Tr. at 334, 482.
[23] See Request for Admissions 67, PCx-43.
[24] Tr. at 616-17, 637-38.
[25] Tr. at 489.
[26] Tr. at 192, 487-89.
[27] Tr. at 203.
[28] Tr. at 137, 182.
[29] PCx-26, 27.
[30] Tr. at 63, 379.
[31] Tr. at 183.
[32] PCx-28, 29.
[33] PCx-30, 32.
[34] Tr. at 360, 541-42.
[35] Tr. at 105, 213, 320, 392, 508, 569.
[36] PCx-14, 15, 16; Dx-X; Tr. at 522.
[37] Tr. at 142, 210, 238, 519-20, 540.
[38] Tr. at 143-44.
[39] Tr. at 119, 520, 551-54.
[40] Tr. at 543, 551.
[41] Tr. at 551-52.
[42] Tr. at 191.
[43] PCx-20, 21.
[44] Tr. at 525-27.
[45] Tr. at 107, 117.
[46] PCx-20, 21; Tr. at 71, 123, 146, 148, 414, 416.
[47] PCx-53.
[48] PCx-23; Tr. at 77-80.
[49] Tr. at 80.
[50] PCx-25; Tr. at 188, 223-24.
[51] PCx-25; Tr. at 147-48; 350-51.
[52] Tr. at 615-16.
[53] Plaintiff Bernstein's Exhibit ["PBx"]-30; Tr. at 445-53, 665.
[54] Tr. at 448.
[55] PBx-30.
[56] See fn. 14 supra.
[57] Tr. at 264-66, 282-89, 401-02, 452, 456, 545, 657-62.
[58] Tr. at 290-91, 660-61.
[59] Tr. at 289; see also Tr. at 663.
[60] PBx-31, 32; Tr. at 643-44, 663-67.
[61] Dx-AU.
[62] Dx-AV.
[63] Dx-AW.
[64] Dx-BC, BD.
[65] Tr. at 665; see also Tr. at 298, 317, 668. The Correspondent's Agreement between Ambassador and Guaranteed did not give Guaranteed or Rogers authority to bind Ambassador on insurance risks. See Dx-L.
[66] Tr. at 291, 550.
[67] Dx-BF.
[68] PCx-27.
[69] PCx-20.
[70] See Findings of Fact, supra, at ¶ 20.
[71] See id.
[72] PCx-20.
[73] See PCx-23.
[74] See Bernstein's Proposed Conclusion of Law at ¶ 1, 83 Civ. 7989 (JMC) (filed Dec. 18, 1985).
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709 F.2d 1513
Yatesv.Beshear
82-5728
UNITED STATES COURT OF APPEALS Sixth Circuit
4/22/83
1
E.D.Ky.
AFFIRMED
| {
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} |
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON MOTION FOR REHEARING
NO. 03-01-00232-CR
NO. 03-01-00233-CR
William Ethridge Hill, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NOS. 0981472 & 0981493, HONORABLE BOB PERKINS, JUDGE PRESIDING
We withdraw our opinion and judgment dated August 30, 2002, and substitute the
following opinion.
Appellant William Ethridge Hill, Jr., brings this consolidated appeal from his
convictions for arson and murder. See Tex. Pen. Code Ann. §§ 19.02; 28.02 (West 1994 & Supp.
2002). In five issues, appellant contends that (1) the evidence is legally and factually insufficient
to support his convictions; (2) the trial court erred by admitting appellant's oral statement; (3) the
trial court erred by admitting appellant's written statement; (4) the trial court erred by admitting
hearsay evidence; and (5) the trial court abused its discretion by denying appellant's motion for new
trial. We will affirm the judgment of the trial court.
BACKGROUND
In the early morning hours of October 2, 1997, the Austin Fire Department received
an alarm concerning a fire at the residence of William Allen. Allen's badly burned body was
discovered in the house, and the medical examiner determined that he had suffered a severe blow
to his face which rendered him unconscious before his death. The medical examiner concluded that
Allen died of smoke inhalation and ruled the case a homicide.
Lieutenant Michael Crabill, an arson investigator, determined that the point of origin
of the fire was in the living room, in the southeast corner, in and around a reclining chair. He also
determined that the fire was started by an open flame. Further, firefighters noted that two gas
burners on the stove in the kitchen had been turned to the "on" position. Neighbors and firefighters
did not realize the deceased was in the burning house because his vehicle was not parked in his
driveway. In a statement to police, appellant later admitted that he moved the deceased's vehicle
down the street on the morning of the fire.
Detective Mark Gilchrest of the Austin Police Department began an investigation and
discovered that the deceased had a roommate who had recently moved out of the house. Appellant
was identified as the roommate. Billy Gene Harris, a neighbor of the deceased, testified that at 3:00
a.m. on the morning of October 2, 1997, he saw a person matching appellant's description get out
of a car parked down the street from the deceased's house. Harris saw this individual walk toward
the deceased's house and return to his vehicle about twenty minutes later. Neighbors discovered the
fire coming out of the deceased's house at approximately 3:45 a.m.
Detective Gilchrest met with some of appellant's acquaintances and learned that he
left Austin on the day of the fire to visit his mother in the Washington, D.C. area. As a result of his
investigation, Gilchrest also determined that appellant had recently stolen and forged several of the
deceased's checks and that the deceased had planned to file charges against appellant.
On October 10, Gilchrest contacted appellant at his mother's home, asked him if he
planned to return to Austin, and told him that they needed to talk further. Gilchrest also made
arrangements to meet with FBI agent Ed Roach in Montgomery County, Maryland, to set up an
interview with appellant.
On October 28, Roach and two officers from Maryland picked up appellant at his
mother's home. Appellant voluntarily accompanied them, and voluntarily met with Gilchrest and
Roach at the Montgomery County Police Department. Forty-five minutes after being placed in an
interview room, appellant was orally advised of his rights by Gilchrest. After three hours of
interrogation, Gilchrest informed appellant that he was under arrest for arson and murder.
Thereafter, appellant admitted that he was present at Allen's house on the night he died. Appellant's
statements were then reduced to writing, with the written statement including Miranda warnings.
After a suppression hearing, the district court did not file findings of fact or
conclusions of law; rather, the court stated its findings on the record. The district court determined
that, although the warnings given by Detective Gilchrest to appellant regarding his rights did not
comply with article 38.22, the portion of appellant's oral statement made before being told he was
under arrest was nonetheless admissible because appellant was not in custody at that time. See
generally Tex. Code Crim. Proc. Ann. art. 38.22 (West 1979). However, the district court
suppressed that portion of the oral statement made after appellant was informed of his arrest because
the court already determined the inadequacy of the pre arrest oral warnings. Finally, after
determining the adequacy of the written Miranda warnings, the district court admitted appellant's
post arrest written statement.
On February 7, 2001, the trial court rendered judgment on a jury verdict convicting
appellant of arson and murder. Appellant appeals the judgment.
DISCUSSION
Appellant's Statements
In his second issue, appellant contends that the trial court erred by denying his motion
to suppress his oral statement made before being placed under arrest. In his third issue, appellant
contends that the trial court erred by denying his motion to suppress his written statement relating
that he stole and forged the deceased's checks and that on the night of the fire he was at the
deceased's house and had a physical altercation with the deceased. These issues bear directly on
appellant's complaints regarding the sufficiency of the evidence to support his convictions.
Accordingly, they will be addressed at the outset. See Tex. R. App. P. 47.1.
Appellant challenges the court's finding that he was not in custody during the
interview with Gilchrest and Roach before being arrested and that he was thus not entitled to the
protections of Miranda, embodied in article 38.22 of the Texas Code of Criminal Procedure. See
generally Tex. Code Crim. Proc. Ann. art. 38.22 (West 1979); see also Miranda v. Arizona, 384 U.S.
436 (1966). We review de novo "mixed questions of law and fact" that do not turn on credibility and
demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (citing Villarreal v.
State, 935 S.W.2d 134, 139-41 (Tex. Crim. App. 1996) (McCormick, P.J. concurring)). We will
review de novo the district court's legal determination that appellant was not in custody at the time
of his pre arrest oral statements.
"A person is in 'custody' only if, under the circumstances, a reasonable person would
believe that his freedom of movement was restrained to the degree associated with a formal arrest."
Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511
U.S. 318 (1994)). The reasonable person test demands that the custody determination be based
entirely upon objective circumstances. Dowthitt, 931 S.W.2d at 254. The court of criminal appeals
has identified at least four general situations that may constitute custody: (1) when the suspect is
physically deprived of his freedom of movement in any significant way; (2) when the suspect is told
by a law enforcement officer that he cannot leave; (3) when law enforcement officers create a
situation that would lead a reasonable person to believe that his freedom of movement has been
significantly restricted; and (4) when probable cause to arrest exists and law enforcement officers
do not tell the suspect that he is free to leave. Id. at 255. For the first three situations, the suspect's
freedom of movement must be restricted to the degree associated with an arrest, as opposed to an
investigative detention. Id. As for the fourth scenario, the subjective intent of law enforcement
officials to arrest is irrelevant unless that intent is somehow communicated or otherwise manifested
to the suspect, and that manifestation, combined with the other objective circumstances, would lead
a reasonable person in the suspect's position to believe that he is under restraint to the degree
associated with an arrest. Id.
After reviewing the record, we hold that appellant was not in custody at the time he
made his pre arrest oral statements. Detective Gilchrest called appellant at his mother's home and
asked if he would talk to them. The police picked him up there, and he voluntarily accompanied the
police to the stationhouse. Appellant was not handcuffed during this time. He was never told he was
being placed into custody. Nor is there any indication appellant was not willing to accompany the
authorities or not willing to talk to them. There is no indication on the record that appellant wanted
to leave or tried to leave at the time he was making his oral statement. When a person voluntarily
accompanies officers to a location and he knows or should know that he is a suspect in the crime the
officers are investigating, the person is not in custody. Shiflet v. State, 732 S.W.2d 622, 628 (Tex.
Crim. App. 1985).
Appellant focuses his argument primarily on the fourth Dowthitt scenario, arguing
that Gilchrest and Roach manifested probable cause by telling appellant that he was a suspect
without expressly informing appellant that he was free to leave. Our review of the record does not
convince us that the district court erred in determining that there was not a manifestation of probable
cause during the course of the interview prior to the arrest. See Roquemore v. State, 60 S.W.2d 862,
866 (Tex. Crim. App. 2001) ("In reviewing a motion to suppress, we give great deference to a trial
court's determination of historical facts.") (citing Guzman, 955 S.W.2d at 89). Appellant was merely
asked specific questions during a continuing investigation. Although appellant probably understood
he was a suspect, this is not itself determinative of the custody issue. See Rodriguez v. State, 939
S.W.2d 211, 216-17 (Tex. App.--Austin 1997, no pet.) ("Even a clear statement by an officer that
the person under interrogation is the prime suspect is not in itself dispositive of the custody issue,
for some suspects are free to come and go until the police decide to make an arrest."). A reasonable
person in appellant's position would not have believed he was restrained to the degree associated
with a formal arrest. Appellant was therefore not in custody when he made the pre arrest oral
statements. See Berkemer v. McCarty, 468 U.S. 420, 441-42 (1984) (holding that suspect not in
custody until formally arrested). Appellant's second issue is overruled.
In his third issue, appellant contends that his written statement should have been
suppressed because it was tainted by his earlier oral statement. Relying on the "cat-out-of-the-bag"
theory, which has been severely limited in its application, see Griffin v. State, 765 S.W.2d 422, 431
(Tex. Crim. App. 1989), appellant argues that because he thought his oral confession could be used
against him, "his resolve to remain silent [was] broken, rendering any subsequent statements
involuntary under the due process clause of the United States Constitution and Article 1 Section 9
of the Texas Constitution."
Making a statement under circumstances that preclude its use does not perpetually
disable the confessor from making a usable one after those circumstances have been removed.
Griffen, 765 S.W.2d at 428 (citing United States v. Bayer, 331 U.S. 532, 541 (1947)). We assess the
effect of giving a statutorily inadmissible statement on the voluntariness of a subsequent statement
from the totality of the circumstances, with the State bearing the burden of proving voluntariness by
a preponderance of the evidence. Id. at 429-30; In re J.T.H., 779 S.W.2d 954, 958 (Tex.
App.--Austin 1989, no writ). Those circumstances include the "length of detention, incommunicado
or prolonged detention, denying family access to a defendant, refusing a defendant's request to
telephone a lawyer or family, and physical brutality." Armstrong v. State, 718 S.W.2d 686, 693
(Tex. Crim. App. 1985). None of these factors is present in this case.
The record reflects that appellant's interrogation lasted around five hours; however,
appellant does not contend and the record does not reflect that this period of time somehow rendered
appellant's written confession involuntary as a matter of law. Appellant was repeatedly offered and
given beverages, as well as food. While he never requested access to an attorney, he was informed,
both orally and in writing, of his right to do so. The record further reflects that Gilchrest informed
appellant that he would be given an opportunity to contact his mother in light of the length of the
interrogation:
[Detective] Gilchrest: Let's take a break just a second.
[Agent] Roach: You want another soda?
[Appellant]: I still have a little bit.
[Detective] Gilchrest: Ethridge, we're going to have to take a break. Let me take
this opportunity to let you go to the bathroom and get you
something else to drink.
[Appellant]: Where do you stand in this proceeding time-wise?
[Detective] Gilchrest: Time-wise?
[Appellant]: Yeah.
[Detective] Gilchrest: A lot of that just depends on where we go. If you want to call
your mom and--in a little while, because if we get to going
too long--
[Appellant]: It's just about 7:30. We're still okay at this point.
Further, in addition to several express offers to take bathroom breaks, appellant was given an open
ended offer to use the restroom at any time. After returning from a break early in the interrogation,
the following exchange took place:
[Detective] Gilchrest: I feel much better now.
[Appellant]: I'm not far away from [using the restroom] myself. That's the
way that (indistinguishable) is.
[Agent] Roach: Oh, just holler. Holler whenever you need to.
Under the totality of the circumstances, the record supports the trial court's subsequent ruling:
The written confession is admissible. The defendant was read his rights, the full
rights, before giving the written statement after he was properly warned with the
written statement. The, there is, there was some question I believe concerning,
there's a question concerning the totality of the circumstances test and the defendant
believing that his prior statement would be used against him. I don't know. There's
just some other notes that I've taken but it really doesn't have anything to do with the
holding. Has to do more with rationale. I do find that with all the warnings that he
did receive, both the oral warnings and the written warnings, and the totality of the
circumstances, the written statement was voluntary.
I do not find the defendant's statements were the product of coercion. The
written warnings cured the omission of the oral warning, or the one omission if there
was an oral warning.
In the absence of specific evidence that the oral statement played an actual role in appellant's
decision to sign a written one, we cannot fault the trial court for its finding. See Griffen, 765 S.W.2d
at 431; see also Guardiola v. State, 20 S.W.3d 216, 223-24 (Tex. App.--Houston [14th Dist.] 2000,
pet. ref'd).
Appellant does not dispute that the statutory requisites for the admission of the
written statement were satisfied. See Tex. Code Crim. Proc. Ann. art. 38.22 § 2(a) (West 1979).
Instead, he contends that Gilchrest "erroneously told Appellant that the written warnings basically
consisted of the same, imperfect, warnings he had recited to Appellant earlier." However, appellant
does not cite, and we are unaware of, authority for the proposition that such a statement renders
statutorily adequate warnings on a written statement ineffective. Because a written statement is not
"obtained" (because it is not admissible) until it is signed, giving the required warnings before the
accused signs the statement meets the statutory requirements. See Dowthitt v. State, 931 S.W.2d
244, 259 (Tex. Crim. App. 1996).
Appellant further contends that because Gilchrest immediately reduced appellant's
oral statements to writing, there was "a direct connection between the prior inadmissible statement
and the subsequent written statement." However, the record reflects that appellant carefully read and
edited his written statement, contemplated his choice of words, and changed his written statement
to more accurately reflect his impression of the events in question. In light of this period of time for
reflection and the totality of the circumstances surrounding appellant's written statement, including
the unchallenged written warnings on that statement, we hold that whatever "direct connection"
existed between his oral and written statement does not render the written statement inadmissible.
Finally, appellant refers to his testimony that "he would not have signed the written
statement had he not made the exact same oral statements moments earlier . . . [and] had he known
his earlier oral statement was not admissible because of the fatally defective statutory warning given
to him." Because this resolution of the "application of law to fact questions" turns on an evaluation
of appellant's credibility and demeanor, we will defer to the trial court's ruling. See Guzman, 955
S.W.2d at 89. The conflicts between appellant's testimony at the suppression hearing and those
portions of the record reflecting that he gave his written statement voluntarily were decided by the
trial court in favor of the State. The trial court is the sole judge of the credibility of the witnesses
and the weight to be given their testimony. Villarreal, 935 S.W.2d at 138. We hold that the trial
court did not err in admitting appellant's written statement into evidence. Accordingly, appellant's
third issue is overruled.
Hearsay Evidence
In his fourth issue, appellant contends that the trial court erred by admitting the
hearsay testimony of Anthony Yates and Evelyn Whiteley. Because this issue also bears directly on
appellant's sufficiency of the evidence complaints, we will address it prior to appellant's first issue.
The admission or exclusion of evidence is a matter within the sound discretion of the
trial court. Jackson v. State, 575 S.W.2d 567, 570 (Tex. Crim. App. 1979). An appellate court may
reverse a trial court's decision for an abuse of discretion only when it appears that the court applied
an erroneous legal standard, or when no reasonable view of the record could support the trial court's
conclusion under the correct law and the facts viewed in the light most favorable to its legal
conclusion. Dubose v. State, 915 S.W.2d 493, 497-98 (Tex. Crim. App. 1996). Even if the appellate
court would have reached a different result, it should not intercede as long as the trial court's ruling
was within the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1991) (op. on reh'g).
Appellant objected to Yates's and Whiteley's testimony concerning their
conversations with the deceased as hearsay. See Tex. R. Evid. 802. The State responded that the
testimony was admissible as a hearsay exception under Rule 803(3), which allows admission of a
statement of the declarant's then existing state of mind, emotion, sensation, or physical condition,
such as intent, plan, motive, design, mental feeling, pain, or bodily health. Id. 803(3).
The record reflects that the trial court overruled appellant's hearsay objection to
Yates's testimony about the deceased's plans to evict appellant, change the locks on his house, and
install deadbolts. The court further overruled appellant's hearsay objection to Whiteley's testimony
that the deceased planned to pursue check charges against appellant and change the locks on his
house, as well as the deceased's "state of mind about wanting to make sure the defendant was out
of there before he filed [check forging charges] on him."
Rule 803(3) clearly provides that testimony as to the deceased's plan and then
existing state of mind is admissible. See id. Because the complained of testimony concerns the
deceased's plans to evict appellant, change his locks, file charges against appellant, as well as his
state of mind concerning when he would file charges against appellant, it is relevant as probative of
a material issue. (1) Thus, we cannot say that the court applied an erroneous legal standard or that no
reasonable view of the record could support the trial court's conclusion under the correct law and
the facts viewed in the light most favorable to its legal conclusion. Further, we cannot say that the
court's decision does not lie within the zone of reasonable disagreement. Accordingly, appellant's
fourth issue is overruled.
Sufficiency of the Evidence
In his first issue, appellant challenges the legal and factual sufficiency of the evidence
to support his convictions for arson and murder. Specifically, appellant contends that the evidence
is legally and factually insufficient to "establish beyond a reasonable doubt the corpus delecti
required in an arson prosecution, i.e., that the fire was set deliberately." Appellant's argument
assumes that his written statement was invalid and that the trial court erred by admitting Yates's and
Whiteley's testimony. We have found that the statement was valid and that the trial court did not
abuse its discretion in admitting Yates's and Whitely's testimony. In any event, we review the legal
sufficiency of the evidence based upon the evidence admitted, even if on appeal we determine that
the evidence is inadmissible. Miles v. State, 918 S.W.2d 511, 512 (Tex. Crim. App. 1996).
Determining the legal and factual sufficiency of the evidence requires the
implementation of separate and distinct legal standards. Johnson v. State, 23 S.W.3d 1, 7 (Tex.
Crim. App. 2000). A legal sufficiency review calls upon the reviewing court to view the relevant
evidence in the light most favorable to the verdict and determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994).
Any inconsistencies in the evidence should be resolved in favor of the verdict. Moreno v. State, 755
S.W.2d 866, 867 (Tex. Crim. App. 1988). This standard of review is the same for both direct and
circumstantial evidence. Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992).
Viewing the evidence in the light most favorable to the verdicts, the record reflects
that the jury could have concluded that appellant went to the deceased's house at around 3:00 a.m.
on the morning of the fire, struck the deceased in the face with a blunt instrument causing injuries
severe enough to render him unconscious, turned on two of the gas burners on the stove in the
deceased's kitchen, and held an open flame causing the origin of the fire. The jury could have
concluded further that appellant parked down the street from the deceased's home and moved the
deceased's vehicle so that neighbors and firefighters would think the deceased was not at home. In
light of the standards set out above, we cannot say that any rational trier of fact could not have found
the essential elements of arson and murder beyond a reasonable doubt.
In determining the factual sufficiency of the elements of the offense, the reviewing
court views all the evidence in a neutral light, without the prism of "in the light most favorable to
the prosecution." Johnson, 23 S.W.3d at 6-7. The court reviews all the evidence impartially,
comparing evidence weighed by the jury that tends to prove the existence of the elemental fact in
dispute with the evidence that tends to disprove that fact. Id. at 7. In conducting its factual
sufficiency review, an appellate court reviews the fact finder's weighing of the evidence and is
authorized to disagree with the fact finder's determination. Clewis v. State, 922 S.W.2d 126, 133
(Tex. Crim. App. 1996). However, it must be remembered that the trier of fact is the sole judge of
the weight and credibility of the testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim.
App. 1997). The court, thus, does not substitute its judgment for that of the jury, and should set
aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. Clewis, 922 S.W.2d at 129. Furthermore, the appellate court may not reverse a
jury's decision simply because it disagrees with the result. Cain v. State, 958 S.W.2d 404, 407 (Tex.
Crim. App. 1997).
Appellant argues that the testimony given by his expert was such that the State's cases
for arson and murder must fail in a factual sufficiency analysis. However, the record does not reflect
any evidence tending to disprove the fact that the fire was set deliberately; appellant's expert witness
testified that the cause of the fire was probably not a smoldering cigarette, but most likely an open
flame. In light of appellant's written statement and the testimony of Yates and Whiteley, the jury
was free to consider appellant's prior relationship with the deceased; the fact that when he went to
the deceased's home appellant parked down the street from the home rather than in the driveway or
in front of the house; the fact that appellant moved the deceased's truck out of his driveway so that
it would not be seen and reveal the deceased's presence at the house; the fact that appellant left
Austin for Maryland later the same morning; and the fact that appellant lied to police about stealing
and forging the deceased's checks and being at the deceased's home and having a physical
altercation with the deceased on the morning of the fire.
Appellant complains that, in order to find he deliberately started the fire, there must
be an impermissible stacking of inferences "unrelated to the physical evidence of the timing and
nature of the ignition of the fatal fire . . . ." In support of this proposition, appellant directs us only
to Tippit v. State, 41 S.W.3d 316, 327 (Tex. App.--Ft. Worth 2001, no pet.), which stated that
"when conducting a legal sufficiency review, a vital fact may not be established by stacking inference
upon inference." Without any authority, we are unwilling to agree with appellant that making factual
inferences based on circumstantial evidence "cannot be anymore permissible when reviewing the
factual sufficiency of the jury's verdicts." See Tex. R. App. P. 38.1(h).
Thus, after examining all of the evidence impartially and giving deference to the
jury's verdict, we conclude that the jury's verdict is not so contrary to the overwhelming weight of
the evidence as to be clearly wrong and unjust. Moreover, from our neutral review of all of the
evidence weighed by the jury that tends to prove that the fire was set deliberately and comparing it
with the evidence that tends to disprove that fact, we find it fails to show that the proof of appellant's
guilt is so obviously weak as to undermine confidence in the jury's determination, or that the proof
of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof.
Because the record reflects both legally and factually sufficient evidence to support
the jury's verdicts, appellant's first issue is overruled.
Motion for New Trial
In his fifth and final issue, appellant contends that the trial court abused its discretion
by denying his motion for new trial. Specifically, appellant contends that he was entitled to a new
trial because one of the jurors stated during deliberations that a statistical analysis demonstrated that
the likelihood that the fire at the deceased's home started accidentally was "so slight as to be almost
impossible."
The grant or denial of a motion for new trial is committed to the sound discretion of
the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). Abuse of discretion occurs
when the trial court's decision is arbitrary or unreasonable. State v. Read, 965 S.W.2d 74, 77 (Tex.
App.--Austin 1998, no pet.). A trial court abuses its discretion "only when the . . . decision was so
clearly wrong as to lie outside that zone within which reasonable persons might disagree." Cantu
v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). The question is "whether the trial court acted
without reference to any guiding rules or principles." Montgomery, 810 S.W.2d at 380. We presume
the correctness of the trial court's ruling, and the burden rests on the appellant to establish the
contrary. State v. Gill, 967 S.W.2d 540, 541 (Tex. App.--Austin 1998, pet. ref'd). The court's
decision will be sustained if it is correct on any theory of law applicable to the case. Read, 965
S.W.2d at 77.
Appellant contends that he was entitled to a new trial because the juror's statements
regarding statistical analysis constituted receipt of other evidence during deliberations. Texas Rule
of Evidence 606(b) limits those matters on which a juror may testify concerning deliberation to: "(1)
whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim
that the juror was not qualified to serve." Tex. R. Evid. 606(b). Accordingly, we interpret
appellant's contention as complaining of outside influence.
Although case law has not specifically defined what constitutes "outside influence,"
it provides ample guidance as to what conduct is not considered an outside influence. Hines v. State,
3 S.W.3d 618, 623 (Tex. App.--Texarkana 1999, pet. ref'd). Outside influences must originate from
sources other than the jury itself. Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 370 (Tex.
2000). An outside influence is a force external to the jury and its deliberations, and it does not
include any part of the jury's mental process. Wooten v. Southern Pac. Transp. Co., 928 S.W.2d 76,
78-79 (Tex. App.--Houston [14th Dist.] 1995, no writ). It "does not include information acquired
by a juror and communicated to the others between the time the trial court instructs the jury and the
time it renders a verdict, even when the information is not in evidence, and it is unknown to jurors
before trial." Crowson v. Kansas City S. Ry. Co., 11 S.W.3d 300, 305 (Tex. App.--Eastland 1999,
no pet.). Information gathered by one juror and related to the other jurors does not constitute outside
influence, even if introduced specifically to prejudice the vote. Soliz v. Saenz, 779 S.W.2d 929, 932
(Tex. App.--Corpus Christi 1989, writ denied).
In this case, the juror's claim that a statistical analysis revealed that the fire was not
likely to have been accidental did not constitute an outside influence because it did not come from
a source outside the jury, it involved the mental processes of a juror, and it did not emanate from
outside the jury and its deliberations. In light of the standards set out above, we cannot say that the
trial court abused its discretion in denying appellant's motion for new trial. Accordingly, his fifth
issue is overruled.
CONCLUSION
We overrule appellant's issues. Accordingly, the judgment of the trial court is
affirmed.
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices Yeakel and Puryear
Affirmed
Filed: December 5, 2002
Do Not Publish
1. In his motion for rehearing, appellant argues that his objections to the testimony was based
partly on relevance grounds, that it "was not probative of any material issue in the cases . . .
regardless of whether it avoided exclusion as hearsay because it was a statement of existing mental
condition." While we find that the testimony was in fact probative to the extent required by rule
803(3), it remains unclear as to whether appellant also complains that the testimony was not relevant
pursuant to article IV of the rules of evidence. See Tex. R. Evid. 402. If article IV is at issue, we
note that neither appellant's brief nor his motion for rehearing cites us to that portion of the rules or
any caselaw discussing the law of relevancy. Thus, we will not further discuss it. See Tex. R. App.
P. 38.1(h).
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97 F.3d 1452
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.UNITED STATES of America, Plaintiff-Appellee,v.Thomas FULFORD, Jr., Defendant-Appellant.
No. 95-4309.
United States Court of Appeals, Sixth Circuit.
Sept. 29, 1996.
Before: KEITH, NORRIS, and DAUGHTREY, Circuit Judges.
ORDER
1
This is a direct appeal from a criminal conviction in which counsel for the defendant moves to withdraw representation. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
In 1995, Thomas Fulford was named in a two count indictment charging him with unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). Fulford eventually entered a plea of guilty to both counts. The court accepted the pleas and the case proceeded to sentencing. The court sentenced Fulford and this appeal followed.
3
Counsel for Fulford filed a motion to withdraw as well as a "no merit" brief pursuant to Rule 12, Rules of the Sixth Circuit and Anders v. California, 386 U.S. 738 (1967). Fulford was served with this motion and a copy of the brief on March 12, 1996 and was invited to respond. See Freels v. Hills, 843 F.2d 958, 961 & n. 3 (6th Cir.), cert. denied, 488 U.S. 997 (1988). Fulford chose not to respond.
4
On June 15 and 20, 1995, Fulford entered two different banks in Cleveland and presented a teller with a handwritten note. The note read "This is a hold-up. You will be the first to die!" This notation was accompanied by a drawing of a pistol. Each teller gave Fulford an amount of cash and he left without incident. Fulford turned himself in to the authorities and pleaded guilty without a formal plea agreement. The court awarded Fulford a 1 level reduction in his base offense level for acceptance of responsibility but added 2 levels because Fulford used an express threat of death to accomplish the crimes. The court calculated Fulford's base offense level as 23 and his criminal history category as I. The court sentenced Fulford to an aggregate 48 month term of imprisonment from the 46-57 month range. In addition, the court imposed a monetary fine of $2,041.95 and restitution in the amount of $4,300.
5
Counsel for Fulford sets forth three arguable issues in recognition of her duty under Anders: 1) Whether the notes used in the bank robberies were "express threats of death" within the meaning of the guidelines; 2) Whether the imposition of the fine was error; and, 3) Whether the district court erred in failing to effect a downward departure.
6
None of these issues has any merit. USSG § 2B3.1(b)(2) provides for a 2 level increase in the defendant's base offense level if, during the commission of the robbery, an "express threat of death was made." The intent of this provision is "to provide an increased offense level for cases in which the offender(s) engaged in conduct that would instill in a reasonable person, who is a victim of the offense, significantly greater fear than that necessary to constitute an element of the offense of robbery." USSG § 2B3.1, comment. (n. 6). The court concluded that the note Fulford used to facilitate each of the two bank robberies carried an express, direct threat of death within the meaning of this guideline provision ("You will be the first to die!") notwithstanding a possible "cartoonish" quality of the rendering of the pistol. This finding cannot be seriously contested on the facts.
7
Imposition of a fine is mandatory pursuant to USSG § 5E1.2(a) unless the defendant carries his burden to show his inability to pay the fine. United States v. Blanchard, 9 F.3d 22, 25-26 (6th Cir.1993). The sentencing transcript clearly reflects Fulford's representation to the court that he was currently employed and paying his bills and it does not reflect that Fulford made any attempt to demonstrate an inability to satisfy a monetary fine. The imposition of the fine and its terms will not be disturbed.
8
The third arguable issue raised is the failure of the district court to effect a downward departure in recognition that Fulford was under duress to obtain cash to pay drug debts. Counsel does concede, though, that a district court's decision not to effect a downward departure is not cognizable on appeal absent some indication that the court was unaware of its authority to do so. United States v. Griffith, 17 F.3d 865, 882 (6th Cir.), cert. denied, 115 S.Ct. 149 (1994). There is no indication of record that the court was acting under any misapprehension concerning its authority under the guidelines in this context.
9
This panel has conducted an independent review of the record and finds that no reversible error mars this conviction and sentence.
10
Accordingly, the motion to withdraw is granted and the district court's judgment is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.
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311 S.E.2d 357 (1984)
STATE of North Carolina
v.
Steven Thomas SIMMONS.
No. 8317SC574.
Court of Appeals of North Carolina.
February 7, 1984.
*358 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Francis W. Crawley, Raleigh, for the State.
White & Crumpler by Fred G. Crumpler, Jr. and Randolph M. James, Winston-Salem, for defendant-appellant.
HEDRICK, Judge.
Defendant assigns as error the trial court's denial of his motion to suppress evidence of marijuana seized from a cornfield and from his home. After a hearing on defendant's motion, the court made findings and conclusions which are summarized as follows:
On 14 July 1982 employees of Duke Power Company were inspecting power lines and power line poles along a power line right of way located on land leased by defendant. While performing his duties one of the employees observed what appeared to be marijuana growing in a cornfield on the land. He broke off part of one plant and took the material to the Pilot Mountain Police Department, where he told an officer what he had seen and where he had seen it. The Stokes County Sheriff's Department was informed of the discovery, and officers from that Department examined the material and believed it to be marijuana. The officers then went to the scene, where they met the defendant as they approached the cornfield. The officers told defendant that they had received a report of marijuana and were going to look for it, whereupon the defendant agreed and led the officers through the cornfield. The officers examined the area along the power line right of way, and discovered what appeared to be marijuana growing in the cornfield. Defendant was then advised of his constitutional rights, and he and the officers returned to the house in which defendant lived alone.
Upon arriving at the house defendant and the officers first sat in an unmarked patrol car, at which time defendant was again advised of his constitutional rights. At this time defendant signed a written waiver of his constitutional rights and consented to a search of his home. Although defendant contends that this consent was coerced, the evidence showed that the "threats" complained of were statements by the officers that they would obtain a search warrant if defendant withheld consent to a search of the house.
Based on the foregoing findings, the court concluded that the searches of the farm property and defendant's residence were reasonable and proper. The court found that defendant "did not have a legitimate or reasonable expectation of privacy in so far as the marijuana patch located in the cornfield is concerned; and the defendant's consent to the search of the residence occupied by him was freely and voluntarily given by him, understanding his position and his status at that time."
*359 Defendant first contends that the court erred in denying his motion to suppress "the fruits of a warrantless search of the leased farmland." Defendant argues that the warrantless search of the cornfield violated his Fourth Amendment right to be free from unreasonable search and seizure.
In Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), the United States Supreme Court held that "the special protection accorded by the 4th Amendment to the people in their `persons, houses, papers, and effects' is not extended to the open fields. The distinction between the latter and the house is as old as the common law." Id. at 59, 44 S.Ct. at 446. That Hester has continued vitality is demonstrated by its application in a recent Sixth Circuit opinion to facts similar to those of the instant case: "[W]e conclude that under Hester and Katz any expectation of privacy that an owner might have with respect to his open field is not, as a matter of law, an expectation that society is prepared to recognize as reasonable.... We believe that no privacy rights inhere and the Fourth Amendment does not protect an open field of marijuana." United States v. Oliver, 686 F.2d 356, 360 (1982). Our Supreme Court followed the "open fields doctrine" established in Hester in State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972), and in State v. Boone, 293 N.C. 702, 709, 239 S.E.2d 459, 463 (1977): "Generally, an open field is not an area entitled to Fourth Amendment protection."
The evidence in the instant case shows that the marijuana was found in a cornfield more than one quarter mile from defendant's house, near a power line right-of-way. We find ample evidence to support the court's finding and conclusion that defendant had no reasonable expectation of privacy in this field and therefore agree with the court's determination that the protections of the Fourth Amendment were not applicable to the area. Accordingly, we find no error in the court's ruling on this point.
Defendant next argues that the court erred in denying his motion to suppress "the fruits of a warrantless search of the defendant's residence." Defendant acknowledges that he signed a "consent to search" form, agreeing to a search of his house by police officers, but contends that this consent was not voluntarily given.
Examination of the evidence adduced at the suppression hearing reveals some conflict in testimony regarding the circumstances surrounding defendant's consent to the search of his home. Defendant testified that he consented only after one of the officers threatened to "make it tough on" the defendant if he refused to sign the consent form. This officer and other officers present at the scene contradicted defendant's testimony, stating that no such statements were made. "When the trial judge's findings of fact are supported by competent evidence they will not be disturbed on appeal, even though the evidence is conflicting." State v. Prevette, 43 N.C. App. 450, 452, 259 S.E.2d 595, 598 (1979). Because there was competent evidence supporting the court's conclusion that "the defendant freely and voluntarily consented to the search of the home," we find no error in the court's denial of defendant's motion to suppress the marijuana uncovered as a result of the search.
Defendant next assigns error to the court's refusal to dismiss the charges against him at the close of the State's evidence "where the State failed to establish the total weight of the alleged marijuana." Defendant contends that the State's own evidence showed that the marijuana loaded onto trucks and weighed was accompanied by roots and dirt, that the material was wet, and that mature stalks, which are to be excluded from the total weight under N.C.Gen.Stat. Sec. 90-87(16), were included in the material loaded and weighed. Although the total weight of the material came to 16,620 pounds, well in excess of the 10,000 pound statutory threshold, and despite the fact that the State terminated the weighing process before weighing one truckload of the material, defendant contends that the evidence was insufficient as a matter of law to establish the essential element of weight of 10,000 pounds or *360 more. He further contends that subsequent destruction of the bulk of the material constituted a denial of his due process rights. A similar claim was discussed by this Court in State v. Anderson, 57 N.C.App. 602, 292 S.E.2d 163, disc. rev. denied 306 N.C. 559, 294 S.E.2d 372 (1982):
Whether the destruction [of physical evidence] infringes upon the rights of an accused depends upon the circumstances in each case. In this case we consider particularly significant the destruction of the bulk of the marijuana in good faith and for a practical reason, the preservation of random samples, the photographs of the physical evidence, and the failure on the part of the defendants to show that the weight of the marijuana, though a necessary element, was a critical issue.
Id. 57 N.C.App. at 610-11, 292 S.E.2d at 168. The Anderson court also noted that "[t]he weight element upon a charge of trafficking in marijuana becomes more critical if the State's evidence of the weight approaches the minimum weight charged." Id. at 608, 292 S.E.2d at 167.
In the instant case, the evidence reveals that officials harvested eight truckloads of the material alleged to be marijuana and "plowed under" another "pickup load or so." The eight loads weighed by officials of the License, Theft, and Weight Section of the North Carolina Division of Motor Vehicles were found to weigh 16,620 pounds. One load contained plants that had been pulled up by the roots, while the remaining loads contained plants that had been mown or handpicked. Some of the plants were damp because of rain that interrupted the harvesting process. Photographs and random samples were taken of the material seized prior to its destruction. The State's evidence shows that the destruction was performed in good faith and for a practical reason. Our examination of this evidence persuades us that the State introduced sufficient evidence on the essential element of weight to permit the case to go to the jury, and we hold that the court did not err in denying defendant's motion to dismiss the charges against him. Furthermore, we think it clear that destruction of the seized marijuana did not deny defendant's right to due process under the circumstances of this case.
Defendant also contends that the court erred in admitting testimony by a police officer that marijuana he observed in an upstairs room of defendant's residence weighed "approximately 200 pounds." The officer testified that marijuana leaves were spread "just about all over the room" "3 to 4 inches deep" in a room "about 9 by 10." Defendant argues that the opinion testimony of this officer was inadmissible because he had not been qualified as an expert witness.
"The weight of objects is a matter on which opinion testimony of a non-expert witness is frequently admitted, provided the witness has those qualifications which show him to be capable of forming opinions upon the issue of weight that are reliable and trustworthy." 31 Am.Jur.2d, Expert and Opinion Evidence Sec. 159 (1967). "It is generally held that evidence as to size, weight, quantity and value from experienced witnesses who base their opinions upon personal observation is admissible." State v. Weinstein, 224 N.C. 645, 650, 31 S.E.2d 920, 924 (1944). The testimony of the officer in the instant case was based on personal observation. Defendant had ample opportunity to challenge the witness' testimony on cross-examination, and he was free to argue the question of its proper weight to the jury. We believe the testimony was properly admitted under these circumstances. We note that even if its admission were erroneous, the abundant evidence of weight which was properly admitted would render any error harmless.
Defendant's next assignment of error asserts that "the trial court committed reversible error at the suppression hearing in allowing evidence as to whether the defendant grew marijuana in that evidence of innocence or guilt of the defendant should not have been considered during the suppression hearing." The exceptions forming the basis of this assignment of error refer to questions put to defendant by the State *361 about what crops he grew on the land he leased, whether he grew marijuana on the land, and the length of his residence in the leased house. In his answer defendant denied growing marijuana on the land. Defendant does not assert that his answers to these questions were improperly admitted against him at trial, nor does he identify any way in which he was prejudiced by the questions. He merely contends that "[e]vidence of guilt ... could cause a Trial Judge to fail to protect the constitutional rights of the accused." We first note that defendant's denial that he grew marijuana on the land can hardly be considered "evidence of guilt." We second note our earlier holding that the court's denial of defendant's motion to suppress finds ample support in the record. This assignment of error borders on the frivolous.
Defendant next assigns error to the court's denial of his motion to strike testimony by an expert witness. The record reveals that the witness was properly qualified as an expert in the identification of controlled substances. The witness was permitted to testify over objection that marijuana stalks he examined were not, in his opinion, mature. When the witness stated on cross-examination that his expertise did not extend to "the growing of marijuana" the defendant moved to strike "any evidence that the State has offered concerning maturity of the plants." Because the State had offered substantial evidence on this point, the motion to strike was clearly overbroad, and the court's action proper. Furthermore, we do not think admission of this testimony, if error, was prejudicial. The evidence relating to maturity of the plants was relevant only because mature stalks are not to be included in calculating the weight of the contraband. As we have already noted, we believe there was ample evidence from which the jury could infer that defendant possessed and manufactured more than 10,000 pounds of marijuana. This assignment of error is without merit.
We have examined the remaining assignments of error brought forward and argued by defendant and conclude that they do not require discussion. We hold that defendant had a fair trial, free from prejudicial error.
No error.
BRASWELL, J., concurs.
EAGLES, J., dissents.
EAGLES, Judge, dissenting.
I respectfully dissent and would vote to reverse based on the failure of the State's evidence to establish that the weight of the marijuana excluding mature stalks, roots and the muddy clods of dirt clinging to the roots amounted to more than 10,000 pounds as alleged. As noted in State v. Anderson, 57 N.C.App. 602, 608, 292 S.E.2d 163, 167 (1982), "weight is one of the essential elements of the crimes charged." In Anderson the weight of the marijuana alleged was "in excess of 2000 pounds" and the evidence showed 2700 pounds including some arguably mature stalks which should have been excluded. The court there considered that the potential for error by including some arguably mature stalks was less significant where the weight differential was not close. Too, the court in Anderson noted that there was no evidence as to the maturity of the stalks and that "the burden was upon the defendant to show that the stalks were mature or that any other part of the matter or material seized did not qualify as `marijuana' as defined by G.S. 90-87(16)."
In the case sub judice as distinguished from the facts in Anderson, there was evidence that there were mature stalks included, that entire plants were pulled up and loaded into trucks including mature plants with mature stalks, roots and dirt clinging to the pulled up roots. In addition there is evidence that the material loaded on the trucks including roots, dirt, stalks and plants had been rained on and that they were wet when weighed.
This case is distinguishable from Anderson in that defendants here did offer credible, largely undisputed evidence as to the diversity of foreign (non-marijuana) materials (dirt, mud, wet stalks, etc.) included in the truckloads weighed and that the material *362 weighed was wet, a factor which would have enhanced the weight.
I do not suggest that marijuana must be processed by law enforcement authorities before being destroyed in order for large volume drug trafficking charges to be sustained. However, I do suggest that fundamental fairness requires, at the least, that where entire plants are uprooted, an effort be made to exclude from the gross weight the roots and dirt or mud attached thereto and that some evidence be presented by the State as to approximately what portion of the material weighed is excludable as mature stalk or otherwise. The burden of proof as to all elements of a crime is properly on the State. The weight charged here is an essential element of the offense. Because the State failed to prove that there were 10,000 pounds of marijuana excluding extraneous material, I would reverse the conviction of trafficking in marijuana by manufacturing in excess of 10,000 pounds.
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792 F.2d 137
U.S.v.Vazquez
86-1078
United States Court of Appeals,Second Circuit.
5/16/86
1
E.D.N.Y.
AFFIRMED
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124 Ga. App. 721 (1971)
185 S.E.2d 786
CASH & SAVE DRUGS, INC.
v.
DREW.
46274.
Court of Appeals of Georgia.
Submitted June 4, 1971.
Decided October 28, 1971.
Landau, Davis & Farkas, Leonard Farkas, II, for appellant.
Whitehurst & Cohen, A. J. Whitehurst, for appellee.
HALL, Presiding Judge.
Defendant in a personal injury action appeals from the denial of its motion for summary judgment. The trial court certified the order for immediate review.
The plaintiff is an elderly lady who fell and injured herself at the rear entrance of defendant's business premises. Her petition alleges that the concrete slab under the covered entry-way was negligently constructed and maintained in that it rose some 2 1/2 inches above the sidewalk, had no warning devices to disclose the rise; no hand rails; and that various items in the vicinity tended to act as further distraction from this dangerous rise (e.g. neon lights, brick lattice wall, stored "debris," utility poles and wires). Plaintiff's deposition clearly shows that it was a bright, dry day; that she was accompanied by two young grandchildren; that she tripped on this rise and not on any debris or other foreign matter on the slab; and that she had used this entrance at least once a month, sometimes more often, for the past six months. However, her petition stated she did not have "actual knowledge" of the rise and that it had been constructed "shortly before" her fall. There is nothing in the record to indicate exactly when the entrance was built, nor does plaintiff assert that this was the first time she had used the entrance as it was reconstructed. Even if it were, however, the test would be the same was this rise inherently dangerous so that, assuming the exercise of ordinary care for her own safety, plaintiff could still have fallen.
We see nothing in the pleadings, deposition or photographic *722 evidence to indicate this entry is a hazard per se of which the proprietor had superior knowledge. The mere existence and maintenance of a difference in floor levels or of steps in a business building does not alone constitute negligence. Hershel McDaniel Funeral Home v. Hines, 124 Ga. App. 47 (183 SE2d 7); Korn v. Tamiami Trail Tours, 108 Ga. App. 510 (133 SE2d 616); dissenting opinion of presiding Judge Jenkins in Wardlaw v. Executive Comm. of Baptist Convention, 47 Ga. App. 595, 596 (170 SE 830), approved in Executive Comm. of Baptist Convention v. Wardlaw, 180 Ga. 148 (178 SE 155) and Vaissiere v. J. B. Pound Hotel Co., 184 Ga. 72 (1) (190 SE 354); Gibson v. Consolidated Credit Corp., 110 Ga. App. 170 (1) (138 SE2d 77).
The court erred in denying defendant's motion for summary judgment.
Judgment reversed. Eberhardt and Quillian, JJ., concur. Whitman, J., not participating because of illness.
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In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-4203, 99-4205, and 99-4210
United States of America,
Plaintiff-Appellee,
v.
Peter N. Fernandez, III, Peter N. Fernandez,
Jr., and Kenneth K. Getty,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CR 835--Ruben Castillo, Judge.
Argued February 21, 2001--Decided March 7, 2002
Before Posner, Kanne, and Diane P. Wood,
Circuit Judges.
Kanne, Circuit Judge. On October 27,
1998, defendants Peter N. Fernandez,
Jr., Peter N. Fernandez, III, and Kenneth
K. Getty, were convicted of eight counts
of mail fraud in violation of 18 U.S.C.
sec.sec. 1341 and 1346, four counts of
theft of funds in violation of 18 U.S.C.
sec. 666, five counts of engaging in
monetary transaction in property derived
from unlawful activities in violation of
18 U.S.C. sec. 1957, and four counts of
money laundering in violation of 18
U.S.C. sec. 1956. The indictment provided
that between the summer of 1996 and April
1997, defendants engaged in a scheme
designed to defraud the Village of Lyons
by rigging bids submitted for municipal
building projects and then laundering the
proceeds. On appeal, defendants argue
that their convictions should be vacated
because: (1) their activities fell beyond
the purview of 18 U.S.C. sec. 1341, (2)
neither the mail fraud counts nor the
jury instructions embraced "materiality"
as an essential element of the offense,
(3) independent of the mail fraud counts,
the money laundering counts cannot
survive, (4) the jury instructions
regarding the elements of money
laundering were inconsistent and
contradictory, and (5) the government
failed to establish a necessary element
of the alleged 18 U.S.C. sec. 666
violations. We find each of these
arguments to be unpersuasive and affirm
the defendants’ convictions.
I. History
Defendants were charged with eight
counts of mail fraud, four counts of
theft of funds, five counts of engaging
in monetary transaction in property
derived from unlawful activities, and
four counts of money laundering. In
essence, the indictment alleged that
defendants engaged in a scheme designed
to defraud the Village of Lyons by
rigging bids submitted for municipal
building projects and then laundering the
proceeds. Each defendant entered a plea
of not guilty. A jury convicted each
defendant on all counts and the district
court sentenced Getty to 66 months
imprisonment, Fernandez, Jr. to 60 months
imprisonment, and Fernandez, III to 48
months imprisonment.
The Village of Lyons is a municipal
corporation and a political subdivision
of the State of Illinois. Getty served as
one of six elected trustees on the Lyons’
Board of Trustees from 1991 until March
1996. As a trustee, Getty received a
modest salary of $3,400 per year. In
addition to being a trustee, Getty also
owned his own insurance business, Kenneth
K. Getty Insurance Company. On March 19,
1996, the presiding mayor of Lyons
resigned for personal reasons. The Board
then selected Getty to serve as acting
mayor until April 1997.
Shortly after becoming acting mayor,
Getty took certain steps to centralize
his power. For example, Getty caused the
village manager, who oversaw the day-to-
day operations of Lyons, to be terminated
without cause. Within weeks of the
village manager’s termination, the
position was eliminated, and Getty
assumed the village manager’s full-time
duties. Additionally, Getty sought to
complete certain municipal building
projects in Lyons in order to increase
his chance of success in the next mayoral
election. The projects included the
renovation of the Village Hall and the
construction of a new Village Public
Works garage.
Getty consulted with his friend, Peter
Fernandez, Jr., regarding the two
building projects. Fernandez, Jr. was the
sole owner of Norman-Marc Associates
Design Build Firm ("Norman-Marc"). Soon
thereafter, Getty chose, and the Board
approved, Norman-Marc to serve as the
first ever "Village Architect." Andrew M.
Fernandez, Fernandez, Jr.’s younger
brother and a licensed architect,
occasionally provided architectural
services to Norman-Marc. However, Norman-
Marc was not a licensed architectural
firm, and Fernandez, Jr. was not a
licensed architect. Although the Board
approved Norman-Marc’s designation as
"Village Architect," only Getty and
Fernandez, Jr. negotiated the details of
Norman-Marc’s compensation. Getty agreed
to pay Norman-Marc $100 per hour for
consulting work, in addition to
commissions on construction projects
equivalent to 9% of the total cost of
each project.
In June 1996, the Board authorized Lyons
to solicit bids for both the renovation
of the Village Hall and the construction
of a new Public Works garage. Combined,
these projects were estimated to cost
approximately $1 million. As the cost of
these projects would exceed $10,000,
Illinois law required Lyons to conduct a
formal bidding process, awarding the
construction contracts to the lowest
qualified bidder. Lyons employed a pre-
qualification process whereby potential
bidders would submit pre-qualification
questionnaires, requiring background and
financial information. Lyons would review
the submitted questionnaires prior to
accepting bids on the projects in order
to determine whether the bidder was
sufficiently qualified for the projects.
After the Board approved the
construction plans, Getty directed that a
one-day notice soliciting pre-
qualification applications be placed in
the Des Plaines Valley News, a weekly
newspaper with a circulation of 5,000, as
opposed to the Suburban Life Citizen,
which had a circulation of 30,000 and
usually served as the forum for Village
bid solicitations. The notice directed
interested bidders to obtain the pre-
qualification questionnaires from Lyons’
Building Department Commissioner, Michael
Kerrigan. Kerrigan testified at trial,
however, that he never received any
requests for pre-qualification
questionnaires.
Evidence presented at trial revealed
that Getty, Fernandez, Jr., and
Fernandez, III caused pre-qualification
questionnaires to be submitted by four
companies-- Randolph I. Anderson
Development Company, Inc. ("Randolph"),
Thompson Enterprises, Riverside
Construction Corporation ("Riverside"),
and Midwest Industrial Construction, Inc.
("Midwest").
Before trial, the parties stipulated
that Randolph I. Anderson was a full-time
practicing attorney and that Randolph,
the construction company, did not exist.
Anderson was a friend of the Fernandez
family and personally agreed to submit a
pre-qualification questionnaire. However,
Anderson decided not to submit a bid on
the projects.
Thompson Enterprises also was not a
valid company. Jeffery Thompson was
Fernandez, III’s former classmate and
friend. Thompson testified at trial that
during the summer of 1996, Fernandez, III
encouraged him to submit a bid for the
projects. At the time, Thompson was
employed as a computer systems analyst
for the Square D Company. Thompson
testified that in mid-August, he met with
Fernandez, Jr. and Fernandez, III. At
this meeting, the Fernandezes gave
Thompson a completed pre-qualification
questionnaire bearing the name "Thompson
Enterprises." Although the questionnaire
listed Thompson’s home telephone number
and address, Thompson testified that he
was not affiliated with such a company.
Thompson also testified that most of the
information on the questionnaire was
false, including purported clients and
information regarding previous projects.
Additionally, the questionnaire was pre-
dated for July. Thompson also testified
that during this meeting, Fernandez, Jr.
calculated the dollar amounts that
Thompson was to submit as bids for the
projects. Fernandez, III and Thompson
typed this information onto bid forms,
and then Thompson signed his name.
Fernandez, Jr. instructed Thompson not to
talk to anyone from the Board who might
try to contact him. Additionally,
Fernandez, Jr. told Thompson to change
his outgoing home answering machine
message to indicate that the caller had
reached Thompson Enterprises.
Riverside owner and long-time friend of
Getty, Jack Andersen, testified that
Getty personally requested that Riverside
bid on the projects. Further, Andersen
testified that Getty requested that
Riverside "bid high." Andersen explained
that Riverside was a union shop with
prices generally too high for
municipalities, and that Riverside
primarily did concrete work. Andersen
also stated that Getty filled out the
pre-qualification questionnaire and the
bid forms on behalf of Riverside.
Andersen explained that on August 13,
1996, Getty visited Andersen’s office and
asked Andersen general questions about
Riverside. During the visit, Getty
presented Andersen with a blank pre-
qualification questionnaire and bid
forms, and asked Andersen to signed them.
Anderson complied. Andersen testified
that the following day he received from
Getty, via facsimile, a completed pre-
qualification questionnaire dated July
29, 1996, and completed bid forms for the
two projects. He testified that all of
the forms were going to be submitted on
behalf of Riverside. Although the forms
were purportedly completed by Riverside,
Andersen testified that he did not
complete any of them.
Finally, Fernandez, III submitted a pre-
qualification questionnaire and bids on
behalf of Midwest. Fernandez, III listed
three clients as references for Midwest.
All three clients subsequently testified
that Midwest had never done any work for
them. Since 1994, Fernandez, III had
worked as construction superintendent for
a company named Industrial Construction,
Inc. ("Industrial"). It was Fernandez,
III’s duty at Industrial to bid on
projects. James Zakovec, the owner of
Industrial, testified that he thought
that Fernandez, III was bidding on the
Lyons projects on behalf of Industrial,
not on behalf of Midwest. Zakovec
testified that eventually he and
Fernandez, III agreed that Industrial
would work as Midwest’s subcontractor on
the two projects.
Lyons awarded the contracts to Midwest
because Midwest’s bids were the lowest
bids the Board received. Lyons agreed to
pay Midwest $963,200 to complete the two
projects. Midwest subcontracted with
Industrial for $784,200. Thus, Midwest
stood to make $179,000 on the completed
projects.
It was not until after Midwest submitted
the lowest bid and the Board selected
Midwest’s bid that Fernandez, III filed
Articles of Incorporation in the State of
Illinois for Midwest and sought an
Employer Identification Number for
Midwest. Additionally, Midwest did not
secure worker’s compensation and employer
liability insurance until after the bids
were awarded. Through his contacts in the
insurance industry, Getty helped Midwest
secure the insurance policies.
One month after receiving the contracts,
Midwest opened a bank account. Fernandez,
III and Fernandez, Jr. were the
signatories on the account. By April,
1997, Fernandez, Jr. and Fernandez, III
had deposited checks and cash from Lyons
totaling $722,960. Evidence was presented
at trial which revealed that Midwest
wrote seven checks to "Cash" from the
account, totaling $32,200. Additionally,
$51,400 in checks were written to
Fernandez family members and $17,521.79
in checks were used to pay personal, non-
business expenses.
Additionally, throughout the
aforementioned events, Norman-Marc was
providing its purported architectural
services to Lyons. Through December 1997,
Norman-Marc deposited checks from Lyons
totaling approximately $148,000. Of that
amount, $136,097.50 was related to work
Norman-Marc had done on the two projects
that had been awarded to Midwest. Between
June 1996 and June 1997, checks totaling
$126,450 were written from Norman-Marc’s
account to "Cash" and to various
Fernandez family members.
During the course of construction,
Fernandez, Jr. requested and Getty
approved multiple change orders on the
projects. The change orders added
$320,219 to the amount Lyons owed
Midwest. By the time a new building
commissioner issued a "stop-work" order
in April 1997, Midwest’s net profit on
the projects was $93,271.
On September 8, 1998, Getty, Fernandez,
Jr., and Fernandez, III were charged in a
twenty-one count Superseding Indictment.
Counts 1 through 8, the mail fraud
counts, detailed the bid-rigging scheme
and provided that defendants devised to
defraud Lyons of money and property by
means of false and fraudulent pretenses,
representations, and promises and
material omissions; to deprive Lyons and
its citizenry of their right to Getty’s
honest services as the mayor of Lyons;
and to deprive Lyons and its citizenry of
their right to Fernandez, Jr.’s honest
services as Village Architect. Each count
listed a different mailing used to
further defendants’ scheme to defraud
Lyons and Lyons’ citizenry./1 Counts 9
through 12 charged defendants with
obtaining by fraud funds in excess of
$5,000 on four separate occasions from
Lyons, a local government, which receives
in excess of $10,000 per year under
federal programs. Counts 13 through 17
charged defendants with knowingly
engaging in a monetary transaction in
criminally derived property of a value
greater than $10,000, which was derived
from mail fraud. Each of these counts
listed an individual check drawn from
Midwest’s bank account in an amount
greater than $10,000. Finally, Counts 18
through 21 charged defendants with
conducting a financial transaction
involving the proceeds of the mail fraud,
with the intent to promote the carrying
on of the mail fraud, knowing that the
property involved in the financial
transaction represented theproceeds of
some form of unlawful activity. Again,
each of these counts listed a separate
check drawn from Midwest’s bank account
used to make partial payments to
Industrial for construction work
performed on the two projects.
On October 27, 1998, the jury returned
a verdict finding Getty, Fernandez, Jr.,
and Fernandez, III guilty on all counts.
II. Analysis
A. Mail Fraud
Defendants present three arguments in
support of their assertion that their
mail fraud convictions should be vacated.
First, defendants claim that their
activities fell beyond the purview of 18
U.S.C. sec.sec. 1341/2 and 1346/3
because the government failed to prove "a
legally cognizable scheme to defraud."
Second, defendants claim that their
activities fell beyond the purview of 18
U.S.C. sec.sec. 1341 and 1346 because the
mailings that the government used as the
basis for defendants’ mail fraud
convictions were not mailings used "in
furtherance of a scheme." Third,
defendants claim that neither the
indictment nor the jury instructions
embraced the concept of "materiality" as
an essential element of mail fraud and
therefore, because the government failed
to establish an essential element of the
crime, the defendants argue that they
were not proven guilty beyond a
reasonable doubt.
1. Scheme to Defraud
Defendants’ first argument on appeal
lacks merit and warrants minimal
discussion. Defendants contend that the
government needed to prove a
"contemplated harm to the victim" in
order to prove a "scheme to defraud."
Normally, when a defendant challenges the
sufficiency of the evidence presented, we
review the evidence in a light most
favorable to the government and if any
evidence can support the conviction, the
defendant’s efforts must fail. See United
States v. Seward, 272 F.3d 831, 835 (7th
Cir. 2001). In this case, however, we do
not have to review the sufficiency of the
evidence because to establish their prima
facie case, the government did not have
to prove a contemplated harm to a victim
as the defendants contend. This court has
repeatedly stated that to convict for
mail fraud under 18 U.S.C. sec. 1341, the
government must prove three elements: (1)
that the defendant participated in a
scheme to defraud; (2) that the defendant
intended to defraud; and (3) that the
defendant used the mails in furtherance
of the scheme. See id. This Circuit has
never required the government to
establish a "contemplated harm to the
victim." Defendants’ reliance on United
States v. D’Amato, 39 F.3d 1249, 1257 (2d
Cir. 1994) ("[D]eceit must be coupled
with a contemplated harm to the victim.")
(quotation omitted) and on United States
v. Jain, 93 F.3d 436, 441 (8th Cir. 1996)
(quoting D’Amato) is misplaced. Even if
D’Amato were the law in this Circuit,
defendants ignore the D’Amato court’s
explanation that fraudulent intent, which
is essential to a scheme to defraud, may
be inferred from the scheme "[w]hen the
’necessary result’ of the actor’s scheme
is to injure others." 39 F.3d at 1257. In
this case, the necessary result of the
defendant’s actions was to deprive Lyons
and its citizenry of the opportunity to
award and receive construction work at
the most competitive price and the honest
services of Getty and Fernandez, Jr.
Contrary to defendants’ assertion, we
fail to find anything in the language of
United States v. Bloom, 149 F.3d 649 (7th
Cir. 1998), to support their position
that this Circuit requires the government
to prove a contemplated harm to a victim.
In Bloom, this court compared a violation
of state-law fiduciary duties and federal
mail fraud. See id. at 654-58 (explaining
that in order to establish mail fraud
under the intangible rights theory the
government must show that an employee
misused his position for private gain).
Bloom says nothing about a contemplated
harm to a victim, much less that such
harm must be established in order to
sustain defendants’ convictions.
2. Mailings in Furtherance of the
Scheme
Next, defendants argue that the
government failed to prove that they used
the mails in furtherance of a scheme to
defraud. See Seward, 272 F.3d at 835. In
challenging the sufficiency of the
evidence against them, defendants "face[
] the usual stringent standard of review:
if the evidence presented at trial, taken
in the light most favorable to the
prosecution, can support the jury’s
conclusion, [defendants’] effort[s] must
fail." Id.
Initially, defendants assert that any
purported scheme ended on August 20,
1996, the date that Midwest was awarded
the contracts by Lyons. Thus, they argue,
because the mailings listed in counts 2
through 8 in the indictment all
transpired after August 20, the mailings
occurred after any purported scheme had
ended. Further, defendants claim that
even if the scheme did not end on August
20, the mailings listed in the indictment
were ancillary to, and not in furtherance
of, any purported scheme. We find
defendants’ arguments unpersuasive.
Defendants’ scheme to defraud involved
depriving Lyons and its citizenry of
money and property and the honest
services of Getty and Fernandez, Jr.
Defendants’ scheme did not end on August
20, as the defendants would have this
court believe. Rather, defendants’ scheme
continued through April 1997--when the
stop-work order was issued--because until
the stop-work order was issued, Midwest
continued to receive payments from Lyons
and defendants continued to conceal the
truth about their bid- rigging scheme.
Moreover, in Seward, this court
explained that while "the mail fraud
statute does not reach every single use
of the mails that is in any way remotely
related to a scheme to defraud," a
mailing will be considered in furtherance
of the scheme if it is "incidental to an
essential part of the scheme. . . . In
other words, the success of the scheme
must in some measure depend on the
mailing." Id. at 835-36 (citations
omitted). We find that the mailings
listed in Counts 2 through 8 are, in
fact, essential parts of defendants’
scheme. For example, Count 2 charges
defendants with sending a letter to
Thompson Enterprises informing Thompson
that it was not a successful bidder and
Count 4 charges defendants with sending a
letter from Getty to Midwest informing
Midwest that its bid had been selected.
These notifications were not merely
ancillary to the execution of the fraud,
rather, each of these letters furthered
defendants’ scheme by falsely portraying
to anyone who examined Lyons’ records
that the bids submitted were legitimate,
thereby concealing the true nature of the
scheme. Similarly, the mailings in Counts
3 through 8 all contributed to the
success of defendants’ scheme./4 Each
mailing helped to further the scheme by
falsely portraying the legitimacy of
Midwest. Defendants needed Midwest to ap
pear legitimate in order to collect
payments from Lyons. Thus, the mailings
charged in the indictment were in
furtherance of the scheme to defraud.
3. Materiality
Finally, relying on Neder v. United
States, 527 U.S. 1, 25, 119 S. Ct. 1827,
144 L. Ed. 2d 35 (1999), defendants argue
that "materiality" is an essential
element of mail fraud and because the
indictment and the jury instructions
failed to allege materiality, the
government failed to prove an essential
element of the crime. Thus, defendants
contend that their convictions should be
vacated. In Neder, the Supreme Court held
that "materiality" is an essential
element of "scheme to defraud" under the
mail fraud statute. See id. This court
has explained that "[a] false statement
is material, [and thus may potentially
establish violation of wire and mail
fraud statutes], if it has a natural
tendency to influence, or is capable of
influencing, the decision of the
decisionmaking body to which it was
addressed." United States v. Gee, 226
F.3d 885, 891 (7th Cir. 2000) (quotation
omitted).
Because defendants did not challenge the
indictment prior to trial, the indictment
will be deemed sufficient "unless it is
so defective that it does not, by any
reasonable construction, charge an
offense for which the defendant is
convicted." United States v. Gooch, 120
F.3d 78, 80 (7th Cir. 1997) (quotation
omitted). We do not find the indictment
to be so defective. The indictment
alleged (1) that the defendants, by
submitting three illegitimate bids,
rigged the bidding process, (2) that
defendants prepared false responses to
pre-qualification questionnaires, and (3)
that the defendants’ scheme included
"false and fraudulent pretenses,
representations, and promises and
material omissions" intended to cause
Lyons to lose money and property. These
allegations encompassed the concept of
materiality. The defendants’ alleged
actions clearly would have influenced
Lyons’ decision to award the contracts to
Midwest. Defendants knew that a
reasonable person, particularly a Trustee
voting on who to award the contracts to,
would attach importance to such matters
as whether the bidding company existed,
whether the company had experience, and
whether costs were projected by the
company in good faith rather than
contrived estimates.
With respect to the jury instructions,
because defendants did not raise this
objection in the court below, we review
only for plain error. See United States
v. Olano, 507 U.S. 725, 732-34, 1135 S.
Ct. 1770, 123 L. Ed. 2d 508 (1993). We
will reverse only if the error was (1)
clear and uncontroverted at the time of
appeal and (2) affected substantial
rights, which means the error affected
the outcome of the district court
proceedings. See United States v. Holmes,
93 F.3d 289, 292-93 (7th Cir. 1996)
(quotation omitted)./5 While we
recognize that the district court did not
explicitly instruct the jury on
"materiality," we find that, when viewed
in their entirety, the jury instructions
encompassed the concept of materiality.
In this case, the judge charged the
jury: "In considering whether the
government has proven a scheme to
defraud, it is essential that one or more
of the false pretenses, representations,
promises and acts charged in the portion
of the indictment describing the scheme
be proved." The judge then stated that
"[a] scheme to defraud is a scheme that
is intended to deceive or cheat another
and to obtain money or property or cause
the loss of money or property to another
or to deprive another of someone’s honest
services." Finally, the judge explained
that "’intent to defraud’ means that the
acts charged were done knowingly with the
intent to deceive or cheat a victim in
order to cause a gain of money or
property to the defendant or to deprive
another of someone’s honest services."
Again, materiality has been defined as
having "a natural tendency to influence,
or is capable of influencing, the
decision of the decisionmaking body to
which it was addressed." Gee, 226 F.3d at
891 (quotation omitted). We believe that
these instructions adequately required
the jury to find that the defendants made
false representations which were capable
of influencing, and thereby deceiving,
Lyons. Thus, these instructions viewed in
their entirety adequately embraced the
concept of materiality. See also United
States v. Reynolds, 189 F.3d 521, 525 n.2
(7th Cir. 1999) (explaining that
instructions adequately placed the
question of materiality before the jury
even though the instructions did not
explicitly use the term "materiality");
United States v. Pribble, 127 F.3d 583,
589 (7th Cir. 1997) (same)./6
B. Money Laundering Counts
Next, defendants challenge their money
laundering convictions./7 Defendants
assert that the money laundering
convictions and sentences should be
vacated because the district court gave
inconsistent and contradictory money
laundering jury instructions. We do not
agree with defendants’ characterization
of the jury instructions.
Because defendants did not object to the
money laundering instructions at trial,
we review defendants’ challenge for plain
error. See Olano, 507 U.S. at 732-34.
Defendants were charged with violations
of 18 U.S.C. sec.sec. 1957(a) and
1956(a)(1)(A)(i)./8 The district court
instructed the jury that the government
must prove "[1] that the defendant
engaged or attempted to engage in a
monetary transaction, [2] that the
defendant knew the transaction involved
criminally derived property, [3] that the
property had a value greater than
$10,000, [4] that the property was
derived from mail fraud, and [5] that the
transaction occurred in the United
States." The district court then stated:
The government must prove that the
defendant knew that the property
represented the proceeds of some form of
activity that constitutes a felony under
state or federal law. The government is
not required to prove that the defendant
knew that the property involved in the
transaction represented the proceeds of
mail fraud.
Defendants argue that initially the
district court instructed the jury that
in order to sustain the money laundering
counts, the criminally derived property
had to be derived from mail fraud. Then,
according to defendants, the district
court told the jury that the government
needed only to prove that the property
represented the proceeds of some form of
activity that constitutes a felony under
state or federal law. Defendants now
argue on appeal that these instructions
were confusing and directly
contradictory.
Defendants, however, fail to see the
difference between the relevant
instructions. As stated in the
instructions, the government did not need
to prove that the defendants knew the
criminally derived property was derived
from mail fraud, only that the defendants
knew that the transaction involved some
form of criminally derived property.
Additionally, the government needed to
prove that the criminally derived
property was, in fact, derived from mail
fraud. The instructions in question
presented these two different elements
that the government needed to establish.
Thus, the jury instructions were neither
inconsistent nor contradictory.
C. Theft of Funds
Finally, defendants argue that their
convictions under 18 U.S.C. sec. 666
should be vacated./9 Defendants assert
that the government failed to establish a
necessary element of the offense, the
requisite link between a federal interest
and the defendants’ fraud. We do not
believe that it is necessary for the
government to establish such a link.
Section 666 punishes an agent of a local
government who obtains through fraud
property valued at $5,000, or more, from
a local government that receives, in any
one-year period, benefits in excess of
$10,000 from federal funds. See 18 U.S.C.
sec. 666. In United States v. Grossi, a
township supervisor was convicted of
taking brides in exchange for payments
out of the town’s general assistance
program in violation of 18 U.S.C. sec.
666. 143 F.3d 348, 349-50 (7th Cir.
1998). On appeal, the defendant asserted
that since the township’s general
assistance program was funded entirely by
local sources, the requirement that the
local government receive $10,000 in
federal funds was not satisfied. See id.
at 350. In reply to the defendant’s
argument, this court explained that
"money is fungible and its effect
transcends program boundaries." Id.
Because the parties stipulated at trial
that Lyons received over $10,000 under a
federal program in 1996 and 1997, it was
not necessary for the government to
further establish a link between the
defendants’ fraud and a federal interest.
See id.
III. Conclusion
For the foregoing reasons, we AFFIRM the
convictions of Getty, Fernandez, Jr., and
Fernandez, III.
FOOTNOTES
/1 Count 1 charges defendants with a mailing sent to
Midwest. Count 2 charges defendants with a mail-
ing sent to Thompson Enterprises. Count 3 charges
defendants with mailing Midwest’s Article of
Incorporation to the Secretary of the State of
Illinois. Count 5 charges defendants with a
letter containing an Employer Identification
Number for Midwest. Count 6 charges defendants
with a mailing from an insurer to Midwest con-
taining Midwest’s worker’s compensation and
employer liability insurance policy. Finally,
Counts 7 and 8, charge defendants with mailing
checks from Industrial to one of its subcontrac-
tors, Mathis Plumbing, for work Mathis Plumbing
performed on the Lyons projects.
/2 Title 18 of The United States Code Section 1341
is entitled "Frauds and Swindles." It provides:
Whoever, having devised or intending to devise
any scheme or artifice to defraud, or for obtain-
ing money or property by means of false or
fraudulent pretenses, representations, or promis-
es . . . for the purpose of executing such scheme
or artifice or attempting to do so, places in any
post office or authorized depository for mail
matter, any matter or thing whatever to be sent
or delivered by the Postal Service . . . shall be
fined under this title or imprisoned not more
than five years, or both.
/3 Title 18 of the United States Code Section 1346
defines scheme to defraud, which includes "a
scheme or artifice . . . designed to deprive
another of the intangible right of honest servic-
es."
/4 Count 3 charges defendants with mailing Midwest’s
Articles of Incorporation to the Secretary of the
State of Illinois. Count 5 charges defendants
with a letter containing an Employer Identifica-
tion Number for Midwest. Count 6 charges defen-
dants with a mailing from an insurer to Midwest
containing Midwest’s worker’s compensation and
employer liability insurance policy. Finally,
Counts 7 and 8 charge defendants with mailing
checks from Industrial to one of its subcontrac-
tors, Mathis Plumbing, for work Mathis Plumbing
performed on the Lyons projects.
/5 We are aware that the defendants argue that their
objection to the jury instructions should be
deemed timely because it was based upon an inter-
vening Supreme Court decision. Although we do not
find the defendants’ argument persuasive, under
a harmless error standard of review our decision
would be the same.
/6 We reiterate what we stated in Reynolds, "[a]-
lthough there is no plain error here, in the
future, given the Court’s ruling in Neder, dis-
trict courts should include materiality in the
jury instructions for sec. 1344." 189 F.3d at 525
n.2.
/7 Defendants assert that independent of the mail
fraud counts, the money laundering counts (13-21)
cannot survive. Because we are affirming defen-
dants’ convictions under the mail fraudstatute,
it is not necessary to discuss this argument.
/8 18 U.S.C. sec. 1956(a)(1)(A)(i) punishes "[w]hoe-
ver, knowing that the property involved in a
financial transaction represents the proceeds of
some form of unlawful activity, conducts or
attempts to conduct such a financial transaction
which in fact involves the proceeds of specified
unlawful activity with the intent to promote the
carrying on of specified unlawful activity." 18
U.S.C. sec. 1957(a) punishes "[w]hoever . . .
knowingly engages or attempts to engage in a
monetary transaction in criminally derived prop-
erty of a value greater than $10,000 and is
derived from specified unlawful activity."
/9 Title 18 of the United States Code section 666
provides in part:
(a) Whoever, if the circumstance described in
subsection (b) of this section exists--(1) being
an agent of an organization, or of a State,
local, or Indian tribal government, or any agency
thereof--(A) embezzles, steals, obtains by fraud,
or otherwise without authority knowingly converts
to the use of any person other than the rightful
owner or intentionally misapplies, property that-
-(i) is valued at $5,000 or more, and (ii) is
owned by, or is under the care, custody, or
control of such organization, government, or
agency; or (B) corruptly solicits or demands for
the benefit of any person, or accepts or agrees
to accept, anything of value from any person,
intending to be influenced or rewarded in connec-
tion with any business, transaction, or series of
transactions of such organization, government, or
agency involving any thing of value of $5,000 or
more; or (2) corruptly gives, offers, or agrees
to give anything of value to any person, with
intent to influence or reward an agent of an
organization or of a State, local or Indian
tribal government, or any agency thereof, in
connection with any business, transaction, or
series of transactions of such organization,
government, or agency involving anything of value
of $5,000 or more; shall be fined under this
title, imprisoned not more than 10 years, or
both.
(b) The circumstance referred to in subsection
(a) of this section is that the organization,
government, or agency receives, in any one year
period, benefits in excess of $10,000 under a
Federal program involving a grant, contract,
subsidy, loan, guarantee, insurance, or other
form of Federal assistance.
(c) This section does not apply to bona fide
salary, wages, fees, or other compensation paid,
or expenses paid or reimbursed, in the usual
course of business.
| {
"pile_set_name": "FreeLaw"
} |
845 A.2d 239 (2004)
ESTATE OF Rosalie HARRIS, Petitioner,
v.
WORKERS' COMPENSATION APPEAL BOARD (SUNOCO, INC. and ESIS/SIGNA), Respondents.
Commonwealth Court of Pennsylvania.
Argued March 1, 2004.
Decided March 24, 2004.
*240 Richard W. Rosenblitt, Philadelphia, for petitioner.
Charles S. Katz, Philadelphia, for respondent.
BEFORE: McGINLEY, J., LEAVITT, J., and McCLOSKEY, Senior Judge.
OPINION BY Judge LEAVITT.
The estate of Rosalie M. Harris (Estate) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) holding that the Estate was not eligible to pursue a claim for specific loss benefits on account of Harris' permanent injury that occurred before her death. Affirming the decision of the Workers' Compensation Judge (WCJ), the Board reasoned that Harris, while alive, was eligible to pursue a specific loss benefit for the amputation of her leg but this eligibility did not survive her death by transfer to the Estate. We affirm.
The facts, which were developed by stipulation of the parties, are as follows. On September 27, 1999, Harris was involved in a serious motor vehicle accident while in the course of her employment with Sunoco, Inc. (Employer). She remained hospitalized as a result of these injuries until her death on November 26, 1999. Ten days before Harris' death, her right leg, afflicted by gangrene, was amputated above the *241 knee. Pursuant to a Temporary Notice of Compensation Payable, Employer covered all of Harris' medical expenses, paid her total disability benefits until her death and paid the statutory funeral allowance on account of her death.
At the time of her death, Harris was 61 years of age and separated from her husband, John Harris. She also left five children, each of whom was over the age of 23 years and not dependent upon her for support.[1] Harris' will names her children as heirs, to share equally in her residuary estate; her will expressly excludes her estranged husband from any distribution.
On January 25, 2002, the Estate filed a petition for review requesting that Harris' injuries be resolved to a specific loss. The petition was opposed by Employer, and a hearing was held before a WCJ. The sole question before the WCJ was whether an estate is entitled to claim a specific loss benefit where the decedent was receiving total disability benefits at the time of death and died of causes related to a compensable injury. Because Harris had no dependents, as that term is defined in the statute, and died from a work-related injury, as opposed to another cause, the WCJ held that the Estate could not meet the prerequisites for an award of specific loss benefits arising from the amputation of Harris' lower right leg. The Estate appealed, and the Board affirmed. The Estate now petitions for our review.
On appeal,[2] the Estate asserts that the Board erred as a matter of law. The Estate raises one question, believed to be a question of first impression, for our consideration. It contends that because Employer will not pay death benefits, inasmuch as Harris did not leave any dependents, the Estate is eligible to claim specific loss benefits. In response, Employer contends that specific loss benefits may be awarded after the death of an injured employee only where the death is unrelated to the work-related injury and only to a statutory dependent of a deceased employee, not an estate.
Section 306 of the Pennsylvania Workers' Compensation Act (Act), Act of June, 2, 1915, P.L. 736, as amended, 77 P.S. §§ 511, 512 and 513, recognizes three types of disability: total disability,[3] partial disability[4] and permanent disability,[5] commonly known as "specific loss."[6] As a general matter, "disability," a term that is not defined in the Act, is considered a loss of earning power. Harbison-Walker v. Workmen's Compensation Appeal Board, 40 Pa.Cmwlth. 556, 397 A.2d 1284 (1979). Thus, Pennsylvania is considered a "wage loss" jurisdiction where disability payments are made for the duration of a claimant's inability to labor. This is not the case, however, with a permanent disability. *242 "Disability resulting from permanent injury"[7] is paid without regard to whether the permanent injury has actually caused a wage loss. For permanent injuries, the Act has established a schedule of compensation for each category of injury, such as the loss of a body part by amputation, and this compensation covers all disability connected with the permanent injury. Killian v. Heintz Div. Kelsey Hayes, 468 Pa. 200, 360 A.2d 620 (1976). Thus, a claimant who has received a specific loss benefit for the amputation of a finger may not reinstate benefits when arthritic pain later develops at the site of the amputation. Czap v. Workmen's Compensation Appeal Board (Gunton Corp.), 137 Pa. Cmwlth. 612, 587 A.2d 49 (1991). On the other hand, the award of a specific loss benefit does not bar a claim for partial or total disability[8] for "separate and distinct disabilities" stemming from injuries to separate and distinct body parts. BCNR Mining Corp. v. Workmen's Compensation Appeal Board (Hileman), 142 Pa.Cmwlth. 588, 597 A.2d 1268 (1991).
In sum, had Harris survived her injuries, she could have pursued a specific loss benefit for the loss of her right lower leg. Her benefit, established in Section 306(c)(5) and (6) of the Act, would have been as follows:
(5) For the loss of a lower leg, sixty-six and two-thirds per centum of wages during three hundred fifty weeks.[[9]]
(6) For the loss of a leg, sixty-six and two-thirds per centum of wages during four hundred ten weeks.
77 P.S. § 513(5) and (6). Because Harris also suffered multiple fractures to her left leg and left hip, these separate injuries were, presumably, separately compensable for as long as they rendered her unable to work. BCNR Mining.[10]
Where, as here, an employee is fatally injured in the course of employment, Section 307 of the Act, 77 P.S. §§ 542, 561, 562, provides that the employee's compensation benefits survive in the form of "fatal claim" benefits. Such benefits accrue on the date of death and can be claimed only by a surviving spouse, children, parents, brothers and sisters; however, these persons must also demonstrate that they were dependents of the deceased employee. Section 307 of the Act, 77 P.S. § 562. In this case, none of Harris' survivors could show dependency and, thus, were not eligible for fatal claim benefits.[11]
*243 The survivability of specific loss benefits is treated separately in the Act. Section 306(g) provides that specific loss benefits can be paid to the same category of dependent persons listed in Section 307 of the Act but only where "the employee [should] die from some other cause than the injury...." 77 P.S. § 541. Section 306(g)(7) further provides that
[i]f there be no dependents eligible to receive payment under this section then the payments shall be made to the estate of the deceased but in an amount not exceeding reasonable funeral expenses as provided in this act or if there is no estate, to the person or persons paying the funeral expenses of such deceased in an amount not exceeding reasonable funeral expenses as provided in this act.
77 P.S. § 541(7) (emphasis added).
When a claimant is entitled to both total disability and a specific loss benefit for the same injury, the claimant has the right to choose which benefit will provide the greatest advantage. Mosier v. Workmen's Compensation Appeal Board (Jessop Steel Co.), 144 Pa.Cmwlth. 527, 601 A.2d 1319, 1321-1322 (1992).[12] Our Supreme Court has held that a statutory dependent of a deceased employee can also make this election and choose specific loss benefits in lieu of total disability. Reed v. Workmen's Compensation Appeal Board (Stork Diaper Service, Inc.), 499 Pa. 177, 452 A.2d 997 (1982). However, in Reed, the claimant permitted to make this election was the dependent of an employee whose death was unrelated to his injury.
Harris died without making an election for specific loss benefits in lieu of total disability. The Estate reasons that if a dependent can make this election on behalf of the deceased employee, as in Reed, then an estate also should be able to make this election on behalf of the deceased employee. The Estate contends that nothing in the Act forbids this logic. Further, the Estate contends that Section 410 of the Act provides a separate basis for the payment of specific loss benefits to an estate. We disagree.
Section 410 of the Act provides in relevant part as follows:
In case any claimant shall die before the final adjudication of his claim, the amount of compensation due such claimant to the date of death shall be paid to the dependents entitled to compensation, or, if there be no dependents, then to the estate of the decedent.
77 P.S. § 751 (emphasis added). Accordingly, had Harris died before her final total disability payment was made, Employer would still have to make that payment "to the date of death." The meaning of Section 410 has been definitively construed by this Court as follows:
Section 410 of the Act is a general provision which states that benefits due to a claimant who dies before final adjudication of his or her claim are payable to the claimant's estate or dependents. This statutory provision does not provide an independent or supporting basis for a specific loss award as Claimant maintains.
Endres v. Workmen's Compensation Appeal Board (City of Philadelphia), 677 A.2d 901, 903 (Pa.Cmwlth.1996). Indeed, the issue in Endres was *244 whether the WCJ properly denied specific loss benefits to claimant where Decedent suffered a total disability and a specific loss and his death resulted from causes related to the work injury.
Id. at 902. Except that the claimant in Endres was a dependent, Endres is on all fours with this case.
The holding in Endres is firmly grounded in precedent. In Burns v. International Security Services, Inc. v. Workmen's Compensation Appeal Board (Crist), 79 Pa.Cmwlth.340, 469 A.2d 336, 338 (1984), this Court held "that a prerequisite to payment of specific loss payments to survivors is that the claimant's death was from a cause other than the [work-related] injury." In City of Scranton v. Workmen's Compensation Appeal Board (Rideski), 536 Pa. 161, 638 A.2d 944 (1994), the Pennsylvania Supreme Court held that a dependent, a widow, could collect a specific loss benefit awarded to decedent prior to his death from causes unrelated to his injury because his death was treated as a "termination" of his total disability, thereby triggering the obligation to pay his specific loss benefit. The Estate contends that these cases stand only for the proposition that a claimant cannot collect both fatal claim and specific loss benefits after the death of an injured employee. Since the Estate seeks payment of specific loss benefits alone, it contends that its claim does not contradict the principles established in Endres, Burns and City of Scranton. However, the holdings in these cases are not so limited; rather, they stand for the legal conclusion that Section 306(g) of the Act governs the payment of specific loss benefits and that such benefits may be paid only where death of the employee is from a cause other than the work injury.
We disagree also with the Estate's contention that the Act does not prohibit payment of a specific loss benefit in these circumstances. Section 306(g) of the Act expressly limits the survival of specific loss benefits to a situation where death is "from some other cause than the injury...." 77 P.S. § 541. Under the statutory construction principle expressio unius est exclusio alterius, we must find that because the General Assembly conditioned payment of specific loss benefits on a death by cause other than the work injury that it intended to exclude the alternative, i. e., death by the work injury. There is a sound reason for this canon of construction; without it, the Act would have been twice as long because its drafters would have been required to couple every declarative sentence with its obverse.[13]
If Harris had followed the North Star paradigm, 404 A.2d at 1384, as she likely would have had she lived,[14] her specific loss benefits would have been suspended until her total disability terminated. Where a claimant is awarded specific loss and dies without a dependent, the specific loss benefit is to be made "to the estate of the deceased but in an amount not exceeding reasonable funeral expenses...." Section 306(g) of the Act, 77 P.S. *245 § 541(7) (emphasis added). Claimant died without dependents. Accordingly, Employer's obligation to pay specific loss benefits, had they been awarded prior to Harris' death, would have been satisfied by the payment it has already made to the Estate for reasonable funeral expenses. Accordingly, there is nothing further to be gained by making a specific loss benefit award to the Estate.
The Estate would have this Court create a new category of claim, i.e., payment of specific loss benefits to an estate, not a dependent, where death is caused by the work-related injury and not by another cause. This claim has no grounding in the language of the Act and is at odds with case law precedent. The General Assembly has spoken, and we are so bound.
Accordingly, we affirm the Board.
ORDER
AND NOW, this 24th day of March, 2004, the order of the Workers' Compensation Appeal Board in the above-captioned matter dated August, 20, 2003, is hereby affirmed.
NOTES
[1] Richard Petolla, one of Harris' surviving children, filed a fatal claim petition, alleging that he was a dependent even though he was over 23 years in age. He receives social security disability payments, but he has never been declared incompetent. He withdrew his petition prior to the Estate filing its petition.
[2] In reviewing Board decisions, this Court's standard of review is limited to a determination of whether there was an error of law committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 121 Pa. Cmwlth.436, 550 A.2d 1364 (1988).
[3] Section 306(a) of the Act, 77 P.S. § 511.
[4] Section 306(b) of the Act, 77 P.S. § 512.
[5] Section 306(c) of the Act, 77 P.S. § 513.
[6] "Specific loss" does not appear in the Act; it is the term popularly used to describe the disability payments to be made where a claimant has suffered a permanent injury.
[7] Section 306(c) of the Act, 77 P.S. § 513.
[8] It was established in Lente v. Lucci, 275 Pa. 217, 119 A. 132 (1922) that compensation for the permanent disability, e.g., loss of a leg, does not bar continued disability payments for an injury "separate and distinct" from that covered by the specific loss benefit.
[9] Harris' average weekly wage at the time of her accident were $1,137.22 leaving a weekly disability rate of $588.04. The Estate asserts that should receive $241,080 ($588 × 410 weeks) plus 10% statutory interest. Because Harris' leg was amputated above the knee, the Estate claims that the permanent injury was for a leg, not a lower leg.
[10] Section 306(d) of the Act, 77 P.S. § 513, resolves situations in which a single incident gives rise to both a permanent injury and "separate and distinct injuries." The period of temporary total disability from the separate injuries runs first; thereafter, the compensation specified in Section 306(c) of the Act for the permanent injury begins to run for the statutorily-prescribed time. North Star Transfer Co. v. Workmen's Compensation Appeal Board, 45 Pa.Cmwlth. 180, 404 A.2d 1382 (1979) (wherein specific loss benefits were suspended until the total disability payments terminated).
[11] A widower must show he cannot support himself and was dependent upon his wife for support at the time of her death to be eligible for benefits. However, in Oknefski v. Workmen's Compensation Appeal Board, 63 Pa. Cmwlth. 450, 439 A.2d 846 (1981), this Court held that the widow's standard for compensation under Section 307 of the Act applies to widower's, i.e., living with the claimant at the time of the claimant's death. Children are entitled to benefits until age 18 unless they are full-time students, in which case, benefits terminate at age 23. Section 307 of the Act, 77 P.S. § 562.
[12] This election is made where the permanent injury causes a total disability; it does not apply to the Lente v. Lucci situation where an incident causes separate and distinct injuries.
[13] In this case, for example, Section 306(g) would have to read "benefits will be paid to survivors of an employee whose death is not by the injury but by some cause other than the injury" in order to avoid the Estate's proffered construction.
[14] See David B. Torrey, Andrew E. Greenberg, Workers' Compensation: Law and Practice § 5:149 (2002), wherein it explained that under "crafty application" of Section 306(g) of the Act it is advisable to suspend specific loss benefits until termination of total disability with the expectation that if claimant died while in total disability, dependents could receive specific loss benefits. However, Torrey notes that this paradigm only works if the claimant dies of a cause other than the work injury.
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994 F.2d 716
25 Fed.R.Serv.3d 1005
David J. LYONS, Commissioner of Insurance for the State ofIowa and receiver for the Iowa Trust,Plaintiff-Appellee/Cross-Appellant,v.JEFFERSON BANK & TRUST, a Colorado corporation,Defendant-Appellant/Cross-Appellee.
Nos. 92-1209, 92-1212 and 92-1377.
United States Court of Appeals,Tenth Circuit.
May 3, 1993.Rehearing Denied June 17, 1993.
William C. Waller, Jr. (Denis H. Mark and Robert M. Vinton with him, on the briefs) of Vinton, Waller, Slivka & Panasci, Denver, CO, for defendant-appellant/cross-appellee.
Walter W. Garnsey, Jr., of Kelly/Haglund/Garnsey & Kahn, Denver, CO (Edwin S. Kahn of Kelly/Haglund/Garnsey & Kahn, Bonnie J. Campbell, Atty. Gen., and Anuradha Vaitheswaran, Asst. Atty. Gen., Iowa Securities Bureau, Des Moines, IA, with him, on the briefs), for plaintiff-appellee/cross-appellant.
Before McKAY, Chief Judge, McWILLIAMS and KELLY, Circuit Judges.
McKAY, Chief Judge.
1
* This case is a dispute between two innocent parties, both of which had the misfortune of retaining Mr. Steven Wymer as their investment counselor. On November 25, 1991, Defendant Jefferson Bank & Trust sought to temporarily liquidate its portfolio of $44.7 million under the management of Mr. Wymer. Jefferson Bank re-invested these moneys the next day. On December 9, 1991, the Securities and Exchange Commission filed a civil action against Mr. Wymer and the companies he controlled. On December 10, 1991, Jefferson Bank liquidated its position with Mr. Wymer for a second time, this time permanently. Two hours later, all of Mr. Wymer's assets were frozen at the request of the SEC.
2
On December 13, 1991, the Iowa Trust, an investment vehicle for several public organizations in the state of Iowa, informed Jefferson Bank that the moneys it received as proceeds of the first liquidation on November 25, were actually the proceeds of Iowa Trust's portfolio with Mr. Wymer, which had been embezzled earlier that day. Iowa Trust claimed that it could trace those funds through a complex series of transactions to Jefferson Bank's account.
3
Four days later, on December 17, a criminal complaint was filed in United States District Court for the Central District of California, charging Mr. Wymer with securities fraud and mail fraud. On September 29, 1992, Mr. Wymer plead guilty to one count of violating the RICO statute, 18 U.S.C. § 1962(c) (1988), three counts of mail fraud contrary to 18 U.S.C. § 1341 (1988), one count of bank fraud contrary to 18 U.S.C. § 1344 (1988), three counts of securities fraud contrary to 15 U.S.C. § 78j(b) (1988) and 17 C.F.R. § 240.10b-5 (1991), and one count of obstruction of the SEC contrary to 18 U.S.C. § 1505 (1988). He also agreed to forfeit substantially all his assets to create a fund to reimburse his victims. The companies he controlled are now in Chapter 7 liquidation proceedings.
4
When Jefferson Bank refused Iowa Trust's demand to return the funds in question, Iowa Trust1 filed this diversity suit in the District of Colorado, and asked for a temporary restraining order placing the money in escrow. The trial court denied the T.R.O. but subsequently granted a preliminary injunction under which Jefferson Bank was ordered to place $43.1 million in escrow. Lyons v. Jefferson Bank & Trust, 781 F.Supp. 1525 (D.Colo.1992) [hereinafter Lyons I ].2
5
The suit progressed on an expedited basis and came to trial in late April 1992. At trial, Iowa Trust presented detailed evidence of a long series of transactions, all occurring on November 25, 1991, through which its funds were transferred to Jefferson Bank's account. It also presented evidence which showed that the portfolio assets that Jefferson Bank thought were sold on November 25 did not in fact exist. Jefferson Bank, in presenting its case, relied almost exclusively on the records provided by Mr. Wymer to demonstrate that it did indeed own a substantial portfolio, and that all it received on November 25 were the proceeds of the sale of those assets.
6
In its findings of fact and conclusions of law, the trial court found that "the overwhelming credible evidence" supported Iowa Trust's version of the facts. Lyons v. Jefferson Bank & Trust, 793 F.Supp. 981, 984 (D.Colo.1992) [hereinafter Lyons II ]. Accordingly, it awarded Iowa Trust $42,843,614.13 plus the interest attributable to that amount from the escrow account. Id. at 987.3 The trial court rejected Iowa Trust's claim for statutory pre-judgment interest. Id. at 986-87. It also stated that Iowa Trust was entitled to any profits that were attributable to the $42.8 million trust res prior to the sequestration of the funds in escrow. Id. at 986. However, because it found that Iowa Trust had failed to prove the amount of such profits, it awarded no additional amounts to Iowa Trust. Id. at 986.
7
Following trial, Jefferson Bank realized that it, too, had been a victim of Mr. Wymer's fraud. Jefferson Bank retained new counsel and filed an extensive post-trial brief that, for the first time, proceeded on the basis of Iowa Trust's version of the facts. Specifically, it argued that the records from Mr. Wymer, which it had relied on at trial, were fraudulent, and that the money it received from the "sale" of bonds that did not in fact exist was actually funds that Mr. Wymer had embezzled from Iowa Trust.
8
In short, they claimed that Mr. Wymer embezzled Iowa Trust's money to cover up his prior embezzlement of Jefferson Bank's money. They requested that the evidence be re-opened to allow the trial court to make new findings of fact and made several new legal arguments. Their principal new theory was that no justice was achieved by transferring a loss from one innocent victim to another, and, therefore, that the court should leave the parties where it found them.
9
The trial court declined to exercise its discretion under Fed.R.Civ.P. 52 and 59 to re-open the evidence or grant a new trial. Lyons v. Jefferson Bank & Trust, 793 F.Supp. 989, 993 (D.Colo.1992) [hereinafter Lyons III ]. The court also rejected Jefferson Bank's legal arguments as untimely, calling the tardiness a "dispositive deficiency." Id. at 990. Nonetheless, it addressed Jefferson Bank's arguments on the merits "in the interest of a complete record," id., and rejected each in turn.
10
After the district court denied post-judgment relief under Rules 52 and 59, Jefferson Bank returned a second time, this time seeking relief from judgment under Rule 60(b). It claimed that Mr. Wymer's guilty plea, which substantially corroborated the factual allegations in their post-trial motion,4 constituted new evidence that justified a new trial. The district court rejected that motion as well.5
This consolidated appeal followed.6
II
11
* We consider first the issues raised in Jefferson Bank's initial appeal from the judgment of the district court. We defer until part VI infra our discussion of Jefferson Bank's subsequent appeal from the district court's denial of its motion to re-open the judgment under Fed.R.Civ.P. 60(b).
12
In its initial appeal, Jefferson Bank asks us to review numerous issues that Iowa Trust claims were not properly preserved for appeal. We therefore begin our discussion with a review of the principles regarding the preservation of issues for appeal.
13
In Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), the Supreme Court stated that "[i]t is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below." Id. at 120, 96 S.Ct. at 2877. The court elaborated:
14
[T]his is "essential in order that parties may have the opportunity to offer all the evidence that they believe relevant to the issues ... [and] in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence." We have no idea what evidence, if any, [the opposing party] would, or could, offer ..., but this is only because [it] has had no opportunity to proffer such evidence. Moreover, even assuming that there is no such evidence, [the opposing party] should have the opportunity to present whatever legal arguments he may have....
15
Id. (quoting Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941)).
16
In the years since, we have further fleshed out other reasons underlying this rule. Thus, we have noted that review of issues not raised below "would ... require us to frequently remand for additional evidence gathering and findings," Hicks v. Gates Rubber Co., 928 F.2d 966, 970-71 (10th Cir.1991); would undermine the "need for finality in litigation and conservation of judicial resources," id. at 971; would often "have this court hold everything accomplished below for naught," Bradford v. United States, 651 F.2d 700, 704 (10th Cir.1981); and would often allow "[a] party ... to raise [a] new issue on appeal [when that party] invited the alleged error below." Id.
17
However, this rule is not without exceptions. We have held that it does not apply to "cases where the jurisdiction of a court to hear a case is questioned, [or] sovereign immunity is raised." Hicks, 928 F.2d at 970. More generally, the Supreme Court has stated:
18
The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases. We announce no general rule. Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt ... or where "injustice might otherwise result."
19
Singleton, 428 U.S. at 121, 96 S.Ct. at 2877 (citations omitted) (quoting Hormel, 312 U.S. at 557, 61 S.Ct. at 721).
20
Consequently, we have exercised our discretion to hear issues for the first time on appeal only in the most unusual circumstances. See Petrini v. Howard, 918 F.2d 1482, 1483 n. 4 (10th Cir.1990) (proper resolution of the issue was beyond doubt and injustice would otherwise result); Grubb v. FDIC, 833 F.2d 222, 224 (10th Cir.1987) (discretion exercised to consider the conditions of a supersedeas bond, in part because the issue was purely a question of law); Stahmann Farms, Inc. v. United States, 624 F.2d 958, 961 (1980) (discretion exercised where the issue was purely one of law, and where the issue was a ground for affirming, not reversing, the trial court); Leo Sheep Co. v. United States, 570 F.2d 881, 891 (10th Cir.1977) (discretion exercised where closely related issue was raised below, appellant briefed the issue and failed to object to its consideration until the petition for rehearing), rev'd on other grounds, 440 U.S. 668, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979).
B
21
* In the main, however, we have consistently refused invitations to consider new issues on appeal. We have therefore repeatedly stated that a party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory. Lone Star Steel v. United Mine Workers, 851 F.2d 1239, 1243 (10th Cir.1988); United States v. Lattauzio, 748 F.2d 559, 561 (10th Cir.1984). We have been particularly insistent on this rule in cases where the theory advanced on appeal was in direct contradiction to the theory pursued in the trial court. See Dime Box Petroleum Corp. v. Louisiana Land and Exploration Co., 938 F.2d 1144, 1148 (10th Cir.1991); Bradford v. United States, 651 F.2d 700, 704-05 (10th Cir.1981).
2
22
Our requirement that an issue be " 'presented to, considered [and] decided by the trial court,' " Cavic v. Pioneer Astro Indus., 825 F.2d 1421, 1425 (10th Cir.1987) (quoting Eureka-Carlisle Co. v. Rottman, 398 F.2d 1015, 1019 (10th Cir.1968)), raises two questions key in this appeal.
23
* The first is what kind of specificity is required in the trial court in order to preserve an issue for appeal. The touchstone on this issue is that "vague, arguable references to [a] point in the district court proceedings do not ... preserve the issue on appeal." Monarch Life Ins. Co. v. Elam, 918 F.2d 201, 203 (D.C.Cir.1990). While we have at times given a liberal reading to pleadings and motions in the trial court, see Lurch v. United States, 719 F.2d 333, 338-39 (10th Cir.1983), cert. denied, 466 U.S. 927, 104 S.Ct. 1710, 80 L.Ed.2d 182 (1984); Stone v. First Wyoming Bank, 625 F.2d 332, 348 (10th Cir.1980), we have consistently turned down the argument that the raising of a related theory was sufficient. See Grasmick v. Otis Elevator Co., 817 F.2d 88, 89-90 (10th Cir.1987) (negligent failure to warn claim does not preserve negligent design claim); Baker v. Penn Mut. Life Ins. Co., 788 F.2d 650, 663 (10th Cir.1986) (breach of contract argument does not preserve issue of tortious conversion of negotiable instruments); United States v. Lattauzio, 748 F.2d 559, 561 (10th Cir.1984) (argument that guarantors of a debt were not liable because the collateral was not sold in a commercially reasonable manner does not preserve theory that they could not be liable because the debtor had not defaulted).
24
b
25
Similarly, we have held that where an issue is raised but not pursued in the trial court, it cannot be the basis for the appeal. See Cavic v. Pioneer Astro Indus., 825 F.2d 1421, 1425 (10th Cir.1987) (statute of limitations defense, though raised in the answer, the pre-trial order, and the opening statement, was never mentioned during the actual trial and could not be pursued on appeal); Northern Natural Gas Co. v. Hegler, 818 F.2d 730, 734 (10th Cir.1987) (argument that could be inferred from a trial exhibit, but was not otherwise discussed, could not be argued on appeal); Dumbell Ranch Co. v. Cherokee Exploration, Inc., 692 F.2d 706, 707-08 (10th Cir.1982) (implied license claim, though mentioned in some pre-trial memoranda and mentioned by one witness, did not appear in the answer or the pre-trial order, and was not discussed by counsel at trial, and thus was waived); Gilbert v. Medical Economics Co., 665 F.2d 305, 310 (10th Cir.1981) (while "vilification" claim, under a liberal reading, encompasses a "false light" claim, the plaintiff never indicated to the trial court that she was pursuing a "false light" theory, and therefore could not argue the theory on appeal).
3
26
A second issue is the effect that a post-trial motion which raises a new issue has on appellate review. It is true that we have in the past noted the failure to bring a post-trial motion in rejecting attempts to raise new issues on appeal. See Northern Natural Gas Co. v. Hegler, 818 F.2d 730, 734 (10th Cir.1987). However, an untimely motion, by itself, is not sufficient to preserve an issue for appellate review. See Melton v. Oklahoma City, 879 F.2d 706, 718 n. 15 (10th Cir.1989) (issue raised for the first time on a motion for judgment N.O.V. not properly preserved), vacated on other grounds, 928 F.2d 920 (10th Cir.1991) (en banc); Burnette v. Dresser Indus., 849 F.2d 1277, 1285 (10th Cir.) (arguments raised on motion for reconsideration were not considered by the trial court and would not be addressed on appeal).
C
27
In short, there are many ways in which a case may present what Singleton describes as "issues not passed upon below." Singleton, 428 U.S. at 120, 96 S.Ct. at 2877. One is a bald-faced new issue. Another is a situation where a litigant changes to a new theory on appeal that falls under the same general category as an argument presented at trial. A third is a theory that was discussed in a vague and ambiguous way. A fourth is issues that were raised and then abandoned pre-trial. A fifth is an issue raised for the first time in an untimely motion. These are all different aspects of the same principle that issues not passed upon below will not be considered on appeal. As such, they are governed by the same law.
III
28
* 1
29
Turning to the facts of the present case, Jefferson Bank's briefs concede, with welcome candor, that its arguments concerning the alleged Ponzi scheme and concerning the need to prove a quasi-contractual claim for unjust enrichment were not raised until a post-trial motion. Nevertheless, Jefferson Bank strenuously argues that because the trial court addressed the merits of these arguments, they are preserved for review.
30
We do not agree. The trial court was very explicit in stating that it did not intend to provide an avenue for appellate review of new legal theories. It stated:
31
Defendant's motions are obviously filed by new counsel in a blatant attempt to belatedly inject new issues into the case at the district court level, hoping that these issues may be preserved for appeal. Despite this dispositive deficiency in defendant's motions, I will address the merits of the matter presented in the interest of a complete record.
32
Lyons III, 793 F.Supp. at 990. It subsequently added that "defendant's failure to assert these arguments before trial precludes granting a new trial or rehearing. However, in an abundance of caution, I will consider each argument in turn." Id. at 992.
33
Under these circumstances, where the trial court explicitly rejected Jefferson Bank's invitation to insert new legal theories into the case, we hold that the trial court's discussion of the merits of these issues in "the interest of a complete record" is insufficient to preserve these issues for appeal. By addressing the merits in this way, the trial court reduced the possibility of a time-consuming remand in the event that we reversed its holding that the issues were raised too late. The trial court had the discretion to proceed in this manner. We decline to interpret the trial court's discussion of the merits in a way that gives Jefferson Bank a windfall and nullifies the court's rejection of Jefferson Bank's "blatant attempt to ... preserve[ ] [these issues] for appeal." Accordingly, Jefferson Bank's arguments relating to Ponzi schemes or the elements of a quasi-contractual claim are not properly preserved for appeal.
2
34
Iowa Trust also attacks three of Jefferson Bank's other arguments as untimely: the status of Jefferson Bank as a bona fide purchaser based on the satisfaction of the implied debt created by Mr. Wymer's embezzlement; the failure of Iowa Trust to trace the funds in the period before Mr. Wymer stole its money on November 21, 1991; and the failure of Iowa Trust to trace the funds in the period from December 11, 1991, to January 22, 1992, after Jefferson Bank had received the funds and had begun investing them.
35
Jefferson Bank correctly points out that it vigorously contested both its status as a bona fide purchaser and the lack of adequate tracing at trial. However, it is abundantly clear from our careful review of the record that Iowa Trust and the trial court are correct in stating that these issues were not preserved below. In pre-trial papers, Jefferson Bank did claim that it was a bona fide purchaser ("BFP") and that Iowa Trust failed to trace its money to Jefferson Bank's possession. Nevertheless, the record reveals that Jefferson Bank has fundamentally altered its theory of the case on appeal. Jefferson Bank's position at trial was that the statements it received from Mr. Wymer were correct, so any bonds it may have acquired were purchased for fair value. At no time during the proceedings before the trial court did Jefferson Bank present either arguments or evidence to support its new theory that it, too, was a victim of Mr. Wymer's embezzlement; that this embezzlement created an implied debt; and that satisfaction of this implied debt gave Jefferson Bank BFP status. Similarly, Jefferson Bank presented neither arguments nor evidence to support its new assertion that Iowa Trust's tracing was inadequate on any day other than November 25. Thus, while Jefferson Bank did make reference to these general principles, it never presented these specific points at trial.
36
These arguments therefore fall under the rule that a party may not try the case on one theory and appeal on another. See supra part II(B)(1).7 In addition, two of these arguments, that Jefferson Bank was defrauded by Mr. Wymer and that the funds could not be traced while they were in Jefferson Bank's possession, directly contradict arguments and representations made to the trial court. See supra part I. As with the arguments that Jefferson Bank admits were untimely, we are also unwilling to view the discussion of these issues by the trial court "in the interest of a complete record" as altering their status as "issues not passed upon below." Singleton, 428 U.S. at 120, 96 S.Ct. at 2877.
3
37
Jefferson Bank's remaining substantive claim is that Iowa Trust failed to properly trace its money through the various transactions on November 25, 1991. Specifically, Jefferson Bank points out that at one point the money was placed in an account that already contained $7.5 million of other money. Jefferson Bank claims that under either the "first in, first out" rule used by one of Iowa Trust's experts, or a presumption that a wrongdoer uses his own funds first, see, e.g., Holbrook Irr. Dist. v. First State Bank, 84 Colo. 157, 268 P. 523, 524 (1928), it is entitled to a presumption that a significant amount of Iowa Trust's money remained in that account and was not thereafter transferred to Jefferson Bank. Thus, Jefferson Bank argues that the amount of the constructive trust should be only $37.2 million, not $42.8 million.
38
Jefferson Bank did argue before the trial court that Iowa Trust had not met its burden of proving that its funds passed through this account intact. Nevertheless, Iowa Trust points out in its answer brief that at no time did Jefferson Bank argue for any particular presumption to be applied by the court. Jefferson Bank does not dispute this contention in its reply brief, and our own review of the record has similarly found that no specific presumptions were argued to the court. As such, the issue of the proper presumptions to be applied was not ruled upon by the trial court and is not properly before us.
4
39
In its reply brief, Jefferson Bank presents new arguments under the Uniform Fiduciaries Law, Colo.Rev.Stat. §§ 15-1-101 to -113 (1987). This argument was not raised at trial, in the post-trial motion, or in Jefferson Bank's opening brief. We conclude that this argument is not preserved for appeal.
B
40
Although most of Jefferson Bank's arguments were not properly preserved for appeal, Jefferson Bank nonetheless asks this court to exercise our discretion to hear its arguments for the first time on appeal to avoid an injustice. In particular, it focuses on its argument that it was also a victim of Mr. Wymer's fraud.
41
In asking us to invoke our discretion under Singleton, Jefferson Bank argues (i) that its claim that the loss cannot be shifted from one innocent party to another raises a purely legal issue, (ii) that throughout the trial Jefferson Bank relied on the statements provided by Mr. Wymer because it was understandably unable to see through the intricacies of Mr. Wymer's fraud, and (iii) that a gross injustice was created by shifting the loss from one innocent victim of fraud to another. We are not persuaded by these arguments.
42
Jefferson Bank is seeking to have things both ways. On the one hand, it argues that the trial court should have left the parties where Mr. Wymer left them, because "it is impossible for the court to fashion a remedy which is equitable" between two innocent purchasers. (Appellant's Reply Br. at 7.) On the other hand, it implores this court to exercise its equitable discretion to hear new arguments on appeal, and not to leave the parties where the trial court left them, because of the gross injustice in the loss being placed on one innocent party rather than the other. Jefferson Bank is therefore arguing that, between these two innocent parties, equity is not advanced by shifting the loss to one (Jefferson Bank), but is greatly advanced by shifting the loss to the other (Iowa Trust). Both arguments cannot be true.
43
We also note that while Jefferson Bank presents substantial arguments in support of its claim that a loss cannot be shifted from one innocent victim to another, this is far from a case "where the proper resolution is beyond any doubt." Singleton, 428 U.S. at 121, 96 S.Ct. at 2877. Iowa Trust has presented to this court several precedents from other jurisdictions which directly contradict Jefferson Bank's position. Given that "[t]he failure to raise the issue with the trial court precludes review except for the most manifest error," Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir.1991), we cannot consider this issue further in the context of the initial appeal.
44
Additionally, both sides in this case have repeatedly asked the courts to pursue this matter on an expedited basis, as both sides have a pressing need for the funds in question. A remand to allow additional proceedings on Jefferson Bank's new theories therefore would profoundly prejudice Iowa Trust. "Under all of these circumstances, a gross injustice would be worked upon [this] appellee[ ] if we disregarded an established principle of appellate review and required the entire suit to be relitigated simply because [the appellant] lost the first time around." Bradford v. United States, 651 F.2d 700, 705 (10th Cir.1981).
45
Jefferson Bank finally argues that the trial court's rejection "in the interest of a complete record" of its argument on shifting claims from one investor to another, Lyons III, 793 F.Supp. at 990, 993, is a dangerous and unique precedent which, if not reversed, would cause great mischief in the litigation surrounding this and other frauds. Jefferson Bank therefore urges that public policy requires us to reach the merits.
46
We do not agree. As noted above, Iowa Trust has presented several cases, including some dating back to the nineteenth century, which resolve this legal question in the same manner suggested by the trial court. The views of the trial court therefore are hardly "unique." While we acknowledge that Jefferson Bank presents both case law and commentary supporting its position, we have noted above that this is not a situation where the proper resolution of the question is beyond any doubt. We have every confidence that if and when this issue of Colorado law is before this court or an authoritative court of the state of Colorado, it will arrive at the proper conclusion. We therefore decline to exercise our discretion to consider Jefferson Bank's arguments for the first time on appeal.8
IV
47
Jefferson Bank has preserved one issue for appeal, which regards the tracing of Iowa Trust's money to Jefferson Bank's account. This issue deals with the commingling of Iowa Trust's funds with $7.5 million that were already in an account through which it passed. We have previously declined to address the legal presumptions that the trial court applied with regard to the commingling with the $7.5 million. However, Jefferson Bank has preserved for appeal their general claim that the trial court's finding of fact that Iowa Trust's funds passed through this account intact was clearly erroneous.
48
The evidence showed a series of seven transactions, all involving between $42.8 million and $44.9 million, all of which occurred on the same day. The result was that $42.8 million was taken from Iowa Trust's account, and, seven hours later, $44.9 million was deposited in Jefferson Bank's account. The evidence also showed, and Mr. Wymer's guilty plea confirms, that Jefferson Bank did not own the notes it thought it sold to raise the $44.9 million. Because all these transactions occurred in such a brief time and the amounts involved were so similar, the trial court did not clearly err in finding that the funds flowed through intact.
V
49
* Iowa Trust cross-appeals, claiming that it is entitled to statutory pre-judgment interest pursuant to Colo.Rev.Stat. § 5-12-102 (1992), which provides in pertinent part:
50
(1) Except as provided in section 13-21-101, C.R.S., when there is no agreement as to the rate thereof, creditors shall receive interest as follows:
51
(a) When money or property has been wrongfully withheld, interest shall be an amount which fully recognizes the gain or benefit realized by the person withholding such money or property from the date of wrongful withholding to the date of payment or to the date judgment is entered, whichever first occurs; or, at the election of the claimant,
52
(b) Interest shall be at the rate of eight percent per annum compounded annually for all moneys or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to the date judgment is entered, whichever first occurs.
53
Pursuant to the statute, Iowa Trust elected to claim interest at the statutory rate of eight percent.
54
The trial court denied pre-judgment interest on the basis of In re Marriage of Allen, 724 P.2d 651 (Colo.1986), stating:
55
"[W]here, as here, the constructive trustee is merely "an innocent donee," it "is liable only to the extent to which [it] is unjustly enriched...." [Allen, 724 P.2d at] 660. Thus, a constructive trust award may not include statutory interest because to do so would provide a windfall to the beneficiary of the constructive trust at the expense of the innocent donee."
56
Lyons III, 793 F.Supp. at 987.
B
57
We agree with Iowa Trust that the trial court misapprehended the nature of § 5-12-102. The Colorado Supreme Court has been very clear that this section does not contemplate any kind of punishment or moral judgment of the defendant. Rather, the Supreme Court has stated:
58
[T]he purpose of section 5-12-102 is to discourage a person responsible for payment of a claim to stall and delay payment until judgment or settlement. Section 5-12-102 recognizes the time value of money. It represents a legislative determination that persons suffer a loss when they are deprived of property to which they are legally entitled.
59
....
60
... As the sponsor of the legislation that became section 5-12-102 stated:
61
All plaintiffs ... are entitled to interest ... from the time they were wronged.... The present state of the law encourages the wrongdoer to stall because in some cases they have the money until judgment or settlement.
62
Mesa Sand & Gravel Co. v. Landfill, Inc., 776 P.2d 362, 364-65 (Colo.1989) (quoting Tape Recording of Testimony before Colorado Senate Judiciary Committee on Senate Bill 463, March 12, 1979) (emphasis supplied by Supreme Court) (citations omitted).
63
Section 5-12-102 "is to be given a broad, liberal construction," Westfield Dev. Co. v. Rifle Inv. Assocs., 786 P.2d 1112, 1122 (Colo.1990), and does not require that the defendant have acted tortiously, Mesa, 776 P.2d at 364, in bad faith, Benham v. Mfrs. & Wholesalers Indem. Exch., 685 P.2d 249, 254 (Colo.Ct.App.1984), or without a good-faith legal justification. Bassett v. Eagle Telecommunications, Inc., 750 P.2d 73, 75-76 (Colo.Ct.App.1987).
64
Iowa Trust claims that the trial court quoted Allen out of context. We agree. The entire sentence states: "However, an innocent donee is liable only to the extent she is unjustly enriched at the time when she acquires notice of the equitable ownership of the other party." Allen, 724 P.2d at 660 (emphasis added). We are unable to read Allen as creating an exception to the general rule that a successful plaintiff is entitled to pre-judgment interest. Rather, we read Allen's focus on unjust enrichment as requiring Iowa Trust to prove the actual profits attributable to the trust res in question for the period prior to the demand for payment, which occurred in December 1991.9 See Allen, 24 P.2d at 657 ("a constructive trust beneficiary may obtain ... not merely what was lost but also other property or profits traceable to the property"). Only then did Jefferson Bank begin wrongfully withholding the funds within the meaning of § 5-12-102, permitting Iowa Trust to elect statutory pre-judgment interest.
65
We REVERSE the denial of pre-judgment interest. The trial court on remand shall determine the amount of pre-judgment interest due Iowa Trust, and the effect, if any, of the payment of the sequestration of the $43.1 million into escrow on January 23, 1992.
VI
66
After Mr. Wymer's guilty plea and confession of judgment, which followed the entry of judgment in this case, Jefferson Bank filed a motion under Fed.R.Civ.P. 60(b)(2), seeking to re-open the judgment on two different grounds. Jefferson Bank argued that these documents provided newly discovered evidence that proved its claims that it was a bona fide purchaser because of an antecedent debt owed by Mr. Wymer. Similarly, it argued that the documents proved both parties were innocent victims of a Ponzi scheme run by Mr. Wymer. Jefferson Bank also sought relief under Fed.R.Civ.P. 60(b)(6), claiming that the unusual facts of this case made the enforcement of the judgment a manifest injustice.
67
The trial court denied these motions. The trial court correctly noted the standard that a party must meet under Rule 60(b)(2), which authorizes reopening judgments based on "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." Jefferson Bank had to demonstrate that:
68
(1) the evidence was newly discovered since the trial;
69
(2) [Jefferson Bank] was diligent in discovering the new evidence;
70
(3) the newly discovered evidence could not be merely cumulative or impeaching;
71
(4) the newly discovered evidence had to be material; and
72
(5) that a new trial, with the newly discovered evidence would probably produce a different result.
73
Graham v. Wyeth Lab., 906 F.2d 1399, 1416 (10th Cir.), cert. denied, 498 U.S. 981, 111 S.Ct. 511, 112 L.Ed.2d 523 (1990). The trial court rested its disposition of the Rule 60(b)(2) motions on very narrow grounds. It found that the evidence was immaterial, because it concluded that both of Jefferson Bank's legal arguments were without merit. In addition, it found as a matter of fact that Iowa Trust did not invest in a Ponzi scheme, so it concluded that Jefferson Bank's legal arguments regarding Ponzi schemes, even if correct, did not apply.
74
The trial court denied the Rule 60(b)(6) motion as well, concluding that Jefferson Bank "[did] not present the kind of extraordinary circumstances necessary for Rule 60(b)(6) relief." (Appellant's 2d Supp.App. at 173.)
75
Jefferson Bank filed a further appeal from the denial of these motions.
76
* 1
77
In reviewing the denial of a Rule 60(b) motion to re-open a judgment, we will affirm absent an abuse of discretion. V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 223 n. 7 (10th Cir.1979). Nevertheless, Jefferson Bank claims that because the trial court based its denial of the Rule 60(b)(2) motions not on discretionary factors, but rather on its findings of fact and conclusions of law, we must apply the standards of review normally applied to such determinations--clearly erroneous for findings of fact and de novo for conclusions of law. We agree. "A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990); see also V.T.A., 597 F.2d at 223-24 n. 7 ("We note that [the abuse of discretion] standard applies to reviewing an exercise of discretion. An appellate court can of course readily reverse a lower court that has erred as a matter of law.") (citing 11 Charles A. Wright et al., Federal Practice and Procedure § 2872 (1973)).
78
Iowa Trust argues that review of the district court's findings of fact and conclusions of law is unnecessary, because it claims the Rule 60(b)(2) motion could be denied on other grounds which it argued to the district court, such as the inconsistency of these arguments with Jefferson Bank's theory of the case at trial, the cumulative nature of the evidence, and Jefferson Bank's lack of diligence in pursuing Mr. Wymer's records before trial. Because of the substantial discretion that the trial court possesses under Rule 60(b), we agree that the district court could have justifiably denied the motion on those grounds. The fact remains, however, that it did not exercise its discretion over those factors, choosing instead to base its decision entirely on the facts and the law. We cannot agree with Iowa Trust's argument that we review only for an abuse of discretion. We examine the trial court's legal conclusions de novo and its factual findings for clear error.
2
79
Iowa Trust, however, also presents a purely legal argument--that the facts of this case are such that, as a matter of law, Jefferson Bank is not entitled to relief under Rule 60(b)(2). While the trial court did not expressly rule on this argument, Iowa Trust properly raised it before that court. (See Pl.Br. in Opp. to Def.Mot. for Relief From J. Pursuant To Fed.R.Civ.P. 60(b)(2) and (6) at 5-7.)10 We agree with Iowa Trust that, even assuming that the trial court based its denial on an erroneous legal conclusion, Jefferson Bank still failed as a matter of law to meet the requirements of Rule 60(b)(2). We therefore do not reach the legal issues on which the trial court based its decision.
80
Motions to reopen for newly discovered evidence are not favored and Jefferson Bank was required to base its motion "on matter which could not reasonably have been previously adduced." See INS v. Doherty, --- U.S. ----, ----, ----, 112 S.Ct. 719, 724, 726, 116 L.Ed.2d 823 (1992). Although the district court denied the Rule 60(b)(2) motion on the basis that the evidence was not material, it also expressed doubt about Jefferson Bank's diligence, having previously rejected the first round of post-trial motions in part for lack of diligence. See Lyons III, 793 F.Supp. at 990-92. See also 7 James W. Moore & Jo D. Lucas, Moore's Federal Practice § 60.23 (1992) (Rule 60(b)(2) may require a stronger showing concerning the character of the evidence than under Rule 59). In denying the Rule 60(b)(2) motion, the district court found that the "newly discovered evidence" was related to "two new theories not argued at trial." Aplt.2d Supp.App. at 2.
81
The requirements of Rule 60(b)(2) that the moving party have been diligent, and that the newly discovered evidence not be merely cumulative, Graham v. Wyeth Lab., 906 F.2d 1399, 1416 (10th Cir.), cert. denied, 498 U.S. 981, 111 S.Ct. 511, 112 L.Ed.2d 523 (1990), must be read together. The newly discovered evidence must not be cumulative not only with the evidence that the moving party actually presented at trial, but also with the evidence that the moving party could have, had it exercised due diligence, presented at trial. If a party, through negligence or a tactical decision, fails to present evidence that was available, it may not find refuge under Rule 60(b)(2) by finding substantially similar evidence from a newly discovered source.
82
We do not contend that Jefferson Bank could have, with diligence, discovered Mr. Wymer's testimony in time for trial. However, this testimony is only probative of Mr. Wymer's prior misappropriation of Jefferson Bank's funds. At the time of trial Jefferson Bank could have introduced other evidence tending to show the same proposition.
83
Jefferson Bank had reason to believe that Mr. Wymer misappropriated its securities holdings. The SEC investigation of Mr. Wymer, the asset seizures of Mr. Wymer's businesses, the close relationship between Mr. Wymer and Jefferson Bank, and information developed during discovery all provided Jefferson Bank with reasons before trial to believe that Jefferson Bank was not immune from Mr. Wymer's unlawful activities. Jefferson Bank deposed Mr. Wymer in January 1992, well in advance of trial. Although Mr. Wymer invoked his Fifth Amendment right, the questions asked by Jefferson Bank suggest that it was very much aware of Mr. Wymer's transactions, and was suspicious of misappropriation. Despite this knowledge, Jefferson Bank did not move for a continuance, supported an expedited discovery and trial schedule, and proceeded to trial on a different theory of the "for value" element of the BFP issue.
84
Most damaging to Jefferson Bank's position is its motion under Rule 59. Within ten days of the trial, Jefferson Bank, through new counsel, informed the court that it stood ready to prove, based on documents and witnesses that were available at the time of trial, that it, too, was a victim of Mr. Wymer's fraud. Jefferson Bank also stated that it was prepared, based on the same documents and witnesses, to prove the amount of its losses. This alone shows that the motion under Rule 60(b)(2) was not about facts which Jefferson Bank could not, with due diligence, have known at the time of the trial, but merely about a new source of proof for a theory of the case on which it could have presented evidence during the trial. Rule 60(b)(2) may not be used in this situation. We conclude as a matter of law that Iowa Trust is correct in asserting that Jefferson Bank has not shown the diligence necessary for relief under Rule 60(b)(2).
85
We recognize that the evaluation of the Graham factors are ordinarily committed to the discretion of the trial court. See Graham, 906 F.2d at 1401, 1416, 1418-19. However, under the unusual facts of this case, remanding on the basis of an alleged legal error would be pointless, because it would have been an abuse of discretion for the trial court to grant the motion under Rule 60(b)(2). Therefore, just as in part III supra, we express no opinion on the legal issues on which the trial court based its denial of Jefferson Bank's motion.
B
86
We next consider whether the trial court abused its discretion in denying Jefferson Bank's motion to re-open the judgment under Fed.R.Civ.P. 60(b)(6), which authorizes district courts to vacate judgment for "any other reason justifying relief from the operation of the judgment." We conclude that it did not.
87
Rule 60(b)(6) "gives the court a 'grand reservoir of equitable power to do justice in a particular case.' " Pierce v. Cook & Co., 518 F.2d 720, 722 (10th Cir.1975), cert. denied, 423 U.S. 1079, 96 S.Ct. 866, 47 L.Ed.2d 89 (1976) (quoting Radack v. Norwegian America Line Agency, Inc., 318 F.2d 538, 542 (2d Cir.1963)). Nevertheless, relief under the rule may not be premised on one of the specific grounds enumerated in Rule 60(b)(1)-(5). Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 n. 11, 108 S.Ct. 2194, 2204 n. 11, 100 L.Ed.2d 855 (1988). District courts may grant a Rule 60(b)(6) motion only in "extraordinary circumstances" and only when such action is necessary to accomplish justice. Id.
88
Jefferson Bank first argues that relief under Rule 60(b)(6) is warranted because even if its failure to present evidence of Mr. Wymer's theft of its funds was inexcusable, the initial judgment was manifestly unjust. It cites Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C.Cir.1980). Because we have rejected Jefferson Bank's claim that the judgment was manifestly unjust in declining to consider its arguments for the first time on appeal, we similarly find that the denial of this claim was not an abuse of discretion.
89
Jefferson Bank next cites Compton v. Alton S.S. Co., 608 F.2d 96, 107 (4th Cir.1979), for the proposition that relief under Rule 60(b)(6) is required where the judgment is based on an erroneous application of the law. Compton is not on point. That case concerned "a default judgment, entered as a result of a plain error of law apparent on the face of the pleadings themselves." Id. at 104. In contrast, the present case is not a default judgment; in light of the shaping of the issues below, the error of law was not in any way apparent from the pleadings; and in any event, because of the substantial authority cited by Iowa Trust in support of the views of the district court, the error of law was not "plain."
90
Jefferson Bank finally argues that relief was required under Rule 60(b)(6) because the denial of relief would cause it, a federally insured bank, to fail and would lead to wasteful litigation as Jefferson Bank and other victims of Mr. Wymer sought to use it as a precedent. We see no basis for concluding that the rejection of these arguments was an abuse of discretion. We AFFIRM the denial of Jefferson Bank's motion under Rule 60(b)(6).
VII
91
We AFFIRM the imposition of a constructive trust in the amount of $42,843,614.13 in favor of Iowa Trust. We REVERSE the denial of statutory interest to Iowa Trust. We AFFIRM the denial of Jefferson Bank's Rule 60(b) motion. We REMAND for recalculation of pre-judgment interest.
1
The named plaintiff in this action, David J. Lyons, is the Iowa insurance commissioner. He was appointed as the receiver for Iowa Trust in the aftermath of this loss
2
In the proceedings at the preliminary injunction stage, Jefferson Bank argued that sequestering the funds was not necessary, because it would be able to satisfy any judgment that was subsequently entered. In its arguments, it freely admitted that it still had the funds it received from Mr. Wymer, and showed in which accounts they were located
3
The court ruled that Jefferson Bank was entitled to the balance of the escrow account, $330,000, plus the interest attributable thereto. Id
4
Mr. Wymer pleaded guilty to a Bank Fraud charge, which was described in the criminal information as follows:
26
As a further part of defendant WYMER's scheme to defraud, on or about February 12, 1990, defendant WYMER purchased 20 percent of the stock of Jefferson Bank and Trust in his own name, and assisted another ... representative [of a company he controlled] in purchasing 4 percent of Jefferson Bank and Trust stock, for a combined total purchase price of approximately $1.7 million. Defendant WYMER obtained the funds for these stock purchases without authorization from the City of Hemet. Defendant WYMER thereafter caused the other ... representative [of his companies] to become a member of the Board of Directors of Jefferson Bank and Trust
27
Beginning in or about December 1989 and continuing until in or about December 1991, ... defendant WYMER and others ... knowingly executed and attempted to execute a scheme to defraud Jefferson Bank and Trust, a federally insured financial institution, ... by means of false and fraudulent pretenses, representations and promises, by misappropriating and diverting approximately $40 million that Jefferson Bank and Trust had entrusted to the management of [his companies], in their capacity as registered investment advisers, for investment in government securities
(Appellant's 2d Supp.App. at 28-29.) In addition, the RICO count to which Mr. Wymer plead guilty included the following specifics:
In or about mid-October 1991, the SEC made inquiries about the status of accounts maintained on behalf of the City of Marshalltown. Thereafter, defendant WYMER began a series of sophisticated securities and financial transactions designed to obstruct and impede the investigation being conducted by the SEC and to cover-up the fraudulent activities of the racketeering enterprise. Defendant WYMER's efforts to impede and obstruct the SEC investigation and to cover-up criminal activities included ... the following:
....
Between on or about November 25, 1991 and on or about November 26, 1991, defendant WYMER defrauded victim Iowa Trust out of approximately $68 million in Treasury notes by convincing a representative of the Banker's Trust of Iowa to deliver the Treasury notes to [one of defendant WYMER's companies] without receiving any payment for the notes. Defendant WYMER then sold those Treasury notes to [First Interstate Bank of] Denver and diverted the proceeds from the sale to other client accounts that he had previously depleted.
(Id. at 21-22.)
Mr. Wymer made the following statements in his plea allocution:
One of the clients from which I diverted funds over the period of time was the Jefferson Bank and Trust.... Between the end of 1989 and December of 1991, I diverted a total of approximately $39 million from Jefferson Bank and Trust[ ].... I did this without the knowledge of anyone at the bank. My colleagues and I prepared false statements and other documents to conceal these diversions from the bank....
....
In the fall of 1991, the [SEC] began an investigation.... In the course of this investigation I engaged in a number of financial transactions in an attempt to hide the fraud from the SEC....
In addition, I engaged in several securities transactions that were designed to cover up some of the losses in client accounts.
(Id. at 59-60.)
5
The consolidation of the appeal from the Rule 60(b) motion with the appeal from the merits moots Jefferson Bank's motion for this court to take judicial notice of Mr. Wymer's guilty plea
6
After the briefs were filed, but before oral argument, Jefferson Bank filed a suggestion that the Chapter 7 filing by Mr. Wymer's companies deprived this court of subject matter jurisdiction. After reviewing Jefferson Bank's arguments and independently researching this issue, we find no plausible basis for concluding that subject matter jurisdiction is absent in this case
7
We could, with equal effect, phrase the inadequate preservation of these issues in terms of the ambiguity with which they were raised. See supra part II(B)(2)(a). Similarly, even if they were adequately raised, they were neither timely pursued nor ruled upon in the district court during the trial. See supra part II(B)(2)(b)
8
In support of its arguments on the merits, Jefferson Bank included several documents in the appellate record which, it claims, make clear the extent of its losses to Mr. Wymer's fraud. Iowa Trust strenuously argues that these documents should be stricken from the appellate record because they were not properly presented to the trial court. Because we do not reach the merits of this argument, these documents are not relevant to our decision. We therefore need not resolve this procedural dispute
9
The trial court found that Iowa Trust had failed to prove actual profits. Lyons II, 793 F.2d at 987
In its brief, Iowa Trust only appeals the denial of pre-judgment interest beginning with the filing of the complaint on December 27, 1991. Accordingly, Iowa Trust has waived all claim to pre-judgment interest prior to that date.
10
While this document was not included in the record on appeal, we exercised our discretion under Fed.R.App.P. 10(e) to direct that this document be transmitted to supplement the record before us
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Court of Appeals
Third District of Texas
P.O. BOX 12547, AUSTIN, TEXAS 78711-2547
www.txcourte.gov/3rdcoa.aspx
(512) 463-1733
JEFF L ROSE, CHIEF JUSTICE JEFFREY D.KYLE, CLERK
DAVID PURYEAR, JUSTICE
BOB PEMBERTON, JUSTICE
MELISSA GOODWIN, JUSTICE
SCOTT K. FIELD, JUSTICE
CINDY OLSON BOURLAND, JUSTICE
Marck£f2015
The Honorable Velva L. Price
Civil District Clerk
Travis County Courthouse
P.O.Box 1748
Austin, TX 78767
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 03-11 -00815-CV
Trial Court Case Number: D-1 -GN-11 -001268
Style: Don Ross Malone
v. Public Utility Commission of Texas; Electric Transmission Texas, LLC; and W.T.
Waggoner Estate
Dear Honorable Velva L. Price:
The Third Court of Appeals has issued the mandate in this cause. Therefore, I am returning
the following original exhibits:
2 boxes of administrative record.
Very truly yours,
Jeffrey D. Kyle, Clerk
«tad in The District Court
°'Trav,s County, re™*
MAR 12 2015
At 4#C^
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In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-18-00402-CV
FRIEDMAN & FEIGER, LLP, Appellant § On Appeal from
§ County Court at Law No. 2
V. § of Parker County (CIV-15-0299)
§ June 6, 2019
ROBERT E. MASSEY, INDIVIDUALLY § Opinion by Justice Gabriel
AND AS INDEPENDENT EXECUTOR OF
THE ESTATE OF WILLIAM EARL
MASSEY, Appellee
JUDGMENT
This court has considered the record on appeal in this case and holds that there
was error in the trial court’s order. We reverse the trial court’s order denying
Friedman & Feiger, LLP’s motion to compel arbitration and remand to the trial court
for entry of an order compelling to arbitration the claims identified in the motion to
compel arbitration pursuant to the parties’ arbitration agreement.
It is further ordered that appellee Robert E. Massey, Individually and as
Independent Executor of the Estate of William Earl Massey shall bear the costs of
this appeal, for which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By /s/ Lee Gabriel
Justice Lee Gabriel
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160 Ga. App. 272 (1981)
287 S.E.2d 224
MUSE
v.
THE STATE.
61738.
Court of Appeals of Georgia.
Decided September 22, 1981.
Rehearing Denied November 3, 1981.
Gordon Staples, Rhonda A. Brofman, for appellant.
Arthur E. Mallory III, District Attorney, Harger W. Hoyt, Assistant District Attorney, for appellee.
CARLEY, Judge.
Appellant appeals from his conviction of three counts of theft by receiving stolen property.
1. It is first urged that appellant was denied his right to a thorough and sifting cross-examination. During the course of cross-examination, a witness for the state was asked by defense counsel if he were familiar, from his own personal knowledge, with who had done a certain construction job at some time in the past. The witness responded: "I know who came in there and talked to me about that [construction project.]" When asked who it was who had talked to him, the witness named two individuals, neither of whom was appellant. At that point the state made a relevancy objection to evidence concerning what persons other than appellant had done in the past in connection with events apparently not in issue in the case. Outside the presence of the jury, defense counsel stated in essence that the testimony was relevant to show that appellant had authority from the contractors on the past construction project to charge material in their name. Since it was appellant's defense that the property he had received was not stolen but had been charged to the same individuals, though admittedly not in connection with the past *273 project, it was urged that inquiry of the witness concerning the past project was relevant "to show that [appellant] had in the past done business in this manner and that at the time he was arrested he thought he was doing business in that manner again." The state's relevancy objection was sustained and defense counsel was not permitted to cross-examine the witness further about what he had been told concerning the past construction project.
On appeal appellant asserts that evidence concerning his past business associations and dealings was relevant to his defense to the crime charged and that it was error to deny him the opportunity to pursue that issue through cross-examination of the witness. Assuming without deciding that such evidence would be relevant for the reasons urged, we find no reversible error in prohibiting further cross-examination of the witness on that issue. The witness was asked if he had personal knowledge of the prior construction project and he responded that he knew what he had been told by others. It is thus clear that any testimony by the witness concerning the previous construction project and what he had been told about it by others, would have been inadmissible and totally hearsay without probative value. Thus, even assuming the issue was an otherwise relevant point of inquiry in the case, it was not error to prohibit appellant from eliciting testimony about it from this witness on cross-examination. See Bell v. State, 71 Ga. App. 430, 433 (2) (31 SE2d 109) (1944); Dowdy v. State, 159 Ga. App. 805 (1981). The transcript demonstrates that appellant's business associates were themselves subsequently called as witnesses in the case and gave their testimony concerning their previous business dealings with appellant, including the fact that he had had the authority to charge materials in their names. See Dowdy, 159 Ga. App. 805, supra. Accordingly, we find no merit in this enumeration of error.
2. Appellant enumerates as error the exclusion of certain testimony by a defense witness. Apparently this witness would have testified that appellant had authority to order materials from the corporation which owned the allegedly stolen property and to charge them to the account of a third party. At the time this testimony was proffered and excluded, the fact that appellant had such authority had already been established by the testimony of the authorizing party himself. Thus, no reversible error is shown "inasmuch as the testimony was merely cumulative of other evidence properly before the jury. [Cits.]" Milstead v. State, 155 Ga. App. 407, 408 (2) (270 SE2d 820) (1980).
Nor was it error to exclude testimony of a defense witness to the effect that the corporation "had a history of delivering materials [to the customer] without the ticket." Apparently appellant contends *274 that this evidence would have established that it was not "uncommon" for the corporation to deliver materials without a copy of the order also being given to the customer. This was irrelevant and immaterial in the context of the instant case where the question was whether certain materials, for which apparently no original charge ticket had ever been made, were stolen and whether appellant received those materials with knowledge that they were stolen. "[W]here the evidence did not appear to be material or illustrative of any issue in the case, its exclusion was not error. [Cit.]" MacNerland v. Johnson, 137 Ga. App. 541, 542 (1) (224 SE2d 431) (1976).
3. We find no abuse of discretion in the trial court's decision to give the "Allen" charge. Thornton v. State, 145 Ga. App. 793 (245 SE2d 22) (1978). The charge as given was not erroneous for any reason urged on appeal. Spaulding v. State, 232 Ga. 411, 413 (4) (207 SE2d 43) (1974).
4. The argument that the trial court impermissibly commented on appellant's credibility and placed his character into issue is totally without merit. Acting at the state's request, the trial court merely directed appellant to be responsive to cross-examination. In response to appellant's assertion that he was trying to do so, the court stated that it, not appellant, would have to be the judge of whether the answers were in fact responsive. We find no improper comment or intimation of opinion by the trial judge. See Cape v. State, 246 Ga. 520, 523 (4) (272 SE2d 487) (1980).
5. Since the evidence adequately supports the verdict and is sufficient under established review criteria, there is no merit to the enumeration raising the general grounds. After studying the entire record, we find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Judgment affirmed. Deen, P. J., and Banke, J., concur.
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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ADONIS BERLE WHITBY,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2011-3009
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. AT0842100562-I-1.
____________________________
Decided: April 11, 2011
____________________________
ADONIS BERLE WHITBY, of Macon, Georgia, pro se.
K. ELIZABETH WITWER, Trial Attorney, Commercial
Litigation Branch, Civil Division, of Washington, DC, for
respondent. With her on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and REGINALD T. BLADES, JR., Assistant Director.
__________________________
WHITBY v. OPM 2
Before LOURIE, PLAGER, and LINN, Circuit Judges.
PER CURIAM.
Adonis Berle Whitby petitions for review of the final
decision of the Merit Systems Protection Board (“the
Board”) upholding the denial by the Office of Personnel
Management (“OPM”) of Whitby’s application for federal
retirement benefits. Whitby v. Office of Pers. Mgmt., No.
AT-0842-10-0562-I-1 (M.S.P.B. July 16, 2010) (“Initial
Decision”), (M.S.P.B. Sept. 28, 2010) (“Final Order”). We
affirm.
BACKGROUND
Whitby served in the military from June 4, 1967, to
January 26, 1970, and again from October 5, 1976, to
October 4, 1980. Whitby paid the requisite deposit for an
annuity for his military service into the Federal Employ-
ees Retirement System (“FERS”). Whitby also served as a
federal civilian employee under FERS from March 19,
1984, through April 9, 1993, and again from September 8,
2002, through December 20, 2007.
In April 1993, after nine years of civilian service,
Whitby submitted an application for a refund of his
military deposit and all of his FERS annuity contributions
up to that date. Whitby admits that he filled out, signed,
and submitted the refund form to OPM. Also, because he
was married, his wife and two witnesses signed an addi-
tional form consenting to the disbursement of the refund.
The refund request form, entitled “Application for Refund
of Retirement Deductions,” states in bold above Whitby’s
signature block, “I understand that payment of a refund
will result in permanent forfeiture of any retirement
rights that are based on the period(s) of service which the
3 WHITBY v. OPM
refund covers, as explained on the reverse side of this
form.” A15.
Whitby, however, incorrectly identified his address on
the refund form. He indicated that he wanted the refund
check mailed to “40C Twin Lakes, Clifton Park, NY
12065.” But, while “Twin Lakes” is the general name for
the region he lived in at the time, his correct street ad-
dress was “Friar’s Gate.” All other address information,
including Whitby’s name, street number, city, state, and
zip code, were correct.
In January 2008, following Whitby’s second separa-
tion from federal civilian service, Whitby submitted an
Application for Deferred or Postponed Retirement to
OPM. On the application, Whitby correctly identified the
dates of his prior military and civilian service, but he
failed to acknowledge that he had previously filed for a
refund of his military deposit and all of his pre-April 1993
FERS annuity contributions. OPM denied Whitby’s
application for retirement benefits under FERS on the
basis that Whitby lacked ten years of creditable service
because of his 1993 refund.
Whitby appealed OPM’s denial of his retirement bene-
fit application to the Board. Whitby argued that he never
received the 1993 refund check because of the incorrect
street address on the refund form, and forgot to inquire
about the lost check until OPM denied his 2008 retire-
ment benefit application. Whitby also argued that he did
not understand the nature of the 1993 refund form.
On July 16, 2010, the administrative judge (“AJ”) is-
sued an initial decision affirming OPM’s denial of
Whitby’s retirement benefit application. Initial Decision,
at 2. The AJ found Whitby’s testimony that he did not
WHITBY v. OPM 4
understand the refund form and that he did not receive
the refund check to be “not credible.” Id. at 5-6. Specifi-
cally, the AJ found “it inherently implausible . . . that an
individual of [Whitby]’s intelligence failed to understand
the simple refund request form,” as Whitby “demon-
strated a very good memory and a high level of sophistica-
tion in dealing with . . . complex issues.” Id. at 5. The AJ
also found it implausible that Whitby forgot to notify
OPM of the allegedly missing check until January 2008,
as Whitby remembered and provided detailed descriptions
of other checks he had received from the government
following his 1993 separation from federal service, includ-
ing a separation incentive check of roughly $9,000 and a
refund check for his Thrift Savings Plan contributions of
around $40,000. Id. at 5-6.
The AJ also found that OPM had provided uncon-
tested evidence that Whitby’s refund application had been
received and processed by OPM, that OPM had directed
the Treasury to issue the refund check to the address
provided, and that no record existed of the check being
returned as undeliverable. Id. at 6. The AJ excused OPM
from producing definitive proof that Whitby had deposited
the check because Whitby’s fifteen-year delay in reporting
the check missing caused that proof to be lost. Id. at 6-7
(citing Rint v. Office of Pers. Mgmt., 48 M.S.P.R. 69, 71-
72, aff’d, 950 F.2d 731 (Fed. Cir. 1991)). The AJ also
relied on the fact that the U.S. Postal Service (“USPS”)
had Whitby’s correct name and address and that, as
Whitby acknowledged, § 507.1.5.1 of its Domestic Mail
Manual required the Postal Service to undertake proce-
dures to either deliver the check or return it to the Treas-
ury. Id. at 7. Based on the record as a whole, the AJ
concluded that it was more likely than not that Whitby
received the refund check despite the inaccurate street
address. Id.
5 WHITBY v. OPM
Whitby filed a petition for review by the full Board.
The Board denied Whitby’s petition on September 28,
2010, making the AJ’s initial decision the final decision of
the Board. Whitby timely appealed to this court. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5
U.S.C. § 7703(b)(1).
DISCUSSION
Our review of a decision by the Board is limited by
statute. We must affirm the Board’s decision unless we
find it to be “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &
Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). An
applicant for federal retirement benefits bears the burden
of showing that he is entitled to the benefit sought by a
preponderance of the evidence. Cheeseman v. Office of
Pers. Mgmt., 791 F.2d 138, 140-41 (Fed. Cir. 1986).
Whitby argues that the incorrect street address on his
1993 refund form resulted in the non-delivery of his
refund check, and that the AJ improperly shifted the
burden onto him to prove non-receipt despite the use of
the wrong address. He points to the absence of any
reference to the refund on his tax returns as proof that he
never received the refund check. Whitby also presses two
alternative arguments: First, he argues that he did not
think that the refund form he signed was for his retire-
ment annuity. He also argues that the refund should be
null and void because the refund form required the disclo-
sure of current as well as former spouses, and he failed to
disclose the existence of two former spouses.
WHITBY v. OPM 6
We first address Whitby’s theory that his failure to
disclose the existence of two former spouses on his 1993
refund form rendered the refund null and void. Not only
is Whitby precluded from raising this argument on appeal
because he did not raise it before the Board, see Golden
Bridge Tech., Inc. v. Nokia, Inc., 527 F.3d 1318, 1322-23
(Fed. Cir. 2008), but also it rests on a contract theory of
relief inapplicable to federal retirement benefits, which
are governed by statute, not contract, see Zucker v. United
States, 758 F.2d 637, 640 (Fed. Cir. 1985). Furthermore,
even accepting Whitby’s theory of relief, he would then be
required to return the received refund to the government.
Yet, not only is Whitby unprepared to redeposit his 1993
refund, claiming as he does that he never received it, but
also he is unable to do so, since he is not currently em-
ployed in a federal position subject to FERS. See Rint, 48
M.S.P.R. at 72.
We also reject Whitby’s alternative argument: that he
did not understand that the refund form he signed in
1993 was for a retirement annuity. The AJ found
Whitby’s testimony to this effect “inherently implausible,”
noting that Whitby “demonstrated a very good memory
and a high level of sophistication in dealing with . . .
complex issues.” Initial Decision, at 5. Such credibility
determinations are virtually unreviewable on appeal.
Kahn v. Dept. of Justice, 618 F.3d 1306, 1313 (Fed. Cir.
2010). Moreover, the refund form itself states in all
capital letters on the top that it is an “Application for
Refund of Retirement Deductions” from the “Federal
Employees Retirement System,” and the form states in
bold above the signature block that “payment of a refund
will result in permanent forfeiture of any retirement
rights” for the listed periods of service. A15. Whitby also
testified in great detail about the nature of other checks
he received from the government after he left federal
7 WHITBY v. OPM
service in 1993, including a check for a refund of his
Thrift Savings Plan contributions. Initial Decision, at 5.
Accordingly, nothing in the record undermines the AJ’s
determination.
Finally, we address Whitby’s main argument: that
the AJ improperly shifted the burden onto him to prove
non-receipt of the refund when the incorrect street ad-
dress resulted in the non-delivery. In such a situation,
Whitby claims, Cheeseman, 791 F.2d at 140-41, and Rint,
48 M.S.P.R. at 71-72, do not apply. We disagree.
In Cheeseman, we upheld the Board’s decision to place
the burden of proving entitlement to retirement benefits
on the applicant. 791 F.2d at 141. Applying that burden
in Rint, the Board held, and we affirmed, that OPM need
not provide definitive proof that a refund check issued by
the Treasury was deposited when the applicant’s signifi-
cant delay in reporting the check missing resulted in the
loss of such proof. 48 M.S.P.R. at 71-72. Whitby seeks
retirement benefits, and thus he bears the burden set out
in Cheeseman. And, as in Rint, he waited fifteen years
before reporting his 1993 refund check missing, resulting
in the loss of Treasury records that could have shown that
the check was deposited. Accordingly, contrary to
Whitby’s assertion, Rint applies here and relieves OPM
from producing proof that Whitby actually deposited the
1993 refund check. The only question, therefore, is
whether the undisputed evidence that the Treasury sent
Whitby’s refund check to the wrong street address shifted
the burden of proof.
Whitby cites several cases in support of his argument,
including Fluker v. Brown, 5 Vet. App. 296 (1993), and
Piano v. Brown, 5 Vet. App. 25 (1993). In both Fluker and
Piano, the United States Court of Veterans Appeals held
WHITBY v. OPM 8
that the failure of the Department of Veterans Affairs
(“VA”) to mail a decision of the Board of Veterans’ Appeals
to the veteran’s correct address constituted clear evidence
sufficient to rebut the presumption of regularity, shifting
the burden to the VA to show that the decision was
mailed to the last known address of record in accordance
with statute. Fluker, 5 Vet. App. at 298; Piano, 5 Vet.
App. at 27. Unlike Fluker and Piano, however, it was
Whitby who caused the address error, and thus the incor-
rect address in no way reflects on the regularity of OPM’s
procedures. Moreover, if an incorrectly mailed item is
actually received, as the AJ found here, the presumption
of regularity becomes moot. Baxter v. Principi, 17 Vet.
App. 407, 410 (2004).
Yet, even if the use of an incorrect address did shift
the burden to OPM in this case, the record shows that
OPM met that burden. The AJ found that the Treasury
issued Whitby’s refund check, but to the incorrect ad-
dress, and that no record existed of the refund check
being returned as undeliverable to either the Treasury or
OPM. Initial Decision, at 6-7. The AJ also found that
USPS had Whitby’s correct name and address, and that
USPS’s Domestic Mail Manual required the Postal Ser-
vice to undertake procedures to either deliver the check to
Whitby or return it to the sender. Id. at 7. Furthermore,
the AJ made a credibility determination against Whitby,
finding not credible his testimony that he did not receive
the refund check and then forgot about it until OPM
denied his retirement application fifteen years later. Id.
at 5-6. Finally, Whitby’s evidence that the 1993 refund
does not appear on his tax forms not only appears to have
not been presented to the Board, but also appears incom-
plete, and thus unreliable, as the tax forms also do not
reflect monies from the government that Whitby admits
having received in 1993.
9 WHITBY v. OPM
Accordingly, for the reasons stated herein, we affirm
the Board’s final decision upholding the denial by OPM of
Whitby’s application for a retirement annuity under
FERS.
AFFIRMED
COSTS
No costs.
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900 F.2d 246
In re Tracey (Francis P.); Ellis (Henry C.)v.Tracey (Francis P.)
NO. 89-1770
United States Court of Appeals,First Circuit.
JAN 22, 1990
1
Appeal From: D.Mass.
2
AFFIRMED.
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FILED
2015 IL App (4th) 131080 August 5, 2015
Carla Bender
NO. 4-13-1080 th
4 District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
JOSHUA KRUGER, ) No. 99CF357
Defendant-Appellant. )
) Honorable
) Michael D. Clary,
) Judge Presiding
JUSTICE TURNER delivered the judgment of the court, with opinion.
Presiding Justice Pope and Justice Steigmann concurred in the judgment and
opinion.
OPINION
¶1 On October 28, 2011, defendant, Joshua Kruger, filed a pro se petition for relief
from judgment under section 2-1401 of the Code of Civil Procedure (Procedure Code) (735
ILCS 5/2-1401 (West 2010)). Defendant's section 2-1401 petition requested vacature of the
Vermilion County circuit court's October 25, 2010, judgment denying defendant's request for a
search of the deoxyribonucleic acid database. On November 4, 2011, the trial court sua sponte
denied defendant's section 2-1401 petition on the merits. Defendant appealed the court's denial.
In a March 1, 2013, summary order, this court reversed the trial court's denial because (1)
defendant had not properly served the State and (2) the court's denial occurred prior to the
expiration of the 30-day period for which the State had to respond to the petition. People v.
Kruger, No. 4-11-1033 (Mar. 1, 2013) (unpublished summary order under Supreme Court Rule
23(c)).
¶2 Prior to this court's summary order, defendant filed in the trial court a motion for
discovery related to his section 2-1401 petition. On March 15, 2013, defendant filed a motion
for leave to file an amended section 2-1401 petition, which the court allowed in April 2013. In
May 2013, defendant filed an amended motion for discovery. On October 22, 2013, the court
again entered a sua sponte order. In its order, the court first noted defendant had still not
properly served the State with his section 2-1401 petition, and thus it dismissed defendant's
petition for want of prosecution. The court further noted that, even if the petition was not
dismissed for want of prosecution, the petition was ripe for adjudication and should be denied on
the merits. We note defendant did not file an amended section 2-1401 petition before the court's
October 2013 order.
¶3 Defendant filed a timely notice of appeal from the trial court's October 2013
order, and the office of the State Appellate Defender (OSAD) was appointed to represent him.
On appeal, OSAD moves to withdraw its representation of defendant, contending no colorable
argument can be made an error occurred because the court followed the appropriate procedures
for reviewing and dismissing defendant's section 2-1401 petition. This court granted defendant
to and including May 6, 2015, to file additional points and authorities. Defendant filed a
response, and the State filed an appellee brief. Defendant also filed a reply brief. After
reviewing the briefs, we deny OSAD's motion to withdraw without prejudice.
¶4 I. ANALYSIS
¶5 We begin by supplementing our decision in Powell v. Lewellyn, 2012 IL App
(4th) 110168, 976 N.E.2d 1106. There, we stated that, when the petitioner fails to properly serve
the opposing party within "a reasonable period of time," the trial court has the power to dismiss
-2-
the case for want of prosecution. Powell, 2012 IL App (4th) 110168, ¶ 14, 976 N.E.2d 1106.
However, we did not mention the court may also dismiss the action "under Illinois Supreme
Court Rule 103(b) (eff. July 1, 2007) if defendant fails to exercise reasonable diligence in
serving the State." People v. Prado, 2012 IL App (2d) 110767, ¶ 9, 979 N.E.2d 564. A
dismissal for lack of diligence in obtaining service prior to the expiration of applicable statute of
limitations under Rule 103(b) is distinct from a dismissal for want of prosecution. Green v.
Wilmont Mountain, Inc., 92 Ill. App. 3d 176, 180, 415 N.E.2d 1076, 1080 (1980). Since the two
types of dismissals are distinct and have different ramifications, we set forth a description of
them below.
¶6 A. Rule 103(b)
¶7 As stated, Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) allows for
dismissals of an action where the petitioner "fails to exercise reasonable diligence to obtain
service on" the opposing party. With a Rule 103(b) dismissal, if the lack of diligence occurs
before the expiration of the applicable statute of limitations, then the trial court may dismiss the
action without prejudice. Ill. S. Ct. R. 103(b) (eff. July 1, 2007). However, if the lack of
diligence occurs after the expiration of the applicable statute of limitations, then the court must
dismiss the action with prejudice as to the party that did not receive proper service. Ill. S. Ct. R.
103(b) (eff. July 1, 2007). Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) further
provides the following: "In considering the exercise of reasonable diligence, the court shall
review the totality of the circumstances, including both lack of reasonable diligence in any
previous case voluntarily dismissed or dismissed for want of prosecution, and the exercise of
reasonable diligence in obtaining service in any case refiled under section 13-217 of the Code of
Civil Procedure." Moreover, Rule 103(b) does not contain a specific time limitation on when
-3-
service should occur. Case v. Galesburg Cottage Hospital, 227 Ill. 2d 207, 213, 880 N.E.2d 171,
175 (2007).
¶8 Our supreme court has noted that, in determining reasonable diligence under Rule
103(b), the court may consider many factors, including, but not limited to the following:
"(1) the length of time used to obtain service of process; (2) the
activities of plaintiff; (3) plaintiff's knowledge of defendant's
location; (4) the ease with which defendant's whereabouts could
have been ascertained; (5) actual knowledge on the part of the
defendant of pendency of the action as a result of ineffective
service; (6) special circumstances that would affect plaintiff's
efforts; and (7) actual service on defendant." Case, 227 Ill. 2d at
212-13, 880 N.E.2d at 175.
The passage of time is then considered in relation to all the other factors and circumstances of
the individual case. Case, 227 Ill. 2d at 213, 880 N.E.2d at 175. The determination of whether a
petitioner exercised reasonable diligence under Rule 103(b) rests within the trial court's sound
discretion. Segal v. Sacco, 136 Ill. 2d 282, 286, 555 N.E.2d 719, 720 (1990).
¶9 Additionally, we note "[a] dismissal with prejudice is usually considered a final
judgment." Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 502, 687 N.E.2d 871,
874 (1997). "Final orders are appealable as a matter of right under Illinois Supreme Court Rule
301 (eff. Feb. 1, 1994)." Fabian v. BGC Holdings, LP, 2014 IL App (1st) 141576, ¶ 12, 24
N.E.3d 307. Thus, if the Rule 103(b) dismissal is with prejudice and applies to all of the
opposing parties, the dismissal is immediately appealable. But see Ill. S. Ct. R. 304(a) (eff. Feb.
26, 2010) (addressing judgments as to fewer than all of the parties).
-4-
¶ 10 B. Want of Prosecution
¶ 11 Under Illinois law, trial courts have the power to dismiss civil actions "for
inexcusable delay and lack of diligence," which is referred to as a dismissal for want of
prosecution. City of Crystal Lake v. Sak, 52 Ill. App. 3d 684, 688, 367 N.E.2d 989, 993 (1977).
Moreover, as previously stated, this court has held a trial court may dismiss a case for want of
prosecution when the petitioner has failed to properly serve the opposing party within "a
reasonable period of time." Powell, 2012 IL App (4th) 110168, ¶ 14, 976 N.E.2d 1106. The
determination of whether or not to dismiss a case for want of prosecution is governed by the
particular facts of the case and rests within the trial court's sound discretion. Department of
Revenue v. Steinkopf, 160 Ill. App. 3d 1008, 1018, 513 N.E.2d 1016, 1022 (1987).
¶ 12 A dismissal for want of prosecution is "not an adjudication on the merits, does not
prejudice the case of the party against whom it is entered, and does not bar a subsequent suit on
the same issues." Kraus v. Metropolitan Two Illinois Center, 146 Ill. App. 3d 210, 212, 496
N.E.2d 1080, 1082 (1986). Section 13-217 of the Procedure Code (735 ILCS 5/13-217 (West
1994)), provides that, after a dismissal for want of prosecution, the petitioner "may commence a
new action within one year or within the remaining period of limitation, whichever is greater."
(We note "[t]he version of section 13-217 in effect is the version that preceded the amendments
to Public Act 89-7 (Pub. Act 89-7, eff. March 9, 1995), which our supreme court found
unconstitutional in its entirety." Domingo v. Guarino, 402 Ill. App. 3d 690, 698 n.3, 932 N.E.2d
50, 58 n.3 (2010).) Thus, the one-year period for refiling applies even if the statute of limitations
has already expired. Since section 13-217 permits refiling, a dismissal for want of prosecution is
not final and appealable. S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489,
507, 693 N.E.2d 338, 346 (1998). It remains an unappealable interlocutory order until the
-5-
petitioner's option to refile expires. S.C. Vaughan Oil Co., 181 Ill. 2d at 507, 693 N.E.2d at 346.
¶ 13 C. Defendant's Section 2-1401 Petition
¶ 14 Now, we examine what type of dismissal the trial court found was appropriate for
defendant's section 2-1401 petition. In its October 2013 order, the court used the term
"dismissed for want of prosecution." While it noted defendant's failure to properly serve the
State, the court made no mention of Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) or
"the failure to exercise reasonable diligence." Thus, we disagree with the State's suggestion the
trial court dismissed defendant's petition under Rule 103(b) and conclude the court found a
dismissal for want of prosecution.
¶ 15 However, we note the trial court further found the matter was ripe for adjudication
and concluded defendant's section 2-1401 petition should be denied on its merits. It appears
from the court's order it intended to enter a final order denying defendant's section 2-1401
petition on the merits. Accordingly, we find the trial court's October 2013 was a sua sponte
denial of defendant's section 2-1401 petition on the merits. Accordingly, we have jurisdiction
over a final and appealable judgment under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994).
Since OSAD's motion to withdraw as counsel focused solely on the court's dismissal finding and
did not address the court's denial of the petition on the merits, we deny OSAD's motion without
prejudice.
¶ 16 II. CONCLUSION
¶ 17 For the reasons stated, we deny without prejudice OSAD's motion to withdraw as
counsel. If OSAD finds no colorable claim of error can be made as to the trial court's ruling on
the merits, then OSAD may file a new motion to withdraw on that basis. If a new motion is not
filed within 28 days, this court will reestablish the briefing schedule.
-6-
¶ 18 Motion denied without prejudice.
-7-
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Order Michigan Supreme Court
Lansing, Michigan
March 27, 2020 Bridget M. McCormack,
Chief Justice
159934(43) David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
PEOPLE OF THE STATE OF MICHIGAN, Richard H. Bernstein
Plaintiff-Appellee, Elizabeth T. Clement
Megan K. Cavanagh,
Justices
v SC: 159934
COA: 346695
Kent CC: 03-007771-FC
ERNEST GORDON, III, a/k/a EARNEST
GORDON, III
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court’s November
26, 2019 order is considered, and it is DENIED, because we are not persuaded that
reconsideration of our previous order is warranted. MCR 7.311(G).
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 27, 2020
a0323
Clerk
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347 F.Supp.2d 346 (2004)
Michael MALLEY, Plaintiff,
v.
ALLSTATE TEXAS LLOYDS and John Albritton, Defendant.
Civil Action No. 1:03-CV-1408.
United States District Court, E.D. Texas, Beaumont Division.
November 29, 2004.
*347 John Stephen Morgan, Lindsay & Morgan, Beaumont, TX, for Plaintiff.
Ronald J. Restrepo, Stephen Howard Lee, Doyle Restrepo Harvin & Robbins, Houston, TX, for Defendant.
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
CLARK, District Judge.
Plaintiff Michael Malley ("Malley") had a Texas Dwelling Policy Form-3, insuring a house he owned in Beaumont, Texas. The house was damaged by plumbing leaks in the foundation during a 1999 freeze. Allstate tendered a check for $30,450 to repair the foundation and related damage shortly thereafter. There were subsequent claims of water damage and mold in the residence and Allstate tendered two more checks totaling $18,412.20 for remediation and buildback. The two checks were issued under the 1999 foundation claim, which had to be reopened and were not issued until early 2003. Plaintiff disputes that these last two checks were sufficient to remedy the water damage and mold remediation.
After receiving the two checks, Plaintiff requested that Allstate open a new mold claim. Allstate investigated Plaintiff's new mold claim and denied it, asserting the policy contained an exclusion for mold damage. Plaintiff asserts that there is coverage under an "ensuing loss" provision, and that Allstate improperly denied his claim, acted in bad faith, violated the Texas Insurance code, and violated the Deceptive Trade Practices Act ("DTPA") by delaying the claim process.
Defendants move for summary judgment, asserting that mold damage is not covered under the ensuing loss provision. The court finds there is ample legal support for this proposition and therefore grants Defendants' motion in this regard.[1] There are still outstanding claims based on failure to pay for alleged water damage to the residence. If Allstate is found to have breached the insurance contract, there are state law claims of bad faith, Texas Deceptive Trade Practice Act, ("DTPA") claims, and Texas Insurance Code claims.
STANDARD OF REVIEW
The party moving for summary judgment under Fed.R.Civ.P. 56 has the initial *348 burden of demonstrating that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Movant may show that the undisputed material facts affirmatively establish a right to judgment. Alternatively, movant may establish that the other party has the burden of proof at trial, and has failed to "make a showing sufficient to establish the existence of an element essential to [its] case." Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993), (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)).
In order to avoid summary judgment, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986); Anderson, 477 U.S. at 257, 106 S.Ct. at 2514. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. Fed. R.Civ.P. 56 requires that the nonmoving party set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Only a genuine dispute over a material fact (a fact which might affect the outcome of the suit under the governing substantive law) will preclude summary judgment. Anderson, 477 U.S. at 248 106 S.Ct. at 2510. The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party on the issue. Id. If the factual context renders a claim implausible (for example if the claim simply makes no economic sense) nonmovants "must come forward with more persuasive evidence to support their claim than would otherwise be necessary." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356.
Fed.R.Civ.P. 56(c) requires the court to look at the full record, including the pleadings, depositions, answers to interrogatories, admissions, and affidavits. All reasonable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, and any doubt must be resolved in its favor. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. However, only reasonable inferences in favor of the nonmoving party can be drawn from the evidence. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 468, 112 S.Ct. 2072, 2083, 119 L.Ed.2d 265 (1992).
ANALYSIS
Coverage under the "ensuing clause"
The homeowner's insurance contract is a standard Texas Dwelling PolicyForm 3. While there is a specific exclusion for loss caused by mold damage, Plaintiff seeks to recover under the "ensuing loss" clause within the contract.
The relevant subsection 1(g) of Texas Dwelling PolicyForm 3 states the following:
We do not cover loss caused by:
(1) wear and tear, deterioration or any quality in property that causes it to damage or destroy itself.
(2) rust, rot, mold or other fungi.
(3) dampness of atmosphere, extremes of temperature.
(4) contamination.
(5) rats, mice, termites, moths or other insects.
We do cover ensuing loss caused by collapse of building or any part of the building, water damage or breakage of *349 glass which is part of the building if the loss would otherwise be covered under this policy.
(Def. Motion for Summary Judgment, Exhibit 7, section 1(g)) (emphasis added).
Section 1(g)(2) expressly excludes loss caused by mold. In claiming coverage for mold, plaintiff is relying on the "ensuing loss" provision. Plaintiff claims mold coverage is not excluded if the mold is an "ensuing loss" from a covered event, such as water damage. The issue before the court is the interpretation of the "ensuing loss" provision.
Interpretation of insurance contracts is governed by the same rules that apply to contracts in general. Am. States Ins. Co. v. Bailey, 133 F.3d 363, 369 (5th Cir.1998); Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 740^1 (Tex.1998). A court should give the words in a contract their plain meaning. See Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936 938 (Tex. 1984). At the same time the court must "give effect to the written expression of the parties' intent, viewing the contract in its entirety" and "strive to give each sentence, clause and word meaning in order not to render any portion of the contract inoperative." Texas Farmers Ins. Co. v. Murphy, 996 S.W.2d 873, 879 (Tex.1999).
The Texas Dwelling PolicyForm 3 in this case covers only loss to the dwelling. Unlike the standard Texas Standard Homeowner's PolicyForm B, there is no "Coverage B" which states that certain exclusions do not apply to loss caused by accidental discharge of water. Accordingly, cases such as Balandran v. Safeco Insurance Co., 972 S.W.2d 738, 740 (Tex. 1998), which interpret the "ensuing loss" clause in the Standard Homeowner's Policy-Form B, are not dispositive. The "ensuing loss" clause in this case must be considered without such modification. Since the Texas Supreme Court has not construed the "ensuing loss" provision in a policy like the one in this case, this court must make an "Erie guess" as to how that Court would rule.[2]
Texas intermediate appellate courts have interpreted "to ensue" as meaning "to follow as a consequence or in chronological succession; to result, as an ensuing conclusion or effect." Zeidan v. State Farm Fire & Cas. Co., 960 S.W.2d 663, 666 (Tex. App.-El Paso 1997, no writ), (quoting Lambros v. Standard Fire Ins. Co., 530 S.W.2d 138, 141 (Tex.Civ.App.-San Antonio 1975, writ ref'd)).
In Zeidan the court was facing a claim for foundation damage rather than mold damage, but the exclusionary provision and the ensuing loss clause were the same as in the present case. That court stated: "`Ensuing loss caused by water damage' refers to water damage which is the result, rather than the cause, of `settling, cracking, bulging, shrinkage, or expansion of foundations, walls, floors, ceilings....'" 960 S.W.2d at 666 (quoting Lambros, 530 S.W.2d at 141)(emphasis added). Applying this analysis to the present case, mold damage resulting from earlier water damage, as claimed by Mr. Malley, would not be covered. Mold damage itself is specifically excluded. The "ensuing loss" caused by water damage" would refer to water damage which is the result, not the cause, of mold damage.
*350 If the court interprets the "ensuing loss" provision so as to allow mold coverage under the present circumstances, it would, "very nearly destroy [the exclusions]." See Aetna Cas. & Surety Co, v. Yates, 344 F.2d 939, 941 (5th Cir.1965). An interpretation rendering the exclusionary clause inoperative makes no sense. The Texas Insurance Commission has approved language specifically providing for coverage for mold and other damage to personal property resulting from accidental discharge of water in the Texas Standard Homeowner's PolicyForm B, "Coverage B." Since different wording is used in this policy, the natural interpretation is that mold is not covered. Guided by this reasoning, and the interpretation given to "ensuing loss" by Texas courts in Lambros and Zeidan, the court finds that mold damage is not covered by Mr. Malley's policy under the circumstances in question.
Cause and Origin
Defendants claim Plaintiff has the burden of demonstrating evidence that the alleged mold damage was caused by a covered event. As stated above, there is no cause of action for mold damage under this contract. Neither Plaintiff nor Defendants have alleged that the damage to the residence is solely mold damage and nothing else. Defendants failed to address the water damage claim in their motion for summary judgment. Plaintiff's experts expressly discuss water damage and have offered proposed remediation and buildback estimates for water damage. Accordingly, summary judgment cannot be granted on this issue.
THEREFORE IT IS ORDERED that Defendants' Motion for Summary Judgment [Doc. #33] is GRANTED as to claims for mold damage. Plaintiff's are still left with claims for water damage, as well as possible extra-contractual claims, which will proceed to trial.
SO ORDERED
NOTES
[1] Since none of the Plaintiff's experts discussed mold in their reports this issue may, as a practical matter be moot. See Courts Order granting in part Defendants' Motion to Exclude Expert Testimony [Doc. # 58].
[2] There is a conflict in decisions on the interpretation of an ensuing loss clause in the Southern District of Texas. See e.g., Fiess v. State Farm Lloyds, 2003 WL 21659408 (S.D.Tex., June 4, 2003); Flores v. Allstate Texas Lloyd's Co., 278 F.Supp.2d 810 (S.D.Tex.2003). While neither of these cases are binding, the court finds the reasoning in Fiess to be more persuasive.
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359 F.2d 404
Timothy George ELLEDGE, Appellant,v.UNITED STATES of America, Appellee.
No. 20319.
United States Court of Appeals Ninth Circuit.
April 4, 1966.
Rehearing Denied May 12, 1966.
David K. Yamakawa, Jr., San Francisco, Cal., for appellant.
William P. Copple, U. S. Atty., Henry L. Zalut, Morton Silver, Asst. U. S. Attys., Phoenix, Ariz., for appellee.
Before HAMLEY, MERRILL and BROWNING, Circuit Judges.
MERRILL, Circuit Judge:
1
Appellant stands convicted of the crime of interstate transportation of counterfeiting equipment,1 and has appealed from judgment. The transported equipment consisted of a check protector which was established to be property of the appellant and was received in evidence at trial over appellant's objection. At issue is his right to suppression of that evidence upon the ground that it was obtained by unlawful search and seizure.
2
The search and seizure occurred in appellant's motel room in Phoenix, Arizona. Present were appellant, his co-defendant and two police officers. No search warrant had been secured. The check protector was enclosed in a package and at the time was on the floor. An officer inquired of appellant as to what was in the package and appellant responded: "I don't know. It's not mine." At the direction of the officer the codefendant then opened the package.
3
Such disclaimer of ownership by the appellant is analogous to abandonment. Cf. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). In both cases the same message, by act or word, is delivered to the officer: that as to the actor or speaker there is no interest which would be invaded by search or seizure. Lack of warrant does not under these circumstances render search or seizure unreasonable as to the actor or speaker.
4
We conclude that it was not error to deny appellant's motion to suppress or to admit the check protector in evidence.
5
Appellant also attacks the indictment, contending that the facts there set forth are insufficient to constitute a crime. He asserts that the check protector was as innocent a device as a fountain pen and that interstate transportation of such equipment is no crime.
6
By Title 18 U.S.C., § 2314, (1964) (which the indictment closely follows), the offense does not depend on the criminal character of the thing transported, but on the fraudulent purpose of the transportation. We conclude that the indictment was sufficient.
7
Affirmed.
Notes:
1
The one-count indictment of appellant and a codefendant reads:
"THE GRAND JURY CHARGES:
On or about the 30th day of September, 1964, the said TIMOTHY GEORGE ELLEDGE and BYRON THOMAS STOCKS did, with fraudulent intent, transport or cause to be transported in interstate commerce from Reno, State and District of Nevada, to Phoenix, State and District of Arizona, a tool or implement; to-wit: a paymaster check protector, Series T550, being a thing used or fitted to be used in falsely making or counterfeiting a security in violation of Title 18, U.S.C., Section 2314."
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-1670
___________________________
Karen Villa
lllllllllllllllllllll Plaintiff - Appellant
v.
Nancy A. Berryhill, Acting Commissioner of Social Security
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: September 25, 2017
Filed: September 28, 2017
[Unpublished]
____________
Before WOLLMAN, BOWMAN, and COLLOTON, Circuit Judges.
____________
PER CURIAM.
Karen Villa appeals the district court’s1 order affirming the denial of disability
insurance benefits and supplemental security income. Upon de novo review, we find
1
The Honorable Becky R. Thorson, United States Magistrate Judge for the
District of Minnesota, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).
no basis, and Villa offers none, for overturning the district court’s determination that
substantial evidence supported the denial. See Gann v. Berryhill, 864 F.3d 947, 950-
51 (8th Cir. 2017) (reviewing de novo district court’s decision to affirm denial of
disability insurance benefits and supplemental security income; by statute,
Commissioner’s findings as to any fact, if supported by substantial evidence, are
conclusive). The judgment is affirmed. See 8th Cir. R. 47B.
______________
-2-
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650 F.2d 283
*dMeserveyv.Republic Nat'l Life Insurance Co., Inc.
80-7696
UNITED STATES COURT OF APPEALS Fifth Circuit
6/17/81
1
S.D.Ala.
AFFIRMED
*
Fed.R.App. P. 34(a); 5th Cir. R. 18
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Filed 12/18/15 P. v. McGaughy CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B263748
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA088805)
v.
CHARLES MCGAUGHY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Deborah S. Brazil, Judge. Affirmed.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
___________________________________
Pursuant to a negotiated agreement, Charles McGaughy pled no contest to a
charge of assault with a firearm (Pen. Code, § 245, subd. (a)(2))1 and admitted that he
suffered a prior strike conviction (§ 667, subds. (b)-(j)). As agreed, the trial court
sentenced McGaughy to an aggregate term of six years in state prison comprised of a
middle term of three years, doubled pursuant to the Three Strikes law. We affirm the
judgment in accord with the procedures established in People v. Wende (1979) 25 Cal.3d
346.
DISCUSSION2
On January 3, 2014, McGaughy and his two brothers, Tyrone and Michael, drove
to Memorial Park in Hawthorne where they approached Monte Henderson and Treshawn
Phillips. One of the McGaughy brothers asked, “Where are you from?” and another or
the same brother called out, “Playboy Crips!” Someone tried to punch Henderson, but he
was able to run away. The three McGaughy brothers then began punching Phillips.
Tayshawn Craig and Victor Boyd were in the park, saw the attack, and ran over to
help Phillips. McGaughy pulled a “small caliber” revolver, “possibly a .22,” from his
waistband and fired it at Craig, but did not hit anything. McGaughy and Craig struggled
over the gun in the midst of a “fight” between everybody at the scene. Eventually, police
arrived and detained almost everyone in the area, save for those who had run away when
the police started arriving. Craig said McGaughy had fired a shot him, and told officers
that McGaughy had given the gun to someone who had run from the scene. Police
apprehended Michael a few minutes later a short distance from the park, after he had
been out of sight for a brief period. No gun was recovered, but six .22 caliber bullets
were found in McGaughy’s SUV which was parked nearby.
1
All further statutory references are to the Penal Code.
2
The facts are summarized from the preliminary hearing transcript as McGaughy
entered a plea before trial.
2
In November 2014, the People filed an information charging McGaughy with
assault with a firearm (count 1; § 245, subd. (a)(2)) and possession of a firearm by a felon
(count 2; § 29800, subd. (a)(1)). The information alleged both offenses were committed
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)), and that, as to
count 1, McGaughy personally used a firearm (§ 12022.5, subd. (a)). The information
alleged that McGaughy had a prior conviction in 2006 for assault with a firearm which
qualified as a prior serious felony (§ 667, subd. (a)) and a prior strike conviction (§ 667,
subds. (b)-(j)), and that he had a separate prior conviction with a prison term (§ 667.5,
subd. (b)).3
On January 6, 2015, McGaughy filed a motion to dismiss the alleged prior strike
pursuant to People v. Superior Court (Romero) 13 Cal.4th 497 (Romero). McGaughy’s
motion was supported by exhibits in the form of school records and recommendations of
teachers at Los Angeles Trade Tech College. Those materials showed that McGaughy
had performed well in his automotive repairs classes (mostly As and Bs, and a Dean’s
Honor Award) and that his teachers recognized him as a person of good character.
On February 17, 2015, McGaughy agreed to plead to count 1 and to admit the
prior strike allegation in accord with a plea agreement. McGaughy signed a standard
form “Felony Advisement of Rights, Waiver, and Plea,” and initiated the form adjacent
to advisements of his constitutional trial rights. The trial court dismissed count 2 and all
of the other allegations, and sentenced McGaughy in accord with his plea agreement to a
three-year middle term, doubled to six years for the strike. McGaughy received 410 days
of actual custody credits, and 410 days of good conduct credits.
3
Tyrone McGaughy and Michael McGaughy were also charged with charged the
assault with a firearm alleged in count 1, and, as to them more generally, the information
alleged that a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1)). They
entered pleas to count 1 pursuant to their own separate plea agreements.
3
McGaughy filed a timely notice of appeal based on the sentence or other matters
occurring after the plea.4 We appointed counsel to represent McGaughy on appeal.
On September 14, 2015, appointed counsel filed a brief pursuant to Wende, supra, 25
Cal.3d 436, requesting we independently review the record on appeal for any arguable
issues. We notified McGaughy by letter that he could submit any claim, argument or
issues that he wished our court to review. On November 5, 2015, McGaughy filed a
letter brief. We understand McGaughy’s letter brief to raise four claims of error which
we address here.
McGaughy contends he “was not advised of his constitutional rights or of the
consequences of [his] guilty plea.” This claim of error is not supported by the record.
The record shows that McGaughy signed a standard form “Felony Advisement of Rights,
Waiver, and Plea,” and initialed the form next to advisements of his constitutional trial
rights.5 Further, the record shows that the trial court carefully reviewed the plea form
with McGaughy, questioning whether he understood the form and whether he had affixed
his initials “in the boxes” adjacent to the advisement of his constitutional rights. We are
satisfied that McGaughy knowingly and willingly waived his constitutional rights.
The plea form also included an explanation of the consequences of his plea. We thus
reject any error in this regard.
McGaughy “respectfully asks [our] court . . . to dismiss [his] prior strike.” Here,
we construe McGaughy’s letter brief to raise an argument that the trial court erred in not
granting his Romero motion. We disagree. McGaughy entered into a negotiated plea
agreement under which he accepted a six-year sentence which included a three-year mid-
term, doubled for his prior strike. By accepting such a plea agreement, he effectively
4
McGaughy’s notice of appeal also indicated that he desired to challenge the
validity of his plea. Any such claim is not reviewable on appeal because the trial court
denied his request for a certificate of probable cause. (§ 1237.5.)
5
We ordered the superior court to transmit McGaughy’s felony advisement of
rights, waiver, and plea form to our court. On our own motion, we augment the record to
include a copy of the form.
4
ceded his Romero motion, which had not been ruled upon before he agreed to the plea.
Had the trial court denied the Romero motion before the plea hearing, and had
McGaughy’s plea agreement preserved the issue of Romero error, we might view the
present issue differently. However, having accepted the plea and sentence based on use
of his prior strike, we find no Romero error.
McGaughy next contends that the trial court erred in “rely[ing]” on his prior strike
to double his sentence. Here, McGaughy seems to assert that his underlying prior strike
conviction was obtained by plea, and that the plea was obtained in violation of his
constitutional rights. He cites Burgett v. Texas (1967) 389 U.S. 109 (Burgett) and states:
“If the defendant could establish the prior convictions were invalid, he was entitled to be
resentenced.” We see no error.
Burgett was decided four years after Gideon v. Wainwright (1963) 372 U.S. 335,
and established the constitutionally-founded rule that states are required to provide a
lawyer to an indigent defendant in a criminal case. In Burgett, the United States Supreme
Court ruled that a Texas state court unconstitutionally relied on a prior felony conviction
to invoke the state’s recidivist offender law, where “the certified records of the conviction
on their face raise[d] a presumption that [the defendant] was denied his right to counsel in
the [prior] proceeding, and therefore that his conviction was void.” (Burgett, supra, 389
U.S. at pp. 114-115.) We see nothing in McGaughy’s current case tending to support his
implicit assertion that he did not have a lawyer when he was convicted in his prior case.
McGaughy’s final contention is that “[n]o evidence . . . that a firearm was used”
was presented in his case “by any witness under penalty of perjury.” We find no error.
McGaughy’s claim appears to attack the sufficiency or competency of the evidence in his
case. Any such claim was foregone when McGaughy agreed to plead guilty before trial,
admitting a factual basis for the charged offense. Nevertheless, there is sufficient
evidence that a firearm was used. City of Hawthorne Police Department Detective Keith
Chaffin testified under oath at the preliminary hearing. He testified that he responded to
the events in Memorial Park and that he spoke to two witnesses, Treshawn Phillips and
Tayshawn Craig. Both say that they saw McGaughy pull out a handgun and fire it.
5
The use of such testimony by a police officer, given under oath, has been permitted in
this state since the voters approved Proposition 115 in 1990. (See Cal. Const., art. 1,
§ 30, subd. (b); and see also § 872, subd. (b); and see generally People v. Miranda (2000)
23 Cal.4th 340, 347-354.)
We have reviewed the record on appeal, and find that McGaughy’s appointed
counsel has fulfilled her duty, and that no arguable issue exists. (Wende, supra, 25
Cal.3d 436, People v. Kelly (2006) 40 Cal.4th 106.)
DISPOSITION
The judgment is affirmed.
BIGELOW, P. J.
We concur:
RUBIN, J.
FLIER, J.
6
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503 S.E.2d 857 (1998)
202 W.Va. 289
Pamela L. NELSON, Plaintiff Below, Appellee,
v.
ALLSTATE INDEMNITY COMPANY, Defendant Below, Appellant.
No. 24139.
Supreme Court of Appeals of West Virginia.
Submitted June 9, 1998.
Decided June 18, 1998.
*858 Susan R. Snowden, Martin & Seibert, Martinsburg, for Appellant.
Marvin L. Downing, See & Downing, Moorefield, for Appellee.
PER CURIAM:[1]
This matter arises from an order of the Circuit Court of Grant County granting summary judgment against Allstate Indemnity Company, appellant/defendant, (hereinafter Allstate) in a declaratory relief action brought by Pamela Nelson, appellee/plaintiff, (hereinafter Ms. Nelson). Allstate has assigned as error the circuit court's ruling that (1) West Virginia law applied to underinsured automobile insurance purchased by Ms. Nelson from Allstate in the state of Maryland and (2) in finding that Ms. Nelson's deceased son was an insured under the policy.
I.
FACTUAL BACKGROUND
Ms. Nelson moved to the state of Maryland with her husband at some point in 1994 or early 1995.[2] Ms. Nelson purchased an automobile insurance policy from Allstate while living in Maryland. The policy covered the period April 22, 1995 to October 22, 1995. The underinsured provision in the policy provided a per person liability limit of $20,000.00.
On May 17, 1995, Ms. Nelson's son, Malcom B. Harris, died from injuries sustained in a single car accident in Grant County, West Virginia.[3] At the time of the accident the car was being driven by Ms. Nelson's former husband and Malcom's father, Michael Harris.[4] On October 27, 1995, Ms. *859 Nelson filed an action against Mr. Harris personally and as administrator of Malcom's estate.[5] Subsequent to filing this action Ms. Nelson amended her complaint to add Allstate as a defendant. The claim against Allstate was for a declaratory finding that the underinsured policy was enforceable under the laws of West Virginia[6] and that Malcom was an insured under the policy.[7]
Ms. Nelson moved for summary judgment against Allstate. By order entered October 31, 1996 the circuit court granted summary judgment to Ms. Nelson. The order specifically held:
The Plaintiff's decedent, Malcolm B. Harris, at the time of his death had a dual residency that is he was a resident both of the household of Plaintiff, Pamela L. Nelson, and of his father, Richard Harris, and that as a resident of the State of West Virginia, he is entitled to the protection of West Virginia's public policy and that therefore West Virginia law applies to the policy provisions to be interpreted in the within cause.
Allstate appeals the granting of summary judgment.
II.
STANDARD OF REVIEW
This Court's standard of review concerning summary judgment is well settled. As this Court stated in syllabus point 3 of Aetna Casualty and Surety Co. v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963), "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Moreover, we note that, upon appeal, the entry of a summary judgment is reviewed by this Court de novo. Syl. pt. 1, Koffler v. City of Huntington, 196 W.Va. 202, 469 S.E.2d 645 (1996); Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
III.
DISCUSSION
Allstate correctly noted that the dispositive issue in this case is whether Maryland or West Virginia law applies to the insurance policy issued to Ms. Nelson. The circuit court found that Ms. Nelson was a resident of Maryland and that the policy in question "was entered into and agreed upon in the State of Maryland." The circuit court's sole basis for holding that West Virginia law was applicable to the insurance policy was as follows: "That `anti-stacking' provisions are valid and legal under the laws of the State of Maryland but are repugnant to the policy of the State of West Virginia, and therefore are invalid under West Virginia Law."
In Nadler v. Liberty Mutual Fire Insurance Co., 188 W.Va. 329, 424 S.E.2d 256 (1992) this Court considered the issue of whether residents of Ohio injured in an automobile accident in West Virginia could have the benefit of our underinsured motorist law based upon our public policy, even though the Nadler's insurance policy was issued in Ohio.[8] In that case the parties agreed that under Ohio law the underinsured motorist coverage was offset by the amount recovered under applicable liability policies.[9] The liability payments in Nadler exceeded the underinsured coverage limits. Therefore, if Ohio law applied, there was no recovery. The same factual situation exists in this case. That is, liability coverage through Mr. Harris' policy was $50,000.00. The underinsured policy limit under Ms. Nelson's policy was *860 $20,000.00. Under Maryland law, Ms. Nelson's policy would be offset by the recovery from Mr. Harris' policy. The circuit court rejected this analysis. The circuit court found Maryland's motorist laws "repugnant to the public policy" of West Virginia.
In Nadler we discussed the issue of another state's motorist coverage law being so foreign to our public policy principles that West Virginia would refuse to enforce it in a lawsuit resulting from an automobile accident occurring in West Virginia. We provided the following analysis of West Virginia public policy regarding uninsured and underinsured motorist coverage:
Our substantive law governing uninsured and underinsured motorist coverages in motor vehicle insurance policies is intended to apply only to insurance transactions which occur in West Virginia or which affect the rights and responsibilities of West Virginia citizens. For this reason, the public policy of full compensation underlying our uninsured/underinsured motorist law is implicated only when the parties and the transaction have a substantial relationship with this state. The importance of the public policy is directly proportional to the significance of that relationship. The more marginal the contact West Virginia has with the parties and the insurance contract, the less reason there is to consider the public policy behind our uninsured/underinsured motorist law as a factor bearing on the choice of law determination.
Nadler, 188 W.Va. at 337, 424 S.E.2d at 264.
In Nadler, we ruled that the Ohio plaintiffs were bound by the Ohio law since most of the substantial contacts existed in Ohio with regard to their insurance coverage. In Nadler we set out in syllabus point 3 the following rule of law:
The mere fact that the substantive law of another jurisdiction differs from or is less favorable than the law of the forum state does not, by itself, demonstrate that application of the foreign law under recognized conflict of laws principles is contrary to the public policy of the forum state.
Under Nadler, there is no conflict between the public policy of our law and that of Maryland. See Syl. pt. 2, Lee v. Saliga, 179 W.Va. 762, 373 S.E.2d 345 (1988) ("The provisions of a motor vehicle policy will ordinarily be construed according to the laws of the state where the policy was issued and the risk insured was principally located, unless another state has a more significant relationship to the transaction and the parties"). The circuit court should have found that the policy in this case was governed by the state of Maryland. To rule otherwise would establish the exception that insurance contracts executed in other states would always be subject to West Virginia substantive law if the automobile accident occurred in West Virginia and if validly presented before our courts. Such a situation would render a nullity to conflict of laws principles.[10]
IV.
CONCLUSION
In view of the foregoing the circuit court's order is reversed.
Reversed.
NOTES
[1] We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4. (1992).
[2] Ms. Nelson had previously lived in West Virginia.
[3] The accident occurred on May 16, 1995.
[4] The record indicates that Malcom was seven years old at the time of his death.
[5] Ms. Nelson sought to have Mr. Harris removed as administrator of Malcom's estate, so that Malcom's estate could bring a wrongful death claim against Mr. Harris for negligently causing his death.
[6] The insurance policy contained anti-stacking language which precluded recovery of underinsured proceeds pursuant to Maryland law.
[7] Mr. Harris had a separate insurance policy on the vehicle in which Malcom was killed. Malcom's estate and Ms. Nelson were paid by Mr. Harris' insurance the policy limit of $50,000.00.
[8] Ms. Nelson's brief refers this Court to the decision in Clark v. Rockwell, 190 W.Va. 49, 435 S.E.2d 664 (1993). Clark was a per curiam opinion. Clark has no dispositive weight in this proceeding.
[9] This same offset exists under Maryland law.
[10] The second issue, residency of Malcom, is moot based upon this Court's determination that Maryland law applies in this case.
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646 F.2d 771
Anthony J. DOUSEWICZ, Appellant,v.Patricia R. HARRIS, Secretary of Health, Education andWelfare, Appellee.
No. 678, Docket 80-6117.
United States Court of Appeals,Second Circuit.
Argued Jan. 12, 1981.Decided April 8, 1981.
Arthur P. Anderson, Burlington, Vt. (Saxer & Anderson, Burlington, Vt., of counsel), for appellant.
Karen McAndrew, Asst. U. S. Atty., Burlington, Vt. (William B. Gray, U. S. Atty., Rutland, Vt., for the District of Vermont, of counsel), for appellee.
Before MOORE, MANSFIELD, and MULLIGAN,* Circuit Judges.
MOORE, Circuit Judge:
1
This is an appeal from a judgment of the United States District Court for the District of Vermont (Honorable Albert W. Coffrin, District Judge), which held there was substantial evidence supporting the decision of the Secretary of Health, Education and Welfare that appellant Anthony Dousewicz was not disabled as of September 30, 1971. We reverse, concluding that the Secretary's decision is not supported by substantial evidence, and remand to the Secretary for the establishment of a period of disability and the payment of benefits to Dousewicz.
The Statutory Framework
2
A person is disabled and eligible to receive social security disability benefits when that person is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months " 42 U.S.C. § 423(d)(1)(A) (1976). That impairment must be of such severity that the person "is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work". 42 U.S.C. § 423(d)(2)(A) (1976). The burden of proving disability is on the claimant, 42 U.S.C. § 423(d)(5) (1976); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); Flores v. Department of Health, Education and Welfare, 465 F.Supp. 317, 324 (S.D.N.Y.1978). "Once the claimant has established a prima facie case, by showing that his impairment prevents his return to his prior employment, the burden shifts to the Secretary, who must produce evidence to show the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training." Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); accord, Hall v. Secretary of Health, Education and Welfare, 602 F.2d 1372, 1375 (9th Cir. 1979); Hephner v. Matthews, 574 F.2d 359, 362 (6th Cir. 1978); Small v. Califano, 565 F.2d 797, 800 (1st Cir. 1977); Thompson v. Mathews, 561 F.2d 1294, 1296 (8th Cir. 1977); McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976); Lewis v. Weinberger, 515 F.2d 584, 587 (5th Cir. 1975); Stark v. Weinberger, 497 F.2d 1092, 1098 (9th Cir. 1974); and Meneses v. Secretary of Health, Education and Welfare, 442 F.2d 803, 807 (D.C.Cir.1971).
3
A claimant may obtain review of the Secretary's final decision in a civil action in federal district court. In that proceeding, the findings of the Secretary are conclusive where supported by substantial evidence, 42 U.S.C. § 405(g) (1976), as amended by Act of June 9, 1980, Pub.L.No.96-265, 94 Stat. 458. It is not the function of a reviewing court to determine de novo whether the claimant is disabled, but to decide whether the Secretary's decision is supported by substantial evidence, Parker v. Harris, 626 F.2d at 231; Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978); and Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38 (2d Cir. 1972). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). In its deliberations the District Court should consider the fact that the Social Security Act is a remedial statute to be broadly construed and liberally applied, Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978); Haberman v. Finch, 418 F.2d 664, 667 (2d Cir. 1969); Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 41 (2d Cir. 1972). The judgment of the District Court should be "final except that it shall be subject to review in the same manner as a judgment in other actions". 42 U.S.C. § 405(g) (1976), as amended by Act of June 9, 1980, Pub.L.No.96-265, 94 Stat. 458. Where the trial court or the appellate court finds that the Secretary's decision is not supported by substantial evidence, § 405(g) authorizes the court to reverse the Secretary's decision "with or without remanding the cause for a rehearing".
Facts and Discussion
4
The plaintiff, a 63 year old man, claims that he has been disabled since July of 1966 by chronic pain in his back and shoulders caused by chronic pain syndrome, physical pain caused by depression. He is entitled to disability benefits if he was disabled on September 30, 1971, the last date on which the claimant met the earnings requirement. "To be insured for disability benefits in a given month, an individual must meet certain earnings requirements for twenty of the forty quarters ending with the quarter in which that month occurred." Parker v. Harris, 626 F.2d at 228, n.3, citing 42 U.S.C. §§ 423, 414, 413 (1974).
5
Appellant Dousewicz's employment history consists mostly of his work as a warehouse supervisor for the United States Air Force from 1942 to his retirement in 1964. Between his retirement in 1964 and the time in 1972 when he ceased looking for employment, plaintiff worked from time to time as a traffic counter, parts tester for a manufacturer, and an apple picker. Plaintiff first applied for disability benefits on June 5, 1973, claiming that he was disabled as of July of 1966.
6
This case has had a long history. In an earlier proceeding the Secretary denied Dousewicz benefits, finding that he had not met his burden of proof and that he could perform his prior work as a warehouse supervisor. Judge Coffrin found that decision not supported by substantial evidence, reversed, and remanded the case to the Secretary to take evidence on the question of whether the plaintiff retained on September 30, 1971, the physical capacity to perform jobs then existing in the national economy. Dousewicz v. Califano, No. 77-110 (D.Vt., filed August 25, 1978). On the remand the burden of proof shifted to the Secretary. A supplemental hearing was held, after which the Administrative Law Judge recommended that the plaintiff not be afforded benefits. The Appeals Council accepted the recommendation. Judge Coffrin found that determination supported by substantial evidence, and entered summary judgment for the Secretary. Dousewicz v. Harris, No. 79-122 (D.Vt. filed June 6, 1980). From that judgment, plaintiff appeals.
7
Much of the evidence introduced did tend to show that the claimant was in fact disabled at the relevant time. Appellant's medical history shows a consistent history of back and shoulder pain. In June, 1966, the Veteran's Administration found the plaintiff 40% disabled. In January and again in June of 1967, the claimant was admitted to the hospital with a complaint of back pain. In 1968, the Veteran's Administration found the claimant 60% disabled. A record of a hospital visit by the plaintiff in 1968 contains the following report:
8
"The patient states that he has had pain in both shoulders for many years. He has no particular reason for coming to the hospital at this time except that the pain has become gradually and persistently worse At present, therefore, he is not working and states he is not doing so for both reasons that his shoulders are sufficiently troublesome so that he cannot concentrate; and, as well, he states he is nervous and unable to work for this reason also."
9
That same year the claimant was operated on to remove a calcium deposit in his shoulder. In 1969, the claimant reported back and shoulder pain to his doctors. In 1970, the Veteran's Administration found Dousewicz 100% disabled.
10
Furthermore, the doctor who has treated Dousewicz since 1973, Dr. Phillip Sanfacon, stated that Dousewicz has probably been disabled since 1967. And Dr. Sanfacon's description of Dousewicz's adjustment to chronic pain supports the proposition that Dousewicz's pain rendered him unable to engage in substantial gainful employment:
11
"This man has adjusted remarkably well to his chronic pain syndrome by doing the following. He had found that by changing positions often, sitting or standing interspersed with walks or lying down, avoiding any bending, stooping, elevation of arms, taking his tranquilizers, staying home quietly alone, avoiding the 'rat race' of goal oriented jobs was a remarkable way of minimizing his pain and making life tolerable. This man has succeeded in achieving the following goals set out for him, to avoid drug addiction, and suicide. What is extremely remarkable is that in face of the chronic pain syndrome this man has licked his severe alcoholic problem as of 1973."
12
While Dr. Sanfacon did not treat the appellant during the relevant period before September 30, 1971, his opinion is still entitled to significant weight. "(A) diagnosis of a claimant's condition may properly be made even several years after the actual onset of the impairment." Stark v. Weinberger, 497 F.2d 1092, 1097 (7th Cir. 1974), citing Berven v. Gardner, 414 F.2d 857, 861 (8th Cir. 1969), Murphy v. Gardner, 379 F.2d 1, 7 (8th Cir. 1967). Such a diagnosis must be evaluated in terms of whether it "is predicated upon a 'medically accepted clinical diagnostic technique' " and whether "considered in light of the entire record, it establishes the existence of a 'physical impairment' prior to" 1971. Stark v. Weinberger, 497 F.2d at 1097.
13
While there is considerable evidence suggesting that Dousewicz was disabled on September 30, 1971, there is, on the other hand, very little evidence supporting the Secretary's determination that Dousewicz was not disabled at the time. At the supplemental hearing, the Administrative Law Judge heard evidence in the form of a vocational expert's testimony that sedentary work existed on September 30, 1971, for which plaintiff was suited by his age, education and work experience. This proof discharged the Secretary's burden as to the availability of work for which a partially disabled claimant remains vocationally suited, Taylor v. Weinberger, 512 F.2d 664, 669 (4th Cir. 1975); Garrett v. Richardson, 471 F.2d 598, 603 (8th Cir. 1972). It does not, however, support the Secretary's determination that this plaintiff retained the residual physical capacity for sedentary work before September 30, 1971. The Secretary offered no medical testimony on the plaintiff's capacity to perform sedentary labor.
14
Nor does the other evidence in the record demonstrate that the Secretary has met her burden of showing that the plaintiff was not disabled by such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion. The evidence relied on by the Secretary is not substantial. The absence of localized joint pain prior to 1973 bears on the plaintiff's arthritis of the knees, not on the chronic back pain which is the basis of his claim of pre-1971 disability. The stability of the claimant's right shoulder for one year, the retained full range of motion and the absence of internal abnormalities also fail to bear on the question of whether the plaintiff's chronic pain was disabling. Nor is the void filled by the testimony of Dr. Roger Moxon, a doctor whose opinion was solicited by Dr. Sanfacon, Dr. Moxon wrote that the plaintiff's condition had grown progressively more disabling. Yet the fact that a condition is more disabling today than it was yesterday does not mean that the condition was not disabling yesterday.
15
The Secretary simply left too great a void when she failed to produce medical testimony as to whether the plaintiff was disabled as of September 30, 1971 by his ailments. Accordingly, we reverse, and remand to the Secretary for the establishment of a period of disability and the payment of benefits to Dousewicz.
16
Reversed and remanded.
*
Before leaving the court, Judge Mulligan concurred in the result
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520 F.2d 944
U. S.v.Ransom
74-3754
UNITED STATES COURT OF APPEALS Fifth Circuit
9/25/75
N.D.Ga., 515 F.2d 885
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
THOMAS W. MALONE, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-0909
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed May 24, 2016.
An appeal from an order of the Circuit Court for Leon County.
Angela C. Dempsey, Judge.
Thomas W. Malone, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED.
RAY, MAKAR, and OSTERHAUS, JJ., CONCUR.
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107 Ga. App. 640 (1963)
131 S.E.2d 238
MOORMAN
v.
WILLIAMS et al.
40072.
Court of Appeals of Georgia.
Decided April 16, 1963.
Harris, Chance, McCracken & Harrison, Henry T. Chance, Otis W. Harrison, H. T. Hicks, for plaintiff in error.
Sharpe & Sharpe, T. Ross Sharpe, T. Malone Sharpe, Marvin B. Hartley, Jr., Emory L. Rowland, contra.
RUSSELL, Judge.
1. (a) A general assignment of error in the bill of exceptions to the judgment overruling a motion for a new trial is sufficient. Huxford v. Southern Pine Co. of Ga., 124 Ga. 181 (1) (52 SE 439).
(b) "Where a bill of exceptions which can be identified as excepting to a specific judgment shall be served upon counsel of record in the case, such service shall be held to bind all parties whom said counsel represented in the trial court." Code § 6-912. Where two or more attorneys appear as attorneys of record in the case, both signing the answer of the defendant, appearing as counsel of record in the first appeal and also upon the second trial of the case, the bill of exceptions will not be dismissed because service thereof was acknowledged by one of the counsel of record who was not as a matter of fact leading counsel, although he was associated in the case.
The motion to dismiss the bill of exceptions is denied.
2. "A decision rendered upon a state of facts appearing in the record, in which the legal effect of those facts is declared, is, in all subsequent proceedings in the case, a final adjudication of the rights of the parties, from which the court cannot depart, nor the parties relieve themselves, so long as the facts themselves appear without material qualification." Blackwell v. Southland Butane Gas Co., 95 Ga. App. 113 (97 SE2d 191). See also Taylor v. Felder, 11 Ga. App. 742 (76 SE 75); Cook v. J. I. Case Threshing Machine Co., 17 Ga. App. 543 (87 SE 832); Jarrell v. Seaboard Air-Line R., 21 Ga. App. 415 (94 SE 648); Scott v. Sanders, 27 Ga. App. 128 (107 SE 494); Gray v. Payne, 27 Ga. App. 553 (109 SE 179).
3. On the first trial of this cause of action, Moorman v. Williams, 103 Ga. App. 726 (1) (120 SE2d 312), the grant of a nonsuit was affirmed by this court as follows: ". . . the uncontradicted evidence in the case shows that the deceased could, in the exercise of ordinary care, have seen the truck entering into and crossing the public road when the automobile driven by the deceased was approximately 150 yards away, and that he could, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, if any." The pleadings and evidence are set out in detail in that opinion. When the action was rebrought, the pleadings *641 remained the same. The testimony of L. T. Chester was the same, it being read into the record from the first trial. L. C. Lewis changed his testimony to the extent that he reduced the decedent's driving speed to between 30 and 50 miles per hour (all other testimony in the case indicating the decedent was traveling between 75 and 100 miles per hour); that he applied his brakes and skidded about 150 feet (all other testimony being that the measured skid marks were 238 feet) and that the witness never saw the tractor-trailer until the approximate moment of impact. Carter did not testify. Annie Williams testified that she saw nothing. There is in the case, however, uncontradicted testimony that it was daylight, the road was clear, level and perfectly straight with no visual impediment for 200 yards from the driveway where defendant's vehicle emerged to a church down the road, and uncontradicted evidence also places the decedent as crossing the railroad beyond the church at the time the defendant driver was entering the highway. It thus appears here as on the former trial that the decedent could in the exercise of ordinary care have seen the defendant's trailer in the roadway at a distance of over 150 yards and could in the exercise of ordinary care for his safety have avoided the collision.
Since under our decision in Moorman, supra, the evidence demands the verdict rendered, the eight special grounds of the motion for new trial complaining only of alleged inaccuracies in the charge will not be considered.
The trial court did not err in overruling the motion for new trial.
Judgment affirmed. Felton, C. J., and Eberhardt, J., concur.
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462 F.Supp. 45 (1978)
Howard JACKSON
v.
TENNESSEE VALLEY AUTHORITY and Ickes-Braun Glasshouses, Inc.
No. 74-343-NA-CV.
United States District Court, M. D. Tennessee, Nashville Division.
June 19, 1978.
*46 *47 *48 Harlan Dodson, Jr., Hooker, Keeble, Dodson & Harris, Nashville, Tenn., George R. Fleming, Marks & Fleming, Clarksville, Tenn., for plaintiff.
John K. Maddin, Jr., Gracey, Maddin, Cowan & Bird, Nashville, Tenn., Herbert S. Sanger, Jr., Gen. Counsel, Charles A. Wagner, III, Associate Gen. Counsel, Larry S. Bush; William R. Casto, Tennessee Valley Authority, Knoxville, Tenn., for defendants.
MEMORANDUM
MORTON, Chief Judge.
On August 2, 1974, plaintiff filed suit against defendants to recover damages for injuries he sustained while working at the Cumberland Steam Plant in Cumberland, Tennessee. In his complaint, plaintiff made the following allegations as to the jurisdiction of this court:
1. Your Plaintiff is a resident of the Middle District of Tennessee. Defendant TENNESSEE VALLEY AUTHORITY is a corporation incorporated by act of Congress, maintaining facilities in the Middle District of Tennessee, including Stewart County, Tennessee. ICKES-BRAUN GLASSHOUSES, INC., is an Illinois corporation which did business in the State of Tennessee, as hereinafter related, and is subject to service of process in the State of Tennessee based upon its activities there.
2. This Court has jurisdiction for this case of the TENNESSEE VALLEY AUTHORITY pursuant to the provisions of 28 USCA Sections 1331 and 1349. This Court has jurisdiction in this case over ICKES-BRAUN GLASSHOUSES, INC., on the grounds that Plaintiff and Defendant are citizens of different states and the amount in controversy exceeds $10,000.00, as set forth in 28 USCA Section 1332.
In their answers, neither defendant challenged the jurisdiction of this court, although defendant Tennessee Valley Authority ("TVA") did assert that 28 U.S.C. § 1349 was not applicable to it as a jurisdictional basis for suit. Similarly, in the pre-trial order submitted by the parties and approved by the court on July 23, 1975, the jurisdiction of this court as to both defendants was not disputed.
In a memorandum opinion entered on March 17, 1976, the court found that neither defendant was liable to plaintiff for the injuries he had suffered. Jackson v. Tennessee Valley Authority, 413 F.Supp. 1050 (M.D.Tenn.1976). In making such a finding, the court found that the jurisdiction of the court had been properly invoked "pursuant to the provisions of 28 U.S.C. §§ 1331 and 1332." Plaintiff subsequently appealed this court's decision to the Sixth Circuit Court of Appeals.
In an order entered on February 17, 1978, the Court of Appeals vacated the judgment of this court and remanded the case to this court for further consideration. Jackson v. Tennessee Valley Authority, No. 76-1841 (6th Cir. February 17, 1978). In vacating this court's judgment, the Court of Appeals did not reach the merits of this action and the court's ruling thereon. Rather, the Court of Appeals found that this court had not sufficiently considered the question of subject matter jurisdiction over both defendants. Accordingly, the Court of Appeals remanded the case to this court with directions to "conduct a hearing on the legal issues involved and give the parties an opportunity to present whatever evidence they consider appropriate to support their respective positions."
The hearing ordered by the Court of Appeals was held by this court on April 11, 1978. At said hearing, each of the parties was given the opportunity to present whatever evidence they desired on the issue of jurisdiction, and to argue the jurisdictional questions involved in this case. Based on the evidence adduced therein and the entire record as previously developed by this court, the court makes the following findings.
*49 As to the defendant Ickes-Braun Glasshouses, Inc. ("Ickes-Braun"), the question is relatively simple. The basis for jurisdiction asserted by plaintiff as to defendant Ickes-Braun was 28 U.S.C. § 1332(a), diversity of citizenship. 28 U.S.C. § 1332(a) provides in pertinent part as follows:
The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between
(1) citizens of different States[.]
28 U.S.C. § 1332(c) provides in pertinent part as follows:
For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business: ...
Thus for the purposes of diversity jurisdiction, a corporation has dual citizenship in both the state of incorporation and the state in which its principal place of business is located. Steinbock-Sinclair v. Amoco International Oil Co., 401 F.Supp. 19 (N.D.Ill. 1975); 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3624 (1975).
In his complaint as originally filed, plaintiff alleged, and defendant Ickes-Braun admitted, that Ickes-Braun had been incorporated in the State of Illinois. Plaintiff did not allege or prove, however, the location of defendant Ickes-Braun's principal place of business. At the April 11 hearing the following evidence was introduced: Ickes-Braun was incorporated in the State of Illinois. In 1972, Ickes-Braun was acquired by the Roper Corporation through a merger. Roper Corporation had been incorporated in the State of Delaware. The articles of merger between Roper Corporation and Ickes-Braun were filed with the Secretary of State of Delaware in 1972. Since the time of the merger, Ickes-Braun has been at all times an operating division of Roper Corporation. From August 1974 to the present time, the corporate headquarters of Roper Corporation, the office from which the activities of said corporation are supervised and directed, have been located in Kankakee, Illinois. Although Roper Corporation and Ickes-Braun carry on business in a number of states, a substantial part of their business was and is carried on in the State of Illinois.
Where a corporation carries on its business in a number of states and no one state is clearly the state in which its business is principally conducted, the state in which the substantial part of its business is transacted and from which centralized general supervision of its business is exercised is the state in which it has its principal place of business. United Nuclear Corp. v. Moki Oil & Rare Metals Co., 364 F.2d 568 (10th Cir.), cert. denied, 385 U.S. 960, 87 S.Ct. 393, 17 L.Ed.2d 306 (1966); Exxon Corp. v. Duval County Ranch Co., 406 F.Supp. 1367 (S.D.Tex.1975); Briggs v. American Flyers Airline Corp., 262 F.Supp. 16 (N.D.Okl.1966); 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3625. The evidence in this case reveals that general supervision over the activities of defendant Ickes-Braun is exercised in the State of Illinois and that Ickes-Braun conducts the substantial part of its business in Illinois. Thus the court holds that it has subject matter jurisdiction over defendant Ickes-Braun pursuant to 28 U.S.C. § 1332(a), the plaintiff being a citizen of the State of Tennessee, the defendant being a citizen of the States of Illinois and Delaware, and the amount in controversy clearly exceeding $10,000. Steinbock-Sinclair v. Amoco International Oil Co., supra; Gavin v. Read Corp., 356 F.Supp. 483 (E.D.Pa.1973).[1]
As to defendant TVA, the question of jurisdiction is not as simple. Plaintiff alleged that the court had jurisdiction over defendant TVA pursuant to 28 U.S.C. § 1331. Section 1331(a) provides that the district court shall have original jurisdiction *50 of all civil suits which arise "under the Constitution, laws, or treaties of the United States ...." Section 1331(a) also provides that there need be no "amount in controversy" in any action brought against the United States or "any agency thereof."[2]
TVA was created by the TVA Act as "a wholly owned corporate agency and instrumentality of the United States." United States ex rel. TVA v. An Easement & Right-of-Way Over Two Tracts of Land (Rogers), 246 F.Supp. 263, 269 (W.D.Ky. 1965), aff'd, 375 F.2d 120 (6th Cir. 1967). Section 19 of the TVA Act, 16 U.S.C. § 831r, specifically denominated TVA as "an instrumentality and agency of the Government of the United States for the purpose of executing its constitutional powers." As described by the court of appeals for this circuit:
The Tennessee Valley Authority exercises an executive or administrative function in its activities, which, prior to its establishment, rested with the divisions of the executive branch of the Government. ... Its great functions are governmental in nature, and might have been performed directly by officers of the Government. It is plainly a governmental agency or instrumentality of the United States.
Tennessee Valley Authority v. Kinzer, 142 F.2d 833, 837 (6th Cir. 1944) (citations omitted). TVA's status as an instrumentality and agency of the United States and, more importantly, the Government's ownership of it were discussed in the legislative history to the 1959 amendments to the TVA Act, where committees of both Houses of Congress noted that the United States is TVA's "owner and sole stockholder." S.Rep.No. 470, 86th Cong., 1st Sess. 11 (1959); H.R. Rep.No.271, 86th Cong., 1st Sess. 8 (1959), U.S.Code Cong. & Admin.News 1959, p. 2000.
TVA's status as a wholly owned federal corporation created under an act of Congress places the present action against TVA squarely within the grant of subject matter jurisdiction under 28 U.S.C. § 1331. In the Pacific Railroad Removal Cases, Union Pacific Ry. v. Myers, 115 U.S. 1, 5 S.Ct. 1113, 29 L.Ed. 319 (1885), the Supreme Court held that any claim against a private corporation incorporated under an Act of Congress falls within the general grant of federal question jurisdiction found in the Act of March 3, 1875, 18 Stat. 470, now codified as 28 U.S.C. § 1331(a). The Pacific Railroad decision fully retains its vitality with respect to corporations created by Act of Congress and owned by the United States. Romero v. International Terminal Operating Co., 358 U.S. 354, 379 n.50, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959); Gully v. First National Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 81 L.Ed. 70 (1936). The courts have consistently relied upon the Pacific Railroad decision in finding jurisdiction over tort actions against TVA under sections 1331 and 1337. Monsanto Co. v. Tennessee Valley Authority, 448 F.Supp. 648 (N.D.Ala.1978); Latch v. Tennessee Valley Authority, 312 F.Supp. 1069 (N.D.Miss. 1970); Grant v. Tennessee Valley Authority, *51 44 F.Supp. 589 (E.D.Tenn.1941). See also Painter v. Tennessee Valley Authority, 476 F.2d 943 (5th Cir. 1973); Fowler v. Tennessee Valley Authority, 321 F.2d 566 (6th Cir. 1963); Smith v. Tennessee Valley Authority, 436 F.Supp. 151 (E.D.Tenn.1977); Musgrave v. Tennessee Valley Authority, 319 F.Supp. 1330 (N.D.Ala.1975); Brewer v. Sheco Construction Co., 327 F.Supp. 1017 (W.D.Ky.1971); Littleton v. Vitro Corp., 130 F.Supp. 774 (N.D.Ala.1955) (cases in which federal courts exercised jurisdiction over TVA in simple tort actions). These decisions clearly establish that 28 U.S.C. § 1331 constitutes a grant of federal subject matter jurisdiction over all suits against TVA.
In its order of February 17, 1978, the court of appeals expressed concern with whether this court's otherwise proper subject matter jurisdiction over claims against TVA under sections 1331 and 1337 might be restricted by 28 U.S.C. § 1349. Section 1349 provides as follows:
The district courts shall not have jurisdiction of any civil action by or against any corporation upon the ground that it was incorporated by or under an Act of Congress, unless the United States is the owner of more than one-half of its capital stock.
Section 1349 constitutes a "limitation upon jurisdiction rather than a grant of jurisdiction." Central National Bank v. Reconstruction Finance Corp., 134 F.Supp. 873, 875 (N.D.Ill.1955). Although the United States is the "owner and sole stockholder" of TVA, its ownership is not evidenced by stock certificates, but by the terms of the TVA Act. Coleman v. Tennessee Valley Trades & Labor Council, 396 F.Supp. 671 (E.D.Tenn.1975); Wirtz, The Legal Framework of the Tennessee Valley Authority, 43 Tenn.L.Rev. 573 (1976). The question thus presented in this case is whether the fact that TVA has not issued stock certificates places suits against TVA within the jurisdictional limitation contained within the first portion of 28 U.S.C. § 1349 rather than within the saving language in the final phrase of that section. For the reasons hereinafter stated, the court holds that the absence of certificates of stock to evidence the Government's ownership and control of TVA does not eliminate the court's otherwise valid jurisdiction over the present case. Section 1349 was not intended to and does not limit a federal court's jurisdiction over a suit against a corporate agency of the United States that is entirely owned by the United States.
The function of the courts in construing legislation is to carry out the will of Congress as best it can be ascertained. In so doing, courts may and should consider all available and relevant matters in discerning the intent of Congress. Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 10, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976); United States v. Dickerson, 310 U.S. 554, 60 S.Ct. 1034, 84 L.Ed. 1356 (1940); United States v. American Trucking Ass'ns, Inc., 310 U.S. 534, 543-44, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940); Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 389, 59 S.Ct. 516, 83 L.Ed. 784 (1939). "When there is doubt about the meaning of a particular statutory term, courts must construe that term to give effect to the intent of Congress." Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1176 (6th Cir. 1973); accord, Lawson v. Suwannee Fruit & Steamship Co., 336 U.S. 198, 69 S.Ct. 503, 93 L.Ed. 611 (1949).
Congress's purpose in enacting the Act of 1925, now codified as 28 U.S.C. § 1349, is clearly reflected in the Act's legislative history. Following the decision in the Pacific Railroad Removal Cases, federal district courts were inundated with litigation against private corporations incorporated under Acts of Congress. The Act of 1925 was enacted "to stem `the flood of litigation to which the federal courts were ... subjected' as a result of the decision in Pacific Railroad Removal Cases," and to restrict automatic federal court jurisdiction over those private corporations unless the Government owned more than one-half of their capital stock. Murphy v. Colonial Federal Savings & Loan Ass'n, 388 F.2d 609, 612 (2d Cir. 1967).
*52 The initial draft of what became section 1349 was prepared by Justices of the Supreme Court and was incorporated as section 12 of a bill introduced by Senator Cummins. S. 2060, 68th Cong., 1st Sess. (1925). As originally drafted, section 12 contained what is now the first part of section 1349:
That no district court shall have jurisdiction of any action or suit by or against any corporation upon the ground that it was incorporated by or under an act of Congress.
The last phrase of section 1349 concerning Government-owned corporations originated in the Senate Judiciary Committee in correspondence between the chairman of the committee and the vice chairman of the United States Shipping Board Emergency Fleet Corporation, a Government-owned corporation created during World War I to assure an adequate American merchant marine. In response to the Fleet Corporation's letter pointing out the obvious federal interest in maintaining federal subject matter jurisdiction over federal corporations incorporated under an Act of Congress, Senator Cummins, the chairman of the subcommittee handling the bill, replied:
Section Twelve is obviously too broad. As you may know, there is a provision in Section five of the Act of January 28th, 1915, of similar import, confined to railroad companies. It is a very proper provision when limited to private corporations but of course, it should not be extended to government corporations or to corporations in which the government has the controlling interest.
Letter from Albert B. Cummins to T. V. O'Connor, dated February 11, 1924. The Senate Judiciary Committee's subsequent report on the bill as submitted to the Senate by Senator Cummins, who also served as the bill's floor manager, contained a proposed amendment adding the language now codified as the last phrase of section 1349. The report stated that the limitation of jurisdiction as originally drafted "should be somewhat restricted." S.Rep.No.362, 68th Cong., 1st Sess. 4 (1924).
The legislative history of section 1349 clearly demonstrates that the purpose of the 1925 statute was to end federal question jurisdiction based solely on federal incorporation in the case of private corporations, but to preserve it in the case of wholly-owned Government corporations and mixed-ownership corporations in which the Government has a majority interest. In the case sub judice, the literal words of section 1349 can and must be construed to give effect to that congressional intent. The Sixth Circuit was apparently concerned that "capital stock" may have been used in section 1349 as the equivalent of certificates for shares of stock.[3] While that is one possible legal meaning of "capital stock," it is not the only or primary meaning for that term. As stated in 18 C.J.S. Corporations § 193 (1939):
The "capital stock" of a corporation, in the strict and proper sense, is the sum total fixed by the charter or articles of incorporation as the amount paid in, or to be paid in, as the capital on which the corporation is to do business; or the fund of money or other property fixed as the basis for conducting the business of the corporation, as distinguished from the shares representing the separate interest of the individual stockholders; or, in other words, the money or its equivalent advanced by the corporators or members as the capital, which is usually for convenience divided into equal amounts called shares, for which each member is entitled to a certificate, showing the number of shares he has in the company.
*53 Id. at 614 (footnotes omitted). The C.J.S. article further points out that "capital stock" may be used in statutes in other senses:
Thus, it is sometimes used to designate the shares of stock in the hands of the stockholders; and sometimes as meaning the property in which the capital stock proper is invested, or even the entire property or assets of the corporation ....
Id. at 615. In 11 Fletcher, Cyclopedia of the Law of Private Corporations § 5079 (rev. perm. ed. 1971), it is noted that modern corporation acts "generally avoid the use of the vague term `capital stock' with its variable meanings and have substituted the term `stated capital.'" Id. at 11 (footnote omitted).
Thus, under the primary meaning of the term "capital stock," the United States owns all the capital stock of TVA and is its "sole stockholder." As previously noted, see page 6, supra, when the TVA Act was amended in 1959, both the Senate and House Public Works Committees described the United States as "the owner and sole stockholder of TVA" even though no certificates for shares of stock have ever been issued. S.Rep.No.470, 86th Cong., 1st Sess. 11 (1959); H.R.Rep.No.271, 86th Cong., 1st Sess. 8 (1959). This also accords with decisions from a number of courts, including those of New York, the country's leading commercial jurisdiction:
[F]ollowing in the line of the decisions of the courts of our state and of most of the states passing on the subject, there has been a clear distinction made between "capital stock" of a corporation and the "certificates of stock," and that distinction is this: That the "capital stock" is the substance, the thing of real value, the money or property of the corporation put in to make up its capital; while a "certificate of stock" is but the evidence of an ownership of a part or share of the capital stock. It was not necessary to issue certificates of stock in order that a person might be a stockholder in a corporation. Parsons v. Lipe, 158 Misc. 32, 59, 386 N.Y.S. 60, 86 (Super.Ct.1933), aff'd, 243 A.D. 681, 277 N.Y.S. 426 (App.Div.1935), aff'd, 269 N.Y. 630, 200 N.E. 31 (1936). See also Medex, Inc. v. Disatlantic Corp., 98 N.Y. S.2d 269 (Sup.Ct.1950); In re Turley's Estate, 160 Misc. 190, 289 N.Y.S. 704 (Sur.Ct. 1936). Similarly the Seventh Circuit so found with respect to Government corporations in United States v. Nowak, 448 F.2d 134, 137-38 (7th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 714, 30 L.Ed.2d 731 (1972).
Construing "capital stock" in 28 U.S.C. § 1349, as these authorities suggest, TVA falls within the literal language of the concluding phrase of section 1349. This is the evident rationale of the court's decision in Latch v. Tennessee Valley Authority, supra, 312 F.Supp. 1069, wherein the court concluded that because TVA is "a wholly owned corporate agency and instrumentality of the United States," the United States necessarily "owns more than half the capital stock." Id. at 1073 n.11. The conclusion is supported by the Supreme Court's dictum in Puerto Rico v. Russell & Co., 288 U.S. 476, 53 S.Ct. 447, 77 L.Ed. 903 (1933), which described section 1349 as restricting the applicability of the Pacific Railroad Removal Cases "to cases of government owned corporations alone." Id. at 485, 53 S.Ct. at 450. See also Acron Investments, Inc. v. Federal Savings & Loan Insurance Corp., 363 F.2d 236 (9th Cir.), cert. denied, 385 U.S. 970, 87 S.Ct. 506, 17 L.Ed.2d 434 (1966); Lew Morris Demolition Co. v. Metals Reserve Co., 51 N.Y.S.2d 297 (Sup.Ct.1944).
The above interpretation of section 1349 to give effect to its legislative purpose to preserve federal question jurisdiction in the case of corporations predominately owned by the United States would be proper even if the literal words of that section alone did not suggest such an interpretation. It has long been settled that statutes are to be interpreted and applied in such a manner as to carry out the purpose of Congress even when it requires a departure from the literal words of the statute. The Church of the Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892). This *54 principle was stated by the Sixth Circuit in Wirtz v. Allen Green & Assocs., Inc., 379 F.2d 198 (6th Cir. 1967):
An examination of the many cases dealing with statutory construction reveals that legislatures do not always use apt words to express their intent. The Court will look to the legislative purpose of the Act and follow that purpose even though a literal reading of the language used would suggest a different conclusion.
Id. at 200. Similarly, courts have refused to apply the literal words of a statute if to do so would force them to reach an unreasonable result, and instead have followed the legislative purpose of the statute. See, e. g., Perry v. Commerce Loan Co., 383 U.S. 293, 86 S.Ct. 852, 15 L.Ed.2d 827 (1966); United States v. American Trucking Ass'n., supra, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345; Crosse & Blackwell Co. v. Federal Trade Commission, 262 F.2d 600 (4th Cir. 1959). The principle of these and other cases is that a statute will not be construed in such a manner as to produce an unreasonable result or a result inconsistent with the purpose of Congress in enacting the statute.
To read the final phrase of 28 U.S.C. § 1349 as precluding this court's jurisdiction over plaintiff's claim against TVA would mean that federal question jurisdiction exists as to an essentially private corporation in which the Government owns a 51-percent interest, as long as that interest is evidenced by stock certificates, but does not exist as to TVA, an agency and instrumentality of the United States in which the Government has an ownership of 100 percent. The existence of federal subject matter jurisdiction should not turn upon such a formalistic distinction. If certificates of stock in TVA were issued, their principle destiny would be to gather dust in the National Archives. This point was recently made by the court in Monsanto Co. v. Tennessee Valley Authority, supra, wherein the court denied plaintiff's motion to remand what it terms to be a negligence action against TVA, on the ground that the federal district courts have subject matter jurisdiction over TVA under 28 U.S.C. §§ 1331(a) and 1337. In so ruling, the court stated:
There is no ownership of TVA except that of the government. All real and personal property for TVA activities is acquired and held by the United States (16 U.S.C. §§ 831w, 831x) and all the net proceeds of TVA over its expenses are payable into the Treasury of the United States (16 U.S.C. § 831y). It is exactly as if the United States owned all the capital stock and to make it significant for purposes of 28 U.S.C. § 1349 that TVA has no capital stock would seem to exalt form over substance.
448 F.Supp. at 652 (N.D.Ala.1978).
The existence of subject matter jurisdiction in federal district courts of suits against TVA is further supported by the legislative history of 28 U.S.C. § 1491. Section 1491 grants the Court of Claims jurisdiction over actions against the United States for breach of contract. This statute was amended in 1953 to exempt TVA from its provisions. In a committee report filed with the bill so amending the statute, the Senate Judiciary Committee stated:
A provision is contained exempting the TVA from the act since suits can now be brought against TVA in the Federal district and State courts both in contract and in tort in the United States district court. If future litigation should be brought in the Court of Claims rather than in Federal or State courts in Tennessee Valley, it would necessitate frequent and extended trips to Washington by TVA attorneys and witnesses, which it would deem expensive and burdensome to the Government. It is felt, therefore, that the situation as it now exists relative to the TVA should be left unmolested.
S.Rep.No.261, 83d Cong., 1st Sess. 3 (1953). While not an authoritative statement on the construction of section 1349, this statement of congressional intent is entitled to careful consideration. See Parker v. Califano, 182 U.S.App.D.C. 322, 561 F.2d 320 (1977); Bobsee Corp. v. United States, 411 F.2d 231 (5th Cir. 1969).
*55 Accordingly, the court finds that it has jurisdiction over defendant Ickes-Braun under 28 U.S.C. § 1332 and over defendant TVA under 28 U.S.C. §§ 1331 and 1337 and that its jurisdiction over TVA is not abrogated by 28 U.S.C. § 1349. An appropriate order will be entered.
NOTES
[1] On April 28, 1978, plaintiff amended his complaint to allege that defendant Ickes-Braun had its principal place of business in the State of Illinois.
[2] Although not asserted by plaintiff as a jurisdictional basis for suit, it appears that jurisdiction over defendant TVA could have properly been asserted pursuant to 28 U.S.C. § 1337. Section 1337 provides that a district court shall have jurisdiction of civil actions "arising under any Act of Congress regulating commerce." The Tennessee Valley Authority Act ("TVA Act") is just such an act regulating commerce. Ashwander v. Tennessee Valley Authority, 397 U.S. 288, 328-30, 56 S.Ct. 466, 80 L.Ed. 688 (1936). "In all respects other than amount in controversy, Section 1337 and Section 1331 are read alike and the same tests apply in determining whether a case is one `arising under' federal law." 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3574, at 503 (footnote omitted); see Garrett v. Time-D.C., Inc., 502 F.2d 627 (9th Cir. 1974), cert. denied, 421 U.S. 913, 95 S.Ct. 1569, 43 L.Ed.2d 778 (1975). Since the 1976 amendment to section 1331, 90 Stat. 2721, eliminated any requirement as to amount in controversy in any action brought against the United States or "any agency thereof," and since the TVA Act is an act regulating commerce, it appears that there no longer is any practical difference between section 1331 and section 1337 as a basis for jurisdiction in suits against TVA. Thus, there is no need for plaintiff to amend his complaint to assert jurisdiction over TVA pursuant to section 1337.
[3] See Hancock Fin. Corp. v. Fed. Savings & Loan Insurance Corp., 492 F.2d 1325 (9th Cir. 1974); Crockett Mortgage Co. v. Government National Mortgage Ass'n., 418 F.Supp. 1081 (E.D.Pa.1976); Coleman v. Tennessee Valley Trades & Labor Council, supra, 396 F.Supp. 671. The Hancock, Crockett, and Coleman cases are not persuasive interpretations of section 1349, however. The courts in those cases did not discuss the purpose of section 1349 and its legislative history, failed to perceive the ambiguity of the term "capital stock," and treated the issue in a cursory manner without reflecting their rationale. Furthermore, in each case the courts presented their section 1349 analysis as an alternative ground for their otherwise proper decision.
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97 Mich. App. 815 (1980)
296 N.W.2d 177
PEOPLE
v.
CLAYTON
Docket No. 44552.
Michigan Court of Appeals.
Decided June 3, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy K. Cronin, Assistant Prosecuting Attorney, for the people.
Carl Ziemba, for defendant on appeal.
Before: DANHOF, C.J., and CYNAR and MacKENZIE, JJ.
DANHOF, C.J.
Following a jury trial, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549, on January 25, 1979. He was sentenced to 15 to 25 years imprisonment. He appeals as of right. On February 21, 1980, this Court denied the people's motion to affirm.
On appeal, defendant claims that the instructions to the jury contained various errors, none of which were objected to at trial. Thus, reversal is not warranted unless manifest injustice resulted. *817 People v Dixon, 84 Mich App 675, 685; 270 NW2d 488 (1978).
Defendant first argues that the trial court erroneously directed the jury to apply the "objective standard" when considering his claim of self-defense.[1] The court instructed as follows:
"In deciding whether at the time the Defendant feared for his life or safety, you should consider all of the surrounding circumstances; the condition of the parties, including their relative strength, whether the other party was armed with a dangerous weapon or had other means to injure the Defendant; the nature of the threat or attack of the other party, previous acts of brutality or threats of the other party of which the Defendant was aware." (Emphasis added.)
This instruction was taken from proposed CJI 7:9:01. In the proposed instruction, the challenged statement appears in brackets as a factor to be given to the jury in appropriate cases. This factor is appropriate where the facts as they appear to defendant coincide with the actual, "objective" facts as described by other testimony. That is, cases in which the deceased was visibly armed with a dangerous weapon. On the other hand, in cases like the present, where a defendant testifies that it appeared to him the deceased was armed but other witnesses testified that they saw no weapon, the instruction may create a tension between defendant's subjective view and other, supposedly objective, evidence. However, we do not view this as error because the evidence of other witnesses is relevant to the honesty of defendant's *818 subjective belief. The testimony of defendant cannot control this issue. Juries, being unequipped with extrasensory perception, or any other metapsychical powers to determine a subjective state of mind, must consider all relevant facts surrounding the occurrence.
We hold that the instructions on self-defense, read as a whole, were proper. Defendant's citations, cases involving explicit instructions requiring improper application of an objective standard, can be distinguished from the present case where the jury was merely instructed to consider a factor which has more relevance in cases where the deceased was visibly armed with a dangerous weapon. The jury was correctly instructed to apply the subjective standard when deciding whether defendant feared for his life or safety.
Defendant next argues that the instructions defining malice and distinguishing first and second-degree murder were erroneous. Defendant reasons that an intent to kill is an indispensable element of first-degree murder and that first and second-degree murder are the same crime except that first-degree murder has the additional element of premeditation and deliberation. As a result, he concludes that second-degree murder is a specific intent crime because it is first-degree murder less premeditation. Thus, he contends that the trial court erred when he instructed that the jury could convict defendant of second-degree murder upon proof that he consciously created a high risk of death.
Defendant's argument is without merit. This issue was addressed at length in People v Hill, 94 Mich App 77; 288 NW2d 408 (1979). We agree with Hill that while conviction for first-degree murder requires proof that defendant had the specific *819 intent to kill, a second-degree murder conviction can be sustained if there is proof of defendant's intent to cause the very harm which results or some harm of the same general nature, or an act done in wanton or willful disregard of the plain and strong likelihood that some harm will result. The present instructions were correct.
We also reject defendant's related argument that the instruction gave the jury the erroneous impression that mere indifference to a high risk of death will support a first-degree murder conviction. The trial court carefully distinguished between first and second-degree murder, making it clear that an intent to kill was required for a conviction of first-degree murder.
Defendant next argues that the trial court gave an incomplete, misleading, and confusing instruction on character evidence. In particular, he challenges the following portion of the charge which was taken verbatim from proposed CJI 5:2:08:
"If, after judging all of the evidence of guilt you have no reasonable doubt of the defendant's guilt, you should find him guilty. However, if the evidence of good character along with all of the evidence in the case creates a reasonable doubt of the defendant's guilt, you must find him not guilty."
Defendant claims that this instruction shifted the burden of proof to defendant to raise a reasonable doubt in order to win acquittal. We disagree.
The instruction simply informs the jury that if the character evidence defendant chose to produce, together with all the other evidence, leaves the jury with a reasonable doubt, defendant should be acquitted. It did not tell the jury that defendant had the burden of raising a reasonable doubt. The use of the verb "creates" in the instruction may, *820 in some minds, imply a shift in the burden of proof. We feel this is an unreasonable interpretation because it can fairly be said that a defendant presents evidence in an effort to "create" a reasonable doubt.
We also disagree with defendant's claim that this instruction implied that evidence of good character alone was not enough to acquit defendant. Moments before the challenged instruction, the judge stated: "Evidence of good character may by itself create a reasonable doubt of guilt and justify a verdict of not guilty." Further, the Michigan Supreme Court specifically approved of this aspect of the instruction in People v Schultz, 316 Mich 106, 123; 25 NW2d 128 (1946).
Finally, defendant challenges the instructions relating to the character of defendant.
Defendant's argument is without merit. The instructions were taken from the proposed CJI and were requested by defendant's trial attorney who indicated his satisfaction with the charge. The instructions were complete, accurate, and not misleading.
In conclusion, we hold that the trial court did not err in instructing the jury, let alone commit error amounting to manifest injustice.
Affirmed.
NOTES
[1] Under the objective standard a jury deciding whether defendant feared for his life or safety would consider the circumstances as they actually existed. In Michigan, the "subjective" standard is to be applied: the circumstances as they appeared to the defendant. See, People v Mitchell, 402 Mich 506, 513; 265 NW2d 163 (1978).
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1 Cal.App.3d 982 (1969)
82 Cal. Rptr. 55
THE PEOPLE, Plaintiff and Respondent,
v.
WILLIAM ARTHUR PRICE, Defendant and Appellant.
Docket No. 9441.
Court of Appeals of California, Second District, Division Four.
November 20, 1969.
*984 COUNSEL
William Arthur Price, in pro. per., and Donald F. Roeschke, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Lola M. McAlpin, Deputy Attorney General, for Plaintiff and Respondent.
*985 OPINION
FILES, P.J.
On August 12, 1963, an information was filed charging defendant with forcible rape (Pen. Code, § 261, subd. 3), and on August 15 he pleaded guilty. On September 6, 1963, he was sentenced to state prison. Inasmuch as defendant was under the age of 23 the trial court, acting under the authority of Penal Code section 1202b, specified that the minimum term would be six months. The maximum term prescribed by the Penal Code is life (§§ 264, 671), subject to determination by the Adult Authority (§§ 1168, 3020).
Defendant appealed from that judgment and, in accordance with the requirements of Douglas v. California (1963) 372 U.S. 353 [9 L.Ed.2d 811, 83 S.Ct. 814], this court appointed counsel to represent him on appeal. The appointed attorney filed with this court a statement of the facts shown by the record, with citations to the transcript, and stated "We have very carefully examined and reviewed this record and can find no problem that we can properly present to this court which will be of help to appellant."
This court thereupon made its own examination of the record, wrote an opinion (which was filed but not published) and on September 28, 1965, affirmed the judgment.
On October 7, 1968, defendant filed with the California Supreme Court a petition for a writ of habeas corpus. On October 30, 1968, that court made the following order: "We treat the petition in the above entitled proceeding as an application to recall the remittitur in People v. Price, 2 Crim. 9441. The proceeding is transferred to the Court of Appeal, Second District, Division Four, with directions to recall its remittitur, vacate its judgment, and proceed in accord with Anders v. California, 386 U.S. 738 [18 L.Ed.2d 493, 87 S.Ct. 1396], and People v. Feggans, 67 Cal.2d 444 [62 Cal. Rptr. 419, 432 P.2d 21]."
In order to bring our handling of this appeal into compliance with the rules laid down in the Anders and Feggans cases, we appointed a new attorney to represent defendant. That attorney requested that the record be augmented by bringing up the transcript of the defendant's preliminary examination and the entire superior court file. The court so ordered. The attorney for defendant has now filed a brief and a supplemental brief arguing that the judgment should be reversed on three independent grounds. Defendant personally submitted another supplemental brief.
In this case, unlike most guilty plea appeals, we have a statement of facts in the augmented record. The transcript of the preliminary examination contains the testimony of the victim of the offense. She tells how she found herself in a garage with three men where she was first beaten and then raped by all three, one of whom was the defendant. Attached to the probation *986 report, which is in the superior court file, is an eight-page letter handwritten by defendant addressed to the judge who was to sentence him. This letter describes in detail the conduct of defendant and his companions in the hours immediately preceding the crime. It corroborates in all essentials the testimony given by the victim, together with a wealth of detail not mentioned by her. The letter explains that defendant went along with his two male companions "just for the show"; that when the victim yelled, "my reaction was to hit her." The point of the letter seems to be that after his companions "A.C." and "Roger" had had intercourse with the victim, defendant declined to do so, until the friends "kept nagging me & I gave in." Defendant said he knew he was wrong and he was sorry, that he had lived in fear ever since that event. The letter concludes:
"Well Mr. Wright I know you will probably make the right decision, but I hope you would take into consideration my hardships also.
"A.C. got aways & moved out of town. & Roger was sentenced 5 yrs. probation, that he does the first 180 days on the County Farm.
"Well the rest is up to us.
Truly yours
William A. Price"
We have now considered the record on appeal as augmented, the petition for habeas corpus and all of the briefs on file. The appeal and the petition for habeas corpus must be discussed separately. The appeal must be considered and decided upon the matters which were presented to the superior court whose judgment we review. (See People v. Merriam (1967) 66 Cal.2d 390, 396-397 [58 Cal. Rptr. 1, 426 P.2d 161].) The habeas corpus petition contains allegations of matters not in the trial record.
The Appeal
(1) Inasmuch as defendant filed his notice of appeal prior to the adoption of Penal Code section 1237.5 in 1965, defendant is not required to have a certificate of probable cause in order to appeal after the guilty plea in this case. (People v. Laudermilk (1967) 67 Cal.2d 272, 281, fn. 8 [61 Cal. Rptr. 644, 431 P.2d 228].)
(2) Defendant's first contention is that he did not receive effective representation by counsel in the superior court. The record shows that defendant was represented by the public defender at all stages of the proceeding. There is absolutely nothing in that record to suggest that anyone could have given defendant any better representation than he received.
*987 (3) Defendant also contends that the superior court lacked jurisdiction to hear this case because he was "under the jurisdiction of the juvenile court" at the time he pleaded guilty and was sentenced. The record shows that defendant was just short of his 20th birthday when he was sentenced. In 1958, at age 14, he had been made a ward of the juvenile court after a finding that he had committed a burglary and an assault with a deadly weapon. After having first been placed on probation, he was committed to a forestry camp, from which he was removed for disciplinary reasons, and on December 1, 1959, he was committed to the Youth Authority. After that he was paroled in 1960, recommitted for violation of parole in 1961, and paroled again in 1962. He was still on parole, under the Youth Authority commitment, when he committed the 1963 rape. It seems to be defendant's argument that he could not be prosecuted as an adult for this 1963 offense until the juvenile court remanded him to the superior court for adult proceedings. No authority supports that position.
Welfare and Institutions Code section 603 provides that no court shall have jurisdiction to try a person for a crime committed under age 18 unless the juvenile court has so ordered. This case does not come within that section because defendant was over 19 when he committed the rape.
Under Welfare and Institutions Code section 604, subdivision (b), a juvenile 18 or over may be prosecuted as an adult unless the superior court, in its discretion, decides to certify the case to the juvenile court. (See People v. Shipp (1963) 59 Cal.2d 845, 852 [31 Cal. Rptr. 457, 382 P.2d 577].)
Welfare and Institutions Code section 607 provides that the juvenile court may retain jurisdiction over its ward until he attains the age of 21. The purpose of this is to enable the juvenile court to carry out its program of rehabilitation and training without interference either by parents claiming custody or by conflicting custodial orders made on the civil side of the court. Thus, it has been held that the juvenile court's custody is not affected by a subsequent order of the superior court in an adoption proceeding. (See Marr v. Superior Court (1952) 114 Cal. App.2d 527 [250 P.2d 739].) Furthermore, the orders of the juvenile court are not subject to modification by other departments of the superior court. (People v. Sanchez (1942) 21 Cal.2d 466, 471 [132 P.2d 108].)
However, when a ward of the court age 18 or over commits a new felony offense, there is nothing in the juvenile court law which insulates him from prosecution, conviction and commitment through the processes of the criminal courts. The juvenile court's custody, which grew out of some previous adjudication, need not be formally terminated as a prerequisite to such prosecution.
*988 (4) Defendant's other principal contention is that his guilty plea was invalid because the record contains no affirmative showing that he had voluntarily and intelligently waived his constitutional privilege against self-crimination, and his rights to a jury trial and to confrontation by witnesses.
The record shows that, following the preliminary examination (where defendant had been represented by a public defender), an information was filed in the superior court, defendant was arraigned and the public defender appointed to defend him in that court. Three days later he appeared in open court with counsel and orally pleaded guilty. Under the law in effect at that time, there was no requirement that any special admonition be given by the court when accepting a plea of guilty from a defendant represented by counsel. (People v. Mendez (1945) 27 Cal.2d 20, 22 [161 P.2d 929].) Although courts did on some occasions interrogate a defendant personally as to his understanding, it was considered the function of counsel to advise his client as to the consequences of the plea. (See People v. Emigh (1959) 174 Cal. App.2d 392, 395 [344 P.2d 851]; People v. Loeber (1958) 158 Cal. App.2d 730, 735 [323 P.2d 136]; cf. People v. Coogler (1969) 71 Cal.2d 153, 168-169 [77 Cal. Rptr. 790, 454 P.2d 686].)
Thus, although under long-established principles, a plea of guilty may not be received unless the court finds it has been tendered voluntarily and intelligently, courts have made such a finding upon the kind of record which was made in this case. Courts have long assumed that, absent special circumstances, when a defendant has been formally arraigned and furnished a copy of the accusatory pleading and a transcript of the evidence on which it was based, and has had the opportunity to consult with his counsel, and then returns to court on a subsequent day, and in open court, personally, in the presence of counsel, states that he pleads guilty, the court may find that the plea is voluntary and intelligent. If counsel has performed his duties to his client, he will have fully advised the defendant of all he needed to know concerning the nature of the charges, the application of the law to the facts, the possibilities for a successful defense, and the consequences of a guilty plea. And such advice given by counsel would ordinarily be based upon the attorney's investigation, and upon communications made to him in confidence, which could never be made a part of the record of the court.
Thus where a defendant represented by counsel offers personally to plead guilty in open court, the court may reasonably conclude that he is voluntarily and intelligently waiving his privilege against self-crimination and his rights to confrontation by witnesses and a trial by jury. A plea received under these circumstances is not, under the law existing prior to June 1969, subject to attack on direct appeal.
*989 During the pendency of this reinstated appeal, on June 2, 1969, the Supreme Court of the United States handed down its opinion in Boykin v. Alabama, 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709], which supplanted the established California procedure with a new rule of constitutional law. Among other things, the Boykin case holds that a guilty plea may not be received in a state court unless some affirmative showing is made upon the record that the plea was intelligent and voluntary. But this portion of the Boykin decision, which requires the making of a far more explicit record in the trial court, has been held to apply only to cases in which pleas were entered after June 2, 1969. (In re Tahl, 1 Cal.3d 122 [81 Cal. Rptr. 577, 460 P.2d 449].)
In the case at bench defendant's plea, received in 1963, is not subject to attack upon direct appeal.
The Habeas Corpus Proceeding
The petition for habeas corpus lists three grounds upon which defendant claims his detention is illegal. They are: "(a) Petitioner Was interrogated in Violation of his Rights.
(b) Counsel advised Petitioner to enter an unlawful plea of `Guilty'.
(c) Superior court Had no Jurisdiction upon which to try Petitioner."
In considering whether defendant has stated any facts which would entitle him to an evidentiary hearing on this petition, we consider the allegations of the petition in the light of the whole record which is before the court.
(5) (a) With respect to his first ground that he had been interrogated there is nothing in the petition or in the record on appeal to indicate that any statement made by him prior to his guilty plea was used against him. Defendant does not assert that the allegedly illegal interrogation prejudiced him or induced him to plead guilty. We note that in the statement which accompanied the petition for habeas corpus, defendant says he was forced "to write out a statement with signature, in [sic] which petitioner did, but didn't admit guilt." This shows no ground for setting aside the judgment.
(6) (b) The particulars of defendant's second ground are set forth by him in the following language: "Petitioner informed the Public Defender of his Youth Authority position. Counsel then informed Petitioner that his Co-Defendant Roger S. Williams, received a probation sentence of six months in the county Jail for entering a Plea of Guilty, and that petitioner would *990 receive the same treatment. Counsel also stated that he knew the Judge And that he, (Counsel) was a Personal friend of the Judge, and was quite sure of the sentence as that was the unwritten policy in matters where two (2) defendants were convicted of the same offense. At no time did Counsel advise the petitioner that a plea of Guilty might result in a Prison sentence, and failed to present the facts of responsibility in being counsel. After petitioner entered plea of Guilty on or about Aug. 23, 1963; Petitioners Parole Officer informed him that his parole was revoked and he would return Petitioner to a Youth Authority Institution, upon completion of his now pending matter in court."
The opinion allegedly expressed by the public defender was his opinion, and there is no claim that it was not an honest expression of counsel's opinion as to the probable sentence. There is no claim that any advice or promise came from the prosecutor or the court. Defendant was entitled to his counsel's evaluation before pleading guilty. Although defendant asserts that his counsel did not advise him "that a plea of guilty might result in a prison sentence," defendant does not state that he was unaware that forcible rape was punishable by imprisonment in state prison, and that probation was discretionary with the court.
Whether an attorney will advise or allow his client to plead guilty must depend in part upon what the client has told the attorney about himself. Defendant's petition does not purport to disclose all of his communications with his attorney.
The probation report discloses defendant's continuous involvement with the law during the five years immediately preceding this prosecution. Much light is shed upon the guilty plea by the eight-page handwritten letter from defendant to Judge Wright which is attached to the probation report, and described in the statement of facts above. If defendant told his own attorney what he told the court in that letter, it would have been clear enough to counsel that defendant's best hope was that the court might be lenient. The reporter's transcript shows that when defendant was arraigned for judgment his attorney made an argument calling attention to some mitigating circumstances and including this statement: "Of course there is always a question where you have an offense of this nature which is very serious and the defendant is fully aware of it. He was aware of it at the time he entered the plea of guilty what could happen to him and what might well happen to him. The fact that there was a co-defendant with him who was the same age at the time, was given a probationary type sentence, I don't believe in any degree influenced him in entering a plea to this. He felt he was responsible for his conduct and he entered a plea of guilty to it. With this in mind I think he would be receptive to the Youth Authority program under an adult commitment to that facility."
*991 The trial judge then reviewed defendant's record and commented on the details of the offense. After further colloquy with counsel the court pronounced sentence.
Against this record, defendant's short and incomplete statement of what his attorney told him cannot be construed as any allegation of facts which would support any finding either that defendant lacked competent counsel or that his plea was not voluntarily given after proper advice from counsel. (7) This is a proper case for the application of the rule that "Mere advice or assurance by defense counsel will not vitiate a plea entered in reliance thereon." (People v. Hines (1967) 66 Cal.2d 348, 357 [57 Cal. Rptr. 757, 425 P.2d 557].)
(c) Defendant's third contention about the superior court's jurisdiction is the same point which was considered and rejected in the discussion of his appeal.
The judgment is affirmed. The petition for habeas corpus is denied.
Jefferson, J., and Kingsley, J., concurred.
Appellant's petition for a hearing by the Supreme Court was denied January 14, 1970.
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618 F.2d 783
*U. S.v.Andrade
79-5342
UNITED STATES COURT OF APPEALS Fifth Circuit
5/14/80
1
S.D.Tex.
2
AFFIRMED***
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12 F.2d 465 (1926)
CIAMBELLI ex rel. MARANCI
v.
JOHNSON.
No. 3396.
District Court, D. Massachusetts.
April 9, 1926.
Michael A. Fredo, of Boston, Mass., for relator.
Harold P. Williams, U. S. Atty., and John W. Schenck, Asst. U. S. Atty., both of Boston, Mass., for defendant.
BREWSTER, District Judge.
John Maranci was arrested on a warrant of deportation as an alien who had been sentenced to imprisonment for a term of one year or more, because of conviction in this country of a crime involving moral turpitude committed within five years after the entry of the alien into the United States. Section 19, Act Feb. 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼jj). A writ of habeas corpus is sought on behalf of the alien upon a petition which raises two questions:
First. Whether the alien had been sentenced to imprisonment for a term of one year or more; and
Second. Whether he had been convicted of a crime involving moral turpitude.
The alien landed in this country on October 17, 1920. On the 23d day of March, 1925, he was convicted in the superior court of the commonwealth of Massachusetts upon an indictment charging that he "on the 1st day of February, in the year of our Lord one thousand nine hundred and twenty-five, being armed with a certain dangerous weapon, to wit, a razor, did assault and beat * * * a police officer, * * * who was also in the lawful discharge of his duties as such officer." Upon conviction, the alien was sentenced to the Massachusetts reformatory at Concord, "there to be kept and governed according to the rules of the same, and that he stand committed until he be removed in pursuance of said sentence."
Taking up, first, the question relating to the term of his imprisonment. The laws of Massachusetts provide that the court, in imposing a sentence of imprisonment in a Massachusetts reformatory, shall not fix the term thereof, unless it exceeds five years, but shall merely impose a sentence of imprisonment therein, and that, when sentenced for the offense for which the alien was convicted, the prisoner may be held in the reformatory for not more than two years. Gen. Laws, c. 279, §§ 31 and 32.
The rules of the board of parole, adopted under the authority of Gen. Laws Mass. c. 124, contain the following:
"If he [inmate] is serving his first term in the reformatory, having been sentenced for a two-year term, he shall on the expiration of eleven months from the date of his commitment to the reformatory, have the right to make an application for a hearing before the board of parole on the question of his release."
The rules further provide that all permits granting liberty shall become effective in thirty days from the date when they shall be voted, unless otherwise provided in the vote. Thus it appears that, while the sentence was indeterminate, it could not, under the statutes and the rules, be less than one year or more than two years.
I am disposed to rule, therefore, on the facts presented, that the alien had been sentenced to imprisonment for a term of one year or more. See, to the same effect, Morlacci v. Smith (D. C.) 8 F.(2d) 663, and Sirtie v. Commissioner of Immigration (D. C.) 6 F.(2d) 233.
This brings me to the second question, namely, whether the alien was convicted of a crime involving moral turpitude. The offense with which he was charged was an assault and battery upon a police officer. It appears from the indictment that he was armed at the time with a dangerous weapon, *466 to wit, a razor. It is not charged, nor is it claimed by the government, that the assault was made with the weapon.
It has been held that simple assault and battery is not a crime involving moral turpitude. Morlacci v. Smith, supra; Ex parte George (D. C.) 180 F. 785; Gillman v. State, 165 Ala. 135, 51 So. 722. But an assault is one of those offenses which may, or may not, involve moral turpitude, depending upon the circumstances of the particular case. If one ordinarily law-abiding, in the heat of anger, strikes another, that act would not reveal such inherent baseness or depravity as to suggest the idea of moral turpitude. If, on the other hand, one deliberately assaulted an officer of the law with a dangerous weapon and with felonious intent, or for the purpose of interfering with the officer in the performance of his duty, the attendant circumstances showing an inclination toward lawlessness, the act might well be considered as one involving moral turpitude. Between the two lies the line of demarcation which I do not undertake to define accurately. I only determine which side of the line the facts of this case fall. I do not find that the offense of assault upon a police officer is a statutory offense in Massachusetts. The allegations of the indictment do not warrant a finding that the assault committed by the alien indicated moral turpitude. From alien's statement, made at the time of the arrest to officers of the Immigration Department, it appears that the alien was at a restaurant when a fight started, and the officer rushed in to quell the disturbance, and in the mêlée the alien was accused of hitting the officer. Another Italian was joined in the indictment, and the alien denies that he was the one who hit the officer. He has nevertheless been convicted of the offense. On this state of facts I am still of the opinion that the assault did not come within that class of assaults which involve the idea of moral turpitude. The government has not brought the alien within the scope of section 19, so as to render him liable to deportation thereunder. This the government must do, because the right to deport is confined to such aliens as come within the excluded clause. "They have no more authority to deport one not so included than they would have to deport a citizen." Ex parte Saraceno (C. C.) 182 F. 955.
The writ may issue, and an order may be entered thereon discharging the alien, John Maranci, from the custody of the Commissioner of Immigration.
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833 F.2d 1012
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Charles L. LAMBERT, Plaintiff-Appellant,v.V. NYLAND, Defendant-Appellee.
No. 86-1519.
United States Court of Appeals, Sixth Circuit.
Nov. 10, 1987.
Before MERRITT, KRUPANSKY and RYAN, Circuit Judges.
ORDER
1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel agrees unanimously that oral argument is not needed. Fed.R.App.P. 34(a).
2
This pro se plaintiff appeals the district court's judgment dismissing his complaint and awarding attorney fees. Plaintiff claimed that his constitutional rights were violated when defendant advised his employer to disregard his submitted W-4 form because plaintiff refused to supply verifying information for seventy claimed exemptions.
3
Upon review of the record, we conclude that the district court properly dismissed the complaint. The relief plaintiff sought is barred by the doctrine of sovereign immunity. Plaintiff here is attempting to hold defendant liable for acts done in her official capacity. Additionally, plaintiff wishes to recoup from the public treasury the amount of taxes already withheld. Consequently, although an individual is named as defendant, plaintiff is actually suing the United States. The United States, as sovereign, may not be sued without its consent. See United States v. Mitchell, 445 U.S. 535, 538 (1980); United States v. Testan, 424 U.S. 392, 399 (1976). Since the United States has not consented to be sued in this situation, subject matter jurisdiction does not exist.
4
Even if the defendant were acting in her individual capacity, the relief sought would still be barred by qualified immunity because plaintiff has not shown that defendant's conduct violated a clearly established statutory or constitutional right. See Mitchell v. Forsyth, 472 U.S. 511, 517 (1985). On the contrary, the practice of ignoring unsubstantiated withholding allowances has repeatedly been upheld as a proper method to assess and collect taxes. See Stonecipher v. Bray, 653 F.2d 398 (9th Cir.1981), cert. denied, 454 U.S. 1145 (1982); United States v. Warinner, 607 F.2d 210 (8th Cir.1979), cert. denied, 445 U.S. 927 (1980). In addition, plaintiff's request for injunctive relief is barred under the Anti-Injunction Act. 26 U.S.C. Sec. 7421(a); Edgar v. Inland Steel Co., 744 F.2d 1276 (7th Cir.1984) (per curiam).
5
Lastly, we conclude that the award of attorney fees was proper because plaintiff had no colorable basis in law for bringing this suit. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975); Schoffner v. Commissioner, 812 F.2d 292 (6th Cir.1987) (per curiam); Reid v. United States, 715 F.2d 1148 (7th Cir.1983).
6
Accordingly, the district court's judgment is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.
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601 F.2d 572
Majicav.Secretary of Health, Education and Welfare
No. 79-1029
United States Court of Appeals, First Circuit
6/19/79
1
D.P.R.
AFFIRMED
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806 F.2d 258Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Rhodia J. NEWTON, Plaintiff-Appellant,v.Allyn R. SIELAFF, Director of the Virginia Department ofCorrections, Defendant-Appellee.
No. 86-7179.
United States Court of Appeals, Fourth Circuit.
Submitted Oct. 3, 1986.Decided Dec. 1, 1986.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. John A. MacKenzie, District Judge. (C/A No. 85-665-N)
Rhodia J. Newton, appellant pro se.
Thomas D. Bagwell, Office of the Attorney General, for appellee.
E.D.Va.
DISMISSED.
Before WIDENER, HALL and CHAPMAN, Circuit Judges.
PER CURIAM:
1
A review of the record and the district court's opinion accepting the magistrate's recommendation discloses that an appeal from its order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 would be without merit. Because the dispositive issues recently have been decided authoritatively, we deny a certificate of probable cause to appeal, dispense with oral argument, and dismiss the appeal on the reasoning of the district court. Newton v. Sielaff, C/A No. 85-665-N (E.D.Va., June 6, 1986).
2
DISMISSED.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6791
ANTHONY JAMES BRAXTON,
Plaintiff - Appellant,
versus
WILBUR R. TONEY, Oak Hill City Judge; DALE
PAYNE, Fayette County Magistrate Judge; CITY
OF OAK HILL; STATE OF WEST VIRGINIA,
Defendants - Appellees.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CA-03-638-5)
Submitted: January 13, 2005 Decided: January 19, 2005
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Anthony James Braxton, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony James Braxton appeals the district court’s order
adopting the report and recommendation of the magistrate judge,
denying leave to amend his complaint, and dismissing his action
under 42 U.S.C. § 1983 (2000). We have reviewed the record and
find no abuse of discretion or reversible error. Accordingly, we
grant leave to proceed in forma pauperis and affirm on the
reasoning of the district court. See Braxton v. Toney, CA-03-638-5
(S.D.W. Va., Mar. 29, 2004 & filed May 17, 2004; entered May 18,
2004). We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 2 -
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61 Cal.App.3d 62 (1976)
132 Cal. Rptr. 13
WILLIAM M. O'BRIEN, as Director, etc., Petitioner,
v.
THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; JOSEPH C. et al., Real Parties in Interest. In re LONNIE G. on Habeas Corpus. In re JOYCE M. on Habeas Corpus. In re BEVERLY A. on Habeas Corpus.
Docket Nos. 15715, 15729, 15740, 15786.
Court of Appeals of California, Fourth District, Division Two.
August 16, 1976.
*64 COUNSEL
Evelle J. Younger, Attorney General, N. Eugene Hill, Assistant Attorney General, Ronald V. Thunen, Jr., and Robert S. Henry, Deputy Attorneys General, for Petitioner in No. 15715 and for Respondent in Nos. 15729, 15740 and 15786.
Charles E. Ward, Public Defender, and Littleton M. Gunn, Deputy Public Defender, for Real Parties in Interest and for Petitioners in Nos. 15729, 15740 and 15786.
No appearance for Respondent in No. 15715.
*65 OPINION
GARDNER, P.J.
These four writ proceedings present a common issue: Whether there is a right to jury trial in a habeas corpus proceeding brought by a person civilly committed as mentally retarded pursuant to Welfare and Institutions Code section 6500 et seq.
In 4 Civil 15715 the Medical Director of Patton State Hospital and the State Department of Health seek a writ of prohibition to prevent the superior court from granting jury trials to five persons involuntarily confined in Patton State Hospital as mentally retarded persons pursuant to Welfare and Institutions Code section 6500 et seq. Each of these five persons instituted habeas corpus proceedings in the superior court seeking release from custody. The question of their right to jury trial was briefed and argued in superior court. The judge granted the motion for jury trial in each case and the instant writ proceeding is in effect an interlocutory appeal from those orders. However, the Attorney General has informed us that four of the proceedings below have now been dismissed following the release of the persons concerned, and therefore as to these proceedings the petition is moot. We treat this declaration as a motion to amend the petition to delete reference to the dismissed proceedings, which we grant.
Numbers 4 Civil 15729, 4 Civil 15740, and 4 Civil 15786, are petitions for writs of habeas corpus by three other persons confined in Patton State Hospital as mentally retarded persons. These petitioners each filed a prior habeas petition in the superior court which was heard without a jury and denied. We granted alternative writs and issued orders to show cause for the limited purpose of determining whether the Superior Court acted within its jurisdiction in denying the petitions without affording the option of jury trial. Two of these three petitioners have now been released from Patton State Hospital and therefore have already received the relief requested. Motions to dismiss their petitions for habeas corpus have been filed by the Attorney General on the ground of mootness. Although petitioners' counsel urges us to apply the public interest exception to the mootness doctrine (see 6 Witkin, Cal. Procedure (2d ed.) Appeal, § 470), there is no need to apply that exception here because the questions raised in the moot petitions are also raised by the remaining petition for habeas corpus and by the amended petition for writ of prohibition. Accordingly, mootness is a sufficient ground for denying the writs of habeas corpus in numbers 4 Civil 15729 and 4 Civil 15740. (See People v. Daniels, 14 Cal.3d 857, 863 [122 Cal. Rptr. 872, 537 P.2d 1232].)
*66 Resolution of the issue before us requires a brief review of statutory provisions governing involuntary commitment of the mentally retarded and decision of certain preliminary questions concerning their operation.
Prior to July 1, 1971, a person could be committed to a state hospital for an indefinite period upon a finding of mental retardation. (See generally, Legal Planning for the Mentally Retarded: The California Experience, 60 Cal.L.Rev. 438.) On and after July 1, 1971, no mentally retarded person may be committed unless it is also shown that he or she is a danger to self or others. (Welf. & Inst. Code, § 6500.1.) Also, beginning January 1, 1976, the effective date of the most recent amendment to Welfare and Institutions Code section 6500.1,[1] any order committing a mentally retarded person expires automatically one year after the order of commitment is made.
I
(1) The first question presented is whether commitment orders made prior to January 1, 1976, continue to be effective as indefinite commitments, or whether such orders are subject to expiration.
We are informed by the Attorney General, acting on behalf of the State Department of Health, that the Second District Court of Appeal has concluded, in an unpublished opinion, that orders entered prior to January 1, 1976, are subject to expiration. We are in agreement with this conclusion. The most reasonable and logical interpretation of the statutory language (see fn. 1, ante) is that complete coverage was intended; i.e., that the provision for expiration applies to all commitments, and not just commitments made after the effective date of the amendment. Moreover, a different interpretation would raise serious constitutional questions. Under the equal protection clauses of the *67 California and federal Constitutions, statutes which affect fundamental interests must be applied uniformly unless classification is necessary to further some compelling state interest. (See In re Gary W., 5 Cal.3d 296, 306 [96 Cal. Rptr. 1, 486 P.2d 1201]; In re Kapperman, 11 Cal.3d 542, 545 [114 Cal. Rptr. 97, 522 P.2d 657].) The distinction between indefinite commitment and commitment for a single year substantially involves the fundamental interest of personal liberty, and therefore it would appear that the state would be required to demonstrate that different treatment of persons according to their commitment date was necessary to further a compelling state interest. There is also some question whether indefinite commitment of the mentally retarded would satisfy the requirements of due process of law. (See Jackson v. Indiana, 406 U.S. 715 [32 L.Ed.2d 435, 92 S.Ct. 1845]; People v. Feagley, 14 Cal.3d 338, 358-376 [121 Cal. Rptr. 509, 535 P.2d 373]; In re Davis, 8 Cal.3d 798, 803-805 [106 Cal. Rptr. 178, 505 P.2d 1018].) In view of these serious difficulties, and the willingness of the Attorney General to concede that pre-1976 commitments are subject to expiration, we construe Welfare and Institutions Code section 6500.1 to so provide.
II
A related question is when pre-1976 commitments expire. It is inconceivable that the Legislature intended all such commitments to expire January 1, 1976. The cardinal rule of construction is that statutes are to be interpreted to produce a reasonable result. (Alford v. Pierno, 27 Cal. App.3d 682, 688 [104 Cal. Rptr. 110].) Accordingly, to allow a sufficient interval for orderly transition, we construe the statute as providing for expiration of all pre-1976 orders on January 1, 1977, one year from the effective date of the statute.
We understand that the state, quite properly, has begun a review of all pre-1976 commitments and that recommitment proceedings have begun in a number of instances. Thus it is hoped that the state will have completed its review by January 1, 1977. Any person committed prior to 1976 who has not been recommitted by that date will be entitled to release which may be obtained by a proceeding in habeas corpus. In the interim, of course, habeas corpus will remain available to those who seek it on other grounds; for example, that their initial commitments were invalid or that they are eligible for release pursuant to Health and Safety Code sections 38120-38121.
*68 III
(2) Next, we take up the question whether there is a right to jury trial, upon request, in a commitment or recommitment proceeding. Although there is no express statutory provision for jury trial in such proceedings, the Attorney General has conceded that such right exists. We agree.
Our Supreme Court strongly intimated its opinion on this question in In re Gary W., supra, 5 Cal.3d 296. That case involved a ward of the California Youth Authority who had been committed at age 19. The ward would have been entitled to release after two years of confinement and after obtaining his majority, but the Youth Authority filed a petition under Welfare and Institutions Code section 1800 requesting an extension of confinement for two years on the grounds that the ward was "physically dangerous to the public due to his mental or physical deficiency, disorder, or abnormality." On appeal, the ward successfully contended that he was entitled to a jury trial on the allegations of the petition.
Examining the various statutory provisions governing involuntary commitments, the court found that only Youth Authority wards and the mentally retarded were subject to involuntary commitment for extended periods without benefit of jury trial. The court held that where proceedings result in substantial loss of personal liberty, the state acts unconstitutionally, in violation of the equal protection clauses[2] of the California and federal Constitutions, if it grants jury trial to some groups while denying it to others, unless the different treatment is shown to be necessary to achieve a compelling state interest. (In re Gary W., supra, 5 Cal.3d 296, 306-307.) No compelling interest justified denial of jury trial to Youth Authority wards in Welfare and Institutions Code section 1800 proceedings. In reply to an argument that denial of jury trial to Youth Authority wards could be justified by denial of the same right to the allegedly mentally retarded, the court replied: "The state does not meet its burden of demonstrating a compelling interest in denying the right to jury trial to Youth Authority wards ... by pointing out that alleged mentally retarded persons are similarly discriminated against." (Id., 5 Cal.3d at p. 308. See also, People v. Feagley, supra, 14 Cal.3d 338, 357, fn. 13.)
*69 It is at once apparent that the logic of Gary W. is controlling here. The same fundamental interest (personal liberty) and the same procedural safeguard (jury trial) are involved in the same type of proceeding (involuntary commitment). The state has not attempted to justify denial of jury trial in commitment or recommitment proceedings by reference to any compelling interest, and we are disinclined to search for one unaided. Therefore we hold that in commitment or recommitment proceedings under Welfare and Institutions Code section 6500 et seq. allegedly mentally retarded persons are entitled to jury trial upon request.
IV
(3) We come next to the main issue presented by these consolidated proceedings: Whether there is a right to jury trial in a habeas corpus proceeding brought by a person committed pursuant to Welfare and Institutions Code section 6500 et seq.
Health and Safety Code sections 38120[3] and 38121 provide a *70 mechanism by which any developmentally disabled[4] adult committed to certain designated facilities, including state hospitals, may obtain a hearing in Superior Court on that person's eligibility for release. The person is entitled to release upon a finding of any of the following: That *71 the person is not developmentally disabled; that the person is able to care for his basic personal needs; or that a responsible person or agency is able and willing to care for the person. In addition to this particular form of statutory habeas corpus in which the issue is eligibility for release, there is also available the traditional habeas corpus proceeding challenging the legality of the detention.
Our Supreme Court has held that persons who have been committed following acquittal of criminal charges by reason of insanity are entitled to jury trial upon request in a proceeding on an application for release pursuant to Penal Code section 1026a.[5] (In re Franklin, 7 Cal.3d 126, 148 [101 Cal. Rptr. 553, 496 P.2d 465].) The court referred to its earlier decision in Gary W., thereby implying that jury trial was mandated by equal protection principles.
Although there are points of similarity between Penal Code section 1026a and Health and Safety Code sections 38120-38121, considerations of equal protection do not apply with equal force to the latter proceeding. Although both proceedings involve applications for release from confinement, and in both the basic allegation is that the reasons for confinement have ceased to exist, the Penal Code proceeding may be initiated not more than once yearly and it is the only mechanism provided for periodic re-examination of the justification for confinement. On the other hand, there is no limit on the frequency of petitions under Health and Safety Code sections 38120-38121, and, as previously mentioned, Welfare and Institutions Code section 6500.1 contemplates yearly recommitment proceedings to test the suitability of continued confinement. Since we have held that persons confined as mentally retarded have the right to jury trial on annul recommitment proceedings, such annual proceedings afford the allegedly mentally retarded rights substantially *72 similar to those available under Penal Code section 1026a to persons committed following acquittal on grounds of insanity.
Since there are no statutory grounds for ordering jury trials in special habeas corpus proceedings under Health and Safety Code sections 38120-38121 or in traditional habeas corpus proceedings challenging the legality of the confinement, and since equal protection principles do not require that the right be made available in such proceedings, such proceedings are to be decided without a jury. For similar reasons, we also conclude that, as no constitutional impediment has been demonstrated, the burden of proof in such proceedings is proof by a preponderance of the evidence.
V
To provide guidance to the lower courts, where commitment and recommitment proceedings are now in progress, the parties urge us to decide questions related to standard of proof and unanimity of verdict in such proceedings. However, disposition of the petitions before us does not require resolution of these issues because these petitions relate to habeas corpus proceedings in the superior court rather than commitment proceedings. We decline to give an advisory opinion in these matters.
Certain additional contentions are raised in the various petitions. In light of our limited purpose in granting the alternative writs, we have not discussed and do not reach the additional contentions.
Consistent with the views stated above, we make the following dispositions: In number 4 Civil 15715 the writ of prohibition is amended to delete all references to proceedings in the superior court other than case number 167328 and as so amended the petition's request for a peremptory writ of prohibition is granted; in numbers 4 Civil 15729, 4 Civil 15740, and 4 Civil 15786, the peremptory writs are denied, the alternative writs and orders to show cause heretofore issued are discharged.
Tamura, J., and Morris, J., concurred.
A petition for a rehearing was denied September 2, 1976, and the petition of the real parties in interest in No. 15715 and application of the petitioners in Nos. 15729, 15740 and 15786 for a hearing by the Supreme Court was denied October 14, 1976. "I, ____ (member of the staff of the state hospital, community care facility, or health facility or employee of the regional center), have today received a request for the release from ____ (name of state hospital) State Hospital, community care facility, or health facility of ____ (name of patient) from the undersigned patient on his own behalf or from the undersigned person on behalf of the patient.
"____
"Signature or mark of patient making request for release.
"____
"Signature or mark of person making request on behalf of patient."
Section 38121 provides:
"Judicial review shall be in the superior court for the county in which the state hospital, community care facility, or health facility is located. The adult requesting to be released shall be informed of his right to counsel by a member of the staff of the state hospital, community care facility, or health facility and by the court; and if he does not have an attorney for the proceedings, the court shall immediately appoint the public defender or other attorney to assist him in preparation of a petition for the writ of habeas corpus and to represent him in the proceedings. The person shall pay the costs of such legal service if he is able.
"At the time the petition for the writ of habeas corpus is filed with court, the clerk of the court shall transmit a copy of the petition, together with notification as to the time and place of any evidentiary hearing in the matter, to the parent, guardian, or conservator of the person seeking release or for whom release is sought and to the director of the appropriate regional center. Such notice shall be sent by registered or certified mail with proper postage prepaid addressed to the addressee's last known address and with a return receipt requested.
"The court shall either release the adult or order an evidentiary hearing to be held not sooner than five judicial days nor more than 10 judicial days after the petition and notice to the adult's parent, guardian, or conservator and to the director of the appropriate regional center are deposited in the United States mail pursuant to this section. If the court finds (a) that the adult requesting release or for whom release is requested is not developmentally disabled, or (b) that he is developmentally disabled and that he is able to provide safely for his basic personal needs for food, shelter, and clothing, he shall be immediately released. If the court finds that he is developmentally disabled and that he is unable to provide safely for his basic personal needs for food, shelter, or clothing, but that a responsible person or a regional center or other public or private agency is willing and able to provide therefor, the court shall release the developmentally disabled adult to such responsible person or regional center or other public or private agency, as the case may be, subject to any conditions which the court deems proper for the welfare of the developmentally disabled adult and which are consistent with the purposes of this division.
"If in any proceeding under this section, the court finds that the adult is developmentally disabled and has no parent, guardian, or conservator, and is in need of a guardian or conservator, the court shall order the appropriate regional center or the Department of Health to initiate, or cause to be initiated, proceedings for the appointment of a guardian or conservator for the developmentally disabled adult."
NOTES
[1] Welfare and Institutions Code section 6500.1 now provides, in full:
"On and after July 1, 1971, no mentally retarded person may be committed to the State Department of Health pursuant to this article, unless he is a danger to himself or others.
"Any order of commitment made pursuant to this article shall expire automatically one year after the order of commitment is made. This section shall not be construed to prohibit any party enumerated in Section 6502 from filing subsequent petitions for additional periods of commitment. In the event such subsequent petitions are filed, the procedures followed shall be the same as with an initial petition for commitment.
"In any proceedings conducted under the authority of this article the alleged mentally retarded person shall be informed to his right to counsel by the court; and if he does not have an attorney for the proceedings the court shall immediately appoint the public defender or other attorney to represent him. The person shall pay the cost for such legal service if he is able."
[2] The Supreme Court has stated that its holding in Gary W. was also based on due process considerations. (People v. Smith, 5 Cal.3d 313, 317 [96 Cal. Rptr. 13, 486 P.2d 1213].)
[3] Health and Safety Code section 38120 provides:
"Every adult who is or has been admitted or committed to a state hospital, community care facility as defined in Section 1504, or health facility as defined in Section 1250, as a developmentally disabled patient shall have a right to a hearing by writ of habeas corpus for his release from the hospital, community care facility or health facility after he or any person acting on his behalf makes a request for release to any member of the staff of the state hospital, community care facility or health facility or to any employee of a regional center.
"The member of the staff or regional center employee to whom a request for release is made shall promptly provide the person making the request for his signature or mark a copy of the form set forth below. The member of the staff, or regional center employee, as the case may be, shall fill in his own name and the date, and, if the person signs by mark, shall fill in the person's name, and shall then deliver the completed copy to the medical director of the state hospital, the administrator or director of the community care facility or the administrator or director of the health facility, as the case may be, or his designee, notifying him of the request. As soon as possible, the person notified shall inform the superior court for the county in which the state hospital, community care facility, or health facility is located of the request for release and shall transmit a copy of the request for release to the person's parent, guardian, or conservator together with a statement that notice of judicial proceedings taken pursuant to such request will be forwarded by the court. The copy of the request for release and such notice shall be sent by the person notified by registered or certified mail with proper postage prepaid addressed to the addressee's last known address and with a return receipt requested. The person notified shall also transmit a copy of the request for release and the name and address of the person's parent, guardian, or conservator to the court.
"Any person who intentionally violates this section is guilty of a misdemeanor.
"The form for a request for release shall be substantially as follows:
"(Name of the state hospital, community care facility, or health facility or regional center) ____ day of ____ 19__.
[4] As defined in Health and Safety Code section 38003, the developmentally disabled include, but are not limited to, the mentally retarded as defined in Welfare and Institutions Code section 6500.
[5] Penal Code section 1026a provides: "An application for the release of a person who has been committed to a state hospital or other facility, as provided in Section 1026, upon the ground that his sanity has been restored, may be made to the superior court of the county from which he was committed, either by such person or by the superintendent of the state hospital or other facility in which the said person is confined. The person or the superintendent in charge of the state hospital or other facility shall transmit a copy of the application to the county mental health director or his designee. No hearing upon such application shall be allowed until the person committed shall have been confined or placed on outpatient treatment for a period of not less than 90 days from the date of the order of commitment. If the finding of the court be adverse to releasing such person upon his application for release, on the ground that his sanity has not been restored, he shall not be permitted to file a further application until one year has elapsed from the date of hearing upon his last preceding application. In any hearing authorized by this section the burden of proving that his sanity has been restored shall be upon the applicant."
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205 N.W.2d 646 (1973)
190 Neb. 41
STATE of Nebraska, Appellee,
v.
Kenneth Eugene KELLY, Appellant.
No. 38727.
Supreme Court of Nebraska.
March 30, 1973.
*647 Jeffrey L. Orr, Public Defender, Kearney, for appellant.
Clarence A. H. Meyer, Atty. Gen., Betsy G. Berger, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.
WHITE, Chief Justice.
In this appeal from the jury conviction and a sentence from 6 to 10 years for the crime of rape, the defendant asserts that the indeterminate sentence of 6 to 10 years was excessive and that at trial he was represented by ineffective and inadequate counsel. From adverse rulings on these issues by the district court, the defendant appeals. We affirm the judgment and sentence of the district court.
The defendant was 14 years of age and was confined to the Boys' Training School in Kearney, Nebraska, at the time of the offense. A detailed review of the circumstances of the offense is not necessary. Suffice to say, it is undisputed that a vicious and brutal rape was perpetrated upon a female office employee of the school while the defendant was acting as her office boy. The evidence shows that the defendant administered a brutal beating to the prosecutrix before and during the commission of the offense. The record further indicates that there was a previous incident in which the defendant grabbed a 50-year-old female counselor by the throat during a counseling session, attempted to open a door of a closet nearby, but the counselor was able to get control of the situation and subdue the defendant before anything serious occurred.
It may fairly be said that the primary thrust of the defendant's argument is the defendant's age. The district court, in its discretion, recognized this problem and the record shows a careful protection of the defendant's rights and a careful examination of the record and history of the defendant. It reveals a comprehensive psychiatric and neurological evaluation by an Omaha psychiatrist. The psychiatrist found that no psychosis was present and indeed the record in this case and the defendant's testimony demonstrate an oriented and articulate human being. Prior to this psychiatric examination the defendant had been taken to the Lincoln State Hospital for approximately 3 weeks observation and then returned to Kearney for trial. The record reveals an unstable and disturbed family background in childhood. It also reveals that he has been in trouble since 1965 when he was 10 years of age; that he was in juvenile court of Douglas County; and has been caught stealing four different automobiles. We characterize this report otherwise by simply stating that the psychiatric examination and his own version to the psychiatrist reveals that he is a youth of precocious experience, an example being that he started having heterosexual relations at 12 or 13 years of age. The evidence indicates a continuing condition of bitterness and hostility on the part of the defendant, nonresponsive to the counseling and the training at the school. An example is this statement: "Judge Hart sent my brother to the pen. I'm going to kill him * * *." The record not only fails to reveal proof of an abuse *648 of discretion by the trial judge in imposing the sentence (State v. Chaney, 184 Neb. 734, 171 N.W.2d 787), but affirmatively supports a finding of a detailed and careful consideration of all the circumstances, indicating a grave need to protect the public and society, and a sentence that would carry the defendant beyond adolescence with the hope of rehabilitation. The crime involved here is one involving great moral turpitude and violence. Significance should be given to these factors. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689; Peterson v. State, 115 Neb. 302, 212 N.W. 610. We also observe that section 28-408, R.R.S.1943 (rape), was amended in 1969 to prescribe a wider range of penalty for the crime of forcible rape of not more than 50 nor less than 3 years (previously not more than 20 nor less than 3 years). There is no merit to the contention that the indeterminate sentence of 6 to 10 years was excessive.
The defendant's new counsel on appeal raises the issue of the incompetency and inadequacy of his trial counsel. The lower court granted him a hearing on this issue. We are in a position to review this issue in this appeal because of the fact the new counsel represented the defendant at the hearing and in this court. We have reviewed the record on this issue and agree with the trial court that this contention is utterly without merit. His basic contention is that he was afforded ineffective counsel in that he did not have a complete defense to the charge of rape because his sexual act was performed without force and with the consent of the prosecutrix, and that his defense counsel failed to interview and obtain witnesses to establish this defense. The defendant utterly failed to establish this allegation. None of the four witnesses identified by him as supporting this defense were called to testify at this hearing nor was their failure to be called as witnesses explained. There was an utter lack of corroboration of the allegation and contention that neither force nor nonconsent were involved in his admitted sexual act with the prosecutrix. Indeed the undisputed testimony, supported by photographs of the prosecutrix taken after the beating, suggests that the defendant's present contention is a pure afterthought. A review of the motion the defendant filed and of the record discloses that at no time did the defendant allege he told his attorney or put him on notice about the defense of consent. Rather, the almost incredible contention is made that notwithstanding the defendant's singular silence to his attorney, the defendant's attorney should have developed facts supporting this defense, which even now is not supported and not corroborated by witnesses or testimony on the hearing. The record reveals that the defendant's attorney was present at the preliminary hearing and represented him; and that he investigated and was fully familiar with all the evidence of the prosecution which was willingly furnished him by the county attorney's office. It is further established that he sought and obtained a court order to obtain an examination from a psychiatrist in Omaha, previously referred to in this opinion; and that he sought and obtained access to the police investigation.
The defendant contends that character witnesses should have been called to establish his good reputation in the training school. Character witnesses are very seldom called in criminal prosecutions of this nature involving an inmate of an institution. It is difficult to conceive, even if the record established that such witnesses could have been called, how such witnesses' testimony could have constituted an effective marshalling of character evidence. The witnesses would have been employed by the training school or confined therein for delinquent behavior, and the record establishes that although the defendant had only been in the institution for 89 days, he already had been involved in the one instance where he had a 50-year-old woman by the throat with one hand and was reaching for a closet door with the other!
*649 We have examined the other contentions of the defendant in this respect and they are utterly without merit. We have examined the record in this case and can find no support for the allegation of ineffective and inadequate counsel. The evidence contains nothing that can be characterized as "grossly inept" or "shock[ing] the conscience of the court." State v. Putnam, 182 Neb. 185, 153 N.W.2d 456.
We have carefully examined the record and examined the contentions of the defendant. They are without merit. The judgment and sentence of the district court are correct and are affirmed.
Affirmed.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: LENORE L. ALBERT-SHERIDAN, No. 19-60023
Debtor, BAP No. 18-1222
------------------------------
MEMORANDUM*
LENORE L. ALBERT-SHERIDAN, DBA
Law Offices of Lenore Albert,
Appellant,
v.
STATE BAR OF CALIFORNIA; et al.,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Lafferty III, Spraker, and Faris, Bankruptcy Judges, Presiding
Submitted March 30, 2020**
Pasadena, California
Before: PAEZ, CALLAHAN, and BUMATAY, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Debtor Lenore L. Albert-Sheridan appeals the dismissal of her complaint
against the State Bar of California and its employees, alleging violations of the
Bankruptcy Code and other federal and state laws. We have jurisdiction under 28
U.S.C. § 158(d)(1) and review the dismissal de novo. In re Turner, 859 F.3d 1145,
1148 (9th Cir. 2017). In a separate opinion, we review Albert’s claims under 11
U.S.C. §§ 523(a)(7) and 525(a) and affirm in part, reverse in part, and remand. In
this memorandum, we affirm the dismissal of Albert’s remaining claims.
1. Under 42 U.S.C. § 1983, a plaintiff must allege: (1) the violation of a
right secured by the Constitution and laws of the United States, and (2) that the
violation was committed by a person acting under color of state law. Naffe v. Frey,
789 F.3d 1030, 1035–36 (9th Cir. 2015). Albert asserts that State Bar employees
violated her First, Fourth, Fifth, and Fourteenth Amendment rights. Federal courts
generally abstain from interfering with state bar proceedings given States’
“extensive control over the professional conduct of attorneys.” Middlesex Cty.
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 434 (1982). Albert has not
alleged any reason to depart from this general view. Her allegations are predicated
on a mistaken belief that the State Bar impermissibly suspended her law license due
to a dischargeable debt. Under California law, the State Bar and its employees may
condition the reinstatement of Albert’s law license on payment of those costs. Cal.
Bus. & Prof. Code § 6140.7. As we explain in our opinion, bankruptcy does not
2
disturb the State Bar’s authority since costs for attorney disciplinary proceedings
may not be discharged under 11 U.S.C. § 523(a)(7). In re Albert-Sheridan, No. 19-
60023, slip op. at __ (9th Cir. June __, 2020). Because the debt to the State Bar is
non-dischargeable, her claim must fail. We therefore affirm the dismissal of her
§ 1983 claim.1
2. Albert’s constitutional challenges to California Business and
Professions Code §§ 6086.10, 6103, and 6047 are equally without merit. Albert
principally reiterates the same allegations as her § 1983 claim. She also adds that
the California statutes as applied to her violate 11 U.S.C. § 525(a), which prohibits
a governmental unit from discriminating against a debtor “solely” because of a
dischargeable debt. For the reasons stated above, we affirm. Albert’s obligation to
pay the State Bar for its disciplinary proceedings is not dischargeable; accordingly,
the suspension of her license due to this debt does not violate § 525(a) or any other
federal law alleged in the complaint. See Albert-Sheridan, No. 19-60023, slip op. at
__.
1
Albert asserts for the first time in her opening brief that the State Bar’s
actions also violate the Eighth Amendment’s Excessive Fines Clause. As Albert did
not raise that theory in the bankruptcy proceedings below, we do not consider it now.
See Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule . . . that a
federal appellate court does not consider an issue not passed upon below.”); In re
Mortg. Store, Inc., 773 F.3d 990, 998 (9th Cir. 2014) (“A litigant may waive an issue
by failing to raise it in a bankruptcy court.”).
3
3. The federal Fair Debt Collection Practices Act, 15 U.S.C.
§§ 1692–1692p, and California’s Rosenthal Fair Debt Collection Practices Act, Cal.
Civ. Code § 1788 et seq., protect consumers from abusive, unfair, or deceptive
practices by debt collection agencies. The bankruptcy appellate panel dismissed
Albert’s claims under both statutes, reasoning that the State Bar is not a “debt
collector” under either law. In re Albert-Sheridan, 2019 WL 1594012, at *9–10
(B.A.P. 9th Cir. Apr. 11, 2019) (“Attorney disciplinary proceedings are not designed
or intended to be debt collection mechanisms for private parties, even where
attorneys are ordered to pay money.”). In response, Albert argues that the State
Bar’s annual operating fund is significantly funded by the collection of attorney
disciplinary costs. Even if true, it would not save her claim since Albert fails to
assert how the State Bar violated either statute in her opening brief. “We cannot
manufacture arguments for an appellant and therefore we will not consider any
claims that were not actually argued in appellant’s opening brief.” Indep. Towers of
Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (simplified). We thus affirm
the dismissal of this claim.
4. Finally, Albert requests that we grant her leave to amend her complaint.
It does not appear, however, that Albert sought leave in the bankruptcy proceedings
below. We decline to address a request Albert raises for the first time on appeal.
See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 749 (9th Cir. 2006)
4
(“[W]e generally will not remand with instructions to grant leave to amend unless
the plaintiff sought leave to amend below.”).
AFFIRMED.
5
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645 F.3d 328 (2011)
UNITED STATES of America, Plaintiff-Appellee,
v.
Donnie Darrell BOOKER, Defendant-Appellant.
No. 08-40547 Summary Calendar.
United States Court of Appeals, Fifth Circuit.
June 24, 2011.
Traci Lynne Kenner, Asst. U.S. Atty., Tyler, TX, Heather Harris Rattan, Asst. U.S. Atty., Plano, TX, for Plaintiff-Appellee.
Donnie Darrell Booker, pro se.
Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:
Donnie Booker, federal prisoner #XXXXX-XXX, was convicted by a jury of one count of conspiracy to manufacture, distribute, or possess with intent to manufacture, distribute, or dispense 50 grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1) and two counts of distribution of crack cocaine in violation of § 841(a)(1) (Counts 7 and 13). The district court sentenced him to concurrent terms of 151 months' imprisonment on each count, five years' supervised release on Counts 1 and 13, and three years of supervised release on Count 7. Booker appeals the order granting a sentence reduction that is less than the one he sought based on the amendments to the crack cocaine guidelines.
The website of the Bureau of Prisons shows that Booker was released from prison on March 3, 2010. Where a defendant has begun serving a term of supervised release, the appeal of the denial of his § 3582(c)(2) motion is moot. United States v. Boston, No. 08-10341, 419 Fed. Appx. 505, 505-07, 2011 WL 1057563, at *1-*2, 2011 U.S.App. LEXIS 6036, at *4-*6 (5th Cir. Mar. 23, 2011) (per curiam) (unpublished). Here, as with the defendant in Boston, Booker makes no mention of his term of supervised release and does not argue that it should be terminated; his arguments pertain only to relief under § 3582(c)(2). Any termination of supervised release must be sought by a motion under 18 U.S.C. § 3583(e)(1). Boston, 419 Fed.Appx. at 506-07, 2011 WL 1057563, at *2, 2011 U.S.App. LEXIS 6036, at *5-*6.
The judgment of conviction is AFFIRMED.[1]
NOTES
[1] Booker's motion for appointment of counsel is DENIED. His motion to remand for evidentiary hearing is DENIED. His motion for bail pending appeal is DENIED. The government's motion for summary affirmance is DENIED as unnecessary. The government's motion for extension of time to file its brief is DENIED as unnecessary.
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30 F.2d 665 (1929)
MILLETT
v.
OMAHA NAT. BANK.
No. 8118.
Circuit Court of Appeals, Eighth Circuit.
January 14, 1929.
John U. Loomis, of Omaha, Neb., for appellant.
Arthur R. Wells, of Omaha, Neb. (Halleck F. Rose, Paul L. Martin, and Winthrop B. Lane, all of Omaha, Neb., on the brief), for appellee.
Before VAN VALKENBURGH and COTTERAL, Circuit Judges, and REEVES, District Judge.
REEVES, District Judge.
From a judgment allowing a set-off in the sum of $7,601.38, the appellant, as plaintiff in the trial court, has prosecuted its appeal. There is no controversy on the facts.
The Drovers' National Bank of Denver was doing business as a National Bank at Denver, Colo., until the appointment of appellant receiver on December 17, 1925. Prior to that date, it had business transactions with the appellee bank of Omaha, Neb. When the receiver was appointed, the appellee bank was admittedly indebted to Drovers' National Bank in the sum of $8,274.17, on deposit previously made. This is the amount sued for by the receiver.
The appellee acknowledges its indebtedness to the appellant, but asserts its rights to a set-off in the sum above stated, and at the trial it had judgment therefor. The only question presented is the legal propriety of allowing the set-off. The facts in that matter are as follows:
On September 7, 1925, one C. L. Montgomery was a patron and borrower of said the Drovers' National Bank of Denver; on that date be applied for and was granted a loan of $7,493.35. Although the application for the loan was made to the said bank, the loan was in fact made by the Drovers' Cattle Loan Company, a corporation with the same officers as the bank and with its offices at the same place as that of the bank. The bank acting for the cattle company disposed of this note to the appellee. The note by its terms became due and payable February 4, 1926. Nevertheless, Montgomery appeared at the bank on December 4, 1925, and paid the sum of $3,200 with instructions to apply same on his note. This, the bank officials of said the Drovers' National Bank agreed to do.
On December 16, 1925, Montgomery again appeared and paid the further sum of $4,493.17, being the balance due on his note, and again instructed the bank officials to apply said sum on his note, which they agreed to do. On the next day a receiver was appointed, *666 and he now claims that the bank was a mere agency for the application of the payments on Montgomery's notes held by the appellee. He says that the payments were not actually applied by said bank; that the instructions of Montgomery were revocable; and that in consequence his obligation as receiver is to Montgomery and not to appellee. Moreover, it is asserted by him that there was no privity between the said Denver bank and the Omaha bank.
1. The overwhelming current of authority is against the contention urged by appellant. The rule is well established "that the person for whose benefit a contract is made may sue thereon in assumpsit in his own name although the engagement is not directly to or with him." 2 R. C. L. p. 763, § 22. Such an action "is maintainable in all cases where one person has received money or its equivalent under such circumstances that in equity and good conscience he ought not to retain it and ex aequo et bono it belongs to another." 2 R. C. L. § 34, p. 778. Also see Johnson-Brinkman Co. v. Central Bank, 116 Mo. 558, loc. cit. 567, 22 S. W. 813, 815 (38 Am. St. Rep. 615) where the court said: "But where money is received by one to which another is legally entitled, the latter may recover it in an action for money had and received."
In the case of Bank of the Metropolis v. First Nat. Bank of Jersey City (C. C.) 19 F. 301, a very similar question was presented for decision. It was urged in that case, as in this, that there was want of privity, but the court said: "It is insisted for the defendant that there, was no privity between the plaintiff and the defendant respecting the transaction, because the defendant was not employed by the plaintiff, but was the agent only of the Newark bank. * * * In answer to this it is sufficient to say that the defendant is sued, not as an agent of plaintiff, nor upon any contract liability, but upon the promise which is implied by law whenever a defendant has in his hands money of the plaintiff which he is not entitled to retain as against the plaintiff. It has long been well settled that want of privity is no objection to the action of indebitatus assumpsit for money had and received."
In the case of National Bank of Commerce in St. Louis v. Equitable Trust Co. of New York, 227 F. 526, loc. cit. 531, this court declared in respect of the position now taken by appellant: "The contention is old and was early repudiated as demonstrated by the note to Mandeville v. Riddle, in Appendix to 1 Cranch, 367, under subd. 4, page 438."
The correct rule was tersely announced in Gaines v. Miller, 111 U. S. 395, 4 S. Ct. 426, 28 L. Ed. 466, as follows: "Whenever one person has in his hands money equitably belonging to another, that other person may recover it by assumpsit for money had and received."
This court in National Bank of Commerce v. Equitable Trust Co., supra, approved the following rule stated in Brewer v. Dyer, 7 Cush. (Mass.) 337, 340: "The law, operating on the act of the parties, creates the duty, establishes the privity, and implies the promise and obligation, on which the action is founded."
The Court of Appeals in Lipman, Wolfe & Co. v. Phnix Assur. Co., 258 F. 544, applied the foregoing rules and sustained its position with citations of practically the same authorities as above. See also Cary v. Curtis, 3 How. 236, loc. cit. 246, 11 L. Ed. 576; Board of Com'rs v. Pollard-Campbell Dredging Co. (C. C. A.) 251 F. 249.
2. Whether the appellee should have proceeded in equity or in law is not material in this case. It interposed an offset in an action at law prosecuted by the appellant. It had a right to do this either in law or equity. Under the Judicial Code appellee had a right to interpose an equitable defense to an action at law. However, the authorities appear to be one way. Though the action is equitable in its nature, it may be maintained at law, as was done here. 2 R. C. L. § 34, p. 778.
In McKee v. Lamon, 159 U. S. 317, loc. cit. 322, 16 S. Ct. 11, 13 (40 L. Ed. 165), the court, in dealing with a similar situation in an equity case, said: "There can be no doubt of the general proposition that where money is placed in the hands of one person to be delivered to another, a trust arises in favor of the latter, which he may enforce by bill in equity, if not by action at law. The acceptance of the money with notice of its ultimate destination is sufficient to create a duty on the part of the bailee to devote it to the purposes intended by the bailor."
The judgment of the trial court was correct, and should be affirmed.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2379
___________
Carl J. Hach, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Marty C. Anderson, *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: August 3, 2006
Filed: August 8, 2006
___________
Before MURPHY, BYE, and MELLOY, Circuit Judges.
___________
PER CURIAM.
Federal inmate Carl J. Hach appeals the district court’s1 dismissal of his 28
U.S.C. § 2241 petition, in which he challenged two prison disciplinary violations and
the resulting loss of good-time credit. The district court held that the finding of guilt
on the first violation was supported by some evidence, and that Hach had procedurally
defaulted his challenge to the second violation by not timely exhausting his
administrative remedies. After carefully reviewing the record and the parties’
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Susan
Richard Nelson, United States Magistrate Judge for the District of Minnesota.
submissions on appeal, we conclude the district court’s judgment was correct.
Accordingly, we affirm. See 8th Cir. R. 47B.
______________________________
-2-
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In
The
Court
of Appeals
Sixth
Appellate District of Texas at Texarkana
______________________________
No. 06-10-00067-CR
______________________________
JACK SAYADETH,
Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 159th
Judicial District Court
Angelina County, Texas
Trial
Court No. 28,305
Before Morriss, C.J.,
Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM
OPINION
In
this case involving the possession of more than four ounces but less than five
pounds of marihuana, there are three principal characters: Jack Sayadeth, Menia Xayavong, and Deshun
Whitby. Sayadeth and Xayavong were
travelling together in a Lincoln Navigator along U.S. Highway 59 in Angelina
County[1]
and Whitby was riding alone, piloting a Cadillac in close proximity to them
when this travelling party caught the attention of two peace officers in
separate vehicles.
One
of the peace officers noticed a traffic violation committed by Whitby in the
Cadillac and pulled the car over. During
this traffic stop, a consensual search of the automobile was conducted and the
marihuana was discovered, concealed in the trunk.
Not
very much further along the highway, the other officer stopped the Lincoln
bearing Sayadeth and Xayavong for a separate traffic violation. The suspicions of this officer were aroused
when Xayavong and Sayadeth gave conflicting answers to his questions about
their travels. After the officer detected
the smell of marihuana on Sayadeth, he searched the vehicle; however, this
search did not reveal the presence of any contraband, but that car contained
the driver’s license of Whitby (who was driving the Cadillac stopped by the
other officer). The State charged all of
Whitby, Xayavong, and Sayadeth with
possession of the marihuana located in the Cadillac. Whitby entered a plea of guilty, but Xayavong
and Sayadeth entered not guilty pleas and were tried together as co-actors in a
trial before the court. After the bench
trial, both Xayavong and Sayadeth were found guilty and each was sentenced to
two years’ confinement in a state-jail facility.
On
appeal, Sayadeth argues that the evidence was legally and factually
insufficient to support his conviction.
We
reverse the trial court’s judgment finding Sayadeth guilty and render a
judgment of acquittal because there is legally insufficient evidence
affirmatively linking him to the drugs.
At the risk of
redundancy, we repeat some of the evidence, but with more detail. At about midnight, Angelina County sheriff’s
deputies Rusty Allen and Joseph Davidson were patrolling U.S. Highway 59 when
they saw a Cadillac and a Lincoln traveling closely together. Allen stopped the Cadillac because the
license plate light was not working, and Davidson continued to follow the
Lincoln. The driver of the Cadillac,
Whitby, was nervous and could display neither a driver’s license nor any valid
proof of liability insurance. Whitby did
not appear intoxicated and did not smell of alcohol or drugs. Whitby claimed to be returning to Arkansas
from visiting his brother in Houston. He
also claimed to be traveling alone.
Whitby maintained that
the vehicle was registered to Xayavong and that information was confirmed by
Allen via a computer check. Allen
testified that Whitby told him he was driving Xayavong’s car because “his was
broke down.” At trial, Whitby and
Xayavong testified that a few weeks prior to the events in question, Whitby
agreed to purchase the Cadillac from his former schoolmate, Xayavong. He paid her $500.00 and she allowed him to
drive the car while making payments on the balance.
Whitby gave Allen
consent to search the Cadillac. Nothing
was found in the passenger compartment, but Allen discovered four pounds of
marihuana in the vehicle’s trunk, concealed in the wheel well beneath a
bolted-on speaker box.
While Allen stopped the
Cadillac, Davidson continued to follow the Lincoln driven by Xayavong and also
bearing Sayadeth. Allen observed the
Lincoln to twice change driving lanes without first making a signal and stopped
the car about two miles distant from where Allen had stopped the Cadillac. Davidson testified that both Xayavong and
Sayadeth appeared nervous and the two provided conflicting answers about their
trip. On one hand, Xayavong told
Davidson that she had arrived in Houston on Wednesday and was visiting family
there, but Sayadeth told Davidson he was visiting family in Houston and he had
arrived in Houston on Monday. Although
both claimed that no one was traveling with them, Sayadeth later admitted that
they were accompanied on their trip by a friend of theirs, who was driving
Xayavong’s car back to Arkansas for them.[2] While questioning Sayadeth, Davidson noticed
the smell of marihuana on Sayadeth, and based upon that smell, he searched the vehicle––the
search revealing no drugs, but disclosing Whitby’s driver’s license.
After charges for
possession of the drugs were lodged against all three, Whitby pled guilty and
admitted that he bought and hid the drugs, maintaining that neither of the
other two defendants knew anything about it.
As stated above, Xayavong and Sayadeth were both found guilty in a bench
trial.
There Is Legally Insufficient Evidence Linking Sayadeth to the Drugs Found
in the Cadillac
Sayadeth
argues that the trial court erred by denying his motion for directed verdict
because the evidence was legally insufficient to link him to the marihuana
found in the Cadillac. We agree.
In
reviewing the evidence for sufficiency, we consider the evidence in the light
most favorable to the verdict to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 318–19 (1979).
In
order to prove its case under Section 481.121 of the Texas Health and Safety
Code, the State was required to prove that (1) Sayadeth exercised actual care,
control, and management over the contraband; and (2) Sayadeth knew the
substance in his possession was contraband. Poindexter
v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Murphy v. State, 200 S.W.3d 753, 761 (Tex. App.––Texarkana 2006), aff’d, 239 S.W.3d 791 (Tex. Crim. App.
2007); see Tex. Health & Safety Code Ann. § 481.115(a) (Vernon 2010).
“Possession” is defined as “actual care,
custody, control, or management.” Tex. Penal Code Ann. § 1.07(a)(39)
(Vernon Supp. 2010).
Where,
as here, an accused is not in exclusive possession of the place where
contraband is found, additional independent facts and circumstances must be
developed which link the defendant to the contraband in order to raise a
reasonable inference of the defendant’s knowledge and control of the
contraband. Poindexter, 153 S.W.3d at 406.
This rule is designed to protect an innocent bystander from conviction
merely because of fortuitous proximity to someone else’s drugs. Evans
v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006). Mere presence in the vicinity of a controlled
substance is insufficient to show possession. But proximity, when combined with other direct
or circumstantial evidence, may be sufficient to establish beyond a reasonable
doubt a person’s possession of a controlled substance.[3] See id.
(direct or circumstantial evidence may be sufficient to establish possession
beyond a reasonable doubt). The evidence
linking the accused to the contraband “must establish, to the requisite level
of confidence, that the accused’s connection with the drug was more than just
fortuitous.” Poindexter, 153 S.W.3d
at 405–06. The number of links is not
dispositive; rather, we look to the “logical force of all of the evidence,
direct and circumstantial.” Evans, 202 S.W.3d at 162.
The
following is a nonexclusive list of factors that have been found to be
sufficient, either singly or in combination, to establish a person’s possession
of contraband: (1) the defendant’s
presence when a search is conducted; (2) whether the contraband was in plain
view; (3) whether the contraband was in close proximity to, or accessible by,
the defendant; (4) whether the place where the contraband was found was
enclosed; (5) whether the defendant was under the influence of narcotics when
arrested; (6) whether the defendant possessed other contraband or narcotics
when arrested; (7) whether the defendant made incriminating statements when
arrested; (8) whether the defendant attempted to flee; (9) whether the
defendant made furtive gestures; (10) whether there was an odor of
contraband present at the scene; (11) whether other contraband or drug
paraphernalia were present; (12) whether the defendant owned or had a right to
possess the place where the contraband was found; (13) whether the defendant
was found with a large amount of cash; (14) whether the defendant possessed
weapons; and (15) whether conduct of the defendant indicated a consciousness of
guilt. Evans, 202 S.W.3d at 162 n.12; Hargrove
v. State, 211 S.W.3d 379, 385–86 (Tex. App.––San Antonio 2006, pet. ref’d).
Here,
Whitby testified that he bought and concealed the drugs and that Sayadeth had
no knowledge of it. Sayadeth was a
passenger in the Lincoln, whereas the drugs were found in the Cadillac. Sayadeth was not present at the scene where
the drugs were found, and he had no way of accessing them. The State emphasizes that Sayadeth smelled
like marihuana and that he and Xayavong gave conflicting statements concerning
their trip plans and activities.
However, there was no evidence that Sayadeth had consumed marihuana or
that he was otherwise under its influence; none of Sayadeth’s statements
(contradictory or otherwise) connect him to the contraband found in the
Cadillac driven by and under the control of another person. Even viewing the evidence in the light most
favorable to the verdict, the quality of the evidence here is far too weak and
the links too attenuated for a rational trier of fact to find beyond a
reasonable doubt that Sayadeth knew of, or had control over, the
contraband. Accordingly, we reverse the
trial court’s judgment finding Sayadeth guilty and render a judgment of
acquittal because there is legally insufficient evidence affirmatively linking
him to the contraband.
Bailey
C. Moseley
Justice
Date Submitted: November
9, 2010
Date Decided: November
10, 2010
Do Not Publish
[1]Originally
appealed to the Twelfth Court of Appeals, this case was transferred to this
Court by the Texas Supreme Court pursuant to its docket equalization
efforts. See Tex. Gov't Code Ann. § 73.001
(Vernon 2005). We are unaware of any
conflict between precedent of the Twelfth Court of Appeals and that of this
Court on any relevant issue. See Tex. R. App. P. 41.3.
[2]At trial, Xayavong, Sayadeth, and Whitby all
testified that the Lincoln was having car trouble and they were concerned that
it might break down on the trip back from Houston. Whitby agreed to drive the Cadillac and
travel with them in case of car trouble.
[3]We note that the Texas Court of Criminal Appeals stated,
“We have used that term ‘affirmative links,’ but we recognize that
‘affirmative’ adds nothing to the plain meaning of ‘link.’ Henceforth, we will use only ‘link’ so that
it is clear that evidence of drug possession is judged by the same standard as
all other evidence.” Evans, 202 S.W.3d at 162. Nevertheless, that court has continued to use
the term “affirmative links.” Laster v. State, 275 S.W.3d 512, 520
(Tex. Crim. App. 2009); Malone v. State,
253 S.W.3d 253, 258 (Tex. Crim. App. 2008).
Therefore, because of its common use and understood meaning, we do
likewise.
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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 14, 2010*
Decided April 16, 2010
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 09‐2874
JOHN J. DAVIT, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 C 3725
WILLIAM J. STOGSDILL, JR., et al.,
Defendants‐Appellees. Ruben Castillo,
Judge.
O R D E R
An acrimonious divorce in 1998 has spawned this and seven prior lawsuits by John
Davit against parties he sees as connected to his ex‐wife and the divorce proceedings. See,
e.g., Davit v. Davit, 173 Fed. Appx. 515 (7th Cir. 2006) (unpublished). This time Davit claims
that his former spouse, her lawyer, a police officer, and the State’s Attorney in DuPage
*
The appellees were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Accordingly, the appeal is submitted on the
appellant’s brief and the record. See FED. R. APP. P. 34(a)(2).
No. 09‐2874 Page 2
County, Illinois, conspired to get him convicted on trumped‐up criminal charges. Davit had
been arrested after scuffling with police on his ex‐wife’s driveway; the officers were
enforcing an order of protection that prohibited Davit from being at the residence. A state
jury found him guilty of violating an order of protection, 720 ILCS 5/12‐30, and resisting a
peace officer, 720 ILCS 5/31‐1, but the Appellate Court of Illinois reversed the first of these
convictions. Over a dissent the court reasoned that the order of protection was
unenforceable because, read literally, it forbade Davit from entering the “household of
premises” instead of the “household or premises.” This windfall from a typo has Davit
claiming that his arrest and prosecution for being on the driveway were part of a malicious
plot to punish him for opposing his ex‐wife in the divorce proceedings, for being a
Democrat (Davit professes certainty that the defendants are all Republicans), and for
exposing “corruption” with his slew of unsuccessful lawsuits.
The district court screened Davit’s complaint prior to service, see 28 U.S.C.
§ 1915(e)(2)(B); Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999), and concluded that it fails to
state a claim. We agree. Davit’s claims under 42 U.S.C. § 1983, racketeering laws, see 18
U.S.C. § 1962, and Illinois common law have no plausible basis in fact. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937, 1953 (2009); Cooney v.
Rossiter, 583 F. 3d 967, 970‐71 (7th Cir. 2009). The complaint, like this appeal, is frivolous,
and we now warn Davit that his pursuit of additional frivolous appeals will lead to
sanctions under Federal Rule of Appellate Procedure 38.
AFFIRMED.
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641 F.3d 635 (2011)
Jerry MATTHEWS; Angie Matthews, Plaintiffs-Appellants,
v.
REMINGTON ARMS COMPANY, INC., Defendant-Appellee.
No. 09-31217.
United States Court of Appeals, Fifth Circuit.
May 18, 2011.
*637 Addison Kennon Goff, IV (argued), Shelley A. Goff, Goff & Goff, Ruston, LA, for Plaintiffs-Appellants.
Dale Gene Wills (argued), Catherine Basque Weiler, Swanson, Martin & Bell, L.L.P., Chicago, IL, David H. Nelson, Nelson, Zentner, Sartor & Snellings, L.L.C., Monroe, LA, for Defendant-Appellee.
Before BARKSDALE, DENNIS and HAYNES, Circuit Judges.
RHESA H. BARKSDALE, Circuit Judge:
Following a bench trial, judgment was rendered against Jerry Matthews' claim under the Louisiana Products Liability Act (LPLA), LA.REV.STAT. ANN. §§ 9:2800.51-.59 (1988), for his injuries that resulted from his firing a Remington Model 710 rifle. When Matthews fired it, the bolt head, which was designed to be connected to the bolt body by a bolt-assembly pin, did not lock with the barrel, allowing an uncontained explosion.
At issue are the district court's findings that: the bolt-assembly pin was missing, rather than out-of-specification, when Matthews fired the rifle; and, pursuant to LPLA, manufacturer Remington Arms Company, Inc., did not "reasonably anticipate" a user would fire its rifle after someone had removed, but failed to reinstall, that pin. Concerning that reasonably-anticipated-use finding, primarily at issue is whether the district court erred by concluding *638 that, for purposes of LPLA, the scope of Matthews' "use" of the rifle included such removal and failure to reinstall; that is, whether his "use" was firing the rifle with the bolt-assembly pin missing, as opposed to only firing it. AFFIRMED.
I.
Following the bench trial in June 2009, the district court rendered findings of fact and conclusions of law. See Matthews v. Remington Arms Co., No. 07-1392, 2009 WL 2970441, at *1 (W.D.La. 16 Sept. 2009). The only contested finding is that, prior to Matthews' firing the rifle, the bolt-assembly pin had been removed but not reinstalled, as opposed to its' being in the rifle but out-of-specification or not functioning.
In 2000, Remington introduced its Model 710 bolt-action rifle. Instead of using a solid bolt, that model was manufactured with a two-piece bolt assembly: the bolt head is attached to the bolt body with a bolt-assembly pin. The bolt handle is attached to the bolt body. When the bolt handle and, therefore, the bolt body, is rotated downward, the bolt head (if the bolt-assembly pin is installed) simultaneously rotates downward and locks the "lugs" on the bolt head into the mating locking recesses in the receiving barrel interface (rifle receiver): the firing position. In such an instance, the rifle is "in battery". Only when the rifle is in battery will it fire properly.
The bolt-assembly pin, a cylinder, is not of insignificant size; it is .685" long and.247" in diameter. It is made from low-strength, unhardened steel. The pin is essential to the simultaneous downward rotation of the bolt head and body. If the bolt-assembly pin is missing or malfunctioning, it is possible for the bolt handle and body to be rotated into locked position without the bolt head also rotating into locked position. In that situation, the lugs on the bolt head will not lock into the mating locking recesses in the rifle receiver, resulting in inadequate engagement between the bolt-head lugs and their locking recesses. In this situation, the rifle is "out of battery". If the trigger is pulled while a round is chambered and the rifle is out of battery, the rifle will either misfire or, as happened to Matthews, have an uncontained explosion.
Under normal conditions (in battery), the bolt-assembly pin does not contain the pressure from the cartridge's being fired; the bolt head contains the pressure with the seal that is created when the locking lugs are engaged with their mating recesses in the rifle receiverthat engagement is critical to pressure containment. Accordingly, the rifle can be fired without the pin in place if the bolt head is locked in placethe pin is not the critical pressure containment device.
The Model 710's owner's manual instructs users to disassemble the bolt assembly, including removing the bolt-assembly pin, for cleaning; and to reassemble the bolt assembly, by reinserting the bolt-assembly pin. Remington also instructs its factory assembly workers to keep a finger beneath the bolt-assembly-pin hole on the bolt body to prevent the bolt-assembly pin from falling out during assembly; however, this instruction is not included in the owner's manual. The owner's manual does not include any warnings of potential hazards if the bolt-assembly pin is not properly installed. Matthews, who borrowed, instead of owned, the rifle, testified he neither received, nor read, the owner's manual prior to the accident.
As of this action's being filed in August 2007, Remington had sold nearly 500,000 *639 Model 710 rifles; but, it had not received a report of a user firing a Model 710 rifle without an installed bolt-assembly pin. Following the district court's ruling in favor of Remington in September 2009, however, Matthews moved unsuccessfully, pursuant to Federal Rule of Civil Procedure 60, for a new trial or to have the judgment altered or amended, based on newly discovered evidence of an October 2008 incident for which a Remington customer reported to Remington that his Model 770 rifle (part of the Model 710 series and also employing a two-piece bolt assembly) came apart when he tried to open the bolt to eject a cartridge. The district court ruled that this newly discovered evidence did not change the trial result and would not have provided Remington with notice of any problem when the rifle fired by Matthews was manufactured in September 2001. Matthews v. Remington Arms Co., No. 07-1392, 2009 WL 4456318, at *3 (W.D.La. 23 Nov. 2009).
When the rifle fired by Matthews left Remington's control in 2001, it contained a bolt-assembly pin manufactured to specifications. Matthews' mother-in-law, Margaret Minchew, purchased the rifle from her nephew in 2006. It had been owned by several persons before she purchased it; but, when she acquired it, she did not receive the owner's manual.
Before the date of the accident, Matthews and others fired the rifle without incident; but, prior to Matthews' accident, someone disassembled the rifle and the bolt assembly and failed to reinstall the bolt-assembly pin. (As noted supra, this critical finding of fact by the district court is contested by Matthews; he maintains that, when he fired the rifle, the bolt-assembly pin was either defective or malfunctioning, rather than missing.)
Approximately two to four weeks before the accident, Margaret Minchew loaned the rifle to her daughter, Amanda Minchew. She and the man with whom she was living, Nicholas Glass, lived next door to Matthews and his wife, another of Margaret Minchew's daughters.
Matthews borrowed the rifle from Amanda Minchew on the morning of the accident in October 2006; the bolt handle appeared to be closed. Matthews took the rifle to his house to obtain ammunition, and then proceeded to another's to "sight" the scope that had been installed recently on the rifle by Nicholas Glass.
In preparing to fire the rifle, Matthews rotated the bolt handle upward; pulled it back in order to load a shell; loaded it; pushed the bolt handle forward; and rotated it downward into what appeared to be the closed position. When he pulled the trigger, the shell did not fire (misfired). He again rotated the bolt handle; pulled it back slowly (because he knew there could be compression); and removed the shell. Observing nothing wrong with the shell, Matthews reloaded a shell; pushed the bolt handle forward; rotated it downward into what appeared to be the closed position; and pulled the trigger. The rifle fired. Upon its doing so, an uncontained explosion occurred, sending portions of the bolt assembly into Matthews' head, causing serious injuries, including the loss of an eye.
The accident resulted from the absence of the bolt-assembly pin: the bolt handle and body had rotated downward, but the bolt head had not. Therefore, the locking lugs on the bolt head failed to engage the locking mating recesses in the rifle receiver, and the rifle was out of battery. Matthews knew it would be dangerous to fire the rifle if either the bolt-assembly pin was missing or the bolt handle was not closing properly.
*640 In district court, Matthews contended, inter alia: firing the rifle out of battery (due to the absence of the bolt-assembly pin) was a "reasonably anticipated use" under LPLA because the rifle appeared to operate normally and a failure to reinstall the bolt-assembly pin was foreseeable to Remington; and the rifle was "unreasonably dangerous" in construction and design and lacked an adequate warning. Remington disputed this and also contended, inter alia, that Matthews' use of the rifle was "obviously dangerous", claiming he knew the bolt would not close properly prior to firing the rifle.
The district court's findings of fact were, inter alia: Matthews' use of the rifle was not "obviously dangerous"; "[a]t some point prior to the accident, however, someone disassembled the bolt assembly and failed to reinstall the bolt assembly pin"; and his using it in an "out of battery" conditionthe bolt-assembly pin missingwas not "reasonably anticipated" by Remington. Matthews, 2009 WL 2970441, at *2-4 (emphasis added). Concerning the latter finding, the court concluded that, absent special circumstances not present in this action, Remington was entitled to expect an ordinary user to reassemble the rifle with all its parts, including the bolt-assembly pin. Id. at *4. Having found no "reasonably anticipated use", which, as discussed infra, is the threshold LPLA element, the district court ruled in favor of Remington and declined to address the remaining LPLA elements at issue. Id.
In denying Matthews' motion for a new trial, and in regard to the bolt-assembly pin, the district court found: trial evidence established that the pin was not defective, but was removed prior to the accident; and "Remington's expert testified that the bolt assembly pin was manufactured to specifications and that the accident was caused by a missing, not broken, bolt assembly pin". Matthews, 2009 WL 4456318, at *2.
II.
Louisiana law controls for this diversity action. See generally Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). LPLA "establishes the exclusive theories of liability for manufacturers for damage caused by their products". LA.REV.STAT. ANN. § 9:2800.52. A claimant under LPLA must prove: (1) "damage proximately caused by a characteristic of the product that renders [it] unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity"; (2) the product was "unreasonably dangerous" either in construction, design, or warning; and (3) the characteristic rendering the product unreasonably dangerous either "exist[ed] at the time the product left the control of its manufacturer or result[ed] from a reasonably anticipated alteration or modification of the product" (depending on the type of defect claimed). Id. at § 9:2800.54 (emphasis added).[1]
*641 Because "reasonably anticipated use" is the threshold LPLA element, and the district court limited its analysis to that element, our review does not reach whether the rifle is "unreasonably dangerous" because, inter alia, its design permitted it to be fired with the bolt-assembly pin missingout of battery. The LPLA section at issue provides: "The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity". LA.REV.STAT. ANN. § 9:2800.54(A) (emphasis added). "The availability of an alternative design is relevant only if the user was engaged in a `reasonably anticipated use' of the product, for unless that threshold element is satisfied, a manufacturer does not have a legal duty to design its product to prevent such use." Butz v. Lynch, 762 So.2d 1214, 1217-18 (La.App. 1st Cir.2000); see also Kampen v. Am. Isuzu Motors, 157 F.3d 306, 309 (5th Cir.1998) (en banc) ("If a plaintiff's damages did not arise from a reasonably anticipated use of the product, then the `unreasonably dangerous' question need not be reached.") (citing Johnson v. Black & Decker U.S., Inc., 701 So.2d 1360, 1366 (La.App. 2d Cir.1997)). Accordingly, our analysis is limited to the question of reasonably anticipated use.
As noted, Remington maintained in district court that Matthews' use of the rifle was obviously dangerous, asserting he knew, prior to the accident, that the bolt would not close properly. Insofar as Remington makes this contention here, it has failed to adequately brief, and has, therefore, waived, it. E.g., Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n. 1 (5th Cir.2004) ("Failure adequately to brief an issue on appeal constitutes waiver of that argument."); FED. R.APP. P. 28(a)(9)(A). The same failure-to-brief waiver applies insofar as Matthews contends the district court erred for any rulings on motions in limine, including by not considering evidence of other incidents of claimed out of battery firings.
Bench-trial findings of fact are reviewed for clear error; legal conclusions, de novo. E.g., Kleinman v. City of San Marcos, 597 F.3d 323, 325 (5th Cir.2010). A question of statutory interpretation is, of course, reviewed de novo. E.g., Great Am. Ins. Co. v. AFS/IBEX Fin. Servs., Inc., 612 F.3d 800, 809 (5th Cir.2010). The establishment of each LPLA element is a question of fact, reviewed for clear error. Ellis v. Weasler Eng'g, Inc., 258 F.3d 326, 331-32 (5th Cir.2001); Johnson, 701 So.2d at 1363 (each product liability case is resolved primarily on its own particular facts). A finding of fact is clearly erroneous only if, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed". United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); see, e.g., Mumblow v. Monroe Broad., Inc., 401 F.3d 616, 622 (5th Cir.2005).
*642 Therefore, at issue are whether the district court clearly erred by finding that: when Matthews fired the rifle, the bolt-assembly pin was missing, rather than out-of-specification; and such "use" should not have been "reasonably anticipated" by Remington. Regarding that use, at issue is whether the court erred in concluding that it was not merely firing the rifle, but firing it after someone had removed, and failed to reinstall, the bolt-assembly pin. "`Reasonably anticipated use' means a use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances." LA.REV.STAT. ANN. § 9:2800.53(7).
A.
Concerning the district court's finding of fact that the bolt-assembly pin was not in the rifle when Matthews fired it on the date of the accident, the rifle had been fired by numerous persons, including Matthews, after Margaret Minchew purchased it. Four witnesses (not including Matthews) who had fired the rifle denied disassembling it. Matthews was not asked whether he had done so. In addition, not all the persons who fired the rifle, after Margaret Minchew purchased it, testified. Moreover, there was no physical evidence to suggest the pin was present during firing.
Matthews maintains the district court clearly erred by finding the bolt-assembly pin was missing at the time of injury, rather than out of specification or not functioning as designed. In that regard, both sides' expert witnesses conceded either scenario (pin missing or out of specification) was possible because there was no direct evidence that the pin was out of specification or not functioning, due to the fact that, following the accident, neither the pin nor any remnant of it was found. Remington's expert testified it was more likely that the pin was missing; Matthews', it was more likely that the pin was out of specification.
The district court found: "[a]t some point prior to the accident, . . . someone disassembled the bolt assembly and failed to reinstall the bolt assembly pin", Matthews, 2009 WL 2970441, at *2; "the locking lugs did not engage because the bolt assembly pin was not installed", id.; and, "the accident was caused by the absence of [the] . . . pin", id. at *3 n. 1. Based on our review of the evidence, including for the reasons that follow, we can not say that these findings of fact were clearly erroneous.
Although Matthews' expert opined that the accident occurred because the bolt-assembly pin was out of specification, as opposed to its not being installed when the rifle was fired, Remington's expert testified that, during extensive testing, no bolt-assembly pins failed or broke, and he was not aware of any doing so post-manufacture. Moreover, there was no evidence inconsistent with the bolt-assembly pin's having been removed and not reinstalled. Remington's expert opined that the bolt-assembly pin was neither out of specification nor broken. In that regard, there was no evidence any bolt-assembly pin in the Model 710 rifle had been too short.
Before the accident, Remington had never been advised that a bolt-assembly pin was missing, and there was no evidence any Model 710 rifle had left Remington with the pin missing. Along that line, every Remington Model 710 rifle is test fired before it is sold. Based on markings on the holes in the bolt body for the rifle Matthews fired, the bolt-assembly pin had been in the rifle's bolt assembly. While these markings indicated a bolt-assembly pin had been in place, there was no distortion or damage to the holes in the bolt *643 body revealing any unusual force had been applied to the pin. Remington's expert opined that the pin was in the rifle when it left Remington and not in it on the date of the accident because it had been removed.
After the rifle was purchased by Margaret Minchew, it had been fired at least approximately ten to 15 times. Numerous persons had fired it. Matthews testified that he had shot that rifle more than once prior to the accident. (And, therefore, had operated the rifle's bolt action.) Matthews also testified he would not shoot a rifle that had been disassembled and reassembled without all its parts. In short, as Remington's expert testified, the rifle had a functioning bolt-assembly pin when fired prior to the date of the accident. Moreover, not everyone who fired the rifle post-purchase by Margaret Minchew testified at trial; and she kept it readily accessible in a gun rack before loaning it to her daughter Amanda Minchew, approximately two to four weeks before the accident. (As noted, Nicholas Glass and Amanda Minchew lived next door to Matthews and his wife, another of Margaret Minchew's daughters.) Amanda Minchew and Nicholas Glass testified that they did not fire the rifle after it was loaned to Amanda Minchew. On the other hand, Nicholas Glass changed the scope on the rifle.
Again, no one admitted to disassembling the rifle. But, as noted, not all who fired it post-purchase by Margaret Minchew testified. Matthews' expert testified: if the rifle is disassembled and then reassembled, the person who did so should function test the bolt mechanism; and, if that test is performed and the bolt-assembly pin is missing, the bolt should come out of the rifle's bolt assembly into that person's hand. On the other hand, one of Remington's experts testified, in response to a question by the court, that, if the pin is missing, but the bolt is pulled back very slowly, the bolt possibly would not react in that fashion. Matthews testified that, after the misfire, he pulled the bolt back slowly.
Regarding the district court's finding the bolt-assembly pin was missing, instructive are the earlier-described reasons provided in the November 2009 order denying Matthews' new-trial motion: "Evidence at trial established that the assembly pin was not defective, but was removed. Remington's expert testified that the bolt assembly pin was manufactured to specifications and that the accident was caused by a missing, not broken, bolt assembly pin". Matthews, 2009 WL 4456318, at *2. It goes without saying that the district court is in a "superior position to appraise and weigh the evidence". Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); FED.R.CIV.P. 52(a)(6) ("Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility.").
There were numerous instances for which the district court had to appraise and weigh the evidence and judge witnesses' credibility. For example, Nicholas Glass, who lived with Margaret Minchew's daughter Amanda Minchew on the date of the accident, was asked on cross-examination whether Margaret Minchew gave the rifle to him (it appears instead to have been loaned to Amanda Minchew) because Margaret Minchew was concerned that the young son (about age 13 on the date of the accident) of the man with whom she lived "had been messing with" the rifle. Glass answered instead that the rifle was given to him because Margaret Minchew was concerned that the young person would shoot one of her horses with it. Remington then read for impeachment purposes *644 the portion of Glass' deposition in which he had testified that Margaret Minchew gave the rifle to him because she was concerned that the young person "had been messing with the gun". Glass admitted he had so testified in his deposition.
Other examples of pertinent, conflicting evidence are whether Glass had fired the rifle (he denied doing so; Amanda Minchew testified on cross-examination that he had, after testifying on direct that he had not); whether Glass told Matthews on the day of the accident that he (Glass) had changed the scope on the rifle and it needed to be sighted (Glass testified he had changed the scope; Amanda Minchew testified Glass told Matthews to sight the rifle because he (Glass) had changed the scope; and Matthews testified Glass did not tell him that); and the time that elapsed between when Matthews borrowed the rifle on the day of the accident and the accident occurred (Matthews testified ten minutes elapsed; Amanda Minchew, 30 minutes to an hour; her deposition was then read to her for impeachment, in which she had testified that one to two hours had elapsed; she then testified at trial "it may have been" one to two hours, consistent with her deposition).
As stated, there were numerous instances of this type for the court to consider, including for the expert witnesses' testimony, in making its findings of fact. These type credibility and evidence-appraisal questions are for the district, not this, court. "When the district court is faced with testimony that may lead to more than one conclusion, its factual determinations will stand so long as they are plausibleeven if we would have weighed the evidence otherwise." Nielsen v. United States, 976 F.2d 951, 956 (5th Cir.1992). As stated, on this record and under this highly deferential standard, we can not say the district court clearly erred in finding the bolt-assembly pin was not in the rifle when Matthews fired it and suffered injuries from the uncontained explosion.
B.
In the light of our not finding clearly erroneous the district court's missing-pin finding of fact, next at issue are: the district court's conclusion of law for the applicable LPLA scope-of-use; and its finding of fact, based on that scope-of-use, that Matthews' use of the rifle (with a missing bolt-assembly pin) was not reasonably anticipated by Remington. The district court did not err in its scope-of-use conclusion; and we can not say that its not-reasonably-anticipated-use finding of fact was clearly erroneous.
1.
For obvious reasons, "the level of generality at which a plaintiff's `use' of a product is defined will bear directly on whether [he] satisfies the LPLA's reasonably anticipated use requirement". Kampen, 157 F.3d at 310. Again, a critical issue is whether Matthews' "use" of the Model 710 rifle is limited to his firing it or includes the removal of, but failure to reinstall, the bolt-assembly pin. As discussed, the district court interpreted "use" at a level of generality that included firing the rifle without the bolt-assembly pin, as opposed to firing it. Again, this interpretation included someone's removal of, and failure to reinstall, the bolt-assembly pin prior to Matthews' firing the rifle. And as noted, because the scope-of-use inquiry requires interpreting LPLA, our review is de novo. See Kleinman, 597 F.3d at 325.
A scope-of-use decision is premised on "the apparent purpose of the reasonably anticipated use requirement[:] . . . `to express the types of product uses and misuses by a consumer that a manufacturer *645 must take into account when he designs a product [and] drafts instructions for its use . . . in order that the product not be unreasonably dangerous.'" Kampen, 157 F.3d at 310-11 (citation and internal quotation marks omitted) (quoting John Kennedy, A Primer on the Louisiana Products Liability Act, 49 LA. L.REV. 565, 584 (1989)) (Kennedy was a co-drafter of LPLA.). For that LPLA action against the manufacturer of a vehicle jack, our en banc court in Kampen held: the scope of use included not only claimant's jacking up the vehicle, but also, while the vehicle was in that position, crawling under it. Id. at 312.
For the scope-of-use inquiry, Kampen held: "We thus define [plaintiff's] `use' of the jack at a level of generality that will take into account the risks [the manufacturer] must (or should) have reasonably contemplated when designing the jack. . . ." Id. at 311. Consistent with the warnings not to do so, provided in the owner's manual and in the vehicle's sparetire compartment, those risks were that the claimant would not only jack up the vehicle, but also, after doing so, crawl under it. Kampen further held: "[I]f we consider that Kampen's `use' of the jack includes his jacking up the car and nothing else, then the question of reasonably anticipated use answers itself: a manufacturer quite reasonably anticipates his jack to be used for jacking!" Id. at 310. Similarly, it is obvious that firing a rifle, with all of its parts in place, is reasonably anticipated.
In reaching the holding that defendant did not reasonably anticipate this expanded use (jack-up and crawl-under), id. at 312, Kampen provided a detailed analysis of Louisiana cases interpreting LPLA's reasonably-anticipated-use element, including which conduct constituted a "use". See id. at 310-12. Louisiana courts have interpreted "use" to include interactions with the product prior to the claimant's injury. See Johnson, 701 So.2d at 1365 (affirming jury's finding that using a saw after either claimant, or another, had removed the manufacturer's guard was not a "reasonably anticipated use"); Delphen v. Dep't of Transp. & Dev., 657 So.2d 328, 334 (La. App. 4th Cir.1995) (holding claimant's "use" was borrowing and riding an obviously dangerous racing bicycle without obtaining additional instructions regarding use and knowing the wheel had previously become loose). As reflected in our en-banc opinion in Kampen, our court has applied the Louisiana-state-court LPLA interpretation. E.g., Broussard v. Procter & Gamble Co., 517 F.3d 767, 769-70 (5th Cir.2008) (holding "use" of heatwrap in contravention of warning not "reasonably anticipated") (citing Kampen, 157 F.3d at 314); Ellis, 258 F.3d at 337-38 (holding "reasonably anticipated use" of pecan harvester included walking between tractor and harvester to inspect harvester while running); Hunter v. Knoll Rig & Equip. Mfg. Co., 70 F.3d 803, 810 (5th Cir.1995) (holding racking pipes against a racking board in an uncommon and "obviously dangerous" manner was not a "reasonably anticipated use"); see LA.REV.STAT. ANN. § 9:2800.53(7) ("`Reasonably anticipated use' means a use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances."); Kampen, 157 F.3d at 311 ("[W]e observe that `reasonably anticipated use' is defined [in § 9:2800.53(7)] in terms of a `use or handling' of the product".) (emphasis in original).
Again, the LPLA section at issue provides: "The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of *646 the product by the claimant or another person or entity". LA.REV.STAT. ANN. § 9:2800.54(A) (emphasis added). "[U]se of the product by [Matthews] or another person" is linked, of course, to the district court's above-discussed finding of fact, which we can not say is clearly erroneous, that, "[a]t some point prior to the accident,. . . someone disassembled the bolt assembly and failed to reinstall the bolt assembly pin". Matthews, 2009 WL 2970441, at *2 (emphasis added). In the light of its scope-of-use conclusion, the district court was not required to find whether that "someone" was Matthews or another person.
As noted, in Johnson, the Louisiana appellate court affirmed the jury's finding that using a saw after the manufacturer's guard had been removed was not a "reasonably anticipated use". 701 So.2d at 1365. In so doing, the court found it was unclear whether the guard had been removed by the claimant or by another. Id. at 1362, 1364. In Hunter, our court found the manner in which pipes were leaned against a racking board was not reasonably anticipated. 70 F.3d at 810. In that case, it was not only the claimant's interaction with the product, but also those by other experienced workers, that resulted in the pipes being racked improperly. Id. at 805, 810. These decisions demonstrate, inter alia, that, consistent with LPLA § 9:2800.54(A) (defining "use" to include "use of the product by the claimant or another person or entity" (emphasis added)), "use" of a product is determined by examining overall interactions with a product including another person's handling it.
Accordingly, "use" under LPLA includes interactions with the product by Matthews and others. The scope of the "use" included the removal of, and failure to reinstall, the bolt-assembly pin prior to Matthews' firing the rifle because, in order to be held liable under LPLA, that is the "use" Remington had to have "reasonably anticipated" ("expect[ed]"). See LA.REV.STAT. ANN. § 9:2800.53(7) ("`Reasonably anticipated use' means a use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.").
2.
Therefore, in the light of this scope-of-use, at issue is whether it was "reasonably anticipated" by Remington that someone would fail to reinstall the bolt-assembly pin and that the rifle would be fired in that condition. As discussed, the establishment of each LPLA element is a question of fact, reviewed for clear error. Ellis, 258 F.3d at 331-32; Johnson, 701 So.2d at 1366.
Again, "`[r]easonably anticipated use' means a use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances". LA. REV.STAT. ANN. § 9:2800.53(7) (emphasis added). "This objective inquiry requires us to ascertain what uses of its product the manufacturer should have reasonably expected at the time of manufacture." Kampen, 157 F.3d at 309 (emphasis added) (citing Myers v. Am. Seating Co., 637 So.2d 771, 775 (La.App. 1st Cir.1994)). Accordingly, at issue is whether the district court clearly erred by finding that Remington, at the time of manufacture, should not have reasonably expected Matthews' "use": firing a Model 710 rifle after someone had removed, but failed to reinstall, the bolt-assembly pin. See Butz, 762 So.2d at 1218; Hunter, 70 F.3d at 806-07, 810.
"`[R]easonably anticipated use' is more restrictive than the broader, [pre-LPLA] standard of `normal use'", and it *647 does not suggest manufacturer liability "for every conceivable foreseeable use of a product". Delphen, 657 So.2d at 333-34; see also Lockart v. Kobe Steel Ltd. Constr. Mach. Div., 989 F.2d 864, 868 (5th Cir. 1993). "The LPLA's `reasonably anticipated use' standard should be contrasted with the pre-LPLA `normal use' standard; `normal use' included `all intended uses, as well as all reasonably foreseeable uses and misuses of the product.'" Kampen, 157 F.3d at 309 (citing Hale Farms, Inc. v. Am. Cyanamid Co., 580 So.2d 684, 688 (La.App. 2d Cir.1991)). "`Normal use' also included `reasonably foreseeable misuse that is contrary to the manufacturer's instructions.'" Id. (emphasis removed) (citing Hale Farms, 580 So.2d at 688).
Under LPLA, whether a use is reasonably anticipated is an objective standard ascertained from the manufacturer's viewpoint at the time of manufacture. Payne v. Gardner, 56 So.3d 229, 231-32 (La.2011); Green v. BDI Pharm., 803 So.2d 68, 75 (La.App. 2d Cir.2001); Hunter, 70 F.3d at 809 n. 7; Daigle v. Audi of Am., Inc., 598 So.2d 1304, 1307 (La.App. 3d Cir.1992) (quotation omitted). "It is clear that by adopting the reasonably anticipated use standard, the Louisiana Legislature intended to narrow the range of product uses for which a manufacturer would be responsible." Kampen, 157 F.3d at 309 (citing Delphen, 657 So.2d at 333; Myers, 637 So.2d at 775).
We can not say that the district court clearly erred in finding that Remington should not have reasonably anticipated (reasonably expected) the rifle to be fired after someone had removed, but failed to reinstall, the bolt-assembly pin. This is evidenced by the instructions in Remington's Model 710 owner's manual to reinstall the bolt-assembly pin when reassembling the bolt assembly. Of course, it was "reasonably foreseeable" that a user might drop the bolt-assembly pin during reassembly, as evidenced by the instruction from Remington to its assembly workers to keep a finger beneath the bolt-assembly-pin hole during the initial assembly; however, that is not the LPLA standard. The standard is: at the time of manufacture, how did the manufacturer reasonably expect its product to be used by an ordinary person.
"[T]he LPLA requires a link between damages and reasonably anticipated use. . . . [I]f damages are linked to a product misuse (i.e., one that is not reasonably anticipated), then those damages are not recoverable under the Act". Kampen, 157 F.3d at 316; see also Payne, 56 So.3d 229, 231-32. Here, the damages incurred by Matthews are directly caused by his firing the rifle after someone had removed the bolt-assembly pin and failed to reinstall it. For the reasons that follow, and in the light of the trial evidence, we can not say that the district court clearly erred in finding that such "use" was not "reasonably anticipated" by Remington.
Matthews failed to prove Remington, at the time of manufacture of the rifle at issue, was aware of a single other incident where a Model 710 rifle, or any rifle using a similar two-piece bolt assembly, was fired without a properly installed and functioning bolt-assembly pin. The district court found:
Remington anticipated that a user would disassemble the Model 710 bolt assembly for cleaning and remove the bolt assembly pin, but Mr. and Mrs. Matthews have not presented persuasive evidence that Remington also should have anticipated that users would fail to reinstall the bolt assembly pin. Both lay and expert witnesses testified that an ordinary firearm user knows and understands that reassembly of a firearm with all its parts is critical to safe operation. *648 The Court, therefore, finds that Remington was entitled to expect that an ordinary user would reassemble the rifle with all its parts, absent special circumstances not present in this case.
Matthews, 2009 WL 2970441, at *4 (emphasis added).
Acknowledging again that the district court is in a superior position to appraise and weigh the evidence, "the force and effect of the testimony, considered as a whole", does not convince us "that the findings are so against the great preponderance of the credible testimony that they do not reflect or represent the truth and right of the case". Mumblow, 401 F.3d at 622 (citation omitted). Under LPLA, what a manufacturer should reasonably anticipate is determined by how the manufacturer expected the product to be used by an ordinary person. Again, we can not say the district court clearly erred by finding Remington should not have expected a Model 710 rifle to be fired after someone had removed, but failed to reinstall, the bolt-assembly pin.[2]
III.
For the foregoing reasons, the judgment is AFFIRMED.
DENNIS, Circuit Judge, dissenting:
I respectfully dissent. The undisputed, concrete facts of this fully tried case show that the damage to the claimant, Jerry Matthews, arose from his own use of the rifle to shoot at a target, a use that an objective rifle manufacturer should reasonably expect of an ordinary person in the same or similar circumstances as Matthews'. Matthews did not allege or attempt to show that his damage arose from the use of the rifle by another person or entity. Thus, both the district court and the majority of this panel erred in misinterpreting and misapplying the Louisiana Products Liability Act (LPLA or "the Act") as if it required Matthews to show *649 that his damage arose from a reasonably expected use of the rifle by another person or entity. The LPLA does not place such an additional and greater burden upon a claimant at the threshold reasonably-anticipated-use stage of a products liability case. Therefore, their dismissal of Matthews' claim on the ground that he failed to demonstrate that his damages arose from his reasonably anticipated use of the rifle was legal error. It may be that Matthews' case ultimately might have failed on the merits of his design and warning claims, but under the LPLA he should not have been poured out of court at the threshold reasonably-anticipated-use stage, because he obviously used the rifle as a manufacturer should reasonably have anticipated, and did not use the rifle in an irrational or abnormal way.
I.
Matthews was severely injured by the backward explosion of the Remington rifle as he tried to fire it at a target. This model of Remington rifle has a dangerous characteristic that Remington did not warn users about either in the owners' manual or on the rifle itself, viz., when the pin holding its two-piece bolt assembly together is missing or defective, the rifle can explode in the face of a shooter, although its bolt assembly may appear to be working properly when a user inserts a rifle shell and prepares to pull the trigger.[1] Matthews was justifiably not aware of this dangerous characteristic of this model of Remington rifle; and he was also thus not aware that the bolt assembly pin was missing from the particular rifle he was using.[2] These non-apparent dangers fortuitously met in an explosion, blinding Matthews' right eye and causing him brain damage and other injuries.
The district court specifically found that Matthews' use of the rifle was not obviously dangerous; that Matthews was able to rotate the bolt handle into what appeared to be the closed position prior to pulling the trigger; and that both he and an ordinary user would have assumed that the rifle was safe to fire at that point. Consequently, in my opinion, the record clearly shows that Matthews carried his initial threshold burden to show that his damages arose from his own use of the rifle to shoot at a target, a use that any objective manufacturer reasonably should have anticipated; and that Matthews, therefore, was entitled to have the district court proceed to adjudicate his unreasonably dangerous product design claim and his unreasonably dangerous failure to warn claim, on their merits, upon the evidence adduced at trial.[3]
*650 The district court did not proceed in that order, however, but instead improperly injected into its "reasonably anticipated use" threshold inquiry an additional anomalous factual issue that should have been considered only in the merits design and warning claims part of the case, or in a subsequent comparative fault inquiryviz., whether Matthews' damages were proximately caused by an unknown previous user's failure to replace the bolt assembly pin upon reassembly of the rifle. After deciding that the accident happened because some unknown person had left the pin out, rather than because of a defective pin, the court then decreed that Remington was legally entitled to presume that no user of its rifles would ever advertently or inadvertently leave such a pin out. Having established this legal presumption, although there is no warrant in the record or basis in the LPLA or other law for it, the district court rejected Matthews' claims because "Matthews' use of the rifle in an out-of-battery condition was not reasonably anticipated." Matthews v. Remington Arms Co., Inc., No. 07-1392, 2009 WL 2970441, at *4 (W.D.La. Sept. 16, 2009). To reach this conclusion, the district court, in my view, incorrectly interpreted and applied the LPLA's reasonably anticipated use requirement.
Under the plain language of the Act, a plaintiff asserting a products liability action against a manufacturer has a threshold burden of showing that his damages arose from a reasonably anticipated use of the product. See La.Rev.Stat. § 9:2800.54(D); Kampen v. Am. Isuzu Motors, Inc., 157 F.3d 306, 314 (5th Cir. 1998) (en banc). The LPLA defines a reasonably anticipated use as "a use or handling of the product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances." La.Rev.Stat. § 9:2800.53(7). When the claimant asserts that his damages arose from a reasonably anticipated use of the product by the claimant himself, "in the same or similar circumstances" plainly refers to the same or similar circumstances as the claimant's use. Id.; see also id. § 9:2800.54(A). This is an "objective inquiry," requiring a court to ascertain whether the use of the product, from which the plaintiff's damages arose, is a use that a manufacturer such as the defendant should have reasonably expected at the time of manufacture. Kampen, 157 F.3d at 309.
Applying the objective inquiry to the undisputed facts, it is self-evident that Matthews' damages arose from a use or handling of the rifle that a manufacturer such as Remington should have reasonably expected at the time of the manufacture. Matthews was using the rifle to shoot at a target while sighting in a new telescope on the rifle when his damages arose. This use obviously falls within the core purpose for which Remington designed and made the rifle, viz., to fire a bullet at a target. Moreover, Matthews was found by the district court to have used the rifle as an ordinary user would have under the circumstances; he was not found to be negligent or at fault in his use of the rifle. Thus, Remington, as a rifle manufacturer, reasonably should have anticipated that the rifle would be used just as Matthews did for that purpose.
*651 The LPLA does not require a claimant at the threshold stage to prove that his damages were also proximately caused by a characteristic of the product that renders the product unreasonably dangerous. Nor does it require a claimant at the threshold stage to prove that a third person's conduct was not a contributing or proximate cause of his damages. Those are additional burdens that a claimant must face only if he satisfies the initial threshold burden of showing that his damages arose from his use of the product that a manufacturer reasonably should have anticipated. Further, those are issues that the district court should have given plenary consideration to as part of a full merits trial inquiry into unsafe design, inadequate warning, and/or comparative fault, and should not have adverted to at the threshold reasonably anticipated-use stage of the case.
The district court, in my view, did not correctly interpret and apply the threshold objective reasonably anticipated use inquiry in the present case. The district court, instead, inquired into whether Remington subjectively expected that some user other than Matthews would have negligently or inadvertently failed to replace the assembly bolt pin during the process of cleaning and reassembling the rifle. This is quite different from the objective inquiry required by the Act, of whether Matthews' damages arose from a use of the product that the manufacturer reasonably should have anticipated. Moreover, the district court formulated an anomalous rule of law to answer its subjective, rather than objective, inquiry that is foreign to and not authorized by the Act. Thus, the district court held that Remington was entitled evidently as a matter of lawto expect that no ordinary user would inadvertently leave the bolt assembly pin out when reassembling the rifle after disassembling it for cleaning. Then the court went on to find that Matthews had not presented persuasive evidence that Remington should have anticipated that any user would fail to reinstall the bolt assembly pin. Thus, the court placed another impossible legal burden on Matthews that is not authorized by the LPLA or by any law. How could Matthews ever adduce sufficient evidence to overcome the legal presumption erected by the court that Remington is entitled to presume that no rifle cleaner will ever inadvertently leave out a pin when reassembling a rifle? Specifically, the district court's rationale was that:
Remington anticipated that a user would disassemble the Model 710 bolt assembly for cleaning and remove the bolt assembly pin, but Mr. and Mrs. Matthews have not presented persuasive evidence that Remington also should have anticipated that users would fail to reinstall the bolt assembly pin. Both lay and expert witnesses testified that an ordinary firearm user knows and understands that reassembly of a firearm with all its parts is critical to safe operation. The Court, therefore, finds that Remington was entitled to expect that an ordinary user would reassemble the rifle with all its parts, absent special circumstances not present in this case.
Matthews, 2009 WL 2970441, at *4 (emphasis added).
Therefore, in my view, the district court committed several clear legal errors in interpreting and applying the LPLA by: (1) failing to recognize that Matthews had carried his threshold burden of showing that his damages arose from his own use of the rifle and that his use was one that a manufacturer reasonably should have anticipated; (2) failing to proceed to consider and decide the merits issues of whether the rifle product was unreasonably dangerous in design or whether an adequate warning about the product's dangerous characteristic was given; (3) undertaking, at the *652 threshold stage of the case, an anomalous inquiry into whether the accident was proximately caused by a defective pin or by an unknown previous user's failure to properly replace the pin upon reassembling the rifle; (4) establishing a legal presumption that Remington is entitled to presume that no user of its rifles will ever fail to replace a bolt assembly pin, although it is undisputed that the rifle can give the appearance of operating properly without such a pin; and (5) rejecting Matthews' claims because he failed to adduce sufficient contrary evidence of Remington's subjective expectations to overcome this apparently irrebuttable legal presumption.
II.
The majority of this panel not only fails to correct the district court's erroneous statutory construction and erroneous legal rule-making, but, in an attempt to buttress its own decision, expressly adopts a seriously mistaken interpretation of the LPLA and misapplies this court's standards of appellate review. I will discuss the majority's errors in turn.
The majority fails to properly apply the clear and unambiguous provisions of the LPLA as written to the undisputed concrete facts of this case, without further unnecessary judicial interpretation, as required by Louisiana Civil Code article 9. When a claimant's damage is proximately caused by an unreasonably dangerous characteristic of a product, the LPLA, Louisiana Revised Statute § 9:2800.54(A), mandates that the manufacturer shall be liable to the claimant in two different situations: (1) when such damage arose from a reasonably anticipated use of the product by "the claimant," id.; and (2) when such damage arose from a reasonably anticipated use of the product by "another person or entity," id. In this case, Jerry Matthews, "the claimant," asserts that his injuries arose from his own reasonably anticipated use of the product, a rifle, by using it to attempt to shoot at a target. He does not claim that his damage arose from a use of the rifle by "another person or entity." Id. Thus, the second type of situation or action provided for by § 9:2800.54(A) does not apply to and is irrelevant to this case.
The majority stretches and distorts the statutory words, "use of the product by. . . another person or entity," to have them apply to the unknown person whom the district court found had left out the missing pin. But the legislature clearly did not intend for them to have that meaning or interpretation. Those words plainly were meant to apply when a claimant's damage arises from a use of a product by another person or entity: for example, when an innocent bystander is injured by a characteristic of a product such as a lawn mower, automobile or other mechanical device while it is being used by another person or entity in a manner that a manufacturer should reasonably expect of an ordinary person in the same or similar circumstances as the user. The majority's interpretation and application of the statutory words, "use of the product by . . . another person or entity," differently from the plain, straightforward manner used and intended by the legislature, is therefore unwarranted; to apply those words as the majority does here distorts the "clear and unambiguous" words of the law, which should be applied "as written" to the undisputed concrete facts, without "further interpretation in search of the intent of the legislature." La. Civ.Code art. 9. Matthews alleged and sought to prove that his damage arose from his own use of the rifle, not from the use of the rifle by another person or entity. Thus, the only reasonably anticipated use question presented is whether the use of the rifle by Matthews, *653 the claimant, was a reasonably anticipated use. This case fits squarely within the plainly relevant LPLA legislated rules, viz., the reasonably anticipated use definition at § 9:2800.53(7) and the claimant's assertion that his injuries arose from his own use of the rifle, La.Rev.Stat. § 9:2800.54(A); therefore, the majority is not authorized to formulate a new rule to decide the case by resorting to its own judicial conceptions of "equity, . . . justice, reason, and prevailing usages." La. Civ. Code art. 4.
The LPLA defines "reasonably anticipated use" as "a use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances." Id. § 9:2800.53(7). This is the only definition of "reasonably anticipated use" in the LPLA. Accordingly, it must be applied faithfully to the relevant use or handling of a product in each particular case. Because Matthews asserted a claim that his injuries arose from his own use or handling of the Remington rifle, the majority was required by the LPLA to decide whether Matthews' use of the rifle was one that the manufacturer should reasonably expect of an ordinary person in the same or similar circumstances as Matthews. Had the majority done so, they would have been bound to conclude that Matthews' use or handling of the rifle was what a manufacturer should expect of an ordinary person in the same or similar circumstances as the claimant. In fact, it is undisputed that Matthews is an ordinary person who had no knowledge of the dangerous characteristic, that the rifle might backfire if its assembly pin had been misplaced or broken. Further, it bears repeating that it is undisputed that Remington did not provide any warning of this danger either in its owner's manual or on the rifle itself. Moreover, there was nothing in the way Matthews used or handled the rifle that was inconsistent with the use or handling of a product that a manufacturer should reasonably expect of an ordinary person in the same of similar circumstances. As even the district court found: "The Court. . . concludes that Mr. Matthews was able to rotate the bolt handle into what appeared to be the closed position prior to pulling the trigger. The Court finds that both he and an ordinary user would have assumed that the rifle was safe to fire at that point, even if the bolt handle had previously been difficult to operate." Matthews, 2009 WL 2970441, at *4.
As the majority acknowledges, the district court's conclusions about interpretation of the LPLA are legal conclusions, which are reviewed de novo. Great Am. Ins. Co. v. AFS/IBEX Fin. Servs., Inc., 612 F.3d 800, 809 (5th Cir.2010) ("This court reviews a district court's interpretation of a state statute de novo."); see also Murkeldove v. Astrue, 635 F.3d 784, 790 (5th Cir.2011) ("Because the district court's determination turns on its interpretation of the [relevant statute] and statutory interpretations are conclusions of law, we review the district court's interpretation de novo."). Accordingly, a determination of the meaning of "reasonably anticipated use" under the LPLA is a legal conclusion subject to de novo review.
The majority alleges and argues that because someone, unknown to Matthews, removed the bolt-assembly pin from the rifle before Matthews fired it and was injured, Matthews' use of the rifle should not have been reasonably anticipated by Remington. The majority's reasoning depends on the premise that the LPLA requires a claimant to prove not only that his use was reasonably anticipated, but also that all prior users' uses of the product were reasonably anticipated. That interpretation of the clear and unambiguous words of the law is incorrect. If the claimant *654 asserts that he was the user of the product when he was injured, as Matthews does, the LPLA requires that he prove only that his own personal use was reasonably anticipated in order to fulfill the reasonably anticipated use requirement.[4]
As the majority correctly notes, the issue of whether Matthews' use of the product was a reasonably anticipated use is merely a threshold requirement; once he meets this requirement, he still has the burden of proving that his injury was proximately caused by an unreasonably dangerous characteristic of the product. La.Rev.Stat. § 9:2800.54(B). In this case, Matthews cannot succeed on the theory that the rifle was unreasonably dangerous in construction or composition, per § 9:2800.55, because the district court found it did not contain such a defect when it left the manufacturer's control and that finding of fact appears to be supported by the evidence. However, the district court did not reach two other actions or theories of recovery asserted and supported with substantial evidence by Matthews. First, he contends, and introduced substantial evidence to prove, not only that the manufacturer should have reasonably anticipated his use of the rifle, but also that the rifle was unreasonably dangerous in design, per § 9:2800.56, because there was an alternative design available "that was capable of preventing [Matthews'] damage" and that "the likelihood that the [rifle]'s design would cause [Matthews'] damage and the gravity of that damage outweighed the burden on [Remington] of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the [rifle]," id. Second, he contends that Remington provided an inadequate warning, per § 9:2800.57, regarding the possibility of the rifle exploding when the bolt assembly pin was not properly installed, especially where the rifle would give a user no indication that the pin was missing. These two complex "design" and "warning" inquiries are quite distinguishable from the reasonably anticipated use test which is a simpler, more straightforward threshold hurdle. Obviously, the reasonably anticipated use test is not designed to take the place of these more complicated inquiries. The reasonably anticipated use test is designed merely to winnow out claims based on uses that would not be rational or sensible for a manufacturer to expect of a claimant, such as "us[ing] a soft drink bottle for a hammer,. . . attempt[ing] to drive [an] automobile across water[,] or . . . pour[ing] perfume on a candle to scent it." John Kennedy, A Primer on the Louisiana Products Liability Act, 49 La. L.Rev. 565, 586 & n.110 (1989) (citing as a source of law for the LPLA, the Model Uniform Products Liability Act § 102(G) and comment (G), and listing examples of uses which the "reasonably anticipated use" element is meant to exclude); see also Model Uniform Products Liability Act § 102(G) (defining "[r]easonably anticipated conduct" as "the conduct which would be expected of an ordinary reasonably prudent person who is likely to use the product in the same or similar circumstance"); id. cmt. (G) ("The [Model Uniform *655 Products Liability] Act's reliance on the concept of `reasonably anticipated conduct'. . . helps to ensure that the price of products is not affected by the liability insurance costs that would spring from providing coverage for abnormal product use." (emphasis added)). In contrast, Matthews' use of the rifle was certainly one that should have been reasonably anticipated by any objective rifle manufacturer: Matthews simply attempted to fire the rifle at a target.
Moreover, the caselaw confirms that the majority's interpretation of "reasonably anticipated use" is incorrect. In the cases cited by the majority where the plaintiff's use was held not to be a reasonably anticipated use, the plaintiffs had personally used the products that injured them in a manner that was held to not be reasonably anticipated. See Broussard v. Procter & Gamble Co., 517 F.3d 767, 769-70 (5th Cir.2008) (plaintiff's use of heatwrap pain relief product in manner contrary to warnings was not a reasonably anticipated use); Kampen, 157 F.3d at 311-12 (5th Cir.1998) (en banc) (plaintiff's use of jack to raise vehicle and crawling under vehicle was not a reasonably anticipated use); Hunter v. Knoll Rig & Equip. Mfg. Co., 70 F.3d 803, 805-10 (5th Cir.1995) (decedent's stacking of racking pipes against a racking board on an oil derrick so that the pipes leaned toward rather than away from the mast of the derrick, where he was responsible for alerting coworkers of any need to correct the lean, and where industry practice is to not permit such a lean, was not a reasonably anticipated use); Johnson v. Black & Decker U.S., Inc., 701 So.2d 1360, 1364-65 (La.App. 2d Cir.1997) (plaintiff's use of saw, after guard was removed by plaintiff, "either by [plaintiff] himself or with his consent," was not a reasonably anticipated use); Delphen v. Dep't of Transp. & Dev., 657 So.2d 328, 333-34 (La.App. 4th Cir. 1995) (plaintiff's borrowing and riding obviously dangerous bicycle across large bridge was not a reasonably anticipated use). By contrast, the majority in this case effectively penalizes Matthews at the threshold of the case for the actions of an unknown third party in removing the bolt-assembly pin from the rifle without Matthews' knowledge.
Furthermore, even if it could be assumed by some stretch that Matthews was slightly negligent in not checking the rifle's internal parts before firing the weapon, or in not taking it to the shop after it failed to fire the first shell, his use would still constitute a "reasonably anticipated use," because no manufacturer should expect this extremely high degree of knowledge or caution from an unwarned ordinary user, where his use of the product is not obviously dangerous. This court, sitting en banc, has made clear that there are circumstances where a plaintiff's use of a product, even if negligent, still constitutes a reasonably anticipated use:
A plaintiff's negligent conduct which does not remove his use of the product from the realm of reasonably anticipated uses may nevertheless contribute to cause his injuries. Such negligence will lessen a plaintiff's recovery without barring his right to recover altogether. Suppose, for example, that [the plaintiff] had used the jack only to change a tire and the jack had collapsed; the manufacturer had provided no adequate instructions regarding the use of the jack, and the correct manner of use was not obvious; the collapse occurred partly as a result of [the plaintiff's] negligent failure to fit the lifting arm of the jack into a special notch and partly as a result of some unrelated defect in the jack's composition. In this example, [the plaintiff] used the jack to change a tire, but physically manipulated the jack in an improper manner that was not specifically *656 warned against nor obviously dangerous. We submit that this hypothetical negligent use would be "reasonably anticipated"; the manufacturer would be liable and damages apportioned by comparative fault.
Kampen, 157 F.3d at 316 (second and third emphases added). Matthews' use of the rifle is like the plaintiff's use of the jack in the above hypothetical example posed by the Kampen en banc majority opinion. Like that hypothetical plaintiff, Matthews used the product at issue for the very purpose that it was intended for. The hypothetical plaintiff used the jack to change a tire, and Matthews used the rifle to shoot at a target. As with the hypothetical jack user, the danger in using the product, the rifle, "was not specifically warned against nor obviously dangerous." The owner's manual did not warn of the dangerous possibility of the rifle causing a disastrous uncontained explosion when the bolt-assembly pin was missing. Nor was the danger of firing the rifle obvious, as the district court so found,[5] because Remington had designed the rifle so that the bolt handle would still rotate downwards into what appeared to be the closed and locked position regardless of whether the bolt-assembly pin was inside so that Matthews would not have been able to tell that the bolt-assembly pin was missing. Thus, Matthews' use of the rifle, like the hypothetical plaintiff's use of the jack in Kampen, was a reasonably anticipated use.
Thus, I respectfully but emphatically disagree with the majority's unorthodox interpretation of the LPLA, which in effect (1) makes the LPLA's definition of "reasonably anticipated use" become a useless appendage whenever a third person's prior use may have affected the product, although the claimant alleges and proves that his damage arose from his own use of the product, which the manufacturer reasonably should have anticipated; (2) distorts the LPLA's "use of the product by. . . another person or entity" proviso (that was intended to expand, not narrow, protections for victims of unsafe products) into an additional manufacturer's defense not explicitly legislated or intended; (3) creates an additional hurdle and burden for claimants that the legislature did not expressly provide for; and (4) is contrary to this court's en banc interpretation of the LPLA in Kampen, because it makes the reasonably anticipated use of the product by another person or entity proviso "do the work that comparative fault is intended to do" under Louisiana law. See Kampen, 157 F.3d at 316 (citing, inter alia, Bell v. Jet Wheel Blast, Div. of Ervin Indus., 462 So.2d 166 (La.1985)) ("[C]omparative fault" still has a place in "Louisiana products liability law" because "[a] plaintiff's negligent conduct which does not remove his use of the product from the realm of reasonably anticipated uses may nevertheless contribute to cause his injuries. Such negligence will lessen a plaintiff's recovery without barring his right to recover altogether."); see also Bell, 462 So.2d at 170 (explaining that in a negligence action, "a plaintiff's claim for damages [cannot] be barred totally because of his negligence. *657 At most his claim may be reduced in proportion to his fault.").
Because Matthews proved that his use of the rifle was not an irrational or unanticipated use, but rather the reasonably anticipated core use of shooting the rifle at a target, he satisfied the reasonably anticipated use requirement, and was entitled to have the district court consider and decide whether he had proven either one of his two actions, viz., that the rifle is unreasonably dangerous in design as provided in § 9:2800.56, or unreasonably dangerous because an adequate warning about the product was not given, as provided in § 9:2800.57. In proving that a characteristic of the product renders it unreasonably dangerous under § 9:2800.56 or § 9:2800.57, Matthews must prove that the characteristic "exist[ed] at the time the product left the control of its manufacturer or result[s] from a reasonably anticipated alteration or modification of the product." La.Rev.Stat. § 9:2800.54(C). Matthews conceivably may have proved that the rifle's characteristics were unreasonably dangerous in design or that they required an adequate warning about the danger, and that these dangers existed when the product rifle left its manufacturer's control. See id. §§ 9:2800.56 and 9:2800.57.
The district court did not consider or decide Matthews' actions based on §§ 9:2800.56 and 9:2800.57, because it erred as a matter of law by applying the wrong definition of "reasonably anticipated use by the claimant," and thus incorrectly held that he had not met this requirement. Because the evidence demonstrates clearly that Matthews was free of any fault in his handling and use of the rifle and that he handled and used the rifle in a manner that the manufacturer should reasonably expect of an ordinary person in the same or similar circumstances, the district court's judgment should be reversed and the case should be remanded to the district court to consider and rule upon Matthews' actions asserting that the rifle is unreasonably dangerous in design as provided in § 9:2800.56, or that the rifle is unreasonably dangerous because an adequate warning about the product was not provided as required in § 9:2800.57.
NOTES
[1] Section 9:2800.54 provides:
A. The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.
B. A product is unreasonably dangerous if and only if:
(1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55;
(2) The product is unreasonably dangerous in design as provided in R.S. 9:2800.56;
(3) The product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in R.S. 9:2800.57; or
(4) The product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product as provided in R.S. 9:2800.58.
C. The characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.55 must exist at the time the product left the control of its manufacturer. The characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.56 or 9:2800.57 must exist at the time the product left the control of its manufacturer or result from a reasonably anticipated alteration or modification of the product.
[2] The dissent does not challenge the two above-discussed critical findings of fact that we can not say are clearly erroneous: the bolt-assembly pin was not in the rifle when Matthews fired it; and Remington should not have expected the rifle to be fired after someone had removed, but failed to reinstall, that pin. (Therefore, the dissent's statements of fact at 2-3, note 3, including about the sale of extra bolt-assembly pins, are of no moment.) The dissent instead challenges only our holding, on de novo review, that the applicable LPLA reasonably-anticipated scope-of-use was not just Matthews' firing the rifle; it was his firing it with the missing bolt-assembly pin.
In advancing a theory not urged by Matthews, the dissent maintains the missing-pin aspect can not, as a matter of law, be attributed to Matthews, akin to his being an innocent bystander. As discussed supra, however, the district court did not find Matthews was not the "someone" who removed, and failed to reinstall, the pin because it was not necessary to do so. Therefore, the dissent repeatedly errs in stating someone other than Matthews did so.
In any event, who did so is irrelevant; what is relevant is the use Remington could "reasonably anticipate[] . . . by the claimant [Matthews] or another person or entity". LA.REV. STAT. ANN. § 9:2800.54(A). In short, for the reasons presented supra, it matters not when the pin was removed and not re-installed and, assuming he was not the person who did so, whether it was outside Matthews' presence. Again, what is relevant, pursuant to the plain language of the LPLA, is the reasonably anticipated use of the product, whether by Matthews or another, including the reason for the missing bolt-assembly pin. Therefore, the dissent's fundamental error is asserting that the applicable scope-of-use should be limited to Matthews' firing the rifle (or, as the dissent erroneously phrases it: "his reasonably anticipated use", Dissent at 649 (emphasis added); and "his own personal use", id. at 654). That analysis writes "or another person or entity" out of the LPLA and converts it from imposing product, to imposing absolute, liability.
[1] It is undisputed that Remington instructed or warned its factory workers to place a finger under the bolt assembly pin hole to prevent the pin from slipping out and becoming lost when assembling the rifle but that Remington did not communicate this instruction or warning to owners or users of the rifles.
[2] The district court found that the pin was missing rather than broken or defective. Matthews continues to argue that the accident was caused by a defective pin, but the district court's ruling that Matthews' use of the rifle was not one that a manufacturer reasonably should anticipate was erroneous as a matter of law, regardless of whether the accident resulted from a missing or a defective bolt assembly pin.
[3] At trial, it was established that Remington was well aware of the dangerous characteristic of this rifle model, but, nevertheless, distributed 500,000 of them without designing out or warning users of this dangerous characteristic. Remington's witness, Mike Keeney, a staff engineer at Remington, testified that the bolt-assembly pins could be lost, and that Remington had sold 145 additional bolt-assembly pins to stocking dealers, factory service representatives, warranty repair centers, or customers who called Remington directly. Matthews also introduced experts' opinions and other evidence to show that the rifle was unreasonably dangerous in design and that Remington had failed to provide an adequate warning of the rifle's dangerous characteristic. These issues were vigorously contested by Remington with expert testimony and other evidence. After trial, however, the district court did not rule on either of these issues or theories of recovery but instead inquired into whether a third person's omission of the bolt assembly pin made the rifle more dangerous than Remington subjectively expected it to be.
[4] Of course, if a claimant contends that he was injured by another person's or entity's use of the product he must prove that the other's use was reasonably anticipated. Here, Matthews contends and has clearly shown that his injuries arose from his own use of the rifle to shoot at a target and that that use reasonably should have been anticipated by the manufacturer. He did not contend that he was injured by the use of the product by another person or entity. Remington is not entitled to amend Matthews' pleadings or presentation of his case so as to require him to prove that his injuries arose from a reasonably anticipated use of the rifle by another person or entity.
[5] Specifically, the district court explained: "The Court concludes that, if Mr. Matthews stated that the `bolt would not lock,' i.e., he meant that he had difficulty operating the action of the rifle, i.e., difficulty operating the bolt handle. The Court further concludes that Mr. Matthews was able to rotate the bolt handle into what appeared to be the closed position prior to pulling the trigger. The Court finds that both he and an ordinary user would have assumed that the rifle was safe to fire at that point, even if the bolt handle had previously been difficult to operate. Accordingly, the Court does not find that Mr. Matthews' use of the rifle was obviously dangerous." Matthews, 2009 WL 2970441, at *4.
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Order filed August 14, 2014
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00518-CV
____________
PIROCHEM INTERNATIONAL, L.L.C., Appellant
V.
XELIA PHARMACEUTICALS APS, F/K/A AXELLIA
PHARMACEUTICALS, APS, Appellees
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2013-36994
ABATEMENT ORDER
We have determined that this case is appropriate for referral to mediation, an
alternative dispute resolution process. See Tex. Civ. Prac. & Rem. Code §§
154.021—.073. Mediation is a forum in which an impartial person, the mediator,
facilitates communication between parties to promote reconciliation or settlement.
Id.§ 154.023(a). Any communication relating to the subject matter of the appeal
made by a participant in the mediation proceeding is confidential. See Tex. Civ.
Prac. & Rem. Code § 154.053. After mediation, the parties shall advise the court
whether the case settled, or whether any further negotiation efforts are planned.
1
The court ORDERS the appeal ABATED for a period of sixty days and
refers the underlying dispute to mediation. Any party may file a written objection
to this order with the clerk of this court within 10 days of the date of this order.
See Tex. Civ. Prac. & Rem. Code § 154.022. If this court finds that there is a
reasonable basis for the objection, the objection shall be sustained and the appeal
reinstated on this court’s active docket. See id.
The court ORDERS that the mediation be held within 60 days of the date of
this order. The court ORDERS that all parties or their representatives with full
settlement authority shall attend the mediation process, with their counsel of
record. The court FURTHER ORDERS that within 48 hours of completion of
the mediation, the parties shall advise the court in writing whether the case settled.
If mediation fully resolves the issues in the case, the court ORDERS the
parties to file a motion to dismiss the appeal, other dispositive motion, or a motion
for additional time to file the dispositive motion, within 10 days of the conclusion
of the mediation.
The court ORDERS the appellate timetable in this case suspended for 60
days from the date of this order.
The appeal is ABATED, treated as a closed case, and removed from this
court’s active docket for a period of sixty days. The appeal will be reinstated on
this court’s active docket after sixty days. Any party may file a motion stating
grounds for reinstating the appeal before the end of the sixty-day period. Any
party may also file a motion to dismiss the appeal or other dispositive motion at
any time. Any party may file a motion to extend the abatement period for
completion of mediation or to finalize a settlement.
PER CURIAM
2
RULES FOR MEDIATION
i. Definition of Mediation. Mediation is a process under which an impartial person, the mediator,
facilitates communication between the parties to promote reconciliation, settlement or understanding
among them. The mediator may suggest ways of resolving the disputes, but may not impose his own
judgment on the issues for that of the parties.
ii. Agreement of Parties. Whenever the parties have agreed to mediation they shall be deemed to have
made these rules, as amended and in effect as of the date of the submission of the dispute, a part of their
agreement to mediate.
iii. Consent to Mediator. The parties consent to the appointment of the individual named as mediator in
their case. The Mediator shall act as an advocate for resolution and shall use his best efforts to assist the
parties in reaching a mutually acceptable settlement.
iv. Conditions Precedent to Serving As Mediator. The mediator shall not serve as a mediator in any
dispute in which he has any financial or personal interest in the result of the mediation. Prior to
accepting an appointment, the Mediator shall disclose any circumstances likely to create a presumption
of bias or prevent a prompt meeting with the parties. In the event that the parties disagree as to whether
the Mediator shall serve, the Mediator shall not serve.
v. Authority of the Mediator. The Mediator does not have the authority to decide any issue for the
parties, but will attempt to facilitate the voluntary resolution of the dispute by the parties. The Mediator
is authorized to conduct joint and separate meetings with the parties and to offer suggestions to assist the
parties achieve settlement. If necessary, the Mediator may also obtain expert advice concerning
technical aspects of the dispute, provided that the parties agree and assume the expenses of obtaining
such advice. Arrangements for obtaining such advice shall be made by the Mediator or the parties, as
the Mediator shall determine.
vi. Commitment to Participate in Good Faith. While no one is asked to commit to settle their case in
advance of mediation, all parties commit to participate in the proceedings in good faith with the
intention to settle, if at all possible.
vii. Parties Responsible for Negotiating Their Own Settlement. The parties understand that the Mediator
will not and cannot impose a settlement in their case and agree that they are responsible for negotiating a
settlement acceptable to them. The Mediator, as an advocate for settlement, will use every effort to
facilitate the negotiations of the parties. The Mediator does not warrant or represent that settlement will
result from the mediation process.
viii. Authority of Representatives. PARTY REPRESENTATIVES MUST HAVE AUTHORITY TO
SETTLE AND ALL PERSONS NECESSARY TO THE DECISION TO SETTLE SHALL BE
PRESENT. The names and addresses of such persons shall be communicated in writing to all parties
and to the Mediator prior to the mediation.
ix. Time and Place of Mediation. The Mediator shall fix the time of each mediation session. The
mediation shall be held at the office of the Mediator, or at any other convenient location agreeable to the
Mediator and the parties, as the Mediator shall determine.
x. Identification of Matters in Dispute. Prior to the first scheduled mediation session, each party shall
provide the Mediator with confidential information in the form requested by the Mediator setting forth
its position with regard to the issues that need to be resolved.
3
At or before the first session, the parties will be expected to produce all information reasonably required
for the Mediator to understand the issues presented. The Mediator may require any party to supplement
such information.
xi. Privacy. Mediation sessions are private. The parties and their representatives may attend mediation
sessions. Other persons may attend only with the permission of the parties and with the consent of the
Mediator.
xii. Confidentiality. Confidential information disclosed to a Mediator by the parties or by witnesses in the
course of the mediation shall not be divulged by the Mediator. All records, reports or other documents
received by a mediator while serving in that capacity shall be confidential. The Mediator shall not be
compelled to divulge such records or to testify in regard to the mediation in any adversary proceeding or
judicial forum. Any party that violates this agreement shall pay all fees and expenses of the Mediator
and other parties, including reasonable attorney's fees incurred in opposing the efforts to compel
testimony or records from the Mediator.
The parties shall maintain the confidentiality of the mediation and shall not relay on, or introduce as
evidence in any arbitral, judicial, or other proceeding: a) views expressed or suggestions made by
another party with respect to a possible settlement of the dispute; b) admissions made by another party
in the course of the mediation proceedings; c) proposals made or views expressed by the Mediator; or d)
the fact that another party had or had not indicated willingness to accept a proposal for settlement made
by the Mediator.
xiii. No Stenographic Record. There shall be no stenographic record made of the mediation process.
xiv. No Service of Process at or near the Site of the Mediation Session. No subpoenas, summons,
complaints, citations, writs or other process may be served upon any person at or near the site of any
mediation session upon any person entering, attending or leaving the session.
xv. Termination of Mediation. The mediation shall be terminated: a) by the execution of a settlement
agreement by the parties; b) by declaration of the Mediator to the effect that further efforts at mediation
are no longer worthwhile; or c) after the completion of one full mediation session, by a written
declaration of a party or parties to the effect that the mediation proceedings are terminated.
xvi. Exclusion of Liability. The Mediator is not a necessary or proper party in judicial proceedings relating
to the mediation. Neither Mediator nor any law firm employing Mediator shall be liable to any party for
any act or omission in connection with any mediation conducted under these rules.
xvii. Interpretation and Application of Rules. The Mediator shall interpret and apply these rules.
xviii. Fees and Expenses. The Mediator's daily fee shall be agreed upon prior to mediation and shall be paid
in advance of each mediation day. The expenses of witnesses for either side shall be paid by the party
producing such witnesses. All other expenses of the mediation, including fees and expenses of the
Mediator, and the expenses of any witness and the cost of any proofs or expert advice produced at the
direct request of the Mediator, shall be borne equally by the parties unless they agree otherwise.
4
Fourteenth Court of Appeals
MEDIATORS REPORT
Date: ____________________________
Christopher A. Prine, Clerk
301 Fannin, Room 245
Houston, TX 77002
Re: Appellate number:
Case style:
In compliance with this court’s order dated ________________________________, I conducted a mediation
proceeding in this case on _____________________________.
The mediation [ did / did not ] result in a [ full / partial ] resolution of the matters in dispute. To my
knowledge, further negotiation efforts [ are / are not ] planned.
The parties and mediator have agreed that the mediator shall be paid as follows:
$_______________________ paid by ______________________
$_______________________ paid by ______________________
$_______________________ paid by ______________________
$_______________________ paid by ______________________
Mediator:
Address:
Telephone
E-Mail Address
Return immediately after mediation to:
14th Court of Appeals; 301 Fannin, Room 245, Houston, Texas 77002
(713) 274-2800
5
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-1707
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Michael A. Green
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: February 14, 2019
Filed: July 12, 2019
____________
Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.
____________
SMITH, Chief Judge.
Michael Green entered a conditional plea of guilty to possession with intent to
distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A). Green conditioned his plea on his retaining the right to
appeal the district court’s1 denial of his motion to suppress evidence seized pursuant
to an inventory search of his vehicle. He asserts on appeal that officers violated the
Grandview, Missouri, Police Department’s tow policy, and therefore the Fourth
Amendment, when they ordered a tow for the disabled vehicle he occupied. He
contends the district court should have suppressed inculpatory evidence obtained
during the vehicle’s inventory search. Upon review, we affirm the denial of the
motion to suppress.
I. Background
On the morning of September 4, 2014, Grandview, Missouri Police Officer
Andrew Bolin answered a call about a suspicious person at 14700 Pine View Drive.
When he arrived on the scene, Officer Bolin found Green asleep in the driver’s seat
of a 1996 Saturn sedan with its hood and trunk open. The car was parked in front of
a stop sign near a busy residential intersection. Officer Bolin ran the license plate.
The plate came back associated with a 1988 Oldsmobile and was registered to a
Katherine Gooch in Boonville, Missouri.
Green awoke and explained to Officer Bolin that he was staying at a nearby
motel and that his car had broken down the night before. When Officer Bolin asked
for his driver’s license, Green produced only an identification card. Officer Bolin
confirmed with dispatch that Green did not have a valid driver’s license. Dispatch
also informed him that Green was on supervision following convictions for burglary
and possession of a controlled substance and was known to be armed.
Officer Bolin asked Green for consent to search the car. Green declined. Green
told him that his girlfriend, Katherine Gooch, owned the car, and provided a phone
1
The Honorable Greg Kays, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable Sarah
W. Hays, United States Chief Magistrate Judge for the Western District of Missouri.
-2-
number, but he then said that the number belonged to a different girlfriend. Officer
Bolin decided to have the car towed because the car was disabled on a public
roadway, blocking an intersection, with improper license plates, and Green did not
have a valid driver’s license even if the car would have started.
Green wanted to remove some of his property from the car, but Officer Bolin
would not release any property that was not clearly identifiable as belonging to
Green. Officer Bolin issued Green two traffic citations and informed him that he was
free to go. Officer Bolin conducted an inventory search and found a zip pouch
containing $500, a bubble pipe, and a baggie containing about three grams of
methamphetamine. He also found two more bags containing 387 grams of
methamphetamine. Green was arrested and later indicted for possession with intent
to distribute methamphetamine. He filed a motion to suppress the evidence
discovered during the inventory search.
Citing the police department tow policy’s definition of a “Custody Tow,” the
district court determined that the tow policy gives an officer discretion to tow a
vehicle when it is “disabled on a public street.” United States v. Green, No. 4:15-cr-
00249, 2017 WL 902907, at *1 (W.D. Mo. Mar. 7, 2017). The district court
concluded that the tow of Green’s disabled vehicle complied with the standardized
towing procedures. Thus, Officer Bolin’s possible investigatory motive in towing the
car and conducting the inventory search did not matter because the car would have
been searched anyway due to its lawful impoundment. Green pleaded guilty following
the district court’s denial of his motion to suppress. As part of a plea deal, Green
reserved the right to appeal the denial of the suppression motion.
II. Discussion
On appeal, Green raises a compound issue: “Does the seizure of a vehicle and
a purported inventory search violate the Fourth Amendment if the police officer
involved does not follow the police department’s tow policy and seizes the car
-3-
because he believes it might be stolen or contain stolen property?” Appellant’s Br.
at 2. This appeal, as Green states it, posits that Officer Bolin violated the Fourth
Amendment by towing the car that Green occupied. Green bases that contention on
two conditions he believes were present at the time the car was towed: (1) Officer
Bolin did not follow the police department’s tow policy, and (2) Officer Bolin’s real
reason for towing the car was his suspicion it might be stolen or contain stolen
property. Green disputes the district court’s interpretation of the tow policy as well
as some of the court’s factual findings. He argues that the vehicle must have qualified
as “abandoned” in order for this tow to have been properly classified as a “Custody
Tow” under the department’s tow policy. He also claims Officer Bolin violated the
policy by not allowing Green to call for a tow himself—an allowance he asserts the
policy’s “Non-custody Tow” procedures mandate. He argues that this violation,
coupled with the officer’s improper investigatory motive, rendered the subsequent
inventory search unreasonable.
We review the district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Sallis, 920 F.3d 577, 581 (8th Cir. 2019). “We
will affirm the district court ‘unless the denial of the motion is unsupported by
substantial evidence, based on an erroneous interpretation of the law, or, based on the
entire record, it is clear that a mistake was made.’” Id. (quoting United States v.
Gunnell, 775 F.3d 1079, 1083 (8th Cir. 2015)).
“The central question in evaluating the propriety of an inventory search is
whether, in the totality of the circumstances, the search was reasonable.” United
States v. Kennedy, 427 F.3d 1136, 1143 (8th Cir. 2005). An inventory search is
reasonable if it is “conducted according to standardized police procedures,” because
doing so “vitiate[s] concerns of an investigatory motive or excessive discretion.”
United States v. Marshall, 986 F.2d 1171, 1174 (8th Cir. 1993).
-4-
“[P]olice may exercise discretion to impound a vehicle, ‘so long as that
discretion is exercised according to standard criteria and on the basis of something
other than suspicion of evidence of criminal activity.’” United States v. Petty, 367
F.3d 1009, 1012 (8th Cir. 2004) (quoting Colorado v. Bertine, 479 U.S. 367, 375
(1987)). This requirement “ensure[s] that impoundments and inventory searches are
not merely ‘a ruse for general rummaging in order to discover incriminating
evidence.’” Id. (quoting Florida v. Wells, 495 U.S. 1, 4 (1990)). But a policy cannot
feasibly give “clear-cut guidance in every potential impoundment situation.” Id. “As
with an inventory search, an impoundment policy may allow some ‘latitude’ and
‘exercise of judgment’ by a police officer when those decisions are based on concerns
related to the purposes of an impoundment.” Id. (quoting Wells, 495 U.S. at 4). Here,
Green challenges Officer Bolin’s decision to order the impoundment of the vehicle
as motivated by investigatory curiosity rather than public safety.
Upon review, we conclude that Green has not shown that Officer Bolin failed
to follow the tow policy in a manner that renders the tow and subsequent search
unreasonable. The policy in question is a portion of the Grandview Police Operations
Manual. The manual provides Standard Operating Procedures for vehicle tows. It
identifies two types of tows—Custody Tows and Non-Custody Tows. The policy
provides the following definition of a “Custody Tow”:
Custody Tow - A vehicle is towed because it is parked illegally, stolen
and recovered, abandoned, disabled on a public street, ordered removed
by the Police Department or other authorized agent of the City because
of a violation of law (including trespass to private property), vehicles
impounded by the Police Department, and vehicles ordered removed
from private or public property by the Municipal Court under the
nuisance ordinances of the City. Tows resulting from accidents are
custody tows if the operator is arrested or incapacitated to the extent that
he is unable to request a tow service.
-5-
Appellant’s Addendum at 1. Officer Bolin faced a factually complex scene in
deciding to tow the car. These facts included: (1) the car was illegally parked in the
lane of traffic; (2) the car’s presence created a public safety hazard by impeding
traffic; (3) the car was disabled and could not move on its own power; (4) vehicles
approaching the intersection behind the car were forced to drive in the opposing lane
of traffic to avoid hitting it; (5) the car’s license plates were registered to another
vehicle, in violation of the law; (6) Green did not possess a valid driver’s license; and
(7) Green had ostensibly been there for hours and had not arranged for the car’s
removal.
The facts surrounding the tow of the car that Green occupied meet the
definition of “Custody Tow” in several respects—e.g., “parked illegally,” “disabled
on a public street,” “ordered removed . . . because of a violation of law.” Green
argues that these facts, however, did not justify the tow because Green had not
abandoned the car. Green favors an interpretation that would treat these facts as only
applicable to an abandoned vehicle.
To support his interpretation of the tow policy, Green points to the “Towing
Procedure for Custody Tows” that follows the definition. The policy first describes
how to order a Custody Tow and how to complete a corresponding tow form, then it
breaks up the procedures under subheadings for abandoned vehicles, accidents,
arrested persons, and stolen/wanted vehicles. The relevant procedures read as
follows:
1.3. Abandoned Vehicles - Employees of the Grandview Police
Department may authorize the contract tow service to remove the
following vehicles to a place of secure storage:
....
-6-
1.3.2. Vehicles disabled to constitute an[] obstruction to traffic, and the
person in charge of the vehicle is unable to provide for its removal.
1.3.3. Illegally parked vehicles placed in such a manner as to constitute
a definite hazard or obstruction to the movement of traffic.
....
1.3.7. Under emergency circumstances where the vehicle restricts the
use of a public street or highway.
1.3.8. Vehicles parked on a public street without license plates, with
plates reported stolen or taken without the consent of the owner.
Appellant’s Addendum at 2. We note that subheading 1.3. presents a departure from
the policy’s general construction: “1.4. Accidents,” “1.5. Arrested Persons,” and “1.6.
Stolen/Wanted Vehicles” stand alone as subheadings, with procedural provisions
following below them. By comparison, subheading 1.3. contains an explanatory
addition, which supports two plausible interpretations of the policy: (1) the provisions
under subheading 1.3. only apply to abandoned vehicles, as generally defined, that
fall into one of the eight listed categories; or (2) the provisions actually define what
constitute “Abandoned Vehicles” for purposes of the policy.
Green argues that “[t]he tow policy does not define what constitutes an
abandoned vehicle” and emphasizes that “[t]he Grandview Municipal Code defines
an abandoned vehicle as ‘any unattended motor vehicle . . . subject to removal from
public or private property as provided in this Article, whether or not operational.’”
Appellant’s Br. at 21–22 (quoting Grandview, Mo., Code of Ordinances art. IX, § 14-
149 (Feb. 22, 2000)). Green asserts that since the car was not “unattended,” Officer
Bolin was instead required to abide by the policy’s “Non-custody Tow” procedures.
These procedures provide that “a citizen requesting assistance in removing their
disabled vehicle may request any licensed tow service located within the City, and the
-7-
Department will attempt to contact them on behalf of the citizen.” Appellant’s
Addendum at 4. Because Green requested assistance in procuring a private tow, he
argues, Officer Bolin should have called for one on his behalf instead of impounding
the vehicle.
The policy’s construction is admittedly not an exemplar of clarity, but the
district court’s interpretation of the policy as authorizing a Custody Tow given the
operative facts was reasonable. First, the Custody Tow definition distinguishes
“abandoned” vehicles from those that are “parked illegally,” “disabled on a public
street,” and “ordered removed” for violations of law, but there are no Custody Tow
provisions that address the latter three categories except under the ambiguous
subheading of “Abandoned Vehicles.” Second, there are no Custody Tow provisions
for trespassing or nuisance vehicles whatsoever, despite their explicit inclusion in the
Custody Tow definition. This suggests that the Custody Tow procedures outlined in
the policy should not be considered exhaustive. Third, as Green concedes, the policy
itself does not precisely define “abandoned.” Instead, the policy gives examples of
abandoned vehicles in subsections 1.3.1. through 1.3.8. A reasonable interpretation
of the policy provides officers a measure of discretion to determine when a vehicle
meets the criteria illustrated by the examples. See Petty, 367 F.3d at 1012 (finding
that a department policy which allowed for police discretion to determine whether a
driver was “available” or a vehicle was “abandoned” constituted sufficiently
standardized procedures). Viewing the record facts, we conclude Officer Bolin’s
decision to inventory and tow the vehicle was based on “something other than
suspicion of evidence of criminal activity.” Bertine, 479 U.S. at 375. We agree with
the district court that Officer Bolin reasonably ordered the impoundment pursuant to
the police department policy’s “Custody Tow” definition.
The decision to impound a vehicle need not “be made in a ‘totally mechanical’
fashion” because “[i]t is not feasible for a police department to develop a policy that
provides clear-cut guidance in every potential impoundment situation.” Petty, 367
-8-
F.3d at 1012 (quoting Wells, 495 U.S. at 4). When Officer Bolin arrived at the scene,
Green was “passed out” in the driver’s seat of the disabled car. Tr. of Hr’g on Mot.
to Suppress at 8, United States v. Green, No. 4:15-cr-00249 (W.D. Mo. Dec. 20,
2016), ECF No. 42. He knew Green did not have a driver’s license and that he did not
own the car. Though the car was inoperable and constituted a public safety hazard,
Green did not appear to have taken any significant steps toward procuring a tow. He
gave confused, if not evasive, answers to the officer’s questions. Officer Bolin’s
refusal to release the vehicle to Green was not unreasonable under these
circumstances. See United States v. Long, 906 F.3d 720, 725 (8th Cir. 2018), petition
for cert. filed, No. 18-9801 (U.S. June 13, 2019).
In Long, we upheld the decision to immediately impound a rental car that had
been parked without permission in a homeowner’s backyard. Id. at 724. Before the
tow truck arrived, the driver returned to the vehicle and explained to officers that he
had parked there to avoid being seen while he visited the nearby home of a girlfriend.
Id. at 722. Although he claimed to have permission to drive the vehicle, which had
been rented in someone else’s name, he did not provide keys and he could not reach
the purported renter. Id. We found that his presence did not “lessen[] the need or the
propriety of towing the vehicle and performing an inventory search” since his
“behavior and explanations” had “left officers with little assurance that it would have
been appropriate to release the vehicle to his control.” Id. at 725.
In this case, it is undisputed that the vehicle required towing, regardless of who
ordered the tow. Officer Bolin decided he needed to act immediately, and he
reasonably questioned the propriety of releasing the vehicle to Green’s control. His
actions were consistent with his role as a community caretaker, and his decision was
largely “based on concerns related to the purposes of an impoundment.” Petty, 367
F.3d at 1012; see also id. at 1011–12 (“Impoundment of a vehicle for the safety of the
property and the public is a valid ‘community caretaking’ function of the police.”
(quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973))); South Dakota v.
-9-
Opperman, 428 U.S. 364, 369 (1976) (“The authority of police to seize and remove
from the streets vehicles impeding traffic or threatening public safety and
convenience is beyond challenge.”).
We also conclude that Officer Bolin did not violate the “Non-custody Tow”
provisions that Green argues must govern this case. That portion of the policy
explicitly grants discretion to officers in dealing with disabled vehicles: “Whenever
an officer considers it necessary to remove a vehicle, he or she may consult with the
owner to obtain a towing firm of their choice if time constraints allow.” Appellant’s
Addendum at 4. If that course of action is for some reason unsatisfactory, “the officer
will contact the city’s contract tow service for immediate removal, and remain at the
scene until the vehicle is removed.” Id. Officer Bolin decided a tow was necessary,
and he knew Green was not the car’s owner. Instead of taking time to track down
Gooch—the car’s owner—Officer Bolin decided to order the immediate removal of
her vehicle, which was broken down, parked in front of an intersection, and bearing
license plates registered to a different car altogether. Even as Officer Bolin was
talking to Green, other vehicles were forced to drive around them, into the opposing
traffic lane, to avoid the obstruction the disabled vehicle caused. The officer was
justifiably concerned about the immediate threat the vehicle posed to public safety,
and he acted within the discretion afforded him by the policy in ordering its
immediate removal. Even if this were considered a “Non-custody Tow,” the policy
provides that “[a]ll vehicles towed at the direction of a police officer shall undergo
an inventory of contents.” Id. Officer Bolin followed the policy by ordering the
inventory search.
We conclude that the decision to impound the vehicle complied with the police
department’s tow policy. Because the impoundment was valid, and because Officer
Bolin’s “sole purpose” for impounding the vehicle was not to investigate criminal
activity, Petty, 367 F.3d at 1013, the corresponding inventory search was reasonable.
-10-
III. Conclusion
We accordingly affirm the district court’s denial of Green’s motion to suppress.
______________________________
-11-
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246 Ind. 446 (1965)
206 N.E.2d 135
STATE OF INDIANA EX REL. GREEN, ETC. ET AL.
v.
GIBSON CIRCUIT COURT ET AL.
No. 30,574.
Supreme Court of Indiana.
Filed April 26, 1965.
*447 Kimmell, Kimmell & Funk, of Vincennes, and McDonald & McDonald, of Princeton, for relators.
Addision N. Beavers, pro se, for respondent.
MYERS, J.
This is an original action for a writ of mandate and prohibition arising from the following facts: In August, 1962, W.A. Sprowls filed an action in the Knox County Circuit Court against the relators. By agreement of the parties, the cause was venued to Gibson County, Indiana, when, after filing a demurrer to the plaintiff's complaint, the relators asked and were granted a change of judge. Hon. Addison N. Beavers was chosen to preside and he qualified on November 6, 1963. On the same day, the relators were ordered to answer. However, pursuant to their request, time for answering was extended. In the meantime, the relators filed a composite dilatory motion in accordance with Rule 1-3A along with a motion to dismiss on the ground that the court lacked jurisdiction over the subject-matter. Relators also made a request for permission to *448 introduce evidence to sustain the motion to dismiss. Both motions and the request to introduce evidence were overruled. Following this, relators filed a motion to reconsider and expunge the court's order from the record. This was overruled. Relators then petitioned this court to mandate the court below to set aside and expunge from the record the above entries and to grant the motion to dismiss, or, in the alternative, to permit relators to introduce evidence in support of the motion to dismiss, or to show cause on a certain day to be fixed by the court.
On April 13, 1964, this court granted to the relators a temporary writ of prohibition and ordered the respondents to show cause why the writ should not be made permanent, in response to which the respondents filed a verified return within the allowed time.
In essence, the plaintiff's complaint filed in the court below states that the plaintiff is the owner of a certain pipe line running on his right of way from a point in the City of Vincennes, Indiana, to a point in Lawrence County, Illinois, and that the defendants and their agents came upon the plaintiff's right of way and destroyed a section of the pipe line found in Lawrence County, Illinois.
The wording of the pertinent rhetorical paragraphs of the plaintiff's complaint is as follows:
"3. That on June 29, 1960, and at all times material hereto, the plaintiff was the owner and in the possession and lawfully entitled to the possession of certain personal property, to-wit: a six (6) inch gas pipe line running generally in a north and south direction from the City of Vincennes, Indiana, to the Russellville Gas Field in Lawrence County, Illinois."
"5. That commencing on or about the 29th day of June, 1960, and at diverse times thereafter, the defendants, and each of them, and their agents and employees, while acting in the course and *449 scope of their agencies and employment entered upon the aforesaid right-of-ways and after having been notified by the plaintiff to cease and desist from so doing and with full knowledge of the plaintiff's right in and to the aforesaid pipe line, with willful and malicious disregard of the plaintiff's rights, cut, broke, mutilated, removed and destroyed approximately one and one-half (1 1/2) miles of the above described pipeline."
Relators claim that the action pleaded by the above rhetorical paragraphs of the complaint is one for trespass to real estate, and that therefore such action should be brought in the county where the land is located. They base their claim on two propositions: (1) That due to the allegation in plaintiff's complaint to the effect that defendants entered upon plaintiff's right of way and removed and destroyed one and one-half (1-1/2) miles of plaintiff's pipe line, the gravamen of plaintiff's action is for trespass because a right of way being an interest in real estate, the action, therefore, is one for trespass to real estate; and (2) that the pipe line itself is real estate and, therefore, the action is one in regard to real estate.
Addressing ourselves to the first of the above-mentioned propositions, we find it to be without merit. Traditionally, it has been held that an action for trespass quare clausum fregit (trespass to real estate) cannot be maintained for an invasion of a right of way or easement. Conner v. The President and Trustees of New Albany (1820), 1 Blackf. 88; 27 West's Ind. Law Ency., Trespass, § 1, p. 517; 52 Am. Jur., Trespass, § 28, p. 857; 87 C.J.S., Trespass, § 17, p. 969. This rule is based upon the principle that trespass actions are possessory actions and that the right interfered with is the plaintiff's right to the exclusive possession of a chattel or land. Heffelfinger v. Fulton (1900), 25 Ind. App. 33, 56 N.E. 688. Thus, since an action for trespass quare *450 clausum fregit cannot be maintained for entry upon a right of way, the allegation in plaintiff's complaint that the defendants entered upon the plaintiff's right of way has no other legal effect than to show that the plaintiff had constructive possession of the pipe line at the time it was damaged by the defendants. Moreover, the wording of the plaintiff's complaint does not sustain the relator's contention that the action alleged is one for trespass to an easement since nowhere does the plaintiff allege in his complaint any damage to his right of way, nor does he ask damages for its invasion.
Relator's second proposition that the pipe line is real estate is also without merit at this stage of proceedings. Relators have practically devoted their entire brief in support of their petition to a discussion of authorities holding that the remedy for injury to land is to be sought in the county where such real estate is located. However, the relators have not shown why the pipe line should be considered real estate. They have not cited any Indiana cases holding that a pipe line per se is real estate though they have discussed several authorities holding that an easement is an interest in land.
The case which the relators cite as authority as holding that pipe lines are realty, Miller County Highway & Bridge District v. Standard P.L. Co. (1927), 19 F.2d 3, 4, is not in point since that case involved assessments on real property under a statute wherein pipe lines were specifically enumerated. There are several Indiana cases which held pipe lines to be personal property. See Perry v. Acme Oil Co. (1909), 44 Ind. App. 207, 88 N.E. 859, and Smith v. Mesel (1949), 119 Ind. App. 323, 84 N.E.2d 477. These two cases, which decided ownership of pipe lines used in drilling for oil, solved the questions involved by reference to the law of fixtures. Consequently, it seems reasonable to decide the *451 matter at hand by reference to that same body of law. If it is shown that the pipe line in question is a fixture, then the action should be brought in Illinois. If, however, it is shown that it constitutes personal property, then it does not appear to be objectionable to permit the plaintiff to sue in Indiana.
Generally, under the law of fixtures, the question as to whether any particular thing which has been attached to land has become part of such land or whether such property remains personal property is a mixed question of law and fact and depends on the particular circumstances of each case. Citizens Bank v. Mergenthaler Linotype Co. (1940), 216 Ind. 573, 25 N.E.2d 444; Peed v. Bennett (1944), 114 Ind. App. 412, 52 N.E.2d 629. Also, in order that a certain item of personal property can be said to have become a fixture, the following elements must exist: (1) Annexation of the article to the land; (2) adaptation of the article to the use of the land; and (3) an intention that the article become a permanent part of the freehold. Citizens Bank v. Mergenthaler Linotype Co., supra, at p. 580 of 216 Ind.
If the jurisdiction over the subject-matter of the case at hand is to be properly decided by the use of the just-stated rule, it is apparent that the Gibson Circuit Court must have before it evidence relating to the various elements which must be considered in order to determine the nature of the pipe lines in question. Therefore, the temporary writ of mandate and prohibition heretofore granted on April 13, 1964, should be modified in that the Special Judge of the Gibson Circuit Court, Gibson County, Indiana, reassume jurisdiction in the case of W.A. Sprowls v. Robert W. Green, d/b/a Green Construction Company, and Parro Construction Corporation, Rochester, Indiana, and that relators herein be permitted to introduce evidence in support of their *452 motion to dismiss as defendants in said cause, and that the plaintiff be permitted to introduce evidence in opposition thereto as to his allegation set forth in his complaint that the damage was to personal property and not to an interest in real estate.
The writ of mandate and prohibition heretofore issued is hereby modified accordingly, and the Special Judge of the Gibson Circuit Court is hereby ordered to reassume jurisdiction in the case of W.A. Prowls v. Robert W. Green, d/b/a Green Construction Company, and Parro Construction Corporation, Rochester, Indiana and to permit such evidence to be introduced pertaining to the motion to dismiss, to make his ruling thereon, and to take such further steps as are necessary for the orderly disposition of said litigation.
Achor and Jackson, JJ., concur.
Arterburn, C.J., not participating.
Landis, J., dissents.
NOTE. Reported in 206 N.E.2d 135.
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504 F.2d 758
*Kellyv.Southern Farm Bureau Casualty Company
74-2956
UNITED STATES COURT OF APPEALS Fifth Circuit
11/19/74
1
N.D.Tex.
2
AFFIRMED***
*
Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N
***
Opinion contains citation(s) or special notations
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575 F.2d 298
Popev.City of Atlanta*
No. 76-3660
United States Court of Appeals, Fifth Circuit
5/19/78
N.D.Ga., 418 F.Supp. 665
AFFIRMED
*
Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966
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692 F.Supp. 1118 (1988)
HEWLETT-PACKARD COMPANY, Plaintiff,
v.
BAUSCH & LOMB, INC., Defendant.
No. C-84-20642 RPA.
United States District Court, N.D. California.
July 22, 1988.
*1119 James P. Kleinberg, McCutchen, Doyle, Brown & Enersen, San Jose, Cal., Jon R. Stark, Holme Roberts & Owen, Denver, Colo., Jonathan A. Marshall, Pennie & Edmonds, New York City, for plaintiff.
Anne L. Enea, Ferrari, Alvarez, Olsen & Ottoboni, San Jose, Cal., Bernard D. Bogdon, Bausch & Lomb Inc., Rochester, N.Y., James W. Colbert, III, O'Melveny & Myers, Lawrence H. Pretty, Pretty, Schroeder, Brueggemann & Clark, Los Angeles, Cal., for defendant.
AMENDED ORDER RE AFFIRMATIVE DEFENSE OF INEQUITABLE CONDUCT
AGUILAR, District Judge.
I. INTRODUCTION.
This action went to trial on April 5, 1988. The case involves a suit by plaintiff Hewlett-Packard Company ("HP") for a judicial declaration that it has not infringed defendant Bausch & Lomb, Inc.'s ("B & L") United States Reissue Patent No. 31,684 (the "Yeiser reissue patent"). B & L has counterclaimed for infringement. In support of its position, HP has raised the affirmative defense of inequitable conduct. Specifically, HP contends that B & L committed inequitable conduct before the patent office *1120 in procuring the Yeiser reissue patent. This alleged inequitable conduct primarily consisted of the submission of two declarations and two affidavits in support of the reissue application which B & L knew (or absent grossly negligent conduct, should have known) contained blatantly false information.
Shortly before trial, HP filed a motion for summary judgment arguing that because the two affidavits submitted by B & L in obtaining the Yeiser reissue patent were false and were essential to the patent examiner's ruling, the reissue patent is invalid. The motion was granted from the bench on March 18, 1988. The Court ruled that Yeiser reissue patent claims 10-12 were invalid due to the falsity of the affidavits, but the Court refused at that point to nullify claims 1-9 of the reissue patent which were carried over substantially unchanged from the original and untainted patent application. On that same day, the Court sua sponte asked the parties to brief the issue of whether and under what circumstances a district court could nullify all the claims of a reissue patent in light of egregious misrepresentations contained in materials supporting an application for a reissue patent.
After a two week briefing schedule, on April 1, 1988, the Court heard oral argument on the motion for summary judgment as against claims 1-9 of the reissue patent. At the conclusion of the argument, the Court denied the motion for summary judgment finding that there remained a triable issue of material fact. Specifically, there remained a factual question whether B & L intentionally deceived the United States Patent and Trademark Office ("PTO") or was grossly negligent in seeking and gaining the Yeiser reissue patent.
Subsequently, on the morning of the opening day of trial, April 5, 1988, the Court issued a brief order stating its rulings on the various motions raised by the parties and setting forth the schedule for trial. In the order, the Court stated that a fuller explanation of the bases of its rulings would issue at the conclusion of the trial of HP's affirmative defense of inequitable conduct by B & L in obtaining the Yeiser reissue patent. In the sections that follow, the Court will set forth its findings and analysis in connection with its prior rulings; will describe the legal issues presented by HP's affirmative defense of inequitable conduct vis-a-vis the reissue application; and will make findings of fact and state conclusions of law with respect to the merits of HP's assertion of inequitable conduct against B & L. As explained below, the Court will declare unenforceable all remaining claims of the Yeiser reissue patent because of B & L's inequitable conduct before the PTO.
II. HP'S MOTION FOR SUMMARY JUDGMENT BASED ON B & L'S FAILURE TO COMPLY WITH THE "REISSUE OATH OR DECLARATION" REQUIREMENT.
(A) Preface:
In this motion, HP seeks a judicial declaration that the Yeiser reissue patent is invalid.[1] The alleged basis for invalidity is that B & L made factually incorrect representations to the patent examiner when seeking a reissue of its original patent. Because the representations were incorrect, as proved by later evidence which was submitted to the Court in connection with this motion, HP contends that the representations should be ignored. Absent the representations, B & L cannot be said to have complied with the regulations regarding reissue applications because B & L did not present evidence to the patent examiner explaining why and how the original patent application was flawed. Without such evidence, the patent examiner could not have authorized the reissue application and, therefore, the Yeiser reissue patent is invalid as a matter of law.
B & L's defense to this motion is twofold. First, B & L argues that as a matter of law the nine claims of the original patent which are identical to and not affected by *1121 the reissue application should not be nullified.[2] Second, B & L contends that there are material issues of fact regarding the alleged misrepresentations as they affect the three claims added by the reissue patent application.
(B) An Overview of the Reissue Process:
Reissue is one of four ways that a defective patent may be remedied. The other three ways are (1) by the issuance of a certificate of correction, (2) by disclaimer, and (3) by reexamination. See Manual of Patent Examining Procedure (5th ed. 1983) at 1400-1. The most common grounds for seeking to reissue a patent are (1) claims are too narrow or too broad; (2) the disclosure contains inaccuracies; (3) applicant failed to or incorrectly claimed foreign priority; and (4) applicant failed to make reference to or incorrectly made reference to prior co-pending applications. Id.
The framework and procedure for the reissue of patents such as the Yeiser reissue patent in this case is governed by statute. The key patent reissue statute is 35 U.S.C. § 251 which provides in relevant part:
Whenever any patent is, through error without any deceptive intention, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Commissioner shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue.
The concept employed in the reissue statute is that the inventor takes his patent to the patent examiner for a second look to clarify and amend any deficiencies. See In Re Weiler, 790 F.2d 1576, 1579 (Fed.Cir. 1986) ("Congress provided a statutory basis for correction of `error'"). A clear explanation of this process is provided in the following passage from Bally Mfg. Corp. v. Diamond, 629 F.2d 955, 957 (4th Cir. 1980):
The reissue process traditionally has provided a mechanism whereby an inventor who, through error and without any deceptive intention, has been granted a defective patent, may obtain a valid patent conforming to the true scope of his invention. Ordinarily, the patentee submits his previously issued patent, 37 CFR § 1.178, and files an affidavit stating the reason he believes it to be wholly or partly invalid, 37 CFR § 1.175. He also is required to file a reissue application containing the entire specification and claims of the original patent, with proposed deletions bracketed and proposed additions underlined, 37 CFR § 1.173. A patent examiner reexamines all claims included in the reissue application as if they were presented in an original application, 37 CFR § 1.176. If he finds the previously issued patent "wholly or partly inoperative or invalid", 35 USC § 251, the examiner determines whether the applicant is entitled to a patent under the reissue claims. If a reissue is refused, whether because the previously issued patent is entirely valid or because the reissue claims do not describe a patentable invention, the original patent will be returned to the applicant upon his request, 37 CFR § 1.178. Reissue patents are entitled to the same presumption of validity as original patents. [citations omitted]
See also 4 Lipscomb's Walker on Patents (3d ed. 1985) § 14.1.
The actual procedure used in reissuing patents is contained in the Code of Federal Regulations. See 37 C.F.R. §§ 1.171-1.179 (July 1987). The current regulations are slightly different than those in effect at the time that B & L made its reissue application. *1122 As suggested above in the case of Bally Mfg. Corp., 629 F.2d 955 (4th Cir. 1980), in seeking a reissue patent the inventor is basically initiating anew the patent process, starting with his original patent, indicating its errors, and applying to make specific corrections. One aspect of the reissue process that is unique, however, is the inclusion of a reissue oath or declaration by the applicant stating specific details regarding the grounds for seeking a reissue. At the time of B & L's application, the regulations regarding the oath or declaration read as follows:
§ 1.175 Reissue oath or declaration.
(a) Applicants for reissue, in addition to complying with the requirements of the first sentence of § 1.65, must also file with their applications a statement under oath or declaration as follows:
(1) When the applicant verily believes the original patent to be wholly or partly inoperative or invalid, stating such belief and the reasons why.
(2) When it is claimed that such patent is so inoperative or invalid "by reason of a defective specification or drawing," particularly specifying such defects.
(3) When it is claimed that such patent is inoperative or invalid "by reason of the patentee claiming more or less than he had the right to claim in the patent," distinctly specifying the excess or insufficiency in the claims.
(4) [Reserved]
(5) Particularly specifying the errors relied upon, and how they arose or occurred.
(6) Stating that said errors arose "without any deceptive intention" on the part of the applicant.
(7) Acknowledging a duty to disclose information applicant is aware of which is material to the examination of the application.
(b) Corroborating affidavits or declarations of others may be filed and the examiner may, in any case, require additional information or affidavits or declarations concerning the application for reissue and its object.[3]
(C) The Legal Authority to Invalidate a Reissue Patent For Failure to Comply With Regulatory Standards:
HP's argument in this motion is that the Yeiser reissue patent is invalid because it was based on factual misstatements or misrepresentations made in the statements provided in satisfaction of 37 C.F.R. § 1.175. The critical statements provided to the patent examiner in support of the reissue application were two affidavits of the original patent agent, Lawrence Fleming.[4] The patent examiner relied on these *1123 affidavits to reissue the patent. However, HP now contends that discovery has disclosed that all material statements made in the Fleming affidavits were erroneous.
Absent these factual misstatements, B & L had nothing of substance to report to the patent examiner. Without evidence explaining how the asserted error arose or occurred, B & L failed to satisfy the reissue oath regulations. HP succinctly stated this logic in one section of its moving brief:
To decide the present motion, this Court need investigate only the limited issue of whether the Fleming affidavits misstated material facts as to how the error arose or occurred. An affirmative finding on that issue means that there were no facts in the PTO record in support of the defective reissue Declaration upon which the examiner could have made the mandated determination that the Yeiser reissue application was proper. Consequently, under the applicable rule of law, the PTO was without authority to grant the reissue, and the Yeiser reissue patent is void.
HP Moving Brief at 4 (emphasis in original).
B & L counters this argument with several contentions of its own. First, B & L asserts that there is no precedential support for judicial nullification of a reissue patent for lack of satisfaction of the oath/declaration requirement. This assertion is wrong, as demonstrated by the cases cited by HP. In Application of Wittry, 489 F.2d 1299, 1303 (C.C.P.A.1974), the predecessor of the Federal Circuit affirmed the denial of a reissue patent on the ground of "insufficiency of the reissue declarations." HP also cites five other cases in support of the proposition that a court may declare a reissue patent void for failure to comply with the requirements attendant to the reissue statute or regulations. Union Switch & Signal Co. v. Louisville Frog, Switch & Signal Co., 73 F.2d 550 (6th Cir.1934); Firestone Tire & Rubber Co. v. United States Rubber Co., 79 F.2d 948 (6th Cir.1935), cert. denied, 298 U.S. 679, 56 S.Ct. 945, 56 S.Ct. 946, 80 L.Ed. 1399 (1936); General Radio Co. v. Allen B. DuMont Laboratories, Inc., 129 F.2d 608 (3d Cir.1942), cert. denied, 317 U.S. 654, 63 S.Ct. 50, 87 L.Ed. 526 (1942); Dill Mfg. Co. v. J.W. Speaker Corp., 83 F.Supp. 21 (E.D. Wis.1949), aff'd., 179 F.2d 278 (7th Cir.), cert. denied, 340 U.S. 818, 71 S.Ct. 48, 95 L.Ed. 601 (1950). These cases are not particularly recent, but they do support HP's position.
Aside from the litany of cases discussing the particular problem, it makes sense that a court should be able to invalidate a reissue patent if it was improvidently granted. This is certainly true when an original patent is found to be procured as a result of fraud or inequitable conduct, or when the patent was issued despite a failure to satisfy the statutory requirements, such as non-obviousness. See, e.g., Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); State Industries, Inc. v. Rheem Mfg. Co., 769 F.2d 762, 764 (Fed.Cir.1985). The same must be true with respect to reissue patents. Inequitable conduct implicating a material aspect of a reissue application is grounds for nullification of a patent. See, e.g., Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 54 S.Ct. 146, 78 L.Ed. 293 (1933); State Industries, Inc. v. Rheem Mfg. Co., 769 F.2d 762, 764 (Fed.Cir.1985).
Similarly, if the standards of the statute or implementing regulations are not met, "section 251 stands as a statutory bar to reissuance of claims, just as sections 102 and 103 might stand as a bar to the issuance of claims." Digital Equipment Corp. v. Diamond, 653 F.2d 701, 710 (1st Cir.1981). On review, a district court must have the authority to enforce the statutory bar of § 251 in the same degree as it enforces the bars to patent validity articulated in § 102 (dealing with novelty and loss of right to patent) and § 103 (dealing *1124 with non-obviousness of subject matter). Thus, this Court has the authority to review a reissue patent for purposes of determining its validity in light of alleged deficiencies or improprieties in its procurement.
The next question is the character of the district court's review of the validity of the reissue patent. As quoted earlier, HP's argument is that once the Court finds that Mr. Fleming's affidavits are factually erroneous, and concludes that there was no basis in the record before the patent examiner for granting the reissue application, the Yeiser reissue patent should be declared invalid. B & L offers a clever rejoinder. B & L contends that the very cases cited by HP establish that the district court must determine on the merits whether there was reissuable error. In other words, even if the reissue application itself was deficient, are there facts going to show that there was an error that formed a legitimate basis for a reissue application?
In support of its assertion, B & L relies on a passage from the Third Circuit's opinion in General Radio Co.:
Whether the error relied upon in support of an application for reissue was due to inadvertence, accident or mistake is of course a question of fact for determination by the commissioner. [footnote omitted] By granting the reissue patent the commissioner must be deemed to have found the fact in favor of the applicant. However, where there is an entire absence of evidence, it is the duty of the court to review and correct the error.
129 F.2d at 612, citing Union Switch, 73 F.2d 550 (6th Cir.1934).
Upon first glance, this quotation seems to support B & L's position that even if the Fleming affidavits are eliminated as erroneous or false, the Court still must make an independent determination now of whether there were grounds for a reissue error under 35 U.S.C. § 251.[5] However, B & L is incorrect for reasons that it itself has pointed out. B & L has argued that all of the cases cited by HP, including General Radio, involve "reissue oaths or declarations [that] literally were bald assertions of reissuable `error.'" B & L Opposition Brief at 16. (emphasis in original). In contrast, the patent examiner in this case did not have "an entire absence of evidence" to determine whether a reissue error existed he had the affidavits of Mr. Fleming which were not devoid of specifics. Indeed, B & L vociferously argues this point late in its brief. See Opposition Brief at 28 (section entitled "The Fleming Affidavits Would Have Been Adequate With Far Less Detail"). Thus, unlike the oath in General Radio, the affidavits in this case did contain some specifics and the above language in General Radio is not applicable to this case.
In addition, the court in General Radio was reviewing a reissue patent that had been granted despite "an entire absence of evidence." 129 F.2d at 612. Yet by granting the reissue, "the commissioner must be deemed to have found the facts in favor of the applicant." Id. In such circumstances, the court stated that it had the duty of attempting to ascertain what those facts were that presumably supported the applicant and formed the basis of the reissue approval. In essence, this is an expression of deference to the Commissioner of Patents and Trademarks, i.e., the court will not strike down a reissue patent until it has scrutinized the evidentiary basis for the patent examiner's decision.
In this case, there is no mystery about the nature of the evidence that formed the basis of the patent examiner's decision. It is clear that Mr. Fleming's affidavits were crucial evidence upon which the patent examiner relied in making his determination. In reviewing the reissue patent, a court need only consider the evidence that was before the patent examiner. In this case, that evidence consists primarily of Fleming's affidavits. Hence, B & L's reliance on General Radio is misplaced, for the decision squarely supports HP's position.
*1125 Aside from its case-law argument, B & L offers one other point of resistance to HP's logic. B & L contends the cases cited by HP are distinguishable from and their logic inapplicable to this case because none of the cases involve a situation wherein the reissue oaths or declarations appeared adequate on their face. Although not spelled out clearly, B & L appears to argue that once a prima facie case of a valid oath is established, then the patent examiner had the authority to grant the reissue application. According to B & L, in litigation contesting the validity of the reissue patent, the challenger has the burden of showing that on the true state of facts, a reissuable error did not exist. Thus, HP would have the burden here of establishing that as a matter of fact there were no grounds for the patent examiner's conclusion to grant the reissue patent.
Despite its sophistication, there are two major problems with B & L's argument. First, there is no case law or clear statutory law supporting this position. This silence speaks for itself. Second, B & L has confused the allocation of the burden of proof relative to the issue of invalidity.
As the regulations make clear and as expressed in the cases, the applicant "who wishes to obtain the benefits of the reissue statute must make a specific showing of the circumstances" that led to the error. General Radio, 129 F.2d at 612; see also 35 C.F.R. § 1.171 ("An application for reissue must ... comply with the requirements of the rules relating to reissue applications.") The burden in the first instance is on the applicant properly to obtain a reissue patent, the same as it is was on the applicant in originally procuring a patent. Once a patent is issued, the burden is on the challenger to establish invalidity by "clear and convincing evidence." Fromson v. Advance Offset Plate, Inc., 755 F.2d 1549, 1555 (Fed.Cir.1985); 35 U.S.C. § 282. The same standard applies with respect to reissue patents except the standard for showing invalidity is heightened by the quantum of weight given to a second examination and approval by the PTO. See Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1139 (Fed.Cir.1985).
In a reissue case as in any patent case, it is not necessary for the party seeking to prove invalidity to revisit the entire patent application process and show that there is no way on earth that a patent could have issued. Rather, it is enough to show that with respect to the specific patent, or reissue patent, any one statutory requirement has not been satisfied. In the case of a patent, for example, invalidity naturally flows from a showing that the patented invention was obvious, or was previously disclosed. To make this determination, the district court would examine all the information presented to the patent examiner plus any additional information that has come to light on the subject of obviousness. There is no need to unearth and examine all the other potential grounds for invalidity.
Similarly, in this case, to demonstrate invalidity it is enough for HP to show, by clear and convincing evidence, that B & L failed to satisfy the legal oath or declaration requirement. The Court can make the determination whether HP is correct by reviewing the evidence presented to the patent examiner. B & L has the burden of establishing grounds upon which an error could be found as the cause of its failure to frame properly its original patent application. See In Re Weiler, 790 F.2d 1576, 1582-83 (Fed.Cir.1986).[6]
To sum up, B & L has the burden of showing reissuable error. In view of the patent examiner's finding of reissuable error, the burden is on HP to show that the *1126 patent examiner was wrong. However, that is not the end of the process. B & L is correct that normally it is not enough to simply look at the affidavits, find them lacking, and declare the reissue patent invalid. B & L must be given an opportunity to prove reissuable error by other evidence presented to the PTO during the original application. This is little solace to B & L because no other evidence was presented to the patent examiner showing reissuable error.
(D) Was B & L's Reissue Application Obtained Improperly?
The Yeiser reissue application process is discussed in more elaborate detail below in connection with the topic of inequitable conduct. For purposes of HP's motion, only one issue is relevant: were the oaths or affidavits submitted by B & L to the PTO in support of the reissue application insufficient or false?
In support of its reissue application, on November 15, 1982, B & L submitted the declaration of its Vice President, George More. The More declaration stated that the defect in the original patent application was a failure to include claims dependent on claim 1. The alleged basis for the error was simply "oversight" by Mr. Yeiser or his attorney. More provided no other explanation for the omission.
Quite properly, the patent examiner rejected the More declaration as insufficient because it failed "to specify the errors relied upon" or to "specify how the error arose or occurred." Exh. 44, PX 19, Tab 7. In particular, the patent examiner stated:
The declaration is ... insufficient because it does not specify how the error arose or occurred. The statement that the alleged errors occurred or arose because of oversight on the part of the inventor or his attorney does not specify in detail how and why such an oversight occurred. A declaration from the original attorney may be in order.
Thus, the patent examiner clearly and properly stated that the declaration of Mr. More submitted to satisfy the oath requirement was insufficient under 37 C.F.R. § 1.175(a)(5).
In response to patent examiner's rejection, on September 14, 1983, B & L submitted the affidavit of Lawrence Fleming, the patent agent responsible for procuring the original patent. Relevant portions of the first Fleming affidavit follow:
3. During the preparation and prosecution of [the original] Patent Application ..., his [Fleming's] contacts and ability to communicate with the inventor, Mr. Yeiser, were significantly limited by Mr. Yeiser's activities ... His contacts with Mr. Yeiser during the prosecution of the application were at best infrequent.
4. The only guidance given the undersigned by Mr. Yeiser during the preparation and prosecution of [the original Yeiser application] was a memorandum dated July 7, 1970.... [T]he memorandum is silent as to what scope and breadth of claims should or could be obtained.
5. His only contact with L.D.C. Inc. [the assignee of the application and Yeiser's employer], was Mr. R.J. Tarantino, its President, ... but ... Mr. Tarantino [did not provide] any substantive help or guidance to him during the prosecution of the patent application ...
6. The aforesaid business and personal activities of the inventor, Mr. Yeiser, and his assignee worked, inadvertently, to substantially cut off intercommunication with the undersigned. Had further communications and guidance been received, it is his belief that claims which further define and distinguish the invention from the prior art could have been drafted and allowed. [emphasis added]
After consideration of B & L's second submission, the patent examiner again properly rejected B & L's application. Again, the patent examiner found that B & L had not specified "a reissuable error." Exh. 44, PX 19, Tab 17. For purposes of this motion, the crucial finding, however, was that:
The reissue oath or declaration filed with this application is objected to because it fails to particularly specify how the errors relied upon arose or occurred, as required by 37 CFR § 1.175(a)(5). The declaration states the errors occurred because *1127 of oversight on the part of the inventor or his attorney in connection with the preparation and prosecution of the application. The declaration is considered deficient because it does not particularly specify how the errors arose. How and when did the errors arise? For example, who determined the scope of the original claims to be submitted with the patent application? Who determined the final scope of the patent claims? When were these determinations performed? The declaration is also considered deficient as to how and when the errors were discovered. For example, by whom and when was it determined that an error had occurred. (emphasis added)
It is clear that the patent examiner had a valid and proper basis for rejecting the first Fleming affidavit. Under 37 C.F.R. § 1.175(a)(5), Fleming had not explained how the error arose. Absent a specific explanation, the affidavit was insufficient as a matter of law.[7]
On November 22, 1983, one of B & L's attorneys, Howard Robbins, interviewed the patent examiner to clarify the basis for the rejection of the first Fleming affidavit. Subsequently, on March 27, 1984, B & L submitted the second ("supplemental") affidavit of Lawrence Fleming. The relevant text of the affidavit stated:
4. The inventor, Mr. Yeiser, had made one crude model of the invention and this model was made available for him to review, on only one occasion for about two hours, to effect disclosure of the invention.
5. The scope of the claims for U.S. Patent No. 3,761,950 was determined solely by him, based upon this brief disclosure and his knowledge and experience as an engineer and patent practitioner. In making this determination concerning the scope of the claims no discussions were had with Mr. Yeiser as a result of the events explained in his Affidavit of September 14, 1983.[8]
6. He was well acquainted with Mr. Yeiser at the time the application for U.S. Patent No. 3,761,950 was written and prosecuted, having previously drafted and prosecuted several patent applications for inventions by Mr. Yeiser. Based upon this close acquaintanceship, he believes Mr. Yeiser was not cognizant of the significance of several aspects of the invention embodied in U.S. Patent No. 3,761,950, because only one crude model existed from which all aspects of the invention could not be appreciated, and because Mr. Yeiser, having just sold his business, no longer had a commercial interest in plotters and ... was left to and did himself determine what scope and breath [sic] of claims should and could be obtained. (emphasis added)
Finally, on April 17, 1984, in response to B & L's final submission, the patent examiner withdrew his prior objections to the application for reissue of the '950 patent. The patent examiner stated that the "original Declaration has been reconsidered together with the Supplemental Fleming Affidavit. They are [now] considered sufficient Declaration under 37 CFR [§] 1.175." Exh. 44, PX 19, Tab 26. Thus, it was the second Fleming affidavit which overcame the patent examiner's objections and was found to satisfy the oath requirement of the regulations. The question raised here is whether that affidavit was accurate.
(E) The Truth Regarding Fleming's Contacts With Yeiser and the Other Points in Support of Reissuable Error Raised in the Fleming Affidavits:
HP points out several discrepancies in Fleming's affidavits which essentially void *1128 them as a basis for the patent examiner's finding of reissuable error. HP's premise, which is amply supported by the facts, is that these affidavits were the keys to the grant of the reissue patent. There is no question that these affidavits secured the reissue patent for B & L. Thus, if HP can refute the Fleming affidavits, in particular the second one, B & L will be left without reissue claims because the patent examiner had no other basis to grant a reissue patent. The four main points made by HP are that:
(1) Fleming had numerous contacts with Yeiser during the pendency of the reissue application;
(2) Yeiser was aware of the importance of the "friction drive" and provided material help and guidance in formulating the scope of the reissue claims;
(3) LDC executive Tarantino was consulted on numerous occasions during the pendency of the application; and
(4) Yeiser spent a significant amount of time during the critical period in personally developing the commercial version of his device.
HP has obtained Fleming's notebooks kept during the time period in question.[9] Although ostensibly undecipherable to this Court's eye, the parties agree that these records show that Fleming and Yeiser met in person, spoke on the phone, or exchanged correspondence sixty seven (67) times during the period of preparation and prosecution of the original patent application. B & L does not deny these contacts. This revelation destroys Fleming's claim in his affidavit that he and Yeiser, the inventor, had limited contacts during the creation of the patent application.
In addition, there are several pieces of evidence showing that Yeiser and Fleming had discussions about the patent application beyond the July 7, 1970 memorandum which the Fleming affidavit reported to be the "only guidance" given by Yeiser. Fleming and Yeiser spoke on the phone (PX 368, Fleming deposition at 356-57), Yeiser read the patent application in Fleming's presence (PX 368, Fleming deposition at 453), and the two men discussed prior art as well as claim strategies prior to prosecution of the original patent (PX 368, Fleming deposition at 244). All these contacts contradict and destroy the validity of Fleming's statement regarding his contacts with Yeiser and his wholly unaided hand in fashioning the scope of the claims.
Also, in contradiction of both of his affidavits but especially the first, Fleming had substantial contacts with R.J. Tarantino, the President of LDC, during the relevant time period. Once again, LDC employed Yeiser and was the assignee of the application. Fleming's notebooks show fifty three (53) contacts between himself and Tarantino in the relevant time period. Thus, rather than having his communications with Tarantino and Yeiser "cut off" as he suggests in his first affidavit, Fleming had substantial and consistent contacts with both individuals. In short, Fleming's first affidavit is not only technically deficient, but substantively inaccurate.
Fleming's second and decisive affidavit is no more accurate than the first submission to the PTO. For example, Fleming stated that Yeiser had only a crude model upon which to analyze his patent and therefore made unintentional errors in preparing his original patent application. However, deposition testimony establishes that the Yeiser *1129 plotter which was the subject of the patent was delivered to potential customers for testing some three months before the patent application was filed (PX 374, McKaughan deposition at 12, 14, 22). An operative prototype of the plotter was exhibited at a trade show the month of the filing of the patent application (PX 383, West deposition 125-26). The patent file history itself contains reference to existing commercial models.
The fact that not only a model, but an actual working device was available, in addition to the contacts between Fleming, Yeiser, and Tarantino, belies the second affidavit's assertion that Fleming himself determined the scope of the claims. In his deposition, Fleming stated that most laymen are not interested and are not able to read patent claims. However, it is Fleming's practice to ask inventors what they consider significant about their invention a lay person's approach to the issue of what should be included in the claims. Fleming stated:
I did ask Yeiser, as I always asked inventors, which features and elements they consider the more significant and which the less significant and which one they feel should be covered in the claims, and to indicate some sort of a priority list or list of relative importance or significance, which he did. (emphasis added)
See PX 368, Deposition of Lawrence Fleming at 634.
This admission, in conjunction with other deposition testimony and other facts highlighted by HP, makes it clear that Fleming's second affidavit was flatly wrong in stating that Yeiser had no role in formulating the patent application. Yeiser was aware that "[o]ne of the main advantages of this type of X-Y is that the friction drive permits the use of easily available unperforated graph paper in a moving chart X-Y." PX 19, Tab 14, July 7, 1970 Memorandum from Jack Yeiser to Larry Fleming. Furthermore, Yeiser aggressively played a role in developing the plotter for commercial use, see PX 383 Deposition of John L. West,[10] and had repeated contact with Fleming during the preparation and prosecution of the original patent application. Consequently, it is clear that Fleming's second affidavit, like his first, is riddled with errors and misstatements, providing no basis to support a showing of reissuable error.
(E) B & L's Counter Argument:
B & L raises ten different arguments in support of the position that there remain triable issues of material fact regarding the validity and accuracy of the Fleming affidavits. None of the arguments is convincing enough to warrant discussion. B & L is groping for straws suggesting that Fleming misunderstood the situation or that despite the numerous contacts and other evidence, Yeiser really had nothing or virtually nothing to do with the original patent application. No reasonable jury could find in B & L's favor on these arguments. See Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Consequently, the Court rejects them all.
Finally, B & L argues that the Fleming affidavits were sufficient to show reissuable error even without the erroneous information. This is a throw-away argument, because it is clear that the patent examiner found at least the first affidavit itself inadequate for the task of showing error. The second affidavit merely bolstered the same arguments for reissuable error that were *1130 present in the first affidavit. All of these bases were erroneous as explained above. To wit, contrary to paragraph 4 of the second affidavit, Yeiser had more than a crude model, on one occasion, for two hours, to effect disclosure of the invention. Contrary to paragraph 5, Fleming did not alone determine the scope of claims of the patent based upon the "brief disclosure" of two hours referenced in paragraph 4. Moreover, Fleming has since admitted that he had discussions with Yeiser in flat contradiction to his statement in paragraph 5. Finally, the last paragraph of the second Fleming affidavit, paragraph 6, merely repeats the false information described earlier and adds the erroneous statement that Yeiser "no longer had a commercial interest in plotters and was not focussing on such matters." In fact, the West deposition testimony establishes that Yeiser was the chief engineer responsible for overseeing the commercial development of the plotter, that Yeiser had an active hand in developing the plotter for commercial purposes, and that no development of the product took place after Yeiser left Florida in 1974.
(G) Summary of the Factual Issues Re HP's Summary Judgment Motion:
HP has established clearly that the Fleming affidavits which were the basis for the grant of the reissue patent are replete with false or erroneous statements. B & L has raised no triable issue of fact which contradicts HP's showing. Further, B & L has not and can not point to any evidence supporting its position that the reissue application was properly granted because of reissuable error in the original patent application. Accordingly, the Court grants HP's motion for summary judgment and declares the Yeiser reissue patent invalid.
III. THE EFFECT OF GRANTING SUMMARY JUDGMENT DECLARING THE YEISER REISSUE PATENT INVALID.
Having concluded that the reissue patent must be declared invalid, there remains the question of the effect of such a ruling. The reissue patent contains 12 claims, but claims 1-9 are identical to the claims in the original patent. Only claims 10-12 were added through the reissue process. HP is charged with infringing five claims: claims 1, 2, and 10-12. HP contends that once the reissue patent is invalidated, all claims are extinguished. B & L argues in response that, at worst, only claims 10-12 should be extinguished with the nullification of the reissue patent and claims 1-9 should remain.
When a reissue patent is denied, under the regulations "the original patent will be returned to [the] applicant upon his request." 35 C.F.R. § 1.179. On the other hand, if the reissue patent is granted, the original patent is surrendered. The statute spells out the effect of reissue as follows:
The surrender of the original patent shall take effect upon the issue of the reissue patent, and every reissued patent shall have the same effect and operation in law ... as if the same had been originally granted in such amended form ... to the extent that [the reissue patent's] claims are identical to the original patent, [it] shall constitute a continuation thereof and have effect continuously from the date of the original patent.
35 U.S.C. § 252.
Thus, in this case the original patent has ceased to exist. Although part of the original patent not affected in the reissue process, claims 1-9 only exist as part of the Yeiser reissue patent. If the reissue patent is entirely voided as HP contends, then those claims also will cease to exist. The effect would be particularly draconian for B & L, for its reissue application never questioned the correctness of claims 1-9.
In addressing the status of the "carryover" original nine claims, the parties offer conflicting legal authority. Arguing that all twelve claims should be nullified, HP offers, inter alia, the cases of Riley v. Broadway-Hale Stores, Inc., 114 F.Supp. 884 (S.D.Cal.1953), aff'd, 217 F.2d 530 (9th Cir.1954), and General Radio Co. v. Allen B. Dumont Laboratories, Inc., 129 F.2d 608 (3d Cir.1942), cert. denied, 317 U.S. 654, 63 S.Ct. 50, 87 L.Ed. 526 (1942). B & *1131 L counters seeking the preservation of the original nine claims citing the Supreme Court case of Gage v. Herring, 107 U.S. 640, 2 S.Ct. 819, 27 L.Ed. 601 (1883), and the opinion of Judge Learned Hand in Foxboro Co. v. Taylor Instrument Companies, 157 F.2d 226 (2d Cir.1946), cert. denied, 329 U.S. 800, 67 S.Ct. 494, 91 L.Ed. 684.
The most interesting aspect of the legal analysis is the apparent conflict or inconsistency among three Supreme Court cases decided at the end of the Nineteenth Century. In Gage v. Herring, 107 U.S. 640, 2 S.Ct. 819, 27 L.Ed. 601 (1883), the Supreme Court clearly expressed the view that the invalidity of claims added by reissue does not "impair the validity of the original claim which is repeated and separately stated in the reissued patent." Id. at 646, 2 S.Ct. at 824. Subsequently, in the case of Eby v. King, 158 U.S. 366, 15 S.Ct. 972, 39 L.Ed. 1018 (1895), the Supreme Court revisited the issue and, although citing Gage, ignored the ruling of Gage, treating the question as one of first impression. As phrased in Eby, the issue is the effect of the surrender of the reissue patent and whether a patentee wagers all or nothing with his original claims when he seeks a reissue patent. The Court in Eby merely raises the question and then deliberately avoids resolving it by deciding the case on a different ground.
Two years later, in Allen v. Culp, 166 U.S. 501, 17 S.Ct. 644, 41 L.Ed. 1093 (1897), the Court confirmed that Eby had raised but not answered the question "[w]hether, if the reissue be void, the patentee may fall back on his original patent." Id. at 505, 17 S.Ct. at 645. Stating that the question "has never been decided by this court," id., the Court in Allen then offered the suggestion that a patent surrendered after the grant of a reissue "might be inoperative and invalid as against certain persons who pirated the underlying principle of the patent, and avoided infringing the exact language of the claims, and yet be perfectly valid as against others, who were making machines clearly covered by their language." Id. As in Eby, the Court in Allen ignored the ruling in Gage. Indeed, Gage is not even cited in the Allen opinion.
The analytical question posed by these three cases relates to the proper approach to the carryover claims. Eby and Allen suggest that in light of invalidated reissue claims, the carryover claims should be examined as part of a surrendered patent. Gage suggests that carryover claims should be examined as part of the reissue patent, notwithstanding the invalidity of the reissue claims. The statutes and regulations support the Gage analysis.
To begin with, 35 U.S.C. § 252 evinces the intent that the "surrender" of the original patent acts to extinguish that patent and replace it with an amended edition. The reissued patent constitutes a "continuation" of the original and has "effect continuously from the date of the original patent." It would be a redundancy to permit the original patent to continue to exist because it has been completely replaced by the reissue. Furthermore, the timing prescribed in the statute is such that the surrender takes effect only "upon the issue of the reissued patent." In essence, the timing avoids creating an interference because it mandates surrender of the old only upon issuance of the new so that two patents covering the same invention do not exist simultaneously.
The foregoing assessment of § 252 is consistent with the pertinent PTO regulations on reissue procedures. Under the relevant regulations, the denial of a reissue application does not affect the original patent claims. Hence, under 37 C.F.R. § 1.178 if a reissue application is refused, "the original patent will be returned to [the] applicant upon his request." By analogy, when a district court strikes down a reissue patent after the reissue application has been granted, those claims that are carried over from the original patent which were not implicated in the reissue application should remain valid despite the surrender and extinction of the original patent.
While analytically it may appear odd to retain claims without a valid patent, the anomaly is merely one of semantics which Congress itself has adopted. In 35 U.S.C. *1132 § 253, Congress provides that "[w]henever, without any deceptive intention, a claim of a patent is invalid the remaining claims shall not thereby rendered invalid." A similar provision allows for the maintenance of infringement suits based on such remaining claims.[11] Thus Congress, like the Court in Gage, has chosen to assess carryover claims in the context of problematic reissue patents in terms of the effect of the invalidated claims. There is no statutory support for Eby and Allen's resurrection of the surrendered patent.
A close examination of the case law confirms this assessment. Although the cases cited above and argued by HP do have some punch, the Court concludes that the proper result here is that the original patent claims should remain valid because the reissue application only added or amended claims 10-12. Beyond the Supreme Court's decision in Gage v. Herring, 107 U.S. 640, 646, 2 S.Ct. 819, 824, 27 L.Ed. 601 (1883) ("The invalidity of the new claim in the reissue does not indeed impair the validity of the original claim which is repeated and separately stated in the reissued patent."), the most potent precedent is Foxboro Co. v. Taylor Instrument Cos., 157 F.2d 226 (2d Cir.1946), cert. denied, 329 U.S. 800, 67 S.Ct. 494, 91 L.Ed. 684. One particular passage from Judge Learned Hand's ruling in Foxboro is particularly relevant:
All these [claims] were in the original patent in substantially the same form that they appear when reissued; and the same indeed applies to all the first sixteen claims of the reissued patent. As to these we need not consider whether Mason showed adequate excuse for any reissue whatever, because, even though he did not, the surrender of the original patent, resulting from the acceptance of the reissue, did not invalidate any claims which he carried over into the reissue. For a time this was in some doubt [citing Eby v. King], but the amendment to [35 U.S.C. § 252] has set the question at rest.
157 F.2d at 228.[12]
Hence, the surrender of the original patent did not invalidate the claims which were carried over by B & L into the reissue patent application. The patent statutes, the regulations, and the more persuasive case law all point to the conclusion that the original patent claims which B & L carried over without substantial amendment or alteration in the reissue application should not be affected by the Court's rejection of the affidavits which were the necessary predicate for approval of the reissue application.[13] Good cause appearing therefor, the Yeiser reissue patent claims 10-12 are declared invalid. The carry-over claims 1-9 from the original patent remain valid.
IV. TRIAL ON THE ISSUE OF INEQUITABLE CONDUCT.
(A) Introduction:
Originally, the trial in this case was to begin with B & L's presentation of its case for infringement of the Yeiser reissue patent by HP. In view of the Court's ruling that claims 10-12 of the Yeiser reissue patent are invalid, B & L was prepared to proceed in enforcing the remaining nine claims of its reissue patent. However, under 35 U.S.C. § 288, B & L could only enforce those nine claims if the other *1133 claims were nullified not because of any "deceptive intention." The evidence presented in HP's motion for summary judgment raised a serious question whether the entire reissue patent was procured with a fraudulent intent or in such a manner as to have constituted inequitable conduct before the PTO. Consequently, the Court changed the order of the presentation of the case, directing HP to initiate the trial with the presentation of its affirmative defense of inequitable conduct.
(B) The Applicable Legal Principles:
The doctrine of inequitable conduct "derived from the doctrine of unclean hands and is purely equitable in nature." Gardco Mfg., Inc. v. Herst Lighting Co., 820 F.2d 1209, 1212 (Fed Cir.1987), citing Precision Instrument Manufacturing Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 65 S.Ct. 993, 89 L.Ed. 1381 (1945). Although it should not be a "magical incantation to be asserted against every patentee," FMC Corporation v. Manitowoc Co., Inc., 835 F.2d 1411, 1415 (Fed.Cir.1987), the inequitable conduct defense does play a significant role in preserving the integrity of the patent application process. Due to the predominantly ex parte nature of PTO proceedings, patent examiners must be able to rely on patent attorneys' candor and good faith in prosecuting patents. The oath or affidavit requirement of the reissue application process serves to underscore this reliance.
Inequitable conduct is a broader concept than common law fraud, encompassing the "failure to disclose material information, or submission of false material information, with an intent to mislead." J.P. Stevens & Co., Inc. v. Lex Tex Ltd., Inc., 747 F.2d 1553, 1559 (Fed.Cir.1984), cert. denied, 474 U.S. 822, 106 S.Ct. 73, 88 L.Ed.2d 60 (1985). In order to prove inequitable conduct, a party must establish by clear and convincing evidence a threshold degree of materiality of the false or undisclosed evidence. Id. Although four distinct standards are available to test materiality, the Federal Circuit has expressed a clear preference for PTO Rule 1.56 as the best starting point for analysis. See id.; 37 C.F.R. § 1.56 (1987). The test is whether "there is a substantial likelihood that a reasonable examiner would have considered the omitted reference or false information important in deciding whether to allow the application to issue as a patent." J.P. Stevens, 747 F.2d at 1559; see also Gardco Mfg., Inc., v. Herst Lighting Co., 820 F.2d 1209, 1214 (Fed.Cir.1987).
A finding that material information has been withheld or falsely presented to an examiner in itself does not establish inequitable conduct. "To be guilty of inequitable conduct, one must have intended to act inequitably." FMC Corp., 835 F.2d at 1415. Proof of intent may be made by indirect evidence. J.P. Stevens, 747 F.2d at 1560; Hycor Corp. v. The Schlueter Co., 740 F.2d 1529, 1539 (Fed.Cir.1984). In other words, inequitable intent may be inferred from actions the natural consequence of which would be to mislead or misinform the PTO.
In J.P. Stevens Co., Inc. v. Lex Tex Ltd., Inc., 747 F.2d 1553 (Fed.Cir.1984), the court provided significant guidance on the principles relating to inequitable conduct. The case involved the yarn treating industry and, in particular, patents useful in producing desirable qualities in yarn. The court found that certain omissions by the applicants were highly material. Moreover, although there was no deliberate scheming, "there was clearly reckless or grossly negligent activity." Id. at 1567. Balancing materiality and intent, the court was "compelled to conclude that `inequitable conduct' occurred." Id.
The important analytical point evinced in J.P. Stevens is that, when coupled with a high degree of materiality, gross negligence is sufficient to establish inequitable conduct. The court ruled that gross negligence is shown "when the actor, judged as a reasonable person in his position, should have known of the materiality of a withheld reference." Id. at 1560 (citations omitted). However, simple negligence, oversight, or an error in judgment made in good faith is not sufficient to show gross negligence. Id.; Orthopedic Equipment *1134 Co. v. All Orthopedic Appliances, Inc., 707 F.2d 1376, 1383 (Fed.Cir.1983).
In a case decided after J.P. Stevens, the author of the decision, Chief Judge Markey, was at pains to point out that a finding of gross negligence alone does not mandate a finding of inequitable conduct. In FMC Corp. v. Manitowoc Co., Inc., 835 F.2d 1411 (Fed.Cir.1987), writing for the panel, Chief Judge Markey noted that in J.P. Stevens no evidence was adduced to offset gross negligence by showing subjective good faith. 835 F.2d at 1415-16 n. 9. The court further observed that district courts must heed the reality that intent is a fact question and that in the face of an assertion of inequitable conduct, an objective gross negligence standard should not be applied harshly. Specifically, a patentee must be afforded an opportunity to testify as to his subjective good faith:
[A]n applicant who knew or should have known of the art or information, and of its materiality, is not automatically precluded thereby from an effort to convince the fact finder that the failure to disclose was nonetheless not due to an intent to mislead the PTO; i.e., that, in light of all the circumstances of the case, an inference of intent to mislead is not warranted.
835 F.2d at 1416 (footnote omitted).
Taken together, the decisions in J.P. Stevens, FMC Corp., and KangaROOS U.S.A., Inc. v. Caldor, Inc., 778 F.2d 1571 (Fed.Cir.1985),[14] suggest that the proper approach to inequitable conduct entails a balancing of materiality and intent. No single factor or combination of factors is dispositive. Instead, even in the face of objectively damnable gross negligence or recklessness, the patentee must be provided an opportunity to raise a counter defense of subjective good faith. It is then up to the finder of fact to assess credibility in light of the evidence. The Federal Circuit does concede, however, that in a case where materiality is high and gross negligence is apparent, "mere denial of intent to mislead (which would defeat every effort to establish inequitable conduct) will not suffice." FMC Corp., 835 F.2d at 1416.
(C) The Potential Effect of Inequitable Conduct on the Carryover Nine Claims of the Yeiser Reissue Patent:
B & L properly concedes that the allegation that it committed inequitable conduct before the PTO raises a direct challenge to the original nine claims of the Yeiser patent. "Once a court concludes that inequitable conduct occurred, all the claims not just the particular claims to which the inequitable conduct is directly connected are unenforceable." J.P. Stevens, 747 F.2d at 1561 (citations omitted). This is no less true in the instance of a reissue patent.
An example of the ramifications of inequitable conduct in the procurement of a reissue patent is provided in Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 452 F.2d 579 (7th Cir.1971), cert. denied, 405 U.S. 1066, 92 S.Ct. 1500, 31 L.Ed.2d 796 (1972). Then Seventh Circuit Judge John Paul Stevens authored the opinion for a divided court. The case involved plaintiff patentee's use of the services of a former patent examiner named Beall in procuring the reissue of a patent whose original application had been examined by Beall. Ignoring a rule against such a cross over from the role of an examiner to the role of an advocate, Beall's efforts were instrumental in garnering his client a reissue. Finding the plaintiff's tactics were a "gross abuse of the statutory privilege of reissue," Judge Stevens invalidated all claims that were added to the patent through reissue.
The second question faced by the court in Kearney was the proper disposition of the balance of the patent claims. As in this *1135 case, several claims[15] of the reissue patent were carried over without substantial change from the original patent. Citing 35 U.S.C. §§ 253 and 288, the court noted that suits to enforce patents containing invalid claims are authorized by Congress provided the invalidated claims were not due to "any deceptive intention." The court then concluded that "deceptive intention" means actual fraud or other forms of inequitable conduct, and, therefore, the conduct of plaintiff in using the services of Beall was sufficient to create a bar to the enforcement of the carryover claims on the basis of inequitable conduct.
Although the alleged form of inequitable conduct in Kearney differs from this case, the legal analysis is precisely on point. If the conduct of B & L in obtaining the Yeiser reissue patent was fraudulent or otherwise inequitable, then even the carryover claims from the original patent will be unenforceable because they will be tainted by the claims that were procured with "deceptive intention." With these legal standards in mind, the Court now makes the following findings of fact and conclusions of law.
(D) Findings of Fact:
Before describing the details of the reissue application process, an introduction to the cast of characters is helpful. John O. ("Jack") Yeiser was the inventor of the '950 patent. Yeiser was a talented inventor for some two decades prior to the creation of his X-Y plotter. Yeiser had developed a highly successful strip chart recorder for Varian Associates in the 1950s.[16] In the 1960s, Yeiser founded his own company called Y-Labs in Costa Mesa, California. In approximately April 1970, Yeiser sold his business to Laboratory Data Control ("LDC") and went to work for LDC. Yeiser was an employee of LDC at the time the application for the '950 patent was filed in August 1970. He assigned the application to LDC.
Sometime between 1972-73, Milton Roy Company ("Milton Roy") acquired LDC and with it obtained the rights to the pending Yeiser '950 application. When the patent was finally issued on September 25, 1973, Milton Roy was the owner by assignment from Yeiser through LDC. After several years of less than satisfactory sales of strip chart recorders and X-Y plotters, Milton Roy discontinued production of those products to focus on its primary business as a manufacturer of high performance chromatography detectors.
After he sold his business to LDC, Yeiser apparently intended to remain in California, but LDC relocated to Florida. Drawn by what he considered to be a fine job opportunity as Director of Engineering at LDC, Yeiser attempted to relocate to Florida. B & L Exhibits Vol. II (Deposition of John West at 24).[17] When his wife objected, Yeiser undertook to maintain a Florida-California commute. According to a fellow employee of Yeiser at LDC, this commute proved too difficult for Yeiser, severely *1136 straining his personal life, and he eventually had to leave LDC and return to the West Coast. See HP Exhibit 316 (deposition of John West). For reasons that only Yeiser himself will ever know, Jack Yeiser committed suicide in 1974.
Lawrence Fleming is a private patent agent residing in Pasadena, California. Fleming graduated from the California Institute of Technology in 1937 earning a B.S. in mechanical engineering. B & L Exhibits Vol. I (Fleming deposition at 7). Fleming is not an attorney, although he has been licensed to practice before the PTO since 1954 and has himself earned over twenty patents as an inventor. B & L Exhibits Vol. I (Fleming deposition at 17, 8).
Fleming was a friend of Jack Yeiser from 1959 to Yeiser's death in 1974 and he did all of Yeiser's patent work. Fleming worked as outside counsel for LDC and then Milton Roy in the procurement of the '950 patent. Fleming was approximately seventy years old at the time of the reissue application and was recounting events that transpired over a decade before.
Bernard D. Bogdon was B & L's in-house counsel responsible for overseeing the reissue application of the '950 patent. Throughout 1981 and 1982, Bogdon had primary responsibility for the legal needs of B & L's Houston Instrument Division.
Howard Robbins was a subordinate to Bogdon who joined the company in late 1982. Robbins assumed responsibility for the legal needs of the Houston Instrument Division early in 1983 and through the relevant time period of the reissue process.
William Hyer was outside patent counsel for B & L on the '950 reissue application. Hyer ran his own firm in Houston, Texas and had decades of experience as a patent attorney. In April or May 1982, Hyer began to delegate work to an associate in his firm, Jonathan Jobe. Jobe was asked by Hyer to do research on the steps necessary to obtain the reissue of a patent and was given the task of preparing the first draft of reissue claims and a reissue oath for the '950 patent.
When Hyer died in November 1983, for a short time Jobe took primary responsibility for the '950 reissue work. B & L Exhibits Vol I (Bogdon deposition at 301). However, Hyer's death signalled the end of Jobe's involvement. TR. Vol. 4-624 (testimony of Jonathan Jobe). Around that time period, the examiner rejected the first amended application. Subsequently, primary responsibility for the reissue application reverted to B & L in-house counsel, Howard Robbins. B & L Exhibits Vol. II (Jobe deposition at 237). In other words, Jobe was responsible for writing the original application and the first amendment and Robbins wrote the second amendment which was finally accepted by Examiner Hartary.
Thomas Hall was a top executive with the Houston Instrument Division of B & L, serving as sales manager and, from November 1982 throughout the period in question, was in charge of all planning. B & L Exhibits Vol. III (PX 181). Hall was the liaison between B & L counsel and Houston Instrument President George More. Mr. More was also corporate vice president of B & L at the time of his involvement in procuring the Yeiser patent. Hall, More, and Bogdon were the three individuals who decided to purchase the '950 patent from Milton Roy in 1982. B & L Exhibit Vol. I (Bogdon deposition at 134, 263).
Sometime in late 1980 or early 1981, HP introduced its X-Y plotter with a pinch roller type drive assembly. This "grit wheel" plotter apparently was the first of its kind and enjoyed significant commercial success. B & L's Houston Instrument division (hereafter sometimes referred to as B & L) stated that "HP jumped into [the] market in 1980 with [a] superb unit. Now HP is [the market] leader...." HP Exhibit 3. B & L immediately took steps to investigate the HP product and to begin the process of producing a competing product.
The President of the Houston Instrument division of B & L, George More, was a driving force behind B & L's attempts to compete with HP's X-Y plotter. He directed five of his employees, led by a Mr. *1137 Napoli, to develop a machine that had the same basic specifications as the HP machine, but at a reduced cost. The reason for such an undertaking is clear: the HP plotter was a commercial success that had no piers. One B & L employee testified in a deposition that the HP plotter "was a fine design. It was one of the nicer recorder designs of the last 15 years." HP Exhibit 13.
After experiencing frustration and disappointment in failing to develop a viable grit wheel drive, B & L hired outside counsel to do a search of patent literature. B & L "wanted to know everything there was to know about what HP might have in the way of plotters, paper drives, and pen mechanisms. Every potential element of a plotter...." HP Exhibit 18 (Hall deposition); see also HP Exhibit 20 (letter dated February 26, 1981, from B & L in-house counsel Bernard Bogdon to patent researcher Elliott R. Greenwald requesting "state of the art search" focusing particulary on HP).
In approximately April of 1981, B & L first learned of the existence of the Yeiser patent through this patent search. The Yeiser patent appeared as a citation against a patent that was owned by HP. In a letter dated May 21, 1981, from in-house patent counsel Bernard Bogdon to B & L engineer James A. Parnell, Bogdon listed the Yeiser '950 patent among twelve citations of art found that related to HP's new grit wheel design. Bogdon stated, however, that "[n]one of these patents appear[s] to be particularly pertinent to Hewlett Packard's design." Bogdon also included a copy of each patent along with his letter. HP Exhibit 25. Several top B & L officials read the Yeiser patent around that time (May 1981), including Parnell and Thomas Hall.
A few months later, B & L decided to purchase the Yeiser patent from its registered assignee, Milton Roy Company. Hall, Parnell, and More made the decision. See HP Exhibit 27. The decision apparently was later discussed with outside patent counsel, William Hyer. At some point during the time that B & L contemplated purchasing the Yeiser '950 patent, Jim Parnell and Thomas Hall had a private discussion about the relevance of the Yeiser patent to the HP mechanism. Parnell apparently was of the view, a view that Hall later shared, that the Yeiser patent was a "master patent" that would supersede any patent HP might have or eventually obtain. B & L asked William Hyer as outside counsel if he concurred in B & L's view of the scope of the Yeiser patent. It can be inferred that Hyer gave a positive opinion of the scope of the Yeiser patent as against HP's grit wheel plotter because in September 1981, George More contacted the President of Milton Roy about purchasing the '950 patent. On May 5, 1982, B & L bought the Yeiser '950 patent from Milton Roy for $30,000. HP Exhibit 63.
Thomas Hall testified in a deposition that either before the purchase or immediately afterwards, B & L was aware of the need to file a reissue application. See also HP Exhibit 64 (Bogdon deposition stating that reissue course was "decided" "shortly after the acquisition"). Hall further testified that William Hyer, in advising B & L that a reissue was needed, had stated that the "claims in the original Yeiser were too damn broad" and that narrower claims were needed. HP Exhibit 61.
Thomas Hall also testified that the business objective of procuring the Yeiser patent was to "go to others and negotiate with [it]." HP Exhibit 62. Hall stated that the primary reason for acquiring the patent was to protect B & L from HP. B & L Exhibits Vol. I (Hall deposition at 205). Ideally, B & L desired to avoid litigation and compete against HP's superior product by negotiating a cross-licensing agreement. B & L Exhibits Vol. I (Hall deposition at 216). Bernard Bogdon described B & L's actions as gaining "leverage." HP Exhibit 201; see also TR. Vol. 6-869 (testimony of Bernard Bogdon). Bogdon admitted during deposition testimony that the same day that B & L acquired the '950 patent, Mr. Jobe's time records indicated that he spent the afternoon doing a "reissue investigation," HP Exhibit 380, although Bogdon denied that B & L purchased the patent to *1138 use against HP. B & L Exhibits Vol. I (Bogdon deposition at 270).
In other words, the patent was obtained for strategic reasons relating to negotiation and possibly litigation, against HP and others. The same is true of the reissue application, for as counsel for B & L has made clear, "the reissue was done with a view to litigation against Hewlett Packard throughout." HP Exhibit 68 (Statement of Laurence Pretty). In fact, Jonathan Jobe who drafted the reissue application stated in deposition testimony that not only was litigation one of the purposes for seeking a reissue patent, it was the only reason of which he was aware. HP Exhibit 69. B & L acquired the patent, intended to threaten litigation, and then extort a cross-license agreement from HP. After its engineers were unable to compete in technical innovation and creation, this was the most expedient way for B & L to compete against the HP X-Y plotter.
As noted above, Jonathan Jobe was the attorney who drafted the reissue application and the first amendment. It was Jobe's first reissue application, although he was working on another application at the same time as the '950 reissue. B & L Exhibits Vol. II (Jobe deposition at 84). Jobe consulted with his superior, William Hyer, in formulating the draft. TR. Vol. 4-607. Hyer gave to Jobe the specifies of the HP X-Y plotter so that Jobe could take those specifications into consideration in formulating the reissue claims, HP Exhibit 75; TR. Vol. 4-630 (testimony of Jonathan Jobe), and, in fact, Jobe drafted the three new claims including the exact specifications included in the HP X-Y plotter. HP Exhibit 76.
Jobe also drafted the More declaration. In that declaration, More stated that Yeiser and Fleming committed an error in the original application. Jobe admitted that he did not know "how [More] could have known one way or the other." B & L Exhibits Vol. II (Jobe deposition at 192). The following deposition exchange captures Jobe's understanding of the meaning of "reissuable error":
Jobe: I think that people normally believe that errors are unintentional and if an error was made or if a mistake was made
HP Counsel: But how did [More] that's a good point. How did he know it was a mistake that claims were left out?
Jobe: Because they weren't in.
HP Counsel: Couldn't it have been intentional?
Jobe: Who knows?
. . . . .
Jobe: I think that your last question or comment or a previous one assumes that claims like [reissue claims 10-12] were considered and rejected.
HP Counsel: Well, do you know that they weren't?
Jobe: No, I don't know.
HP Counsel: Does anyone?
Jobe: Fleming probably knows.
HP Counsel: But no one contacted Fleming at this point in time; isn't that correct?
Jobe: That's correct.
B & L Exhibits Vol. II (Jobe deposition at 192-93).
A draft of the reissue application was delivered by Jobe to Bogdon on October 2, 1982.
George More, whose declaration formed a crucial part of the reissue application, had virtually no involvement in the preparation of the application. He had at most two discussions with William Hyer prior to the filing of the reissue application, both of which were, in the words of More, "very cursory." HP Exhibit 147. More stated that he had no independent opinion regarding the addition of claims through a reissue application other than that the patent needed improvement and that he was willing to do anything to make the patent better. B & L Exhibits Vol. II (Deposition of George More at 165). More stated that "[i]f somebody had pissed on it [the original Yeiser patent], it would have made it better. But the point is, anything better." HP Exhibit 154.
More simply left is to Bogdon's department, Hall, and Hyer as "[c]ompetent professionals *1139 practicing on a day-to-day basis" to do whatever was necessary to obtain a patent that could be used against HP. See HP Exhibit 155. Thus, he did not review the reissue application before it was filed. B & L Exhibits Vol. II (Deposition of George More at 177-78) Although he did read the affidavit bearing his name, B & L Exhibits Vol. II (More deposition at 214), More signed the affidavit "on the basis of the information supplied to [him] by trusted counsel of [B & L]. [More] had no information to dispute any of the things in [the] statement." HP Exhibit 161. In particular, the "oversight" mentioned in the More affidavit was never described to More, nor did he inquire as to its purported nature. B & L Exhibits Vol. II (Deposition of George More at 243). Indeed, More was told by Thomas Hall that he was better off not asking any questions and that he did not need to know any details. HP Exhibit 163; B & L Exhibits Vol. II (Deposition of George More at 163).
On the issue of "oversight" as referenced in the More declaration, Bernard Bogdon stated that the basis for the assertion was the investigation that was conducted prior to the filing of the reissue application. The investigation involved "the file history, the patent itself, and the efforts and counselling with [B & L's] ... outside law firm." HP Exhibit 64. B & L made absolutely no independent investigation of the history of the '950 patent application. None of the principles involved in procuring the '950 patent were contacted prior to the filing of the reissue application. The only discussions that took place were among Bogdon, Jobe, and Robbins, with More receiving cursory information on two occasions from Bogdon. More and Jobe never met or discussed the reissue application, despite the fact that it was Jobe who wrote the affidavit that More signed.
No investigation was made into the '950 patent itself to ascertain its validity. HP Exhibit 202 (Robbins deposition). Furthermore, despite the fact that B & L professed to believe that the patent attorney who prosecuted the '950 patent made an error, B & L did not think it was necessary to contact Lawrence Fleming to discuss the supposed error with him. B & L Exhibits Vol. I (Bogdon deposition at 388). No one at B & L made any attempt to assemble the prior patents of Jack Yeiser. HP Exhibit 167. No attempt was made to ascertain whether the invention had been made or used before in the United States, despite the fact that More's affidavit states that "I do not know and do not believe that said invention was ever made or used in the United States of America before the invention thereof by said John O. Yeiser." Id.
B & L took the position that no investigation was necessary. There was no deceptive intent because "[t]he file history never told us otherwise." B & L Exhibits Vol. I (Bogdon deposition at 393). Jonathan Jobe stated that he included the reference to "oversight" because "it is required by the statute and I believed that the error arose without deceptive intent because there was nothing to be gained by leaving out such claims. I can't imagine any deceptive reason for not including those claims." TR. Vol. 4-612.
The first contact with Lawrence Fleming occurred on June 17, 1983 after the examiner had rejected the application and told B & L to obtain the statement of the original patent agent. On that date, Jonathan Jobe called Fleming and spoke to him for less than thirty minutes. HP Exhibit 234.[18] Jobe was the only individual associated with B & L who spoke to Fleming prior to the filing of his first affidavit. In handwritten notes bearing the date June 17, 1983, Jobe wrote that "the inventor did not feel there was a great deal of novelty...." and added that Fleming "didn't get much info out of Yeiser Yeiser very brilliant but not much help." HP Exhibit 235.
Fleming's handwritten notes from the June 17, 1983, telephone call reflect that Jobe informed him of the addition of dependent claims stemming from claim one of *1140 the original Yeiser patent. Fleming wrote that the new claims were "[m]ore explicit new cls. 10-12." Fleming also appears to have been informed that the PTO examiner rejected the claims because of a failure to show error. Fleming's notes state: "Exr. no error." Jobe also reported to Fleming the general content of the More affidavit and the purported source of the "error" as represented by More in the affidavit. HP Exhibits 237-38; see also TR. Vol. 4-616-18 (testimony of Jonathan Jobe).
Other than providing a rudimentary explanation of the purpose of his call and the general nature of the application, Jobe provided nothing else to Fleming. Jobe did not send Fleming a copy of the reissue application, a copy of the new claims, a copy of the PTO response to the application, or a copy of the More declaration. See HP Exhibits 238-39.
The Court notes the that Jobe's statements to Fleming in essence told Fleming that he had made a tremendous blunder many years before. According to Jobe, he told Fleming who he represented, "I told him that we were attempting to reissue the Yeiser patent, I told him what the defects were and asked him if he could shed any light on how those defects occurred." TR. Vol. 4-616. B & L's expert, Rafael V. Lupo, testified during trial that it was patently obvious that the original '950 application should have included narrower, or "intermediate" claims encompassing specific features of the pinch roller assembly. According to Lupo, Fleming made an egregiously obvious mistake in failing to stake a claim including those specific features. Although concededly stated with less emphasis, Jobe's report to Fleming constituted an equivalent indictment of Fleming's ability and professional competence. Jobe's lead off question, then, was to ask how Fleming could have made such a mistake, thereby inducing Fleming to explain away his omissions.
Given this reality, it is not surprising that Fleming generated several excuses to absolve himself of his omission. As plaintiff's expert, James Gambrell, stated at trial, B & L "first contacted Mr. Fleming and ... asked him to explain how the error occurred. But they never asked him what the error was." TR. Vol. 2-215. B & L and Jobe hoped that Fleming would attempt to justify his action, as he did. Regardless of the veracity of his statements, they provided some substance to the More affidavit's assertion of "oversight" as the basis for reissuable error. In essence, Jobe's phone call was an invitation to Fleming to stir his memory in search of whatever post hoc rationalizations were available to put in an affidavit supporting the More affidavit's assertion of "oversight." Once stirred, Fleming's memory prompted several (as it turns out) grossly inaccurate statements. Yet this served B & L's purpose, forming the basis for the first Fleming affidavit.
During trial and in motions preceding trial, B & L emphasized repeatedly that at the time of the telephone contact with Jobe, Mr. Fleming was over seventy years old and was trying to recall events that transpired over a decade before. B & L argued vociferously, as the truth came out, that Fleming's recollections were simply the product of a bad memory and not evidence of bad faith or inequitable conduct on the part of B & L.
A bad memory, plus elements of pride and rationalization as described above, do explain how Fleming was able to make such wildly incorrect statements in his affidavits. This does not alter the fact, however, that B & L never did anything at all to confirm the accuracy of Fleming's recollection of the original patent application. At trial, Jobe indicated that he thought that Fleming had located his file on the patent prosecution "while we were on the telephone." TR. Vol. 4-617. Yet, Jobe "does not recall" whether he asked Fleming to send him his prosecution file. HP Exhibit 240. Jobe also recalls that he did not ask Fleming to look for other documents. Id. Jobe "does not recall" whether or not he asked Fleming if he kept time diaries. Id. Jobe "does not recall" whether he ever asked Fleming to see all of the documentation he had regarding the preparation, filing, and prosecution of the original '950 patent application. HP Exhibit 241. Jobe *1141 does recall that he never contacted anyone at Milton Roy or LDC or Y-Labs to substantiate the assertion of "limited contacts" between Yeiser and Fleming during the application. HP Exhibit 244.
Jobe received from Fleming one documentary piece of information regarding the original prosecution, a memorandum of July 7, 1970 from Yeiser to Fleming (hereafter the "7/7/70 Memo"). Yet Jobe does not recall whether he asked Fleming for it or Fleming volunteered to send it to him, id., and Jobe admitted that he never asked Fleming whether the file contained any other memoranda from the inventor. In addition, Jobe never asked Fleming about the contents of the 7/7/70 memorandum or inquired as to what Fleming thought Yeiser meant in the memorandum.
As to the specifics of the affidavit itself, neither Jobe nor anyone else at B & L inquired of Fleming as to the details of his statements. For example, Jobe never asked Fleming any details about his contacts with Yeiser during the original application process. HP Exhibit 243. Jobe did not ask Fleming to check his time sheets to confirm his recollections. HP Exhibit 244. Jobe did not discuss with Fleming the original file history, the prior art, or any office actions. Id. Jobe did not ask, or does not recall asking, Fleming if Yeiser played any role in assisting him in drafting the claims, HP Exhibit 248, or whether Fleming and Yeiser discussed the scope and breadth of the claims that were to be made. HP Exhibit 249. Jobe did not ask about the nature or content of the contacts between Fleming and R.J. Tarantino (L.D.C.'s president) or between Fleming and Virgil Woodcock of Philadelphia despite the fact that both individuals are specifically mentioned in the first Fleming affidavit. See HP Exhibits 242, 250, 251, and 252. Jobe never asked Fleming whether the claims that were to be added in the reissue application had ever been drafted by him or discussed in any context in connection with the original application. HP Exhibit 255.
In addition to the less than thirty minute telephone conversation, Jobe also relied upon a one page letter written by Fleming on June 20, 1983, as a basis for the first Fleming affidavit. In the letter, Fleming stated that he had "pulled out the old file" and reviewed it. Fleming reiterated six reasons apparently explaining why the patent had not been drafted to include intermediate claims. All of the reasons are mentioned in the first Fleming affidavit and include: (1) Yeiser had sold his business (and, one is to infer, therefore had little interest in a patent assigned to his new employer; (2) LDC moved from California to Florida, thereby placing some 3,000 miles between Fleming and Yeiser; (3) Mrs. Yeiser refused to move to Florida (and, one must infer, put a great strain on Jack who tried to commute between Florida and California); (4) Fleming's only other contact at LDC was President Tarantino, who was too busy to help; (5) LDC's patent attorney, Virgil Woodcock, left the application in Fleming's hands except to receive copies of the papers and letters (and thus Fleming received no in-house guidance); and (6) before the patent was issued, LDC was acquired by Milton Roy (and, one might infer, placed another layer of space between Fleming and any source of information). Fleming closed the June 20, 1983, letter by stating that he "suppose[d]" that "business and personal activities of inventor and assignee worked, inadvertently, to cut off communication with the patent practicioner [sic]." HP Exhibit 266.
Despite the fact that the June 20th letter played a prominent role in the preparation of the first Fleming affidavit, Jobe never queried Fleming about its contents. Instead, Jobe merely sent to Fleming a prepared affidavit for his review and signature on September 13, 1983. He followed up his mailing with a brief telephone call confirming that Fleming had received and signed the affidavit.[19] Nothing more was *1142 discussed or reviewed. In other words, Jobe did not conduct a follow-up interview with Fleming. See HP Exhibit 302. Even something as obvious as Fleming's reference to his "old file" did not precipitate a follow-up inquiry from Jobe. In short, Jobe accepted as true, without any corroboration, every fact related by Fleming. On September 14, 1983, Fleming sent back the signed affidavit. HP Exhibit 304.
On September 19, 1983, B & L filed its first amendment to the reissue application. The application was rejected on October 31, 1983. Due to a mix-up in mailing, the second PTO rejection was mailed again on December 2, 1983. In the meantime, Howard Robbins had met with Patent Examiner Hartary to discuss the shortcomings in B & L's amended application. See HP Exhibit 340. Howard Robbins was responsible for pursuing the reissue application for B & L after Hyer's death and Jobe's exodus.
Robbins made the next contact with Lawrence Fleming on February 10, 1984. Robbins telephone notes indicate that he basically covered the same ground canvassed by Jobe. See HP Exhibit 345. The second Fleming affidavit reflects the new information and emphasis gleaned by Robbins from the February 10, 1984 conversation. Specifically, Yeiser allegedly had but a single, crude model available to him for two hours to effect disclosure of his invention. As a result, Fleming allegedly had to write the claims himself relying on his own experience and knowledge. Also, Fleming felt that Yeiser did not appreciate the significance of his invention.
Robbins spoke with Fleming a second and final time on February 20, 1984.
Although Robbins himself did read the file history, HP Exhibit 348, he stated that he did not know whether Jobe or Bogdon had ever reviewed the original file history. HP Exhibit 214. Robbins also stated that he did notice that the file history of the '950 application made reference to a commercial model embodying the principles of the Yeiser '950 patent. This reference appeared in two one-line amendments to the '950 application. See HP Exhibit 348. Robbins also was aware of the reference in the first Fleming affidavit to the availability of only a crude model for Yeiser to effect disclosure of his creation, and Robbins himself added the language in the second Fleming affidavit with respect to the limited availability of only a crude model. Nevertheless, Robbins never asked Fleming about his mention of the commercial embodiment in the file history of the '950 application. Id. In other words, even though he was aware that Fleming had stated in the early 1970s that there was a commercial model of a Yeiser-like machine in production, Fleming accepted without question Robbins' statements in the reissue affidavits that Yeiser had only a crude model to help him claim the invention.
Like Jobe before him, Robbins failed to ask even the most basic of questions concerning the veracity of Fleming's statements, nor did he provide Fleming with any information concerning what was happening in the PTO with the reissue application. Robbins did not ask Fleming if he kept time records or work diaries. HP Exhibit 349. Robbins did not ask Fleming how many contacts he had with Yeiser during the application process, HP Exhibit 350, and thus obviously made no inquiry as to the quality of the contact between Yeiser and Fleming. Robbins did not send Fleming copies of any of the PTO actions, nor anything else save the second affidavit which was sent to Fleming on February 20, 1984. HP Exhibits 351-2. The signed affidavit was returned by Fleming to Robbins the next day. HP Exhibit 353.
On March 27, 1984, the second amendment to the reissue application was filed by B & L with the PTO. On April 12, 1984, examiner Hartary withdrew his objections to the oath submissions and granted approval for reissue of the '950 patent. HP Exhibit 363. Less than two weeks later, on April 24, 1984, Thomas Hall wrote to HP accusing it of infringing B & L's new reissue patent (notwithstanding the fact *1143 that the reissue did not take place until September 25, 1984) and extended a gracious olive branch of settlement of the implicitly threatened lawsuit "[i]n the interest of achieving an early amicable resolution to this matter." HP Exhibit 364. HP's response was to file this suit for declaratory relief.
On September 13, 1984, Lawrence Fleming met with an investigator hired by B & L named Bill Ellis. Fleming sent B & L a bill for 7.1 hours of his time in connection with the interview with Ellis, although the interview lasted only two hours by Fleming's recollection. B & L Exhibits Vol. I (Fleming deposition at 44). Fleming does not recall how the interview was set up; it may have been a telephone call from Robbins or from Ellis' office. Fleming does recall that prior to the interview, Robbins called him.
Several topics never before discussed came to the fore in the telephone call with Robbins and the interview with Ellis. It is not clear how the subject of Yeiser's assistant arose,[20] but it had not been discussed with Fleming during the reissue application process. Apparently in preparation for his meeting with Ellis and during the meeting, TR. Vol. 4-592, Fleming wrote some notes to himself which included reference to a man named Ronald E. Ross. See HP Exhibit 368. This appears to be the first mention of Mr. Ross by Fleming. Ross "was # 1 asst. to Jack Yeiser [and] source of info." according to Fleming. B & L also asked Fleming, again apparently for the first time, about Yeiser's contacts with LDC President Tarantino. B & L Exhibits Vol. I (Fleming deposition at 37, 39). Regarding Tarantino, Robbins by telephone asked Fleming how many contacts he had with Tarantino and the topics of their discussions. Id. These questions had been completely ignored prior to the grant of the reissue application. Ellis asked Fleming about the "circumstances of the disclosure of the invention; contacts with the inventor and with Mr. Tarantino; the nature of the acquaintance between [Fleming] and Mr. Yeiser; Mr. Yeiser's marital problems, if any...." B & L Exhibits Vol. I (Fleming deposition at 44).[21]
The most important piece of information in Fleming's notes, however, is found on the second page where Fleming wrote: "Yeiser was in Florida 3/72-11/72 by best info. in my old notebooks." HP Exhibit 368 (emphasis added). As discussed earlier, the notebooks referred to by Fleming are time diaries he kept from 1970-73. Throughout the course of this case, B & L has maintained that Fleming had forgotten about his old notebooks after he moved into a new residence in Pasadena. Supposedly, the notebooks inadvertently were shoved to the back of an old bookcase and forgotten until discovery mid-way through this litigation. By the above reference in his notes, Fleming admitted that he had the notebooks and referred to them in September 1984 before the '950 patent was reissued.
On cross examination at trial, Mr. Fleming insisted that he had spoken to B & L in the course of the reissue process relying only his memory and his few notes from the original application period. Fleming insisted that he had not used the notebooks. When confronted by his own handwritten notations from September 1984, Fleming was forced to admit that he must have known about and used the notebook at least by September 1984. TR. Vol. 4-592-96. Upon further cross examination, HP established that Fleming had used the notebooks to gather certain information about Yeiser whereabouts during the period in question, for example, the timing of his transfer and domicile in Florida. Despite the precision of the details provided by Fleming, neither Jobe, Robbins, nor Bogdon ever asked Fleming if he kept notebooks, *1144 if he referred to notebooks, or if he referred to any other written material in responding to B & L's inquiries. TR. Vol. 4-596.
B & L's position at trial was that although the oath requirement included an averment of error, this does not mean literal error. Howard Robbins stated that the "absence of the language [of the added claims] in the '950 patent is what was expressly stated to be the errors." B & L Exhibits Vol. II (Deposition of Howard Robbins at 361). To Robbins, it was "plainly evident from a review of the '950 file history" that omission of the narrower claims was error. Id. It was an error, from Robbins and B & L's perspective, because they believed that the claims should have been included. During trial, Bogdon stated that after examination of the '950 patent, "we drew the conclusion that the claims that went to the driving roller means were inadvertently omitted." TR. Vol. 6-876. Yet Robbins, like Jobe, had no idea whether the omission of the intermediate claims was intentional. When asked to identify support in the file history for his belief, Robbins could only say that he looked at claim 1 of the patent, saw no intermediate claims deriving from claim 1, and concluded that Fleming and Yeiser must not have considered including such claims. B & L Exhibits Vol. II (Deposition of Howard Robbins at 368-69). Put another way, Robbins had "no reason to believe that the absence of that language [claims 10-12] was anything other than oversight, inadvertence." B & L Exhibits Vol. II (Deposition of Howard Robbins at 368). Yet Robbins never asked Fleming directly whether he and Yeiser discussed narrower claims. B & L Exhibits Vol. II (Robbins deposition at 388). In effect, Robbins never asked the glaringly obvious question of why he omitted the material added by B & L in its reissue claims, i.e., how was it that Fleming committed this error that was so plainly obvious to Robbins.
Two experts testified at the trial. HP offered the testimony of James B. Gambrell. B & L countered with the testimony of Rafael V. Lupo. Both men are more than qualified to offer expert opinions in the areas of patent office practice, procedure, and standards of practice.[22] As one would expect, the experts offered differing views on the proper characterization of B & L's conduct.
James Gambrell was not only qualified but fully prepared to offer his opinion of B & L's conduct with respect to the reissue application. Gambrell had read all relevant testimony and records and was conversant regarding all matters pertinent to the issue of inequitable conduct in the procurement of the reissue application. Gambrell stated his opinion at the outset that he believed that the reissue patent "was inequitably obtained and should be held unenforceable." TR Vol. 2-137. The balance of his testimony on direct examination set forth the bases for his opinion.
Preliminary to the discussion of the basis of his opinion, Gambrell explained the concept of "error" within the meaning of 35 U.S.C. § 251, the primary reissue statute. If an inventor claims what he wants and receives what he claims, then there is no error. According to Gambrell, "[i]t's not a way in which you can go back and get a second bite at the apple just to see whether or not you might get [the patent] on a different basis or on a hindsight you think that you could have gotten a better patent or one that's more to your liking due to what's happening in the industry." TR. Vol. 2-140.
Gambrell then described in detail the type of thorough investigation he would undertake as a reliable, competent patent practitioner seeking to reissue a defective patent. According to Gambrell, "[t]he patent office rules are very clear. When you sign a document submitting it to the patent office, your signature represents that there is good cause for that, and I think implicit in that is that you made a reasonable investigation." TR. Vol. 2-164. Gambrell concluded *1145 that B & L "had to make an investigation" to determine whether the declaration and affidavits were correct. TR. Vol. 2-170. In Gambrell's judgment, "in reading the record, that investigation was not made." Id.
In addition, Mr. Gambrell offered his opinion that B & L acted inequitably by failing to return to the PTO once it learned of the errors in Mr. Fleming's affidavits. See TR. Vol. 2-295. Gambrell testified that it was his "view that it would be proper practice, based on my experience in my profession, for a lawyer to [report Fleming's errors], under these circumstances." TR. Vol. 2-299. On cross examination, Gambrell admitted that he knew of no specific rule or regulation requiring a patent attorney to write to the PTO or seek a reissue if he learns that a prior reissue was granted on the basis of fraudulent representations. Gambrell's view was that in reissue or in an original application, the duty of candor is the same; it requires complete and honest disclosure of material information relating to the application in question.
On cross examination, Gambrell admitted that a reasonable patent attorney looking at the '950 patent could conclude that the absence of narrower claims defining the anti-slip drive in more detail was a defect. TR. Vol. 2-319. This is because "it [is] a conventional practice, among patent attorneys who prosecute a lot of patent applications, to grade their claims so that they will have a broad claim and then they will have some narrower claims that add additional features of that broad claim." TR. Vol. 2-320 (statement of B & L counsel Laurence Pretty in which HP expert James Gambrell concurred).
Gambrell completely agreed with B & L counsel that B & L's attorneys could have concluded that the failure to include narrower claims in the '950 patent was reissuable error. Id. However, Gambrell disagreed with B & L counsel when he suggested that customary practice would have led B & L's attorneys to conclude that the absence of the graded claims was simply "an oversight by the original attorney." TR. Vol. 2-321. If B & L simply had told the examiner that less had been claimed than was possible under the allowed claims of the patent and that the error was without deceptive intent, then Gambrell believed that B & L "would have had a legitimate basis to go in and try" to get a reissue. Id. But once B & L made affirmative representations, for example suggesting that the inventor and his attorney were guilty of "oversight," B & L had a duty to investigate the statement that "oversight" was involved and determine whether that was true in fact.
Once the Fleming affidavits were obtained, then B & L had an even more specific duty to ascertain whether Fleming's statements were at all corroborated by the other available evidence.[23] In other words, once B & L decided to attempt to explain why the narrower claims were not included in the patent, they had a duty to make a reasonable effort to be certain that the explanation given was factually correct. Because B & L did offer an explanation (first stating simply "oversight," and then adding the "lack of contact" and "lack of guidance" embellishments of the Fleming affidavits) and yet failed to investigate whether this explanation was truthful, Gambrell concluded that B & L had breached its duty of candor and committed inequitable conduct before the PTO.
Raphael V. Lupo testified as an expert on behalf of B & L. The subject area of his expertise was the prosecution of patent applications and reissue applications, and patent litigation practice and tactics. TR. Vol. 6-996. Mr. Lupo testified that it is standard practice for patent practitioners *1146 to include a range of broad and narrow claims in patent applications "as a hedge against the possibility that a claim may be found invalid in court. If a broad claim were found invalid in court, the remaining claims are still effective." TR. Vol. 6-1000. Also, a range of claims enhances the marketability of a patent because a later purchaser may be able to gain value from the licensing potential of a patent on narrow claims even if the broad claims are no longer of commercial value. Id. Lupo testified that he could think of no reason why an attorney would fail to include narrow claims depending from an allowable broad claim. TR. Vol. 6-1002. In Lupo's view, the most likely reason for omitting to include narrow claims is "oversight."
Lupo properly observed that the threshold inquiry under 35 U.S.C. § 251 is whether there was a "defect" in the original patent. The next issue is whether the arose through an "error without deceptive intent." TR. Vol. 7-1026. Mr. Lupo testified that failure to include narrower claims dependent from the allowable broad claim is a defect for purposes of reissue. Id. Such a defect can be determined from the face of the patent. Id.
Lupo then testified that an initial inference could be made based solely on the face of the patent whether the defect arose due to an error. TR. Vol. 7-1027. In Lupo's view, B & L could have concluded from the file wrapper that the defect resulted from oversight without deceptive intent. The basis for this opinion was Lupo's view that there was no reason for the omission of the intermediate claims; therefore, the omission must have been due to oversight. TR. Vol. 7-1030. As to the oversight, Lupo believed that it must have been without deceptive intent: "In my opinion, you have to infer [a lack of deceptive intent] just by looking at the patent itself. You get more information when you go to the file wrapper." TR. Vol. 7-1071.
In cross examination, Lupo admitted to having never "examined a mechanical disclosure in my life." TR. Vol. 7-1056. He also admitted that the '950 patent is a mechanical disclosure. Id. So Mr. Lupo had absolutely no experience in examining patents such as the '950 patent.
The Court must reject Mr. Lupo testimony on the subject of error and deceptive intent. As a matter of logic, Lupo's position is untenable. After logically explaining why a defect could be obvious as a technical issue on the face of a patent, he then jumped to the unsupported assertion that failure to include certain claims must have been an oversight. There is a gap of logic here because Lupo offers no recognition of the fact that the reissue regulations and MPEP require that the party seeking reissue explain why the claims were not included. Lupo's position is a tautology: the inventor failed to include the claims because the inventor failed to include the claims. The point is that to obtain a reissue B & L had the legal responsibility to ascertain why the claims were omitted and to provide that explanation to the examiner. If no explanation could be found, then the examiner should have be so informed. Instead, B & L simply ignored the regulations and told the examiner nothing. When the examiner rejected that, then B & L offered whatever minimal excuse that would suffice, whether it was accurate or not. Lupo's testimony supports the untenable position that reissue always may be obtained simply by looking at the patent and, perhaps, the file wrapper. TR. Vol. 7-1030.
The conclusion of Lupo's testimony was that B & L did not commit inequitable conduct. Since B & L "could not know or did not know" about the errors in Fleming's affidavits, "they could not have purposely withheld that from the patent office." TR. Vol. 7-1051. The "error is one that is so clear to a reasonable patent attorney that it could be included [sic concluded] that it was without deceptive intent because there is no conceivable reason that I can think of for not having put those in there." TR. Vol. 7-1091. According to Lupo, the reasonable inquiry B & L was required to make pursuant to the regulations of practice before the PTO was satisfied by reading the patent and the file wrapper. TR. Vol. 7-1086.
*1147 (E) Conclusions of Law:
B & L and its attorneys had a duty of candor and good faith with respect to its dealings with the PTO during the reissue application process. 37 C.F.R. § 1.56. The duty of candor consists in a responsibility to disclose to the PTO all material information relating to the proceeding in question. Id. An integral part of the duty of disclosure is the duty of reasonable inquiry. See MPEP § 2001.02. The duty of reasonable inquiry means that an agent or attorney submitting an application to the PTO must make a reasonable effort to verify that representations made in the application are not erroneous. "For instance, if an applicant or applicant's attorney is aware of facts which indicate a reasonable possibility that ... information material to examination may exist, they are expected to make reasonable inquiries to ascertain such information and to submit" it to the PTO. Id. This duty continues at least until the time that the application is acted upon. Hence, applicants have a continuous duty to update their applications as information is unearthed. For example, if new information or prior art is discovered casting into doubt the patentability of an invention, the applicant has a duty to submit that information or prior art "with reasonable promptness." MPEP § 2002.03(a).
In this case, B & L has breached its duty of candor before the PTO by failing to be forthright in its reissue application and by failing to conduct reasonable investigation. There is also a serious question whether B & L failed to update or temporarily withdraw its application when it learned of the serious discrepancies of in Lawrence Fleming's affidavits.
Jonathan Jobe admitted on cross examination that the reissue oath or affidavit is the "guts" of the reissue proceeding and that it is the primary instrument for gaining approval for reissue. TR. Vol. 4-632. Nevertheless, Jobe and B & L drafted the original application, in particular the declaration of George More, with a remarkable lack of care. As described in detail above, B & L said that the defect was due to "oversight" but did not tell the examiner that the basis for this assertion was merely opinion. B & L could have satisfied its duty of candor by simply informing the examiner that it had no information and had done no investigation other than reading the patent and the file history, but in its view there was a defect because any intelligent patent agent would have included narrower claims. Instead, B & L represented to the PTO that the omission was due to "oversight" by the inventor and his agent, even though B & L had no evidence to support the assertion. At a minimum, this was gross negligence.
Once B & L made the affirmative representation that "oversight" occurred, it then had a concomitant duty to make a reasonable investigation to assure the statement's accuracy. Yet, no one from B & L contacted anyone involved in the prosecution of the original patent. B & L did not contact Fleming, Milton Roy, Milton Roy's attorneys in Philadelphia, LDC, LDC President Tarantino, Ronald Ross who was Yeiser's number one assistant, or anyone else who was involved in or who had an interest in the procurement of the '950 patent. Jobe himself only remembers reading the patent itself. TR. Vol. 4-639 (quoting from deposition testimony of Jonathan Jobe). He read some, though possibly not all, of the file history prior to submitting the application. TR. Vol. 4-638. Jobe was not sure whether he read the prior art references cited against the original patent. TR. Vol. 4-635-37.
At trial Jobe said he thought he had reviewed the prior art, but at trial HP pointed out that in his deposition testimony Jobe firmly stated that he could not express a view "one way or the other." Id. The Court does not find Mr. Jobe credible in his new found recollection. Based on his deposition testimony and the casualness with which B & L approached the reissue application, it is likely that Jobe never reviewed the prior art, or, if he did, he did so without attempting to ascertain whether the prior art bore any relationship to Yeiser and Fleming's ability to stake narrower claims of the sort pursued in the reissue application. In essence, Jobe likely never *1148 considered that Yeiser and Fleming had seen the prior art and decided that it either foreclosed laying claim to narrower specifications, or made such specifications undesirable. Jobe and all the others at B & L never considered investigating whether there was an error because they began from the premise that the patent was defective in not claiming those elements of the invention which B & L then wished to assert against HP and others. TR. Vol. 4-649-50. In their minds, the existence of the "defect" was equivalent to an error, TR. Vol. 4-651 (Jobe testimony); TR. Vol. 5-788 (Robbins testimony), which is precisely what their expert testified. See TR. Vol. X-XXXX-XX (Lupo testimony).
This leads to the question of whether B & L ever investigated to determine whether there was reissuable error, i.e., whether the defect was due to an error that was susceptible of correction through reissue. B & L's position at trial was that there was no duty in this regard because the defect was so blatantly obvious. Even on direct examination, B & L officials refused to acknowledge the distinction between a defect and a reissuable error. See TR. Vol. 5-823 (testimony of Howard Robbins: "I am just trying to understand the question.") In direct testimony, Howard Robbins stated that the basis for his belief that the '950 patent was reissuable due to error was because "it appeared to me the applicant had claimed less than the applicant had a right to claim in the original Yeiser '950 patent." TR. Vol. 5-722. Properly describing this statutory defect as a "failure" rather than an error, B & L's attorney tried to inquire whether the "failure was a result of error or not?" Id. Robbins' response was to state that on the face of the patent he was able to determine that the omission of material that could have been claimed "was reissuable error." TR. Vol. 5-723. In implicitly explaining his unwillingness to separate the concept of a defect from the error that caused it, as is described in the statute, Robbins stated that "a reasonably prudent patent practitioner would have included those further characterizations of the driving mechanism dependent from claim 1." Id.
The point missed by Robbins and others at B & L is that what was "reasonable" for Yeiser and Fleming at the time is inevitably a function of the prevailing circumstances. Without any idea of the circumstances in which the original patent was obtained, B & L's reissue application was submitted with reckless indifference to the statutory requirements. B & L did not know and did not care whether an error had been made; there was a defect and a need for reissue and any sort of averment of error was adequate.
The Court must reject this logic and this approach because it does violence to the purpose and spirit of the reissue statute. The requirements for reissue are quite clearly stated in the regulations. The requisite elements for the oath requirement are also clearly articulated in 37 C.F.R. § 1.175 and are augmented by the MPEP § 1404.03. Case law further evinces that "not every event or circumstance that might be labeled "error" is correctable by reissue." In re Weiler, 790 F.2d 1576, 1579 (Fed.Cir.1986). The Federal Circuit has emphasized that the reissue statute is not a "panacea" for all prosecution mistakes or a "grant to a patentee of a second opportunity to prosecute de novo his original application." Id. at 1582. Thus, plaintiff's expert James Gambrell is correct in stating that B & L's views of the '950 patent were irrelevant.[24] The real issue *1149 was whether Yeiser and Fleming were satisfied:
[W]hen you're talking about the scope of claims, the question whether there are narrower claims and whether that defect occurred as a result of error without deceptive intent, is inherently and importantly a question which is devoted and directed to the inventor and patentee who is the person who is claiming and obtaining the patent.
And so, therefore, what you need to know is what Yeiser felt was defective, if anything, and whether that was an error on his part; not whether you go back and look and say, "Gee, I would like to have claims on another feature or another aspect of this invention."
That's not enough for reissue. The question is: did Yeiser find a defect or would he have felt there was a defect that occurred through error without deceptive intent?
TR. Vol. 3-431-32.
No one at B & L knew whether claims of the character of reissue claims 10-12 had been considered by Yeiser or Fleming. TR. Vol. 4-652 (testimony of Jonathan Jobe). In filing the original reissue application, B & L was not concerned with the details of the original patent prosecution; they simply wanted the reissue. B & L spoke to no one. TR. Vol. 4-653 (testimony of Jonathan Jobe). B & L did not contact Fleming. B & L did not contact the original assignee of the patent, LDC. B & L did not contact the original owner of the patent by assignment from LDC, Milton Roy. B & L did not contact Milton Roy's attorney in Philadelphia who had monitored Fleming's prosecution of the patent. B & L did not seek out or speak to Fleming's number one assistant, Ronald Ross. B & L did not speak to Yeiser's wife Patsy or to any of his professional associates or personal friends who might have information regarding the conduct of the original patent proceedings. Worse still, when they were told by the examiner to contact the original patent agent, they did not once ask him whether he or Yeiser had considered adding narrower or intermediate claims to the '950 patent application. Once again, B & L was determined to obtain a reissue and was not concerned about whether its representations corresponded to the actual reality. B & L clearly breached its duty to make a reasonable investigation of its representations.
There is also a serious question whether B & L breached its duty to provide the PTO with information contradicting its reissue application. Defendant's expert Rafael Lupo testified that the whole patent system depends on the good faith candor of the attorneys prosecuting cases before the PTO. TR. Vol. 7-1075. When an attorney breaches the duty of candor, inequitable conduct has been committed. Id. Lupo also admitted, and the facts are clear on this, that when B & L investigator Bill Ellis met with Lawrence Fleming in September 1984, the reissue application was still pending. At that meeting, Ellis may have learned, if he did not already know, that Fleming had several volumes of notebooks kept during the relevant time period of the original patent application. Nonetheless, B & L did nothing. It neither examined the notebooks nor asked for a stay of its application pending review of the notebooks.
There is a gap in HP's case on this point because it never established that B & L knew about the notebooks as a result of the September 1984 meeting between Ellis and Fleming. The reference to the notebooks in Fleming's notes of that meeting is plain, but HP did not establish that B & L saw Fleming's notes or that Fleming told Ellis about the notebooks. Thus, it might be the case that B & L truly did first learn of the existence of the notebooks during a deposition of Mr. Fleming taken in this litigation.[25] A contrary inference is also *1150 possible. Considering that the burden of proof was on HP, the Court concludes that B & L was not apprised of the existence of the notebooks as a result of the September 1984 meeting between Fleming and Ellis.
B & L's knowledge about the notebooks leads to consideration of B & L's state of mind throughout the reissue proceeding. As discussed above, the Federal Circuit in the FMC Corp. stressed that good faith intent is a complete rebuttal to the affirmative defense of inequitable conduct. The Court was able to hear the testimony of four of the principle actors for B & L in the reissue proceedings, including Lawrence Fleming, Jonathan Jobe, Howard Robbins, and Bernard Bogdon. In one way or another, each of the individuals averred a good faith intent during the reissue application process. On this point, defendants received partial support from plaintiff's expert Gambrell who stated that he saw "nothing that shows they were intentionally trying to be dishonest." TR. Vol. 3-381.
When all the evidence is added up, however, all that defendants have are mere denials of intent to mislead. Pursuant to J.P. Stevens and FMC Corp., this is not enough. At every step of the reissue process, B & L refrained from exerting any but the least effort in determining the truth. "Studied ignorance" is perhaps the best way to describe B & L's position. B & L's attorneys sought to know as little as possible about the original application proceeding. They ignored the reference in the file history of the '950 patent to the existence of commercial embodiments of the mechanism when Fleming told them he had only a crude model. They made a representation of "oversight" that was "without deceptive intent" when they had absolutely no idea whether the statement was true. When directed by the examiner to obtain the statement of the original patent agent, they did so, but under circumstances wherein the agent was told he had made an error and asked for some rationalizations. Moreover, in eliciting the rationalizations both B & L attorneys were fastidiously careful not to ask crucial, almost painfully obvious questions about the original patent application. And despite the fact that the patent agent was an elderly man being asked to recall events transpiring a decade before, B & L never undertook to confirm any facts provided by Mr. Fleming. In short, the entire process was antiseptically clean and devoid of even a hint of dirt having been dislodged in the investigation. The duty of candor and good faith is not so easily discharged. B & L has not demonstrated that it acted in good faith and the witnesses' testimony is not credible on that subject.
For the reasons described above, the Court concludes that B & L committed inequitable conduct in procuring the Yeiser reissue patent. The Court cannot conclude that the attorneys acted in good faith. Therefore, the nine remaining claims of the reissue patent which correspond to the original '950 patent are hereby declared unenforceable.
V. CONCLUSION.
All twelve claims of the Yeiser reissue patent are void. Claims 10-12 are invalid because they were obtained in contravention of the statutory and regulatory requirements. Claims 1-9 of the Yeiser reissue patent, which are the original nine claims of the '950 patent, are unenforceable due to the inequitable conduct of B & L during the reissue application process.
IT IS SO ORDERED.
NOTES
[1] For a discussion of the semantic distinction between "unenforceability" and "invalidity," see J.P. Stevens & Co., Inc. v. Lex Tex Ltd., Inc., 747 F.2d 1553, 1560-61 (Fed.Cir.1984).
[2] During reissue, the patent examiner required B & L to correct a typographical error in claim 3. This alteration did not affect the substantive identity between the original claim 3 and reissue claim 3. Slimfold Mfg. Co. v. Kinkead Industries, 810 F.2d 1113, 1115 (Fed.Cir.1987). All other claims remained identical in both applications.
[3] An exegesis of the oath requirement is contained in the Manual of Patent Examining Procedure (the "MPEP") which is published by the United States Patent and Trademark Office and serves as the authoritative reference for patent examiners and others working in the field. The relevant text of the MPEP as it existed at the time B & L pursued their reissue application stated:
1414.03 Requirements of § 1.175(a)(5)
All reissue oaths or declarations must comply with subsection 1.175(a)(5) ... by "particularly specifying the errors ... relied upon, and how they arose or occurred." Subsection 1.175(1)(5) has two specific requirements, both of which must be complied within, or by, the reissue oath or declaration. This subsection requires applicant to particularly specify (1) "the errors ... relied upon" and (2) "how they arose or occurred."
* * * * * *
It is particularly important that the reissue oath or declaration specify in detail how the errors ... arose or occurred. "How" includes when and under what circumstances the errors ... arose or occurred. This means that the reissue oath or declaration must specify the manner in which "... errors" "arose or occurred." ... If the reissue oath or declaration does not particularly specify "how," i.e., the manner in which ... errors arose or occurred, the Office will be unable to adequately evaluate reissue applicant's statement in compliance with § 1.175(a)(6) that the "errors ... arose `without any deceptive intention' on the part of the applicant"[.]
[4] John Yeiser was the inventor of the "X-Y Plotter" described in U.S. Patent No. 3,761,950 (the '950 patent). At the time he conceived of the subject matter of the '950 patent, Yeiser was a principal in a business which made and sold strip chart recorders and X-Y recorders. Yeiser filed his application for a patent in August 1970. During the pendency of the patent application, Yeiser's business relationship changed and the patent was issued to the Milton Roy Company of St. Petersburg, Florida, on September 25, 1973. In May 1982, B & L bought the '950 patent from the Milton Roy Company for $30,000. On November 15, 1982, B & L filed an application with the PTO for a reissue of the '950 patent. After a protracted proceeding that is more fully discussed below, the Yeiser reissue patent was granted on September 25, 1984.
[5] B & L contends: "Only after the court sustains the defense on the merits can it be said that, had the same facts been presented to the Commissioner, no authority would have existed for [re]issuing the patent." B & L Opposition Brief at 18.
[6] The Federal Circuit in In Re Weiler also noted that the applicant's "reliance on allegations of the inventor's ignorance of drafting and claiming technique and counsel's ignorance of the invention is unavailing. Those allegations could be frequently made, and, if accepted as establishing error, would require the grant of reissues on anything and everything mentioned in a disclosure. [Applicant] supplies no facts indicating how the ignorance relied on caused any error as the basis of his failure to claim the subject matter" in dispute. On this basis, the court affirmed the denial of the reissue application as to the claims in question. In Re Weiler, 790 F.2d at 1583 n. 4.
[7] It is worth noting that despite its deficiencies, the first Fleming affidavit was not a total loss. The patent examiner did rely upon and accept a portion of Fleming's statement:
The Fleming Affidavit states that the contacts and ability to communicate with the inventor by the agent who prepared the application were significantly limited. It is acceptable on this point. It is not acceptable however as to how and by whom the scope of the subject matter claimed was determined and why.
[8] The "events" referred to were "Yeiser's activities" which caused Fleming's "contacts" during the critical period to be "at best infrequent." PX 19, Tab 4.
[9] Mr. Fleming's notebooks have been the subject of considerable interest in this litigation. Fleming kept time notebooks from 1970 to 1973 detailing daily activities in his patent practice. After Fleming ceased his record keeping, he took the notebooks home and placed them on a bookshelf. Years passed and other books accumulated on the bookshelves pressing the time notebooks to obscurity in the rear of the shelves. Some time later, according to B & L sometime after the completion of the reissue application process, Fleming discovered the notebooks. The tomes contradict crucial parts of Fleming's affidavits.
As discussed below, it now appears that Fleming had discovered the notebooks and consulted them prior to the issuance of the reissue patent. This fact came to light during cross examination of Fleming at trial. Fleming could not explain the discrepancy between his recollection of the date of discovery of the notebooks and his own handwritten notes in September 1984 indicating reference to the notebooks.
[10] HP does not specify the position of John West. Apparently, he worked for LDC at the same time as Jack Yeiser. One key portion of the West deposition testimony is as follows:
Q. Were any changes in the drive system made to these plotters after Jack Yeiser's death?
A. After Jack Yeiser left Florida and went back to California, I'm not aware of any specific change that took place in the recorder, in the XY recorder.
Q. So to the best of your knowledge, those XY plotters that LDC offered commercially for sale, it was Jack Yeiser that had the main input as to the design of that plotter?
A. Yes.
Q. And any other engineering changes that would have been made to those machines would have gotten a final approval from Jack Yeiser?
A. Yes.
Q. Because he was director of engineering?
A. Yes.
[11] Title 35 U.S.C. § 288 states:
Whenever, without deceptive intention, a claim of a patent is invalid, an action may be maintained for the infringement of a claim of the patent which may be valid. The patentee shall recover no costs unless a disclaimer of the invalid claim has been entered at the Patent and Trademark Office before commencement of the suit.
[12] See also the United States Court of Customs and Patent Appeals' decision in Application of Wittry, 489 F.2d 1299 (CCPA 1974). Observing that the MPEP states that a finding of insufficiency of the oath offered in support of a reissue application should be a general ground of rejection of all claims, the court stated that the "instruction obviously is not applicable to original patent claims where, as here, the insufficiency does not apply to all the new claims in the reissue application." (emphasis in original) 489 F.2d at 1303 n. 3.
[13] This conclusion also finds support in 4 Lipscomb's Walker on Patents (3d ed. 1985) § 14:38. The relevant section is entitled "Reissued Patents May be Valid as to Some Claims While Void As to Others."
[14] In KangaROOS, the Federal Circuit reversed a ruling granting partial summary judgment on the issue of inequitable conduct. The court stated that despite a district court finding that it was "inconceivable" that KangaROOS could adduce evidence to change the district court's conclusion, "the weight of authority requires that KangaROOS not be denied that opportunity." 778 F.2d at 1577.
[15] In Kearney, reissue claims 15, 19, and 20 were "substantially identical" with the their counterparts in the original patent. 452 F.2d at 581.
[16] As explained in B & L's pretrial statement, electromechanical instruments that use a pen to trace a graph on paper generally fall into two categories: strip chart recorders or X-Y plotters. Strip chart recorders use long rolls of papers which are moved at a constant speed in one direction beneath a pen. The pen is constrained to move back-and-forth at right angles to the direction of the paper movement. As the paper moves past the pen, the pen writes across the paper creating a graph or other recording.
X-Y plotters are capable of plotting data generated externally to the plotter along two axes at right angles, commonly called the X-axis and the Y-axis. In an X-Y plotter, the variable data for both axes is applied as external varying input signals to the plotter. One external input signal controls how the pen writes vis-a-vis the X-axis, and the other external input signal controls how the pen writes with respect to the Y-axis. See B & L Pretrial Statement at 4.
[17] Although a large corpus of evidence has been introduced by the parties, much of it relates to other issues to be tried. That portion of the evidence relating solely to the issue of inequitable conduct in procuring the reissue patent has been assembled in binders and hereafter will be referred to as "HP Exhibits" or "B & L Exhibits."
[18] At trial, Jobe stated that he spoke to Fleming the first time for "approximately half an hour." TR. Vol. 4-615.
[19] There was one other telephone call placed by Fleming to Jobe, but it concerned solely the issue of Fleming's bill. See HP Exhibit 269-70. Jobe stated that he and Fleming spoke for a minute or two about whether Fleming could send Jobe a bill for his efforts. That conversation may have taken place on June 20, 1983. Subsequently, Fleming sent B & L (through Jobe) a bill for 1.25 hours of work for a total of $75. Id.
[20] In cross examination at trial, Fleming did not recall whether he or investigator Ellis had brought up the subject of Jack Yeiser's assistant. TR. Vol. 4-591.
[21] The reason these questions were asked relates to dispute between B & L and HP over ownership of the patent. Mrs. Yeiser apparently had executed a quitclaim deed to HP who was then claiming ownership. That dispute is irrelevant here, but it is highly relevant that when it sought the truth B & L knew how to ask direct questions.
[22] Mr. Gambrell's resume is found at PX 148. Mr. Lupo's resume is found in B & L general trial exhibits at DX84.
[23] Gambrell stated at one point: "[W]e're talking about a reissue situation, in which you have to establish that the defect occurred by error and without deceptive intent. And that's not just any situation." TR. Vol. 3-414.
Gambrell concluded that he "saw no basis for the reissue because the question is whether the inventor or the patentee committed had a defective application, specification, claim or what have you, that was that occurred as a result of an error without deceptive intent...." TR. Vol. 3-431-32.
[24] It is obvious that Mr. Gambrell read Weiler with care, for his testimony is fully consistent with the court's ruling. For example, as quoted earlier, Gambrell stated at one point: "[W]e're talking about a reissue situation, in which you have to establish that the defect occurred by error and without deceptive intent. And that's not just any situation." TR. Vol. 3-414. In another portion of his testimony, Gambrell stated:
Reissue applications are not permitted to allow you to reargue whether you have the proper coverage for your invention. That's not the purpose of the reissue. You have to find a defect that was caused by an error without deceptive intent and if Mr. Yeiser got the kind of claims he wanted, that's all he's entitled to and he's not entitled to go back and reissue for that reason just because somebody else has decided in hindsight that they would like to have some other kinds of claims.
TR. Vol. 3-427.
[25] Of course, this would not mitigate B & L's breach of its duty to investigate by failing to inquire about something as obvious as a patent agent's time notebooks, but it would eliminate a duty to report contrary information learned during the pendency of the reissue application.
| {
"pile_set_name": "FreeLaw"
} |
J-S39034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.S.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
S.C.B. :
:
Appellant : No. 1464 MDA 2017
Appeal from the Order Entered August 23, 2017
in the Court of Common Pleas of Cumberland County,
Civil Division at No(s): 2016-01738
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 14, 2018
S.C.B. (“Wife”) appeals from the trial court’s child and spousal support
Order, which adopted the Report and Recommendation of the Support Master
(hereinafter, “the Master”) and dismissed Wife’s exceptions thereto. J.S.B.
(“Husband”) has filed an Application to Quash the appeal. We quash in part
and affirm in part.
The trial court summarized the factual and procedural history as follows:
The parties were married on October 12, 2013. They have
one child together [(“Child”),] who was born [in] August [] 2014.
After [spending] time in marital counseling, the parties separated
in the wake of an argument that occurred at their home on
February 4, 2016. … [] [T]he parties ceased cohabitating as of
February 8[, 2016]. Wife continued to reside in the marital home,
which she had purchased prior to the parties’ marriage, and
retained primary custody of [Child].
Wife filed a [C]omplaint seeking child support on August 4,
2016. One week later, Husband filed a [C]omplaint seeking
spousal support[,] and requested a hearing on alimony pendente
lite [(“APL”)]. [Following a hearing before a conference officer
with the Cumberland County Domestic Relations Office, the
J-S39034-18
conference officer entered an “Interim Order” dated September
16, 2016 (hereinafter “the Interim Order”). Therein, the
conference officer set Wife’s monthly spousal support obligation
to Husband as $827.14, and set Husband’s monthly child support
obligation to Wife as $927.22, for a net obligation [of] $100.08
per month from Husband to Wife. The conference officer rounded
this figure to $100 per month.] Wife was unsatisfied with the
conference officer’s determination, and requested a de novo
hearing before the [] Master. [At the November 21, 2016 hearing
(hereinafter “the Master’s hearing”),] Wife appeared pro se[,] and
argued that Husband was not entitled to spousal support[,] and
was ineligible for APL[,] because he could not demonstrate “need.”
[By a Report and Recommendation entered on December 30,
2016,] [t]he [] Master adopted the conference officer’s
calculations [in the Interim Order] and determined a net obligation
of $100 per month from Husband to Wife. Wife filed [E]xceptions
to the [] Master’s Report and Recommendation.
Trial Court Opinion and Order, 8/23/17, at 3-4 (footnotes, citation to record,
and some paragraph breaks omitted). Importantly to the instant appeal, the
divorce action between the parties is pending, and their economic claims have
not yet been resolved.
By Opinion and Order dated August 23, 2017 (hereinafter, the “Order
on appeal”), the trial court dismissed Wife’s Exceptions and adopted the
Master’s Report and Recommendation. Wife timely filed a Notice of Appeal.
She thereafter filed a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
errors complained of on appeal, followed by a Supplemental Concise
Statement.
On November 29, 2017, this Court issued a Rule to Show Cause why
Wife’s appeal should not be quashed as having been taken from an Order that
is interlocutory and non-appealable. Specifically, we stated, in relevant part,
as follows:
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J-S39034-18
It appears that a divorce decree has not yet been entered below.
A spousal support order entered during the pendency of a divorce
action is not appealable until all claims connected to the divorce
action are resolved. Leister v. Leister, 684 A.2d 192 (Pa. Super.
1996) [(en banc) (holding that spousal support/APL orders, when
entered during the pendency of a divorce action, are interlocutory
and unappealable, even if entered pursuant to a separately-filed
complaint for support)]; [accord] Thomas v. Thomas, 760 A.2d
397 (Pa. Super. 2000); Shellhamer v. Shellhamer, 688 A.2d
1219 (Pa. Super. 1997); see also Pa.R.A.P. 341(b)(1) ([providing
that] a final order is any order that disposes of all claims and all
parties). To the extent the trial court’s decision addressed spousal
support, it appears the [O]rder [on appeal] may not be
immediately appealable.
Order, 11/29/17 (paragraph break omitted).
Wife filed a timely Response to the Rule to Show Cause. Therein, she
argued that the Order on appeal is an unallocated Order awarding spousal
support and child support, and therefore, is immediately appealable as to all
claims covered in the Order on appeal.1 This Court thereafter entered an
Order discharging the Rule to Show Cause, referring a determination as to the
finality of the Order on appeal to the merits panel.
On January 27, 2018, Husband filed an Application to Quash Wife’s
appeal. Therein, he asserted, in relevant part, as follows:
30. In the instant case, the [Interim] Order of September 16,
2016[,] is in fact, allocated. The Order clearly provides a
calculation for spousal support and [a] separate calculation for
____________________________________________
1 In support, Wife cited Pennsylvania Rule of Civil Procedure 1910.16, which
provides, in relevant part, that “[a]n unallocated order in favor of the spouse
and one or more children shall be a final order as to all claims covered in the
order.” Pa.R.C.P. 1910.16(b); see also Pa.R.C.P. 1920.56 (setting forth the
same language in the context of allocation of “an order awarding child support
combined with spousal support, alimony pendente lite or both[.]”).
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J-S39034-18
child support, clearly delineating between the two support
obligations.
31. The [Interim] Order … distinctly discusses an offset of
Husband’s child support obligation owed to Wife[,] as a result of
Wife’s spousal support obligation owed to Husband, based upon
when a custodial parent owes spousal support, pursuant to
Pa.R.C.P. 1910.16-4(e).
32. The [Interim] Order … is allocated[,] as indicated in the title
of the Order, which is not a misnomer based upon the contents of
the Order. The spousal support and child support obligations are
clearly allocated. This appeal is based on an interlocutory order
that is not appealable.
Application to Quash, 1/27/18, ¶¶ 30-32 (some capitalization omitted).
Additionally, Husband requested this Court to order Wife to pay his attorneys’
fees, asserting that she initiated the appeal in bad faith. Id. ¶¶ 33-38. The
per curiam Court deferred ruling on the Application to Quash to this panel.
Wife now presents the following issues for our review:
1. Did the lower court err when it awarded spousal support[,]
when the actual issue in these proceedings[,] as framed by
[Wife,] was whether [Husband] needed APL?
2. Did the lower court err by refusing to credit [Wife] for increased
health insurance expenses?
3. Did the lower court err by failing to allocate [Husband’s] child
support obligation and [Wife’s] support obligation, thus
depriving [Wife] of an otherwise applicable tax deduction?
4. Did the lower court err by not granting an upward deviation in
[Husband’s] child support obligation since[,] at the time of the
award, he spent less than thirty percent of the custodial time
with [] [C]hild?
Brief for Wife at 3.
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J-S39034-18
First, we must address Husband’s Motion to Quash. Wife’s appeal
implicates the parties’ respective spousal/APL and child support obligations
under the Order on appeal. Because a divorce decree has not yet been
entered, the spousal support/APL portion of the Order on appeal is
interlocutory and not appealable. See Leister, supra. However, this Court
has held that during the pendency of a divorce action, “the portion of a trial
court order attributable to child support is final and immediately appealable[.]”
Capuano v. Capuano, 823 A.2d 995, 998 (Pa. Super. 2003).
Thus, we grant Husband’s Motion to Quash in part, and deny in part.2
Specifically, we quash the appeal pertaining to spousal support/APL (i.e.,
raised in Wife’s first and third issues3), and proceed to the merits of this appeal
insofar as it relates to child support.
Our standard of review is as follows:
Appellate review of support matters is governed by an abuse of
discretion standard. When evaluating a support order, this Court
may only reverse the trial court’s determination where the order
cannot be sustained on any valid ground. An abuse of discretion
is not merely an error of judgment, but if in reaching a
conclusion[,] the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will, as shown by the evidence of record. The
____________________________________________
2 We deny Husband’s request for attorneys’ fees.
3 Though Wife’s third issue references child support, the primary thrust of this
issue does not concern the support of Child or Husband’s support obligation.
Nevertheless, the record belies Wife’s claim in connection with this issue, as
Wife’s monthly spousal support obligation to Husband was, in fact, allocated
at $827.14, and set Husband’s monthly child support obligation to Wife was
allocated at $927.22.
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J-S39034-18
principal goal in child support matters is to serve the best interests
of the children through the provision of reasonable expenses.
J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super. 2015) (citation and brackets
omitted). Moreover, “[a] master’s report and recommendation are to be given
the fullest consideration, especially on the issue of the credibility of
witnesses.” Kraisinger v. Kraisinger, 928 A.2d 333, 344 (Pa. Super.
2007) (citation omitted).
In her second issue, Wife contends that the trial court erred when it
failed to credit her, in calculating the amount of Husband’s child support
obligation, for Wife’s increased health insurance expenses, which she expends
on behalf of Child. Brief for Wife at 9. Wife points out the Master’s statement
at the Master’s hearing concerning these expenses: “[W]e will leave open for
the record that there [sic] may be a change in [Wife’s health insurance
expenses] effective January 1, 2017. So we can certainly introduce evidence
to that effect.” Id. (quoting N.T., 11/21/16, at 5). According to Wife,
following this statement, she presented evidence to the Master that her health
insurance expenses for the 2017 year increased by $80 per month. Brief for
Wife at 9. Therefore, Wife urges, remand is warranted so that she can be
credited for these increased expenses. Id.
In its Opinion, the trial court addressed Wife’s claim as follows:
The parties were in agreement about the insurance costs for 2016.
N.T.[, 11/21/16,] at 5. The [] Master anticipated Wife’s concern
about increased costs and allowed the record to remain open for
introduction of evidence to that effect. Id. However, Wife did not
then introduce this evidence [(hereinafter “insurance cost
evidence”)] and did not testify further on her cost of insurance.
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J-S39034-18
Thus, any information about increased costs would have been
unavailable to the Master as he made his calculations. Therefore,
we find that the Master’s determination of Wife’s health insurance
costs was supported by the record.
Trial Court Opinion and Order, 8/23/17, at 8. We agree with the trial court’s
rationale and determination, which is supported by the record, and therefore
affirm on this basis in rejecting this issue, see id., with the following
addendum.
Wife asserts that the trial court’s finding that she did not present to the
Master insurance cost evidence is incorrect. Brief for Wife at 9. In support,
she cites to a pro se document, contained in the reproduced record, entitled
“Brief in Support of Mother’s Demand for Hearing De Novo, which she alleges
she “provided … on December 6, 2017[,]” that included insurance cost
evidence. Id. (citing Reproduced Record at 4-19). However, this document
is not contained in the certified record, and there is no indication on the trial
court’s docket that Wife properly filed this document. Accordingly, we cannot
consider it on appeal. See Keystone Tech. Grp., Inc. v. Kerr Grp., Inc.,
824 A.2d 1223, 1228 n.6 (Pa. Super. 2003) (stating that “[i]t is axiomatic that
an appellate court is limited to considering only those facts which have been
duly certified in the record on appeal and, for purposes of appellate review,
what is not of record does not exist.”).
In her fourth issue, Wife argues that the trial court erred in failing to
apply an upward deviation concerning Husband’s child support obligation,
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J-S39034-18
given that he spent less than 30% of the custodial time with Child. Brief for
Wife at 11.
Before addressing the merits of this claim, we must determine whether
Wife preserved it for our review. Generally, “issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.
302(a); see also Twilla v. Twilla, 664 A.2d 1020, 1027 (Pa. Super.
1995) (finding an issue waived in an equitable distribution matter where the
appellant/wife failed to raise it before the trial court in her exceptions to the
master’s report). Likewise, Pa.R.C.P. 1920.55-2, governing exceptions to
masters’ reports, provides, in relevant part, that “[m]atters not covered by
exceptions are deemed waived unless, prior to entry of the final decree, leave
is granted to file exceptions raising those matters.” Pa.R.C.P. 1920.55-2(b).
Accordingly, Wife has waived this issue.4 However, even if this issue was not
waived, we would determine that it does not entitle Wife to relief for the
following reasons.
Wife points out that the Explanatory Comment to Pennsylvania Rule of
Civil Procedure 1910.16-4 (governing calculation of support obligations)
states, in relevant part, as follows:
____________________________________________
4Further, the fact that Wife raised this issue in her Supplemental Rule 1925(b)
Concise Statement, and the trial court briefly addressed it in its Supplemental
Rule 1925(a) Opinion, does not preserve the claim for appellate review, in the
absence of Wife having earlier raised it before the trial court. See, e.g.,
Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009) (holding that “a 1925(b)
statement can [] never be used to raise a claim in the first instance.”).
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J-S39034-18
The basic support schedule incorporates an assumption that the
children spend 30% of the time with the obligor and that the
obligor makes direct expenditures on their behalf during that time.
Variable expenditures, such as food and entertainment that
fluctuate based upon parenting time, were adjusted in the
schedule to build in the assumption of 30% parenting time.
Upward deviation should be considered in cases in which the
obligor has little or no contact with the children. However,
upward deviation may not be appropriate where an obligor has
infrequent overnight contact with the child, but provides meals
and entertainment during daytime contact.
Pa.R.C.P. 1910.16-4, cmt. (2010) (emphasis added) (hereinafter referred to
as “the 2010 comment”). Wife maintains that here, Husband exercised only
approximately 7% of the custodial time, and “there was no evidence that he
provided any … additional support for [] [C]hild.” Brief for Wife at 11, 12
(emphasis omitted)). Thus, Wife contends, “the straight child support
calculations should not have been applicable, as [Husband] did not meet the
30% threshold.” Id. at 11-12.
Our Rules of Civil Procedure provide for a downward deviation in child
support obligations if the obligor exercises custody of the children over 40%
of the time. See Pa.R.C.P. 1910.16-4(c)(1); see also Pa.R.C.P. 1910.16-
5(b) (delineating the factors that a trial court should consider in deciding
whether to deviate from the amount of support determined by the guidelines).
Notably, however, the Rules do not explicitly provide for an
upward deviation if an obligor were to exercise less custody. The 2010
comment states only that a court should consider upward deviation in cases
in which an obligor has “little or no contact with the children.” Pa.R.C.P.
1910.16-4, cmt. (2010).
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In the instant case, Husband’s contact with Child is more than the “little
or no contact” contemplated by the 2010 comment. See Morgan v. Morgan,
99 A.3d 554, 560 (Pa. Super. 2014) (holding that the trial court did not abuse
its discretion in denying a mother’s request, pursuant to the 2010 comment,
for an upward deviation concerning the father’s child support where father
exercised less than 5% of the custodial time, and emphasizing that the 2010
comment “only suggests that upward deviation be considered; it does not
require it.”).
Accordingly, even if this issue was not waived, we discern no abuse of
the trial court’s discretion in determining that an upward deviation of
Husband’s child support obligation was unwarranted under the circumstances.
Order affirmed in part; appeal quashed in part. Motion to Quash granted
in part, and denied in part. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/14/2018
- 10 -
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45 F.3d 443NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Mary GARROVA, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 94-3160.
United States Court of Appeals, Federal Circuit.
Dec. 28, 1994.
Before RICH, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and BRYSON, Circuit Judge.
DECISION
RICH, Circuit Judge.
1
Ms. Garrova petitions for review of a decision of the Merit Systems Protection Board (MSPB or Board) issued on 10 December 1993 in Docket No. SF0831930457-I-1. The Board denied review of its initial decision dated 5 August 1993. In its initial decision, the Board affirmed the action of the Office of Personnel Management (OPM or agency), which decided that Ms. Garrova was not entitled to survivor annuity benefits as the former spouse of Mr. Garrova. We affirm.
DISCUSSION
2
* Ms. Mary Garrova married Mr. Charles Garrova on 10 October 1942. On 30 October 1975, while still married to Ms. Garrova, Mr. Garrova applied for retirement benefits. On the application, he did not elect a survivor annuity benefit for Ms. Garrova. In particular, he certified as follows:
3
I have been informed of my right to elect a reduced annuity for myself with a survivor benefit payable to my spouse after my death. I have had the rates of annuity that I would receive with and without a survivor benefit explained to me. I still elect to receive an annuity payable only during my lifetime with no survivor annuity payable after my death.
4
On 31 December 1975, Mr. Garrova retired from the United States Postal Service while still married to Ms. Garrova. On 29 January 1979, Mr. Garrova and Ms. Garrova divorced by Judgment of Dissolution (Judgment). The Judgment also entered the couple's property settlement agreement, awarding Ms. Garrova some of Mr. Garrova's monthly annuity benefit. The pertinent language in the Judgment provides as follows:
5
[Ms. Garrova] is awarded one-half of the retirement and pension plan of [Mr. Garrova] with [the] United States Post Office[,] and [Mr. Garrova] is ordered to pay to [Ms. Garrova], as received, one-half of the pension as [Ms. Garrova's] distributive share of her community property interest in said pension fund. [Ms. Garrova] shall be entitled to all benefits of said retirement and pension plan to the extent of one-half thereof[,] and [,] if permitted by the United States Post Office [, Mr. Garrova] shall assign to [Ms. Garrova] a one-half interest thereof to the end that said monies or benefits shall be paid directly to [Ms. Garrova] commencing December 15, 1978 and continuing until death of [Ms. Garrova].... Upon the death of [Mr. Garrova], [Ms. Garrova] shall receive all remaining benefits to which she is entitled from said retirement fund as a holder of one-half interest.
6
Ms. Garrova's attorney at the time forwarded a copy of the Judgment to the OPM, which thereafter began paying benefits to Ms. Garrova in June of 1979. The agency continued to pay the benefits to Ms. Garrova until Mr. Garrova's death on 5 July 1992.
7
After Mr. Garrova's death and in response to an inquiry from Ms. Garrova dated 13 August 1992, the agency found, pursuant to 5 C.F.R. Sec. 831.622(a), that Ms. Garrova was not entitled to a survivor annuity as the former spouse of Mr. Garrova. Ms. Garrova, however, asserts that she is entitled to continue to receive annuity payments.
II
8
To prevail, Ms. Garrova has the burden of proving by a preponderance of the evidence that (1) she is the surviving widow of Mr. Garrova, or (2) she meets the requirements of the Spouse Equity Act of 1984 (the Act) for a former spouse annuity. It is undisputed that she is not a surviving widow. She also fails to meet option (2) because she did not submit an application for an annuity before the Act's 7 May 1989 deadline.
9
Ms. Garrova asserts that, although she did not comply with the applicable statutory requirements, she could reasonably expect to receive survivor benefits after her ex-husband's death based on her receipt of benefits from the OPM during his lifetime. Unfortunately for Ms. Garrova, in Office of Personnel Management v. Richmond, 496 U.S. 414 (1990), rev'g 862 F.2d 294 (Fed.Cir.1988), the United States Supreme Court shattered any hope she may have had of succeeding with this argument.
10
The government acts challenged in Richmond were more egregious than the acts Ms. Garrova challenges in the case sub judice. In Richmond, Charles Richmond sought advice to avoid exceeding "a statutory limit on earnings that would disqualify him from a disability annuity." 496 U.S. at 416. In response, a government employee gave Mr. Richmond erroneous oral and written advice. He followed the advice and lost six months of government benefits. Mr. Richmond later claimed that the erroneous and unauthorized advice entitled him to receive the lost benefits from the government under a theory of equitable estoppel. Contrary to the statutory terms, he wanted the government to pay benefits to him because of his detrimental reliance on the erroneous advice. Id. The United States Supreme Court held that where the law does not otherwise allow monetary benefits, the government cannot be estopped from denying those benefits based on equitable considerations.1 The Supreme Court thus, in harmony with every prior finding of estoppel that it had reviewed,2 reversed the court of appeals' holding that the government could be equitably estopped under the facts of Richmond. Id. at 434.
11
Comparing the Richmond facts with the facts of the case sub judice, here, the OPM failed to provide any information; Ms. Garrova claims that this is part of the problem. First, the agency failed to notify her that Mr. Garrova did not elect a survivor annuity benefit for her. Second, the agency failed to notify her that she should apply for survivor annuity benefits before 7 May 1989. The OPM, however, did not have a statutory duty under the pertinent statute to afford a current or former spouse the notice suggested by Ms. Garrova. Since an incorrect but affirmative answer builds unjustified confidence, we believe that failing to provide any information is less egregious than providing erroneous information. Accordingly, Richmond is dispositive.
12
Even without Richmond, however, Ms. Garrova's equitable estoppel argument is dubious. By paying Ms. Garrova one-half of Mr. Garrova's benefits during his lifetime, the OPM did nothing more than what it was statutorily bound to do after receiving notice of the Judgment of Dissolution. The OPM never dubbed the benefits she received as "survivor benefits," and the Judgment merely provides that, upon the death of Mr. Garrova, Ms. Garrova was to receive all remaining benefits "to which she was entitled." Unfortunately for her, she was not "entitled" to any further benefits after the death of Mr. Garrova. He clearly elected to collect, and collected, larger payments during his lifetime, rather than to provide survivor benefits for Ms. Garrova. Any expectation on her part that the benefits OPM paid her during her ex-husband's lifetime would continue after his death was not reasonable.
III
13
Our review of Board decisions is defined and limited by statute. We must affirm the Board's decision unless it is:
14
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
15
(2) obtained without procedures required by law, rule, or regulation having been followed; or
16
(3) unsupported by substantial evidence.
17
5 U.S.C. Sec. 7703(c) (1988). We have carefully considered Ms. Garrova's arguments, and we are sympathetic to her situation and the financial hardship that our decision may place upon her. We find, however, no reversible error in the Board's holding that Ms. Garrova has no right, statutory or otherwise, to the survivor benefits that she is claiming. We therefore affirm.
1
See, e.g., 496 U.S. at 432 ("funds may be paid out only on the basis of a judgment based on a substantive right to compensation based on the express terms of a specific statute"); id. at 433 ("To open the door to estoppel claims would only invite endless litigation over both real and imagined claims of misinformation by disgruntled citizens, imposing an unpredictable drain on the public fisc.")
2
See, e.g., 496 U.S. at 422 ("we have reversed every finding of estoppel that we have reviewed"); id. at 434 (the Supreme "Court has never upheld an assertion of estoppel against the Government by a claimant seeking public funds")
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235 Wis.2d 576 (2000)
2000 WI 62
612 N.W.2d 50
Joan A. GERMAN, Arnold Merkle and Bryan Vergin, Plaintiffs-Respondents,
v.
WISCONSIN DEPARTMENT OF TRANSPORTATION, Division of State Patrol, State of Wisconsin, Charles Thompson and William L. Singletary, Defendants-Appellants-Petitioners.
No. 98-0250.
Supreme Court of Wisconsin.
Oral argument November 3, 1999.
Decided June 21, 2000.
*579 For the defendants-appellants-petitioners the cause was argued by Richard Briles Moriarty, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
For the plaintiffs-respondents there was a brief by Bruce M. Davey and Lawton & Cates, S.C., Madison, and oral argument by Bruce M. Davey.
Amicus Curiae brief was filed by Bruce Meredith and Marilyn Windschiegl, Madison, on behalf of Wisconsin Education Association Council.
¶ 1. WILLIAM A. BABLITCH, J.
Petitioner, the Wisconsin Department of Transportation (DOT)[1] seeks review of a published decision of the court of appeals, German v. DOT, 223 Wis. 2d 525, 589 N.W.2d 651 (Ct. App. 1998). The court of appeals affirmed an *580 order of the circuit court denying DOT's motion to dismiss a wage claim brought by officers of the Wisconsin State Patrol (officers). The officers brought a claim based upon Wis. Stat. § 109.03(5)(1995-96),[2] alleging that they are on-duty during their lunch break and are therefore owed wages for that time pursuant to Wis. Admin. Code. § DWD 274.02(3) (May, 1997). This section of the administrative code requires employers to pay employees for meal periods that are not free from work.
¶ 12. The first issue is whether the officers can bring a claim under Wis. Stat. § 109.03(5) seeking wages for on-duty meal periods, or whether the officers' exclusive remedy is the administrative procedures in Wis. Stat. § 103.005. If we determine the action may be brought under Wis. Stat. ch. 109, then the second issue we must decide is whether the legislature has waived sovereign immunity in ch. 109 for this type of claim.
¶ 3. We hold that Wis. Stat. § 103.005 is not the exclusive means to enforce a wage claim grounded upon Wis. Admin. Code § DWD 274.02(3) and that the right of action created by Wis. Stat. § 109.03(5) allows for claims based upon the hours and overtime regulations to be brought in circuit court without first obtaining administrative review by the Department of Workforce Development (DWD). In addition, we agree with the court of appeals that the legislature has waived the state's immunity in Wis. Stat. ch. 109. Accordingly, we affirm the decision of the court of appeals.
*581 Facts and Procedural History
¶ 4. In 1996 officers of the Wisconsin State Patrol filed suit against their employer, the DOT, in Dane County Circuit Court. The officers asserted they were neither relieved from duty during their 30-minute lunch breaks, nor compensated for this on-duty time as required by Wis. Admin. Code § DWD 274.02(3).[3] As a result, the officers alleged that they were entitled to compensation for these hours worked. Their suit to compel payment of wages due was filed pursuant to Wis. Stat. §§ 109.01 and 109.03, the Wage Payments, Claims and Collections Law (wage claim law).
¶ 5. The DOT moved to dismiss the suit. This motion was denied by the Dane County Circuit Court, the Honorable P. Charles Jones presiding.[4]
¶ 6. The DOT sought expedited review by the court of appeals. The court of appeals affirmed the order of the circuit court. The DOT appealed to this court pursuant to Wis. Stat. § 808.10 (1997-98), which we granted.
*582 Standard of Review
[1, 2]
¶ 7. We are asked to review denial of a motion to dismiss. To determine the sufficiency of the complaint, we must examine the statutory authority cited by the plaintiffs as the basis for their claim to determine two issues. First, we must determine whether Wis. Stat. ch. 109 is a vehicle to enforce Wis. Admin. Code § DWD 274.01(3), a rule promulgated by the authority vested in the DWD under the hours and overtime law, Wis. Stat. § 103.02, or whether this administrative code section can only be enforced by the administrative review procedures in Wis. Stat. ch. 103. Second, we must determine if the legislature has waived sovereign immunity in ch. 109. Statutory interpretation is a question of law which we review de novo. Morris v. Juneau County, 219 Wis. 2d 543, 550, 579, N.W.2d 690 (1998). Our goal in interpreting a statute is to discern the intent of the legislature. Id.
Analysis
¶ 8. We first resolve whether the officers' claim is properly brought under the wage claim law, Wis. Stat. ch. 109. The plain language of ch. 109 broadly defines the word "wage" in relevant part as "remuneration payable to an employe for personal services" and cites as examples salaries, vacation pay, and overtime pay. Wis. Stat. § 109.01(3).[5] The breadth of this definition *583 encompasses the employer's obligation under Wis. Admin. Code § DWD 274.02 to pay an employee for on-duty meal break wages. This administrative code provision requires "remuneration" for "personal services," comparable to the examples listed in § 109.01(3). We see little difference between a claim under ch. 109 by an employee seeking overtime wages with the officers' claim for on-duty meal break wages. In both cases the employee asserts that work has been performed and wages are now due.
[3]
¶ 9. The DOT contends that a claim under Wis. Admin. Code § DWD 274.02(3) can only be resolved through the administrative procedures in Wis. Stat. § 103.005. Where the legislature enacts an administrative scheme to enforce a statute, the administrative mechanism is presumed exclusive unless there is an affirmative legislative indication of the contrary. Bourque v. Wausau Hosp. Center, 145 Wis. 2d 589, 594, 427 N.W.2d 433 (Ct. App. 1988). The DOT argues that resolving whether meal breaks are compensable on duty work time is an issue that arises under Wis. Stat. ch. 103, the Hours of Work Law and is to be brought forward in the administrative review procedures in that chapternot through Wis. Stat. ch. 109.
¶ 10. The provisions of Wis. Stat. ch. 109 and Wis. Stat. § 103.02 address two sides of the same coin. Under the authority of § 103.02 the DWD has promulgated an administrative rule requiring employers to pay employees for on-duty meal periods. Wis. Admin. Code § DWD 274.02(3). In Wis. Stat. § 109.03(5), the legislature has provided employees with the right to bring an action in court against an employer for wages *584 due without first pursuing administrative review with the DWD. As the court of appeals noted:
We acknowledge the DOT's argument that the officers are really seeking a determination of whether their lunch periods are "hours of work, "but that is part and parcel of their claim for wages due. The amount of pay-or possibly, compensatory time-the officers may ultimately be found to have due them must necessarily await a determination of whether any compensation is due them for lunch periods. Nonetheless, the essence of the officers' claim is that they are due compensation that the DOT has not paid.
German, 223 Wis. 2d at 539 n.5 (emphasis in the original). Combined, these statutory provisions create a system to assure that each employee is compensated for his or her labor.
[4]
¶ 11. Statutes on the same subject matter are interpreted in a manner that harmonizes them, giving each statute full force and effect. McDonough v. Department of Workforce Dev., 227 Wis. 2d 271, 279-80, 595 N.W.2d 686 (1999) (quoting State v. Aaron D., 214 Wis. 2d 56, 66, 571 N.W.2d 399 (Ct. App. 1997)). The DOT's argument vitiates an employees' private right of action for wages due in Wis. Stat. ch. 109. The reasoning of the court of appeals is compelling.
If an employee-initiated wage claim could not be brought under ch. 109 merely because it was disputed on hours and overtime grounds, an employer could defeat an employee's suit merely by alleging that the employee was "off-duty" during part of the time for which the employee is claiming wages due. The "off-duty" allegation would require an interpretation of WIS. ADM. CODE § DWD 272.12(12)(2)(b) *585 (which is made applicable to hours and overtime disputes by virtue of WIS. ADM. CODE § DWD 274.045). Thus an employer could convert the employee's ch. 109 claim for wages due to a ch. 103 claim to determine whether wages were due, thereby avoiding the employee-initiated suit and the penalties provided by ch. 109.
German, 223 Wis. 2d at 543.
[5]
¶ 12. Further, and as the court of appeals notes, "the presumption that an administrative remedy is exclusive does not apply if there is legislative expression to the contrary. Id. at 538 (citing Gardner v. Gardner, 175 Wis. 2d 420, 428, 499 N.W.2d 266 (Ct. App. 1993)). Wisconsin Stat. § 103.005(14)(a) provides that the DWD shall administer laws related to employment and the regulation of employment "so far as not otherwise provided for in the statutes." We find that the plain meaning of § 103.005(14), when read together with Wis. Stat. ch. 109, is that employees are authorized by the legislature to seek enforcement of Wis. Admin. Code § 274.02(3) through Wis. Stat. § 109.03(5).
¶ 13. The relationship between Wis. Stat. ch. 103 and Wis. Stat. ch. 109 is demonstrated in legislative history. Wisconsin Stat. § 109.03 was created by ch. 380, Laws of 1975. The new law was proposed by a Special Committee on Employe Protection in Business Closing to the 1973-75 Legislative Council and consolidated existing wage payment and wage claim laws with new protections, including a plant closing notification law. The newly created § 109.03 imported most of the provisions of the former Wis. Stat. § 103.39 *586 (1973).[6] The statutory language relating to court actions on wage claims adopted in ch. 380, Laws of 1975, was substantially identical to that which had been provided in ch. 103.
¶ 14. In addition, ch. 380, Laws of 1975 § 3 provided that the department was to investigate wage claims and specifically to enforce Wis. Stat. § 103.02.[7] This language remains in Wis. Stat. § 109.09(1). Subsequently, 1993 Wis. Act 86 amended that portion of Wis. Stat. ch. 109 allowing employees to bring an action for wages in circuit court, adding that the action could be brought without first filing a wage claim with the department under § 109.09(1). As the court of appeals stated, we find "no indication that the legislature intended the scope of employee-initiated wage claim actions to be more limited than the scope of the actions that DWD is authorized to pursue on the employee's behalf." German, 223 Wis. 2d at 542.
¶ 15. The relationship between Wis. Stat. chs. 103 and 109 is also evident in Wis. Admin. Code ch. DWD 274. The penalties provision of that chapter states in relevant part that "[a]ny employer who violates order s. DWD. . .274.03. . .shall be subject to the *587 penalties provided in ss. . . .109.11." Wis. Admin. Code § 274.07.
[6]
¶ 16. Based upon the plain language of Wis. Stat. ch. 109, the legislative history of ch. 109 and Wis. Stat. ch. 103, the absence of any bar to this claim in ch. 103, and the need to harmonize ch. 109, ch. 103 and Wis. Admin. Code § DWD 274.03(2), we conclude that the officers have properly brought this action under ch. 109.
[7]
¶ 17. The second issue we must then consider is whether the legislature has waived sovereign immunity in Wis. Stat. ch. 109. The State of Wisconsin's sovereign immunity derives from Article IV, § 27 of the Wisconsin Constitution.[8] It is axiomatic that the state cannot be sued without the express consent of the legislature. Bahr v. State Inv. Bd., 186 Wis. 2d 379, 521 N.W.2d 152 (Ct. App. 1994); Lister v. Board of Regents, 72 Wis. 2d 282, 291, 240 N.W.2d 610 (1976); Chicago, M. & St. P.R. Co. v. State, 53 Wis. 509, 512-13, 10 N.W. 560 (1881). If sovereign immunity is properly raised, then the court is without personal jurisdiction over the state. Lister, 72 Wis. 2d at 291.
[8]
¶ 18. The state's sovereign immunity from suit extends to the state's agencies and arms. Id. Sovereign immunity does not apply to the activities of a state-created agency with independent proprietary powers and functions (an "independent going concern"). Id. at 292. There is nothing in this case that suggests the independent going concern exception is applicable. The *588 DOT is a state agency. Wis. Stat. §§ 15.01(5), 15.46.[9] The officers have neither argued that the DOT is an independent going concern nor that they do not have to demonstrate that the legislature has consented to the action that has been commenced. Instead, the officers assert that the legislature has expressly consented to state employees initiating their claim in circuit court and point to Wis. Stat. § 109.03(5) and Wis. Stat. § 103.005(14)(a).[10] We agree.
¶ 19. The officers argue that sovereign immunity is waived in Wis. Stat. ch. 109 because the state is included in this chapter's definition of employer and because ch. 109 expressly allows employees to bring wage claims directly to the circuit court, without passing through administrative review. Wis. Stat. §§ 109.01(2)[11] and 109.03(5).[12]
*589 [9]
¶ 20. The state's immunity is waived in Wis. Stat. ch. 109. Chapter 109 expressly defines "employer" to include the state and its political subdivisions. Wis. Stat. § 109.01(2). Wisconsin Stat. § 109.03(5) allows an employee to bring a cause of action against an employer for wages. This is express consent by the legislature to suits brought against the state. When the legislature wishes to enact a statute excluding the state from the definition of employer it expressly does so. See Wis. Stat. § 111.02(7) ("The term `employer' means a person who engages the services of an employe. . .but shall not include the state or any political subdivision thereof. . . ."); Wis. Stat. § 111.51(5)(a) ("`Public Utility Employer' means any employer, other than the state or any political subdivision thereof .. . ."). Sovereign immunity is waived in ch. 109. On this point there is no ambiguity.
¶ 21. However, DOT argues that Wis. Stat. ch. 109 is simply a mechanism to compel employers to issue paychecks promptly and is not a means to enforce *590 any other claim in which back wages are sought as a remedy. Any waiver of sovereign immunity in ch. 109, it is argued, is for the sole purpose of compelling the issuance of a paycheck. The DOT claims that there is no clear and express waiver of sovereign immunity in ch. 109 for the type of claim brought by the officers in this case. We disagree.
¶ 22. The state presented a similar argument in Butzlaff v. Department of Health and Family Services, 223 Wis. 2d 673, 590 N.W.2d 9 (Ct. App. 1998). In Butzlaff, the state argued that under Wis. Stat. § 103.10(13) of the Family and Medical Leave Act (FMLA) the legislature had expressly waived sovereign immunity for suits by state employees who had been successful in underlying administrative proceedings and judicial review. However, the state claimed that the statute was ambiguous as to whether § 103.10(13) permitted suit by employees who were unsuccessful in the administrative procedure and its related judicial review. The state asserted in Butzlaff, as well as in the case at hand, that if there is any ambiguity in the statute concerning whether or not the claim can be brought, then sovereign immunity is not waived. Id. at 681-82.
¶ 23. The court of appeals correctly noted in Butzlaff that the state's argument
confuses the statutory consent to suit against the state and its agencies with the statutory conditions for suit that apply to all parties. The former must be clearly expressed to constitute a waiver of sovereign immunity. The latter are interpreted according to the ordinary rules of statutory construction. *591 Id. at 682. In this case it is evident that the legislature in Wis. Stat. ch. 109 consented to suit against the state for wage claims.
¶ 24. Although we reach the same conclusion as the court of appeals, we disagree with one point in its method of analysis. In finding that sovereign immunity had been waived for the type of claim brought by the officers, the court of appeals relied in part upon Bahr. German, 223 Wis. 2d at 532-33. The issue in Bahr was whether or not the State Investment Board was an independent going concern and thus ineligible for sovereign immunity. In Bahr, the court of appeals determined that the State Investment Board was an independent going concern in part because it was authorized by statute to "`sue and be sued in [its own] name.'" Bahr, 186 Wis. 2d at 399 (quoting Wis. Stat. § 25.17 (1993-94)). We have already concluded that the "independent going concern" question is not at issue in this case. Although Bahr did not correctly illustrate the court of appeals' point, we concur with the court's final conclusion in the case at hand.
¶ 25. The DOT presents a number of arguments against our conclusions in this case. We find none of them persuasive.
¶ 26. First, the DOT argues that Wis. Stat. ch. 109 is a penal statute and must be strictly construed to exclude the officers' claim. Wisconsin Stat. § 109.11(3) subjects an employer with the ability to pay wages due, but who intentionally fails to do so with the intent to obtain a reduction in the debt or with intent to annoy, harass, oppress, hinder or defraud the employee, to a fine of not more than $550, 90 days in jail, or both.
[10]
¶ 27. Our opinions have long recognized that, the rule of strict construction of penal statutes is not a *592 "`rule of general or universal application;. . . . Sometimes a strict and sometimes a liberal construction is required, even in respect to a penal law, because the dominating purpose of all construction is to carry out the legislative purpose.'" State v. Kittilstad, 231 Wis. 2d 245, 262, 603 N.W.2d 732 (1999) (quoting State v. Boliski, 156 Wis. 78, 81, 145 N.W. 368 (1914)). When the intent of the legislature is unambiguous or if strict construction thwarts the purpose of the legislation, the rule of strict construction does not apply. Id. at 262 (citing State v. Rabe, 96 Wis. 2d 48, 70, 291 N.W.2d 809 (1980)). In this case the DOT's interpretation would thwart the legislative purpose in giving employees a right of action under Wis. Stat. ch. 109. Our construction of the statute is in keeping with the clear purpose of ch. 109.
¶ 28. Next, the DOT cites Arndt v. Wisconsin Dep't of Corrections, 972 F.Supp. 475, 478 (W.D.Wis. 1996), arguing that it seemingly conflicts with our conclusions. Although in Arndt, the federal district court examined Wis. Stat. chs. 109 and 103, its inquiry is distinguishable from the case at hand. First, in Arndt the court concluded that ch. 109 contained no waiver of sovereign immunity. We respectfully disagree with this conclusion.[13] Second, the district court characterized chs. 109 and 103 as two distinct statutory *593 schemes. However, as the court of appeals noted, and as we have already stated, chs. 109 and 103 are not nearly so distinct. German, 223 Wis. 2d at 539-40. The "legislature did not intend to prevent the enforcement of ch. 103 by wage claim actions when it moved the wage claim enforcement provisions to [ch. 109]." Id. at 541. In sum, we do not find the reasoning set forth in Arndt persuasive.
¶ 29. The DOT also cites state cases[14] that, it contends, characterize Wis. Stat. ch. 109 as a law narrowly focused on assuring the prompt payment of wages actually due rather than as a broad jurisdictional grant. Our analysis of ch. 109 with Wis. Stat. ch. 103 and Wis. Admin. Code § DWD 274 gives full effect to the wage payment purpose of the statutes. We conclude it is in keeping with the well-established purpose of ch. 109, to assure prompt payment of wages. As the circuit court judge noted, Wis. Stat. § 109.03(5) allows an employee to bring a private cause of action for "the full amount" of wages due. We believe that this statute contemplates a situation such as that presented by the officers in this case, where the issue is not that the *594 employees have never received a paycheck, but that they seek to obtain the full amount of wages due to them.
[11]
¶ 30. In addition, the DOT contends that affirming the officers' ability to bring their action under Wis. Stat. ch. 109 will raise federal constitutional concerns. According to the DOT, state statutes such as 109 have been found constitutional in the past because they were narrowly focused. In support of this proposition DOT cites St. Louis Iron Mountain & Saint Paul Railway Co. v. Paul, 173 U.S. 404, 406-10 (1899); Erie R.R. Co. v. Williams, 233 U.S. 685, 692-705 (1914); Ribnik v. McBride, 277 U.S. 350, 375 (1928), overruled in part by Olsen v. State of Nebraska ex rel. Western Reference & Bond Ass'n, 313 U.S. 236 (1941); and Adkins v. Children's Hosp. of District of Columbia, 261 U.S. 525, 547 (1923), overruled in part by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). We are not persuaded. "Simply to label a claimed error as constitutional does not make it so, and we need not decide the validity of constitutional claims broadly stated but never specifically argued." State v. Scherreiks, 153 Wis. 2d 510, 520, 451 N.W.2d 759 (Ct. App. 1989) (citations omitted).
¶ 31. The DOT further argues that upholding the decision of the court of appeals will open the door to additional claims in which the administrative review procedure established by statute is by-passed because the employee asserts a claim for wages and proceeds directly to circuit court under Wis. Stat. ch. 109. To illustrate its point the DOT cites a string of statutes involving wages. For example, the DOT cites Wis. Stat. § 46.21(2)(i), a statute involving a work allowance to inmates at county institutions; Wis. Stat. *595 §§ 111.31-111.395, the Wisconsin Fair Employment Act; Wis. Stat. § 103.10, the Wisconsin Family and Medical Leave Act; and Wis. Stat. § 103.49, relating to prevailing wage rates.
¶ 32. We concur with the court of appeals that the DOT's concerns on this point are "unwarranted and overstated." German, 223 Wis. 2d at 542. The DOT does not discuss whether the statutes it cites contain an administrative remedy and, if so, whether that remedy is exclusive. The administrative remedy in Wis. Stat. § 103.005 is not exclusive. Nor does the DOT discuss the relationship between the statutes it cites and Wis. Stat. ch. 109. As we have set forth already, there is a significant relationship between Wis. Stat. ch. 103 and ch. 109. In this case, we are considering only the statutes directly necessary to resolve the issue before the court; we will not speculate on the outcome when other statutes are involved and a complete argument is not presented.
¶ 33. Finally, the DOT argues that even without considering the issue of sovereign immunity, dismissal is warranted because the officers have failed to state a claim upon which relief can be granted. The DOT did not raise this issue in its petition for review, and we decline to consider it here.[15]
*596 ¶ 34. In sum, the DWD has classified on-duty meal periods as compensable time. Wis. Stat. § 103.02; Wis. Admin. Code § DWD 274.02(3). Under Wis. Stat. § 190.03(5) state employees can bring claims for wages due pursuant to this classification.
By the Court.The decision of the court of appeals is affirmed.
¶ 35. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring).
I do not join in ¶ 28 of the majority opinion. The majority opinion's criticism of Arndt v. Wisconsin Dep't of Corrections, 972 F.Supp. 475 (W.D.Wis. 1996), is, in my opinion, ill advised. Arndt turns in large part on the U.S. Constitution and federalism concerns, issues not present in the case at bar.
¶ 36. For the reasons stated, I do not join in ¶ 28 of the opinion.
¶ 37. I am authorized to state that Justice DIANE S. SYKES joins this concurrence.
NOTES
[1] The defendants in this case are the State, the Wisconsin Department of Transportation, and two individual defendants sued in their official capacity, Charles Thompson and William L. Singletary, all of whom we will refer to collectively as "DOT".
[2] All statutory references are to the 1995-96 version of the Wisconsin Statutes, unless otherwise noted.
[3] Wis. Admin. Code § DWD 274.02(3):
The employer shall pay all employes for on-duty meal periods, which are to be counted as work time. An on-duty meal period is a meal period where the employer does not provide at least 30 minutes free from work. Any meal period where the employe is not free to leave the premises of the employer will also be considered an on-duty meal period.
[4] Additional claims brought by the officers under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 and 42 U.S.C. § 1983 were dismissed by the circuit court and are not at issue here.
[5] Wis. Stat. § 109.01(3):
"Wage" or "wages" mean remuneration payable to an employe for personal services, including salaries, commissions, holiday and vacation pay, overtime pay, severance pay or dismissal pay, supplemental unemployment compensation benefits when required under a binding collective bargaining agreement, bonuses and any other similar advantages agreed upon between the employer and the employe or provided by the employer to the employees as an established policy.
[6] Wisconsin Stat. § 103.39(1) (1973) provided in relevant part that "each employe coming within the meaning of this section shall have a right of action against any such person for the full amount of his wages due on each regular pay day as herein provided in any court of competent jurisdiction."
[7] Chapter 380, Laws of 1975, § 3 provides in relevant part: "109.09 Wage claims, collection. (1) The department shall investigate and attempt equitably to adjust controversies between employers and employes as to alleged wage claims. The department shall enforce this chapter and ss. 66.293, 103.02, 103.49, 103.82 and 104.12."
[8] Article IV, § 27 of the Wisconsin Constitution states: "The legislature shall direct by law in what manner and in what courts suits may be brought against the state."
[9] Wisconsin Stat. § 15.01(5) states: "`Department' means the principal administrative agency within the executive branch of Wisconsin state government, but does not include the independent agencies under subch. III."
Wisconsin Stat. § 15.46 states: "Department of transportation; creation. There is created a department of transportation under the direction and supervision of the secretary of transportation."
[10] Wisconsin Stat. § 103.005(14)(a) states: "The department shall administer and enforce, so far as not otherwise provided for in the statutes, the laws relating to child labor, employment, employment offices and all other laws relating to the regulation of employment."
[11] Wisconsin Stat. § 109.01(2) states: "Except as provided in s. 109.07(1)(d), `employer' means any person engaged in any activity, enterprise or business employing one or more persons within the state, including the state and its political subdivisions and charitable, nonprofit or tax-exempt organizations and institutions."
This section of the statutes was amended by 1997 Wis. Act 237, § 354n. The amendment does not impact our analysis in this case.
[12] Wis. Stat. § 109.03(5):
Enforcement. Except as provided in sub. (1), no employer may by special contract with employes or by any other means secure exemption from this section. Each employe shall have a right of action against any employer for the full amount of the employe's wages due on each regular pay day as provided in this section and for increased wages as provided in s. 109.11(2), in any court of competent jurisdiction. An employe may bring an action against an employer under this subsection without first filing a wage claim with the department under s. 109.09(1). An employe who brings an action against an employer under this subsection shall have a lien upon all property of the employer, real or personal, located in this state as described in s. 109.09(2).
[13] The concurrence labels our discussion of Arndt v. Wisconsin Dep't of Corrections, 972 F. Supp. 475 (W.D. Wis. 1996) as a "criticism" of the district court and "ill advised." Neither assertion is correct. The district court was asked to and did specifically address whether Wis. Stat. ch. 109 contains a waiver of the state's immunity:
Plaintiffs look to the private cause of action allowed under chapter 109 [to find statutory waiver]. . . . A waiver of the state's immunity by the legislature will be found only where stated by the most express language or by such overwhelming implication from the text as to leave no room for any other reasonable construction.
Id. at 479. The district court found no waiver of sovereign immunity in ch. 109. Our differing conclusion here is not a criticism of the district court; we simply, but respectfully, disagree.
[14] Pfister v. MEDC, 216 Wis. 2d 243, 250-51, 576 N.W.2d 554 (Ct. App. 1998); Jacobson v. American Tool Cos., Inc., 222 Wis. 2d 384, 400, 588 N.W.2d 67 (Ct. App. 1998); Erdman v. Jovoco, Inc., 181 Wis. 2d 736, 749 n.6, 512 N.W.2d 487 (1994); Kenosha Fire Fighters v. City of Kenosha, 168 Wis. 2d 658, 665, 484 N.W.2d 152 (Ct. App. 1992); Employees Local 1901 v. Brown County, 146 Wis. 2d 728, 733-35, 432 N.W.2d 571 (1988); DILHR v. Coatings, Inc., 126 Wis. 2d 338, 344-46, 376 N.W.2d 834 (1985).
[15] In this court's order granting review, we asked the parties to brief two additional questions. The first question was whether the plaintiff's were required to serve a notice of claim pursuant to Wis. Stat. § 893.82(3). The second issue was whether the fact that no notice of claim was filed impacts resolution of the case on the merits. Because the parties agree that § 893.82 is inapplicable to the State of Wisconsin and the Department of Transportation we need not address these issues further.
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Dismissed and Memorandum Opinion filed February 14, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00932-CV
EFIGENIA P. BONILLA, Appellant
V.
WELLS FARGO BANK, N.A., Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1019844
MEMORANDUM OPINION
This is an appeal from a judgment signed October 1, 2012. The notice of
appeal was filed October 5, 2012. To date, our records show that appellant has not
paid the $175.00 appellate filing fee. See Tex. R. App. P. 5 (requiring payment of
fees in civil cases unless indigent); Tex. R. App. P. 20.1 (listing requirements for
establishing indigence); see also; Tex. Gov’t Code Ann. ' 51.207.
On January 3, 2013, this court ordered appellant to pay the appellate filing
fee on or before January 18, 2013, or the appeal would be dismissed. Appellant has
not paid the appellate filing fee. Accordingly, the appeal is ordered dismissed. See
Tex. R. App. P. 42.3(c) (allowing involuntary dismissal of case because appellant
has failed to comply with notice from clerk requiring response or other action
within specified time).
PER CURIAM
Panel consists of Justices Frost, Brown, and Busby.
2
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Court of Appeals
of the State of Georgia
December 10, 2018
ATLANTA,____________________
The Court of Appeals hereby passes the following order:
A19D0191. CARA WILLIAMS v. THE STATE.
Cara Williams seeks discretionary review of the trial court’s order denying her
motion to reinstate bond following the revocation of her pretrial bond in her underlying
criminal case. We, however, lack jurisdiction.
An order denying the reinstatement of pretrial bond following revocation is not a
final judgment as defined in OCGA § 5-6-34 (a) (1). See Howard v. State, 194 Ga. App.
857, 857 (392 SE2d 562) (1990). Rather, such an order is an interlocutory ruling as
Williams’s criminal case remains pending below. See Mullinax v. State, 271 Ga. 112, 112
(1) (515 SE2d 839) (1999); Howard, 194 Ga. App. at 857. In order to appeal such an order,
an applicant must comply with the interlocutory appeal procedure and obtain a certificate
of immediate review. See OCGA § 5-6-34 (b). Although Williams filed a discretionary
application, “[t]he discretionary appeal statute does not excuse a party seeking appellate
review of an interlocutory order from complying with the additional requirements of
OCGA § 5-6-34 (b).” Bailey v. Bailey, 266 Ga. 832, 833 (471 SE2d 213) (1996).
Williams’s failure to follow the proper appellate procedure deprives us of
jurisdiction to consider this application. Mullinax, 271 Ga. at 112 (1). Accordingly,
Williams’s application for discretionary review is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/10/2018
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.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6046
MAHMOUD A. BENSTONE,
Plaintiff – Appellant,
v.
ROY W. CHERRY, Superintendent,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:10-cv-00313-JCC-JFA)
Submitted: April 21, 2011 Decided: April 27, 2011
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mahmoud A. Benstone, Appellant Pro Se. Jeff W. Rosen, PENDER &
COWARD, PC, Virginia Beach, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mahmoud A. Benstone appeals the district court’s order
awarding summary judgment to Roy W. Cherry in this 42 U.S.C.
§ 1983 (2006) action. We have reviewed the record and find no
reversible error. Accordingly, we affirm for the reasons stated
by the district court. Benstone v. Cherry, No. 1:10-cv-00313-
JCC-JFA (E.D. Va. filed Dec. 22, 2010 & entered Dec. 23, 2010).
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
2
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438 Mich. 8 (1991)
475 N.W.2d 684
PEOPLE
v.
COLLINS
Docket No. 86690, (Calendar No. 13).
Supreme Court of Michigan.
Argued October 4, 1990.
Decided August 22, 1991.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Timothy A. Baughman, Chief, Research, Training and Appeals, Dennis M. Wiley, Prosecuting Attorney, David P. LaForge and Daniel M. Levy, Assistant Prosecuting Attorneys, and James E. Boardman, Legal Research Assistant, for the people.
State Appellate Defender (by Derrick A. Carter) for the defendant.
Amicus Curiae:
John D. O'Hair, President, and Timothy A. Baughman, Chief, Research, Training and Appeals, for the Prosecuting Attorneys Association of Michigan.
*11 GRIFFIN, J.
We are required to decide whether recorded evidence of conversations between this defendant and a police informant, electronically monitored by police with the informant's consent, but without a valid search warrant, must be suppressed in defendant's subsequent felony trial. In People v Beavers, 393 Mich 554; 227 NW2d 511 (1975), this Court ruled that the warrantless electronic monitoring by the police of a conversation, even though consented to by one of the conversants, violates art 1, § 11 of the Michigan Constitution, requiring the exclusion at trial of evidence thus obtained. Our examination of developments in the search and seizure jurisprudence since Beavers and our review of the history of the adoption of Const 1963, art 1, § 11 prompt us to reconsider the Beavers decision. Finding it now well settled that such participant monitoring[1] does not offend the Fourth Amendment of the United States Constitution,[2] and because we are not persuaded that compelling reason exists to impose a different, more restrictive construction upon the parallel provision of our Michigan Constitution, we overrule Beavers, and reverse the decision of the Court of Appeals.
I
After a preliminary examination, defendant W.C. Collins was bound over on a charge of obstruction of justice. MCL 750.505; MSA 28.773. The charge arose out of the following facts.
Earl Jordan, an acquaintance of defendant, approached *12 a state police officer and reported that defendant had offered him $500 to present false testimony to a local district court judge presiding over an unrelated criminal proceeding involving defendant's wife.[3] Upon the basis of the information furnished by Jordan, a state police officer obtained a warrant purporting to authorize the participant monitoring and recording of conversations between Jordan and defendant.[4] Thereafter, Jordan placed a telephone call to defendant from the state police office, and the conversation, which included incriminating statements by defendant, was monitored and recorded by the police with Jordan's consent.[5] Jordan also agreed to wear a concealed radio transmitter later that day when he was to meet and talk with defendant in the latter's automobile. During the course of this conversation, defendant made more incriminating statements which were electronically overheard and recorded by the police.[6]
*13 In circuit court, defendant moved to suppress the recorded evidence, asserting invalidity of the warrant. The judge ordered suppression on the authority of Beavers after determining that the affidavit provided to support the warrant did not conform to statutory requirements as determined by People v Sherbine, 421 Mich 502; 364 NW2d 658 (1984).[7] On appeal, the Court of Appeals ordered briefing of the issue "whether a search warrant was required to listen to conversations where one party to the conversations consented to the recording." However, finding the warrant defective and the case controlled by Beavers, the Court of Appeals affirmed the circuit court's decision.[8] We then granted leave to appeal. 434 Mich 900 (1990).
In this appeal the people do not challenge the ruling below that the warrant was invalid. However, we are urged to reconsider this Court's holding in Beavers.[9]
II
We begin our analysis with an overview of the *14 law pertaining to electronic surveillance as it had developed prior to April 7, 1975, the date when Beavers was decided by this Court over the vigorous dissent of Chief Justice COLEMAN.
A
Before the advent of radio, telegraph, and the telephone, eavesdropping was treated as a common-law nuisance.[10] As Blackstone explained over two hundred years ago, the term then referred to the practice of listening "under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales...."[11]
It is clear that eavesdropping was not the concern which motivated those who drafted and adopted the Fourth Amendment. Rather, they were reacting to the use of force by British officers under the guise of general warrants and writs of assistance to carry on unlimited searches of private homes.[12] It is not surprising then that the words employed by the drafters of the Fourth Amendment focus upon things tangible the right of people to be secure "in their persons, houses, papers, and effects" against unreasonable searches and seizures.
In the first case involving electronic eavesdropping to come before the United States Supreme Court, Olmstead v United States, 277 US 438, 466; 48 S Ct 564; 72 L Ed 944 (1928), federal agents had obtained evidence against an accused bootlegger by tapping the telephone wire outside his home without *15 a warrant and without the consent of either party to the intercepted conversation. Finding that there had been no physical trespass into a constitutionally protected area, the Court concluded that Fourth Amendment protection against search and seizure was not implicated. Declining to attribute any "enlarged or unusual meaning" to the words employed, the Court reasoned that the Fourth Amendment had been designed to protect citizens from searches for "material things the person, the house, his papers or his effects."[13] However, the Olmstead Court, speaking through Chief Justice Taft, expressly recognized that Congress, if it wished to do so, could regulate the use of wiretap evidence in criminal trials. 277 US 464.
Later, the distinction between nonconsensual electronic surveillance (where none of the parties to a monitored conversation has consented), as in Olmstead, and participant monitoring (where one of the conversants is a consenting participant) was brought into sharp focus in On Lee v United States, 343 US 747; 72 S Ct 967; 96 L Ed 1270 (1952), and in Lopez v United States, 373 US 427; 83 S Ct 1381; 10 L Ed 2d 462 (1963).
In On Lee, a police officer listened outside with a radio receiver while a conversation took place within the defendant's laundry between the defendant and a former employee who, in cooperation with the police, wore a concealed wireless transmitter. Finding no trespass, because the former employee had gained entrance to the laundry with the defendant's consent, the Court ruled that the Fourth Amendment was not implicated. The Court took pains, however, to distinguish the participant monitoring in this case from the nonconsensual *16 wiretapping in Olmstead. Foreshadowing, perhaps, its later shift to an "expectation of privacy" standard, the Court reasoned that the defendant
was talking confidentially and indiscreetly with one he trusted, and he was overheard. This was due to aid from a transmitter and receiver, to be sure, but with the same effect on his privacy as if [the police officer with the radio receiver] had been eavesdropping outside an open window. [343 US 753-754. Emphasis added.]
In Lopez, the defendant attempted to bribe an agent of the Internal Revenue Service. Later, the agent obtained incriminating evidence which was offered at trial by using a concealed device to taperecord a conversation with the defendant in the latter's office. Finding no trespass because the agent had been invited into the defendant's office, the Court ruled that the warrantless recording did not offend the Fourth Amendment. The Court stressed that the agent could have testified about the conversation even if it had not been taped, and stated:
Stripped to its essentials, [the defendant's] argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that [the defendant] took in offering a bribe to [the agent] fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording. [373 US 439.]
Although Hoffa v United States, 385 US 293; 87 *17 S Ct 408; 17 L Ed 2d 374 (1966), did not involve participant monitoring, as will be seen, the reasoning employed would prove to be crucial in the Court's subsequent analysis of the participant monitoring issue. In this case, a close associate of defendant Hoffa decided to become a government informant. While posing as Hoffa's friend, the informant was invited into Hoffa's hotel suite and became privy to conversations involving plans to bribe jurors in an upcoming trial. Rejecting a Fourth Amendment challenge to the informant's subsequent testimony, the Court said,
Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. [385 US 302.]
As Justice BOYLE later observed in People v Catania, 427 Mich 447, 456; 398 NW2d 343 (1986), "The Hoffa opinion essentially held that citizens assume the risk that their associates may be undercover agents."
Finally, in Katz v United States, 389 US 347, 353; 88 S Ct 507; 19 L Ed 2d 576 (1967), the Court abandoned its Olmstead rationale and declared that "the `trespass' doctrine there enunciated can no longer be regarded as controlling."[14] In that case, federal agents attached a listening and recording device to the outside of a public telephone booth, and evidence of the defendant's end of telephone conversations, overheard electronically *18 without the knowledge of defendant or any of those with whom he spoke, was admitted at trial.
Finding this activity unconstitutional in the absence of a warrant, the Katz Court declared that "the Fourth Amendment protects people, not places," 389 US 351, and stressed that its reach "cannot turn upon the presence or absence of a physical intrusion into any given enclosure." 389 US 353. Shifting its analytical focus, the Court declared that Fourth Amendment interests are implicated when the government infringes upon an individual's justifiable or legitimate expectation of privacy. The test which emerged from Katz for determining when an expectation of privacy is constitutionally justifiable was articulated by Justice Harlan in his Katz concurrence:[15]
[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." [389 US 361.][[16]]
Shortly after the Katz decision, Congress debated and passed the Omnibus Crime Control and Safe Streets Act of 1968, 18 USC 2510 et seq., which includes title III, legislation designed to regulate and make available to law enforcement personnel the use of wiretapping as a tool in the battle against organized crime.[17] Significantly, Congress *19 drew a sharp distinction between two types of law enforcement activity: (1) nonconsensual electronic surveillance (where none of the parties to a conversation has consented), and (2) participant monitoring (where one of the conversants is a consenting participant). While Congress in title III recognized the Fourth Amendment's application to nonconsensual electronic surveillance (as in Olmstead and Katz), it imposed no restrictions on participant monitoring (as in On Lee, Lopez, and Beavers). Indeed, title III expressly exempts participant monitoring from the scope of its regulation:
It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. [18 USC 2511(2)(c). Emphasis added.][[18]]
Of course, the recognition by Congress of this distinction did not remove participant monitoring from constitutional scrutiny, and in the wake of Katz the question remained whether On Lee and Lopez were still viable.[19]
It was not long after the enactment of title III, however, that the Supreme Court took up and considered the effect of Katz upon participant monitoring. In United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971), conversations related to the sale of narcotics between a police informant and the defendant in the latter's home were electronically monitored with the informant's *20 cooperation. Four members of a sharply divided Court, speaking through Justice White, declared that On Lee and Lopez were still good law.[20] After noting the absence in Katz of a consenting participant, the White plurality[21] reasoned from the Hoffa "assumed risk" analysis and concluded that because the defendant had no "justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police" (401 US 749), the defendant similarly had no justifiable expectation that such conversations would not be monitored or recorded.
Justice White explained:
Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. Hoffa v United States, 385 US 300-303. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v United States, supra; [or] (2) ... carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither *21 does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks. [401 US 751.]
Four justices, each writing separately, expressed a contrary view that warrantless electronic monitoring, though consented to by one of the parties to the conversation, violates the Fourth Amendment.[22] Dissenting, Justice Harlan reasoned that this activity
goes beyond the impact on privacy occasioned by the ordinary type of "informer" investigation.... Much off-hand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said.... All these values are sacrificed by a rule of law that permits official monitoring of private discourse.... [401 US 787-789.]
As a result of the six-opinion division in White, the validity of Lopez and On Lee continued to be challenged in the lower federal courts. See, e.g., United States v Santillo, 507 F2d 629 (CA 3, 1975).
B
It was against this unsettled backdrop that the Beavers case came before our Court. There, a police informant, who wore a concealed radio transmitter, knocked on the rear door of the defendant's apartment. When the defendant appeared, the two engaged in a conversation which culminated in the sale of heroin. Later, a police officer, *22 who remained in a nearby unmarked car and listened to the conversation with the aid of a radio receiver, was allowed to testify regarding the defendant's statements. Contending that Katz, supra, had expanded the right of privacy to preclude such monitoring activity in the absence of a warrant, the defendant argued that his constitutionally protected right to be free from unreasonable search and seizure had been violated.
The Beavers Court agreed with the defendant's position and rationalized its decision by focusing exclusively on federal case law. Its analysis cited no Michigan authority, it made no reference to the history of the adoption of art 1, § 11 of the Michigan Constitution, and it placed no reliance on textual differences between the state and federal constitutions. Nevertheless, the Court stated that "[w]hile the result reached today reflects an analysis of Federal case authority, our conclusion is based upon the Michigan Constitution...." 393 Mich 567-568.
Recognizing that the "identical issue" had been before the United States Supreme Court in the then recent case of United States v White, supra, the Beavers Court stressed that only three other justices had joined in the opinion by Justice White, and that four justices had registered strong disagreement. After reviewing the reasoning of Justices White and Harlan, the Beavers Court declared its preference for the latter's position,
which recognizes a significant distinction between assuming the risk that communications directed to one party may subsequently be repeated to others and the simultaneous monitoring of a conversation by the uninvited ear of a third party functioning in cooperation with one of the participants yet unknown to the other. [393 Mich 565.]
*23 The Beavers majority agreed with Justice Harlan that
one's expectation of privacy should not be subjected to the possibility that communications directed to particular persons are simultaneously being intercepted by a third party [and] that such investigatory action constitutes a search and seizure which can be constitutionally justified only if a valid search warrant is issued. [Id., p 564.]
For several years following Beavers, the sharp division registered among members of the White Court continued to cast doubt upon the constitutionality of participant monitoring.[23] However, in 1979, any lingering uncertainty was finally put to rest when the Supreme Court decided United States v Caceres, 440 US 741; 99 S Ct 1465; 59 L Ed 2d 733 (1979). There, the defendant sought reversal of his conviction for bribing an IRS agent after the agent, without a warrant, wore a concealed radio transmitter which allowed conversations between the two to be monitored and recorded by another agent not present in the room. Writing for a majority of seven, Justice Stevens first noted that
[w]hile Title III of the Omnibus Crime Control and Safe Streets Act ... regulates electronic surveillance conducted without the consent of either party to a conversation, federal statutes impose no restrictions on recording a conversation with the consent of one of the conversants. [440 US 750.]
Then, he added, "Nor does the Constitution protect the privacy of individuals in respondent's position."
*24 Referring to Lopez, supra, Justice Stevens continued,
[there] we held that the Fourth Amendment provided no protection to an individual against the recording of his statements by the IRS agent to whom he was speaking. In doing so, we repudiated any suggestion that the defendant had a "constitutional right to rely on possible flaws in the agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment," concluding instead that "the risk that petitioner took in offering a bribe ... fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording." The same analysis was applied in United States v White, 401 US 745, to consensual monitoring and recording by means of a transmitter concealed on an informant's person, even though the defendant did not know that he was speaking with a Government agent.... [Id.][[24]]
In the light of Caceres, which made crystal clear that the Fourth Amendment requires no warrant in the circumstances of the case now before us, we turn to reconsider whether greater restrictions on law enforcement activities are required by the Michigan Constitution.[25]
*25 III
US Const, Am IV provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Const 1963, art 1, § 11 provides:
The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.
A
Discerning the intent of the framers and the people who adopted Const 1963, art 1, § 11, this Court has held, in a line of decisions since Beavers, that art 1, § 11 is to be construed to provide the same protection as that secured by the Fourth Amendment, absent "compelling reason" to impose a different interpretation.[26]
In the leading case of People v Nash, 418 Mich 196, 209; 341 NW2d 439 (1983) (opinion of BRICKLEY, J.),[27]*26 this Court extensively reviewed the history of the adoption of Const 1963, art 1, § 11 and found its wording and purpose to be substantially the same as its predecessor, Const 1908, art 2, § 10, as amended. Originally, the 1908 version included no antiexclusionary proviso similar to that found in the third sentence of the current version.[28] However, as the Nash Court recounted, following a 1933 decision by this Court which excluded from evidence an illegally seized weapon,[29] the people reacted swiftly by adding a proviso for the obvious purpose of restricting the judiciary's use of its exclusionary rule.[30]
*27 As the Nash Court found, there is no evidence that those who later framed and adopted the 1963 Constitution had any intention of expanding the protection provided under Michigan's search and seizure provision beyond that secured by the Fourth Amendment of the federal constitution. In his review, Justice BRICKLEY explained that when art 1, § 11 was under consideration by delegates to the 1961 convention, the focus of their concern was on the effect of the then recently decided case of Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961), which required the states to apply the exclusionary rule to Fourth Amendment violations in all cases. Fearing that Mapp had invalidated the third sentence of Const 1908, art 2, § 10, the Committee on Declaration of Rights, Suffrage, and Elections proposed at one point that the following language be substituted for that portion: "`Evidence obtained in violation of this section shall not be used except as authorized by law.'" 418 Mich 211. Far from attempting to expand the protection of the state's constitutional provision, the committee preferred the substitute language because it would permit "the possibility of a less stringent application of the exclusionary rule if allowed by federal law ...."[31]
Ultimately, the convention rejected the committee's proposal, as well as other proposals for substantive changes in the search and seizure provision then in effect.[32] Choosing to retain the third sentence aimed at the exclusionary rule, the convention made only stylistic improvements in the *28 wording of art 1, § 11 before adopting and recommending it to the people.[33]
In the light of this history, as explained by Justice BRICKLEY, "the common understanding of the people upon reading the proposed constitutional provision could be nothing but the belief that the search and seizure provision of the new constitution represented no change." 418 Mich 213. The Nash Court concluded:
There is no indication that in readopting the language of Const 1908, art 2, § 10 in Const 1963, art 1, § 11 the people of this state wished to place restrictions on law enforcement activities greater than those required by the federal constitution. In fact, the contrary intent is expressed. [Id.]
While recognizing that this Court may, where justified, construe our state constitution so as to impose different requirements than obtain under parallel provisions of the federal constitution, the Nash Court stressed that, "The history of Const 1963, art 1, § 11, and its plain import ... suggest that its further expansion, with the concomitant expansion of the exclusionary rule to enforce it, should occur only when there is a compelling reason to do so." 418 Mich 214 (emphasis added).
In decisions since Nash, this Court has adhered *29 to the "compelling reason" standard in determining whether Const 1963, art 1, § 11 imposes requirements not encompassed by the Fourth Amendment.[34] Furthermore, this Court has looked to Nash for guidance in construing other provisions of the Michigan Constitution which parallel federal constitutional guarantees.[35]
B
Although the reasoning of Justice White in United States v White, supra, was not preferred at the time by a Beavers majority, it is noteworthy that this Court later adopted the Hoffa principle upon which that reasoning rested. In People v *30 Catania, supra, after an undercover police informant feigned car trouble and asked to use the telephone, she was invited by the defendant into his home. While there, the informant was asked by the defendant to join him in smoking marijuana. Later, defendant sought, on Fourth Amendment and state constitutional grounds, to suppress evidence of this and other activity observed by the informant in the defendant's home which led to convictions for possession with intent to deliver cocaine[36] and marijuana.[37] Writing for a plurality,[38] Justice BOYLE concluded that
where entry by an undercover agent is effected solely by the invitation of the defendant, albeit under a misconception as to the agent's identity and purpose, there is no Fourth Amendment or Const 1963, art 1, § 11, activity so long as the agent does not exceed the scope of the invitation.
Citing with approval the decision in United States v White, Justice BOYLE observed that the lead opinion of Justice White had
affirmed the validity of Hoffa's conclusion that citizens assume the risk that their associates may be government informants and that communications made to such agents are not within the protection of the Fourth Amendment.... [427 Mich 458-459.]
After finding no Fourth Amendment violation, *31 the Catania Court also determined that "[t]here is no basis in this case for holding that the Michigan Constitution, art 1, § 11, permits greater protection than the United States Constitution." Noting that in People v Smith, supra, this Court had adopted the Katz "reasonable expectation of privacy" standard "to define the interests protected under Const 1963, art 1, § 11," Justice BOYLE reasoned that the defendant in Catania had no reasonable expectation of privacy because he "assumed a risk when he offered drugs to a total stranger that she [the informant] would communicate what she saw to the world. Since no persuasive reason [was] advanced to interpret Const 1963, art 1, § 11 as prohibiting the activities allowed ... under the Fourth Amendment," the Court declined to place a different construction upon the parallel provision of the Michigan Constitution. 427 Mich 466-467.
IV
In the light of Nash and its progeny, we turn now to consider whether in this case there is compelling reason to construe Const 1963, art 1, § 11 to prohibit law enforcement activity that otherwise is permissible under the Fourth Amendment. Although a number of appellate decisions have referred to the compelling reason standard, little in the way of guidance has been provided concerning its contours and meaning.[39] Surely, the *32 beginning of consideration must be the axiomatic statement of this Court in Holland v Garden City Clerk, 299 Mich 465, 470; 300 NW 777 (1941): "It is a fundamental principle of constitutional construction that we determine the intent of the framers of the Constitution and of the people adopting it." See also Burdick v Secretary of State, 373 Mich 578, 584; 130 NW2d 380 (1964).
We believe that compelling reason for an independent state construction might be found if there were significant textual differences between parallel provisions of the state and federal constitutions, and, particularly, if history provided reason to believe that those who framed and adopted the state provision had a different purpose in mind. As already noted, the Beavers majority placed no reliance upon textual differences between the two constitutions. Moreover, the language of art 1, § 11 is substantially similar to that of the Fourth Amendment, except for the antiexclusionary proviso in the third sentence of § 11.
This textual difference, however, is the basis of an argument advanced by defendant. Pointing to the fact that the antiexclusionary language in § 11 mentions only certain items which are declared to be admissible in evidence, defendant contends that the failure to mention other items, such as conversations, must indicate an intent to afford the omitted items greater protection under our state constitution. However, this argument was rejected in Nash, where Justice BRICKLEY explained, "Considering the history and language of Const 1963, art 1, § 11, it would be an incredible act of illogic" to hold that there is a heightened standard regarding evidence not enumerated by art 1, § 11. 418 Mich 214.[40] As earlier noted, the historical record clearly *33 indicates that the people of Michigan had no intention of imposing more stringent restrictions upon law enforcement than is mandated by the Fourth Amendment. 418 Mich 213.
One state, Alaska, found compelling reason for independent treatment of participant monitoring in the fact that its state constitution contains a separate provision which specifically protects a right of privacy.[41] The Alaska Supreme Court concluded that its privacy right provision "affords broader protection than the penumbral right inferred from other constitutional provisions." State v Glass, 583 P2d 872, 879 (Alas, 1978).[42] Significantly, the Michigan Constitution contains no similar *34 separate provision explicitly protecting a right of privacy.
In this appeal, defendant also argues that the availability of warrantless participant monitoring would chill the free speech rights of the law abiding public.[43] This echoes a concern expressed by the Beavers Court when it said, "Our laws must ensure that the ordinary, law-abiding citizen may continue to engage in private discourse, free to speak with the uninhibited spontaneity that is characteristic of our democratic society." 393 Mich 566.
While such a concern is understandable, we have not been made aware of any evidence that the feared abuses have materialized either on the federal level or in those states which have no constitutional warrant requirement. Moreover, there is every reason to believe that citizen discourse continues to be as free and uninhibited as ever, even in the overwhelming majority of states which have followed the federal lead on this issue. In addition, the force of the "chilling effect" argument is undermined by the fact that for at least twenty years, the less restrictive federal standard has been applicable in Michigan and in all other states to federal law enforcement personnel.[44] Finally, we emphasize that nothing in our decision *35 today will preclude the Legislature from adopting such controls and restraints, including restrictions on the use of evidence, as might be considered necessary to guard against the arbitrary or capricious use within the state system of this investigative technique.[45]
It is noteworthy that of the fifty states, only two others, Alaska[46] and Massachusetts,[47] interpret their state constitutions to require a warrant for participant monitoring, while the highest courts in the other twenty-four states in which the issue has been addressed have ruled that their constitutions do not require a warrant.[48] Originally, the Supreme *36 Courts of Montana, Pennsylvania, and Louisiana held that their state constitutions required a warrant;[49] however, each of those decisions has now been overruled.[50]
As a number of the state court decisions have emphasized, there are practical considerations which weigh heavily against the imposition of a constitutional warrant requirement. The Beavers Court conceded that participant monitoring "is practiced extensively throughout the country and represents a vitally important investigative tool of law enforcement."[51]
As reported by a national commission formed by Congress to evaluate the electronic surveillance provisions of the Omnibus Crime Control and Safe Streets Act,[52] participant monitoring is often crucial in establishing the credibility of an informant and probable cause.[53] Since "not all crimes are *37 committed in the bright light of day before swarms of credible and respected citizens," it has been pointed out that
it is often necessary for the police to resort to the use of informants of dubious character, reliability, and credibility.... Without tools such as electronic participant monitoring to corroborate the disclosures of such informants, reasonable suspicions might never be developed into probable cause, lawful arrest, and just conviction. [Commonwealth v Schaeffer, 370 Pa Super 179, 259; 536 A2d 354 (1987) (Kelly, J., concurring in part and dissenting in part).]
In most cases, the precondition of a warrant "would require officers to have probable cause to use a device for obtaining probable cause." In situations "such as drug transactions, two meetings instead of one would be required: the first to acquire probable cause, the second to record the conversation."[54]
Moreover, strict adherence to warrant requirements may be impossible in the context of participant monitoring. For example, MCL 780.655; MSA 28.1259(5) requires that the officer executing the warrant give the individual from whom the property or things are seized a copy of the warrant "forthwith." If such a requirement were met, of course, the suspect would be alerted and the purpose of the monitoring would be defeated.[55] Further, the warrant must set forth, with particularity, *38 the items to be seized.[56] Of course, future conversations are nonexistent until they take place. As aptly noted by Chief Justice COLEMAN in her dissent in Beavers, "[h]ow does one specifically describe the conversation to be seized?" 393 Mich 581.[57]
Chief Justice COLEMAN further stressed that the very nature of many criminal activities demands quick action. "Otherwise, the `bird will have flown,' the opportunity to listen to a `buy' will have been lost." Id. Requiring the police to first find a magistrate and then go with the warrant to the scene "is designed for self-defeat." Id. Chief Justice COLEMAN noted the particular need for warrantless participant monitoring in drug-related investigations. The police "are charged with risking their own lives to find and arrest the `purveyors of death,'" and we "encourage citizens to help them." Because of "the inherent necessity for privacy in drug sales and the small size of the product," the police have "a uniquely difficult task." Drug sales may "take place anytime, anywhere, and be invisible to the observer." Thus, the inherent "nature of the illegal traffic demands the use of agents and informants if it is to be controlled." *39 But, these very agents "may make a `buy'" and are "met in court by a series of witnesses who swear that the defendant was somewhere else and the purchaser is lying, perhaps to save his own skin. The buyer cannot usually bring anyone with him to verify his testimony. The lone buyer is also in physical danger." 393 Mich 571.
Participant monitoring often serves "to protect the life of the agent or informant. He plays a deadly game and the microphone allows him speedy access to help." 393 Mich 581. In this age of escalating crime, surely these concerns are at least as compelling today.
While participant monitoring does not favor the guilty, it will often protect the innocent. As another state Supreme Court has observed:
Society seeks to foster truth, not to suppress it. The presence of the electronic transmitter has but one effect. Instead of the informant committing the conversation to memory, a machine tapes each and every sentence of the communication. The machine notes the inflection of the voices and the context in which remarks are made. If the defendant speaks innocently, his own words will exculpate him. However, if he implicates himself, the recordings prevent him from denying his participation in the conversation. Surely, society would not consider reasonable an expectation of privacy which would result in a more inaccurate version of the events in question. [State v Reeves, 427 So 2d 403, 418 (La, 1982).]
Benjamin Franklin once cautioned that "[i]f you would keep your secret from an enemy, tell it not to a friend." What a confidant who hears it chooses to do with a secret whether he whispers it, records it, or broadcasts it is beyond the control of the teller. We reject the notion that a wrongdoer has a constitutionally protected expectation *40 that his confidant will be unable to repeat with accuracy and credibility the communicated secret. We agree with Justice White that courts should not be "too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable." White, 401 US 753.
V
It is our conclusion that the warrantless participant monitoring in this case violated no reasonable expectation of privacy on the part of defendant, and that there is no compelling reason to interpret Const 1963, art 1, § 11 as affording greater protection for this defendant than is provided under the Fourth Amendment.
Accordingly, Beavers is overruled, the decision of the Court of Appeals is reversed, and this case is remanded to the circuit court for proceedings consistent with this opinion.
BRICKLEY, BOYLE, and RILEY, JJ., concurred with GRIFFIN, J.
CAVANAGH, C.J. (dissenting).
Today this Court declares that our state constitution no longer requires either a warrant, probable cause, or even reasonable suspicion to monitor conversations where one party to the conversation consents. Because we have established precedent to the contrary, and because no compelling reasons have been advanced justifying this abandonment of the principle of stare decisis, I dissent.
I
The arguments advanced by the majority are the same as those rejected by the Court when People v Beavers, 393 Mich 554; 227 NW2d 511 *41 (1975), was decided. These arguments have not become more persuasive in the last sixteen years and there is no justification for the reversal of a protective constitutional mandate. The basic explanation for overruling Beavers is that the United States Supreme Court has held that there is no violation of the Fourth Amendment posed by participant monitoring without a warrant. This is neither a legal nor a logical reason for departing from established precedent.
In a dissent in the recent Supreme Court case of Payne v Tennessee, 501 US ___; 111 S Ct 2597; 115 L Ed 2d 720, 730 (1991), Justice Marshall, joined by Justice Blackmun, focused on stare decisis. In Payne, the Court overruled two recent rulings involving capital punishment and held that juries can consider "victim impact" evidence in the penalty phase of a capital case. Justice Marshall declared that the law and the facts supporting the precedents had remained intact, and that only the personnel of the Court had changed:
Power, not reason, is the new currency of this Court's decisionmaking.... Neither the law nor the facts supporting [overruled opinions] underwent any change in the last four years. Only the personnel of this Court did. [Id., p 748.]
Absent a fundamental change in the law or a difference in the facts of the case, established precedent should prevail. This Court has espoused this position in the past. For example, in Parker v Port Huron Hosp, 361 Mich 1, 10; 105 NW2d 1 (1960), the Court stated:
The rule of stare decisis establishes uniformity, certainty, and stability in the law.... Only in the rare case when it is clearly apparent that an error has been made, or changing conditions result in injustice by the application of an outmoded *42 rule, should we deviate from following the established rule.[[1]] [Emphasis added.]
The majority fails to elaborate on any "changing conditions" beyond the shift in the majority view of the United States Supreme Court. In addition, the majority is unable to point out any "injustice" to demonstrate that the warrant requirement of Beavers is an "outmoded rule."
In his dissenting opinion in Payne, Justice Marshall also stated that "[i]nevitably, this campaign to resurrect yesterday's `spirited dissents' will squander the authority and the legitimacy of this Court as a protector of the powerless." Id., p 756. Similarly, our Court has a responsibility to protect the rights of the citizens of this state. To argue that our state should allow the intrusion of searches without warrants without any probable cause or even suspicion, merely because parallel federal constitutional provisions have been interpreted to permit the use of such a procedure, is to abdicate this Court's responsibility to examine the rationale of that Court and determine whether it is persuasive. The Beavers Court fulfilled its obligation and declared itself unconvinced by the reasoning of the United States Supreme Court. It then ruled that under our state constitution a warrant based on probable cause is required for third-party monitoring of the conversations of others.
In his dissent in Payne, Justice Marshall also cautioned against a rule which allows prior precedent to be overturned on the strength of the personal proclivities of individual justices:
*43 This truncation of the Court's duty to stand by its own precedents is astonishing.... [T]he majority sends a clear signal that essentially all decisions implementing the personal liberties protected by the Bill of Rights and the Fourteenth Amendment are open to reexamination.... [T]he continued vitality of literally scores of decisions must be understood to depend on nothing more than the proclivities of the individuals who now comprise a majority of this Court. [Id., pp 752-753. Emphasis in the original.]
The warrant requirement established in Beavers by a decisive majority of this Court was reached after deliberate examination and should stand. Even though this Court has traditionally examined United States Supreme Court analyses when interpreting parallel provisions under our state constitution, this does not mean that this Court must follow the United States Supreme Court majority's interpretation of the United States Constitution if that interpretation is unpersuasive on its own merits. This Court is a sovereign, independent judicial body with ultimate authority to interpret Michigan law. We should not endorse the reasoning of a majority of the justices of the United States Supreme Court unless their reasoning is intrinsically persuasive on the merits.
II
Even at the risk of prolixity, a brief overview of the development of this area of the law is helpful in understanding the concepts involved. In Olmstead v United States, 277 US 438; 48 S Ct 564; 72 L Ed 944 (1928), the United States Supreme Court allowed a telephone tap, even where no party to the conversation had consented, on the grounds that there had been no physical trespass. Then, in *44 On Lee v United States, 343 US 747; 72 S Ct 967; 96 L Ed 1270 (1952), the Court ruled that there was no Fourth Amendment violation when a police officer listened with a radio receiver to a conversation in the defendant's office between the defendant and a police informer who wore a concealed transmitter. In Lopez v United States, 373 US 427; 83 S Ct 1381; 10 L Ed 2d 462 (1963), the Court held that recording without a warrant did not offend the Fourth Amendment where an agent of the IRS used a concealed device to tape-record a conversation with the defendant in the defendant's office. The Court stressed that the defendant took the risk that his offer of a bribe would be testified to in court. This rationale was developed further in Hoffa v United States, 385 US 293, 302; 87 S Ct 408; 17 L Ed 2d 374 (1966), where the Court said that it had never expressed the view "that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." This "wrongdoer's belief rationale" was embraced by this Court in People v Catania, 427 Mich 447, 465; 398 NW2d 343 (1986). Justice Harlan's dissent in United States v White contains the best response to this argument:
By casting its "risk analysis" solely in terms of the expectations and risks that "wrongdoers" or "one contemplating illegal activities" ought to bear, the plurality opinion ... misses the mark entirely. [This decision] does not simply mandate that criminals must daily run the risk of unknown eavesdroppers prying into their private affairs; it subjects each and every law-abiding member of society to that risk. The very purpose of interposing the Fourth Amendment warrant requirement is to redistribute the privacy risks throughout *45 society.... [401 US 745, 789; 91 S Ct 1122; 28 L Ed 2d 453 (1971).][2]
Similarly, this Court in Beavers stated,
The warrant requirement is not a burdensome formality designed to protect those who would engage in illegal activity, but, rather, a procedure which guarantees a measure of privacy and personal security to all citizens. The interests of both society and the individual should not rest upon the exercise of the unerring judgment and self-restraint of law enforcement officials. Our laws must ensure that the ordinary, law-abiding citizen may continue to engage in private discourse, free to speak with the uninhibited spontaneity that is characteristic of our democratic society. [Id. at 566.]
In Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), the Court appeared to abandon the trespass rationale and declared that Fourth Amendment interests are implicated when the government infringes upon an individual's legitimate expectations of privacy. In Katz, federal agents attached a listening device on the outside of a public telephone booth and overheard the defendant's conversation without knowledge or consent of either party to the telephone conversation. Our Court adopted this "reasonable expectation of privacy" test in People v Smith, 420 Mich 1, 21; 360 NW2d 841 (1984).[3] After Katz, it was unclear *46 whether the cases which had relied on the absence of physical trespass had been overruled. But, for purposes of the monitoring of conversations where one party to the conversation gave consent, the Court, in United States v White, supra at 749, applied the "assumed risk" analysis and concluded that such monitoring did not require a warrant because the defendant had no "justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police."
Through dissenting opinions, four justices in White expressed the view that, even when one of the parties to the conversation consents to the monitoring, the Fourth Amendment prohibits third-party electronic monitoring without a warrant. In Beavers, this Court adopted this dissenting view and declared that our state constitution requires a warrant for third-party electronic monitoring.
III
A
The first point made by the majority is that eavesdropping was not a concern of the original drafters of the Fourth Amendment. The "original intent" doctrine of constitutional interpretation has been soundly criticized by legal scholars.[4] In addition, this argument has surfaced before and Justice Douglas, in his dissent in White, appropriately responded that the change in technology *47 since the drafting of the constitution makes this analogy as convincing as "treat[ing] man's first gunpowder on the same level as the nuclear bomb." 401 US 756. Surely the common-law nuisance of eavesdropping was not equivalent to the pervasive forms of intrusion possible today. Even though our forefathers could not have foreseen the myriad of listening devices available today, they did foresee the dangers of invading the privacy of the citizenry. The advance of technology makes it imperative that we be more diligent, not less, in the protection of the right of people to be secure "in their persons, houses, papers and effects" against unreasonable searches and seizures. Now that it is a simple matter to intrude into people's houses without physically entering the walls, eavesdropping is no longer the innocuous form of nuisance that failed to concern the drafters of the Fourth Amendment. The majority declares that the Fourth Amendment was aimed at the general warrants of the British officers who carried on "unlimited searches of private homes." Ante, p 14. Through the use of high-powered microphones, minuscule bugging devices and undetectable telephone taps, the police officer of today, like the British officer of old, can literally carry on "unlimited searches of private homes." Indeed, the very concept of a "private home" is in danger.
In discussing Beavers, the majority states that the Court
rationalized its decision by focusing exclusively on federal case law. Its analysis cited no Michigan authority, it made no reference to the history of the adoption of art 1, § 11 of the Michigan Constitution, and it placed no reliance on textual differences between the state and federal constitutions. Nevertheless, the Court stated that "[w]hile the result reached today reflects an analysis of Federal *48 case authority, our conclusion is based upon the Michigan Constitution...." [Ante, p 22.]
The majority disparages Beavers because the opinion in that case focused on federal case law. But it is logical to examine the rationale of the Supreme Court since the search and seizure provision of our state constitution is closely parallel to the Fourth Amendment. It does not follow, however, that this Court is bound by federal precedent it finds unpersuasive. The Court in Beavers examined the reasoning in White and simply found it unpersuasive:
[W]e are persuaded by the logic of Justice Harlan [in dissent] which recognizes a significant distinction between assuming the risk that communications directed to one party may subsequently be repeated to others and the simultaneous monitoring of a conversation by the uninvited ear of a third party functioning in cooperation with one of the participants yet unknown to the other.... We choose not to extend the constitutional bounds of misplaced confidence to encompass the threat of warrantless third-party monitoring of conversations between an unsuspecting speaker and one who knowingly transmits the communication to another. A party speaking in private conversation with another, particularly where the conversation occurs in the speaking party's residence, has not "knowingly expose[d] [this conversation] to the public".... [Beavers at 565-566.]
Beavers also recognized that surveillance is a vital component of law enforcement, but felt that privacy concerns justified the minimal inconvenience of getting a warrant to perform this surveillance. In short, Beavers addressed all of the arguments put forth today, and there are no new arguments to justify the retreat from Beavers. The *49 majority spends most of its energy demonstrating that the Fourth Amendment does not require a warrant in this situation. But to reiterate, this misses the point. Under White, the Fourth Amendment did not require a warrant in 1975 either, but the Michigan Constitution, as interpreted by this Court in Beavers, did require a warrant. A change in personnel, either on the United States Supreme Court or on this Court should not result in a fundamental shift in Michigan constitutional law. When the Beavers Court rejected the reasoning of the plurality in White, it demonstrated the independence of this Court and renounced rote conformity to the reasoning of the justices on the United States Supreme Court.
B
The majority quotes Justice BRICKLEY from People v Nash, 418 Mich 196, 213; 341 NW2d 439 (1983):
"There is no indication that in readopting the language [of art 1, § 11] the people of this state wished to place restrictions on law enforcement activities greater than those required by the federal constitution. In fact, the contrary intent is expressed." [Ante, p 28.][[5]]
And yet, when Beavers was decided, this Court did not feel constrained by this "contrary intent." The Court in Beavers, chose not to follow the prevailing interpretation of the United States Supreme Court. This history of the provision does not support a withdrawal from Beavers. The majority again cites Nash for a disapproval of expanding *50 rights under this provision: "The history of Const 1963, art 1, § 11 ... suggest[s] that its further expansion, with the concomitant expansion of the exclusionary rule to enforce it, should occur only when there is a compelling reason to do so." 418 Mich 214. Preserving the Beavers warrant requirement is not an expansion, but rather the preservation of the status quo. It is the majority position which performs the expansion, expanding the rights of the police force to invade the privacy of the people without warrant or probable cause. I would argue that this Court should require a "compelling reason" to justify this departure from our prior holding.
The majority fails to offer any such compelling reason. The majority declares that although we rejected the plurality view in White at the time of the Beavers case, this Court later adopted the Hoffa principle upon which that reasoning rested. But the Hoffa principle of assuming the risk that associates may be government informants does not resolve this issue. I disagree with the majority that "there is no significant constitutional distinction between participant monitoring and participant recording." Ante, p 24, n 25. In Beavers, the Court recognized a distinction and declared that in the use of the phrase "participant monitoring" the Court meant to "specifically refer to the use of an electronic device by a participant of a conversation which transmits the exchange to a third party. We do not address those situations which include a participant himself recording the conversation...." Id. at 562, n 2. (Emphasis added.) The Court recognized that it is more intrusive when a third party, unknown to one party to the conversation, listens in on a conversation a conversation whose content is unknown, even to *51 the consenting party, at the time consent is given.[6] The "assumption of the risk" argument ignores the opposite expectation that the person with whom he is conversing may not reveal it later; this possibility is completely obliterated by third-party monitoring whose simultaneous nature removes any time for reflection on the part of the consenting party. Removing this possibility tips the scales in favor of the police. This distinction between third-party monitoring and participant monitoring provided much of the justification for the Beavers decision. Without a warrant requirement there is no limit to the police officer's discretion, and free and open discourse is no longer a reasonable risk; instead, the risk becomes an inordinate one in which even the person to whom you are speaking forfeits the option of keeping the discourse private. With third-party monitoring, the option is bargained away in advance before the content of the conversation is even ascertained.
IV
Although not argued by the people, the majority does present one consideration that was only implicitly considered by Beavers, but it is not nearly substantial enough to support a departure from stare decisis. The majority declares that "strict adherence to warrant requirements may be impossible in the context of participant monitoring." Ante, p 37. As evidence of this "impossibility" the majority offers two arguments. The first argument revolves around MCL 780.655; MSA 28.1259(5), requiring the officer executing the warrant to give the individual from whom the property or things *52 are seized a copy of the warrant "forthwith." The majority then declares that such a requirement cannot be met without alerting the suspect, thereby defeating the purpose of the monitoring. Ante, p 37. This argument is specious. The statute does not expressly require the warrant to be given until after the items are seized. The statute declares that "[t]he officer taking property or other things under the warrant shall forthwith give to the person from whom or from whose premises the property was taken a copy of the warrant...." The statute uses the past tense; after the search, and after items are seized, the warrant is given "forthwith" to the person who was searched. This requirement would not frustrate the purpose of the monitoring in any way. In addition, the statute allows for "leav[ing] a copy of the warrant and tabulation at the place from which the property or thing was taken." MCL 780.655; MSA 28.1259(5). (Emphasis added.) In other words, if no one is present when the search occurs, the copy is clearly given after the search takes place. The statute does not expressly require prior notification of a search. Advance notice of any search would frustrate the purpose of the search in question.
The second argument discussed by the majority opinion is the requirement of "describing with particularity" the items to be seized. "Of course, future conversations are nonexistent until they take place ... `[h]ow does one specifically describe the conversation to be seized?'" Ante, p 38. Obviously, this "problem" would apply to all forms of wiretaps and surveillance. The topic of the conversation to be seized and the parties to the conversation can be described with sufficient particularity to obtain a warrant. The "problem" is contrived, particularly since a warrant indeed was obtained in this case and neither side argued that *53 it did not "describe with sufficient particularity."[7] Additionally, if the item to be seized cannot be described with "sufficient particularity" it is probably a mere fishing expedition and should be barred by the constitution. See Berger v New York, 388 US 41, 63; 87 S Ct 1873; 18 L Ed 2d 1040 (1967) ("It is said that neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment's requirements. If that be true then the `fruits' of eavesdropping devices are barred under the Amendment"). The Court in Berger also declared that
it is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one's home or office are invaded. Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices. Some may claim that without the use of such devices crime detection in certain areas may suffer some delays since eavesdropping is quicker, easier, and more certain. However, techniques and practices may well be developed ... without attending illegality.
Mere expediency in law enforcement should not justify trampling on the rights of the citizenry. See Mincey v Arizona, 437 US 385, 393; 98 S Ct 2408; 57 L Ed 2d 290 (1978) ("[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment").
V
The final argument of the majority is that participant monitoring often serves "`to protect the *54 life of the agent or informant.'" Ante, p 39. There is nothing in the exclusionary rule that prohibits the use of participant monitoring for safety purposes; the exclusionary rule operates merely to prevent the admission of evidence at trial. The police would remain free to use participant monitoring to protect their officers.
VI
There have been no changing conditions or evidence of injustice which would justify this retreat from the established precedent in Beavers. As I have stated before,
Adherence to sound judicial precedent gives continuity and predictability to the law. It assures that judicial decisions will be the result of reason rather than the whim of the judge before whom a case is tried. Only compelling reasons justify a court in disregarding longstanding precedent. [People v Cipriano, 431 Mich 315, 352; 429 NW2d 781 (1988) (CAVANAGH, J., dissenting).]
I continue to hold this view and the majority has not put forth any compelling reasons to justify this Court in disregarding this longstanding precedent.
I dissent.
LEVIN, J., concurred with CAVANAGH, C.J.
MALLETT, J., took no part in the decision of this case.
NOTES
[1] We use the term "participant monitoring" to refer only to the electronic monitoring (whether or not recorded) by a law enforcement agent of a conversation where one of the parties to the conversation has previously consented to the activity.
[2] United States v Caceres, 440 US 741; 99 S Ct 1465; 59 L Ed 2d 733 (1979); United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971).
[3] According to testimony given by Jordan at defendant's preliminary examination, defendant's wife had been convicted of filing a false police report after she reported that an assailant had fired a shot at her at a local school. Defendant asked Jordan to tell the judge that he (Jordan) had observed a man running away from the school carrying a rifle, "[s]o it [the conviction] would get thrown out of court."
[4] The warrant stated that the police would be authorized
[t]o monitor, listen to, and tape record by use of a body transmitter or other recording device, any and all voice communications or conversations either in person or telephonically by and between the suspect, Dub Collins, and the informant, Earl Jordan ... for a ten (10) day period....
[5] According to preliminary examination testimony by Jordan, he asked defendant in this telephone conversation what he (Jordan) would have to do if he were to be a witness in the criminal proceeding involving defendant's wife. Defendant replied that Jordan would have to lie. Defendant also offered to pay Jordan $100 (of the $500 total) later that same day.
[6] Jordan testified that while he was in defendant's automobile, defendant traced the route which he wanted Jordan to tell the judge he took the night defendant's wife reported the shooting. Defendant told Jordan that he should tell the judge he saw a man carrying a rifle across the road.
[7] MCL 780.653; MSA 28.1259(3), as interpreted by this Court in Sherbine, required that an affidavit supporting a warrant be based on "reliable" information supplied by a "credible person." It is noteworthy that subsequent to the circuit court's decision in this case, the statute was amended, 1988 PA 80, to provide that when an informant is named, the affidavit need only contain "affirmative allegations from which the magistrate may conclude that the person spoke with personal knowledge of the information."
[8] Unpublished opinion per curiam of the Court of Appeals, decided March 22, 1989 (Docket No. 103047).
[9] In the alternative, the people argue that we should avoid the Beavers result by fashioning a "good faith" exception to the exclusionary rule upon the basis of the rationale found in United States v Leon, 468 US 897; 104 S Ct 3405; 82 L Ed 2d 677 (1984). Since we reverse on other grounds, we do not consider this argument.
[10] 4 Blackstone, Commentaries, p 168. See also Berger v New York, 388 US 41, 45; 87 S Ct 1873; 18 L Ed 2d 1040 (1967).
[11] Blackstone, n 10 supra.
[12] Spritzer, Electronic surveillance by leave of the magistrate: The case in opposition, 118 U Pa L R 169, 170 (1969).
[13] Justice Holmes dissented and wrote, "We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part." 277 US 470.
[14] The underpinnings of Olmstead had been eroded prior to Katz. For example, see Warden v Hayden, 387 US 294, 304; 87 S Ct 1642; 18 L Ed 2d 782 (1967); Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963); Silverman v United States, 365 US 505; 81 S Ct 679; 5 L Ed 2d 734 (1961); Jones v United States, 362 US 257; 80 S Ct 725; 4 L Ed 2d 697 (1960).
[15] See United States v Knotts, 460 US 276; 103 S Ct 1081; 75 L Ed 2d 55 (1983) (explaining the Katz test).
[16] In People v Smith, 420 Mich 1; 360 NW2d 841 (1984), this Court adopted the Katz test for purposes of determining the interests protected by Const 1963, art 1, § 11.
[17] S Rep No 1097, 90th Cong (2nd Sess), reprinted in 1968 US Code Cong & Admin News 2112, 2153-2157. See also id. at 2284-2285 (individual views of Senators Dirksen, Hruska, Scott, and Thurmond); United States v United States Dist Court for the Eastern Dist of Michigan, 407 US 297, 302; 92 S Ct 2125; 32 L Ed 2d 752 (1972).
[18] Congress considered participant monitoring and recording to be an indispensable tool in criminal investigations. S Rep, n 17 supra at 2183, 2286.
[19] Compare, e.g., United States v Jones, 292 F Supp 1001 (D DC, 1968), and cases cited therein, with United States v Kaufer, 406 F2d 550 (CA 2, 1969).
[20] Chief Justice Burger and Justices Stewart and Blackmun joined in the opinion of Justice White.
[21] Justice Black concurred in the plurality's result, but he did so on the ground that intangibles such as conversations are beyond the scope of the Fourth Amendment.
[22] Justices Brennan, Marshall, Douglas, and Harlan.
[23] See, e.g., People v Drielick, 400 Mich 559, 564; 255 NW2d 619 (1977) (addressing whether White was binding as a matter of federal law).
[24] See also Smith v Maryland, 442 US 735; 99 S Ct 2577; 61 L Ed 2d 220 (1979) (citing White with approval) and United States v Karo, 468 US 705, 716, n 4; 104 S Ct 3296; 82 L Ed 2d 530 (1984) (citing White for the proposition that there is a significant distinction between eavesdropping with the consent of a party to the conversation and eavesdropping without the knowledge or consent of either party).
[25] Note is taken of the people's argument that Beavers does not control this case because defendant's words were recorded, as well as monitored. While the Beavers Court sought to limit its ruling so as not to encompass "those situations which include a participant himself recording the conversation," 393 Mich 562, n 2 (emphasis in original), we agree with the United States Supreme Court that there is no significant constitutional distinction between participant monitoring and participant recording. See United States v Caceres, and Lopez v United States, supra.
[26] People v Perlos, 436 Mich 305; 462 NW2d 310 (1990); People v Chapman, 425 Mich 245; 387 NW2d 835 (1986); People v Catania, supra; People v Smith, n 16 supra; People v Nash, 418 Mich 196; 341 NW2d 439 (1983).
[27] A majority of the Court concurred in Justice BRICKLEY'S opinion concerning the history of Const 1963, art 1, § 11 and his analysis regarding the interpretation of that provision.
[28] Const 1908, art 2, § 10, as originally adopted, provided:
The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation....
[29] In People v Stein, 265 Mich 610; 251 NW 788 (1933), the Court reversed the defendant's conviction for carrying an unlicensed weapon, ruling that the weapon had to be excluded from evidence because it was unconstitutionally seized. Three years later the people of Michigan amended the constitution, adding what is now the third sentence of art 1, § 11 to provide that the judicially crafted exclusionary rule was not to be applied to certain types of evidence, including weapons, seized outside the curtilage of the home.
[30] 1935 Joint Resolution No 2, ratified November 3, 1936, reads as follows:
Provided, however, That the provisions of this section shall not be construed to bar from evidence in any court of criminal jurisdiction, or in any criminal proceeding held before any magistrate or justice of the peace, any firearm, rifle, pistol, revolver, automatic pistol, machine gun, bomb, bomb shell, explosive, blackjack, slungshot, billy, metallic knuckles, gas-ejecting device, or any other dangerous weapon or thing, seized by any peace officer outside the cartilage of any dwelling house in this state.
[31] 418 Mich 212 (quoting Committee Proposals and Reports, Constitutional Convention 1961, Supporting Report, Committee Proposal No 15, pp 7, 10).
[32] The convention's address to the people stated that art 1, § 11 represented "No change from Sec. 10, Article II, of the present constitution except for improvement in phraseology." 2 Official Record, Constitutional Convention 1961, p 3364.
[33] Insight concerning the decision to retain the antiexclusionary language was revealed in remarks delivered by the delegate who proposed readoption of the provision:
The time is now and the place is here to retain in our constitution in improved form the proviso which will protect the law-abiding citizen and the law enforcement officer.
Should this proviso later be struck down by the courts as violative of the federal constitution the resulting license of the hoodlum, the burglar, the highwayman, the bank robber, and the narcotics peddler, will be chargeable to those courts and not to this convention. [1 Official Record, Constitutional Convention 1961, p 496 (remarks of Delegate Kenneth Prettie).]
[34] People v Smith, n 16 supra at 20 (no compelling reason that Const 1963, art 1, § 11 requires a standing requirement, for purposes of challenging the admissibility of evidence seized without a warrant, more liberal than that mandated by the United States Supreme Court's interpretation of the Fourth Amendment); People v Catania, supra (plurality decision which followed the analysis set forth in Nash, supra, in holding that art 1, § 11 did not require suppression of evidence seized pursuant to a warrantless "ruse" entry by an undercover police agent into the defendant's home because parallel federal constitutional provisions had been interpreted to permit the use of such evidence); People v Perlos, n 26 supra (MCL 257.625a[9]; MSA 9.2325[1][9] which permits chemical analysis of blood samples taken from a driver of a motor vehicle involved in an accident to be admitted into evidence in a subsequent criminal prosecution arising out of such accident, does not violate the Fourth Amendment of the federal constitution and there is "no compelling reason" to afford greater protection under Const 1963, art 1, § 11).
[35] People v Collier, 426 Mich 23, 39; 393 NW2d 346 (1986) (no compelling reason to construe the due process and self-incrimination provisions of Const 1963, art 1, § 17 in a manner differently than the parallel provisions of the federal constitution); People v Hill, 429 Mich 382, 393; 415 NW2d 193 (1987) (no compelling reason to interpret Const 1963, art 1, § 17 to require Miranda warnings when the suspect becomes the focus of an investigation where parallel provision of the federal constitution had been interpreted to require warnings only when an individual is taken into custody), Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Concerning evidence which is enumerated in the third sentence of art 1, § 11, this Court has held that we may not, under any circumstances, interpret the Michigan Constitution to afford greater protection to defendants than the Fourth Amendment. People v Chapman, n 26 supra at 254-255.
[36] MCL 333.7401(1), (2)(a)(iv); MSA 14.15(7401)(1), (2)(a)(iv).
[37] MCL 333.7401(1), (2)(c); MSA 14.15(7401)(1), (2)(c). The defendant was also convicted as a second felony offender. MCL 333.7413; MSA 14.15(7413).
[38] 427 Mich 454. Justice RILEY and Chief Justice WILLIAMS concurred in the lead opinion of Justice BOYLE. Justice BRICKLEY concurred in the result only. Justice LEVIN also concurred in the result, but on the basis that the issue presented was one of entrapment rather than search and seizure.
[39] In Catania, Justice BOYLE noted that the Washington Supreme Court has suggested the following factors for consideration in determining whether a state constitution affords protection different from the federal constitution: 1) the textual language of the state constitution, 2) significant textual differences between parallel provisions of the two constitutions, 3) state constitutional and common-law history, 4) state law preexisting adoption of the relevant constitutional provision, 5) structural differences between the state and federal constitutions, and 6) matters of peculiar state or local interest. 427 Mich 466 n 12.
[40] We are also urged by the people to distinguish Beavers on the basis that the conversations monitored there occurred within defendant's home. We decline to do so. Although it is well settled that the home is accorded the full range of Fourth Amendment protection, Lewis v United States, 385 US 206, 211; 87 S Ct 424; 17 L Ed 2d 312 (1966), the Fourth Amendment protects people, not places. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, 389 US 351. The United States Supreme Court has found no distinction between electronic surveillance conducted within or without the curtilage of defendant's home. White, 401 US 757 (no distinction between conversations monitored in defendant's home, informant's home, informant's automobile, and a restaurant). Even if a person's home is where he has the most reasonable expectation of privacy, that expectation is no longer reasonable when the home becomes a site for planning criminal activity. Lewis, 385 US 211. See also Lee v State, 489 So 2d 1382, 1386 (Miss, 1986).
[41] Art 1, § 22 of the Alaska Constitution provides:
The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section.
[42] Cf. State v Lester, 64 Hawaii 659, 665; 649 P2d 346 (1982), where, despite a state constitutional right of privacy provision, the Hawaii Supreme Court, reasoning that a person assumes the risk that his confidant will broadcast his words, rules that there was no "compelling reason" to impose a warrant requirement under Hawaii's search and seizure provision.
See also State v Brown, 232 Mont 1; 755 P2d 1364 (1988), and State v Reeves, 427 So 2d 403 (La, 1982), wherein the Supreme Courts of Montana and Louisiana reached a result similar to Hawaii despite a specific state constitutional guarantee of a right of privacy.
[43] See, e.g., White, 401 US 768 (Harlan, J., dissenting).
[44] As noted, 18 USC 2511(2)(c) sanctions participant monitoring. Further, 18 USC 2517(3) provides:
Any person who has received, by any means authorized by this chapter [18 USC 2510 et seq.], any information concerning a wire, oral, or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter [18 USC 2510 et seq.] may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof. [Emphasis added.]
[45] MCL 750.539c; MSA 28.807(3) makes it a felony to "wilfully" use "any device to eavesdrop" upon a private conversation without the consent of all participants. While this statute clearly applies to private citizens, it does not prohibit eavesdropping or surveillance "not otherwise prohibited by law by a peace officer or his agent of this state or federal government while in the performance of his duties." MCL 750.539g(a); MSA 28.807(7)(a).
When the statute was enacted as 1966 PA 319, warrantless participant monitoring was not "otherwise prohibited by law." See On Lee v United States, Lopez v United States, supra, People v Maranian, 359 Mich 361; 102 NW2d 568 (1960), People v Sims, 38 Mich App 127; 195 NW2d 766 (1972), and People v Karalla, 35 Mich App 541; 192 NW2d 676 (1971). Only under Beavers (decided after the statute was enacted) is such monitoring prohibited. Thus, the statute does not reflect a legislative intent to preclude warrantless participant monitoring by a police officer or his agent while in the performance of his duties.
[46] State v Glass, supra.
[47] Commonwealth v Blood, 400 Mass 61; 507 NE2d 1029 (1987).
[48] See, e.g., Hammond v State, 354 So 2d 280 (Ala Crim App, 1977), Smithey v State, 269 Ark 538; 602 SW2d 676 (1980), People v Phillips, 41 Cal 3d 29; 222 Cal Rptr 127; 711 P2d 423 (1985), People v Velasquez, 641 P2d 943 (Colo, 1982), State v Grullon, 212 Conn 195; 562 A2d 481 (1989), Morningstar v State, 428 So 2d 220 (Fla, 1982), cert den 464 US 821 (1983), Green v State, 250 Ga 610; 299 SE2d 544 (1983), State v Lester, n 42 supra, People v Richardson, 60 Ill 2d 189; 328 NE2d 260 (1975), Lawhorn v State, 452 NE2d 915 (Ind, 1983), State v Reeves, n 42 supra, State v Brown, n 42 supra, State v Kilgus, 128 NH 577; 519 A2d 231 (1986), Carrier v Commonwealth, 607 SW2d 115 (Ky App, 1980), Lee v State, n 40 supra, State v Engleman, 653 SW2d 198 (Mo, 1983), State v Levan, 326 NC 155; 388 SE2d 429 (1990), State v Geraldo, 68 Ohio St 2d 120; 429 NE2d 141 (1981), Commonwealth v Blystone, 519 Pa 450; 549 A2d 81 (1988), State v Ahmadjian, 438 A2d 1070 (RI, 1981), Clariday v State, 552 SW2d 759 (Tenn Crim App, 1976), State v Boone, 581 P2d 571 (Utah, 1978), and Blackburn v State, 290 SE2d 22 (W Va, 1982).
We further note that the American Bar Association has approved the use of participant monitoring by law enforcement personnel without court authorization. ABA Standards Relating to Electronic Surveillance, § 4.1, Approved Draft, 1971.
[49] State v Brackman, 178 Mont 105; 582 P2d 1216 (1978); Commonwealth v Schaeffer, 370 Pa Super 179; 536 A2d 354 (1987); State v Reeves, n 42 supra.
[50] State v Brown, n 42 supra; Commonwealth v Blystone, n 48 supra; State v Reeves, n 42 supra.
[51] Beavers, supra, 393 Mich 566.
[52] Electronic Surveillance, Report of the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, which was established by Congress, PL 90-351, § 804, June 19, 1968.
[53] See also Goldsmith, The Supreme Court and title III: Rewriting the law of electronic surveillance, 74 J Crim L & Criminology 1, 46 (1983). According to the author, Congress had "sound tactical reasons" for authorizing warrantless participant monitoring and recording. "Consensual electronic surveillance often was used to protect informants and undercover police officers in cases in which there was no probable cause; indeed, such surveillance was often crucial towards corroborating the reliability of an informant or developing probable cause."
[54] Electronic Surveillance, n 52 supra at 117.
[55] Amicus curiae suggested during oral argument before this Court that, generally, the issuing judge enters a clause in the warrant suppressing service for a certain period of time. We find no statutory or decisional law in this state approving such a practice which appears to contravene the statutory requirement that the individual be served with a copy of the warrant "forthwith."
[56] The Fourth Amendment of the United States Constitution and Const 1963, art 1, § 11 require warrants to "particularly describ[e] the place to be searched, and the persons or things to be seized...." Berger v New York, n 10 supra at 58; People v Secrest, 413 Mich 521; 321 NW2d 368 (1982); People v Taylor, 93 Mich App 292; 287 NW2d 210 (1979); People v Atkins, 96 Mich App 672, 679; 293 NW2d 671 (1980); People v Krokker, 83 Mich App 474, 477; 268 NW2d 689 (1978). MCL 780.654; MSA 28.1259(4) provides, inter alia, that, "[e]ach warrant shall designate and describe the ... property or thing to be seized."
[57] Absent the availability of participant monitoring to establish probable cause, the police may be unable to secure a valid warrant, virtually assuring a credibility contest at trial between the uncorroborated testimony of the informant and the frequently corroborated testimony of the defendant. In Beavers, e.g., the defendant, supported by several witnesses, claimed to be somewhere else at the time of the alleged conversation and drug transaction.
[1] See also People v Jamieson, 436 Mich 61, 79; 461 NW2d 884 (1990) ("It is not necessary for us to announce today what we would do if we were operating on a clean slate, because we are not. Under the doctrine of stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction become precedent which should not be lightly departed").
[2] Today's majority opinion again incorporates the wrongdoers' risk analysis rationale. Ante, p 40.
[3] Interestingly, if we applied this reasonable expectation of privacy test per se to the phone conversation of the defendant in the case at bar, the defendant should prevail. One of the monitored telephone calls was placed to the defendant in his home. Being in one's own home should give rise to legitimate expectations of privacy which society is willing to recognize as reasonable.
But, unfortunately, this Court, in Catania, employed the wrongdoer's assumption of risk analysis in determining whether there is a "reasonable expectation of privacy." Therefore, under Catania, the defendant's misplaced belief that the informant would not reveal his speech destroys any reasonable expectation of privacy.
[4] See Chemerinsky, Foreword: The vanishing constitution, 103 Harv LR 43, 91, n 209 (1989) (citing Levy, Original Intent and the Framers' Constitution).
[5] I reiterate my view, as expressed in Nash, that the state standard for a constitutional violation has no relation to the rule imposed to deter violations of the standard.
[6] Justice Harlan in his dissent in White also expressed the view that the effect on privacy is far greater with third-party eavesdropping and that this effect on privacy results in a warrant requirement. See White, 401 US 786-789.
[7] The warrant in this case was challenged as statutorily defective, but the invalidity was related to the credibility of the informant and not to the description of the conversation to be seized.
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759 So.2d 683 (2000)
Leroy Ricardo LEVAN, Petitioner,
v.
STATE of Florida, Respondent.
No. SC96657.
Supreme Court of Florida.
May 25, 2000.
Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida, for Petitioner.
Robert A. Butterworth, Attorney General, Michael J. Neimand, and Barbara A. Zappi, Assistant Attorneys General, Ft. Lauderdale, Florida, for Respondent.
PER CURIAM.
We have for review Levan v. State, 741 So.2d 611 (Fla. 3d DCA 1999), in which the Third District Court of Appeal affirmed Leroy Ricardo Levan's conviction for unlawful possession of a firearm by a violent career criminal, as well as his sentence as a violent career criminal. In affirming the sentence, the Third District rejected Levan's challenge to chapter 95-182, Laws of Florida, and certified conflict with the Second District Court of Appeal's decision in Thompson v. State, 708 So.2d 315 (Fla. 2d DCA 1998).[1]See Levan, 741 So.2d at 612. We have jurisdiction. See Art. V, § 3(b)(4), Fla. Const. Based on our decision in State v. Thompson, 750 So.2d 643 (Fla.1999), in which we held chapter 95-182 to be unconstitutional as violative of the single subject rule contained in article III, section 6 of the Florida Constitution, we quash the decision below, reverse Levan's conviction,[2] and remand to the trial court for any further proceedings not inconsistent with this opinion. See McGowan v. State, 755 So.2d 109 (Fla.2000).
It is so ordered.
HARDING, C.J., and SHAW, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.
WELLS, J., dissents.
NOTES
[1] The Third District did not indicate that Levan failed to challenge chapter 95-182, Laws of Florida, in the trial court. We find that such challenge may be properly addressed in this case for the first time on appeal. Cf. Heggs v. State, 759 So.2d 620, 623, 624 n. 4 (Fla.2000); Nelson v. State, 748 So.2d 237, 241-42 (Fla.1999), cert. denied, ___ U.S. ___, 120 S.Ct. 950, 145 L.Ed.2d 825 (2000); State v. Johnson, 616 So.2d 1, 3-4 (Fla.1993).
[2] Through the passage of chapter 95-182, Laws of Florida, the Legislature created the possession of a firearm offense for which Levan was convicted. See Ch. 95-182, § 7, at 1673 (creating section 790.235, Florida Statutes). Levan committed the offense on May 19, 1996, and he therefore has standing to raise a single subject rule challenge to chapter 95-182 even if the window period closed on October 1, 1996. Finally, although Levan challenges only his sentence-not his conviction-we sua sponte reverse his conviction because our decision in Thompson rendered the crime for which he was convicted non-existent during the applicable window period. Cf., e.g., Tape v. State, 661 So.2d 1287, 1288-90 (Fla. 4th DCA 1995) (reversing, sua sponte, defendant's conviction for attempted first-degree felony murder because this Court's decision in State v. Gray, 654 So.2d 552 (Fla. 1995), rendered that offense non-existent).
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NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
IRMA ANN TITTLE, Appellant.
No. 1 CA-CR 13-0218
FILED 2-25-2014
Appeal from the Superior Court in Maricopa County
No. CR2011-005789-001
The Honorable Dawn M. Bergin, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
State v. Tittle
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Michael J. Brown joined.
K E S S L E R, Judge:
¶1 Appellant Irma Ann Tittle (“Tittle”) was tried and convicted
of three counts of custodial interference, each a class 4 felony and
domestic violence offense, and sentenced to four years of probation. Tittle
was ordered to pay $12,504.54 to the victim (“Father”) beginning May 1,
2013 at the rate of $150 per month. Counsel for Tittle filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark,
196 Ariz. 530, 2 P.3d 89 (App. 1999).1 Finding no arguable issues to raise,
counsel requests that this Court search the record for fundamental error.
Tittle was given the opportunity to, but did not file, a supplemental brief.
For the reasons that follow, we affirm Tittle’s restitution order.
FACTUAL AND PROCEDURAL HISTORY
¶2 Tittle and Father were married until 2003 when Father filed
for dissolution of marriage. State v. Tittle, 1 CA-CR 12-0370, at *1, ¶2 2013
WL 4326614 (Ariz. App. Aug. 15, 2013) (mem. decision). When the
dissolution decree was filed in May 2003, Tittle was awarded sole custody
of the couple’s four childrena son and three daughterswith Father
having weekly parenting time. Id. Approximately six months following
the decree, Tittle moved to Texas with the children without informing
Father. Id. at *1, ¶3. As a result, Father lost contact with Tittle and the
children for more than five years. Id. at *1, ¶4. During this time, Father
incurred fees related to the maintenance of a website he created in an
effort to find his children. In February 2009, Father located the children
and petitioned the family court to modify custody. Id. From October 2009
until April 2012 Father incurred legal costs associated with the family
court proceedings. In addition to legal costs, Father also lost wages and
vacation time to attend the family court proceedings.
1 This appeal is limited to the restitution order filed March 13, 2013.
Appellant’s appeal from her convictions and probationary sentences were
affirmed in a separate appeal, State v. Tittle, 1 CA-CR 12-0370, 2013 WL
4326614 (Ariz. App. Aug. 15, 2013) (mem. decision).
2
State v. Tittle
Decision of the Court
¶3 In January 2010, the family court issued a custody order
ordering Tittle and Father to share joint legal custody of the children while
allowing the children’s primary residence to remain with Tittle in Texas.
Id. The family court also ordered reunification therapy and visitation with
Father. Id. In September 2010, the family court issued a civil arrest warrant
for Tittle when she failed to appear with the minor children for a custody
hearing. Id. at *1, ¶5. Father was also granted temporary sole custody of
the children. Id. When Father returned to Texas to take custody, Tittle did
not arrive at the neutral meeting place but instead fled with the children
to a friend’s house. Id. at *1, ¶6. Tittle was arrested in May 2011. Id. After a
five-day trial, a jury found Tittle guilty of all counts based on her conduct
from 2003 through October 2010. Id. at *2, ¶8.
¶4 Restitution hearings were held December 14, 2012 and
March 8, 2013. Father introduced a spreadsheet chronologically outlining
the expenses he claimed and copies of receipts from 2009 to 2012 seeking
total restitution of $23,676.78. Father was the sole witness at both hearings
and testified regarding the expenses outlined in the spreadsheet. Tittle
objected to the inclusion of fees related to the maintenance of Father’s
website and the costs associated with the family court proceedings. Father
testified that he only included one website charge per year and that he
had at least one website completely dedicated to finding his children from
2003 to 2008.
¶5 The trial court found the website fees reasonable. The court
also overruled Tittle’s objection to the inclusion for family court expenses
reasoning the family court proceedings would not have been necessary
had Tittle not violated the law. Accordingly, the court ordered restitution
as follows: $741.562 for legal costs; $6869.483 for lost wages and vacation
time; $4173.50 for therapy fees and; $720 for website maintenance fees, for
a total award of $12,504.54.
¶6 Tittle timely filed a notice of appeal. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031 (2010) and 13-
4033(A). (2010).
2 This includes $733.56 for family court legal costs and $8 for parking
during Tittle’s criminal trial.
3 Father requested $6933.48 reimbursement for lost wages and vacation
time using a $29 hourly wage estimate for 2009. In its final order, the trial
court reduced this to $28 consistent with Father’s annual raises from 2010
to 2012 as noted in a letter from his employer dated, August 22, 2012.
3
State v. Tittle
Decision of the Court
STANDARD OF REVIEW
¶7 In an Anders appeal, this Court must review the entire record
for fundamental error. Error is fundamental when it affects the foundation
of the case, deprives the defendant of a right essential to her defense, or is
an error of such magnitude that the defendant could not possibly have
had a fair trial and the error prejudiced the defendant. See State v.
Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005); State v.
Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). This Court will
uphold the trial court’s restitution award if the record substantially
supports the court’s conclusion that the award is reasonably related to the
victim’s loss. See State v. Howard, 168 Ariz. 458, 460, 815 P.2d 5, 7 (App.
1991). “The burden of proof applicable to restitution is proof by a
preponderance of the evidence.” In re Stephanie B., 204 Ariz. 466, 470, ¶ 15,
65 P.3d 114, 118 (App. 2003).
DISCUSSION
¶8 Tittle was present at the restitution hearings and was
represented by counsel. Tittle was present for the examination of State’s
witness, Father, at both the December 2012 and March 2013 restitution
hearings, and was provided a copy of the spreadsheet and receipts at that
time. Tittle’s attorney cross-examined Father at the continued restitution
hearing.
¶9 A trial court “may impose restitution only on charges for
which a defendant has been found guilty, to which he has admitted, or for
which he has agreed to pay.” State v. Lewis, 222 Ariz. 321, 324, ¶ 7, 214
P.3d 409, 412 (App. 2009) (internal quotation marks and citation
omitted). “A loss is recoverable as restitution if it meets three
requirements: (1) the loss must be economic, (2) the loss must be one that
the victim would not have incurred but for the criminal conduct, and (3)
the criminal conduct must directly cause the economic loss.” State v.
Madrid, 207 Ariz. 296, 298, ¶ 5, 85 P.3d 1054, 1056 (App. 2004). A trial court
can award restitution to victims for lost wages and annual leave time lost
as a direct result of the defendant’s criminal conduct. See Ariz. Const. art.
2, § 2.1(A)(8); In re Ryan A., 202 Ariz. 19, 25, ¶ 29, 39 P.3d 543, 549 (App.
2002).
¶10 The record supports the restitution award. Tittle was found
guilty of custodial interference and ordered to pay restitution for
economic losses associated with her criminal conduct. First, the trial court
properly considered Father’s lost wages and vacation time as well as costs
4
State v. Tittle
Decision of the Court
for reunification therapy because these costs were incurred as a result of
Tittle’s criminal conduct. Second, the court properly awarded fees related
to the website. Tittle objected to the fees asserting that the website was
used for personal reasons such as promoting his book and linking to other
personal websites. The trial court found Father’s testimony regarding the
use of his website credible and Tittle did not present evidence to support
her allegation that the site was maintained for alternative reasons. We
defer to the trial court on determinations of witness credibility; thus,
including Father’s website fees in calculating restitution was not
fundamental error. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972
P.2d 676, 680 (App. 1998).
¶11 Third, the trial court properly awarded costs associated with
the family court proceedings. Tittle objected to the costs on the grounds
that the issues addressed in family court expanded beyond those directly
related to Tittle’s criminal conduct. Father testified that the family court
matters related to changing custody and recalculating child support as a
consequence of Tittle’s taking the children from him and her subsequent
incarceration. The trial court overruled Tittle’s objection. Had the criminal
conduct not occurred, the custody and child support orders would have
continued as ordered in the original decree. There is no evidence in the
record that the family court also awarded Father reimbursement for
attending those hearings. Therefore, the trial court’s inclusion of the
family court costs in calculating restitution was not fundamental error.
¶12 The trial court’s calculation of restitution also was accurate
and supported by evidence submitted by the State. The spreadsheet
prepared by Father noted the date, dollar amount, and a brief description
of each expense. Attached to the spreadsheet were receipts, invoices, bank
statements, and correspondence to support each expense. The only
expenses that were not supported by a specific receipt were monthly
charges for maintenance of the website and some postage and filing fees.
In addition to being noted on the spreadsheet, charges without a
corresponding receipt were supported by Father’s testimony describing
the purpose of the expense and the reason he did not have a receipt or
invoice. Because the trial court did not err in calculating the total expenses
incurred by Father, and because each expense was adequately supported
by competent evidence, there is no fundamental error.
CONCLUSION
¶13 After careful review of the record, we find no meritorious
grounds for reversal or modification of Tittle’s restitution order. The
5
State v. Tittle
Decision of the Court
evidence supports the order, the proceedings were conducted in
conformity with the Arizona Rules of Criminal Procedure, and Tittle was
present and represented at all stages of the restitution proceedings below.
Accordingly, we affirm Tittle’s restitution order.
¶14 Upon the filing of this decision, counsel shall inform Tittle of
the status of the appeal and her options. Defense counsel has no further
obligations, unless, upon review, counsel finds an issue appropriate for
submission to the Arizona Supreme Court by petition for review. See State
v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Tittle shall
have thirty days from the date of this decision to proceed, if she so desires,
with a pro per motion for reconsideration or petition for review.
:mjt
6
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
In the Matter of P.M., a Juvenile, § No. 08-15-00038-CV
Appellant § Appeal from the
§ 65th District Court
§ of El Paso County, Texas
§ (TC# 13,01271)
§
ORDER
The Court GRANTS the Appellant’s third motion for extension of time within which to
file the brief until September 26, 2015. NO FURTHER MOTIONS FOR EXTENSION OF
TIME TO FILE THE APPELLANT’S BRIEF WILL BE CONSIDERED BY THIS COURT.
It is further ORDERED that the Hon. Ruben P. Morales, the Appellant’s attorney,
prepare the Appellant’s brief and forward the same to this Court on or before September 26,
2015.
IT IS SO ORDERED this 28th day of August, 2015.
PER CURIAM
Before McClure, C.J., Rodriguez, and Hughes, JJ.
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474 F.2d 1349
Ringov.Wingo
72-1352
UNITED STATES COURT OF APPEALS Sixth Circuit
3/1/73
1
W.D.Ky.
AFFIRMED
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382 F.2d 96
Ralph Charles ROETH, Appellant,v.UNITED STATES of America, Appellee.
No. 9372.
United States Court of Appeals Tenth Circuit.
August 24, 1967.
Rehearing Denied September 20, 1967.
Jay M. Vogelson, Dallas, Tex., for appellant.
John W. Raley, Jr., Asst. U. S. Atty., Oklahoma City, Okl., (B. Andrew Potter, U. S. Atty., Oklahoma City, Okl., with him on brief) for appellee.
Before JONES*, SETH and HICKEY, Circuit Judges.
HICKEY, Circuit Judge.
1
Appellant was indicted by a grand jury in Oklahoma for escaping from custody while serving an eight year sentence imposed by a Texas Federal Court. A motion to dismiss the indictment was filed by a court-appointed attorney in the Western District of Oklahoma. The motion was filed pursuant to Fed.R.Crim. P. 48(b) and alleged that the indictment was procured to punish appellant for charging federal officers with unreasonable censorship of mail between client and attorney during a habeas corpus proceeding in the Texas District Court. The trial court denied the motion.
2
Appellant first entered a plea of not guilty to the indictment but some time later came before the court, with his court-appointed attorney, to request the court to permit him to withdraw the not guilty plea and enter a plea of guilty.
3
The court-appointed attorney, with whom appellant was well satisfied according to the transcript, proposed to the court that the appellant unreservedly enter a plea of guilty, thereby acknowledging the truth of the indictment; however, appellant's counsel submitted to the court that the plea of guilty would not waive appellant's right, if he had one, to appeal from the order overruling the motion to dismiss. The court stated: "[I]t is my opinion at this time * * * that if the defendant enters a plea of guilty it probably would waive any antecedent defects and I doubt seriously that he could appeal." The prosecuting officer confirmed the judge's conclusion. Without citing authority, the court-appointed attorney indicated that counsel who represented the appellant before the Texas Court had advised that such a procedure existed. The court again questioned the validity of such procedure and the court-appointed counsel indicated that if he could preserve all of appellant's rights without there being anything equivocable about the plea, he would have done everything he could do. Appellant was present during all of this colloquy.
4
The court proceeded under Rule 111 to determine that the plea was made voluntarily with understanding of the nature of the charges and the consequences of the plea and to further determine that there was a factual basis for the plea. The court's interrogation of the appellant indicates that the questions conform to the commandments contained in Rule 11. The appellant appropriately answered, indicating to the court that if he entered a plea of guilty, it would be voluntarily and understandingly made. Roeth indicated that no threats had been made, no coercion or pressure used and that he relied upon no promises. The court concluded it would accept the plea of guilty. The plea was then entered and the appellant sentenced, the sentence to run concurrently with the sentence for which he was presently incarcerated.
5
Appellant relies upon United States v. Doyle, 348 F.2d 715 (2nd Cir. 1965) as authority for the procedure he has attempted to follow. However, in Doyle it is said: "An unqualified plea of guilty, legitimately obtained and still in force, bars further consideration of all but the most fundamental premises for the conviction, of which the subject-matter jurisdiction of the court is the familiar example. The claims here asserted have nothing of this quality." Our own circuit has repeatedly stated that "[a] plea of guilty to an indictment is an admission of all non-jurisdictional facts alleged in the charge." Marteney v. United States, 216 F.2d 760, 762 (10th Cir. 1954); Kagen v. United States, 360 F.2d 30, 32 (10th Cir. 1966); Gallegos v. Cox, 358 F.2d 703, 704 (10th Cir. 1966).
6
The claim here asserted has nothing of the quality required to authorize the relief sought.
7
Affirmed.
Notes:
*
Of the Fifth Circuit, sitting by designation
1
Rule 11, Fed.R.Crim.P. provides: "A defendant may plead not guilty, guilty or, with the consent of the court,nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea."
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
BO BAIL BONDS, the Surety, )
)
Appellant, )
)
v. ) Case No. 2D18-2801
)
COLLIER COUNTY CLERK OF )
COURTS, )
)
Appellee. )
)
Opinion filed June 21, 2019.
Appeal from the Circuit Court for Collier
County; Frederick R. Hardt, Judge.
Christopher H. Brown of Brown, Suarez,
Rios & Weinberg, P.A., Fort Myers, for
Appellant.
James D. Molenaar and Marni M. Scuderi,
Naples, for Appellee.
PER CURIAM.
Affirmed.
LaROSE, C.J., and SILBERMAN and VILLANTI, JJ., Concur.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 8 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10077
Plaintiff-Appellee, D.C. No.
2:15-cr-00226-GMN-PAL-1
v.
JOHNNY MOORE, AKA John Moore, Jr., MEMORANDUM*
AKA Steve,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Submitted June 2, 2020**
Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.
Johnny Moore appeals from the district court’s judgment and challenges his
guilty-plea conviction and 36-month sentence for interstate travel in aid of
unlawful activity, in violation of 18 U.S.C. § 1952(a)(3)(A). Pursuant to Anders v.
California, 386 U.S. 738 (1967), Moore’s counsel has filed a brief stating that
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
there are no grounds for relief, along with a motion to withdraw as counsel of
record. After striking Moore’s pro se supplemental opening brief, we provided
him an opportunity to file a new pro se brief, which he has not done. No
answering brief has been filed.
Moore waived his right to appeal his conviction and sentence. Our
independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80
(1988), discloses no arguable issue as to the validity of the waiver, except that the
waiver is unenforceable as to the restitution order because Moore was not provided
with any estimate of the restitution amount in his plea agreement. See United
States v. Tsosie, 639 F.3d 1213, 1217-18 (9th Cir. 2011). Nonetheless, our
independent review of the record discloses no arguable grounds for relief as to the
uncontested restitution order. We accordingly affirm the restitution order. We
dismiss the remainder of the appeal in light of the valid appeal waiver. See United
States v. Watson, 582 F.3d 974, 988 (9th Cir. 2009).
In trial counsel’s motion to withdraw as counsel on appeal, which this court
previously granted, she indicated that Moore wished to appeal on the ground that
she provided ineffective assistance by failing to advise him of the possibility that
he would be required to register as a sex offender. Assuming trial counsel’s
assertion is correct, such a claim cannot be addressed on direct appeal. See United
States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011).
2 18-10077
Counsel’s motion to withdraw is GRANTED.
Within 7 days after the date of this disposition, former counsel must serve
this disposition on Moore individually and provide this court with proof of such
service.
AFFIRMED in part; DISMISSED in part.
3 18-10077
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[Cite as State v. Wyrick, 2011-Ohio-5089.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OFOHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 11 CAA 04 0034
JOSEPH L. WYRICK
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 10 CR I 07 0382
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 30, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN BRIAN G. JONES
PROSECUTING ATTORNEY 2211 US Highway 23 North
GREGORY A. TAPOCSI Delaware, Ohio 43015
ASSISTANT PROSECUTOR
140 North Sandusky Street, 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 11 CAA 04 0034 2
Wise, J.
{¶1} Defendant-Appellant Joseph L. Wyrick appeals the March 22, 2011,
Judgment Entry entered in the Delaware County Common Pleas Court denying his
motion to withdraw his guilty plea.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On July 9, 2010, the Grand Jury of Delaware County returned a sixteen
count indictment against Appellant Joseph L. Wyrick based on a series of home
invasions conducted by Appellant in a continuing course of criminal conduct from June
17, 2010, to July 2, 2010. As a result, Appellant was charged with the following: one
count of Burglary in violation of R.C. §2911.12(A)(2), being a felony of the second
degree; two counts of Attempted Burglary in violation of R.C. §2923.02(A) as it relates
to R.C. §2911.12(A)(2), being third degree felonies; one count of Receiving Stolen
Property in violation of R.C. §2913.51(A), being a felony of the fourth degree; and one
count of Having Weapons While Under Disability in violation of R. C. §2923.12(A)(2),
being a felony of the third degree.
{¶4} On July 23, 2010, Appellant appeared before the Court for purposes of
arraignment, where he pled not guilty to all counts, and a trial date of September 28,
2010, was established.
{¶5} On September 27, 2010, Appellant was transported to the trial court for a
hearing on a motion to continue filed by his retained attorney, Linda Kendrick. (Plea T.
at 2). Attorney Kendrick noted she was seeking to continue Appellant's trial because a
fire destroyed "everything" in her office, and she was not prepared to go forward on the
Delaware County, Case No. 11 CAA 04 0034 3
scheduled date. (Plea T. at 2-3). Attorney Kendrick then advised the trial court that she
wished to withdraw as Appellant's attorney of record due to "a difference of opinion."
(Plea T. at 3). At that time, however; Appellant informed Attorney Kendrick that he
wanted to enter a guilty plea. (Plea T. at 4).
{¶6} The State then proceeded to orally enter the parties' agreement on the
record. Id. Pursuant to negotiations, Appellant agreed to plead guilty to one count of
Attempted Burglary and one count of Having Weapons While Under Disability, both
being felonies of the third degree. (Plea T. at 4). In exchange, the State agreed to
dismiss the three remaining charges. (Plea T. at 7).
{¶7} Attorney Kendrick then asked the trial court for time to review the plea
paperwork with Appellant before allowing the hearing to continue. ld.
{¶8} After a brief recess, Appellant was placed under oath, at which time the
trial court advised Appellant:
{¶9} “Mr. Wyrick, I’m gonna ask you some questions. If at anytime you don't
understand anything, let me know, be happy to clarify it for you. I recognize this is
important to you, I want to make sure that you're aware of everything going on. So will
you do that?" (Plea T. at 5).
{¶10} Appellant then responded in the affirmative. Id.
{¶11} After speaking with Appellant, the trial court stated that it found Appellant
to be "mature, alert, reasonably educated, not under the influence of alcohol or drugs,
capable of understanding the proceedings here today." (Plea T. at 6).
{¶12} The trial court then discussed the content of the parties' Crim.R. 11 (F)
negotiations. (Plea T. at 7). Appellant acknowledged that the plea paperwork was
Delaware County, Case No. 11 CAA 04 0034 4
correct and further acknowledged the presence of his signature on the Crim.R. 11(F)
agreement. Id.
{¶13} The trial court then proceeded to question Appellant about the two crimes
for which he was entering pleas of guilty. (Plea T. at 10). Appellant admitted to
attempting to open a sliding glass door and then trying to pry open a kitchen window
screen for purposes of stealing items from within a Delaware County home. Id.
Appellant also stated he was in possession of three firearms at the time of his arrest
despite having two prior burglary convictions. (Plea T. at 11).
{¶14} Upon inquiry from the trial court, Appellant stated that he was entering his
pleas voluntarily and further stated that he had the opportunity to review all the essential
elements, possible defenses, and possible penalties with his attorney, Ms. Kendrick.
(Plea T. at 12). Further, Appellant confirmed that Ms. Kendrick answered all his
questions and stated that he was satisfied with her advice, counsel, and competence.
Id.
{¶15} The trial court informed Appellant that it could impose a definite prison
term of one, two, three, four, or five years, as well as a $10,000 fine for Count 3 and
one, two, three, four or five years in prison and a fine not to exceed $10,000 on Count 5.
(Plea T. at 13).
{¶16} The trial court further inquired of Appellant:
{¶17} "And understanding that those penalties can be imposed consecutively or
one after the other, so you're facing a maximum of ten years in prison and up to a
$20,000 fine, do you still wish to enter a plea of guilty." Id.
{¶18} To which, Appellant responded in the affirmative. Id.
Delaware County, Case No. 11 CAA 04 0034 5
{¶19} Appellant also signed a written plea of guilty which specified that Appellant
understood that "[p]rison terms for multiple charges, even if consecutive sentences are
not mandatory, may be imposed consecutively by the Court." (Judgment Entry
Withdrawal Guilty Pleas, Sept. 28, 2010, at 2; See also T. Vol. 3, at 17).
{¶20} After discussing the constitutional rights waived by Appellant as a result of
his pleas, the trial court found Appellant guilty and ordered Appellant's sentencing to
occur at a later date so that a presentence investigation could be conducted to help the
court to fashion an appropriate sentence for Appellant. (Plea T. at 16-18).
{¶21} On November 1, 2010, Appellant was sentenced to serve a stated prison
term of four years on the Attempted Burglary charge and four years on the Having
Weapons While Under Disability charge to be served consecutively for a total stated
prison term of eight years. (Sent. T. at 15).
{¶22} On January 14, 2011, Appellant filed a motion to withdraw his guilty pleas.
{¶23} On March 21, 2011, a hearing was held on Appellant’s motion.
{¶24} By Judgment Entry filed March 22, 2011, the trial court denied Appellant's
motion to withdraw his guilty pleas.
{¶25} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶26} “I. THE COURT ERRED IN NOT GRANTING MR. WYRICK’S MOTION
TO WITHDRAW HIS GUILTY PLEA BECAUSE HE WAS PROVIDED WITH
INNEFFECTIVE [SIC] ASSISTANCE OF COUNSEL DUE TO THE FACT THAT HIS
COUNSEL DID NOT PROPERLY INFORM HIM OF WHAT A GUILTY PLEA WOULD
Delaware County, Case No. 11 CAA 04 0034 6
ENTAIL AND THUS, HIS PLEA WAS NOT MADE KNOWINGLY, INTELLIGENTLY,
AND VOLUNTARILY.
{¶27} “II. THE COURT ERRED IN NOT GRANTING MR. WYRICK’S MOTION
TO WITHDRAW HIS GUILTY PLEAS BECAUSE HE WAS NOT PROPERLY
INFORMED BY THE COURT WHAT A CONSECUTIVE SENTENCE WAS AND THUS,
HIS GUILTY PLEA WAS NOT MADE KNOWINGLY, INTELLIGENTLY, AND
VOLUNTARILY.
II.
{¶28} For clarity of analysis, we shall address Appellant’s assignments of error
out of order.
{¶29} In his second assignment of error, Appellant claims that the trial court
erred in denying his motion to withdraw his guilty pleas. We disagree.
{¶30} Appellant claims that the trial court failed to properly inform him of the
possibility of consecutive sentences.
{¶31} As stated above, the trial court, at Appellant’s change of plea hearing on
Sept. 27, 2010, engaged in the following discussion with Appellant:
{¶32} The Court: “Understanding that today, if I accept your pleas of guilty,
that I’m able to impose a definite prison term of imprisonment on State – or on Count 3
of one, two, three, four, or five years duration and a fine not to exceed $10,000, and on
Count 5 one, two, three, four, five years in prison and a fine not to exceed $10,000, do
you still wish to enter a plea of guilty to those two charges?”
{¶33} Defendant: “Yes.”
Delaware County, Case No. 11 CAA 04 0034 7
{¶34} The Court: "And understanding that those penalties can be imposed
consecutively or one after the other, so you're facing a maximum of ten years in prison
and up to a $20,000 fine, do you still wish to enter a plea of guilty."
{¶35} Defendant: “Yes.” (Plea T. at 13).
{¶36} We therefore find Appellant’s argument that he was not properly informed
about the possibility of consecutive sentences not well-taken.
{¶37} Based on the foregoing, we find Appellant’s second assignment of error
not well-taken and overrule same.
I.
{¶38} In his first assignment of error, Appellant claims that the trial court erred in
denying his motion to withdraw his guilty pleas. We disagree.
{¶39} More specifically, Appellant claims that his guilty pleas were not made
knowingly, voluntarily and intelligently, arguing that his attorney failed to adequately
advise him as to the consequences of his guilty pleas.
{¶40} Crim.R. 11 requires guilty pleas to be knowingly, intelligently and
voluntarily made. Although literal compliance with Crim.R. 11 is preferred, substantial,
not strict, compliance with Crim.R. 11 is required. State v. Stewart (1977), 51 Ohio St.2d
86, 364 N.E.2d 1163.
{¶41} Crim.R. 32.1 governs the withdrawal of a guilty or no contest plea and
states:
{¶42} “A motion to withdraw a plea of guilty or no contest may be made only
before sentence is imposed; but to correct manifest injustice the court after sentence
Delaware County, Case No. 11 CAA 04 0034 8
may set aside the judgment of conviction and permit the defendant to withdraw his or
her plea.”
{¶43} Because Appellant's request was made post-sentence, the standard by
which the motion was to be considered was “to correct manifest injustice.” The accused
has the burden of showing a manifest injustice warranting the withdrawal of a plea.
State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324, paragraph one of the
syllabus.
{¶44} Further, a reviewing court will not disturb a trial court's decision whether to
grant a motion to withdraw a plea absent an abuse of discretion. State v. Caraballo
(1985), 17 Ohio St.3d 66, 477 N.E.2d 627. In order to find an abuse of discretion, the
reviewing court must determine that the trial court's decision was unreasonable,
arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450
N.E.2d 1140.
{¶45} A properly licensed attorney is presumed competent. State v. Hamblin
(1988), 37 Ohio St.3d 153, 524 N.E.2d 476. Therefore, in order to prevail on a claim of
ineffective assistance of counsel, Appellant must show counsel's performance fell below
an objective standard of reasonable representation and but for counsel's error, the
result of the proceedings would have been different. Strickland v. Washington (1984),
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d
136, 538 N.E.2d 373.
{¶46} In other words, Appellant must show that counsel's conduct so
undermined the proper functioning of the adversarial process that the trial cannot be
relied upon as having produced a just result. Id.
Delaware County, Case No. 11 CAA 04 0034 9
{¶47} Further, a Criminal Rule 32.1 motion is “addressed to the sound discretion
of the trial court, and the good faith, credibility, and weight of the movant's assertions in
support of the motion are matters to be resolved by the trial court.” State v. Reed, 7th
Dist. No. 04 MA 236, 2005-Ohio-2925, ¶ 7, citing State v. Smith (1977), 49 Ohio St.2d
261, 361 N.E.2d 1324, paragraph two of the syllabus.
{¶48} In the case sub judice, the trial court found that Appellant failed to present
credible evidence in support of his claims that his attorney failed to properly advise as to
the consequences of his guilty pleas. We agree.
{¶49} While Appellant testified that his attorney never told him that he could
receive consecutive sentences, the trial court found his testimony to be lacking in
credibility and further found that Appellant failed to present any evidence that his
counsel advised him that he would receive less than the ten year sentence imposed.
The trial court further found that the plea hearing record contradicted Appellant’s
testimony. (March 22, 2011, Judgment Entry Denying Motion to Withdraw Guilty Plea).
{¶50} Further, as set forth above in our analysis of Appellant’s second
assignment of error, Appellant was in fact advised as to the possible sentences that
could be imposed and the possibility of the imposition of consecutive sentences by the
trial court. We therefore find his argument that his pleas were not knowingly, voluntarily
and intelligently made not well-taken.
{¶51} Based on the foregoing, we find that the trial court did not abuse its
discretion in overruling Appellant's motion based on the claim of ineffective assistance
of counsel.
Delaware County, Case No. 11 CAA 04 0034 10
{¶52} Appellant’s first assignment of error is overruled.
{¶53} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas of Delaware County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
___________________________________
___________________________________
___________________________________
JUDGES
JWW/d 0915
Delaware County, Case No. 11 CAA 04 0034 11
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OFOHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JOSEPH L. WYRICK :
:
Defendant-Appellant : Case No. 11 CAA 04 0034
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Delaware County, Ohio, is affirmed.
Costs assessed to Appellant.
___________________________________
___________________________________
___________________________________
JUDGES
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929 A.2d 512 (2007)
400 Md. 510
DEPARTMENT OF PUBLIC SAFETY & CORRECTIONAL SERVICES
v.
John DONAHUE.
No. 84, Sept. Term, 2006.
Court of Appeals of Maryland.
August 1, 2007.
*514 Michele J. McDonald, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen., on brief), for petitioner/cross-respondent.
*515 Lisa O'Mara Armquist (Davis & Associates Law Offices, P.A., on brief), Towson, for respondent/cross-petitioner.
Argued before BELL, C.J., RAKER, CATHELL,[*] HARRELL, BATTAGLIA, GREENE and ALAN M. WILNER (Retired, specially assigned), JJ.
WILNER, J.
John Donahue was a correctional officer for the Department of Public Safety and Correctional Services (DPSCS). He held the rank of lieutenant and served at the Eastern Correctional Institution (ECI) in Somerset County. On March 10, 1997, DPSCS discharged Donahue. That action inaugurated a saga that has lasted, so far, more than a decade and has involved three administrative hearings, three judicial review actions in the Circuit Court for Somerset County, three appeals to the Court of Special Appeals, and two petitions for certiorari in this Court, the latter of which we granted. The issue now is whether he was properly discharged a second time, in November, 2002. We shall hold that he was.
BACKGROUND
Donahue's first discharge, in March, 1997, arose from the disappearance of a set of keys at ECI. In his capacity as key control supervisor, Donahue was responsible for conducting a pre-audit inventory of emergency keys stored in Tower 8. He conducted such an inventory in November, 1996, and, although he noted a number of errors in the log book, he did not report any missing keys. In January, 1997, the key control officer reported that a set of emergency keys in Tower 8 was missing, including a master key that was capable of opening locks throughout the institution. Those keys were never found. There was never any allegation that Donahue had, himself, taken or lost the keys; he was charged, instead, with failing to conduct a proper inventory of the keys and failing to cooperate in the ensuing investigation.[1]
Donahue's grievance over that termination eventually went to a hearing before an Administrative Law Judge (ALJ) at the Office of Administrative Hearings. In a decision and order filed in September, 1998, the ALJ sustained the termination. She found insufficient evidence to support the charges relating to the alleged failure to cooperate with the investigation but sustained the termination upon a finding that Donahue had violated a number of Division of Corrections Directives relevant to the duties of a key control supervisor and, in doing so, failed to perform those duties properly. In an action for judicial review, however, the Circuit Court for Somerset County, in August, 1999, reversed the termination decision and ordered that Donahue be reinstated to his position as Correctional Officer Lieutenant, with full back *516 pay and restoration of benefits. At the request of DPSCS, the Circuit Court stayed its order pending an appeal to the Court of Special Appeals.
In an unreported opinion filed in June, 2000, the Court of Special Appeals agreed with the Circuit Court that the ALJ had erred in finding violations of the Directives pertaining to the conduct of the pre-audit inventory and thus in sustaining Donahue's termination. DPSCS v. Donahue, 132 Md. App. 729, S.T.1999, No.2031 (June 16, 2000). The appellate court concluded, however, that Maryland Code, § 11-110(d)(1) of the State Personnel and Pensions Article (SPP) allowed the ALJ some discretion as to the proper remedy. It therefore vacated that part of the Circuit Court's order requiring that Donahue be reinstated with full back pay and directed that the case be remanded to the ALJ for consideration of the appropriate remedy.
Following his termination and while the judicial review action was wending its way through the courts, Donahue obtained employment with the U.S. Postal Service in Easton. On September 17, 1999, a postal inspector reported to a detective with the Easton Police Department that Donahue had been observed opening yellow envelopes used for the payment of City of Easton parking citations and stealing the contents. The postal inspector had a videotape showing Donahue placing envelopes under his work table, opening those envelopes, placing the contents in his left pocket, resealing the envelopes, and placing them back in the mail system.
On this evidence, the two officers conducted a "sting" operation. The detective gave the postal inspector ten fictitious City of Easton parking citations. The inspector placed money with the citations and mailed them in the yellow parking ticket envelopes used by the City. On September 21, 1999, they surreptitiously observed Donahue place yellow parking ticket envelopes into the bin under his work station. He then went under the work station and, when he emerged, was seen placing something in his left front pocket. Donahue also opened several envelopes that were not part of the sting operation. Postal inspectors stopped Donahue outside the post office when he went on his lunch break and discovered in his pocket a $20 bill, a $10 bill, and ten $1 bills that matched the bills placed in the envelopes by the postal inspector.
Donahue was arrested and charged with two counts of wrongfully opening mail and one count of theft under $300. On December 15, 1999, he pled guilty in the District Court of Maryland to one count each of wrongfully opening mail and theft under $300, for which he received, on each conviction, a 60-day sentence, suspended in favor of probation and 100 hours of community service. It goes without saying that he was discharged from his employment with the Postal Service.
When, pursuant to the Court of Special Appeals mandate, the case was returned to the Office of Administrative Hearings, DPSCS sought an evidentiary hearing in order to present evidence of Donahue's post-termination criminal activity. It urged that his conviction rendered him unqualified for reinstatement. The ALJ rejected that entreaty. In essence, he concluded that the subsequent conviction was not a basis for Donahue's termination in that case and that the only issue open on remand was whether, in light of the judicial conclusions that DPSCS had failed to provide sufficient evidence to support the charges underlying the termination, anything less than reinstatement with full back pay was warranted. The ALJ found that no evidentiary hearing was required on that issue that Donahue was entitled to be reinstated with full back pay and *517 benefits and, on February 14, 2001, he so ordered.
DPSCS again sought judicial review. In an order entered in September, 2001, the Circuit Court for Somerset County affirmed the ALJ's decision, rejecting the effort of the Department to "shoehorn into these proceedings evidence of misconduct on the part of Lieutenant Donahue that would or could lead to his termination if he had been fully employed at the time of the misconduct." As it had done in the earlier proceeding, the Circuit Court stayed its judgment pending any appeal.
DPSCS did appeal. In another unreported opinion, filed July 3, 2001, the Court of Special Appeals affirmed the Circuit Court judgment, agreeing that the remand ordered in June, 2000, was a very limited one that did not encompass conduct occurring after Donahue's termination. DPSCS v. Donahue, 145 Md.App. 715, S.T. 2001, No. 1705 (2002). The Court of Special Appeals mandate issued August 2, 2002. DPSCS then filed a petition for certiorari with this Court, which we denied on October 10, 2002. See Department of Corrections v. Donahue, 371 Md. 262, 808 A.2d 807 (2002).
A week later, on October 17, 2002, ECI Warden Robert Kupec received a memorandum from the Assistant Attorney General who had been handling the case for DPSCS stating that the Court of Special Appeals had ordered Donahue's reinstatement. The warden believed that his duty to reinstate Donahue commenced either on October 10, 2002, when this Court denied the petition for certiorari, or on October 17, when he received the Attorney General's memorandum. It appears that the memorandum also informed Warden Kupec of Donahue's criminal conduct, which the warden, who had assumed his position long after Donahue had been discharged, claimed to have been unaware of earlier.
Upon being apprised of the mandate ordering restatement and Donahue's post-termination conduct, Warden Kupec ordered a background check to determine whether Donahue could maintain his certification by the Maryland Correctional Training Commission which, in the warden's view, was a qualification for employment as a correctional officer. In part upon the advice of the Assistant Attorney General, the warden concluded that Donahue's conviction would render him ineligible for employment, but, aware that the law required him to provide Donahue with an opportunity to "present anything in mitigation as to why we should not take action to prohibit him from returning as a correctional officer," the warden scheduled a "mitigation conference" for Friday, November 1.[2]
On October 25, 2002, Warden Kupec wrote to Donahue at his last known address in Salisbury, which was, in fact, his then-current address, informing him that "the Court of Appeals" had directed his reinstatement with full back pay and restoration of benefits and that the "effective date of your return" would be Friday, November 1, 2002. The warden actually sent two letters, one by certified mail and the other by regular mail, neither of which was returned to the sender. The identical letters directed Donahue to report to the warden's office at 8:00 a.m. on November 1 for "a mitigating conference regarding your continued employment" and admonished *518 that he was not to enter any other part of the institution.
Unknown to the warden, or anyone else at ECI, Donahue was out of State at the time and did not return home until November 8, 2002, and he apparently had made no arrangement to check on voice-mail messages or for anyone to pick up his mail. He discovered what he said was a termination notice attached to his door when he arrived home and picked up his mail the next day, on November 9. He therefore did not receive the October 25 letter, or any other communication, until then and, as a result, failed to report on November 1. Upon his non-appearance that morning and unaware that Donahue was out-of-State, the personnel officer for ECI, Laura Dorsey, called Donahue at his home on three occasions. She said that she let the phone ring at least ten times, but there was no answer and no voice-mail pickup. The calls were to inform Donahue to report on Monday, November 4 for a rescheduled mitigation conference. Unable to reach Donahue, Ms. Dorsey asked Captain Matthews, who worked the 3:00 to 11:00 p.m. shift, to try to reach him. Matthews stated that he called Donahue's number at least nine times on Friday night and Saturday, and possibly once on Sunday (November 1, 2, and 3). Matthews indicated that, on at least one occasion, an answering machine responded.[3]
Warden Kupec stated that several letters were sent to Donahue, that he had sent his administrative captain to Donahue's house in an attempt to deliver the letter personally, and that the captain had posted the letter on Donahue's door. Donahue said that, when he returned home on November 9, he found two notices taped to his door but that they were both notices of his termination.
When Donahue failed to report on November 4, Warden Kupec scheduled a mitigation conference for November 7. There is no indication that any attempt was made to inform Donahue of that conference, and, of course, he did not appear. The warden met with Ms. Dorsey, reviewed the procedural history of the case, including Donahue's conviction, and concluded that, because the theft charge carried a possible prison sentence of more than one year and because he had been fired by another employer for theft, he was disqualified for employment under hiring guidelines established by the Correctional Training Commission. The warden recommended to the Secretary of DPSCS that Donahue be terminated from State service, on the grounds that:
"Mr. Donahue has demonstrated behavior that reflects negatively on the role of a professional correctional officer. Specifically, he has been convicted of theft and with his conviction his ability to provide the care and custody of inmates is seriously jeopardized; his theft, that is stealing money from mail is evidence of his moral turpitude and knowledge of his continued employment under these circumstances would be disruptive and *519 offensive to his coworkers and the public and would have the effect of bringing the State into disrepute."
The next day, November 8, 2002, the Secretary approved the warden's recommendation and signed a Notice of Termination. The Notice stated that Donahue's conduct "clearly indicates behavior considered inappropriate, unbecoming and unprofessional for any Public Safety employee," that he was in violation of DPSCS Standards of Conduct, Section II.B. Personal Conduct, paragraphs 1 & 10; COMAR 17.04.05.04B. (3), (4), (8), & (15) and COMAR 12.10.01.03, and that termination was the "appropriate disciplinary action."[4] The notice was posted on Donahue's residence door. The effect of this action was (1) to reinstate Donahue as an employee as of November 1, 2002, with back pay and restoration of benefits from March, 1997 through November 8, 2002, but (2) to terminate his employment, prospectively, effective November 8, 2002.
Donahue returned home on November 8 and learned at that time of his termination. He filed a grievance which, thirteen months later, ended up before an ALJ.[5] The ALJ saw the case as presenting two basic issues:
(1) whether DPSCS complied with two requirements of SPP § 11-106 subsection (a), which requires that the appointing authority meet with the employee and consider any mitigating circumstances before taking any disciplinary action, and subsection (b), which requires that any disciplinary action be taken within 30 days after the appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed, and
(2) whether the criminal conduct that occurred at a time when Donahue was not an employee of ECI constitutes grounds for termination.
The ALJ concluded that the Department had satisfied the requirement of § 11-106(b) but not that of § 11-106(a), and, for that reason, reversed the termination and, once again, ordered that Donahue be reinstated. Although that ruling made the second issue moot, the ALJ addressed it anyway and concluded that Donahue's conduct could constitute grounds for termination, even though it occurred after his employment had been terminated and thus when he was not an ECI employee.
With respect to SPP § 11-106(b) the requirement that disciplinary action be taken within 30 days after the appointing authority acquires knowledge of the misconduct Donahue argued that ECI was aware by early 2000 of his conviction for theft and opening the mail and that the *520 30-day clock began running on August 2, 2002, when the Court of Special Appeals issued its mandate affirming the Circuit Court judgment. The ALJ rejected that argument. Concluding that ECI had no authority to terminate or take any other disciplinary action against Donahue until be became reemployed, she found that the 30-day time period did not begin to run until Donahue was reinstated as an employee on November 1, 2002, and that, as the action was taken on November 8, there was no violation of § 11-106(b).
ECI did not fare so well with respect to the requirement in § 11-106(a) that the warden meet with Donahue and consider mitigating circumstances before taking disciplinary action. The ALJ noted that the statutory requirement, which facially seemed absolute, was qualified by a regulation of the Department of Budget and Management (COMAR 17.04.05.04D(3)), which added an exception to that requirement: "unless the employee is unavailable or unwilling to meet." The ALJ felt it unnecessary to consider whether the exception in the regulation was valid because she found that Donahue did not refuse to meet with the warden. Notwithstanding that the warden believed that the 30-day time period allowed under § 11-106(b) began to run either on October 17, 2002, when he was informed of the denial of certiorari by this Court, or October 10, when the petition for certiorari was actually denied, the ALJ found that it was unreasonable for the warden to proceed with a mitigation conference in the absence of Donahue when he had no proof that Donahue had received notice of the conference. The ALJ noted that the warden could have contacted counsel for Donahue and that, upon receiving notice that his certified letter to Donahue had been picked up on November 9, he could have rescheduled a meeting thereafter. Indeed, the ALJ expressed doubt that ECI ever intended to consider such mitigating circumstances as the fact that Donahue had stolen only $40, that he was under stress, and that he had a previously good record of fourteen years of service.
Although, as indicated, the ALJ concluded that, in light of her reversal of the termination under SPP § 11-106(a), it was not necessary to determine whether Donahue's criminal conduct while employed with the USPS would constitute grounds for termination of employment with ECI, she concluded that it would. She observed that, if Donahue had been an active employee of ECI at the time, "there is no doubt that these convictions would support his termination from employment," that they "plainly constitute violations" of the Standards of Conduct and COMAR regulations cited by the warden, and that "[a]s the Warden credibly testified, he could not trust the Employee in ongoing employment, given his criminal record." The ALJ rejected Donahue's argument that his convictions would not have prevented him from being hired and concluded instead that, because the theft conviction carried a possible sentence of 18 months in jail, Donahue "would not have been eligible for hire" under DPSCS regulations.
DPSCS sought judicial review of the ALJ's determination that the warden was required to reinstate a person who was not eligible for employment and whom the warden "credibly" stated he could not trust. This time, the Circuit Court for Somerset County reversed the ALJ decision, finding several legal and factual errors in the ALJ's opinion. The court first noted that, although the ALJ correctly determined that Donahue had not demonstrated an "unwillingness" to meet with the Warden, she had failed to address or resolve whether the warden's unsuccessful attempts to notify Donahue prior to the mitigation conference rendered him "unavailable," *521 and that she erred in leaving that issue unanswered: "by neglecting to make an `unavailability' determination, the ALJ has failed to correctly interpret and apply the principles of law governing this case."
Upon the evidence presented, the court concluded that Donahue did, indeed, render himself unavailable. Recognizing that the warden, in hindsight, could have contacted Donahue's attorney (who acknowledged at oral argument before us that she had no idea where her client was), the court nonetheless found that the warden's efforts to notify Donahue were not unreasonable. The "bottom line," so to speak, was that "[i]t seems contrary to notions of common sense to conclude that in leaving the state and failing to take the simple steps of checking his phone messages, accounting for his mail, or informing his employer of his whereabouts for a period of 17 days, [Donahue] should not be considered `unavailable.'"
In her opinion, the ALJ consistently referred to the mitigating conference, held without Donahue, as having occurred on November 1, 2002, when, in fact, it was held on November 7. Donahue conceded that the conference was held on November 7, but regarded the ALJ's contrary finding as merely a typographical and harmless error. The Circuit Court was not convinced. The ALJ's opinion, it noted, was "littered with references" to a November 1 meeting that were "juxtaposed with analysis pertaining to the reasonableness, appropriateness, or good faith of [the warden's] conduct," and the court was concerned that "the damaging impact of the ALJ's error of fact lies too perilously close to the underpinnings of her reasoning to conclude that [DPSCS's] substantial rights were not prejudiced." On those findings, the court, on October 4, 2004, reversed the ALJ's decision.
That produced an appeal by Donahue. In an unreported opinion filed August 8, 2006, the Court of Special Appeals reversed the Circuit Court judgment. It agreed with the Circuit Court (and the ALJ) that the warden had not violated SPP § 11-106(b), in that the 30-day period for taking a disciplinary action did not commence until November 1, 2002, when Donahue was reinstated as an employee. It disagreed with the Circuit Court, however, regarding the issue of unavailability and with the effect of the ALJ's erroneous reference to a November 1, 2002 mitigating conference. As to the latter, the appellate court concluded that, "[a]lthough it is a close question, we agree that the date was most likely a typographical error."
With respect to unavailability, the Court of Special Appeals believed that the ALJ had considered whether Donahue was unavailable, even though she articulated no specific finding of availability. It agreed with the standard of unavailability adopted by the Circuit Court that the employee is unavailable "when the employer undertakes reasonable, good-faith efforts to locate and procure the employee for the meeting but is nevertheless unable to do so" but simply disagreed with the Circuit Court's determination that, under that standard, Donahue was unavailable. The appellate court observed that the warden had until November 30 to take disciplinary action, and, though acknowledging that the warden was under no duty to contact Donahue's lawyer, concluded that by "failing to take such an obvious step when the warden had good reason to know that [Donahue] was not at home and that there was a substantial likelihood that he had not received any notice of the mitigation hearing strongly indicates that a good-faith effort to make sure appellant had a chance to attend the hearing was not made."
*522 Neither party was happy with the Court of Special Appeals decision. We granted cross-petitions for certiorari and shall reverse the judgment of the Court of Special Appeals.
DISCUSSION
DPSCS makes two complaints: that the Court of Special Appeals erred both in holding that Donahue was not unavailable and in determining that the ALJ's erroneous references to a November 1 mitigating hearing constituted merely a harmless typographical error. Donahue also makes two complaints: that reversal of the termination is required as a matter of law because it was not imposed within the 30 days allowed by SPP § 11-106(b) and that the ALJ erred in finding that his convictions relieved DPSCS from its obligation to reinstate him pursuant to the Court of Special Appeals August 2, 2002 mandate.
SPP § 11-106
SPP § 11-106 imposes certain conditions on the taking of disciplinary action against a State employee. Subsection (a) requires the appointing authority, prior to taking a disciplinary action related to employee misconduct, to:
"(1) investigate the alleged misconduct;
(2) meet with the employee;
(3) consider any mitigating circumstances;
(4) determine the appropriate disciplinary action, if any, to be imposed; and
(5) give the employee a written notice of the disciplinary action to be taken and the employee's appeal rights."
Section 11-106(b) puts a time limit on this process. With an exception not relevant here dealing with the suspension of an employee, subsection (b) allows the appointing authority to impose any disciplinary action "no later than 30 days after the appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed." We made clear in WCI v. Geiger, 371 Md. 125, 129-30, 807 A.2d 32, 35 (2002) that the 30-day period allowed by § 11-106(b) "includes the time necessary for the appointing authority to conduct its investigation and meet the other requirements specified in § 11-106(a)" and that "rescission of the discipline imposed is the appropriate sanction for the appointing authority's failure to meet § 11-106(b)'s time limit."
The Thirty-Day Requirement
Often, as in Geiger, the issue with respect to the 30-day requirement is when the appointing authority first acquired sufficient knowledge of the misconduct to trigger the commencement of the period, and, indeed, the parties quibble about that here. The warden insists that he was unaware of Donahue's criminal conduct until apprised of it by a memorandum from the Assistant Attorney General on October 17, 2002, whereas Donahue contends that the appointing authority knew of that conduct in 2000. Donahue is clearly correct on that point, but it is not the relevant issue here.[6] As the ALJ and the *523 Circuit Court recognized, the duties and time limit specified in SPP § 11-106 apply only to incumbent employees. An appointing authority can neither lawfully nor practically terminate the employment of someone who is not currently employed in the unit. What is there to terminate? Thus, the pertinent question is not when the appointing authority first became aware of the misconduct but when Donahue first became subject to discipline by the warden at what point, charged with the institutional knowledge of the 1999 convictions, could the warden have commenced the process required by § 11-106, so that it could be completed within 30 days thereafter?
Donahue urges that he was effectively reinstated, and thus became an employee subject to discipline, on August 2, 2002, when the mandate of the Court of Special Appeals in No. 1705 issued. That mandate affirmed the judgment of the Circuit Court, which, in turn, affirmed the ruling of the ALJ that Donahue be reinstated with back pay. Unquestionably, upon the issuance of that mandate, Donahue was entitled to be reinstated as directed by the ALJ. The filing of a petition for certiorari by DPSCS did not stay that mandate, and so Donahue's right to be reinstated was not placed in suspension until this Court denied the Department's petition for certiorari. The right arose on August 2, 2002.
The ALJ's order of reinstatement was not self-executing, however, even when ultimately affirmed by the Circuit Court and the Court of Special Appeals. Like orders of reinstatement generally, issued upon a finding that the employee was wrongfully terminated, it was in the nature of an injunctive order or one for specific performance, directing that Donahue be reinstated, but it did not, of itself, recreate the employment relationship; nor, as a practical matter, could it have that effect. Reestablishment of the employment relationship in conformance with the reinstatement order must be done by the parties themselves the employer notifying the employee when and where to report and the employee reporting, prepared to resume work, or at least having the obligation to do so.
Until that happens, the employment has not, in fact, been restored. From the employee's perspective, if, during the pendency of the litigation, the employee has obtained another job or is engaging in other activities, he or she may continue in those endeavors until directed to report for work pursuant to the reinstatement order. The employer certainly could not legitimately contend that the reinstatement order was immediately self-executing and that the employee abandoned the employment by failing to report the next day. On the other hand, the employee may decide, for whatever reason, not to resume the employment, in which *524 event there would be no effective reinstatement.[7] If the employee desires to be reinstated but the employer refuses to comply with the order, the employee or, when the order is issued by a regulatory agency, the agency itself, may institute statutory or common law enforcement proceedings against the employer to coerce compliance. That is why regulatory agencies are usually given statutory enforcement powers and why common law remedies such as mandamus have been held available to enforce reinstatement orders. See, for example, 42 U.S.C. § 2000e-5(i), authorizing EEOC to commence proceedings to enforce court orders; Maryland Code, Art. 49B, § 12 (same for Maryland Human Relations Commission); and Mayor & City Council of Ocean City v. Johnson, 57 Md.App. 502, 470 A.2d 1308 (1984); State ex rel. Olander v. Ohio Environmental Protection Agency, 45 Ohio St.3d 196, 543 N.E.2d 1262 (1989); and State v. Civil Service Board, 226 Minn. 253, 32 N.W.2d 583 (1948), enforcing reinstatement orders through mandamus actions.
The mandate that issued on August 2, 2002, did not, therefore, of itself, restore the employment relationship between DPSCS and Donahue. DPSCS, or its counsel, was apparently hoping that this Court would review the case and reverse the reinstatement order; that hope was not dashed until October 10, 2002. Donahue, in the meanwhile, did nothing to "jump start" the restoration process, but seemed content to accrue back pay without having to return to work. The warden's letter of October 25, 2002, set November 1 as the date of reinstatement. That is the date Donahue was directed to report for work; that is the date he was obliged to report; that is the date upon which his back pay was calculated; that is the first date upon which Donahue became subject to further discipline. The ALJ was correct in regarding November 1 as the commencement of the 30-day period for imposing discipline based upon the 1999 convictions. As the termination at issue occurred November 8, it was well within the 30-day period allowed by SPP § 11-106(b).
Unavailability
As noted, SPP § 11-106(a) requires the appointing authority to meet with the employee and consider any mitigating circumstances before taking any disciplinary action. That requirement, seemingly absolute, has been construed by regulation of the Department of Budget and Management to be conditioned on the employee being available and willing to meet. COMAR 17.04.05.04D.(3). In a footnote in his brief, Donahue challenges the authority of the Department to adopt such a regulation. He asserts, "[a]s a preliminary matter," that the statutory requirement to meet is absolute and unconditional and that the Department is not authorized to *525 "overrule or obviate a statutory requirement."
The argument, relegated to a footnote, has no merit. Statutes must be construed in a reasonable way. See Stoddard v. State, 395 Md. 653, 663, 911 A.2d 1245, 1250 (2006) (confirming the well-established principle that, in construing a statute, we avoid a construction "that is unreasonable, illogical, or inconsistent with common sense."). We cannot conceive that the Legislature would have countenanced the ability of an employee to preclude a State agency from ever taking proper disciplinary action by simply refusing to meet with the appointing authority or by making himself unavailable for such a meeting during the 30-day period allowed to the appointing authority under SPP 11-106(b). The statutory requirement to meet with the employee necessarily assumes a willingness on the part of the employee to meet in a timely manner with the appointing authority and to make himself/herself reasonably available for that purpose. The regulation, expressly conditioning the requirement on the willingness and availability of the employee, adds nothing that is not implicit in the statute. We turn, then, to the critical issue of whether the ALJ properly held that Donahue was not unavailable.
In examining that issue, we do need to take account of two subsidiary matters raised in the record. First, although the Circuit Court was correct in its observation that the ALJ had made no specific finding regarding Donahue's "unavailability," but determined only that "the Employee did not refuse to meet with Management," we agree with the Court of Special Appeals that, implicit in her other discussion was an indication that the ALJ did not regard Donahue as being unavailable. She said, "[t]hrough no fault of his own, he never knew about the mitigation meeting."
We agree with the Circuit Court, however, that the ALJ's frequent and consistent reference to the mitigation conference as having occurred on November 1, 2002, rather than November 7, cannot be taken as a mere harmless typographical error. The Court of Special Appeals was wrong in simply assuming that it was "likely" otherwise. The ALJ stated in her Finding of Fact No. 23 that "[t]he Warden conducted the November 1, 2002 mitigation conference without the Employee." In discussing Donahue's charge that the warden had failed to conduct a mitigation conference at all, the ALJ responded that "[i]n fact, Management did conduct a mitigation conference, albeit in the Employee's absence on November 1, 2002, the date he was reinstated." (Emphasis added). At least three more times in her opinion, the ALJ referred to the mitigation conference as having occurred on November 1. Nowhere in her opinion does she give the correct date.
The fact that the ALJ stated at least five times in her opinion that the conference occurred on November 1 and never did allude to the correct date of November 7 militates against a casual conclusion that this was a mere typographical error. That conclusion is belied as well by the ALJ's reference to the mitigation conference as occurring "on the date he was reinstated," which was November 1. It seems clear to us that the ALJ made a finding that the in absentia mitigation conference actually occurred on November 1, and that she was simply mistaken in that belief. On this record, that finding was unsupported by substantial evidence, or, indeed, any evidence, and was therefore clearly erroneous.
We agree as well with the Circuit Court that, given the context of that erroneous *526 finding by the ALJ, it "lies too perilously close to the underpinnings of her reasoning to conclude that [DPSCS's] substantial rights were not prejudiced." On one occasion, the ALJ found that "it was certainly not reasonable to conduct the fundamental procedural rights of § 11-106 in [Donahue's] absence, when they had no proof he had received notice of the November 1, 2002 meeting." In the same paragraph, she concluded that "[e]ven under Management's incorrectly perceived timeline, there was no reason to rush the mitigation meeting on November 1, 2002, since they had until November 16, 2002, to impose discipline."
Whether the mitigation conference occurred on November 1 or November 7 is highly relevant to the issue of Donahue's availability and the reasonableness of the warden's attempts to notify him. The warden made but one attempt, by letter, to inform Donahue to report on November 1. Had he proceeded with a mitigation conference that day, in the absence of Donahue and without any knowledge whether Donahue had received his letter, the ALJ could rightly have concluded that the warden had not complied with SPP § 11-106(a). As we shall explain, the situation is quite different with a mitigation conference held on November 7. By then, further efforts had been made to notify Donahue multiple telephone calls extending over November 1, 2, and 3, and the alleged posting of a letter on his residence door. The facts bearing on Donahue's unavailability for a meeting on November 7 were quite different than those bearing on his unavailability for a conference on November 1. The ALJ's clear error was not harmless.
In determining whether, on this record, any reasonable trier of fact could lawfully conclude that Donahue was not unavailable during the period from October 25, 2002, when the warden sent his letter directing Donahue to report on November 1, to November 7, when the mitigation session actually occurred, we first need to set the standard for defining unavailability, which the regulation fails to do. DPSCS takes a rather rigid position. Relying on a dictionary definition of "available" "accessible for use; at hand; usable" it urges that, because Donahue was out-of State, he was unavailable, and that simple fact should control. The ALJ and the courts, it contends, erred in focusing on the warden's efforts to locate Donahue; they should have looked only to whether he was "at hand," which he was not. Donahue agrees with the ALJ's and the courts' standard whether the warden undertook "reasonable, good-faith efforts to locate and procure the employee for the meeting but [was] nevertheless unable to do so." We agree, essentially, with Donahue on this point.
Under DPSCS's theory, the warden would not have had to make any effort to notify Donahue of the November 1 or November 4 meeting; because he was out-of-State, it would have made no difference. That cannot be what the Legislature, in enacting the requirement of a meeting to consider mitigating circumstances, or the Department of Budget and Management, in adopting the COMAR regulation, had in mind. The requirement of a meeting prior to the appointing authority taking disciplinary action is an important right given to the employee, and that right can have meaning only if the employer makes a reasonable effort to notify the employee of the meeting.
That imperative, which underlies the standard adopted by the Court of Special Appeals, is consistent with the definitions given to the word "unavailable" in similar contexts. Health General Article, § 5-605 specifies a priority among surrogate decision *527 makers for purposes of the Health Care Decisions Act. A person of lower priority may be selected only when a person with higher priority is unavailable. Section 5-605(a) defines "unavailable," in the closest context to this case, as when "[a]fter reasonable inquiry, a health care provider cannot ascertain the whereabouts of a surrogate decision maker." Education Article, § 8-412, dealing with the appointment of parent surrogates when a parent is unavailable, defines "unavailable" as being when a public agency "after reasonable efforts, cannot discover the physical whereabouts of a child's parent." See also Environment Article, § 6-833(a), declaring a parent or legal guardian unavailable "if, following reasonable efforts, the offeror is unable to locate or communicate with the parent or guardian of the minor." Finally, we note Maryland Rule 5-804, which creates certain exceptions to the hearsay rule when the declarant is unavailable and defines "unavailability," in the closest context here, as existing when the declarant "is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance . . . by process or other reasonable means."
Incorporating those principles, to the extent relevant, we conclude that, for purposes of SPP § 11-106(a), an employee may be regarded as unavailable to meet with the appointing authority when (1) the appointing authority has made a reasonable, good faith effort to notify the employee of the meeting, (2) the employee has been given a reasonable amount of time to receive and respond to the notice, and (3) the employee fails to make a reasonable response to the notice and to appear at the meeting.
Applying that standard, we hold that, on this record, the warden could properly conclude that Donahue was unavailable. Donahue was as aware of the mandate of the Court of Special Appeals and the denial of certiorari by this Court as DPSCS, and, although it was the obligation of DPSCS to implement the reinstatement and call any meeting that would be necessary if the warden intended to take further disciplinary action, Donahue certainly could have made an inquiry at any time following the issuance of the mandate and, if he knew that he was going to be out-of-State for seventeen days and unavailable to receive communications from DPSCS during that time, he could have alerted the Department. In the mistaken, but not wholly unreasonable, belief that he was not obliged to reinstate Donahue until advised by the Assistant Attorney General on October 17, 2002 (or, at the earliest, On October 10), the warden acted promptly in attempting to inform Donahue, on October 25, 2002, by both certified and regular mail delivered to his most recently known, and correct, address, to report on November 1. Had Donahue been home, he would have had nearly a week's notice of the meeting.
The warden, of course, did not know, and could not have known, that Donahue did not receive the two letters. When Donahue did not appear on November 1, the warden postponed the meeting to November 4 the following Monday and had his assistants call Donahue's correct telephone number multiple times throughout the day and evening of November 1, and on November 2 and possibly November 3, as well. Captain Matthews reported that, on at least one occasion, an answering machine activated. When Donahue failed to appear on November 4, the warden postponed the meeting to November 7. The ALJ found as a fact that the warden acted in good faith, and we agree with that conclusion.
*528 Donahue complains that, with no response from him to the letters and telephone calls, the warden was obliged to call his lawyer or his union. Apart from the conceded fact that the lawyer did not know where Donahue was and there is no indication in the record that the union did either, the warden was not required to search the ends of the earth to find him. This was not a police investigation into a missing person. The warden had but thirty days to hold the meeting, give fair consideration to any mitigating factors that Donahue or anyone else might present, and complete the process, which required an approval from the Secretary of DPSCS. In the absence of any information indicating where Donahue might be or, if he was not, in fact, at home and was simply ignoring the communications, when he might be returning, the warden was not required to keep postponing the meeting from day to day or week to week, waiting to see if Donahue might call, write, or appear. Wardens have other things to do. We hold that the warden made a reasonable, good faith effort to notify Donahue, that Donahue was given a reasonable amount of time to receive and respond to the notice, and that he failed to do so. That equates to his unavailability.
Effect of the 1999 Convictions
In his cross-petition, Donahue argues that the ALJ erred "in concluding that the Employee's convictions relieve the Agency of its obligation to reinstate him pursuant to the Mandate of the Court of Special Appeals." He regards the ALJ's decision as viewing the appellate mandate as "less as an order to reinstate Donahue to his position . . . and more as an invitation to Donahue to apply for and be considered for that position."
That is not, however, how the ALJ viewed the matter. She stated the issue as whether "an Employee who has won reinstatement can be terminated for misconduct occurring when he was not employed by the State" and in her discussion of that issue, she made clear that the warden had not denied reinstatement to Donahue. The question was whether, following reinstatement, Donahue's employment could be terminated for conduct that occurred prior to the reinstatement when he was not an employee. The ALJ expressed no doubt that the conduct in question, if it had occurred while Donahue was an employee, would warrant the termination of his employment and likened the situation to that of off-duty misconduct.
We agree entirely with the ALJ's conclusion. The simple fact is that DPSCS is not required to hire, rehire, or keep a convicted thief as a correctional officer in a penal institution, and it does not matter whether the conviction, or the conduct that led to it, occurred while the person was an employee, before the person was an employee, or during an interval between employments.
Maryland Code, §§ 8-201 through 8-210 of the Correctional Services Article (CS) create the Maryland Correctional Training Commission and provide for its duties. CS § 8-209(a) provides that a person may not be given or accept a probationary or permanent appointment as correctional officer unless the person meets minimum qualifications established by the Commission. Section 8-208(9) authorizes the Commission to adopt regulations to carry out the subtitle, and it has done so. COMAR 12.10.01.03A provides that applicants for correctional officer positions may receive provisional appointments if they meet the selection standards in COMAR 12.10.01.04. One of the requirements in COMAR 12.10.01.04 is a background check and criminal history investigation in accordance *529 with COMAR 12.10.01.05. See COMAR 12.10.01.04D.
The investigations required under COMAR 12.10.01.05 are, among other things, to determine whether the applicant "[i]s of good moral character and reputation" and "[d]isplays the suitable behavior necessary to perform the duties of the mandated position." COMAR 12.10.01.05A(1)(a) and (c). If the criminal history investigation reveals that the applicant has been convicted of a felony or a misdemeanor for which a sentence of one year or more may be imposed, the correctional unit must provide the Commission with available information. COMAR 12.10.01.05B(4)(a). That regulation requires the Commission to disqualify an applicant for a conviction listed in COMAR 12.10.01.17B. Because Donahue's sentences of incarceration for 60 days were suspended but only for that reason his convictions did not fall within the list, and so the Commission was not required to disqualify him.[8] COMAR 12.10.17B., however, makes clear that the regulation "does not require a correctional unit to employ a correctional officer with a criminal record or prevent the unit from setting higher criminal history standards than specified in this regulation."
DPSCS did, in fact, promulgate hiring standards that are more restrictive than those governing the Commission. Those standards, adopted in May, 2000, were in effect when the reinstatement order became effective. One of them provides that "[a]pplicants for the position of Correctional Officer shall be disqualified from employment consideration for . . . `[a] conviction in any court . . . for a crime punishable by imprisonment for a term of one year or more.'" That is consistent with the Commission's regulation excepts that it deletes the requirement of incarceration and is a permanent disqualification. Under the DPSCS hiring standards, therefore, Donahue was not qualified for reemployment.
Donahue seeks to escape this disqualification on the ground that those regulations apply only to "new hires" and not to him. He was not, he claims, a new hire but a permanent employee who was wrongfully terminated and ordered to be reinstated. It is not clear that he is correct in that view,[9] but even if he is, it avails him naught. If he is not a new hire, he remained subject to the Directives and Standards of Conduct established for DPSCS employees, and his conduct and convictions most assuredly violated them and warranted the discipline administered by the warden. See infra, n. 4.
JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE *530 REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM JUDGMENT OF CIRCUIT COURT FOR SOMERSET COUNTY; COSTS IN THIS COURT AND COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.
HARRELL, J., Concurs.
BELL, C.J. and RAKER, J., Dissent.
Concurring Opinion by HARRELL, J.
I concur in the Majority opinion for the reason that, even were I to assume the view of the Dissent as to the DPSCS's asserted error regarding its interpretation of Donahue's unavailability for the November 2002 mitigation conference(s), the result nonetheless would be the same as reached by the Majority opinion because Donahue was ineligible to become a DPSCS employee again by reason of his criminal convictions. See Maj. op. at 538-39, 929 A.2d 529-30. Even though the suspension of any period of incarceration pursuant to the convictions (to which charges Donahue plead guilty) did not mandate that Donahue necessarily be deemed ineligible for employment under the relevant COMAR provisions (see Maj. op. at 538-39, 929 A.2d 529), the DPSCS's permissibly more restrictive hiring standards (promulgated in May 2000) made plain that Donahue was not qualified for reemployment. There is no indication in the record extract that Donahue at any time sought to withdraw his 1999 guilty pleas or coram nobis relief because of the collateral consequences that his convictions would have on his employment situation with the DPSCS. Moreover, there is no proffer in the record extract of anything Donahue might have offered in mitigation of his admitted criminal activities that could have changed the result. It is abundantly clear to me, on this record, that the result reached by Warden Kupec and the Secretary of DPSCS was foreordained, as a matter of law.
RAKER, J., dissenting, BELL, C.J., joining.
I respectfully dissent. I would affirm the Court of Special Appeals holding and the ruling of the ALJ that it was unreasonable, under the circumstances presented herein, for the Warden to proceed with a mitigation conference in the absence of Donahue. In my view, Donahue was not unavailable.
I agree with the Court of Special Appeals that, although the Warden had no duty ordinarily to contact Donahue's lawyer, by "failing to take such an obvious step when the Warden had good reason to know that [Donahue] was not at home and that there was a substantial likelihood that he had not received any notice of the mitigation hearing, strongly indicates that a good-faith effort to make sure appellant had a chance to attend the meeting was not made." Even if Donahue was ineligible for rehiring ultimately, he should have had the opportunity to attend a hearing and to present any mitigation he deemed relevant.
Chief Judge BELL has authorized me to state that he joins in this dissenting opinion.
NOTES
[*] Cathell, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.
[1] Donahue was charged with violating a number of specific Division of Correction Directives. The notice of termination stated as the reason for termination: "Due to Lt. Donahue's assigned key control responsibility, the likelihood that he last handled and/or misinventoried the keys, along with his attempts to deceive the investigators, proves that he cannot be trusted to protect the security of this institution and his removal from state service is required." This conclusion by the warden seemed to be based on Donahue's alleged admission that he was the last person to have seen the missing keys, that he supposedly conducted an inventory of the keys in November, 1996, that the log book page where the inventory would have been entered was missing, and that some witnesses had stated that Donahue was not in the tower long enough to have conducted an inventory.
[2] As we shall discuss later, SPP § 11-106(a) requires an appointing authority, before taking any disciplinary action related to employee misconduct, to investigate the misconduct, meet with the employee, consider any mitigating circumstances, determine the appropriate disciplinary action, if any, to be imposed, and give the employee a written notice of the disciplinary action.
[3] Captain Matthews testified at the subsequent hearing before an ALJ on December 9, 2003. In support of his testimony regarding the telephone calls, a document evidencing those calls was marked for identification but, inexplicably, was not offered into evidence by the Assistant Attorney General. Matthews said that he provided the information in the document to Ms. Dorsey. In a November 7, 2002, memorandum from Ms. Dorsey to the warden, which was admitted into evidence at that hearing without objection, Ms. Dorsey recounted that Captain Matthews told her on Monday, November 4, that he had called Donahue's number nine times on Friday evening, that "once it rang busy, once he got the answering machine and did leave the message to report to your office at 8:00 AM on Monday; the other seven times he got no answer."
[4] The DPSCS Standards of Conduct were adopted pursuant to Division of Correction Directive 50-43. Part II sets forth Standards of Personal Conduct and Performance. Paragraph B. 1 of Part II provides, in relevant part, that each employee shall conduct himself, both on duty and off duty, in such manner as to reflect most favorably on the Department and that "any conduct," within or without the place of employment, which tends to undermine the good order, efficiency, or discipline of the Department or reflects discredit on the employee or the Department shall subject the employee to disciplinary action. Paragraph 10 is more specific. It prohibits an employee from violating any State. Federal, or local law. COMAR 17.04.05.04B provides, in relevant part, that an employee may be disciplined for engaging in conduct which, if publicized, would bring the State into disrepute or which involves fraud, deceit, misrepresentation, or illegality.
[5] The case was referred to the Office of Administrative Hearings in February, 2003, following an unsuccessful conference before the Department of Budget and Management. It was set for hearing in June, 2003, but was postponed at least twice. The hearing commenced December 9, 2003.
[6] Robert Kupec assumed the position of warden of ECI on October 14, 1999. Donahue had been discharged in March, 1997, and apparently had no contact with the institution or its warden since then. Warden Kupec said that he did not know Donahue and was unaware of the December, 1999 convictions until informed of them by the Assistant Attorney General's letter in October, 2002. That may well be the case, but there can be no doubt that his predecessor as appointing authority was aware of the convictions when the matter of Donahue's first termination was remanded to the ALJ by the Court of Special Appeals in June, 2000. Upon that remand, DPSCS, through its Assistant Attorney General, insisted that it be permitted to present evidence of those convictions in furtherance of its position that Donahue should not be reinstated. In determining when the appointing authority first had knowledge of the misconduct ultimately relied on for the disciplinary action, we must look at when the appointing authority who first acquired knowledge of the misconduct obtained that knowledge. SPP § 1-101(b) defines "appointing authority" as "an individual or unit of government that has the power to make appointments and terminate employment." Section 3-215(b)(3)(i) of the Correctional Services Article provides that "[t]he warden of a correctional facility is the appointing officer for the officers and other employees of that facility." In this context, the appointing authority is the office of the warden, and knowledge of the misconduct is acquired by that office when it is first imparted to an incumbent in that office. If that person then leaves, the office and any successor incumbent is necessarily charged with that knowledge.
[7] Even upon a finding of wrongful termination for which reinstatement may ordinarily be the preferred remedy, courts and agencies may deny reinstatement when special circumstances make that remedy inappropriate, including situations in which the employee makes known his or her reluctance to continue the employment. See Bledsoe v. Wilker Bros. Inc., 33 Fair Empl. Prac. Cas. (BNA) 127 (W.D.Tenn.1980); Hutchison v. Amateur Elec. Supply, 42 F.3d 1037 (7th Cir. 1994); Cowan v. Strafford R-VI Sch. Dist., 140 F.3d 1153 (8th Cir.1998); EEOC v. Pacific Press Publ'g Ass'n, 482 F.Supp. 1291 (N.D.Cal.1979), aff'd, 676 F.2d 1272 (9th Cir. 1982). When that reluctance arises after the reinstatement order is entered which, if there are judicial review proceedings, could be several years, the employee is free to waive the reinstatement and not seek or act to restore the employment. See Zigmond v. Civil Serv. Comm'n, 155 W.Va. 641, 186 S.E.2d 696 (1972).
[8] COMAR 12.10.01.17A(3) lists as a conviction requiring disqualification "[a] misdemeanor conviction that resulted in incarceration when less than 5 years have elapsed since the applicant was released from incarceration or terminated from parole or probation, whichever last occurred." A conviction for theft under $300 (now $500) carries a possible sentence of 18 months. See Maryland Code, Criminal Law Art. § 7-104(g)(2). Had Donahue's 60-day sentences not been suspended, his 1999 convictions, which occurred less than five years before November 1, 2002, would have required his disqualification by the Commission.
[9] COMAR 12.10.01.06B(2) makes clear that a Commission certification loses its validity when the employee "is separated from employment." COMAR 12.10.01.03F provides for a new provisional certificate "for a formerly certified mandated employee who: (1) Has not been in a correctional mandated position for over 3 years; and (2) Meets the appropriate selection standards under Regulation .04 of this chapter." We need not resolve here whether those regulations apply to an employee whose employment was terminated, who has not worked in a correctional mandated position for over three years, but who is later ordered to be reinstated.
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374 F.Supp. 690 (1974)
Herbert W. CABBLER
v.
SUPERINTENDENT, VIRGINIA STATE PENITENTIARY.
Civ. A. No. 73-538-R.
United States District Court, E. D. Virginia, Richmond Division.
April 23, 1974.
*691 JeRoyd W. Greene, Jr., Richmond, Va., for plaintiff.
Gilbert Haith, Asst. Atty. Gen. of Va., Richmond, Va., for defendant.
MEMORANDUM
MERHIGE, District Judge.
Petitioner, a Virginia prisoner, seeks habeas corpus relief from detention pursuant to his conviction of grand larceny in the Hustings Court for the City of Roanoke on February 21, 1970. As a result of that conviction petitioner was sentenced to serve a term of eleven years in the penitentiary. Jurisdiction is attained pursuant to 28 U.S.C. § 2254. State court remedies have been exhausted. The case is presently before the Court on respondent's motion to dismiss and for summary judgment. Memoranda have been received from both sides and the merits of the claims were to some extent addressed in the course of oral argument on an unsuccessful motion by petitioner for bond pending the outcome of his petition. Upon the material before it, the Court deems the matter ripe for disposition.
The following facts emerge from the petitioner's trial court transcript:
In the early morning of September 2, 1969 at approximately 1:20 a. m., Cabbler parked his Cadillac automobile on a driveway in front of the Community Hospital of Roanoke Valley and proceeded into the emergency room of the hospital (T. 38). There was some conflict in the evidence as to whether the Cadillac partially blocked the entrance to the emergency room driveway.
Cabbler testified that the car was parked in a fifteen minute zone (T. 149). The arresting officer stated the hospital regulations marked the place where the car was parked as a no parking zone (T. 65), and Cabbler's car partially blocked the emergency room driveway even though an ambulance could drive by to the emergency room (T. 82).
Cabbler was arrested inside of the hospital by a Roanoke City police sergeant, R. C. Reynolds, upon information he obtained on the telephone that a warrant was being issued against Cabbler for shooting into an occupied dwelling (T. 40 and 41). At the time of the arrest in the emergency room, Cabbler was searched and the keys to his automobile parked outside of the hospital were taken from him by Sergeant Reynolds (T. 55; T. 151; T. 153; T. 162; T. 213; and T. 254). Cabbler was taken from the hospital and placed in a police car (T. 41 and 42). It was beginning to rain and Cabbler asked one of the police officers to roll up the windows of his automobile (T. 42); but before the windows were rolled up, Cabbler was placed in the police car. When rolling up the windows and even beforehand, the police officers observed a pistol on the back seat of the car. This pistol was taken by the officers at the time but that search is not here involved. Cabbler was then taken by Sergeant Reynolds to police headquarters in the police car (T. 48).
*692 Cabbler testified that he had thought he would be in the hospital all night because of a gunshot wound (T. 155; first answer) and that he had called his restaurant and asked the countergirl to send one of his employees to pick up his car (T. 150). He further testified that he attempted to tell the officer that someone would pick up his car (T. 156; T. 163, first answer). In any event, Cabbler did not give the police officers permission to remove the car (T. 206; second answer) or to look in the trunk of the car and keep the property therein for safe keeping (T. 206, third answer). Further, it is undisputed that the police officers did not suspect stolen goods were in the trunk of the automobile (T. 206; fifth answer). Nonetheless, after taking petitioner to the police station, Sergeant Reynolds returned to the hospital and drove Cabbler's car to the police station as well.
The evidence is that Sergeant Reynolds' retrieval of Cabbler's car was for the purpose of keeping the car safe until Cabbler was released from jail (T. 47 and 48; T. 67 and 68; T. 202; T. 206). The established police department policy was to remove all valuables from an automobile taken into custody and return them to the owner upon his release on bail (T. 210, fourth answer). The evidence further discloses that the arresting police officer would not have left the car locked and unattended even if he had known Cabbler had someone coming to the hospital to pick up the car (T. 77). Sergeant Reynolds testified that if he had arrested Cabbler and not taken Cabbler's car into custody, he would have been responsible for all the property in the car at that time (T. 73, first answer).
When Sergeant Reynolds drove the Cadillac to police headquarters, he planned to take any property from the car and put it in the No. 2 property room on the first floor of the Municipal Building (T. 49). When he opened the trunk of the car with the key found on Cabbler's person at the time of Cabbler's arrest, Sergeant Reynolds observed that the goods in the trunk were so numerous that the No. 2 property room would not hold them. He then drove the automobile to the Municipal Building Annex and moved the goods from the trunk of the car to a property room in the basement of that building (T. 50). Because this property room in the basement was locked and the key would not be available until the next morning, Sergeant Reynolds and Police Sergeant Allen, with the possible assistance of other police officers, placed the property taken from Cabbler's car on a pool table in the basement of the building. Then they began to inventory the goods in preparation of putting them in the property room after it became accessible the next morning (T. 50 and 51). The purpose of taking the property from the locked trunk of the car was to keep it safely until Cabbler was released on bail (T. 50, last answer). Cabbler was released on bail and picked up his car within an hour or two after being arrested (T. 51, last answer; T. 257, second answer) and long before the property taken from the trunk of his car for safe keeping was removed from the pool table to a safe property room.
The evidence was that it has been the long-standing custom of the Roanoke City Police Department to take into its possession the automobile of a person arrested and to remove from the automobile and inventory the valuable goods found therein. Apparently it is not necessary that the person arrested be in his automobile at the time of his arrest; it is only necessary that he be away from home. If a man is arrested for illegal parking, his car is not taken or his property inventoried (T. 58, lines fifteen and sixteen). If he is arrested at his home, his car is not taken (T. 58). It was conceded that there was no written process to seize the car, no search warrant obtained at any time (T. 199) and no probable cause to believe stolen property was in the locked trunk of the car (T. 69) and no process to keep the property after the car was returned to Cabbler (T. 7). It is conceded by both sides *693 that the officers in this case did not intend to search the trunk for evidence or stolen property, but to take any property therein for "safekeeping."
It was adequately proved that some of the property found in the locked trunk of Cabbler's car on September 2, 1969 was stolen property. Cabbler was convicted on five larceny charges as one who received stolen goods knowing them to have been stolen. He argues that the evidence seized in the trunk should have been suppressed.
Three legal questions are presented by the facts: (1) was seizure of the car justified; (2) did a Fourth Amendment search follow; and (3) if so, was that search reasonable.
Initially, the Court must decide whether the car itself was legally removed to the police station. The Court has no difficulty in concluding that when a legitimate arrest of a suspect is made away from his home, seizure not only of his person, but of those of his effects which are with him is justified. Given the exigencies of the typical street arrest, officers are not required to take time out from their immediate purpose to allow their suspect to put his affairs in order. Since it would be anomalous to find that the Fourth Amendment, designed to insure the sanctity of private possessions, compelled the police to leave the personal effects of a prisoner, be they suitcases, cars or other items, scattered in the street, the assumption of temporary possession by officers cannot be found unreasonable under its dictates.[1] See Cady v. Dombrowski, 413 U.S. 433, 446-447, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).
The second question is whether the "inventory" conducted under the facts of the instant case is a Fourth Amendment search. The Supreme Court has explicitly refrained thus far from ruling on this issue. See, e. g., Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L. Ed.2d 1067 (1968); Cady v. Dombrowski, supra, 413 U.S. 433, 442, footnote, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). There have been state decisions finding inventory procedures to be other than "searches" on the theories that there is no intent to "seize" anything or that there is in these situations no "reason" to search or expectation that criminal evidence will be discovered. See People v. Sullivan, 29 N.Y.2d 69, 323 N.Y.S.2d 945, 272 N.E.2d 464. As pointed out in United States v. Lawson, 487 F.2d 468, 472 (8th Cir. 1973), the above decisions are:
. . . based on a highly technical construction of the meaning of "search," unwarranted in our view of the Fourth Amendment. To consider an inventory procedure not to be a "search" does violence to the concept of the Fourth Amendment as a protection of the privacy of the citizenry against unwarranted invasion by government officials.
It is not the intent to seize incriminating evidence which makes governmental intrusions into private effects obnoxious in a free society, but the simple fact of intrusion itself under power of the state.[2] Thus, in Camara v. Municipal *694 Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967), the Supreme Court, addressing the issue of administrative searches, wrote:
We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman's search for fruits and instrumentalities of crime . . . . But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely "peripheral." It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.
See also, See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). In a footnote to this passage, the Camara court cited the reader to Mr. Justice Brennan's dissent in Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). The language of that opinion warrants extended recitation here:
One more word. We are told that the governmental power to make a warrantless search might be greater where the object of the search is not related to crime but to some other "civil" proceeding such as matter bearing on the issue whether a man should forcibly be sent from the country. The distinction is rather hollow here, where the proofs that turn up are in fact given in evidence in a criminal prosecution. And the distinction, again, invites a trial of the officers' purposes. But in any event, I think it perverts the Amendment to make this distinction. The Amendment states its own purpose, the protection of the privacy of the individual and of his property against the incursions of officials: the "right of the people to be secure in their persons, houses, papers, and effects." See Boyd v. United States, 116 U.S. 616, 627 [6 S.Ct. 524, 530, 538, 29 L. Ed. 746]. Like most of the Bill of Rights it was not designed to be a shelter for criminals, but a basic protection for everyone; to be sure, it must be upheld when asserted by criminals, in order that it may be at all effective, but it "reaches all alike, whether accused of crime or not." Weeks v. United States, supra, 232 U. S. [383], at 392, [34 S.Ct. 341, at page 344, 58 L.Ed. 652]. It is the individual's interest in privacy which the Amendment protects, and that would not appear to fluctuate with the "intent" of the invading officers. It is true that the greatest and most effective preventive against unlawful searches that has been devised is the exclusion of their fruits from criminal evidence, see Weeks v. United States, supra; Boyd v. United States, supra; but it is strange reasoning to infer from this that the central thrust of the guarantee is to protect against a search for such evidence. The argument that it is seems no more convincing to me now than when it was made by the Court in Frank v. Maryland, 359 U.S. 360 [79 S.Ct. 804, 3 L.Ed.2d 877]. To be sure, the Court in Boyd v. United States, supra, and in subsequent cases has commented upon the intimate relationship between the privilege against unlawful searches and seizures and that against self-incrimination. This has been said to be erroneous history; if it was, it was even less than a harmless error; it was part of the process through which the Fourth Amendment, by means of the exclusionary rule, has become more than a dead letter in the federal courts. Certainly this putative relationship between the guarantees is not *695 to be used as a basis of a stinting construction of either it was the Boyd case itself which set what might have been hoped to be the spirit of later construction of these Amendments by declaring that the start of abuse can "only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed." 116 U.S. at page 635 [6 S.Ct. 524 at page 535].
362 U.S. at 254-256, 80 S.Ct. at 705.[3]
More recently, in Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971), the Court again dealt with the question of what constitutes a Fourth Amendment "search" outside of the context of direct criminal investigation. There the visit of a social worker to a welfare recipient's home, refusal to allow which would result in the denial or termination of welfare payments, was considered not to constitute a search.[4] In his brief resolution of this issue, Mr. Justice Blackmun, writing for the Court, first notes:
It is true that the governing statute and regulations appear to make mandatory the initial home visit and the subsequent periodic "contacts" (which may include home visits) for the inception and continuance of aid. It is also true that the caseworker's posture in the home visit is perhaps, in a sense, both rehabilitative and investigative. But this latter aspect, we think, is given too broad a character and far more emphasis than it deserves if it is equated with a search in the traditional criminal law context.
400 U.S. at 317, 91 S.Ct. at 386. The fact that a general inspection is considered somewhat less intrusive than an investigative criminal search was clear in Camara, supra. To what extent Justice Blackmun is saying more here is unclear. From the remainder of the discussion, however, it appears that his ultimate decision is grounded not as much in the relative abrasiveness of the intrusion as in the circumstances under which any actual entry in the class of case with which he was concerned would occur:
We note too that the visitation itself is not forced or compelled, and that the beneficiary's denial of permission is not a criminal act. If consent to the visitation is withheld, no visitation takes place. The aid then never begins or merely ceases, as the case may be. There is no entry of the home and there is no search.
400 U.S. at 317-318, 91 S.Ct. at 386 (emphasis added). If such an inspection is not a search, it appears to be because any intrusion which is made is not compelled.[5] Any other reading of this language would result in the conclusion that forced admission of government personnel into all private homes for the purpose of "merely inventorying" private property or performing some other administrative or noncriminal investigative function would not constitute an intrusion against which the Fourth Amendment protected. Were the Supreme Court to take such a step, this Court is convinced that such implications would be addressed directly. In the present case, of course, no opportunity to refuse the inventory and suffer the consequences was offered. The element of compulsion is undisputed.
Thus the Court concludes that the "noninvestigative" police "inventory" is a type of official intrusion into private property and effects which the Fourth Amendment was intended to control. *696 United States v. Lawson, 487 F.2d 468 (8th Cir. 1973). The framers of the Fourth Amendment sought not to protect criminals, but to protect from unreasonable search those in whose possession no incriminating evidence would be found. And it must be felt that the motivation behind the Amendment was not simply a sympathy with the disappointment of the person searched at the discovery that he was not above suspicion, but a shared indignation at the uncontrolled official sifting and rummaging through private papers and effects which are no less part and parcel of an "inventory" than of a fruitless criminal search.
The question now becomes whether the search conducted in this case was reasonable. There is no contention that probable cause existed for the search. The argument of the Commonwealth is in fact just the opposite. It asserts the police had absolutely no reason to believe that incriminating evidence would be discovered. The inventory was conducted as a matter of standard police procedure for the purpose of ascertaining to the satisfaction of everyone involved exactly what items had been seized so that those items could be returned upon petitioner's release.
The analysis of reasonableness must begin with the Supreme Court's statement in Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1982, 26 L.Ed.2d 419 (1970)[5a] that "for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars." This conclusion, however, is not reached a priori, but arises from the application of specific policy determinations.
The constitutional difference between searches of and seizures from houses and similar structures and from vehicles stems both from the ambulatory character of the latter as well as from the fact that the extensive, and often noncriminal contact with automobiles that will bring local officials in "plain view" of evidence, fruits, or instrumentalities of a crime, or contraband.
Cady v. Dombrowski, supra, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). The weakened standard of review applied in car cases, which extends only to dispensing with the presumption that the absence of a warrant makes a search unreasonable, see Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L. Ed.2d 730 (1967), extends only as far as the above justifications will carry it. "The word `automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears." Coolidge v. New Hampshire, 403 U.S. 443, 461-462, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564 (1971).
The respondent concedes not only that the police did not secure a warrant but that they could not have secured one. There was nothing exigent about the circumstances and there was no cause to believe anything would be found. Thus the exceptions founded upon the ambulatory nature of automobiles and the necessity of an on the spot search are here inapplicable.
The foundation of the "plain view" exception is the propriety of the officer being where he was and doing what he was doing at the time the evidence discovered came into view. Included in the calculus of this decision must be whether the police function being performed itself infringed upon the safeguards provided by the Fourth Amendment even though the seizure of evidence in plain view would, if isolated, be constitutionally unexceptionable.
In Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), petitioner was arrested for robbery and his car, which had been identified leaving the scene of the crime, was impounded as evidence. A regulation of the District of Columbia Police Department *697 required that an impounded vehicle be searched and that all valuables be removed. Having completed the search, an officer opened the front door of the car for the sole purpose of closing the windows and locking the doors. At that time he noted the disputed evidence lying face up on the metal door stripping.
The Supreme Court found the question presented to it to involve the isolated acts of rolling up the windows and locking the doors.
The admissibility of evidence found as a result of a search under the police regulation is not presented by this case. The precise and detailed findings of the District Court, accepted by the Court of Appeals, were to the effect that the discovery of the card was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody. Nothing in the Fourth Amendment requires the police to obtain a warrant in these narrow circumstances.
390 U.S. at 236, 88 S.Ct. at 993. In essence, while refusing to address the full scale search which had been conducted, the Court found that the minimal protective measures of rolling up windows and locking doors of cars legally in custody did not amount to a search. Since this police conduct was not proscribed and the evidence came in plain view at that time, the evidence was admissible.[6]
Another line of cases, of which Cady, supra, is the culmination, indicates that, under certain circumstances, the mere fact of legitimate police custody of a vehicle is sufficient to dispense with a warrant. There is nothing in these decisions, however, to indicate that the requirement of reasonableness, in its Fourth Amendment sense, is in any way mitigated. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (probable cause to search the car for evidence held sufficient). Thus these cases rely heavily upon the specific factual circumstances in which they arise. As stated in Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967):
While it is true, as the lower court said, that "lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it", . . . the reason for and nature of the custody may constitutionally justify the search.
386 U.S. at 61, 87 S.Ct. at 790. The circumstances in Cooper, supra, which led the Court to find a search reasonable were explicitly set out:
Here the officers seized petitioner's car because they were required to do *698 so by state law. They seized it because of the crime for which they arrested petitioner. [transporting heroin]. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car whether the State had "legal title" to it or not was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner's car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. 386 U.S. at 61-62, 87 S.Ct. at 791.
The facts in the present case not only bear no functional similarity to those in Cooper, but are extremely similar to those of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) which are held up by the Cooper Court as a foil to its own situation:
Preston was arrested for vagrancy. An arresting officer took his car to the station rather than just leaving it on the street. It was not suggested that this was done other than for Preston's convenience or that the police had any right to impound the car and keep it from Preston or whomever he might send for it. The fact that the police had custody of Preston's car was totally unrelated to the vagrancy charge for which they arrested him. So was their subsequent search of the car. This case is not Preston, nor is it controlled by it. 386 U.S. at 61, 87 S.Ct. at 791.
In Cady, supra, the reasons justifying search again arose from peculiar facts. Following an accident, the automobile of a Chicago policeman was taken into custody by Wisconsin police. As a matter of standard procedure of the department, Wisconsin officers searched the car for the driver's service revolver which they believed he was required to have with him at all times. The Supreme Court held that where "the trunk of an automobile, which the officer reasonably believed to contain a gun, was vulnerable to intrusion by vandals," a search was not unreasonable. The officers in Cady responded to a department policy "to protect the public from the possibility that a revolver would fall into untrained or perhaps malicious hands." The compelling nature both of this objective and of the desire to carry it out with some immediacy can be readily appreciated.[7] There is no similar importunity involved in the making of an inventory list which might be of some use in resolving a possible future disagreement between police and a prisoner concerning whether police returned everything in his car at the time it was taken into custody. To validate the latter on the basis of the former is to say that if compelling reasons can tilt the balance in favor of a search then any reason can do so. When the safeguards from unjustified official intrusion set out in the Fourth Amendment stand on the other side of that balance, such logic must be brushed aside. The Cady line of precedent does not command that the search conducted in the present case be upheld. On the contrary, the proper analysis of the balancing of the interests presented in this case was set out in United States v. Lawson, 487 F.2d 468, 475-476 (8th Cir. 1973). Since the question there raised was precisely the same as that here and the analysis particularly cogent, a considerable segment is set out below.
The reasoning of the cases upholding inventory searches has been, except where not calling the procedure a *699 search, that the police procedure is a reasonable one to protect the valuable property of an accused while in custody and to protect the police departments from groundless claims for "lost" property. The soundness of this conclusion has been questioned.
Moreover, such a conclusion does not seem adequate to justify the substantial invasion of Fourth Amendment protections involved here. The essential test of the validity of a search is reasonableness, yet the standard of reasonableness must be evolved in light of the Fourth Amendment, not in light of what our view of reasonable police procedures might be. In addressing itself to a contention that it was reasonable to search an entire house without a warrant when a suspect is arrested in the house, the Supreme Court said in Chimel v. California, 395 U.S. 752, 764-765, 89 S.Ct. 2034, 2041, 23 L.Ed.2d 685 (1969):
But that argument is founded on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considerations relevant to Fourth Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in this area would reach the evaporation point.
We think this is a persuasive refutation of the Government's argument that because it is a "reasonable" police procedure it should be upheld under the Fourth Amendment. Obviously the police have an interest in safeguarding themselves against groundless claims. Just as obviously, and more importantly in terms of the Fourth Amendment, owners and operators of motor vehicles have an interest in safeguarding their possessions from unreasonable police intrusions. A rule that upon a showing of a legitimate governmental interest, the constitutional protections of citizens must give way, would eliminate those protections in the very situations for which they were intended. For the police practice considered here to be found reasonable under the Fourth Amendment, absent a warrant or falling within a recognized exception to the warrant requirement, there must be a minimal interference with the individual's protected rights. A police duty to safeguard the owner's property does not automatically give the police the right to search.
"[L]awful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it," * * * the reason for and the nature of the custody may constitutionally justify the search.
Cooper v. California, supra at 61 of 386 U.S., at 791 of 87 S.Ct.
It is unnecessary for us to determine all the reasons for, and natures of police custody that might justify a search; here the only justification for the search is bare police custody of the vehicle. While police custody may justify reasonable measures to protect the vehicle itself (i. e., rolling up the windows and locking the doors), or property within plain view in the automobile, such reasonable protective measures do not extend to breaking into a locked trunk. We find ourselves in agreement with the position taken by the California Supreme Court in addressing the contention that the inventory procedures are necessary and reasonable:
This contention is rebutted by recognition of the vehicle owner's countervailing interest in maintaining the privacy of his personal effects and preventing anyone, including the police, from searching suitcases, and other closed containers and areas in his automobile at the time the police lawfully remove it to storage. In weighing the necessity of the inventory search as protection of the owner's property against *700 the owner's rights under the Fourth Amendment, we observe that items of value left in an automobile to be stored by the police may be adequately protected merely by rolling up the windows, locking the vehicle doors and returning the keys to the owner. The owner himself, if required to leave his car temporarily, could do no more to protect his property.
Mozzetti v. Superior Court [4 Cal.3d 699] 94 Cal.Rptr. [412] at 417, 484 P. 2d [84] at 89; accord Boulet v. State, [17 Ariz.App. 64] 495 P.2d [504] at 509.
It is not as obvious to us, as it appears to be to some courts, why the inventory procedure offers the police any more protection against false claims than would a standard policy of locking the car and returning the keys to the owner; or of allowing the owner to make arrangements himself for the removal and storage of his vehicle.
One further point remains to be added. To the extent that the inventory is conducted for the benefit of the owner of the vehicle, it is unclear why he cannot be asked if he wants the benefit of such protection. To the extent that the inventory is conducted to protect the police against false claims, it must be remembered that the burden of showing that any item was in fact in the car at the time of the seizure would be on the owner. Furthermore, police are required only to take reasonable precautions in light of what they reasonably believe to be in their possession. Upon a refusal to consent to an inventory, it would appear that police would be justified in assuming that they were in possession of nothing more than an automobile and its necessary accoutrements. The dangers of false claims prevailing under these circumstances, while not nonexistent, are sufficiently minute to make the sacrifice of constitutionally protected interests for the purpose of further diminishing those dangers patently unreasonable. A further possible police protection would entail no more than the sealing of the trunk in such a way that an unbroken seal would indicate that the trunk had not been opened during police custody.
The Court feels it appropriate to address the implications of United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), which was decided after briefs in the instant case were submitted. In that case a person legitimately arrested on a traffic charge was given a thorough search of his person in the course of which several capsules of heroin were discovered. Use of the heroin as evidence was upheld by the Supreme Court since the heroin was discovered in the course of a legitimate search incident to a lawful arrest.
A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a "reasonable" search under that Amendment.
414 U.S. at 235, 94 S.Ct. at 477. However, under the principle of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), which was reaffirmed in the specific context presented by the case at bar in Cady v. Dombrowski, supra, the automobile search in this case cannot stand as a search incident to an arrest. Cady, decided only six months before Robinson and authorized by the author of the Robinson opinion, dealt with Preston as follows:
In [Preston], the police received a telephone call at 3 a. m. from a caller *701 who stated that "three suspicious men acting suspiciously" had been in a car in the business district of Newport, Kentucky, for five hours; four policemen investigated and, after receiving evasive explanations and learning that the suspects were unemployed and apparently indigent, arrested the three for vagrancy. The automobile was cursorily searched, then towed to a police station and ultimately to a garage, where it was searched after the three men had been booked. That search revealed two revolvers in the glove compartment; a subsequent search of the trunk resulted in the seizure of various items later admitted in a prosecution for conspiracy to rob a federally insured bank. In that case the respondent attempted to justify the warrantless search and seizure of the trunk and the items therein "as incidental to a lawful arrest." 376 U.S. at 367 [84 S.Ct. 881 at 883]. The Court rejected the asserted "search incident" justification for the warrantless search in the following terms:
But these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. Ibid.
It would be possible to interpret Preston broadly, and to argue that it stands for the proposition that on those facts there could have been no constitutional justification advanced for the search. But we take the opinion as written, and hold that it stands only for the proposition that the search challenged there could not be justified as one incident to an arrest.
413 U.S. at 444, 93 S.Ct. at 2529. Since the facts in the case at bar for all relevant purposes parallel those in Preston, this search cannot be upheld on the "search incident" theory advanced in Robinson.
Finally, United States v. Edwards, ___ U.S. ___, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), the Supreme Court's most recent Fourth Amendment pronouncement, is also of no aid to respondent. That case held only that a search otherwise proper under the "incident to a lawful arrest" exception would not be invalidated simply because it was postponed until after arrest or processing, or until the next morning. But far from constituting any vitiation of the command that searches be "reasonable," the decision is expressly grounded in that standard. The search in Edwards was for evidence and probable cause existed to believe that the specific evidence sought would be found in the place searched. In the case at bar, it is conceded that there was no reason to believe evidence or contraband was concealed in the trunk. There were no exigent circumstances. There was none of the importunity of a search for weapons. There was no genuine concern on any officer's part that the car or its contents might be physically harmful. In short, there were none of the traditional indices of reasonableness to search. Nor has contemporary society evolved so far from the Founders' jealous concern for personal privacy and security, in person and effects, that a policeman's chance of marginal advantage in the event of what must be considered an unlikely civil action is now reasonable grounds for invasion of those freedoms.
For the reasons heretofore stated, the evidence seized was done so in the course of a search prohibited by the Fourth Amendment and violative of the freedom from unreasonable governmental intrusion which it protects. No reason or precedent has been advanced sufficient to justify infringement upon the Fourth Amendment interests properly embodied in our fundamental law. The evidence so seized should therefore have been suppressed. The writ will issue.
NOTES
[1] This does not mean that such a policy does not present serious line drawing problems. Would it be unreasonable, for example, following an arrest, to go to a suspect's apartment and seize his car parked in front of it, although that car would in many respects be equally as "abandoned." Or would it be reasonable, even were the procedure standard, to go to the arrestee's home, left unguarded in his absence, and place a police guard on it.
If these practices were prohibited, problems would arise in the determination of how far a vehicle must be from a suspect's home before it is subject to "protective" seizure. The spectre of a somewhat different problem is raised by the present case: assuming all of the above seizures were justified by precisely the same protective argument as that set out above, would an "inventory" of the contents of such a car or apartment also be justified. While the implications of an inventory of such a car or apartment are not presented by this case, neither are they far off.
[2] "In our view the sounder course is to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of the exigencies of the case, a central element in the analysis of reasonableness . . .
"This seems preferable to an approach which attributes too much significance to an overly technical definition of `search.' . . ."
Terry v. Ohio, 392 U.S. 1, 18, n. 15, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968).
[3] Frank v. Maryland, to which Justice Brennan refers, was in fact overruled in Camara, supra.
[4] The Court, however, goes on at length to show that even if it were to be considered a search, it would be allowed under the reasonableness standard of the Fourth Amendment.
[5] The Court's later discussion in which a search is assumed is prompted in part "because the average beneficiary might feel she is in no position to refuse consent to the visit." 400 U.S. at 318, 91 S.Ct. at 386.
[5a] In Chambers, the search was upheld because supported by probable cause on the part of the officers to believe the automobile contained evidence in connection with criminal activity.
[6] Despite the express assertion by the Supreme Court in Harris that its holding implied nothing concerning evidence seized in the course of a full search of a car conducted as a matter of police procedure, its holding has been taken by some courts to constitute tacit assent to inventory searches. Thus, in a brief per curiam opinion, citing only Harris on the issue, the Court in Barker v. Johnson, 484 F.2d 941 (6th Cir. 1973) found that when policemen, who had gone to appellant's car to "inventory the valuables, to roll up the windows and to lock" it, opened the door and came within plain view of evidence, its discovery was not the result of an illegal search. The presumption made with rather blithe assurance by the Barker court, that the locking of a car's doors and the rolling up of its windows are to be equated in Fourth Amendment terms with a full scale inventory, not only does not arise from Harris, but the absence of any such necessary equation was there specifically pointed out. It is simply not obvious that the personal interest sacrificed in conceding to police the freedom to lock a car's doors for the owner's protection is the same as that sacrificed in granting police freedom to sift through the papers and effects in a locked glove compartment or trunk. See, supra, at pp. 693-695 and preceding analysis. The necessary articulation of the rebalancing of interests required if Barker is to be read as approving inventory searches is simply lacking. However, the result in Barker is proper if the focus in that case is shifted, as was the focus in Harris, away from the "inventory" and toward the fact that the police had every right to open the door, for the purpose of closing the windows. Evidence then in plain view is, of course, admissible.
[7] While some weight is given in Cady to the fact that the procedure there used was "standard," this would seem to go to the issue of abuse of a facially valid search and not to validity itself. A search which is constitutionally repugnant is surely no less offensive if carried out universally and methodically as an element of "standard procedure."
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284 U.S. 458 (1932)
ATCHISON, TOPEKA & SANTA FE RY. CO.
v.
SAXON, ANCILLARY ADMINISTRATOR.
No. 291.
Supreme Court of United States.
Argued January 8, 1932.
Decided February 15, 1932.
CERTIORARI TO THE SUPREME COURT OF TEXAS.
Mr. A.H. Culwell, with whom Messrs. E.E. McInnis and Wm. H. Burges were on the brief, for petitioner.
Mr. Winbourn Pearce for respondent.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
While employed as head brakeman by petitioner Railway Company and engaged in interstate commerce, J.W. Moore sustained fatal injuries at a New Mexico station. His personal representative obtained a judgment for damages, under the Federal Employers' Liability Act, in a Texas court.
The Court of Civil Appeals at El Paso reversed this, holding that the evidence failed to show the accident resulted from the carrier's negligence. The Supreme Court granted a writ of error, reversed the Court of Civil *459 Appeals and affirmed the original judgment. It concluded that, viewing all the evidence, there was enough to show negligence and causal connection between this and the death.
The matter is here by certiorari. The Railway sets up a claim under the federal statute which it has not heretofore had opportunity to submit for adjudication to any federal tribunal. The cause is one of a peculiar class where we have frequently been obliged to give special consideration to the facts in order to protect interstate carriers against unwarranted judgments and enforce observance of the Liability Act as here interpreted.
Examination of the record convinces us that the Court of Civil Appeals reached the proper conclusion. We can find no evidence from which it may be properly concluded that Moore's tragic death was the result of negligence by the Railway Company. As often pointed out, one who claims under the Federal Act must in some adequate way establish negligence and causal connection between this and the injury. New York Central R. Co. v. Ambrose, 280 U.S. 486; Atchison, Topeka & Santa Fe Ry. v. Toops, 281 U.S. 351, 354.
In the language of the Supreme Court the respondent "recovered in the trial court on the theory that the deceased, while in the discharge of his duties as a brakeman, was running along by the side of the track of the Railway Company and while doing so with the purpose and intent of boarding one of the cars in the train, he stepped in or upon some soft area or hole in his pathway, and was thereby caused to fall and be run over and killed."
Nobody saw the accident; no one can say with fair certainty how it occurred. Consistently with the facts disclosed, it might have happened in one of several ways and without causal negligence by the petitioner. When last seen the deceased was running westwardly by the side of the train, then moving in that direction. Across *460 the pathway commonly used by trainmen, there was a slight depression estimated to be four or five, or possibly six or eight, feet long and three feet wide filled with small rock screenings. It was softer than other portions of the way yielded to the foot. Eight or ten feet west of this witnesses found blood upon the rail.
Two hours after the accident a fourteen year old boy discovered the mark of a shoe in the screenings. He said it "was deeper than the footprint that I made, it looked as though somebody that was heavy or running had stepped in it. The front part of the foot was deepest." There is no evidence nothing but conjecture to show that the deceased made this impression; and, even if he did, we cannot assume that by stepping there he was made to stumble and fall under the moving train.
What occasioned this distressing accident can only be surmised. It was necessary to show causal negligence in order to establish the respondent's right to recover. The evidence fails to meet this requirement.
The judgment below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed.
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COURT OF
APPEALS
EIGHTH DISTRICT
OF TEXAS
EL
PASO, TEXAS
JOSE GARDEA, )
) No. 08-01-00297-CR
Appellant, )
) Appeal from the
v. )
)
161st District Court
THE STATE OF TEXAS, )
)
of Ector County, Texas
Appellee. )
) (TC# B-28,661)
)
O
P I N I O N
The Appellant was
found guilty of aggravated assault by a jury and sentenced to 5 years
imprisonment. We affirm.
On September 27,
2001, this Court entered an order requiring the trial court to hold a hearing
for the purpose of determining why no reporter=s
record had been filed. The trial court
held a hearing and filed his findings that:
(1) Appellant was not indigent; (2) Appellant had not made financial
arrangements with the court reporter; and (3) Appellant whereabouts were
unknown. On October 23, 2001, this Court
ordered the case to be submitted on the clerk=s
record only and that the Appellant=s
brief was due on November 22, 2001.
On January 7,
2002, this Court ordered the trial court to determine whether the Appellant
desired to prosecute his appeal, whether he had been deprived of effective
assistance of counsel, and make findings and recommendations. The trial court held a hearing on February
21, 2002, and found that: (1) the
Appellant had failed to pay his retained attorney or cooperate with his
attorney; (2) the Appellant had failed to pay for a reporter=s record; and (3) the Appellant had
absconded.
Accordingly, on
March 5, 2002, this Court ordered that the appeal shall be considered without
briefs. See Tex.R.App.P. 38.8(b)(4).
We have considered
the record before us and finding no error, we affirm the judgment of the trial court.
February
13, 2003
DAVID WELLINGTON
CHEW, Justice
Before Panel No. 1
Larsen, McClure, and Chew, JJ.
(Do Not Publish)
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-1821
__________
LISA M. BROWN
v.
JASON L. BROWN,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-19-cv-00404)
District Judge: Honorable Malachy E. Mannion
____________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
August 23, 2019
Before: KRAUSE, SCIRICA and NYGAARD, Circuit Judges
(Opinion filed: August 26, 2019)
___________
OPINION*
___________
PER CURIAM
On March 7, 2019, Jason L. Brown commenced an action in the District Court by
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
filing a “notice of appeal in a civil case.” The matter was referred to a Magistrate Judge
who recommended that it be dismissed under the Rooker-Feldman1 doctrine because
Brown was attempting to appeal from a state-court judgment.2 The District Court agreed
and dismissed the case for lack of jurisdiction. Brown timely appealed.
We exercise de novo review over the question of subject-matter jurisdiction.
PennMont Secs. v. Frucher, 586 F.3d 242, 245 (3d Cir. 2009); see also United States v.
Apple MacPro Computer, 851 F.3d 238, 244 (3d Cir. 2017). We have jurisdiction under
28 U.S.C. § 1291.
We agree with the District Court that it lacked jurisdiction over Brown’s case. In
his brief on appeal, Brown makes clear that he is seeking review of a domestic-relations
order entered by the Court of Common Pleas of Schuylkill County.3 As the Magistrate
Judge correctly concluded, however, the Rooker-Feldman doctrine strips federal courts of
jurisdiction over controversies “that are essentially appeals from state-court judgments.”
Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 165 (3d Cir.
2010); see also Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284
1
See Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman,
460 U.S. 462 (1983).
2
Brown did not file objections to the Report and Recommendation pursuant to Rule
72(b)(2) of the Federal Rules of Civil Procedure.
3
Based on the documents that Brown attached to his “notice of appeal in a civil case,” it
appears that this judgment was affirmed by the Superior Court of Pennsylvania and that
the Supreme Court of Pennsylvania subsequently denied allocatur.
2
(2005). Amendment would be futile. See Grayson v. Mayview State Hosp., 293 F.3d
103, 108 (3d Cir. 2002).
Accordingly, we will affirm.
3
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4578
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARFIELD D. CAMPBELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:09-cr-00236-FDW-1)
Submitted: January 4, 2012 Decided: February 2, 2012
Before GREGORY, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard L. Brown, Jr., LAW OFFICES OF RICHARD L. BROWN, Jr.,
Monroe, North Carolina, for Appellant. Anne M. Tompkins, United
States Attorney, Richard Lee Edwards, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Garfield F. Campbell appeals the district court’s
denial of his motion to suppress evidence. After the district
court denied the motion, Campbell pled guilty to one count of
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g) (2006) and was sentenced to 120 months’
imprisonment. Pursuant to his plea agreement, Campbell
preserved the right to appeal the district court’s ruling on the
motion to suppress. On appeal, he argues that the police
officer’s command for him to stop constituted an unauthorized
seizure.
This court reviews the factual findings underlying a
district court’s ruling on a motion to suppress for clear error
and its legal conclusions de novo. United States v. Foster, 634
F.3d 243, 246 (4th Cir. 2011). When evaluating the denial of a
suppression motion, this court construes the evidence in the
light most favorable to the Government. Id. Finding no error
in the district court’s ruling, we affirm.
Consistent with the Fourth Amendment, a police officer
may stop a person for investigative purposes when the officer
has reasonable suspicion based on articulable facts that
criminal activity is afoot. United States v. Arvizu, 534 U.S.
266, 273 (2002); Terry v. Ohio, 392 U.S. 1, 22 (1968). A
“seizure” warranting Fourth Amendment protection occurs when, in
2
view of the totality of the circumstances, a reasonable person
would not feel free to leave or otherwise terminate the
encounter. United States v. Lattimore, 87 F.3d 647, 653 (4th
Cir. 1996). Not all police-citizen interactions constitute a
seizure; “[o]nly when the officer, by means of physical force or
show of authority, has in some way restrained the liberty of a
citizen may we conclude that a ‘seizure’ has occurred.” Terry,
392 U.S. at 19 n.16. The general rule is that a seizure
“requires either physical force . . . or, where that is absent,
submission to the assertion of authority.” California v. Hodari
D., 499 U.S. 621, 626 (1991). A defendant who flees the police
in response to an assertion of authority has not been seized,
and thus his Fourth Amendment rights are not implicated. Id. at
626, 629.
Campbell’s encounter with the officer was not a
seizure within the protections of the Fourth Amendment because,
as the district court reasonably found, he did not submit to the
officer’s assertion of authority and was not physically
restrained. Indeed, he fled from the officer’s presence. See
United States v. Brown, 401 F.3d 588, 594 (4th Cir. 2005) (“A
defendant who flees the police in response to an assertion of
authority has not been seized, and thus his Fourth Amendment
rights are not implicated.”). Because Campbell was not seized
and the protections of the Fourth Amendment were thus not
3
implicated, a discussion of the reasonableness of the officer’s
suspicion is unnecessary.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
4
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
BENNETT K. TRESSLER, JR., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-3257
STATE OF FLORIDA,
Respondent.
___________________________/
Opinion filed January 15, 2015.
Petition for All Writs -- Original Jurisdiction.
Bennett K. Tressler, Jr., pro se, Petitioner.
No appearance for Respondent.
PER CURIAM.
Via this “petition for all writs jurisdiction,” petitioner Bennett Tressler argues
that his 1996 sentence, to 25 years’ imprisonment as a habitual felony offender for one
count of dealing in stolen property, was vindictive. Mr. Tressler has brought eighteen
appeals and original proceedings in this court relating to this 1996 judgment and
sentence. Of these, eight have been postconviction appeals, and in at least three of
these appeals, the petitioner has raised the same issue as he seeks to raise in this case.
Upon consideration of Mr. Tressler’s repeated collateral attacks on his judgment
and sentence, we ordered that he show cause why he should not be prohibited from
future pro se filings. See State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999). “Having
considered his response, we find that he has failed to show good cause why sanctions
limiting his right to appear pro se should not be imposed.” Fails v. State, 46 So. 3d
1032, 1033 (Fla. 1st DCA 2010). We conclude that his repeated collateral attacks on
his conviction have “substantially interfered with the orderly process of judicial
administration.” Birge v. State, 620 So. 2d 234, 235 (Fla. 1st DCA 1993).
Accordingly, the petition for all writs jurisdiction is dismissed, and the petitioner
is hereby prohibited from filing any further pro se pleadings in this court challenging
his conviction in Duval County Circuit Court case number 16-1995-CF-013383,
“regardless of the remedy sought or theory raised, unless he is represented in such
proceeding by a member in good standing of The Florida Bar.” Baker v. State, 939
So.2d 167, 168 (Fla. 1st DCA 2006).
PETITION DISMISSED.
ROWE, MARSTILLER, and MAKAR, JJ., CONCUR.
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Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CV-546
BIOTECHPHARMA, LLC, et al., APPELLANTS,
V.
LUDWIG & ROBINSON, PLLC, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CAB-884-13)
(Hon. Brian F. Holeman, Trial Judge)
(Argued October 31, 2013 Decided September 4, 2014)
Albert Wilson, Jr., for appellants.
Robert W. Ludwig, with whom Salvatore Scanio, James E. Tompert, and
W. Clifton Holmes were on the brief, for appellee.
Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General, Donna M. Murasky, Deputy Solicitor General, and James C.
McKay, Jr., Senior Assistant Attorney General, filed a brief for the District of
Columbia, amicus curiae, in support of this court‟s jurisdiction over the present
appeal.
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and KING,
Senior Judge.
FISHER, Associate Judge: Appellants—BiotechPharma, LLC; Converting
Biophile Laboratories, Inc.; and Dr. Raouf Albert Guirguis (collectively “BTP”)—
2
are former clients of appellee Ludwig & Robinson, PLLC (“L&R”), a law firm.
L&R sued BTP to collect unpaid legal fees, and BTP moved to stay the litigation
and compel arbitration. After the trial court denied the motion, BTP brought this
interlocutory appeal, arguing mainly that District of Columbia Bar Rule XIII 1
obligates L&R to arbitrate the fee dispute. We agree with BTP, reverse the trial
court‟s order, and remand the case with instructions to compel arbitration.
I. Procedural and Factual Background
BTP, a biotechnology firm, retained L&R as counsel in March 2011 to help
resolve a trade secret dispute. The dispute was settled in May 2012, L&R having
billed BTP on a monthly basis during the course of its representation. By
June 2012 L&R claimed that BTP owed approximately $1.7 million in outstanding
legal fees, disbursements, and expenses. In January 2013 L&R brought suit to
collect its fees.
1
Although popularly known as “D.C. Bar Rule XIII,” this is actually a rule
of this court, adopted “for the government of the Bar and the individual members
thereof.” Preamble, Rules of the District of Columbia Court of Appeals Governing
the Bar of the District of Columbia.
3
Several weeks later, BTP responded to the complaint by filing a motion to
stay the trial court proceedings and compel arbitration. In addition to claiming that
L&R had expressly agreed to arbitrate the fee dispute, BTP argued that a binding
agreement to arbitrate had been formed by operation of law. BTP cited Rule 8 of
the D.C. Bar‟s Attorney/Client Arbitration Board (“ACAB”), which states that if a
client files a petition to arbitrate a fee dispute with a lawyer, “the lawyer is deemed
to have agreed to arbitrate.” Although it was not mentioned in the trial court,
D.C. Bar Rule XIII similarly provides that
[a]n attorney subject to the disciplinary jurisdiction of
[the District of Columbia Court of Appeals] shall be
deemed to have agreed to arbitrate disputes over fees for
legal services . . . when such arbitration is requested by a
present or former client, . . . if a substantial portion of the
services were performed by the attorney in the District of
Columbia . . . .
L&R raised several arguments opposing BTP‟s motion to stay litigation and
compel arbitration, although the firm had already acknowledged in its complaint
that it “maintains its office and performed work related to this” matter in the
District of Columbia. Ultimately, the trial court denied BTP‟s motion without
clearly explaining why. BTP now appeals from that order.
4
II. Analysis
Before reaching the merits of BTP‟s appeal, we first address a jurisdictional
issue raised by L&R. We then consider whether the parties to this case had an
enforceable arbitration agreement, and we conclude that such an agreement existed
pursuant to D.C. Bar Rule XIII. Finally, we treat (and reject) L&R‟s claims that
Rule XIII is unconstitutional and that this court exceeded its authority by
promulgating it.
A. Jurisdiction
L&R argues that we lack jurisdiction to hear this interlocutory appeal,
despite a provision of the Revised Uniform Arbitration Act (“RUAA”) that states:
“An appeal may be taken from . . . [a]n order denying or granting a motion to
compel arbitration.” D.C. Code § 16-4427 (a) (2012 Repl.). According to L&R,
the RUAA cannot serve as our jurisdictional predicate because it violates the
Home Rule Act, which prohibits the Council of the District of Columbia from
passing a law “with respect to any provision of Title 11 (relating to organization
and jurisdiction of the District of Columbia courts).” D.C. Code § 1-206.02 (a)(4)
(2012 Repl.). Among other things, Title 11 gives this court jurisdiction over
5
appeals from “final orders and judgments of the Superior Court” and interlocutory
orders “refusing . . . injunctions.” D.C. Code § 11-721 (a) (2012 Repl.). L&R
argues that orders denying motions to compel arbitration are not orders
“refusing . . . injunctions,” nor do they qualify as appealable orders under any other
provision of Title 11. Consequently, L&R asserts that the RUAA has
impermissibly expanded this court‟s jurisdiction, thereby violating the Home Rule
Act.
We disagree for two principal reasons. First, for more than twenty years,
this court has routinely exercised jurisdiction over the type of appeal presented
here. See Giron v. Dodds, 35 A.3d 433, 436-37 (D.C. 2012); 2200 M St. LLC v.
Mackell, 940 A.2d 143, 147 n.2 (D.C. 2007); Nat’l Trade Prod. v. Info. Dev., 728
A.2d 106, 109 (D.C. 1999); Benefits Commc’ns Corp. v. Klieforth, 642 A.2d 1299,
1301 n.10 (D.C. 1994); Friend v. Friend, 609 A.2d 1137, 1139 n.5 (D.C. 1992);
Hercules & Co., Ltd. v. Beltway Carpet Serv., Inc., 592 A.2d 1069, 1071-72
(D.C. 1991). In doing so, we have regularly cited either the RUAA or its
predecessor, the Uniform Arbitration Act (“UAA”), 2 as a proper basis for
2
The UAA stated that “[f]or purposes of writing an appeal . . . [a]n order
denying an application to compel arbitration” would “be deemed final.”
D.C. Code § 16-4317 (a) (2001). Unlike the RUAA, the UAA did not provide for
appeals from orders granting motions to compel arbitration. See id.
6
jurisdiction. See, e.g., Friend, 609 A.2d at 1139 n.5 (applying the UAA); Giron,
35 A.3d at 436-37 & n.1 (applying the RUAA). This history evinces our long-held
premise that interlocutory appeals from orders denying motions to compel
arbitration fit comfortably within our jurisdiction. That premise, which has
become part of our jurisprudence, has neither threatened our independence nor
otherwise proven unworkable, but L&R‟s position would require us to abandon it.3
Even if we set aside this extensive history (indeed, even if we set aside the
RUAA and the UAA altogether), a second consideration supports our jurisdiction
here. This court‟s 1981 decision in Brandon v. Hines involved an arbitration
agreement not subject to the UAA, and we nevertheless concluded that “denials—
but not grants—of stays of litigation pending arbitration are appealable
interlocutory orders.”4 439 A.2d 496, 507 (D.C. 1981). Several years later, in
3
L&R‟s jurisdictional arguments implicate many of the issues raised in
Stuart v. Walker, which this court recently heard en banc. 6 A.3d 1215
(D.C. 2010), vacated, 30 A.3d 783 (D.C. 2011) (en banc). However, Stuart dealt
with an order granting (rather than denying) a motion to compel arbitration.
6 A.3d at 1215. The en banc court was evenly divided on the question of
jurisdiction and failed to render an opinion. See Stuart v. Walker, No. 09-CV-900
(D.C. Feb. 16, 2012) (en banc) (unpublished judgment).
4
In Brandon, a contractor appealed a trial court order that denied his motion
to confirm an arbitration award, vacated the award, and directed the parties to trial.
439 A.2d at 497. In deciding that the order was immediately appealable under
Title 11 as an order dissolving an injunction, the court found it necessary to first
(continued…)
7
Hercules & Co., Ltd. v. Shama Rest. Corp., this court reaffirmed Brandon‟s rule
and explained that it “will remain the law of the District of Columbia unless and
until it is reconsidered en banc or modified by statute.” 566 A.2d 31, 38
(D.C. 1989).
Applying Brandon‟s rule to this case resolves the concern L&R raises
regarding the Home Rule Act, for if we may exercise jurisdiction pursuant to the
terms of Title 11, then the RUAA‟s provision for interlocutory appeals works no
change to this court‟s jurisdiction (at least, that is, with respect to orders denying
motions to compel arbitration). See Bank of Am. v. District of Columbia, 80 A.3d
650, 660-61 (D.C. 2013) (relying on Brandon and recognizing that “[t]his court has
exercised jurisdiction of an appeal from an order denying a motion to compel
arbitration, concluding that it is a final order, appealable pursuant to D.C. Code
§ 11-721 (a)(1)”).
(…continued)
determine that orders denying motions to compel arbitration should be treated (for
purposes of appeal) as orders refusing injunctions. Id. at 500-09.
8
L&R argues that Brandon was incorrect at the time it was decided because it
overlooked binding precedent in John Thompson Beacon Windows, Ltd. v. Ferro,
Inc., 232 F.2d 366 (D.C. Cir. 1956). However, the John Thompson court dealt
primarily with the finality of an order in an independent proceeding.5 Id. at 366-
69. By contrast, the Brandon court focused carefully on whether an order refusing
to stay ongoing litigation pending arbitration is appealable as an interlocutory order
refusing an injunction. 439 A.2d at 497, 500-09 (analyzing D.C. Code § 11-721).
Consequently, John Thompson did not control Brandon and does not control here.
See Parker v. K & L Gates, LLP, 76 A.3d 859, 864 n.3 (D.C. 2013) (“Because this
case arises in the context of an independent proceeding, we have no occasion to
consider the appealability of orders compelling arbitration in other contexts.”).
5
An independent proceeding is an action “in which a request to order
arbitration is the sole issue before the court.” Green Tree Fin. Corp.-Ala. v.
Randolph, 531 U.S. 79, 87 (2000). John Thompson involved an independent
proceeding because a seller had filed suit for the sole purpose of seeking
enforcement of an arbitration agreement. 232 F.2d at 366-67. The trial court
denied the seller‟s initial motion to compel arbitration, and the seller appealed
before the trial court could complete a statutorily prescribed process for summarily
trying the issue. Id. at 367. On appeal, then, the jurisdictional question was
whether the order appealed from represented the final resolution of the independent
proceeding. Id. at 367-69. Although neither party argued the order at bar was
injunctive, the court considered and rejected that possibility in cursory fashion. Id.
at 369. In doing so, the court based its brief analysis on the federal jurisdictional
statute, 28 U.S.C. § 1292 (1952). Id. Thus, John Thompson is distinguishable not
only because it arose in a different procedural setting, but also because it dealt with
a different jurisdictional statute than the one at issue here.
9
In summary, Brandon and Hercules remain binding authority and apply to
this case. Moreover, the result Brandon commands here is consistent with the long
line of cases in which we have exercised jurisdiction over appeals like this one.
We have no reason (and, in fact, no discretion) to depart from our precedent.
Having determined that we have jurisdiction to decide this appeal, we now turn to
the merits of BTP‟s claim.
B. L&R’s Agreement to Arbitrate
BTP argues that the trial court erred in denying its motion to stay litigation
and compel arbitration. Because a trial court must grant such a motion where a
valid arbitration agreement exists, see D.C. Code § 16-4407 (b) (2012 Repl.), the
central question before us is whether L&R and BTP had such an agreement.6 This
6
Before reaching the question of whether there was an agreement to
arbitrate, L&R would have us hold that there was not even a dispute to arbitrate.
See Reed Research, Inc. v. Schumer Co., 243 F.2d 602, 604-05 (D.C. Cir. 1957)
(relying on theory of “an account stated” to hold that no genuine issue of material
fact precluded summary judgment). However, BTP‟s first filing in this case avers
that the company “disputes the amount of attorney‟s fees sought” by L&R. This
statement is enough to establish the existence of a dispute. To compel arbitration,
a party need not produce evidence of a dispute sufficient to survive a motion for
summary judgment. Friend v. Friend, 609 A.2d 1137, 1139 (D.C. 1992).
10
is a question of law that we review de novo. Giron, 35 A.3d at 437. The relevant
facts are not in dispute.
1. Was There an Express Agreement to Arbitrate?
BTP suggests that because arbitration agreements are “irrevocable” under
the RUAA, emails from L&R communicating its willingness to arbitrate were
immediately binding. We disagree. Mere offers to arbitrate are not irrevocable,
and the record demonstrates that L&R‟s first offer to arbitrate was not accepted by
BTP. L&R‟s second offer was conditioned on ACAB‟s acceptance of BTP‟s
petition, and L&R revoked this conditional offer long before BTP filed such a
petition. Consequently, no express agreement to arbitrate was ever formed
between the parties.7
2. Was There an Implied Agreement to Arbitrate?
7
By specifying that an attorney “shall be deemed to have agreed to
arbitrate” when the client requests it, Bar Rule XIII empowers clients to
unilaterally require arbitration, but the rule does not give lawyers the same
prerogative. In fact, ACAB Rule 8 (b)(ii) specifically notes that for clients, the
arbitration service offered by ACAB “is voluntary. If the client does not agree to
arbitrate, the ACAB cannot compel the client to do so.” Thus, L&R‟s two offers to
arbitrate did not trigger mandatory arbitration.
11
BTP maintains, in the alternative, that an agreement was formed by
operation of law when it (the client) requested arbitration.
a. Was This Claim Preserved?
When raising this claim before the trial court, BTP failed to cite D.C. Bar
Rule XIII, relying solely on ACAB Rule 8. As we will soon explain, these rules
have somewhat different terms. L&R therefore contends that BTP failed to
preserve the claim on which it now relies. We disagree. See Tindle v. United
States, 778 A.2d 1077, 1082 (D.C. 2001) (quoting Salmon v. United States, 719
A.2d 949, 953 (D.C. 1997) (“[A]lthough „claims‟ not presented in the trial court
will be forfeited . . . , „parties on appeal are not limited to the precise arguments‟
they made in the trial court.”).
When moving for a stay of litigation pending the completion of arbitration,
BTP quoted ACAB Rule 8 (a) (“If the petition is filed by a client, the lawyer is
deemed to have agreed to arbitrate . . . .”). It elaborated: “All counsels entering an
appearance on behalf of Ludwig are members of the D.C. Bar; therefore, they are
all required to proceed to arbitration under the ACAB.” BTP thus identified the
12
principle underlying both rules. There is little risk that L&R, which had earlier
proposed arbitration before ACAB, a service provided by the Bar, was misled by
BTP‟s failure to cite Rule XIII.
b. Was There a Valid Request to Arbitrate?
Both ACAB Rule 8 and Bar Rule XIII give clients the power to require
arbitration of fee disputes. However, the rules employ different terms for the
triggering event. Under ACAB Rule 8, a “lawyer is deemed to have agreed to
arbitrate” when a “petition is filed by a client.” Under Bar Rule XIII, an attorney
“shall be deemed to have agreed to arbitrate” when “such arbitration is requested
by a present or former client.”
L&R points out that BTP did not file a petition with ACAB until after the
trial court had denied arbitration, asserting that BTP did not have a viable claim in
the trial court that arbitration was required pursuant to ACAB Rule 8. It also
argues that the only way a client may “request” arbitration under Rule XIII is by
filing a formal petition with ACAB.8
8
In support of this reading, L&R notes Rule XIII‟s statement that arbitration
“shall be pursuant to such reasonable rules and regulations . . . as may be
(continued…)
13
We conclude that a client need not file a formal petition with ACAB in order
to request arbitration pursuant to Bar Rule XIII. A formal filing with ACAB
certainly would be sufficient to effectuate such a request, but it is not an absolute
prerequisite. Here, BTP‟s counsel informed the trial court that he actually “tried
to” file a petition with ACAB. He also said that ACAB “will not accept the
petition until [the] Court stays [the] case.”9 Thus, trying to comply with ACAB‟s
requirements, BTP filed a motion in the trial court to stay litigation and compel
arbitration.
(…continued)
promulgated from time to time by” the D.C. Bar and ACAB. But Bar Rule XIII
specifically provides flexibility in attorney-client arbitration arrangements, stating
that “arbitration shall be before” ACAB “[u]nless the attorney and client agree
otherwise.” Because ACAB is not the exclusive forum for arbitration, its rules do
not necessarily limit the ways in which an arbitration agreement can be formed.
9
ACAB Rule 4 states that “[i]f there is a pending lawsuit in a court about a
fee dispute and the client files a petition involving the same fee dispute with the
ACAB . . . , the ACAB will not retain jurisdiction nor will it proceed to adjudicate
the fee dispute unless the lawsuit is dismissed or stayed.” But there may have been
some misunderstanding between ACAB personnel and counsel for BTP. In
another case, ACAB explained its rule in plain terms, informing litigants that a
“fee dispute [may] not continue in two parallel forums.” Louis Fireison & Assocs.,
P.A. v. Alkire, 6 A.3d 945, 953 (Md. Ct. Spec. App. 2010).
14
Even if BTP‟s efforts to file a petition with ACAB were not enough to
constitute a “request” to arbitrate, BTP formally and unequivocally signaled its
desire for arbitration by filing a motion to stay litigation and compel arbitration.
We hold that a client that files such a motion in court has “requested” arbitration
under Bar Rule XIII. 10 Accordingly, L&R “shall be deemed to have agreed to
arbitrate” this fee dispute.11
C. Validity of D.C. Bar Rule XIII
L&R challenges the validity of D.C. Bar Rule XIII on two grounds. First, it
claims that this court lacked authority to promulgate the rule. Second, L&R
challenges the rule‟s constitutionality. BTP maintains that we should not entertain
either of these arguments, since L&R raises them for the first time on appeal. As a
10
Perhaps other types of filings or communications will qualify as a request
for arbitration under Bar Rule XIII. We do not decide this question.
11
L&R argues that even if an arbitration agreement exists, this court should
nevertheless affirm on the ground that BTP, through conduct, waived its right to
arbitration. We do not consider this argument because our case law clearly states
that questions of waiver are “decided by the arbitrator, not the court.” Menna v.
Plymouth Rock Assur. Corp., 987 A.2d 458, 465 (D.C. 2010); see Woodland Ltd.
P’ship v. Wulff, 868 A.2d 860, 865 (D.C. 2005). We likewise reject L&R‟s claim
that an implied arbitration agreement necessarily fails for lack of mutuality.
Because the agreement is formed by operation of law, it need not (and, indeed,
cannot) exhibit all the hallmarks of an ordinary contract.
15
general rule, of course, we do not consider such belated arguments. See, e.g.,
District of Columbia v. Helen Dwight Reid Educ. Found., 766 A.2d 28, 34 n.3
(D.C. 2001). However,
an appellate court has discretion, in the interests of
justice, to consider an argument that is raised for the first
time on appeal if the issue is purely one of law,
particularly if the factual record is complete and a
remand for further factual development would serve no
purpose, the issue has been fully briefed, and no party
will be unfairly prejudiced.
Plainly, the validity of Bar Rule XIII is a purely legal issue, and we think
“the interests of justice” are best served if we address it here. L&R makes many of
the same claims raised in Stuart v. Walker, and the merits of that case were never
resolved because the court split evenly on the question of jurisdiction. See supra
note 3. Thus, L&R raises issues “of continuing importance” and “of great public
interest” that deserve our consideration. See Anderson v. Elliott, 555 A.2d 1042,
1045 (Me. 1989) (exercising discretion to reach and resolve questions about the
validity of Maine‟s mandatory arbitration system for legal fee disputes). We note
that “a remand for further factual development would serve no purpose,” and that
“no party will be unfairly prejudiced” by our decision to reach L&R‟s final
arguments. Helen Dwight Reid Educ. Found., 766 A.2d at 34 n.3.
16
1. Authority to Promulgate D.C. Bar Rule XIII
L&R contends that this court lacked authority to promulgate Bar Rule XIII.
Quite to the contrary, this court possesses broad authority to regulate the practice
of law, deriving much of this power from the District of Columbia Court
Reorganization Act of 1970. A portion of that Act, passed by Congress, provides
that “[t]he District of Columbia Court of Appeals shall make such rules as it deems
proper respecting the examination, qualification, and admission of persons to
membership in its bar, and their censure, suspension, and expulsion.” D.C. Code
§ 11-2501 (a) (2012 Repl.). Beyond this broad statutory grant of authority, the
court possesses significant inherent authority as well. In Sitcov v. District of
Columbia Bar, we relied upon the “almost universally accepted” proposition “that
the highest court in the jurisdiction is imbued with the inherent authority to define,
regulate, and control the practice of law in that jurisdiction.” 885 A.2d 289, 297
(D.C. 2005) (quoting Brookens v. Comm. on Unauthorized Practice of Law, 538
A.2d 1120, 1125 (D.C. 1988)).
Notably, the preamble to the rules we promulgated to govern the District of
Columbia Bar cites both the inherent and statutory authority of this court. Taken
17
together, these two sources of authority allow the court to regulate virtually every
aspect of legal practice in the District of Columbia, including the substance of fee
agreements. See D.C. R. Prof. Cond. 1.5. We readily conclude that this power
extends to the subject matter of Bar Rule XIII. See In re LiVolsi, 428 A.2d 1268,
1273 (N.J. 1981) (holding that if a court has “authority to control the substance of
the [attorney-client] fee relationship, then a power of a lesser magnitude
determining the procedure for resolving fee disputes must also be within [the
court‟s] province”).
L&R nevertheless asserts that the rule impermissibly alters the jurisdiction
of the D.C. courts, since it requires lawyers to arbitrate fee disputes that they would
otherwise litigate in civil actions. Additionally, L&R claims that this court
violated the Home Rule Act by vesting judicial authority in the non-lawyer
members of ACAB panels and by limiting the scope of judicial review. In making
these claims, L&R cites several cases from other jurisdictions where courts have
considered the type of judicial involvement or the scope of judicial review that
must be afforded as part of a mandatory arbitration process.
Importantly, the formation of any arbitration agreement pursuant to Bar
Rule XIII requires a manifestation of assent by both attorney and client. Clients
18
invoke the rule by requesting arbitration. Attorneys submit to the rule by
practicing law in the District of Columbia. Provided that Rule XIII is valid, it does
not affect the jurisdiction of the D.C. courts or violate the Home Rule Act any
more than any other agreement to arbitrate would do.
The rule need not provide for judicial review beyond that which is ordinarily
available following arbitration. See D.C. Code §§ 16-4423 to -4424 (2012 Repl.);
A1 Team USA Holdings, LLC v. Bingham McCutchen LLP, 998 A.2d 320, 322
(D.C. 2010) (concluding that under the RUAA, “this court‟s review of an
arbitration award is still extremely limited”); Schwartz v. Chow, 867 A.2d 230
(D.C. 2005) (upholding decision of the Superior Court confirming an arbitration
award by ACAB). Whatever quasi-judicial authority may be vested in ACAB (if
any), it is limited to fee disputes between members of this court‟s bar and clients
who have voluntarily chosen to submit to the board‟s determination. Nothing in
the Home Rule Act inhibits this court‟s ability to thus manage the affairs of its bar.
This court did not exceed its authority in promulgating the rule.
2. Constitutionality of D.C. Bar Rule XIII
19
Separately, L&R challenges D.C. Bar Rule XIII on constitutional grounds,
principally claiming that the rule denies lawyers their Seventh Amendment right to
a jury trial. The Seventh Amendment‟s guarantee extends to “suits in which legal
rights [are] to be ascertained and determined, in contradistinction to those where
equitable rights alone [are] recognized.” Curtis v. Loether, 415 U.S. 189, 193
(1974). In Simler v. Conner the Supreme Court concluded that the underlying
“case was in its basic character a suit to determine and adjudicate the amount of
fees owing to a lawyer by a client under a contingent fee retainer contract, a
traditionally „legal‟ action.” 372 U.S. 221, 223 (1963). The Court therefore held
that the Seventh Amendment guaranteed a jury trial. Id. Here, L&R‟s complaint
alleges that BTP breached a retainer contract under which it owes attorneys‟ fees.
Thus, L&R has initiated “a traditionally „legal‟ action” to which, presumptively, a
Seventh Amendment right attaches. 12 Consequently, we must address L&R‟s
contention that Bar Rule XIII violates the Seventh Amendment.13
12
This determination is consistent with our holding in Ginberg v. Tauber,
where an attorney sued his client under a quantum meruit theory, seeking the
reasonable value of legal services the attorney had provided. 678 A.2d 543, 544-
46 (D.C. 1996). There was no retainer agreement, but the client acknowledged that
he owed the attorney a reasonable fee. Id. at 549. As a result, “the only issue [to
be determined] . . . was what was a reasonable fee under the circumstances.” Id. at
550. The court held “that where it is undisputed that the client owes the attorney
some fee for his legal representation, but there is no agreement concerning how the
amount will be determined . . . , the trial court, not the jury, determines the amount
of fee to be paid.” Id. at 548. In short, Ginberg concluded, “the amount of the fee,
(continued…)
20
Although other jurisdictions impose rules similar to D.C. Bar Rule XIII, no
such rule has ever been struck down for denying an attorney‟s right to a jury trial.
Rather, it has been held that attorneys give up that right by practicing law in a
jurisdiction subject to the challenged rule. See Kelley Drye & Warren v. Murray
Indus., Inc., 623 F. Supp. 522, 527 (D.N.J. 1985) (holding that “the right to a jury
trial can be given up, as parties do when they agree to arbitrate”); Guralnick v.
Supreme Court of N.J., 747 F. Supp. 1109, 1116 (D.N.J. 1990) (following Kelley
Drye). This court has previously cited that analysis in taking care “to cast no doubt
upon the validity of D.C. Bar R. XIII.” Ginberg, 678 A.2d at 551 n.9 (citing
Kelley Drye).
(…continued)
unless the amount is fixed by the contract, is . . . for the court to determine.” Id. at
551 (emphasis added). Here, the parties executed fee agreements, and L&R asserts
that its legal fees are, in fact, fixed by contract.
13
Some state courts have held that their respective state constitutions do not
guarantee a jury trial for attorneys litigating fee disputes. See, e.g., Shimko v.
Lobe, 813 N.E.2d 669, 675, 678-81 (Ohio 2004); Anderson v. Elliott, 555 A.2d
1042, 1043, 1049-50 (Me. 1989). These cases do not address the Seventh
Amendment question presented here since the “Amendment applies only to
proceedings in courts of the United States, and does not in any manner whatever
govern or regulate trials by jury in state courts.” Minneapolis & St. Louis R.R. Co.
v. Bombolis, 241 U.S. 211, 217 (1916). However, “like other provisions of the Bill
of Rights,” the Seventh Amendment is “fully applicable to courts established by
Congress in the District of Columbia.” E.R.B. v. J.H.F., 496 A.2d 607, 610 n.6
(D.C. 1985) (citing Pernell v. Southall Realty, 416 U.S. 363, 370 (1974)).
21
Federal courts have taken a similar approach in analogous contexts. For
example, in Geldermann v. Commodity Futures Trading Comm’n, members of a
commodities exchange were required by law to submit “to customer-initiated
arbitration.” 836 F.2d 310, 311 (7th Cir. 1987). A member company challenged
the rule—in part on Seventh Amendment grounds—claiming that “membership
alone is not sufficient to constitute consent to arbitration and therefore cannot
establish a waiver of its constitutional right to an Article III forum.” Id. at 318.
The Seventh Circuit disagreed, explaining that consent to observe all applicable
rules and regulations was “a precondition of membership” in the exchange. Id.
Accordingly, the court held that the company was “not entitled to an Article III
forum” and that “the Seventh Amendment [was] not implicated.” Id. at 324. See
also Patten Sec. Corp., Inc. v. Diamond Greyhound & Genetics, Inc., 819 F.2d
400, 402 (3d Cir. 1987) (holding that a member of the National Association of
Securities Dealers was “bound by its rules . . . under which a customer may compel
arbitration”) (abrogation on other grounds recognized by Delgrosso v. Spang &
Co., 903 F.2d 234, 236 n.2 (3d Cir. 1990)); Paine, Webber, Jackson & Curtis v.
Chase Manhattan Bank, 728 F.2d 577, 580 (2d Cir. 1984) (holding that the rules of
a stock exchange were “sufficient in and of themselves” to compel a member to
22
submit to arbitration requested by a non-member “whether or not [the rules] are
incorporated in a purchase and sale agreement”).
Because an arbitration agreement necessarily embodies a waiver of the right
to trial by jury, a determination that there is a valid arbitration agreement here
would foreclose any claim L&R might have had to a jury trial. See GTFM, LLC v.
TKN Sales, Inc., 257 F.3d 235, 244 (2d Cir. 2001) (characterizing the factual
premise of a Seventh Amendment claim as “purely hypothetical” where one party
to a dispute had exercised its statutory right to compel arbitration); Geldermann,
836 F.2d at 323 (holding that where the parties have consented to arbitration, “the
Seventh Amendment simply does not apply”); Cremin v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 957 F. Supp. 1460, 1471 (N.D. Ill. 1997) (when “claims are
properly before an arbitral forum pursuant to an arbitration agreement, the jury trial
right vanishes”). A case-specific waiver of the right to a jury trial is not necessary.
Still, L&R contends that it cannot be deemed to have agreed to arbitrate
because at least some of its attorneys joined the District of Columbia Bar before
this court promulgated Bar Rule XIII in 1995. Lawyers are required to renew their
bar membership every year, however, and those who have done so since 1995
cannot now claim immunity from the rule. In any event, the legal work at issue
23
here took place in 2011 and 2012, long after Rule XIII was promulgated. The
attorneys‟ practice of law in this jurisdiction is enough to make them subject to
Rule XIII with respect to any fee dispute arising from that practice.14
We now turn to whether this court, through Bar Rule XIII, may require such
client-initiated arbitration without violating the Constitution. L&R obliquely
suggests that the rule places an unconstitutional condition on the privilege of
practicing law in the District of Columbia. Again, however, L&R fails to cite a
case—and we are not aware of any—where a litigant has prevailed on that theory
when challenging a mandatory arbitration system for attorney-client fee disputes.
Courts that have considered the issue have held that “[n]o one has an absolute right
to practice law,” Kelley Drye, 623 F. Supp. at 527, and “[t]he State may impose
reasonable conditions and limitations upon those who wish to exercise th[at]
14
Moreover, BTP and L&R signed retainer agreements in 2011 and 2012.
“[L]aws in effect at the time of the making of a contract form a part of the contract
„as fully as if they had been expressly referred to or incorporated in its terms.‟”
Double H Hous. Corp. v. Big Wash, Inc., 799 A.2d 1195, 1199 (D.C. 2002)
(quoting Farmers & Merchs. Bank of Monroe v. Fed. Reserve Bank of Richmond,
262 U.S. 649, 660 (1923)). Applying this principle of law in a case similar to this,
the Maryland Court of Special Appeals held that D.C. Bar Rule XIII had been
implicitly incorporated into a retainer contract and that the attorney who executed
it had “agreed to arbitrate a fee dispute with [his client] upon her request.”
Fireison, 6 A.3d at 953-54.
24
privilege.” Anderson, 555 A.2d at 1050 (Me. 1989) (quoting Kelley Drye, 623 F.
Supp. at 527).
“The interest of the States in regulating lawyers is especially great,” and they
“have broad power to establish standards for . . . regulating the practice of
professions.” Goldfarb v Virginia State Bar, 421 U.S. 773, 792 (1975). This
includes the right to establish and enforce rules governing the reasonableness of
attorney fees. See D.C. R. Prof. Cond. 1.5. When promulgating Bar Rule XIII,
this court sought to provide an informal and efficient means of resolving attorney-
client fee disputes, which are one of the principal sources of public dissatisfaction
with the legal system. See Anderson, 555 A.2d at 1049. Because clients are at a
significant disadvantage in litigating those disputes, the rule protects their ability to
present meritorious claims and defenses, and, we believe, thereby fosters public
confidence in the bar. See id.; see also In re LiVolsi, 428 A.2d at 1272, 1280.
Thus, regulation “in the area of fee disputes” is “critically important.” Nodvin v.
State Bar of Ga., 544 S.E.2d 142, 145 (Ga. 2001) (quoting In re LiVolsi, 428 A.2d
at 1272).
The scope of Bar Rule XIII is well-fitted to its ends. The rule does not, for
instance, require lawyers to give up their right to a jury trial in civil cases not
25
involving fee disputes, and arbitration of fee disputes is required only if the client
requests it. Moreover, the arbitration system itself provides an impartial tribunal
and the other elements of due process. These considerations support our
conclusion that requiring lawyers to submit to client-initiated arbitration “is an
entirely reasonable exercise of the judicial power to superintend the bar.”
Anderson, 555 A.2d at 1049.15
In addition to its Seventh Amendment claim, L&R maintains that
compulsory arbitration denies lawyers their right to due process. Similar claims
have unvaryingly failed in the courts that have heard them. See Guralnick, 747 F.
Supp. at 1113-14; A. Fred Miller, Attorneys at Law, P.C. v. Purvis, 921 P.2d 610,
617-18 (Alaska 1996); Nodvin, 544 S.E.2d at 145-46. We see no reason to part
ways with this consistent body of persuasive precedent. “[D]ue process is not
necessarily judicial process. . . . [N]either is the right of appeal essential to due
15
On this score as well, our conclusion is consistent with analogous federal
case law. In Geldermann—described above—the law compelling arbitration for
members of the commodities exchange was upheld despite the claim that if a
member company “was to continue in business, [it] had no choice but to accept
the” rule. 836 F.2d at 317. See also Koveleskie v. SBC Capital Mkts., Inc., 167
F.3d 361, 366, 368 (7th Cir. 1999) (holding that it was not unconstitutional for an
employer to require an arbitration agreement as a “take-it-or-leave-it” condition of
employment, in part because “[t]he right to an Article III forum is waivable”).
26
process of law.” Guralnick, 747 F. Supp. at 1113 (quoting Reetz v. Michigan, 188
U.S. 505, 507-08 (1903)). Rather, “[t]he crux of due process is an opportunity to
be heard and the right to adequately represent one‟s interests.” A. Fred Miller,
Attorneys at Law, P.C., 921 P.2d at 617-18. Arbitration procedures under ACAB
rules “readily satisfy these minima.” Id.16
III. Conclusion
There was a valid agreement to arbitrate pursuant to D.C. Bar Rule XIII and
the trial court should have enforced it. Accordingly, we vacate the trial court‟s
order denying BTP‟s motion to stay, and remand the case with instructions to
enforce the arbitration agreement.
It is so ordered.
16
L&R also raises an argument that it has styled as an equal protection
claim. The firm asserts that Bar Rule XIII is “vastly overinclusive” because “it
routes to arbitration oft-times complex matters.” L&R does not explain how the
complexity of some attorney-client fee disputes works any deprivation of equal
protection under the law. In our view, the suggestion that this fee dispute is too
complex for ACAB is simply another facet of L&R‟s due process claim, which we
have already rejected.
| {
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} |
99 Cal.App.3d 849 (1979)
160 Cal. Rptr. 486
MITCHEL J. EZER et al., Plaintiffs and Respondents,
v.
HEINZ FUCHSLOCH et al., Defendants and Appellants.
Docket No. 53420.
Court of Appeals of California, Second District, Division Four.
December 14, 1979.
*853 COUNSEL
Roy L. Kight for Defendants and Appellants.
Frances L. Ezer, in pro. per., Rich & Ezer and L. Douglas Brown for Plaintiffs and Respondents.
OPINION
JEFFERSON (Bernard), J.
This is an appeal by defendants Heinz Fuchsloch and Christine Fuchsloch from a mandatory injunction issued against them following a trial on a complaint filed against them by *854 plaintiffs Mitchel J. Ezer and Frances L. Ezer. The dispute results from the fact that plaintiffs and defendants are neighbors residing in a hillside area located in Pacific Palisades. The complaint alleged that the improved property of plaintiffs was directly opposite of the defendants' improved property and property owned by the Staleys, also named as defendants in the action. The complaint further alleged that, on May 4, 1962, defendant Marquez Knolls, Inc.,[1] the owner of all of the lots in the tract of which the properties of plaintiffs, the defendants Fuchslochs and Staleys are a part, recorded a declaration of restrictions.
The restrictions provided that no tree, shrub, or other landscaping should be planted that would at present or in the future obstruct the view from any other lot. The plaintiffs alleged that the trees growing on the Fuchsloch and the Staley properties had grown to such a height that they were almost completely obstructing the view of the Pacific Ocean and the surrounding areas from plaintiffs' property. Plaintiffs sought a mandatory injunction requiring the Fuchsloch and Staley defendants to trim the trees on their respective properties so that such trees no longer obstructed the view from plaintiffs' property. The Fuchsloch defendants filed an answer which consisted of general and specific denials of the allegations contained in plaintiffs' complaint.[2]
Following trial, the court granted a mandatory injunction against the Fuchsloch and Staley defendants. With respect to the Fuchsloch defendants, the injunction ordered these defendants to cut down to the level of the roof of their house all trees and shrubs located on the property which appeared on a particular photograph which had been received into evidence as an exhibit. The injunction further ordered the Fuchsloch defendants to thereafter keep their trees and shrubs cut so that they did not grow above the rooftop of their home.
On this appeal, the Fuchsloch defendants contend that the dispute between the parties relates primarily to a specific pine tree which is approximately 25 feet in height and stands in the center of the back yard of defendants' property directly behind their house.
Basically, defendants assert four contentions in seeking a reversal of the judgment. First, defendants assert that the mandatory injunction order *855 constitutes an abuse of judicial discretion as being unjust, unreasonable, arbitrary and contrary to public policy and public good. Second, defendants claim that the trial court misinterpreted the restrictive covenant document. Third, defendants assert that the trial court failed to give adequate consideration to the rights of the tree as distinct from the rights of the individual litigants. Fourth, the defendants claim that the plaintiffs are barred by the doctrines of laches and waiver.
Plaintiffs, as respondents on appeal, renew their motion to dismiss defendants' appeal.
We consider first the dismissal-of-appeal motion.
I
PLAINTIFFS MOTION TO DISMISS DEFENDANTS APPEAL
(1a) During the pendency of this appeal plaintiffs filed a previous motion for a dismissal of the appeal. This motion was denied without prejudice. Plaintiffs devote a substantial portion of their brief to the proposition that the court's minute order of November 10, 1977, was an order granting an injunction, made appealable by Code of Civil Procedure section 904.1, subdivision (f), and that defendants' notice of appeal, filed March 3, 1978, was therefore not timely. In this court's prior order denying, without prejudice, plaintiffs' motion to dismiss defendants' appeal, it was pointed out that the minute order of November 10 was not a minute order granting an injunction but a notice of intended decision which would not be effective until entry of a formal judgment. (See Code Civ. Proc., § 632 and rule 232 (a), Cal. Rules of Court.) The first formal judgment or order granting an injunction was signed and filed by the trial judge and entered on January 4, 1978. It bore the label, "Mandatory Injunction." The defendants' notice of appeal, filed March 3, 1978, was therefore timely under rule 2 (a) of the California Rules of Court, with respect to the mandatory injunction of January 4, 1978.
(2a) Plaintiffs now contend that the mandatory injunction of January 4, 1978, was neither an appealable order for an injunction (Code Civ. Proc., § 904.1, subd. (f)), nor an appealable final judgment (Code Civ. Proc., § 904.1, subd. (a)) in this action because a subsequent judgment in the action was entered on June 29, 1979. It is the June 29 *856 judgment which the plaintiffs seek to label as the only final judgment from which an appeal may be taken.
(3) Plaintiffs assert that, for purposes of appeal, there is a difference between an order granting an injunction and the injunction itself. Plaintiffs thus cite cases such as Monterey Club v. Superior Court (1941) 44 Cal. App.2d 351 [112 P.2d 321] and Meehan v. Hopps (1955) 45 Cal.2d 213 [288 P.2d 267], as holding that it is the order granting the injunction, and not the writ of injunction itself, which is appealable.
An examination of the cases cited by plaintiffs indicate that such cases do not make a distinction between an order granting an injunction and a writ of injunction, a judgment of injunction, or an order of injunction for purposes of denominating the appealable order or judgment. An injunction is defined in Code of Civil Procedure section 525. This section provides: "An injunction is a writ or order requiring a person to refrain from a particular act...." In view of the language of Code of Civil Procedure section 525, it is understandable that Code of Civil Procedure section 904.1, subdivision (f), uses the language that an appeal may be taken from an order granting an injunction. However, an injunction as a writ or order, comes within the definition of a judgment. Code of Civil Procedure section 577 provides that "[a] judgment is the final determination of the rights of the parties in an action or proceeding." An injunction as a writ, order or judgment comes within the definition of "judgment" set forth in Code of Civil Procedure section 577.
(2b) In the case at bench it is clear that the mandatory-injunction document, which was signed by the judge and entered on January 4, constituted a final judgment which was an appealable judgment under Code of Civil Procedure section 904.1, subdivision (a). (4) The label, "Mandatory Injunction," placed on the document, has no relevancy in determining whether the document is such that it comes within the definition of a "judgment." If the document constitutes a "final determination of the rights of the parties in an action or proceeding," it constitutes a "judgment" as defined by Code of Civil Procedure section 577. The form of the final determination whether it be an order for the recovery of money or an order compelling a party to do or refrain from doing an act does not change the character of the document as a judgment.
*857 (1b) Prior to the final judgment of mandatory injunction, entered on January 4, 1978, the trial court had made no order granting an injunction. The November 10 minute order was simply an announcement of intended decision. As indicated in rule 232 (a) of the California Rules of Court, such "announcement of intended decision shall not constitute a judgment and shall not be binding on the court." It merely starts the time running on a request for findings. (Cal. Rules of Court, rule 232 (b).) A minute entry of a notice or announcement of intended decision can be considered at best as a preliminary order looking forward to a formal judgment. As a preliminary order, it is not appealable.
We recognize that, in some situations, it is appropriate for a trial court, by minute entry, to make an order granting an injunction, which would be an appealable order under Code of Civil Procedure, section 904.1, subdivision (f). Such a situation was presented in Meehan v. Hopps, supra, 45 Cal.2d 213. In Meehan, the defendant Hopps, in an action seeking an accounting, moved to disqualify plaintiffs' counsel because of his former representation of defendant. By minute order, the trial court denied the motion. The Meehan court held that the minute order was an order refusing to grant an injunction and, as such, was an appealable order[3] "[b]ecause the trial court's order denying Hopps' motion left nothing further of a judicial nature for a final determination of his rights regarding opposing counsel, ..." (Id. at p. 217.)
(2c) It is now asserted by plaintiffs that the mandatory injunction executed by the court on January 4, 1978, cannot be deemed a final judgment for purposes of appeal. Plaintiffs point out that on June 29, 1979, a document, appropriately labelled a "judgment," was signed by the trial judge and duly entered as a part of the within action. It is plaintiffs' position that the June 29 judgment must be construed as the only final judgment that has been made in the case at bench.
A certified copy of the June 29 judgment is attached to plaintiffs' brief and plaintiffs request that we take judicial notice of this June 29 judgment pursuant to the provisions of sections 452, subdivision (d). and 459 of the Evidence Code.
*858 We have taken judicial notice of the June 29 judgment. It appears from the judgment itself that it was made following a motion by plaintiffs for an order to modify the January 4 mandatory injunction, and after plaintiffs and the Staley defendants had entered into a stipulation for such modification. Our review of the judgment of June 29, 1979, which modified the January 4 judgment, indicates that it contained no provisions which affected the rights of the Fuchsloch defendants, with the exception that it purported to reserve jurisdiction to enforce in the future the mandatory injunction of January 4 as modified by an order made on August 29, 1978, modifying the injunction of January 4 pursuant to a stipulation between the plaintiffs and the Staley defendants.
We conclude, however, that the judgment of June 29, 1979, cannot be considered as converting the mandatory injunction of January 4 into a nonappealable interlocutory judgment. We thus hold that the mandatory injunction, executed by the trial judge on January 4, 1978, constitutes a final judgment that is the subject of this appeal pursuant to Code of Civil Procedure section 904.1, subdivision (a). We therefore deny plaintiffs' second motion to dismiss defendants' appeal.
II
WAS THERE AN ABUSE OF DISCRETION BY THE TRIAL COURT IN RENDERING AGAINST DEFENDANTS A MANDATORY INJUNCTION JUDGMENT?
(5) Defendants assert that the trial court's mandatory injunction constituted an abuse of discretion because it was unreasonable to require that trees on their property be trimmed in height to the level of the roof of defendants' house. The roof-top limit was unreasonable, claim the defendants, because only one tree was involved a tall pine tree and that trimming it to roof-top level was not required to preserve plaintiffs' view. According to defendants, this pine tree only blocked 1 degree of a 175 degree view enjoyed by plaintiffs. Defendants do not refer to any portion of the record which establishes, from the evidence, that plaintiffs' view was a 175 degree view and that the interference by the pine tree above the roof of defendants' house was a 1 percent interference only.
Defendants argue that the order of the trial court, in fixing a roof-level height as the permissible height which would not cause an interference *859 with plaintiffs' view, was arbitrary, since the written restrictions upon which the lawsuit was based said nothing about a limitation on trees and shrubs to the height of the roof-level of the homes erected on the various properties.
There is no doubt that, if the court acted arbitrarily in fixing the roof-top level as the permitted height for trees and shrubs pursuant to the restrictive-covenant document, the order would constitute an abuse of discretion, since "`[i]n a legal sense discretion is abused whenever in the exercise of its discretion the court exceeds the bounds of reason, all of the circumstances before it being considered.'" (State Farm etc. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 432 [304 P.2d 13].) We conclude, however, that the defendants' claim of an abuse of discretion is lacking in merit. All of the homes in the tract involved are limited to one story in height. In addition, the record reflects that the evidence established that the roof-top limit in height for trees and shrubs was necessary to preserve the view of the ocean and city from plaintiffs' property. Again, defendants point to no portion of the record to support their claim that the trial court failed to consider any appropriate public policy or the respective interests of the parties in concluding that the tree trimming ordered was necessary to effectuate the rights given to plaintiffs under the restrictive-covenant document.
III
DID THE TRIAL COURT IMPROPERLY INTERPRET THE RECORDED RESTRICTIVE-COVENANT DOCUMENT?
(6a) Defendants point out that the question at issue concerns the proper interpretation of various provisions of the recorded restrictive-covenant document. No extrinsic evidence was offered by any party as an aid to the interpretation contended for by such party to the action. Defendants request that we make an interpretation of the document contrary to the interpretation placed upon it by the trial court.
Defendants rely upon the principle set forth in Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [44 Cal. Rptr. 767, 402 P.2d 839], in which the court observed: "It is therefore solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence. Accordingly, `An appellate *860 court is not bound by a construction of the contract based solely upon the terms of the written instrument without the aid of evidence [citations], where there is no conflict in the evidence [citations], or a determination has been made upon incompetent evidence [citation].'"
The basic provision to be interpreted is paragraph (11) of the written document. In pertinent part, paragraph (11) provides as follows: "[N]or shall any tree, shrub or other landscaping be planted or any structures erected that may at present or in the future obstruct the view from any other lot, and the right of entry is reserved by the Declarants to trim any tree obstructing the view of any lot."
Paragraph 14 of the document also has a reference to trees and shrubs. It provides: "No tree or shrub planted by the Declarants on any Lot or lot slope shall be removed at any time without the expressed permission of the Declarants or their successors."
Defendants urge that we give an interpretation to paragraph (11) that would establish the principle that no property owner is liable to another property owner for a tree obstructing the view unless the property owner sought to be held liable was the original planter of that tree. The pine tree on defendants' lot was not planted by defendants but by the former owner. Under the interpretation of paragraph (11) contended for by defendants, since they did not plant the particular pine tree, they would not be liable under this paragraph for the growth of the tree which now obstructs the view of plaintiffs.
Defendants also contend that, since paragraph (11) provides for a right of entry reserved to the declarants to trim any tree obstructing the view of any lot, the document should be interpreted to preclude a court from requiring any lot owner to trim trees which have grown to such height that they interfere with another lot owner's view. Defendants suggest that this one provision that gives the original owner (declarants) of all the lots a right of entry to trim trees obstructing the view of any lot, was intended to constitute the sole remedy for a lot owner whose view was being obstructed by the height of trees on adjacent lots.
In addition, defendants argue that the phrase, "obstruct the view," used in paragraph (11), is too ambiguous to be interpreted to require that trees be trimmed to roof-top level.
*861 (7a) Defendants assert that their suggested interpretation of paragraph (11) is mandated by the rule of law that favors a strict construction of restrictive covenants and an interpretation leaning toward the unencumbered, free use of property. "Restrictive covenants will be construed strictly against persons seeking to enforce them, and in favor of the unencumbered use of the property." (Biagini v. Hyde (1970) 3 Cal. App.3d 877, 880 [83 Cal. Rptr. 875].) Language similar to that set forth in Biagini is found in other cases. (Sain v. Silvestre (1978) 78 Cal. App.3d 461, 474 [144 Cal. Rptr. 478]; Terry v. James (1977) 72 Cal. App.3d 438, 443 [140 Cal. Rptr. 201]; Lincoln Sav. & Loan Assn. v. Riviera Estates Assn. (1970) 7 Cal. App.3d 449, 463 [87 Cal. Rptr. 150].)
The disjointed, single-paragraph, strict construction approach to a restrictive-covenant-document interpretation urged by defendants, is unacceptable in light of the fact that "[t]here is no doubt that these rules are correct so far as they go, but they give only part of the picture." (Bass v. Helseth (1953) 116 Cal. App.2d 75, 81 [253 P.2d 525, 36 A.L.R.2d 853].) A limitiation on the rule of strict construction of restrictive covenants was set forth in Lincoln Sav. & Loan Assn. as follows: "[T]he intent of the parties and the object of the deed or restriction should govern, giving the instrument a just and fair interpretation." (Lincoln Sav. & Loan Assn., supra, 7 Cal. App.3d 449, 463.)
(6b) The restrictive-covenant document involved in the case before us is made up of 17 separate paragraphs of restrictions on the use and improvements permitted on the lots making up the tract. (8) A cardinal principle of document construction is that a document must be "construed as a whole" so as "to give effect to every part thereof [citations], and particular words or clauses must be subordinated to general intent." (Newby v. Anderson (1950) 36 Cal.2d 463, 470 [224 P.2d 673].)
(6c) The beginning paragraph of the document states that the document establishes, "the following provisions, conditions, restrictions, and covenants, upon all said lots, or any interest therein all of which shall inure to and pass with each lot and shall apply to and bind the respective successor in interest or present owner or owners thereof, and each thereof is imposed upon all said lots as a servitude in favor of each and every other of said lots of said tract as dominant tenement or tenements, ..."
*862 This language in a recorded restrictive-covenant document for a residential tract of lots generally has been given an effect as set forth in Mock v. Shulman (1964) 226 Cal. App.2d 263 [38 Cal. Rptr. 39]. The Mock court observed: "The court found that the restrictions were imposed upon all the lots in the tract in which the respective lots of the parties were located; they were for the mutual benefit of the entire tract and the owners of the several lots therein, ran with the land and were binding upon and enforceable by each lot owner as against all other lot owners. The restrictions were in the form that has often been held adequate to create mutual equitable servitudes, breach of which will be enjoined." (Id. at p. 266.) (See also, Lincoln Savings & Loan Assn. v. Riviera Estates Assn., supra, 7 Cal. App.3d 449, 460; Arrowhead Mut. Service Co. v. Faust (1968) 260 Cal. App.2d 567, 579 [67 Cal. Rptr. 325].) (7b) We find this cogent observation set forth in Hannula v. Hacienda Homes (1949) 34 Cal.2d 442, 444-445 [211 P.2d 302, 19 A.L.R.2d 1268]: "[T]he primary object in construing restrictive covenants, as in construing all contracts, should be to effectuate the legitimate desires of the covenanting parties."
(6d) Viewed in context of the entire document, there is nothing vague or ambiguous about the restrictions imposed in paragraph (11). The language, "nor shall any tree, shrub or other landscaping be planted or any structures erected that may at present or in the future obstruct the view from any other lot," seems clearly designed to maintain the area above the one-story homes free and clear in order to preserve the view of the individual lot owners at various elevations. In making each lot both a dominant and subservient tenement, with respect to the various restrictions, paragraph (11) must be construed to subject defendants' property to the restriction against the height of trees which would interfere with a neighbor's view. We conclude, as did the trial court, that a limitation on the height of trees to roof-top level constitutes a reasonable interpretation of the language used in paragraph (11).
In view of all the restrictions and conditions contained in the restrictive covenant document, the topography of the tract and the elevation of the lots, and the limitation on structures to single-family dwellings one-story in height, the general plan created by Marquez Knolls, Inc., the owner of the lots who created the restrictive covenant document, reflects a plain intent and purpose to maintain a one-story height for all structures and trees in the tract in order to preserve the "view" of the individual lot owners.
*863 IV
PLAINTIFFS ARE NOT BARRED FROM ENFORCING THE RESTRICTIVE COVENANT PROVISIONS BY REASON OF ANY LACHES OR WAIVER
(9) Defendants assert that the restrictive-covenant document became unenforceable by reason of the doctrines of waiver and laches. Defendants rely upon the cases of Wedum-Aldahl Co. v. Miller (1937) 18 Cal. App.2d 745 [64 P.2d 762] and Butler v. Holman (1956) 146 Cal. App.2d 22 [303 P.2d 573]. These cases offer no assistance to defendants. In the Wedum-Aldahl Co. case, there was a change in conditions so that the court was able to observe that "[w]hen the conditions affecting a restrictive use of land have so changed as to defeat the purpose of the restriction and it has therefore become inequitable to enforce the restriction, the owner may be relieved therefrom in a proper proceeding." (Wedum-Aldahl Co., supra, 18 Cal. App.2d 745, 752.) And in Butler, the court held that the trial judge was justified in finding that the facts did not bring plaintiffs within the rule that "[l]aches is an unreasonable delay in asserting a right which causes such prejudice to an adverse party as renders the granting of relief inequitable." (Butler, supra, 146 Cal. App.2d 22, 28.)
The record before us is devoid of evidence that would support a finding that any conduct by plaintiffs amounted to a waiver, or that plaintiffs had delayed in bringing suit to call into play the equitable defense of laches. The testimony of one of the plaintiffs was to the effect that it was only during the three years that defendants had owned their property that the pine tree had grown above defendants' rooftop to the extent of impeding plaintiffs' view from their property.
V
THE RIGHTS OF THE TREE ITSELF
(10) Defendants urge that we adopt a legal principle that would give their pine tree an independent right to exist, without being trimmed to rooftop level a right that would be paramount to the rights created by the restrictive-covenant document. Unquestionably, the concept of bestowing upon nonhuman forms certain independent rights has been discussed in our legal literature. The growing recognition of the necessity to protect our environment has given some impetus to this concept, especially with respect to natural objects or parts of our environment. *864 (See Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects (1972) 45 So.Cal.L.Rev. 450.)
A decisional law advocacy of this concept is found in a dissenting opinion in Sierra Club v. Morton (1972) 405 U.S. 727, 741 [31 L.Ed.2d 636, 647, 92 S.Ct. 1361]. There, an argument was advanced for a "federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage." (Dis. opn. of Douglas, J.) (Italics added.)
The protection of elements of our environment and natural resources has come through legislative enactments which the courts interpret and enforce but without adoption of the principle that natural objects are given independent "rights" and "standing" in the courts. The cases cited by defendants are all of this nature. (Sierra Club v. Morton, supra; TVA v. Hill (1978) 437 U.S. 153 [57 L.Ed.2d 117, 98 S.Ct. 2279]; Minnesota Public Interest Research Group v. Butz (D.Minn. 1975) 401 F. Supp. 1276; National Audubon Society, Inc. v. Johnson (S.D.Tex. 1970) 317 F. Supp. 1330; State of Wyoming v. Hathaway (10th Cir.1975) 525 F.2d 66.)
Under the circumstances, we must decline defendants' request that we create, by judicial action, an independent right of existence in defendants' pine tree. Even if we were so inclined, we are compelled to take cognizance of the fact that defendants make no compelling argument for granting to their pine tree a right to exist free of being trimmed in accordance with the demands of the restrictive-covenant document which is binding on all parties to this litigation. A meaningfully significant comment is to the effect that "to say that the environment should have rights is not to say that it should have every right we can imagine, or even the same body of rights as human beings have. Nor is it to say that everything in the environment should have the same rights as every other thing in the environment." (Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects, supra, at pp. 457-458.)
The judgment is affirmed.
Kingsley, Acting P.J., and Swearinger, J.,[*] concurred.
NOTES
[1] Although named as a defendant, the record before us indicates that this corporate defendant was not served in the action.
[2] The Staley defendants defaulted and filed no answer or other pleading to plaintiffs' complaint.
[3] The Meehan case dealt with the appeal provisions of Code of Civil Procedure section 963 which was the forerunner of Code of Civil Procedure section 904.1, and contained language identical with the language now found in Code of Civil Procedure section 904.1, subdivision (f).
[*] Assigned by the Chairperson of the Judicial Council.
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31 So.3d 908 (2010)
William R. DISHMAN, Petitioner,
v.
STATE of Florida, Respondent.
No. 1D10-1195.
District Court of Appeal of Florida, First District.
March 30, 2010.
William R. Dishman, pro se, Petitioner.
Bill McCollum, Attorney General, Tallahassee, for Respondent.
PER CURIAM.
The petition alleging ineffective assistance of appellate counsel is denied on the merits.
BENTON, VAN NORTWICK, and CLARK, JJ., concur.
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381 F.Supp.2d 1274 (2005)
Walter L. BRANCO, et al., Plaintiffs,
v.
NORWEST BANK MINNESOTA, N.A., Etc., et al., Defendants.
No. CV 02-00468 DAE-LEK.
United States District Court, D. Hawai`i.
July 27, 2005.
*1275 *1276 Andrew S. Iwashita, Hilo Law Center, Hilo, HI, George J. Zweibel, Law Office of *1277 George J. Zweibel, Honokaa, HI, for Walter L. Branco, Walter L. Branco, as Personal Administrator of the Estate of Elizabeth A. Branco, Elizabeth A. Branco, plaintiffs.
Kurt K. Leong, Jason F. Oliver, Oliver Lau Lawhn Ogawa & Nakamura, Roy T. Ogawa, Oliver Lau Lawhn Ogawa & Nakamura, Honolulu, HI, for Norwest Bank Minnesota, N.A., as Trustee for Amresco Residential Securities Corporation Mortgage Loan Trust 1998-2, Under the Pooling and Servicing Agreement dated as of June 1, 1998, a Minnesota corporation aka Wells Fargo Bank Minnesota, N.A., Wendover Financial Services Corporation, Attorneys Equity National Corporation, John and Mary Does 1-20, John Doe Partnerships 1-20, Doe Corporations 1-20, Doe Other Entities 1-20, defendants.
ORDER AFFIRMING MAGISTRATE JUDGE'S ORDER GRANTING DEFENDANT ATTORNEYS EQUITY NATIONAL CORPORATION'S MOTION TO STAY PROCEEDINGS AND TO COMPEL ARBITRATION AND DENYING PLAINTIFFS' MOTION TO SET SUMMARY JURY TRIAL TO DETERMINE EXISTENCE OF AGREEMENT TO ARBITRATE.
DAVID ALAN EZRA, Chief Judge.
Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing. On October 4, 2004, Plaintiffs filed objections to the magistrate judge's July 29, 2004 Finding and Recommendation Order. After reviewing Plaintiffs' objections as well as all supporting and opposing memoranda the Court AFFIRMS the magistrate judge's Order.
BACKGROUND
The facts of this case have been set forth in previous documents filed by the Court. See Finding and Recommendation, pp. 2-5; Am. Order Granting in Part and Denying in Part Def. Attorneys Equity's Mot. to Dismiss, filed Feb. 12, 2003, pp. 2-7. In short, Plaintiffs entered into a loan agreement with Amresco Residential Mortgage Company (Amresco) in March 1998. As part of this transaction, Amresco acquired a mortgage on lot # 83, Paauilo Mauka Camp, Paauilo, Hawaii, which Plaintiffs use as their principal dwelling. Plaintiffs brought the underlying suit against Amresco, as well as numerous other Defendants,[1] alleging, inter alia, violations of consumer protection statutes. The instant matter revolves around an arbitration clause within the loan agreement.
On January 22, 2004, Defendant Attorneys Equity filed a Motion to Compel Arbitration, in which Defendants Wells Fargo and Wendover joined on January 26, 2004.[2] On January 30, 2004, by Order of Designation to a Magistrate Judge, this Court assigned the Motion to Compel Arbitration to the magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) (2000) and Local Rule 72.4.
On February 12, 2004, Plaintiffs filed a Motion for Summary Jury Trial on the issue of whether an arbitration agreement exists between the parties. The magistrate judge treated the motion as a counter-motion *1278 to Defendants' Motion to Compel Arbitration.
On July 29, 2004, the magistrate judge filed her Order granting Defendants' Motion to Compel Arbitration and denied Plaintiffs' Motion for Summary Jury Trial. In that Order, the magistrate judge found Defendants' motion was timely filed, the agreement to arbitrate was not unconscionable, and Plaintiffs' defense that the contract as a whole was void ab initio was barred by the statute of limitations.
On August 12, 2004, Plaintiffs filed a Motion for Reconsideration of the Magistrate's Order, which the magistrate judge denied by Order on September 20, 2004. Plaintiffs filed their objections to the September 20 Order on October 4, 2004. On October 14, 2004, Defendants filed a response to Plaintiffs' objections, as well as limited Cross-Objections to the September 20 Order, seeking clarification on two issues.
STANDARD OF REVIEW
Any party may object to a magistrate judge's order within eleven calendar days following service of the order. 28 U.S.C. § 636(b)(1)(B) (2000); Fed.R.Civ.P. 72(b); Local Rule 74.1. The district court review de novo those portions of the magistrate judge's report to which objection is made, and may accept, reject or modify, in whole or in part, the findings and recommendations. 28 U.S.C. § 636(b)(1)(B) (2000); Fed.R.Civ.P. 72(b); Local Rule 74.1. De novo review means the court must consider the matter anew, the same as if it had not been heard before and as if no decision previously had been rendered. Ness v. Commissioner, 954 F.2d 1495, 1497 (9th Cir.1992). Thus, although the district court need not hold a de novo hearing, the court's obligation is to arrive at its own independent conclusion about those portions of the magistrate judge's findings and recommendation to which objections are made. United States v. Remsing, 874 F.2d 614, 617 (9th Cir.1989).
DISCUSSION
The Federal Arbitration Act (FAA), states "[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2 (2000). Based on the strong federal policy favoring arbitration agreements, the United States Supreme Court has directed courts to resolve allegations of waiver, delay or similar defenses to arbitrability in the favor of arbitration. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).
Under the FAA, in deciding whether to compel arbitration, the court must determine: (1) whether a valid, enforceable arbitration agreement exists, and (2) whether the claims asserted in the complaint are within the scope of the arbitration agreement. 9 U.S.C. § 4; Chiron Corp. v. Ortho Diagnostic Systems, Inc., 207 F.3d 1126, 1131 (9th Cir.2000); Howard Elec. & Mech. Co. v. Frank Briscoe Co., 754 F.2d 847, 849 (9th Cir.1985). Neither party objected to the magistrate judge's finding and recommendation regarding the scope of the arbitration agreement; thus, this Court will not review that issue.
Plaintiffs object to the magistrate judge's finding that Defendants timely filed their Motion to Compel Arbitration as well as to the finding that a valid and enforceable arbitration agreement exists. Specifically, Plaintiffs argue that the arbitration agreement is voidable, because it is procedurally and substantively unconscionable, and that the underlying loan contract is void ab initio, because the procedures *1279 used to form the contract violate consumer protection statutes.
I. OBJECTIONS TO THE MAGISTRATE JUDGE'S FINDING OF TIMELINESS:
In light of the strong policy favoring arbitration, waiver by a party of its right to arbitrate is not to be inferred lightly. Vespe Contracting Co. v. Anvan Corp., 399 F.Supp. 516, 522 (D.C.Pa.1975). Failure to raise an arbitration agreement as an affirmative defense is not a binding waiver of the right to arbitrate. Thyssen, Inc. v. Calypso Shipping Corp., 310 F.3d 102, 105-106 (2d Cir.2002). Absent prejudice to the non-moving party, an affirmative defense may be asserted for the first time in a motion, as Defendants have done here. Ledo Fin. Corp. v. Summers, 122 F.3d 825, 827 (9th Cir.1997); Hoffman Constr. Co. of Or. v. Active Erectors & Installers, Inc., 969 F.2d 796, 798-99 (9th Cir.1992).
Plaintiffs argue that a Motion to Compel Arbitration is a de facto motion to amend the pleadings and, therefore, Defendants' motion was untimely. The Rule 16 Scheduling Order deadline to file dispositive motions was April 28, 2004. Defendants filed their Motion to Compel Arbitration on January 22, 2004, which was well within the deadline. The Court finds that, even if the motion is construed to be a de facto motion to amend the pleadings, the Court was nonetheless within its discretion to hear the motion. The district courts have broad discretion in interpreting, applying, and determining the requirements of their own local rules and general orders. United States v. Gray, 876 F.2d 1411, 1414 (9th Cir.1989), cert. denied, 495 U.S. 930, 110 S.Ct. 2168, 109 L.Ed.2d 497 (1990) (citing United States v. DeLuca, 692 F.2d 1277, 1281 (9th Cir.1982); United States v. Torbert, 496 F.2d 154, 157 (9th Cir.1974)). Despite this general principle of discretion, the Federal Rules of Civil Procedure require, in relevant part:
[e]xcept in categories of actions exempted by district court rule as inappropriate, the district judge, or a magistrate judge when authorized by district court rule, shall ... enter a scheduling order that limits the time ... to file motions.... A schedule shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.
Fed.R.Civ.P. 16(b) (emphasis added). In determining whether a moving party has shown the requisite good cause, the inquiry primarily considers the diligence of that party. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992); United States v. Boyce, 148 F.Supp.2d 1069, 1078 (S.D.Cal.2001); Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D.Cal.1999).
Accepting Plaintiffs' assertions for the sake of argument, the Court does not find that when Defendants complied with the dispositive motions deadline they should clearly have known that their filing would be untimely. As such, the Court finds no lack of diligence on their part, and finds that there would exist good cause to allow the motion to be heard, even if it was untimely.
II. OBJECTIONS TO THE MAGISTRATE JUDGE'S FINDING OF A VALID, ENFORCEABLE, WRITTEN ARBITRATION AGREEMENT:
Plaintiffs argue the arbitration agreement is unenforceable based on the doctrine of unconscionability. Plaintiffs claim the agreement is procedurally unconscionable because it is a contract of adhesion, and is substantively unconscionable because it includes a "loser pays" provision *1280 and because it requires Plaintiffs to pay prohibitive costs to vindicate their claims.
Plaintiffs also argue the underlying loan contract is void for violations of Hawaii's consumer protection statutes. Plaintiffs had already raised this argument as an affirmative claim in their First Amended Complaint, and it was dismissed based on the statute of limitations. But, Plaintiffs contend the statute of limitations does not bar them from raising this argument now as an affirmative defense.
A. The contract is not unconscionable.
Unconscionability is a form of redress available when one party abuses a strong bargaining position to take advantage of the other party's weakness, ignorance, or distress. To find a contract voidable on the grounds of unconscionability, most courts, including those in Hawaii, require a showing of both a procedural and substantive element of unconscionability. Brown v. KFC Nat'l Mgmt. Co., 82 Hawai'i 226, 921 P.2d 146, 167 (1996) ("[A] contract ... is unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party."). See also City & County of Honolulu v. Midkiff, 62 Haw. 411, 616 P.2d 213, 218 (1980); Earl M. Jorgensen Co. v. Mark Constr., Inc., 56 Haw. 466, 540 P.2d 978, 984 (1975). Thus, inequality in bargaining power alone will not render an arbitration agreement unconscionable. Gilmer v. Interstate/Johnson Corp., 500 U.S. 20, 33, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991).
If an agreement is found unconscionable, Hawaii law grants the courts discretion in applying remedies. See Haw.Rev.Stat. § 490:2-302(1) (2002) ("[T]he court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.").
The magistrate judge correctly found the loan agreement was not a contract of adhesion and was not procedurally unconscionable. A contract of adhesion is one in which a party uses its superior market power to force the other party into a one-sided contract on a "take it or leave it" basis. Brown, 921 P.2d at 167. Arbitration agreements are not usually considered contracts of adhesion, because while they may meet the procedural element of unconscionability, they generally do not meet the substantive element of unconscionability. Leong v. Kaiser Found. Hosp., 71 Haw. 240, 788 P.2d 164, 169 (1990). Arbitration agreements usually do not limit the obligations or liabilities of either party, but simply substitute one forum for another. Id.
A finding of procedural unconscionability revolves around a showing of two factors oppression and surprise. Ferguson v. Countrywide Credit Indus., Inc. 298 F.3d 778, 783 (9th Cir.2002). "`Oppression' arises from inequality of bargaining power which results in no real negotiation and an absence of meaningful choice. `Surprise' involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in the prolix printed form drafted by the party seeking to enforce the disputed terms." Id. (quoting Stirlen v. Supercuts, Inc., 51 Cal.App.4th 1519, 60 Cal.Rptr.2d 138, 145 (1997).
As Defendants note, Hawaii Intermediate Appellate Court found in a recent summary disposition order that as a matter of law, a mortgage was not a contract of adhesion. The court reasoned that, "[c]onsidering the overall process of contract formation in this case ... it is abundantly *1281 clear that the [plaintiffs] were not `forced to apply for [a mortgage loan] from [lender]' ... amidst the myriad of mortgage lenders we notice were available to them." Pascua v. U.S. Bank Nat'l Assen, No. 25596, 2004 WL 2181784 (Haw.App.2004). In other words, Plaintiffs were not subjected to "oppression" or a lack of all meaningful choice because they were negotiating in a market place with competing lenders.
The Pascua decision reflects a modern approach to consumer contracts. "Consumers always have the option to refuse the services or products connected to binding arbitration. The consumer is free to put down the pen without signing the form.... A consumer who contracts in such circumstances does so voluntarily." Ware, Consumer Arbitration as Exceptional Consumer Law, 29 McGeorge L.Rev. 195, 201 (1998).
Here, Plaintiffs also were not "oppressed" or left without any meaningful choice in the matter: they could have refused Defendants' terms and chosen to transact business with a different lender. Nor were the terms of the resulting contract "surprising." Plaintiffs admit they did not read the three-page contract before signing it. If they had, they would have found the arbitration clause was not "hidden in the prolix printed form." The clause appears directly above the signature line and is the only section of the contract that is printed in all capital letters. Because neither factor of oppression or surprise is present in Plaintiffs' transaction, the arbitration agreement is not procedurally unconscionable.
Nor is the agreement substantively unconscionable. Substantive unconscionability focuses on the terms of the resulting contract and will be found when, because of unfair and coercive bargaining, the contract includes unfair terms that are unreasonably harsh or that favor one of the parties more than should be reasonably expected, given the commercial context in which the contract was made. Comments to Haw.Rev.Stat. § 490:2-302 (2002). The Comments to Section 490:2-302 of the Hawaii Revised Statutes explain that the doctrine of unconscionability seeks to prevent oppression of weaker parties, not to disturb the allocation of risks because of superior bargaining power.
Plaintiffs disagree with the magistrate judge's finding that the arbitration agreement neither contains unfair terms nor unfairly favors Defendants. Plaintiffs contend the arbitration agreement's "loser pays" provision, which allows the prevailing party to collect attorneys' fees and costs, is an unfair term because it essentially re-writes the attorney fees provisions of the consumer protection statutes on which Plaintiffs' claims are based. Plaintiffs also argue the costs of arbitration prohibit them from fully vindicating their statutory claims, and therefore the agreement is unconscionable.
A "loser pays" provision does not render an arbitration agreement unenforceable. Thompson v. Irwin Home Equity Corp., 300 F.3d 88, 91-92 (1st Cir.2002). If, however, a provision within the arbitration agreement deprives a party of a statutory right, the agreement will be unenforceable. Graham Oil Co. v. ARCO Prods. Co., 43 F.3d 1244, 1247-48 (9th Cir.1994). Under the arbitration agreement here, the prevailing party is entitled to collect attorneys' fees and costs. Plaintiffs contend that because the arbitration agreement also allows either Plaintiffs or Defendants to recover attorneys' fees and costs, and the Hawaii consumer protection statutes allow only a successful plaintiff to recover fees and costs, the agreement conflicts with the legislative intent behind the consumer protection statutes.
The FAA requires rigorous enforcement of agreements to arbitrate. *1282 Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985). See also Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). Under the FAA, the party opposing arbitration carries the heavy burden of proving the provision in question inherently conflicts with the underlying purposes of a statute. Shearson/American Express v. McMahon, 482 U.S. 220, 226-227, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (reversed on other grounds).
Plaintiffs attempt to carry this burden by citing Broughton v. Cigna Healthplans, 21 Cal.4th 1066, 90 Cal.Rptr.2d 334, 988 P.2d 67 (1999). Broughton, however, does not hold that "loser pays" provisions inherently conflict with the underlying purposes of consumer protection statutes. Instead, Broughton, holds that injunctive relief claims brought under the Consumer Legal Remedies Act (CLRA), a California deceptive practices statute, are not arbitrable because (1) the relief sought is for the general public rather than the party bringing the action, and (2) the judicial forum has significant institutional advantages over the arbitral forum in enforcing injunctive relief.[3] 90 Cal.Rptr.2d 334, 988 P.2d at 78. Thus, Plaintiffs have failed to prove that the "loser pays" provision in their arbitration agreement undermines Congressional intent and, therefore, the agreement is not substantively unconscionable based on this provision.
Plaintiffs also argue the arbitration agreement is substantively unconscionable because it requires them to pay prohibitive costs to vindicate their statutory claims. Where a party seeks to invalidate an arbitration agreement because of potentially prohibitive costs, that party bears the burden of showing the likelihood of incurring such costs. Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 91-92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000).
Here, Plaintiffs' allegedly prohibitive costs are speculative. The agreement states the arbitration will be administered pursuant to the American Arbitration Association's (AAA) rules. Rule R-1 of those rules states:
The AAA applies the Supplementary Procedures for Consumer-Related Disputes to arbitration clauses in agreements between individual consumers and businesses where the business has a standardized, systematic application of arbitration clauses with customers and where the terms and conditions of the purchase of standardized, consumable goods or services are nonnegotiable or primarily non-negotiable in most or all of its terms, conditions, features, or choices.
See American Arbitration Association, Commercial Arbitration Rules & Mediation Procedures, Jul. 1, 2003, available at WL AAA Arb. Rules.
Thus, the Supplementary Procedures for Consumer-Related Disputes would apply to this dispute. According to these rules:
Administrative fees are based on the size of the claim and counterclaim in a dispute. They are based only on the actual damages and not on any additional damages, such as attorneys' fees or *1283 punitive damages. If the consumer's claim or counterclaim is greater than $10,000, but does not exceed $75,000, then the consumer is responsible for one-half the arbitrator's fees up to a maximum of $375. This deposit is used to pay the arbitrator. It is refunded if not used. If the consumer's claim or counterclaim exceeds $75,000, or if the consumer's claim or counterclaim is non-monetary, then the consumer must pay an Administrative Fee in accordance with the Commercial Fee Schedule. A portion of this fee is refundable pursuant to the Commercial Fee Schedule. The consumer must also deposit one-half of the arbitrator's compensation.
See American Arbitration Association, Commercial Arbitration Rules & Mediation Procedures, Jul. 1, 2003, available at WL DCMLARB APP F-22. The fee schedule has an initial filing fee of $1500 and a case service fee of $750. Ibid. In cases where an AAA administrative fee applies, parties are eligible for consideration for a waiver or deferral of the administration fee if their annual gross income falls below 200% of the federal poverty guidelines. See American Arbitration Association, Administrative Fee Waivers and Pro Bono Arbitrators Services (Jul. 1, 2003), available at http://www.adr.org. The guidelines state that for a single-member household, the applicant must earn less than $19,780. Id. For a two-member household, the member must make less than $26,780. Id. Plaintiffs' income is $24,816. Second Decl. of Walter L. Branco at ¶ 5, Mar. 2, 2004. Mr. Branco's declaration further states Plaintiff Elizabeth Branco is deceased, but provides no information regarding the size of Plaintiffs' household. Id. at ¶ 7. For instance, Plaintiffs say they obtained a loan from Defendants to help pay for their son's college expenses. Decl. of Walter L. Branco at ¶ 8, Feb. 9, 2004. The Court has no way of determining whether this son is a dependent or if Plaintiff Walter Branco has any other dependents. Thus, it is speculative whether Plaintiffs may apply for a waiver of fees.
Further, even if Plaintiffs do not qualify for a waiver of fees, they may still request pro bono arbitration services:
Even if no waiver or deferral of administrative fees has been granted or requested, a party may make a request for a pro bono or reduced rate arbitrator at the time of the filing of the case or at any time up to the point that an arbitrator is appointed. However, prior to appointment every effort is made to have the non-indigent party agree to pay the arbitrators fees. While we cannot guarantee the appointment of a pro bono or reduced rate arbitrator, we will make every effort to accommodate the request.
See American Arbitration Association, Administrative Fee Waivers and Pro Bono Arbitrators Services (Jul. 1, 2003), available at http://www.adr.org. Because the Court cannot determine whether Plaintiffs would receive arbitration fee waivers or pro bono services, the Court cannot determine whether Plaintiffs' costs in arbitrating their claims are prohibitive. Accordingly, Plaintiffs' alleged prohibitive costs are speculative. Notwithstanding the potential for prohibitive costs, Plaintiffs argument is moot because Defendants have offered to pay whatever fees necessary to find the arbitration agreement enforceable. See Def.'s 2d Supplemental Mem. in Supp. of Joinder in Def. Attorneys Equity National Corp.'s Mot. to Stay Proceedings and to Compel Arbitration, p. 13, filed Apr. 27, 2004. Thus, the arbitration agreement is not substantively unconscionable based on prohibitive costs.
To avoid any question of substantive unconscionability in the arbitration agreement, the magistrate judge allowed Defendants *1284 to agree to pay the arbitration costs that Plaintiffs argued were prohibitive. Yet, Plaintiffs object, arguing the Court should not re-write the arbitration clause to rescue the Defendants from an unconscionable arbitration agreement. First, as explained above, the arbitration agreement is not unconscionable. Second, Plaintiffs' argument contradicts the plain language of Section 490:2-302(1) of the Hawaii Revised Statutes.[4] Finally, the Ninth Circuit Court of Appeals has held that unconscionable clauses are severable. See Circuit City Stores v. Adams, 279 F.3d 889, 895 (9th Cir.2002) (in evaluating California Civil Code Section 1670.5(a), the California equivalent of Haw.Rev.Stat. § 490:2-302, the court stated, "[C]ourts have discretion to sever an unconscionable clause.").
Plaintiffs claim, however, that § 490:2-302(1) only applies to the sale of goods and therefore is inapplicable in this case. Again, Plaintiffs are wrong. Hawaii courts have used this statute as a guideline for non-UCC cases dealing with the issue of unconscionability. See e.g., Leong v. Kaiser Found. Hosp., 71 Haw. 240, 788 P.2d 164, 168 (1990). The statute can properly be used for the same purpose in this case.
In conclusion, the arbitration agreement is not unconscionable. Defendants used their market power to offer Plaintiffs a standard form contract that included an arbitration agreement. Plaintiffs could have refused Defendants' offer and used a different lender; however, Plaintiffs chose to accept the offer and the terms. The standard form terms were set out clearly and neither disadvantage Plaintiffs nor advantaged Defendants. Yet, to assure the agreement was not even questionably unconscionable, the magistrate judge allowed Defendants to pay the bulk of the arbitration costs. For all of these reasons, the Court AFFIRMS the magistrate judge's finding that the arbitration agreement was not unconscionable.
B. The contract is not void ab initio.
Plaintiffs object to the magistrate judge's finding that the statute of limitations bars their defense that the loan agreement itself is void ab initio. Plaintiffs initially raised the void contract argument as an affirmative claim in their First Amended Complaint. The Court dismissed that claim because it was barred by the statute of limitations. The Court stated:
The Court will not grant Plaintiffs leave to amend Count I of the First Amended Complaint; however, the Court clarifies that this determination is made without prejudice to raising this argument in other contexts or actions, including as a defense to judicial proceedings initiated by Defendants, should other courts permit Plaintiffs to make such arguments.
See Order Granting and Denying in Part Def.'s Wendover and Wells Fargo's Mot. for Partial Dismissal of the First Am. Compl. ¶ 4, filed Jul. 2, 2003.
The magistrate judge found that the Order of July 2 specifically precluded the void contract defense in the instant case. Plaintiffs contend that the magistrate judge's reading of the order is too literal. If the Court were to interpret the Order of July 2 as Plaintiffs suggest, however, the phrase "should other courts permit Plaintiffs to make such arguments" would have no meaning. Such an interpretation violates a basic canon of construction that *1285 interpretations rendering any part of the text superfluous should be avoided. Compare Cooper Industries, Inc. v. Aviall Services, Inc., ___ U.S. ___, ___, 125 S.Ct. 577, 584, 160 L.Ed.2d 548 (2004) ("[The Court] must, if possible, construe a statute to give every word some operative effect."); Boise Cascade Corp. v. United States E.P.A., 942 F.2d 1427, 1432 (9th Cir.1991) ("[The Court must] interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.").
Here, even if Plaintiffs' interpretation of the Order of July 2 is correct, their void contract defense still would be barred. Courts allow defenses that would be time-barred if raised as claims, so long as the party asserting the defense is not seeking affirmative recovery on an identical claim. City of St. Paul v. Evans, 344 F.3d 1029, 1035 (9th Cir.2003). "Thus, whether affirmative defenses are exempt from statutes of limitations largely hinges on a realistic assessment of the parties' litigation purposes." Id.
In City of St. Paul, the City filed a suit seeking declaratory judgment on the invalidity of a settlement agreement it had entered into eight years earlier with a Native American corporation. In particular, the City claimed the agreement violated a city ordinance and the Alaska Open Meetings Act. The corporation filed a counterclaim seeking to enforce the settlement. Id. at 1030.
The court held the six year statute of limitation barred the City from asserting its claims as affirmative defenses to the corporation's counterclaims because the City was the aggressor in the situation and "disturbed the equilibrium between the parties" by filing their suit challenging the settlement agreement. Id. at 1035. The court found that the corporation's claims were filed in response to the City's claims and not for affirmative relief. Id. The City's defenses to those claims were the exact same as their affirmative claims for relief. Id. ("[N]o matter what gloss the City puts on its defenses, they are simply time-barred claims masquerading as defenses and are likewise subject to the statute of limitations bar.").
Here, Plaintiffs' void contract defenses are the same as their affirmative claims for relief. Plaintiffs are the aggressors in this litigation and brought the suit trying to invalidate the contract. Their affirmative claim that the contract is void ab initio was barred by the statute of limitations. Plaintiffs cannot circumvent this bar by now raising the identical argument as a defense to Defendants' response to the suit Plaintiffs initiated.
After declaring Plaintiffs' defense was time-barred, the magistrate judge nevertheless addressed the merits of the defense in the interest of justice. Accordingly, this Court will also briefly address the merits and finds that even if Plaintiffs' defense was not time-barred, it would be moot. As Defendants point out, all of Plaintiffs' allegations regarding deceptive business practices involve Pacific Star Mortgage and its representative, Leroy Alip, who was Plaintiffs' mortgage broker. Section 454-1 of Hawaii Revised Statutes explains that mortgage brokers represent the borrower, not the lender. See Beneficial Hawaii, Inc. v. Kida, 96 Hawai'i 289, 30 P.3d 895, 914-915 (2001) ("[T]he legislature inserted the language `on behalf of the borrower' to `clarify' that the statute did not apply to `brokers' contracts with investors, including the suppliers of funds used to make the loan."). Plaintiffs have failed to show how their broker's deceptive practices should invalidate their loan agreement with Defendants; especially considering neither Pacific Star nor Alip is *1286 presently a named defendant in the suit. Accordingly, this Court AFFIRMS the magistrate judge's finding that Plaintiffs' void contract defense is both meritless and barred by the statute of limitations.
III. DEFENDANTS' REQUEST FOR CLARIFICATION
The Court acknowledges the facts set out here, in the findings and recommendations and in the order granting in part and denying in part the motion to dismiss are only the facts as alleged by the Plaintiffs in the complaint and have not been adjudicated as findings of facts.
The Court also acknowledges that on March 15, 2004 Defendants Wendover and Wells Fargo filed a reply memorandum in support of their joinder in Defendant Attorneys Equity's Motion to Arbitrate.
CONCLUSION
For the reasons stated above, the Court AFFIRMS the Magistrate Judge's Finding and Recommendation.
IT IS SO ORDERED.
NOTES
[1] Defendants include Amresco; Wells Forago Bank Minnesota, N.A., formerly known as Norwest Bank Minnesota, National Association, as trustee for Amresco Residential Securities Corporation Mortgage Loan Trust 1998-2, under the pooling and servicing agreement dated as of June 1, 1998 (Wells Fargo), Attorneys Equity National Corporation (Attorneys Equity), Wendover Financial Services (Wendover), and Doe Defendants.
[2] Originally, Defendant Attorneys Equity was represented by different counsel than its co-defendants. All Defendants are now represented by the same counsel.
[3] The Broughton court also held that CLRA damages claims are arbitrable. Id. at 79. ("[S]tatutory damages claims are fully arbitrable. Such an action is primarily for the benefit of a party to the arbitration, even if the action incidentally vindicates important public interests...We therefore interpret the CLRA as permitting arbitration of damages claims."). Therefore, because Plaintiffs are seeking damages under the Hawaii deceptive damages statutes, Broughton actually weakens Plaintiffs' case.
[4] "If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result." Haw.Rev.Stat. § 490:2-302(1) (emphasis added).
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933 F.2d 1019
Unpublished DispositionNOTICE: Tenth Circuit Rule 36.3 states that unpublished opinions and orders and judgments have no precedential value and shall not be cited except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel.Will David COLE, Plaintiff-Appellant and Cross-Appellee,v.HERMAN'S, a corporation, Defendant-Appellee,andE.I. Dupont de Nemours & Co., Defendant-Appellee and Cross-Appellant.
Nos. 90-4033, 90-4036.
United States Court of Appeals, Tenth Circuit.
May 22, 1991.
Before TACHA and SETH, Circuit Judges, and BRATTON, District Judge.*
ORDER AND JUDGMENT**
TACHA, Circuit Judge.
1
Plaintiff-appellant Will Cole appeals a grant of motion for directed verdict and a denial of motion for a new trial following a jury verdict in Cole's favor in a diversity action against defendant-appellant E.I. Dupont de Nemours & Co. (Dupont) for strict liability and defendant Herman's for negligence. Cole has settled his claim against Herman's. On appeal, Cole argues the district court erred by: (1) not allowing him to present the issue of punitive damages to the jury, (2) permitting the jury to rely on the simple negligence of a plaintiff as a defense against strict liability, and (3) deciding the jury's finding of misuse was not contrary to the great weight of the evidence presented at trial. Dupont accepts the jury verdict and the district court judgment. If we reverse the district court and rule as a matter of law on any fact issue, however, Dupont argues the plaintiff's claims are barred as a matter of law because the plaintiff and Herman's conduct constitutes an intervening cause of the injury. We exercise jurisdiction under 12 U.S.C. Sec. 1291 and affirm the district court. Because we do not rule as a matter of law on any fact issue, we dismiss Dupont's cross-appeal.
2
Cole contends he was entitled to have the issue of punitive damages submitted to the jury. In reviewing a district court ruling on a motion for a directed verdict, we apply the same standard the district court applies. Guilfoyle v. Missouri, K. & T. R.R., 812 F.2d 1290, 1292 (10th Cir.1987). We view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences for that party. See Transpower Constructor v. Grand River Dam Auth., 905 F.2d 1413, 1416 (10th Cir.1990). "If the defendant in a ... civil case moves for ... a directed verdict based on a lack of proof of a material fact, the [court] must ask ... not whether ... the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). We reverse a directed verdict for the defendant only if reasonable jurors could find the plaintiff is entitled to a verdict. See id.
3
Punitive damages in Utah are governed by statute. According to section 78-18-1 of the Utah Code,
4
punitive damages may be awarded only if compensatory or general damages are awarded and it is established by clear and convincing evidence that the acts or omissions of the tortfeasor are the result of willful and malicious or intentionally fraudulent conduct, or conduct that manifests a knowing and reckless indifference toward, and a disregard of, the rights of others.
5
Utah Code Ann. Sec. 78-18-1 (1990). Thus, we must determine from the record whether there is clear and convincing evidence of "willful and malicious conduct" or "conduct that manifests a knowing and reckless indifference."
6
Cole points to evidence in the record Dupont knew the smokeless powder could be misused, replaced the warning on the package with a more protective warning, and then failed to recall all product on the shelves with the allegedly inadequate warning. The record shows Cole purchased and used smokeless powder that Dupont had not recalled. Although Dupont's failure to recall the smokeless powder may be negligent, there is no evidence this conduct was "willful and malicious" or "manifests a knowing and reckless indifference" towards Cole. We hold the district court did not err in granting a directed verdict on the issue of punitive damages.
7
Cole also argues that simple negligence of a plaintiff is not a defense against strict liability in Utah. Our review of Utah law shows Utah courts have not precluded the possibility a plaintiff's negligence may operate as a partial defense against strict liability. See Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301, 1302 (Utah 1981) ("Defendants can still urge at least two affirmative defenses in a strict liability case: (1) misuse of the product by the user or consumer, and (2) unreasonable use of the product despite knowledge of the defect and awareness of the danger." (emphasis added)). Because Cole concedes misuse may be a partial defense for strict liability and the jury found by special verdict Cole misused the product, however, we need not reach the question whether Utah law also recognizes simple negligence as a defense.
8
Finally, Cole contends the jury's finding of misuse was contrary to the great weight of the evidence presented at trial. We review a district court's ruling on a judgment notwithstanding the verdict under the same standard as a directed verdict. Zimmerman v. First Fed. Sav. & Loan Ass'n, 848 F.2d 1047, 1051 (10th Cir.1988). "Under this standard, we may find error [in the denial of a judgment n.o.v.] only if the evidence points but one way and is susceptible to no reasonable inferences supporting the party for whom the jury has found." Id. The record indicates Cole purchased and used smokeless powder manufactured by Dupont in a gun that required black powder. Further, the record shows Cole used an amount of that powder almost double the amount of black powder he should have used. An expert witness testified that the accident would not have happened but for the excessive amount of powder Cole used. We cannot say the evidence regarding misuse only favors Cole and is susceptible to no reasonable inference supporting the special verdict for Dupont. We AFFIRM the district court and DISMISS the cross-appeal.
*
The Honorable Howard C. Bratton, Senior District Judge for the District of New Mexico, sitting by designation
**
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
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952 F.2d 10
Alvin LOVE, Petitioner, Appellant,v.Norman BUTLER, Respondent, Appellee.
No. 91-1230.
United States Court of Appeals,First Circuit.
Submitted July 15, 1991.Decided Dec. 19, 1991.
Alvin Love on brief pro se.
Scott Harshbarger, Atty. Gen., and Robert N. Sikellis, Asst. Atty. Gen., on brief for respondent, appellee.
Before TORRUELLA, SELYA and CYR, Circuit Judges.
PER CURIAM.
1
This is an appeal from the dismissal of a habeas corpus petition. In 1986, petitioner Alvin Love was convicted by a Massachusetts Superior Court jury of violating that state's "bail-jumping" statute. Mass.Gen.L. ch. 276, § 82A.1 He was sentenced to a year's imprisonment, to take effect from and after the sentence then being served. In November 1988, the Massachusetts Appeals Court affirmed his conviction, and the Supreme Judicial Court denied leave for further appellate review the following month. Petitioner filed the instant petition in April 1989, alleging, inter alia, that the bail-jumping provision was unconstitutionally vague, and that his trial counsel had provided ineffective assistance. The district court, adopting the recommendation of a magistrate-judge, summarily dismissed the petition under Rule 4 of the Rules Governing Section 2254 Cases--which requires dismissal "[i]f it plainly appears from the face of the petition and any exhibits attached thereto that the petitioner is not entitled to relief...." We agree that such a disposition is warranted, and therefore affirm.
I.
2
The following description of the factual and procedural background, none of which is in dispute, is drawn largely from the Appeals Court's decision. Commonwealth v. Love, 26 Mass.App.Ct. 541, 530 N.E.2d 176 (1988). Through the testimony of Robert McDade, an assistant clerk of the Superior Court, the Commonwealth established the following. Petitioner was indicted in 1985 on a charge of breaking and entering. On June 10, 1985, he was released from detention upon depositing $500 as surety and executing a standard recognizance form, which required him to appear at places and times that might be specified. The recognizance stated: "A defendant who fails without sufficient excuse to appear in court after release on bail or recognizance may be punished [stating the penalty]." Trial commenced on December 2, 1985, with petitioner in attendance. At the close of that day's proceedings, petitioner was informed that trial would continue the next day at 10:00 A.M. Petitioner failed to appear at that time. Neither defense counsel nor the prosecutor knew of his whereabouts. Petitioner was called to the bar, without response. A default issued and bail was ordered forfeited. Trial resumed the following day, with petitioner still absent, and a conviction followed.
3
The Commonwealth's second witness was Lieutenant Donald Whalen of the Wellesley police. He testified that, on January 30, 1986 (some two months after petitioner's disappearance), he interviewed petitioner at the Wellesley police station where the latter was being detained following a new arrest. The Commonwealth sought to inquire as to what petitioner had said during this interview, but the court (following an extensive voir dire of Lieutenant Whalen) ruled petitioner's statement inadmissible. The Commonwealth then rested. No motion for a required finding of not guilty, see Mass.R.Crim.P. 25(a), was filed by defense counsel.
4
Petitioner then took the stand to explain the reason for his disappearance. He stated that he had believed the trial was unfair to him, for two reasons: his attorney had declined to offer a defense of "diminished capacity," and there were witnesses whom the defense had not reached in time for trial. He further explained that, under pressure of this belief, he had decided to quit the trial in mid-stream and attempt to raise money to acquire better legal representation. He first travelled to Florida, then returned and lived at various addresses until his arrest on January 30, 1986. Following petitioner's testimony, the defense rested, again without moving for a required finding of not guilty.
5
The trial judge instructed the jury that the Commonwealth had the burden to prove, beyond a reasonable doubt, the following: (1) that petitioner was released by court order on bail, (2) that it was a condition of his release that he appear at places and times as specified, (3) that he failed to appear at a place and time specified, and (4) that his failure to appear was without sufficient excuse. As to this last element, the judge offered no categorical definition; rather, he provided illustrative examples on either side of the line of "sufficient excuse."2 The judge read a standard definition of duress, and left it to the jury to decide whether petitioner's explanation, if believed, would be regarded by a reasonably prudent person as a sufficient excuse for failure to appear.
6
Following the jury's verdict, petitioner (with new counsel) moved for postconviction relief. He there advanced the claims which are at the center of the instant petition (and which are described more fully below): unconstitutional vagueness and ineffective assistance of counsel. Although the first claim, not having been raised at trial, would ordinarily have been deemed waived, the trial court decided in its discretion to address it on the merits. The court denied both claims, and the Appeals Court upheld both the verdict and the denial of the motion for postconviction relief.
II.
7
We shall address in turn each of the several claims contained in the instant petition. Petitioner's first two claims are interrelated. He argues that the bail-jumping statute is unconstitutionally vague on its face, in that it fails to define the term "sufficient excuse." And he contends that trial counsel provided ineffective assistance by failing to advance this claim by way of a pretrial motion to dismiss. These claims are presented in a curious posture. Petitioner does not allege that the statute is unconstitutionally vague as applied to him; he effectively concedes that it is not, and instead insists only that it is facially vague. And he does not dispute that the trial court and Appeals Court both addressed the vagueness issue on the merits. Instead, he complains that, due to counsel's ineffectiveness, each court conducted only an "as applied" analysis. Had counsel moved for dismissal prior to trial, the vagueness analysis necessarily would have been restricted to a facial inquiry--which, in petitioner's view, would have been resolved in his favor.
8
This line of reasoning falters on several grounds. First, a close reading of the trial court's post-trial memorandum indicates that it did, in fact, consider the constitutionality of the statute on its face. Rather than relying on petitioner's conduct, it upheld the statute on the basis of its language, the jury instructions, and caselaw defining the analogous circumstances in which a surety can be excused from liability for a defendant's default. The Appeals Court, in turn, addressed petitioner's facial challenge. Given these factors, any ineffectiveness arising from trial counsel's failure to advance such a challenge was obviously without prejudice. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) (to make out claim of ineffective assistance, defendant must show, inter alia, "that the deficient performance prejudiced the defense").
9
More important, both of these arguments fail because, as the Appeals Court properly observed, a facial challenge was inappropriate under the circumstances. It is well-established that "[v]agueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis." Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1857-58, 100 L.Ed.2d 372 (1988); accord, e.g., United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319-20, 46 L.Ed.2d 228 (1975); United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975); United States v. Angiulo, 897 F.2d 1169, 1179 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990); United States v. Barnes, 890 F.2d 545, 552 (1st Cir.1989), cert. denied, 494 U.S. 1019, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990). Petitioner suggests that, even when First Amendment rights are not implicated, facial challenges are also appropriate where an enactment is alleged to be "impermissibly vague in all of its applications," Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191-92, 71 L.Ed.2d 362 (1982), in the sense that "no standard of conduct is specified at all," Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971). Yet it is clear that such an allegation must first be considered in light of the facts of the case--i.e., on an as-applied basis. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law." Flipside, 455 U.S. at 495, 102 S.Ct. at 1191-92 (footnote omitted); accord Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561-62, 41 L.Ed.2d 439 (1974) ("One to whose conduct a statute clearly applies may not successfully challenge it for vagueness."); United States v. Doremus, 888 F.2d 630, 634 (9th Cir.1989), cert. denied, Y--- U.S. ----, 111 S.Ct. 751, 112 L.Ed.2d 772 (1991). Indeed, the Court in Flipside rejected a similar contention by noting: "Flipside's facial challenge fails because ... the ordinance is sufficiently clear as applied to Flipside." 455 U.S. at 500, 102 S.Ct. at 1194.
10
Petitioner's argument fails here for the same reason. The Appeals Court, after a careful analysis, held that the statute was not unconstitutionally vague as applied to petitioner. As petitioner has not challenged this ruling in the instant proceedings, we need not engage in any extended discussion thereof. It suffices to note the following. "[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). The Appeals Court here stated:
11
As the judge instructed, the expression "without sufficient excuse" conveys the meaning of deliberate conduct contrary to that which was required--this in distinction from conduct which the actor did not will, or was unable to control. Thus the statute resembles, if, indeed, it is not equivalent to, a common kind of bail-jumping statute that speaks of "willful" failure to appear as required.
12
26 Mass.App.Ct. at 545, 530 N.E.2d 176 (footnote omitted). The court observed that the requirement of scienter implicit in the statute had the tendency to clarify its scope. Id. at 546 n. 11, 530 N.E.2d 176; see, e.g., Flipside, 455 U.S. at 499, 102 S.Ct. at 1193 ("a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed"). And the court held that petitioner's proffered excuse--fear of an unfair trial--constituted a plainly inadequate justification for jumping bail. 26 Mass.App.Ct. at 549, 530 N.E.2d 176. Under these circumstances, we think it clear that one who decamps in the middle of a trial without notifying his counsel, who flees to another part of the country, and who resurfaces only when arrested for a new offense, "is a person who should know that [the statute's] language applies to him." United States v. Buckalew, 859 F.2d 1052, 1054 (1st Cir.1988); see also United States v. Cintolo, 818 F.2d 980, 997 (1st Cir.) ("On the record before us, there is no doubt that appellant in fact knew--or was chargeable with knowledge--that his conduct fell within the statute's proscriptions."), cert. denied, 484 U.S. 913, 108 S.Ct. 259, 98 L.Ed.2d 216 (1987).
III.
13
Petitioner's remaining claims can be more summarily addressed. He contends that his trial attorney was ineffective in failing to move for a required finding of not guilty at the close of the Commonwealth's case. Such a motion would have been successful, he insists, because the Commonwealth had offered no evidence that his failure to appear was without sufficient excuse--a necessary element of the offense. This assertion is highly doubtful,3 and is in any event beside the point. The Appeals Court, analogizing the sufficient-excuse element to the justifications of duress and necessity, held that petitioner had "the burden of producing some evidence of a 'sufficient excuse' before the Commonwealth would become obligated to shoulder the burden of negating that excuse by proof beyond a reasonable doubt." 26 Mass.App.Ct. at 548, 530 N.E.2d 176. Accordingly, "the Commonwealth was not required to establish in its case-in-chief that the defendant acted without sufficient excuse." Id. The court explicitly refrained from considering the constitutionality of such a shift in the burden of persuasion, id. at 548 n. 17, 530 N.E.2d 176, and petitioner has not advanced any such challenge here. As any motion for a required finding of not guilty would thus have been unavailing, counsel was not ineffective in failing to file same.
14
Petitioner next challenges several aspects of the Appeals Court's decision. Although it is not clear that these claims have been exhausted, we need not address the matter inasmuch as each is patently without merit. See, e.g., Granberry v. Greer, 481 U.S. 129, 135 n. 7, 107 S.Ct. 1671, 1675 n. 7, 95 L.Ed.2d 119 (1987) ("it is appropriate for the court of appeals to dispose of nonmeritorious petitions without reaching the nonexhaustion issue"); Palmariello v. Superintendent of MCI Norfolk, 873 F.2d 491, 493 n. 1 (1st Cir.) (same), cert. denied, 493 U.S. 865, 110 S.Ct. 185, 107 L.Ed.2d 140 (1989). Only one of these claims, in fact, is worthy of discussion: that the court improperly relied on excluded testimony in the course of its opinion.4 While he has not identified any specific testimony in this regard, we infer that he is complaining of the Appeals Court's having mentioned (1) that he adopted an assumed name while in Florida, and (2) that his arrest on January 30, 1986 was for a fresh breaking and entering committed that day. (The Commonwealth's state appellate brief indicates that these facts were provided by Lieutenant Whalen during his voir dire testimony; they apparently were never revealed to the jury.) The suggestion that the Appeals Court "relied on" these facts in reaching its decision is frivolous. The court mentioned them only once, during its factual description. And each reference appeared, not in the body of the decision, but in a footnote. See id. 26 Mass.App.Ct. at 542 n. 2, 543 n. 4, 530 N.E.2d 176. This plainly indicates that the court was aware which facts were before the jury.
15
Finally, petitioner argues that the district court erred in summarily disposing of his petition under Rule 4, without examining the trial transcript or requiring the Commonwealth to file an answer. Yet as the foregoing discussion makes clear, each of petitioner's arguments was readily susceptible to resolution without resort to the transcript. For this reason, the instant case differs from Moran v. Vose, 816 F.2d 35 (1st Cir.1987) (per curiam), on which petitioner relies. Moreover, unlike in Moran, dismissal here was not ordered "solely on the basis of the petition," id. at 36; accompanying the petition were the briefs of both parties to the Appeals Court, that court's decision, petitioner's application to the SJC for further appellate review, and the grand jury minutes. On a related matter, it is admittedly "somewhat anomalous," id., at least on the surface, that a court would summarily dismiss a petition under Rule 4 and then proceed to grant a certificate of probable cause. Compare Dory v. Commissioner of Correction, 865 F.2d 44, 46 (2d Cir.1989) (per curiam) ("intrinsically contradictory") with Johnson v. Gramley, 929 F.2d 350, 351 (7th Cir.1991) ("The judge might think a suit frivolous, yet not be sure we would agree. After all, it is not unknown for an appellate court to disagree with a trial court's determination of frivolousness...."). Yet contrary to petitioner's suggestion, whatever inconsistency may exist in this regard provides no basis for reversal. See, e.g., Mahoney v. Vondergritt, 938 F.2d 1490, 1494 n. 7 (1st Cir.1991) (while summary dismissal followed by grant of CPC was "somewhat inconsistent," the "decision to invoke Rule 4 was not erroneous").
16
Affirmed.
1
This statute provides: "A person who is released by court order or other lawful authority on bail or recognizance on condition that he will appear personally at a specified time and place and who fails without sufficient excuse to so appear shall be punished...."
2
Cited as examples of a sufficient excuse were serious illness, accident, and confinement as by kidnapping. Cited as excuses that would not be "sufficient" were simple refusal to face responsibility, intent to escape punishment for wrongdoing, and intent to frustrate justice
3
As mentioned, the Commonwealth established that petitioner had absconded in the middle of trial without word to anyone and had only resurfaced following his arrest in Wellesley. This evidence, together with all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, would seem adequate to avoid a required finding of not guilty
4
Petitioner's other contentions in this regard are that the court erred in analyzing his vagueness challenge on an as-applied basis, and that it failed to address the second of his ineffective assistance claims. Our earlier discussion disposes of the former claim; the latter is simply mistaken
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I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 15:26:34 2017.02.13
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2017-NMSC-006
Filing Date: December 1, 2016
Docket No. S-1-SC-35249
WILLIAM E. KIPNIS AND MARCI KIPNIS,
Plaintiffs-Respondents,
v.
MICHAEL JUSBASCHE AND REBECCA
MARK-JUSBASCHE,
Defendants-Petitioners.
ORIGINAL PROCEEDING ON CERTIORARI
Sarah C. Backus, District Judge
The Simons Firm, L.L.P.
Thomas A. Simons, IV
Daniel H. Friedman
Santa Fe, NM
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Edward R. Ricco
Jocelyn C. Drennan
Albuquerque, NM
for Petitioners
John B. Pound, L.L.C.
John Bennett Pound
Santa Fe, NM
for Respondents
OPINION
DANIELS, Chief Justice.
1
{1} Rule 11-410 NMRA of the New Mexico Rules of Evidence provides that evidence
of a nolo contendere plea made in settlement of a criminal proceeding is not admissible in
a civil proceeding against the defendant who made the plea. See Rule 11-410(A)(2). Like the
federal counterpart rule from which this rule was taken, the rule is meant to promote the
efficient disposition of criminal cases because collateral use of pleas, as admissions of party-
opponents under Rule 11-801 NMRA or as other evidentiary implications of guilt, would
discourage resolution of criminal proceedings. The only exceptions provided by Rule 11-410
are where “another statement made during the same plea or plea discussions has been
introduced, if in fairness both statements ought to be considered together” and “in a criminal
proceeding for perjury or false statement.” Rule 11-410(B).
{2} In this case, we consider whether evidence of a nolo plea is admissible in a civil case
for misrepresentation where the plaintiffs sought to introduce a nineteen-year-old nolo plea
of one defendant to support an argument that the defendant fraudulently failed to disclose
his nolo plea during the formation of a joint business venture. We hold that evidence of the
nolo plea is inadmissible under both the express terms and the underlying purpose of Rule
11-410(A)(2), and we affirm the district court’s grant of summary judgment on that basis.
We reverse the contrary determination of the Court of Appeals.
I. BACKGROUND
{3} In 2003, Defendants Michael Jusbasche and Rebecca Mark-Jusbasche formed a
limited liability corporation (LLC) with Plaintiffs William and Marci Kipnis for the purpose
of replacing the Hotel Edelweiss at the Taos Ski Valley with a modern condominium
complex. As their part of the initial capital contribution, Plaintiffs deeded the hotel property
and transferred the hotel liquor license to the LLC. Defendants contributed an initial capital
infusion of $351,000, made loans of several million dollars to the LLC, and retained a fifty-
one percent controlling interest. Although it was initially anticipated that the project would
generate a three- to four-million-dollar profit, it became clear after a number of setbacks that
the venture would not yield a profit, and Defendants, “having a majority share of the voting
powers,” dissolved the LLC in 2010. Simultaneously, the LLC under Defendants’ control
transferred several unsold residential units and two commercial units from the condominium
development to Defendants for partial loan repayment at dissolution. The lawfulness of those
repayment transfers is not before us in this proceeding.
{4} Plaintiffs filed suit for damages against Defendants, alleging fraud, constructive
fraud, intentional misrepresentation, and conversion, along with other claims no longer at
issue. The thrust of these claims arises from a conversation Plaintiffs claim they had with
Defendants prior to forming the LLC. Plaintiffs allege that in 2003 William Kipnis asked
Defendants “if there was anything in their personal histories he should know about before
going into a business relationship with them,” and Defendants answered negatively. For
purposes of summary judgment, Defendants conceded that the court could assume the
correctness of Plaintiffs’ version of that discussion.
2
{5} In their summary judgment materials, Plaintiffs offered evidence that in 1984
Michael Jusbasche pleaded nolo contendere in a Texas court to theft of trade secrets for
purportedly stealing a seismic prospect map from his former employer. Michael Jusbasche
was placed in a Texas deferred adjudication program, required to pay a fine, and ordered to
serve a five-year probationary period. Because he complied with the terms of the deferred
adjudication, he was never convicted of any criminal offense. See State v. Burk, 1984-
NMCA-043, ¶¶ 6-7, 101 N.M. 263, 680 P.2d 980 (recognizing that under Texas statute, a
deferred adjudication is not deemed a conviction); cf. State v. Harris, 2013-NMCA-031, ¶
6, 297 P.3d 374 (clarifying that successful completion of a conditional discharge pursuant
to NMSA 1978, Section 31-20-13(A) (1994), New Mexico’s deferred adjudication
procedure, similarly does not result in a conviction). Plaintiffs have claimed throughout the
litigation that Defendants committed fraud by failing to disclose Michael Jusbasche’s plea
of nolo contendere to the theft of trade secrets charge, alleging that had they known of it they
would never have agreed to go into business with Defendants.
{6} Defendants filed a motion for summary judgment arguing in relevant part, as a matter
of law, that Rule 11-410(A)(2) categorically prohibited the admission of evidence of the nolo
plea and surrounding circumstances. In response, Plaintiffs contended that whether
Defendants had a duty to disclose the plea was a question of fact for a jury and that Rule 11-
410 prohibits the admission of evidence of a nolo plea only when offered as an admission
or proof of guilt but not for other purposes. Plaintiffs claimed that they did not seek
admission of the plea to prove Michael Jusbasche committed the crime charged. Rather, they
claimed that the plea was relevant “because knowledge of the plea itself, had [Plaintiffs]
possessed it, would have prevented them from going into business with [Defendants]” and
that the question of whether Michael Jusbasche was actually guilty played no role in the suit.
{7} The district court ultimately granted summary judgment to Defendants, concluding
“that Rule 11-410 precludes introduction of evidence concerning . . . Michael Jusbasche’s
plea of nolo contendere . . . as a matter of law,” thereby “leav[ing] Plaintiffs unable to prove
a necessary element of their case.” Plaintiffs appealed this decision to the Court of Appeals,
stating in their docketing statement that “there was one issue in th[e] appeal” and that it was
“purely legal in nature”:
Where the plaintiff in a civil suit seeks to prove that he was fraudulently
deceived into entering into a business relationship by the defendant, and the
deception was in the form of failure to respond honestly to a question which
would reasonably elicit disclosure of a plea of no contest to a criminal charge
of dishonesty in business, does Rule 11-410 bar the evidence of the plea?
{8} The Court of Appeals reversed the district court’s grant of summary judgment,
holding that Rule 11-410 “does not prohibit admission of the plea of nolo contendere and
related judgment when they are not offered as proof of guilt.” Kipnis v. Jusbasche, 2015-
NMCA-071, ¶ 1, 352 P.3d 687. The court agreed with Plaintiffs’ theory that the Texas nolo
plea was admissible “not as evidence of guilt but as evidence of what Defendants failed to
3
tell” Plaintiffs. Id. ¶ 27.
{9} We granted Defendants’ Petition for a Writ of Certiorari to consider the proper
interpretation and application of Rule 11-410 and its underlying policies.
II. DISCUSSION
{10} We review de novo a district court’s order granting or denying summary judgment.
See Potter v. Pierce, 2015-NMSC-002, ¶ 8, 342 P.3d 54. In doing so, this case requires us
to interpret a provision of the New Mexico Rules of Evidence, a question of law we also
review de novo. Allen v. LeMaster, 2012-NMSC-001, ¶ 11, 267 P.3d 806. “When construing
our procedural rules, we use the same rules of construction applicable to the interpretation
of statutes.” Id.
{11} We begin by “examin[ing] the plain language of the [rule] as well as the context in
which it was promulgated, including the history of the [rule] and the object and
purpose . . . .” Moses v. Skandera, 2015-NMSC-036, ¶ 15, 367 P.3d 838 (internal quotation
marks and citation omitted). To assist in that process, New Mexico courts have concluded
that federal interpretations of the Federal Rules of Evidence are instructive when interpreting
identical provisions in our rules of evidence. See State v. Torres, 1998-NMSC-052, ¶ 13, 126
N.M. 477, 971 P.2d 1267 (relying on federal case law interpreting Fed. R. Evid. 804(b)(3)
in analyzing the analogous New Mexico rule), overruled on other grounds by State v.
Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699; see also State v. Trujillo,
1980-NMSC-004, ¶ 13, 93 N.M. 724, 605 P.2d 232 (recognizing that because New Mexico
Rule 11-410 “was adopted verbatim from the federal version,” the federal legislative history
was “illuminating” to an analysis of the New Mexico rule).
A. The Language of Rule 11-410(A)(2) Plainly Prohibits Admissibility of a Nolo
Plea Against the Pleader in Subsequent Proceedings
{12} Defendants urge that the Court of Appeals erred in holding evidence of Michael
Jusbasche’s nolo plea admissible under New Mexico Rule 11-410(A)(2), which provides that
“[i]n a civil, criminal, or children’s court case, evidence of [a nolo plea] is not admissible
against the defendant who made the plea or participated in the plea discussions.” See also
Rule 5-304(F) NMRA (“Evidence of . . . a plea of no contest . . . is not admissible in any
civil or criminal proceeding against the person who made the plea.”). While the rule provides
for two limited exceptions pertaining to admissibility of statements made in connections with
pleas, neither exception is applicable here. See Rule 11-410(B).
{13} This Court first interpreted Rule 11-410 in State v. Trujillo and held that Rule 11-410
barred admissibility of an incriminating statement made in connection with a plea
negotiation to impeach the pleader in a subsequent criminal proceeding. 1980-NMSC-004,
¶¶ 3, 6 (concluding generally that the rule “excludes statements made in connection with
plea negotiations in any subsequent proceeding” (emphasis added)). The Court reasoned that
4
“the plain import of the language of Rule 410 [referring to the original promulgation of Rule
11-410] is to prohibit the admissibility of statements made during plea negotiations in any
proceeding,” noting that other rules of evidentiary exclusion that surround Rule 11-410,
including Rules 11-407, 11-408, 11-409, and 11-411 NMRA, “contain express exceptions
to the general rule of inadmissibility,” with Rule 11-410 “stand[ing] out among these rules
because it contains no language which limits its exclusionary effect” within its broad domain
of any civil or criminal proceeding. Id. ¶ 17 (referring to the original promulgations of the
New Mexico Rules of Evidence); see, e.g., Rule 11-411 NMRA (prohibiting evidence that
a person was or was not insured against liability to prove the person acted negligently, but
allowing its admission “for another purpose”); see also Glen Weissenberger & James J.
Duane, Weissenberger’s Federal Evidence § 410.3 at 214 (7th ed. 2011) (“Rule 410[(a)](2)
contains no hint that its categorical rule of exclusion has anything to do with the purpose for
which the evidence is offered.”).
{14} The Trujillo Court also grounded its decision in the policy underlying Rule 11-410,
recognizing that plea negotiations “are an essential part of our criminal justice system” and
that “Rule 410 embodies the public interest in encouraging [plea] negotiations,” thereby
facilitating the speedy disposition of cases and mitigating burdens on an overloaded criminal
justice system. Trujillo, 1980-NMSC-004, ¶ 18; see also 2 Jack B. Weinstein & Margaret
A. Berger, Weinstein’s Federal Evidence, § 410.03[2] at 410-9 (Mark S. Brodin et al. eds.,
2d ed. 2015) (“Rule 410’s exclusion of offers to plead guilty (or nolo contendere) represents
a substantive policy to promote the disposition of criminal cases by compromise.”).
Considering this policy objective, the Court concluded that Rule 11-410 “clos[ed] the door
on the admissibility of [statements surrounding plea negotiations] as evidence at trial for
either substantive or impeachment purposes” and that “a weighing of conflicting policies
demonstrates that the balance is tipped in favor of interpreting Rule 410 as the cloak of
privilege around plea negotiation discussions.” Trujillo, 1980-NMSC-004, ¶¶ 19, 21.
{15} The specific policy behind recognition of the nolo plea further supports excluding
the plea itself as substantive evidence in subsequent litigation. In New Mexico, a nolo plea
has the same effect as a guilty plea for the purpose of entering a judgment and sentence in
the case in which the plea is entered, but unlike a guilty plea it is not an express or implied
admission of factual guilt. State v. Baca, 1984-NMCA-056, ¶ 5, 101 N.M. 415, 683 P.2d 970
(holding that a revocation of probation could not be based on a conviction resulting from a
nolo plea); see also NMSA 1978, § 30-1-11 (1963) (providing that a person can be convicted
of and sentenced for a crime upon “a plea of nolo contendere, accepted and recorded in open
court”). Literally meaning “I do not wish to contend,” Black’s Law Dictionary 1210 (10th
ed. 2014) (defining nolo contendere), a nolo plea “has been viewed not as an express
admission of guilt but as a consent by the defendant that he may be punished as if he were
guilty.” North Carolina v. Alford, 400 U.S. 25, 35-36 & n.8 (1970).
{16} Because a nolo plea, unlike a guilty plea, has no probative value and is intended to
encourage plea negotiations by avoiding collateral evidentiary consequences resulting from
guilty pleas, Rule 11-410 specifically prohibits its evidentiary use in any further proceedings.
5
See Weissenberger & Duane, supra, § 410.3 at 213 (“[T]he nolo contendere plea is
‘inconclusive’ and has less probative value than a plea of guilty as evidence of the guilt of
the one who entered the plea.” (footnote omitted) (citation omitted)). The advantage of the
plea “is to avoid potential future repercussions which would be caused by the admission of
liability, particularly the repercussions in potential future civil litigation.” Lichon v. Am.
Universal Ins. Co., 459 N.W. 2d 288, 293 (Mich. 1990). “Without a guarantee that the plea
would not be used against them, the nolo contendere plea would be of no value to the
accused, and would accordingly lose any value to the system of justice in the promotion of
plea bargaining.” Weissenberger & Duane, supra, § 410.3 at 213.
B. Narrow, Judicially Created Exceptions to Rule 11-410 Are Inapplicable
{17} The Court of Appeals in this case considered the Trujillo Court’s construction of
Rule 11-410 and acknowledged its broad exclusionary language but “decline[d] to read into
it a blanket prohibition” under the specific facts of this case, stating that “‘it is universally
agreed that this is one of those rare rules that can’t mean what it says, for it would lead to
absurd results if read too literally.’” Kipnis, 2015-NMCA-071, ¶ 18 (footnote omitted)
(internal quotation marks omitted) (quoting Weissenberger & Duane, supra, § 410.3 at 214).
The Court of Appeals opined that the Trujillo Court’s policy considerations would not be
“unduly hindered by” evidentiary admission of Michael Jusbasche’s nolo plea in the context
of this litigation. Id.
{18} The Trujillo Court did not identify any pertinent federal or state cases, observing that
similar evidentiary provisions in other jurisdictions were like the New Mexico rule: “of
recent vintage and . . . not yet . . . under the judicial microscope.” Trujillo, 1980-NMSC-004,
¶¶ 11-12. In the thirty-six years since Trujillo, many of the state and federal jurisdictions that
recognize the nolo plea have had the opportunity to construe similar evidentiary provisions,
resulting in case law that considers admitting evidence of a conviction predicated on a nolo
plea in certain limited contexts “[d]espite Rule 410’s apparent clear command.” Sharif v.
Picone, 740 F.3d 263, 268 (3d Cir. 2014).
{19} While there is no universal agreement on the overall scope of judicial exceptions to
Rule 410, see Weissenberger & Duane, supra, § 410.3 at 212, all jurisdictions generally
agree that evidence of both nolo pleas and convictions based on the pleas should be excluded
“when offered as substantive evidence of the facts underlying the crime” or as an admission
of guilt because of the policies underlying the use of the plea. See Weinstein et al., supra,
§ 410.06[3] at 410-14 & n.5 (listing cases where a judgment based on the nolo plea was
excluded because it was being offered as an admission of guilt for the underlying crime
charged). We have considered the authorities Plaintiffs cite to support their contention that
Michael Jusbasche’s nolo plea should be admissible in this case, and we conclude that they
are not supportive.
{20} In Olsen v. Correiro, for example, a civil rights plaintiff challenged a federal district
court’s decision to admit evidence of his prior conviction and sentence resulting from a nolo
6
plea. See 189 F.3d 52, 55 (1st Cir. 1999). The plaintiff was initially convicted of first degree
murder and sentenced to life imprisonment. Id. Five years later, the conviction was
overturned. Id. Rather than face another trial, the plaintiff pleaded nolo contendere to a lesser
charge of manslaughter, was convicted, and was sentenced to time served. Id. He brought
a civil rights action seeking damages for the period of his “improper incarceration.” Id.
{21} In affirming the district court’s evidentiary ruling, the First Circuit reasoned that
evidence of the conviction and sentence was not offered “to prove that [the plaintiff] actually
committed manslaughter, or to suggest that he was actually guilty of a criminal act . . . [but]
was primarily offered to counter [the plaintiff’s] claim for incarceration-based damages by
showing that he was incarcerated for something other than the murder conviction.” Id. at 61.
The court suggested that had the government offered the conviction and sentence for the
purpose of demonstrating the pleader’s guilt for the crime pleaded to, using the plea “in
effect . . . as an admission,” the purposes of Rule 410 would have been frustrated. Id. at 60.
{22} United States v. Adedoyin, 369 F.3d 337 (3d Cir. 2004), which Plaintiffs also cite,
is equally instructive. In that case, a foreign national was ordered deported from the United
States as a result of his felony conviction based on a nolo plea. See id. at 339. Several years
later, he reentered the country using another name, falsely denying in his visa application
that he had ever been convicted of a felony. See id. In a prosecution for that false denial, the
Third Circuit affirmed the trial court’s admission of a certified copy of defendant’s
conviction based on the nolo plea because it was not admitted for the purpose of establishing
that the defendant committed the underlying crime charged but rather to show only that the
denial in his visa application of any felony convictions was false. See id. at 339, 344. In
reaching its conclusion, the court acknowledged the “clear distinction between pleas of nolo
contendere and convictions entered on the basis of such pleas,” id. at 343, and determined
that the nolo plea and resulting conviction were inadmissible for proving that the defendant
was guilty of the crime in question but that “convictions based on pleas of nolo contendere
are admissible to prove the fact of conviction” where the fact of a prior conviction may have
other evidentiary value, id. at 344-45.
{23} The New Mexico Court of Appeals has similarly held that evidence of a conviction
resulting from a nolo plea accepted and recorded in open court is admissible to prove that
a defendant has a prior conviction for purposes of sentencing enhancement under the
habitual offender statute. State v. Marquez, 1986-NMCA-119, ¶¶ 2, 7, 11, 105 N.M. 269,
731 P.2d 965. Relying on Baca, 1984-NMCA-056, the Marquez court distinguished between
admission of a nolo plea itself and admission of a conviction based on the plea, not to
establish an inference of guilt but to show the fact of conviction where that status is relevant.
Id. ¶ 9. Baca had held that a nolo plea cannot “be used as the sole basis to revoke probation,”
reasoning that to hold otherwise would undermine “the policy of this [s]tate to promote plea
bargaining.” See 1984-NMCA-056, ¶¶ 1, 9. The Marquez Court suggested that if the state
in Baca had sought to introduce the conviction based on the plea rather than introducing the
plea itself, the Baca Court might have reached a different result. See Marquez, 1986-NMCA-
119, ¶ 9; see, e.g., Town of Groton v. United Steelworkers of Am., 757 A.2d 501, 509-11
7
(Conn. 2000) (holding that a public employer could discharge an employee as a result of a
conviction for theft from the employer even though the conviction followed from a nolo
plea).
{24} While these authorities certainly support the recognition that a rigid interpretation
of the exclusionary stance of Rule 11-410 is inappropriate, they do not support the position
Plaintiffs take.
{25} Each of these cases involved a conviction based on a nolo plea rather than a nolo plea
in itself. Whether we might recognize a generalized distinction between inadmissibility of
the nolo plea and admissibility of the conviction predicated on the plea is not before us in
this case. See, e.g., Weissenberger & Duane, supra, § 410.3 at 215 (suggesting that making
a distinction between admission of a nolo plea and admission of a conviction resulting
therefrom based on the rule’s literal prohibition against admission of a “nolo contendere
plea” without mentioning a “judgment of conviction based on that plea” would “reduce[] the
rule to a meaningless nullity” because “Rule 410(a)(2) could be easily and thoroughly
circumvented in every case” by revealing the conviction without indicating it was based on
a plea); U.S. v. Nguyen, 465 F.3d 1128, 1131 (9th Cir. 2006) (“Reading [Rule 410] to
preclude admission of a nolo contendere plea but to permit admission of conviction based
on that plea produces an illogical result.” (italics omitted)).
{26} But we need not address the merits of the competing views on that issue because
there was never a conviction that resulted from the nolo plea in this case. Plaintiffs seek only
to admit evidence of Michael Jusbasche’s nolo plea itself rather than a resulting conviction.
Without exception, the plain language of Rule 11-410(A)(2) proscribes admission of the nolo
plea itself as substantive evidence against the person who made the plea. Our own precedent
and that of the overwhelming majority of jurisdictions construing similar provisions support
this interpretation. See, e.g., Trujillo, 1980-NMSC-004, ¶ 17 (“Rule [11-]410[(A)(2)] . . .
contains no language which limits its exclusionary effect.”); Olsen, 189 F.3d at 59 (stating
that the relevant language of Rule 410 bars admission of the nolo plea itself); Myers v. Sec’y
of Health & Human Servs., 893 F.2d 840, 843 (6th Cir. 1990) (noting that Rule 410 and Fed.
R. Crim. P. 11(e) prohibit the use of a nolo plea but not a conviction pursuant to such plea).
{27} Even those jurisdictions permitting the introduction of evidence of a conviction
predicated on a nolo plea instead of the plea itself often involve proceedings where the fact
of the conviction had independent legal significance and was not being offered to create any
inference of the pleader’s guilt. See Wayne R. LaFave et al., 5 Criminal Procedure § 21.4(a)
at 951-52 (4th ed. 2015) (“Judgment following entry of a nolo contendere plea is a
conviction, and may be admitted as such in other proceedings where the fact of conviction
has legal significance (e.g., to apply multiple offender penalty provisions . . . .)”).
C. The Purpose of Rule 11-410 Would Be Frustrated by Evidentiary Use of the
Nolo Plea in This Case
8
{28} Plaintiffs have acknowledged that Rule 11-410(A)(2) bars evidence of a nolo plea
if offered to prove the defendant is guilty of the underlying charge, recognizing the strong
public interest in encouraging plea bargains. But they argue that evidence of Michael
Jusbasche’s nolo plea would support their claim that Defendants withheld material facts,
maintaining that “knowledge of the plea itself . . . would have prevented [Plaintiffs] from
going into business with [Defendants].”
{29} Despite their arguments to the contrary, Plaintiffs undoubtedly seek to introduce
evidence of Michael Jusbasche’s nolo plea as an implicit admission that he may have
committed the offense to which he pleaded. His nolo plea would be relevant to Plaintiffs’
claims of fraud and misrepresentation only if it supported some inference of wrongdoing.
Plaintiffs belie their own argument by conceding that information pertaining to Michael
Jusbasche’s nolo plea would “[o]f course” create a question in the factfinder’s mind about
whether Michael Jusbasche actually stole the proprietary maps from his former employer.
They acknowledge, as the sole basis of their theory that Defendants materially
misrepresented their fitness to engage in the joint business venture, the fact that Michael
Jusbasche pleaded nolo contendere to a crime of dishonesty and did not defend himself
rather than any factual finding of dishonesty by an independent court or other investigative
source.
{30} The distinction Plaintiffs seek is a distinction without a principled difference. The
attempted use of the nolo plea in this context necessarily depends on asking the factfinder
to infer from the nolo plea alone that Michael Jusbasche may in fact have stolen property
from the former employer and that if Plaintiffs had known that he may have done so they
would not have gone into business with him. This use would not only violate the plain
language of Rule 11-410(A)(2) prohibiting evidentiary use of nolo pleas but would also
erode the policy objectives underlying the rule. Despite the best efforts of Plaintiffs to
maintain that they are not attempting to use the nolo plea as a basis for an inference of
wrongdoing, they inevitably are doing so. If Michael Jusbasche had committed no
wrongdoing in connection with his prior employment, there would have been no reason for
Plaintiffs to be concerned about his background. Yet they offered nothing of any evidentiary
value to imply any past wrongdoing other than the simple entry of the nolo plea itself.
{31} We conclude that Rule 11-410(A)(2) barred admission of Michael Jusbasche’s nolo
plea in the circumstances of this case, and we affirm the district court’s grant of summary
judgment in Defendants’ favor on this ground. We need not reach any other issues.
III. CONCLUSION
{32} We reverse the decision of the Court of Appeals and affirm the district court’s grant
of summary judgment.
{33} IT IS SO ORDERED.
9
____________________________________
CHARLES W. DANIELS, Chief Justice
WE CONCUR:
____________________________________
PETRA JIMENEZ MAES, Justice
____________________________________
EDWARD L. CHÁVEZ, Justice
____________________________________
BARBARA J. VIGIL, Justice
____________________________________
JUDITH K. NAKAMURA, Justice
10
| {
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} |
Case: 16-14726 Date Filed: 02/22/2018 Page: 1 of 8 RESTRICTED
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14726; 16-14972
Non-Argument Calendar
________________________
Agency No. A039-072-266
HOWARD PAUL LEVY,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 22, 2018)
ON PETITION FOR REHEARING
Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit
Judges.
PER CURIAM:
Case: 16-14726 Date Filed: 02/22/2018 Page: 2 of 8 RESTRICTED
The Court grants the petition for panel rehearing, withdraws the previous
opinion published in this case on September 19, 2017, and substitutes the
following opinion.
Howard Paul Levy petitions for review of the Board of Immigration
Appeals’ order affirming his removal from the United States. Levy is a native and
citizen of Jamaica. His father acknowledged paternity at birth but never married
Levy’s mother. Levy’s father became a lawful permanent resident of the United
States in 1978, obtained full custody of Levy in 1984, and became a naturalized
citizen in 1985. Levy became a lawful permanent resident of the United States in
1985 and resided with his father. Levy’s mother never resided nor acquired
immigration status in the United States and died in 2013.
After a jury convicted Levy for conspiracy to commit mail fraud, 18 U.S.C.
§ 1349, the Department of Homeland Security began proceedings to remove him
from the country. The Immigration Judge sustained the removal charge. Levy
moved to terminate the proceedings, contending that he is a United States citizen
by way of his father’s naturalization. The IJ denied his motion and Levy appealed
to the BIA, which adopted and affirmed the IJ’s ruling and dismissed his appeal.
Levy contends that the derivative naturalization statute at issue, former
Immigration and Nationality Act § 321(a)(3), 8 U.S.C. § 1432(a)(3) (1985), 1
1
When a person claims derivative citizenship, the BIA applies the law in effect when the
2
Case: 16-14726 Date Filed: 02/22/2018 Page: 3 of 8 RESTRICTED
violates his Fifth Amendment rights because it discriminates based on gender and
legitimacy and “burden[s] his fundamental right to maintain his family unit.” We
review de novo constitutional challenges to the INA. 8 U.S.C. § 1252(a)(2)(D);
see Cole v. U.S. Att’y Gen., 712 F.3d 517, 523 (11th Cir. 2013).
Former 8 U.S.C. § 1432(a) provides:
(a) A child born outside of the United States of alien parents, or of an
alien parent and a citizen parent who has subsequently lost citizenship
of the United States, becomes a citizen of the United States upon
fulfillment of the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the
parents is deceased; or
(3) The naturalization of the parent having legal custody
of the child when there has been a legal separation of
the parents or the naturalization of the mother if the
child was born out of wedlock and the paternity of the
child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is
under the age of eighteen years; and
(5) Such child is residing in the United States pursuant to
a lawful admission for permanent residence at the
time of the naturalization of the parent last naturalized
under clause (1) of this subsection, or the parent
naturalized under clause (2) or (3) of this subsection,
or thereafter begins to reside permanently in the
United States while under the age of eighteen years.
last material condition was met. In Re Rodriguez-Tejedor, 23 I&N Dec. 153, 163 (B.I.A. 2001).
In this case, the BIA applied the law in effect in 1985 — when Levy’s father was naturalized.
3
Case: 16-14726 Date Filed: 02/22/2018 Page: 4 of 8 RESTRICTED
8 U.S.C. § 1432(a). Levy could derive citizenship under only the first clause of
§ 1432(a)(3). 2 The IJ and BIA determined that Levy did not derive citizenship
because his parents never legally separated. Id.
Levy argues that § 1432(a) unconstitutionally discriminates based on gender.
According to him, if his mother instead of his father had been a United States
citizen, he would derive citizenship. Levy misreads the statute. As a legitimated
child, Levy could derive citizenship under § 1432(a) only if: both parents are
naturalized, id. § 1432(a)(1); the surviving parent is naturalized, id. § 1432(a)(2);
or both parents legally separate and the one having legal custody is naturalized, id.
§ 1432(a)(3). None of those conditions turns on gender. Had the situation been
reversed — if Levy’s mother had become a lawful permanent resident, was
naturalized, and raised him in the United States while his father remained in
Jamaica — Levy still would not have derived citizenship because his parents never
legally separated. As a result, § 1432(a) does not discriminate based on gender.
Levy next argues that § 1432(a) unconstitutionally discriminates based on
legitimacy. Levy asserts that § 1432(a)(3)’s first clause violates the “concept of
2
Subsection 1432(a)(1) does not apply because Levy’s mother was never naturalized.
Subsection 1432(a)(2) does not apply because it is conditioned on the non-naturalizing parent
dying before the child turns eighteen, see id. § 1432(a)(4), and Levy’s mother died after he
turned eighteen. And the second clause of § 1432(a)(3) does not apply because Levy’s mother
was never naturalized and his “paternity [was] established by legitimation.” See Matter of Cross,
26 I&N 485, 486 (B.I.A. 2015) (noting that under the Jamaican Status of Children Act, the
paternity of a child born out of wedlock is legitimated if the father acknowledges paternity).
4
Case: 16-14726 Date Filed: 02/22/2018 Page: 5 of 8 RESTRICTED
illegitimacy” relevant to the equal protection analysis: classifications targeting
children born out of wedlock. But that clause does not distinguish between
children born in wedlock and those born out of wedlock. Instead, it distinguishes
between children whose parents married and legally separated and those whose
parents did not. The clause does not require that a child be born into wedlock: a
child born out of wedlock whose parents later marry and legally separate qualifies
under § 1432(a)(3). At bottom, the classification rests on two parental choices —
whether to marry and legally separate — not on an “immutable characteristic
determined solely by accident of birth.” Pet. Br. at 24 (quoting Frontiero v.
Richardson, 411 U.S. 677, 686, 93 S. Ct. 1764, 1770 (1973)).
Alternatively, assuming without deciding that § 1432(a)(3)’s distinction
based on marital choice is a legitimacy based classification, the statute passes
constitutional muster. Legitimacy based statutory classifications usually receive
intermediate scrutiny, which requires that the classification “be substantially
related to an important governmental objective.” See Clark v. Jeter, 486 U.S. 456,
461, 108 S. Ct. 1910, 1914 (1988). When reviewing equal protection challenges to
immigration statutes, however, we require only a “facially legitimate and bona fide
reason.” Fiallo v. Bell, 430 U.S. 787, 794, 97 S. Ct. 1473, 1480 (1977). The
Supreme Court has not decided whether that standard applies to naturalization
statutes (as opposed to immigration statutes), but some of our sister circuits have
5
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applied that relaxed standard to § 1432(a). See, e.g., Johnson v. Whitehead, 647
F.3d 120, 127 (4th Cir. 2011). We need not resolve that question because the
classification at issue is substantially related to an important government interest.
See, e.g., Pierre v. Holder, 738 F.3d 39, 51–54 (2d Cir. 2013); Ayton v. Holder,
686 F.3d 331, 339 (5th Cir. 2012). The government interest at issue is respect for
parental rights, namely the “rights of an alien parent who may not wish his child to
become a U.S. citizen.” Pierre, 738 F.3d at 52.
Subsection 1432(a)(2) and (3) provide for single parent derivative
naturalization. Because derivative naturalization automatically changes a child’s
citizenship and can effectively extinguish an alien’s parental rights, see Barthelemy
v. Ashcroft, 329 F.3d 1062, 1066 (9th Cir. 2003), Congress limited single parent
derivative citizenship to instances where it is fair to assume the alien parent was
out of the picture. See Pierre, 738 F.3d at 53; Catwell v. U.S. Att’y Gen., 623 F.3d
199, 211 (3d Cir. 2010). That rationale is reflected most clearly in § 1432(a)(2),
where the non-naturalizing parent is deceased. But it also animates § 1432(a)(3),
both clauses of which safeguard an alien parent’s rights. The first clause, which
applies to married parents, permits the naturalizing parent’s rights to trump the
alien parent’s only when the couple is legally separated and the naturalizing parent
has legal custody. 8 U.S.C. § 1432(a)(3). The second clause, involving parents
who never married, permits a naturalizing mother’s rights to trump an alien
6
Case: 16-14726 Date Filed: 02/22/2018 Page: 7 of 8 RESTRICTED
father’s rights only when paternity is not established. Id. In both situations, it is
fair to assume that the alien parent has a lesser interest in the child’s citizenship.
We cannot fault Congress for conditioning single parent derivative
naturalization on the naturalizing parent having legal custody of the child and
legally separating from the alien parent. Legal separation is a bright line marking
the disunion of a married couple, and no analogous legal event marks the disunion
of an unmarried couple. Perhaps Congress could have drafted § 1432(a) to provide
an avenue for derivative citizenship for children like Levy — whose paternity was
established, whose unmarried parents lived separately, and whose non-custodial
alien parent was out of the picture. But the Equal Protection Clause did not
obligate Congress to create that avenue. See Nguyen v. I.N.S., 533 U.S. 53, 70,
121 S. Ct. 2053, 2064 (2001) (a statute need not “be capable of achieving its
ultimate objective in every instance” to pass intermediate scrutiny). For those
reasons, we agree with our sister circuits that § 1432(a) is substantially related to
protecting parental rights. See, e.g., Pierre, 738 F.3d at 53; Ayton, 686 F.3d at 339.
Finally, Levy argues that § 1432(a) unconstitutionally burdens his
fundamental right to maintain a family unit. Levy’s argument seems to proceed in
two parts. First, Levy asserts that § 1432(a)(3) permits people like him, who have
deep roots to the United States, to be “deported based on [their] father’s gender and
marital status.” Contrary to Levy’s assertion, he is being deported because he was
7
Case: 16-14726 Date Filed: 02/22/2018 Page: 8 of 8 RESTRICTED
convicted of a deportable crime — not because of his “father’s gender and marital
status.” Second, Levy asserts that § 1432(a)(3) “can lead to a child’s separation
from their naturalized parent.” But by that logic, any statute that fails to rescue an
alien from removal after he commits a deportable crime violates due process. We
decline to adopt such a rule.
PETITION DENIED. 3
3
Levy moved to file a supplemental brief on potential remedies following the Supreme
Court’s decision in Sessions v. Morales-Santana, 582 U.S. __, 137 S. Ct. 1678 (2017). Because
we affirm the BIA’s final order, Levy’s motion is DENIED AS MOOT.
8
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[Cite as Cline v. Mtge. Electronic Registration Sys., Inc., 2013-Ohio-5706.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Santana Cline, :
Plaintiff-Appellant, :
v. : No. 13AP-240
(C.P.C. No. 12CV-2288)
Mortgage Electronic Registration :
Systems, Inc. et al., (REGULAR CALENDAR)
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on December 24, 2013
Santana Cline, pro se.
Weltman, Weinberg & Reis Co., L.P.A., Jennifer Monty
Riecker, and Jason K. Wright, for appellee Mortgage
Electronic Registration Systems, Inc.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiff-appellant, Santana Cline, appeals from the judgment of the
Franklin County Court of Common Pleas granting the Civ.R. 12(B)(6) motion to dismiss
filed by defendant-appellee, Mortgage Electronic Registration Systems ("MERS"). For the
reasons that follow, we affirm the judgment of the trial court.
I. BACKGROUND
{¶ 2} This matter arose with the February 21, 2012 filing of appellant's complaint,
pursuant to R.C. 5303.01, seeking to quiet title on real property located in Franklin
County, Ohio. According to the complaint and the documents attached thereto, appellant
executed a promissory note on April 5, 2006 in favor of CBSK, Financial Group, Inc.,
No. 13AP-240 2
d.b.a. American Home Loans ("CBSK"), for the sum of $108,300. The note was secured
by a mortgage executed the same day in favor of MERS, as nominee for CBSK and its
successors and assigns.
{¶ 3} The complaint alleges CBSK's Ohio mortgage license was cancelled on
April 30, 2006, and CBSK was shut down by the state of California on October 30, 2007.
Based on these two events, the complaint asserts CBSK is no longer a member of MERS'
organization, thus voiding any contractual agreements between MERS and CBSK.
According to the complaint, because the contractual agreements between the two entities
are void, the mortgage is "no longer enforceable" and "there is no longer a promissory
note to satisfy," and appellant is entitled to quiet title under R.C. 5303.01. (Complaint, 2.)
{¶ 4} MERS filed a motion to dismiss for failure to state a claim upon which relief
can be granted pursuant to Civ.R. 12(B)(6). MERS argued that, by executing the
mortgage naming MERS the mortagee, as nominee for CBSK and its successors and
assigns, appellant agreed that MERS would be the mortgagee, regardless of whether
CBSK continued to own the note.
{¶ 5} By decision and entry filed March 21, 2013, the trial court granted MERS'
motion to dismiss. Relying on Bank of N.Y. Mellon Trust Co., N.A. v. Unger, 8th Dist. No.
97315, 2012-Ohio-1950, the trial court concluded the mortgage is not a cloud on
appellant's title because appellant agreed to the lien as security for repayment of the note,
and, thus, appellant could not maintain her quiet title action under R.C. 5303.01.
II. ASSIGNMENTS OF ERROR
{¶ 6} This appeal followed, and appellant asserts the following seven assignments
of error for our review:
FIRST ASSIGNMENT OF ERROR:
The Trial Court erred in granting Defendant's Motion To
Dismiss.
SECOND ASSIGNMENT OF ERROR:
The Trial Court erred by dismissing Plaintiff's complaint by
relying on statements outside the complaint and not
converting the motion to one for summary judgment.
No. 13AP-240 3
THIRD ASSIGNMENT OF ERROR, TOGETHER WITH
CLINE'S FOURTH AND FIFTH ASSIGNMENT OF ERROR:
The Trial Court erred by not granting the default judgment,
erred by allowing the Defendant's to file out of time, and by
not making a proper ruling on the merits of excusable neglect.
SIXTH ASSIGNMENT OF ERROR:
The trial court erred by not addressing Plaintiff's Motion for
Summary Judgment and Motion for Sanctions filed against
Jennifer M Rieker.
SEVENTH ASSIGNMENT OF ERROR:
The Trial Court showed biased behavior by holding docket
entries.
III. DISCUSSION
A. First Assignment of Error
{¶ 7} In her first assignment of error, appellant argues the trial court erred in
granting MERS' motion to dismiss.
{¶ 8} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which
relief can be granted "is procedural and tests the sufficiency of the complaint." State ex
rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992), citing Assn.
for the Defense of the Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117
(1989). In order for a trial court to grant a motion to dismiss for failure to state a claim
upon which relief can be granted, it must appear "beyond doubt from the complaint that
the plaintiff can prove no set of facts entitling her to relief." Grey v. Walgreen Co., 197
Ohio App.3d 418, 2011-Ohio-6167, ¶ 3 (8th Dist.), citing LeRoy v. Allen, Yurasek &
Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, ¶ 14.
{¶ 9} In ruling on a Civ.R. 12(B)(6) motion, a trial court " 'cannot resort to
evidence outside the complaint to support dismissal [except] where certain written
instruments are attached to the complaint.' " Brisk v. Draf Industries, 10th Dist. No.
11AP-233, 2012-Ohio-1311, ¶ 10, quoting Park v. Acierno, 160 Ohio App.3d 117, 2005-
Ohio-1332, ¶ 29 (7th Dist.). Rather, " '[i]f a Civ.R. 12(B)(6) movant relies on evidence
outside of the complaint and its attachments, then Civ.R. 12(B) specifies that the motion
No. 13AP-240 4
must either be denied or converted to a summary judgment motion, which would proceed
under Civ.R. 56.' " Id., quoting Acierno at ¶ 30, citing Petrey v. Simon, 4 Ohio St.3d 154,
156 (1983).
{¶ 10} An appellate court employs "a de novo standard of review for motions to
dismiss filed pursuant to Civ.R. 12(B)(6)." Grey at ¶ 3, citing Greeley v. Miami Valley
Maintenance Contrs., Inc., 49 Ohio St.3d 228 (1990). Under de novo analysis, we are
required to "accept all factual allegations of the complaint as true and draw all reasonable
inferences in favor of the nonmoving party." Id., citing Byrd v. Faber, 57 Ohio St.3d 56
(1991).
{¶ 11} The trial court granted MERS' motion after concluding that, because
appellant voluntarily signed the mortgage and agreed to the existing lien, the mortgage
could not constitute a cloud on appellant's title subject to R.C. 5303.01. On appeal,
appellant argues the original loan was originated by CBSK, a company no longer in
business; therefore, any agreement between CBSK and MERS that MERS would act as
nominee for CBSK is void. In appellant's view, because the agreement between CBSK and
MERS is void, the note and mortgage are no longer in effect and constitute a cloud upon
her title. Appellant argues that, unlike Unger, which concerned mortgage assignments,
this matter concerns the underlying mortgage itself.
{¶ 12} It is recognized in Ohio that actions to quiet title are permitted exclusively
pursuant to statute. R.C. 5303.01; Dominion Homes, Inc. v. Shinoskie, 10th Dist. No.
01AP-794, 2002-Ohio-2298, ¶ 16; Chef Italiano Corp. v. Kent State Univ., 11th Dist. No.
91-P-2308 (Feb. 21, 1992). R.C. 5303.01 provides that:
An action may be brought by a person in possession of real
property, by himself or tenant, against any person who claims
an interest therein adverse to him, for the purpose of
determining such adverse interest. Such action may be
brought also by a person out of possession, having, or
claiming to have, an interest in remainder or reversion in real
property, against any person who claims to have an interest
therein, adverse to him, for the purpose of determining the
interests of the parties therein.
{¶ 13} Appellant does not dispute that she executed the promissory note on
April 5, 2006. Nor does appellant dispute the note was secured by a mortgage naming
No. 13AP-240 5
MERS the mortagee, as nominee for CBSK and its successors and assigns. Regardless,
appellant asserts she is no longer bound under the mortgage. Appellant's argument is
based entirely on her assertion that the contracts between MERS and CBSK are void and
no longer in effect. The fallacy in appellant's argument is that appellant does not appear
to be, nor does she allege that she was, a party to those purported contracts such that they
could have any impact on the contracts she executed on April 5, 2006. " 'Only a party to a
contract or an intended third-party beneficiary of a contract may bring an action on a
contract in Ohio.' " Camden v. Kain, 10th Dist. No. 93APE11-1518 (May 26, 1994),
quoting Grant Thornton v. Windsor House, Inc., 57 Ohio St.3d 158, 161 (1991).
{¶ 14} Though certain contractual agreements may or may not exist between the
two entities at issue here, appellant does not allege how this has any impact on her
obligations under the contract into which she entered so as to be entitled to quiet title
under R.C. 5303.01. See Duran v. Mtge. Elec. Registration Sys., Inc., N.D.Ohio No. 3:12
CV 1801 (Feb. 5, 2013) (underlying contract between debtor and mortgage holder entirely
separate from contract between mortgage holder and assignee such that debtor is not a
party to the second assignment contract, has no cognizable interest in it, and has no right
to step into the original mortgage holder's shoes to raise its contract rights against the
assignee); Thomas v. Deutsche Bank Natl. Trust Co., S.D.Ohio No. 2:11-cv-866 (May 21,
2012) (claim to quiet title under R.C. 5303.01 dismissed because debtor lacked standing
to challenge mortgage assignment); Popov v. Deutsche Bank Natl. Trust Co., N.D.Ohio
No. 1:12-cv-00170-DCN (Oct. 30, 2012) (contract between MERS and assignee does
nothing to invalidate contract between debtor and MERS; therefore, debtor's quiet title
action dismissed).
{¶ 15} Upon review, we find appellant's complaint fails to state a claim upon which
relief can be granted, and, thus, the trial court did not err in dismissing appellant's
complaint pursuant to Civ.R. 12(B)(6). Accordingly, appellant's first assignment of error
is overruled.
B. Second Assignment of Error
{¶ 16} In her second assignment of error, appellant asserts the trial court erred in
relying on statements outside the complaint in contravention of Civ.R. 12(B)(6).
According to appellant, the trial court relied on MERS' statements directing the trial court
No. 13AP-240 6
to "look to alleged unnamed 'successors' to make a finding that the lien was valid for
repayment of a promissory note." (Appellant's Brief, 20.)
{¶ 17} Contrary to appellant's assertion, the trial court granted MERS' motion to
dismiss based upon the allegations made in the complaint and the contracts attached
thereto, which could be considered by the trial court for purposes of the Civ.R. 12(B)(6)
motion. Brisk; Miller v. Cass, 3d Dist. No. 3-09-15, 2010-Ohio-1930 (a copy of a written
instrument attached to a pleading is a part of the pleading for all purposes and, thus, can
be considered for purposes of a motion to dismiss); Adlaka v. Giannini, 7th Dist. No. 05
MA 105, 2006-Ohio-4611, ¶ 34 ("If the plaintiff decides to attach documents to his
complaint, which he claims establish his case, such documents can be used to his
detriment to dismiss the case if they along with the complaint itself establish a failure to
state a claim."). Because the language in the complaint and accompanying contracts
clearly foreclose appellant's claim against MERS to quiet title, the trial court could
properly dismiss those claims under Civ.R. 12(B)(6). Denlinger v. Columbus, 10th Dist.
No. 00AP-315 (Dec. 7, 2000). See Allstate Ins. Co. v. Blaum, 4th Dist. No. 1490 (Dec. 2,
1988) ("If a written instrument is attached to the complaint, it should be construed
together with the averments of the complaint in determining whether there is any possible
set of facts which would entitle the plaintiff to relief.").
{¶ 18} In conclusion, we find no merit to appellant's contention that the trial court
relied on evidence outside the complaint and its attachments to resolve MERS' motion to
dismiss. Accordingly, appellant's second assignment of error is overruled.
C. Third, Fourth, and Fifth Assignments of Error
{¶ 19} In the third, fourth, and fifth assignments of error, appellant contends the
trial court erred in denying her motion for default judgment. According to the record,
service on MERS was obtained on March 2, 2012, and appellant moved for default
judgment on April 24, 2012. The trial court referred the matter to a magistrate for a
hearing. Prior to the hearing, MERS sought leave to file a motion to dismiss. Therefore,
the magistrate issued an order vacating the hearing on the motion for default judgment
pending the trial judge's ruling on the motion to vacate and motion to dismiss. Appellant
twice sought reconsideration of the trial court's decision granting MERS leave to file a
No. 13AP-240 7
motion to dismiss and both requests were rejected by the trial court. Thereafter, the trial
court rendered its decision granting MERS' motion to dismiss.
{¶ 20} MERS does not dispute that it did not respond within the time permitted by
the Ohio Rules of Civil Procedure, and, as such, appellant was permitted to seek default
judgment pursuant to Civ.R. 55. However, Civ.R. 6(B) allows for an extension of time to
file a late pleading, within the trial court's discretion, "upon motion made after the
expiration of the specified period * * * where the failure to act was the result of excusable
neglect."
{¶ 21} It is well-settled that a trial court may permit the filing of an untimely
answer where the record contains sufficient evidence of excusable neglect. State ex rel.
Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464, 465 (1995). In
determining whether neglect is excusable or inexcusable, a trial court "must take into
consideration all the surrounding facts and circumstances, and * * * must be mindful of
the admonition that cases should be decided on their merits, where possible, rather than
[on] procedural grounds." Fowler v. Coleman, 10th Dist. No. 99AP-319 (Dec. 28, 1999).
In addition, "a trial court's Civ.R. 6(B)(2) determination is addressed to the sound
discretion of the trial court and will not be disturbed on appeal absent a showing of an
abuse of discretion." Id.
{¶ 22} In the instant case, MERS filed its motion for leave to file a motion to
dismiss, and the trial court granted MERS' request after concluding MERS established
excusable neglect in failing to timely respond to appellant's complaint. The trial court
specifically found factors weighing against appellant's argument that MERS should not be
permitted leave to plead, including the fact that appellant filed two identical lawsuits
against MERS on the same day. It was within the trial court's discretion to find the
reasons set forth in MERS' motion and memorandum in support to be tantamount to
excusable neglect, and we do not discern an abuse of the trial court's discretion in so
finding.
{¶ 23} Accordingly, appellant's third, fourth, and fifth assignments of error are
overruled.
No. 13AP-240 8
D. Sixth Assignment of Error
{¶ 24} In her sixth assignment of error, appellant contends the trial court erred by
not ruling on her motion for summary judgment and motion for sanctions.
{¶ 25} It is well-established that "[w]hen a trial court fails to rule on a motion, the
appellate court presumes that the trial court overruled the motion." Brannan v. Fowler,
100 Ohio App.3d 577, 581 (4th Dist.1995). Similarly, when the trial court enters judgment
without expressly determining a pending motion, the motion is also considered impliedly
overruled. Portofe v. Portofe, 153 Ohio App.3d 207, 2003-Ohio-3469, ¶ 16 (7th Dist.),
citing Solon v. Solon Baptist Temple, Inc., 8 Ohio App.3d 347 (8th Dist.1982); Newman
v. Al Castrucci Ford Sales, Inc., 54 Ohio App.3d 166, 169 (1st Dist.1988).
{¶ 26} On November 1, 2012, appellant filed a motion seeking "an order
sanctioning Deutsche Bank National Trust Company, as certificate trustee on behalf of
Bosco Credit II Trust Series 2010-1 (using the name CBSK) and their counsel Jennifer
Rieker" on the basis that counsel engaged in frivolous conduct in purporting to represent
CBSK when she did not. (Nov. 1, 2012 Motion, 1.) The following day, appellant filed a
motion seeking a dismissal of defendant CBSK pursuant to Civ.R. 41(A)(1)(a). The trial
court granted appellant's request for dismissal of CBSK on November 8, 2011.
Subsequently, the only party defendant remaining in this litigation was MERS.
{¶ 27} Because appellant dismissed the party serving as the underlying basis for
her request for sanctions, we find the trial court did not err in not awarding the requested
sanctions.
{¶ 28} Regarding appellant's motion for summary judgment, said motion was filed
on February 4, 2013, after MERS was granted leave to file a motion to dismiss. As
previously indicated, the trial court granted MERS' motion to dismiss for failure to state a
claim upon which relief can be granted pursuant to Civ.R. 12(B)(6). A trial court clearly
has the discretionary authority in a case like this one, where multiple motions are
pending, to consider a Civ.R. 12(B)(6) motion first and to dispense with the entire matter
if the complaint, with its exhibits, when viewed by the requisite standard, fails to state a
claim upon which relief may be granted. Wright v. Ghee, 10th Dist. No. 01AP-1459,
2002-Ohio-5487, ¶ 53, citing Budd v. Kinkela, 10th Dist. No. 01AP-1478, 2002-Ohio-
No. 13AP-240 9
4311, ¶ 20. Once a case is dismissed because the complaint does not state a claim for
relief, any other pending motions necessarily become moot. Id.
{¶ 29} Because the trial court determined appellant's complaint failed to state a
claim upon which could be granted, appellant's motion for summary judgment was
rendered moot and the trial court did not err in not addressing the same.
{¶ 30} For the foregoing reasons, appellant's sixth assignment of error is overruled.
E. Seventh Assignment of Error
{¶ 31} In the seventh assignment of error, appellant contends the trial court
showed bias by giving the appearance of considering objections to the motion when it
had, in fact, "already drafted the opinions weeks in advance." (Appellant's Brief, 35.)
{¶ 32} The Supreme Court of Ohio has held that an appellate court has no
jurisdiction to vacate a trial court's judgment based on a claim of judicial bias. Beer v.
Griffith, 54 Ohio St.2d 440, 441-42 (1978). This court addressed a plaintiff's remedy for
suspected judicial bias in Polivka v. Cox, 10th Dist. No. 02AP-1364, 2003-Ohio-4371,
where a pro se plaintiff argued that the trial judge should have removed himself because
of a personal bias against the plaintiff. This court stated:
If plaintiff believed the trial judge was biased or prejudiced
against him, his remedy was to file an affidavit of prejudice
with the clerk of the Ohio Supreme Court. R.C. 2701.03
"provides the exclusive means by which a litigant may claim
that a common pleas judge is biased and prejudiced." Jones v.
Billingham (1995), 105 Ohio App.3d 8, 11. Only the Chief
Justice of the Ohio Supreme Court or his designee has the
authority to determine a claim that a common pleas court
judge is biased or prejudiced. Beer v. Griffith (1978), 54 Ohio
St.2d 440, 441-442. Thus, an appellate court is without
authority to pass upon issues of disqualification or to void a
judgment on the basis that a judge should be disqualified for
bias or prejudice. Id.; State v. Ramos (1993), 88 Ohio App.3d
394, 398.
Id. at ¶ 29; see also Fernandez v. Ohio State Pain Control Ctr., 10th Dist. No. 03AP-1018,
2004-Ohio-6713 (holding that a plaintiff's argument that the trial court's decisions were
erroneous, based on alleged bias or prejudice, was not properly before this court, even
though it was unclear whether the plaintiff was arguing that the trial judge should have
disqualified himself). Here, the record does not indicate that appellant raised a claim of
No. 13AP-240 10
prejudice or bias by filing an affidavit of prejudice with the Supreme Court of Ohio
pursuant to R.C. 2701.03. Based on the aforementioned authority, we find that we lack
authority to assess appellant's claim that the trial court's disposition of her claim was the
result of bias and prejudice.
{¶ 33} Additionally, this court has previously held that "[a] judge is presumed not
to be biased or prejudiced, and a party alleging bias or prejudice must present evidence to
overcome the presumption." Wardeh v. Altabchi, 158 Ohio App.3d 325, 2004-Ohio-
4423, ¶ 20 (10th Dist.), citing In re Disqualification of Kilpatrick, 47 Ohio St.3d 605, 606
(1989), and Eller v. Wendy's Internatl., Inc., 142 Ohio App.3d 321, 340 (10th Dist.2000).
" 'The existence of prejudice or bias against a party is a matter that is particularly within
the knowledge and reflection of each individual judge and is difficult to question unless
the judge specifically verbalizes personal bias or prejudice toward a party.' " Wardeh at
¶ 20, quoting Eller at 340. A judge's rulings of law are legal issues, subject to appeal, and
are not by themselves evidence of bias or prejudice. Okocha v. Fehrenbacher, 101 Ohio
App.3d 309, 322 (8th Dist.1995). Appellant's unsubstantiated accusations of improper
conduct are insufficient to overcome the presumption of judicial integrity. Cooke v.
United Dairy Farmers, Inc., 10th Dist. No. 05AP-1307, 2006-Ohio-4365. Accordingly,
appellant's seventh assignment of error is overruled.
IV. CONCLUSION
{¶ 34} Having overruled appellant's seven assignments of error, the judgment of
the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
BROWN and T. BRYANT, JJ., concur.
T. BRYANT, J., retired, formerly of the Third Appellate
District, assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
_____________________________
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394 N.W.2d 373 (1986)
COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF THE IOWA BAR ASSOCIATION, Complainant,
v.
Francis L. FREE, Respondent.
No. 86-766.
Supreme Court of Iowa.
October 15, 1986.
James E. Gritzner of Nyemaster, Goode, McLaughlin, Emery & O'Brien, P.C., Des Moines, for complainant.
Francis L. Free, Hinton, pro se.
Considered by HARRIS, P.J., and McGIVERIN, LARSON, CARTER, and LAVORATO, JJ.
LAVORATO, Justice.
The Grievance Commission recommended that Francis L. Free be suspended from the practice of law but recommended no period of suspension. In the alternative, the commission recommended that Free be reprimanded if he voluntarily surrendered his license to practice law prior to this appeal.
The commission found that Free, in handling an estate, violated Iowa Code of Professional Responsibility for Lawyers DR6-101(A)(3) (neglecting a legal matter), EC6-1 (failing to act with competence and proper care), and EC6-4 (failing to adequately prepare for and appropriately attend to legal work). The commission also found that he failed to assist the Committee on Professional Ethics and Conduct, in violation of DR1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), DR1-102(A)(6) (engaging in conduct adversely *374 reflecting on fitness to practice law), EC1-4 (failing to assist the committee), and EC1-5 (failing to maintain high standards of professional conduct).
Upon our de novo review, see Iowa Sup. Ct.R. 118.10, we agree with the commission that Free was guilty of these ethical violations. We suspend Free's license to practice for three months.
In the fall of 1982, Free was retained to handle an estate. On November 22 he filed a petition for probate of will and appointment of executor in the district court. On May 1 and November 1, 1983, Free received notices of delinquency from the district court clerk's office because the probate inventory had not been filed. He filed this inventory, along with a preliminary inheritance tax report, on May 11, 1984.
On August 1, 1985, a distributee of the estate notified the committee that Free
[o]n numerous occasions by phone and in writing ... has promised to finish the estate by a given deadline and has failed to do so. Although the heirs have received partial disbursement of inheritance, I have not received requested accounts, statement of tax liability, final inventory and copies of tax returns so I may properly report my income to federal and state government.
On August 12, 1985, the committee mailed a copy of this letter to Free, and asked him to respond. It received no response. On September 26 the committee again wrote to Free, but again it received no response. On October 11 the committee wrote a third letter to Free, advising him to respond within ten days. This letter was returned to the committee with the notation: "He would not pick this up." On November 20 the committee filed its complaint with the commission. Free neither responded to it nor answered a request for admissions.
Free testified that, from 1980 through 1983, he was occupied with the care of his terminally-ill wife. He had "lost all interest in a lot of things" due to his wife's illness, but admitted his sorrow was not an excuse for failing to close the estate. He added he had waived his fees in handling the estate.
The evidence supports the commission's finding that Free violated DR6-101(A)(3), EC6-1, and EC6-4. He failed to comply with the time requirements in Iowa Code sections 633.361 (filing of preliminary inheritance tax report and probate inventory) and 633.473 (closing of estate). See also Iowa Code § 450.6 (accrual of inheritance tax). These failures clearly demonstrate neglect within the meaning of DR6-101(A)(3), EC6-4, see Committee on Professional Ethics and Conduct v. Bromwell, 389 N.W.2d 854, 856-57 (Iowa 1986), and EC6-1.
The evidence also supports the commission's finding that Free violated DR1-102(A)(5), (A)(6), EC1-4, and EC1-5, for failing to respond to the committee's three letters. Failure to respond to a disciplinary committee's inquiries is misconduct. Bromwell, 389 N.W.2d at 857.
Although the commission recommended that Free's license be suspended, it declined to recommend a period of suspension:
The commission recommends the suspension of the license to practice law in the State of Iowa by the respondent, Francis L. Free. Since the respondent has indicated his desire to surrender his license to the Court after he has completed the administration of the Didier estate [the subject of this complaint] and an ancillary administration of an estate for a relative, the commission has made no recommendation as to the period of suspension.
In the interest of justice, the commission would further recommend that if the respondent voluntarily surrenders his license prior to the Court entering its final order on this complaint, that in lieu of suspension of license the respondent be reprimanded by the Court.
Free has not surrendered his license nor has he made application for inactive status pursuant to Iowa Supreme Court Rule 123.7.
*375 We suspend Free's license to practice law in the courts of this state indefinitely, with no possibility of reinstatement for three months from the date this opinion is filed. This suspension applies to all facets of the practice of law. See Iowa Sup.Ct.R. 118.12. Any application for reinstatement shall be governed by Iowa Supreme Court Rule 118.13.
LICENSE SUSPENDED.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6284
DANIEL STALEY,
Plaintiff - Appellant,
versus
HARMON, Mental Health Counselor at Kirkland
Correctional Institution R&E Center,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Patrick Michael Duffy, District
Judge. (CA-03-3390-9-23)
Submitted: June 16, 2004 Decided: June 23, 2004
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Daniel Staley, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Daniel Staley appeals the district court’s order
accepting the recommendation of the magistrate judge and denying
relief on his 42 U.S.C. § 1983 (2000) complaint. We have reviewed
the record and find no reversible error. Accordingly, we affirm
for the reasons stated by the district court. See Staley v.
Harmon, No. CA-03-3390-9-23 (D.S.C. Jan. 15, 2004). We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
- 2 -
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326 Pa. Superior Ct. 179 (1984)
473 A.2d 1040
COMMONWEALTH of Pennsylvania
v.
Irvin LEATHERBURY, Appellant.
Supreme Court of Pennsylvania.
Submitted October 21, 1983.
Filed March 9, 1984.
Petition for Allowance of Appeal Denied July 11, 1984.
*182 Howard S. Kaplan, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
WIEAND, Judge:
Irvin Leatherbury was tried nonjury and convicted of robbery,[1] criminal attempt-theft,[2] simple assault[3] and criminal conspiracy.[4] Post-trial motions were denied, and a sentence of eighteen months to three years imprisonment was imposed for robbery. On direct appeal, Leatherbury contends that the evidence was insufficient to support the conviction, and that his speedy trial rights under Pa.R. Crim.P. 1100 were violated. In addition, he seeks a new trial based upon identification testimony of the victim which he alleges to be infirm because born of a suggestive pre-trial confrontation. Finding no merit in these contentions, we affirm.
"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime [were] established beyond a reasonable doubt."
Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983), quoting Commonwealth v. Pitts, 486 Pa. 212, *183 215, 404 A.2d 1305, 1306 (1979). See also: Commonwealth v. Biggs, 320 Pa.Super. 265, 267, 467 A.2d 31, 32 (1983); Commonwealth v. Todt, 318 Pa.Super. 55, 60-1, 464 A.2d 1226, 1228 (1983); Commonwealth v. Ruffin, 317 Pa.Super. 126, 133, 463 A.2d 1117, 1118-1119 (1983); Commonwealth v. Scarborough, 313 Pa.Super. 521, 525, 460 A.2d 310, 312 (1983).
In the early morning hours of July 15, 1980, seventy-one year old Francis Mahoney was walking along a street in Philadelphia when appellant and another man approached from behind, one on each side, and grabbed his arms. They said, "Give me your wallet and give me your money." Mahoney "shook them off" and moved away, claiming he didn't have any money. After a moment or two, the men turned and began to walk away. When Mahoney began cursing at them, however, they turned and again approached him. When a police car appeared, Mahoney flagged it and told Officer Fadgen what had transpired. The police officer called appellant and his companion to the car and arrested them.
Under the Crimes Code in Pennsylvania,
"(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of the first or second degree;
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or
(v) physically takes or removes property from the person of another by force however slight.
*184 (2) An act shall be deemed `in the course of committing a theft' if it occurs in an attempt to commit theft or in flight after the attempt or commission."
18 Pa.C.S. § 3701(a)(1) (emphasis added).
"A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof."
18 Pa.C.S. § 3921(a).
"A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime."
18 Pa.C.S. § 901(a).
Here, there was sufficient evidence that appellant, in the course of an attempt to commit a theft, threatened the victim with or put him in fear of immediate bodily injury. When appellant and another young man came up behind this elderly man who was walking alone at 1:15 in the morning, grabbed him by both arms, and demanded his money and his wallet, the trier of the facts could infer that the young men intended to acquire the victim's money by placing him in fear of immediate bodily injury. Neither the fact that they did not inflict bodily injury nor that they were unsuccessful in obtaining the victim's money was controlling. An aggressive act intended to place the victim in fear that he was in danger of immediate physical harm was sufficient to elevate an attempted theft to robbery, 18 Pa.C.S. § 3701(a)(1)(iv). Whether the victim was in fact put in fear under such circumstances was not controlling. See: Commonwealth v. Hurd, 268 Pa.Super. 24, 29, 407 A.2d 418, 420 (1979); In re Gonzales, 266 Pa.Super. 468, 470, 405 A.2d 529, 530 (1979); Commonwealth v. Mays, 248 Pa.Super. 318, 321, 375 A.2d 116, 117-118 (1977).
A person is guilty of simple assault if he:
"(3) attempts by physical menace to put another in fear of imminent serious bodily injury."[5]
*185 18 Pa.C.S. § 2701(a)(3). Although the victim in this case sustained no actual injuries, the circumstances under which he was accosted were sufficient to permit an inference that appellant intended by his conduct to put Mahoney in fear of imminent serious bodily injury. See: Commonwealth v. Stumpo, 306 Pa.Super. 447, 459, 452 A.2d 809, 815-816 (1982). Compare: Commonwealth v. Scott, 246 Pa.Super. 58, 369 A.2d 809 (1976).
Appellant was not deprived of a speedy trial as required by Pa.R.Crim.P. 1100. The criminal complaint was filed on July 15, 1980, thereby giving rise to a mechanical run date of January 12, 1981.[6] Appellant, although subpoenaed, failed to appear for a preliminary hearing on July 23, 1980. He was arrested on a bench warrant the following day. A bench warrant hearing was held on July 28, when the preliminary hearing was rescheduled for August 6, 1980. Appellant again failed to appear. A second bench warrant was issued, but it was withdrawn when it was discovered that appellant had failed to post bail and had remained in custody. A preliminary hearing was thereafter held on September 29, 1981 and, after the matter had been returned to court, an information was filed and appellant was arraigned. The first trial, scheduled for December 8, 1980, was continued because the Commonwealth lacked a witness and, therefore, was not ready to proceed. The second date set for trial was January 12, 1981, but on that date defense counsel was unavailable. Trial was postponed until March 9, 1981. The Commonwealth thereupon filed a petition requesting an extension of time within which to commence trial under Rule 1100. This petition was heard on February 17, when the court ruled that periods of five and fifty-six days were excludable because of the unavailability first of appellant and then his attorney. Pursuant to this ruling, the court added 61 days, and when the 61st day fell on a *186 Saturday, the court computed the revised run date to be March 16.
Appellant contends that the exclusion of five days because of his failure to appear for preliminary hearing was improper because it was based solely on record entries and was not supported by other evidence. There is no merit in this contention. See: Commonwealth v. Harris, 315 Pa. Super. 544, 553, 462 A.2d 725, 729 (1983). The record in this case showed, without dispute, that appellant had failed to appear on July 23, 1980 despite having had notice of his obligation to be present for preliminary hearing. Although the bench warrant was executed the following day and appellant thereafter remained in custody, the proceedings were not resumed until a bench warrant hearing was held on Monday, July 28. At that time a new preliminary hearing date was set for August 6 and new bail set at $1,500. At the very least, the five days intervening between appellant's failure to appear and the bench warrant hearing following his arrest were excludable.[7]
"[T]he period of excludable days is not necessarily measured by the length of time that a defendant was `unavailable.' Instead, once it is determined that the defendant was unavailable, the critical inquiry is whether actual delay resulted from the defendant's unavailability. `If the "unavailability" results in an actual delay in the proceedings, that delay is automatically excluded.'"
Commonwealth v. Colon, 317 Pa.Super. 412, 425, 464 A.2d 388, 395 (1983), quoting Commonwealth v. Millhouse, 470 Pa. 512, 517, 368 A.2d 1273, 1276 (1977). See also: Commonwealth v. Robinson, 498 Pa. 379, 386, 446 A.2d 895, 898-899 (1982); Commonwealth v. Derrick, 322 Pa.Super. 517, 530, 469 A.2d 1111, 1118 (1983); Commonwealth v. Perry, 296 Pa.Super. 359, 362, 442 A.2d 808, 810 (1982); Commonwealth v. Chapman, 271 Pa.Super. 473, 476, 414 A.2d 352, 353 (1979). Accord: Commonwealth v. Manley, 503 Pa. 482, 469 A.2d 1042 (1983).
*187 The events which occurred following the first extension hearing on February 17 were described by Eliot Present, Esquire, an assistant district attorney, during testimony given at the second extension hearing on March 25. He said:
". . . this case was originally listed on March 9th, 1981, at which time the complainant was present, and a Motion to Suppress the facts and evidence was litigated. At the conclusion of that Motion to Suppress, after argument from both myself and the Public Defender, Judge Katz held the case under advisement. We at that time, we realized that I believe the run date of the particular matter was March 16th of 1981. That was on March 9th, 1981. The case was continued until March 17th, 1981 and the Rule at that time was waived `til March 17th, 1981 voluntarily by the defendant and the Public Defender.[8]
Later that afternoon, the judge informed me that he would not be sitting on March 17th, so, in order for the case to be heard before the run date, it would have to be listed on the 16th. At that time, the complainant had been served for the 17th, so I called him up later that afternoon and informed him that the case would now be listed on the 16th and would he please change his subpoena and come in that Monday. He had originally informed me that he worked 'til eight o'clock in the morning
. . . .
He originally informed me that he would prefer it being on a Tuesday, which would be the 17th, because he worked until eight o'clock in the morning that morning on the 16th. I called him and pleaded with him and informed him that the judge wasn't sitting on the 17th and to come in on the 16th. He agreed to come in.
I believe it was later on that week, or it might have even been on the 9th, but it was some time before the end of the week it was March 13th. Subsequently, on March 13th, as I was preparing these cases for March *188 16th, I got a call from Public Defender Jonathan Miller, who was going to be in Courtroom 615 the week of the 16th with myself, and he called specifically to talk to me about the Leatherbury case. He informed me that his colleague, Mr. Laver, was specially assigned to that matter, so that he couldn't handle it.
He also informed me that Mr. Laver was on emergency assignment to Harbison and Levick on the 16th and there was a good possibility that he would be unavailable that day to come to court. He told me that he was under the impression that Mr. Laver was going to incorporate all of the testimony if the Motion to Suppress was denied, anyway, and that he thought, since Mr. Laver may not show up for court, that I should keep the witness on call.
I, subsequently, called the witness back. I said to him, in view of the fact that this defense attorney may not even be there and also in view of the fact that there was going to be a SEPTA strike, that since he had no other means of transportation I didn't think the attorney was even going to be there I would keep him on call. If we needed him, I would call him that day.
So I got to court on March 16th and early in the morning, Mr. Miller informed me that there was a good possibility Mr. Laver may be able to make it in; they had changed their mind; that he was going to call the courtroom later that morning.
He, subsequently, did call the courtroom and he informed us that he would probably be arriving at about two p.m.
At that time, even though I had an entire list of cases to conduct by myself, I managed to get a phone call to Mr. Mahoney, to tell him that he was we were going to try and bring him in; that I was going to call the detectives in our office to bring him in and that someone was going to be coming to his house to get him.
I got someone in the court. I believe it was the crier got in touch with the detective and made all the appropriate arrangements to get out and pick this man up and bring him in.
*189 They went out to his house and, apparently, when they rang the doorbell, he had been sleeping at the time. He had worked all night
. . . .
Mr. Doyle told me that the complainant called him. Apparently, he heard the doorbell ring. He had been sleeping. By the time he got down to the front door, the detectives, who had a car full of people to take down to court, had left.[9] He had no other way to get to court, so that the case, in fact, was continued to the earliest possible date, and Mr. Laver, at that time, asked the judge to recuse himself, because Judge Katz denied their motion and he didn't think it would be appropriate for Judge Katz to even hear the trial at that point, so I don't believe the case could have gone on that day unless we could have found another courtroom, but, in any event, Mr. Laver did show up, asked the judge to recuse himself and the case was continued to the earliest possible date consistent with the court's business, which was March 26th, 1981."
After the trial had been assigned to another judge and continued until March 27, the Commonwealth, on March 17, filed a motion to extend the time to accommodate the new trial date. Judge Sporkin heard the extension petition on March 25 and found that the inability to commence trial on March 16 before Judge Katz had not been caused by a Commonwealth failure to exercise due diligence. Therefore, he granted an extension until March 27. Trial was held and completed on March 26.
The test for determining whether due diligence was exercised is one of reasonableness under the circumstances. Commonwealth v. Wroten, 305 Pa.Super. 340, 345, 451 A.2d 678, 681 (1982); Commonwealth v. Long, 288 *190 Pa.Super. 414, 419, 432 A.2d 228, 231 (1981). Under the circumstances here present, we agree with the trial court that the efforts of the Commonwealth to obtain the presence of the complaining witness were reasonable. It is not the role of a court to second-guess the methods used by the prosecutor to obtain the witness' presence, even when hind-sight indicates that a more efficacious method might have been used. Commonwealth v. Tann, 298 Pa.Super. 505, 507-508, 444 A.2d 1297, 1298 (1982); Commonwealth v. Long, supra, 288 Pa.Superior Ct. at 419, 432 A.2d at 231. The failure to subpoena a witness cannot be equated with a lack of due diligence, especially where the witness in question is also the complainant. Commonwealth v. Dancy, 317 Pa.Super. 578, 585, 464 A.2d 473, 477 (1983). Indeed, this Court on prior occasions has suggested that the practice of putting witnesses on call may actually be preferable to issuing a subpoena for them where there is likelihood that a case may be delayed. "It insures that when the defense is actually ready to proceed to trial, the Commonwealth will be ready, unhampered by disillusioned witnesses who have `given up' on the case and stopped showing up for trial listings." Commonwealth v. Sheppard, 305 Pa.Super. 283, 290, 451 A.2d 533, 536 (1982). See also: Commonwealth v. Daniels, 321 Pa.Super. 486, 490, 468 A.2d 814, 815-16 (1983). The trial court did not err in granting the Commonwealth's request for an extension.
Finally, appellant contends that Mahoney should not have been permitted to testify that it was appellant who accosted him on July 15 because his identification testimony was the product of a suggestive pre-trial confrontation. Mahoney, who was unable to identify appellant in a lineup conducted shortly after the incident, readily identified appellant at the preliminary hearing as one of his assailants. Appellant argues that this identification was the product of suggestiveness inherent in the preliminary hearing setting, at which the identity of the accused was obvious. He contends that the victim's in-court identification testimony, therefore, should have been suppressed, both because the victim had failed to identify him during a pre-preliminary *191 hearing lineup and also because of the inherently suggestive nature of the preliminary hearing.
In determining the admissibility of identification testimony, the inquiry must be whether, under the totality of the circumstances, the identification was reliable. Commonwealth v. Silver, 499 Pa. 228, 235, 452 A.2d 1328, 1331 (1982); Commonwealth v. Sample, 321 Pa.Super. 457, 461, 468 A.2d 799, 801 (1983); Commonwealth v. Johnson, 301 Pa.Super. 13, 15, 446 A.2d 1311, 1312, modified, 499 Pa. 380, 453 A.2d 922 (1982). Where the circumstances demonstrate an independent basis for an identification, even an impermissibly suggestive pre-trial procedure will not bar an in-court identification. Commonwealth v. Derrick, supra, 322 Pa.Superior Ct. at 534, 469 A.2d at 1120; Commonwealth v. Sample, supra, 321 Pa.Superior Ct. at 462, 468 A.2d at 801; Commonwealth v. Thompkins, 311 Pa.Super. 357, 363, 457 A.2d 925, 928 (1983); Commonwealth v. Spiegel, 311 Pa.Super. 135, 144, 457 A.2d 531, 535-536 (1983). The factors to be considered in determining sufficient reliability to permit in-court identification testimony include "(1) the manner in which the pretrial identification was conducted; (2) the witness' prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant's actual description and any description given by the witness before the [out-of-court] identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification." Commonwealth v. Laurenson, 323 Pa.Super. 46, 59-60, 470 A.2d 122, 128 (1983), quoting Commonwealth v. Slaughter, 482 Pa. 538, 546, 394 A.2d 453, 457 (1978). The most important of these factors is the opportunity of the witness to view the actor at the time of the crime. Commonwealth v. Sample, supra, 321 Pa.Superior Ct. at 462, 468 A.2d at 801; Commonwealth v. Spiegel, supra, 311 Pa.Superior Ct. at 145, 457 A.2d at 536; Commonwealth v. Davis, 293 Pa.Super. 447, 452, 439 A.2d 195, 198 (1981). Here, the victim was face to face with *192 appellant for "five to ten minutes in good light." This was sufficient to permit a finding by the suppression court that an independent basis existed for the victim's in-court identification.
The victim's prior failure to identify appellant did not render his identification testimony inadmissible per se. In Commonwealth v. Zabala, 303 Pa.Super. 72, 449 A.2d 583 (1982), this Court held:
"The fact that the witnesses could not identify appellant in a photographic array does not render their in-court identifications any less admissible. The fact that they could not identify appellant earlier is relevant only to the weight and credibility of their testimony."
Id., 303 Pa.Superior Ct. at 79, 449 A.2d at 587 (citations omitted). See also: Commonwealth v. Hurd, supra.
It is a significant fact in this case that appellant was arrested at the scene of the alleged robbery by a policeman who saw him back away from the complainant. When the victim pointed out the appellant and accused him of assaulting him, appellant was present on the scene and was immediately arrested. A subsequent suggestiveness inherent in a preliminary hearing was not likely to have produced a case of mis-identification under these circumstances.
The judgment of sentence is affirmed.
NOTES
[1] 18 Pa.C.S. § 3701.
[2] 18 Pa.C.S. §§ 901, 3921.
[3] 18 Pa.C.S. § 2701.
[4] 18 Pa.C.S. § 903.
[5] Serious bodily injury is defined as "[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 Pa.C.S. § 2301.
[6] January 11 was the 180th day, but it was a Sunday.
[7] Although appellant again failed to appear for preliminary hearing on August 6, no additional days were excluded because it was determined that he had been in custody, having failed to meet bail.
[8] Appellant argues that he did not waive Rule 1100. The record is clear, however, that appellant made an oral, informed waiver and, in addition, executed a written waiver of Rule 1100.
[9] This evidence was objected to as hearsay, but the hearing court overruled the objection and received the evidence. This ruling and the alleged hearsay evidence have not been challenged on appeal. The objection to the evidence, therefore, has been waived. See: Commonwealth v. Harper, 292 Pa.Super. 192, 436 A.2d 1217 (1981).
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-742V
E-Filed: September 16, 2015
* * * * * * * * * * * * * * *
*
SYNDEY RICH, * UNPUBLISHED
*
Petitioner, * Special Master Hamilton-Fieldman
*
v. *
* Finding of Fact; Influenza (“Flu”) Vaccine;
* Acute Disseminated Encephalomyelitis
SECRETARY OF HEALTH * (“ADEM”); Timing of Onset of Symptoms;
AND HUMAN SERVICES, * Contemporaneous Medical Records Versus
Respondent. * Testimony.
*
* * * * * * * * * * * * * * *
Andrew Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Sarah Duncan, United States Department of Justice, Washington, DC, for Respondent.
FINDING OF FACT1
On November 1, 2012, Sydney Rich (“Petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program2 (the “Program”). Petitioner alleged that, as a
1
Because this finding of fact contains a reasoned explanation for the action in this case, the
undersigned intends to post this order on the United States Court of Federal Claims’ website, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899,
2913 (codified as amended at 44 U.S.C. § 3501 and note (2006)). In accordance with Vaccine
Rule 18(b), a party has 14 days to identify and move to delete medical or other information that
satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a
motion for redaction must include a proposed redacted decision. If, upon review, the
undersigned agrees that the identified material fits within the requirements of that provision, such
material will be deleted from public access.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42
U.S.C. §§ 300aa-10 et seq. (hereinafter Vaccine Act or the Act). Hereafter, individual section
references will be to 42 U.S.C. § 300aa of the Act.
1
result of receiving an influenza (“flu”) vaccination on September 26, 20103, she developed Acute
Disseminated Encephalomyelitis (“ADEM”). 4 See Petition (Pet.) at 1, ECF No. 1.
The matter is before the undersigned at this time for a fact ruling on the question of the
timing of ADEM symptom onset. The undersigned conducted a fact hearing on October 30,
2014, at which Petitioner, her mother, Heather Rich, her college roommate, Caramia Enrich, and
her former supervisor, Aurora Tapia-Contreras, testified. See Transcript (“Tr.”) at 3.
Respondent asserted that Petitioner’s medical records do not show complaints consistent
with ADEM until after Petitioner was hospitalized for pneumonia and a pneumothorax5 on
December 27, 2010, and that the undersigned should therefore find that symptom onset of
Petitioner’s allegedly vaccine-caused ADEM is on or after that date. Rule 4(c) Report, ECF No.
37, at 9-10. Petitioner conceded that her medical records were primarily focused on her
pulmonary complaints, and that they do not affirmatively reflect any neurological problems prior
to Petitioner’s admission to the hospital on December 27, 2010. See generally Petitioner’s Pre-
Hearing Submission, ECF No. 61. However, Petitioner asserted that she has presented evidence
in the form of affidavits and hearing testimony to rebut the presumptive accuracy of the medical
records. Petitioner stated that her evidence shows that she was experiencing symptoms such as
dizziness, nausea, lightheadedness, weakness, difficulty with word finding, heaviness in her
limbs, and pain in her legs prior during the fall of 2010, and that she had reasonable explanations
for why those symptoms were not discussed with any of her medical providers. Id.; Pet. Ex. 1 at
2-3; Pet. Ex. 16 at 1-2; Pet. Ex. 3 at 1-2; Pet. Ex. 4 at 7; Pet. Ex. 15 at 2.
3
Because written records were missing, Respondent questioned whether Petitioner actually
received the vaccine alleged to have caused her injury. See Order, April 25, 2013. A fact
hearing was held on June 24, 2013 about this issue and the undersigned issued an “Order and
Ruling on Facts Pertaining to Petitioner’s Receipt of a Covered Vaccination” on July 26, 2013
[hereinafter “Order and Ruling”]. That Order concluded that Petitioner received the influenza
vaccine on September 26, 2010, as stated in the Petition. Order and Ruling at 10; ECF No. 35.
4
ADEM is an inflammation involving the brain and spinal cord. Dorland’s: Dorland’s
Illustrated Medical Dictionary, 613 (32nd. ed. 2012). The typical cause is an acute viral
infection and “it is believed to be a manifestation of an autoimmune attack on the myelin of the
central nervous system.” Id. The symptoms “appear rapidly, beginning with encephalitis-like
symptoms such as fever, fatigue, headache, nausea, and vomiting.” Furthermore, many patients
experience neurological symptoms including confusion, visual blurring, weakness, and
drowsiness. See Acute Disseminated Encephalomyelitis (ADEM), Cleveland Clinic, last
reviewed on August 22, 2014, available at:
http://my.clevelandclinic.org/services/neurological_institute/mellen-center-multiple-
sclerosis/diseases-conditions/hic-acute-disseminated-encephalomyelitis.
5
A pneumothorax is “an accumulation of air or gas in the pleural space.” Dorland’s: Dorland’s
Illustrated Medical Dictionary, 1476 (32nd ed. 2012).
2
Based on the record as a whole, the undersigned finds that the symptoms of Petitioner’s
ADEM began on or after her December 27, 2010 hospitalization for pneumonia and
pneumothorax.
I. Procedural History
On November 1, 2012, Petitioner filed a Petition alleging that a flu vaccination
administered in 2010 caused Petitioner to develop ADEM. Pet. at 1-4. This case was initially
assigned to Special Master Denise Vowell; the case was transferred to the undersigned on March
4, 2013. See Notices of Assignment, filed November 1, 2012 and March 4, 2013.
Following the filing of Petitioner’s medical records and affidavits, the undersigned
determined that a fact hearing regarding whether Petitioner received the vaccine in question was
necessary. See Order, ECF No. 22, at 1. A video conference fact hearing took place in
Washington, DC on June 24, 2013. Tr. at 1-7. On July 26, 2013, the undersigned made a
determination that “Petitioner … has established by preponderant evidence that she received the
influenza vaccination at Memorial Christian Church in Oklahoma City, Oklahoma on September
26, 2010.” Order and Ruling on Facts Pertaining to Petitioner’s Receipt of a Covered
Vaccination [hereinafter “Order and Ruling”], ECF No. 35, at 10. The undersigned also noted
that Petitioner had begun to suffer from symptoms, including fatigue and weakness, shortly after
receiving the vaccination in September 2010; however, she had a positive H1N1 test after she
was hospitalized for ADEM in January 2011. Id.
On September 10, 2013, Respondent filed a Rule 4(c) Report in which she denied that
Petitioner had presented a reputable medical theory, evidence of “a logical sequence of cause and
effect,” or evidence of a “medically appropriate temporal relationship” between Petitioner’s
vaccine and her alleged injury. Rule 4 Report, ECF No. 37, at 9-10. Respondent identified a
dearth of documented neurological symptoms in the medical records prior to Petitioner’s
hospitalization for pneumonia and pneumothorax on December 27, 2010,, and she articulated a
theory of alternative causation. Id. at 10-11. Respondent did not believe that this case was
appropriate for compensation. Id. at 11.
During a status conference that took place on September 19, 2013, the undersigned
discussed the status of the case with the parties, who agreed to explore settlement while
simultaneously preparing for a trial. See Order, ECF No. 38. Petitioner filed an expert report
from Dr. David Siegler on December 9, 2013. Pet. Ex. 18, ECF No. 39. Between the filing of
Petitioner’s expert report and Respondent’s expert report, Petitioner identified missing medical
records and filed them on July 28, 2014. Pet. Ex. 23, ECF No. 52. On September 5, 2014,
Respondent filed an expert report from Dr. Michael Kohrman. Respondent’s Exhibit (“Resp.
Ex.”) A, ECF No. 55. Following a status conference that took place on September 16, 2014, the
parties agreed that the date of onset was still in contention and agreed that an onset hearing be
held. See Order, ECF No. 56.
On October 9, 2014, Petitioner filed a Pre-Hearing Submission. Petitioner’s Pre-Hearing
Submission, ECF No. 61. Petitioner alleged that her symptoms began earlier than January 7,
2011, when she was diagnosed with ADEM. Id. at 1. She stated that circumstantial evidence,
3
including testimony and affidavits, show that Petitioner began to show symptoms of ADEM
“within weeks of receiving the influenza vaccination on September 26, 2010.” Id. at 6. An
Onset Hearing took place on October 30, 2014 in Oklahoma City, Oklahoma. See Order, ECF
No. 63.
I. The Record
a. Medical Records
Petitioner filed several medical records from various treating physicians. Petitioner had a
pre-existing diagnosis, as early as 2004, of asthma, for which she was prescribed a variety of
medication including Pulmicort, Singulair, Symbicort, Advair, and Albuterol. See Pet. Ex. 4 at
51; see generally Pet. Ex. 4. However, Petitioner did not always take the prescribed medication.
See Pet. Ex. 4 at 15, 16. Pulmonary testing conducted in 2004, 2006, and 2010 consistently
indicated that Petitioner had a pulmonary obstruction and low vital capacity. Pet. Ex. 4 at 30,
47-48, 60. Otherwise, Petitioner appeared healthy and was followed frequently by her
pediatrician, Dr. Colleen Dooley. See generally Pet. Ex. 4.
Petitioner received flu vaccines in 2005, 2006, 2007, 2008, and 2009, and she did not
report any adverse reactions to these flu vaccines. Pet. Ex. 4 at 37-38, 42. On September 26,
2010, Petitioner received the flu vaccine at issue. Order and Ruling at 10.
About two weeks after vaccination, on October 8, 2010, Petitioner went to her
pediatrician, Dr. Dooley, because she was having trouble breathing at night and was unable to
get Advair, her asthma medication. Pet. Ex. 4 at 8. She was “using inhaler ‘a lot.’” Id.
Although her mother often accompanied her to medical appointments, Tr. at 20, the records
reflect that Petitioner was “unaccompanied” at this visit.” Id. Dr. Dooley’s impression was that
Petitioner was having an exacerbation of her asthma and she prescribed asthma medication, in
addition to giving Petitioner some samples. Id. Petitioner went to Dr. Dooley again on October
23, 2010; her mother was at this visit. Pet. Ex. 4 at 7. During the visit, Petitioner again
complained about her asthma and she stated that she could not afford her medication. Id. Dr.
Dooley’s impression was that Petitioner was suffering from asthma and prescribed her
prednisone and Singulair. Id. The medical records from Dr. Dooley do not document that
Petitioner complained of symptoms of fatigue, heavy legs, difficulty concentrating, or dizziness.
See generally Pet. Ex. 4. Another visit with Dr. Dooley was not noted until April 8, 2011.6 See
Pet. Exs. 5, 6.
On November 10, 2010, Petitioner visited the on-campus health center at the University
of Oklahoma, where she lived and attended school, with complaints of coughing and trouble
breathing. See generally Pet. Ex. 15. On the Center’s symptom checklist, Petitioner reported
that she had a fever, night sweats, a sore throat, a headache and ear ache/pain, a cough that was
interfering with her sleep, and muscle aches, but that her symptoms were “somewhat
improving”. Id. at 2. Exam notes documented wheezing, a red pharynx, and mucus and sinus
issues; a Doctor of Osteopathic Medicine at the health center, Stephanie Parker, diagnosed
6
Petitioner’s affidavit states that she “ended up going to the doctor in Oklahoma City” after the
November 10, 2010 clinic visit, but no records of such a visit were provided. Pet. Ex. 1 at 2.
4
Petitioner with bronchitis and asthma. Id. Petitioner was given a nebulizer treatment at the
clinic, after which she felt “better” according to L. Cushman, R.N. Id. Petitioner was sent home
with albuterol for additional nebulizer treatments, and antibiotics. Id. Again, the records do not
document symptoms of extreme fatigue, “heaviness,” dizziness, difficulty concentrating, or
sensitivity to light.
On December 27, 2010, Petitioner presented to the emergency room at Integris Baptist
Medical Center with “wheezing, dyspnea7 . . . shortness of breath, [and] chest tightness starting
yesterday.” Pet. Ex. 5 at 9. She denied weakness or fatigue; her neurologic examination was
normal. Id. at 47-49.She reported that she had had a recent upper respiratory infection (“URI”),
a runny nose, and congestion, and that the onset of symptoms had been one day prior. Id. The
physician noted that she was experiencing a severe asthma exacerbation; however, she appeared
alert and oriented, despite being in moderate distress and anxious. Id. at 10. Dr. John Huff noted
that Petitioner had a computerized tomography (“CT”) scan in the emergency room that
“show[ed] an extensive right upper lobe pneumonia as well as trace anterior right upper lobe
pneumothorax.” Id. at 46-47. Petitioner was admitted to the intensive care unit (“ICU”) and was
given antibiotics, corticosteroids, and bronchodilators. Id. at 50. Her diagnoses included
community-acquired pneumonia, right small pneumothorax, asthma exacerbation, a left lower
lobe pulmonary nodule, allergic rhinitis, and hypoxemia8. Id. at 49-50. Influenza, both type A
and B, was ruled out through a laboratory test performed on December 27, 2010. Id. at 390.
The following day, on December 28, 2010, a right chest tube was placed for her
pneumothorax. Pet. Ex. 5 at 374. As the pneumothorax began to resolve, Petitioner continued to
have trouble breathing and she was intubated. Id. at 41, 362. A bronchoscopy was performed on
December 29, 2010 and “showed severe bronchitis.” Id. at 41.
Petitioner’s condition continued to worsen. Pet. Ex. 5 at 41-42. Following the
bronchoscopy, “[t]ube feeding was initiated. She had decreased responsiveness over the next
few days. Her sedatives were decreased; however, she continued to have decreased mental
status.” Id. The results of neurological exams were “extremely abnormal,” as was an MRI of
her cervical spine. Id. It was noted that the findings of her MRI “were consistent with acute
disseminated encephalomyopathy.” Id. A brain MRI conducted on January 6, 2011 showed,
among other things, an “[a]cute infarction of the splenium of the corpus callosum with areas of
diffusion restriction, T2 alteration, and abnormal contrast enhancement within pons . . . cervical
spine cord may relate to hypoxic injury. Additional considerations include demyelinating
process or vasculitis.” Pet. Ex. 5 at 368. A physician who saw Petitioner to manage her
tracheostomy tube, Dr. Maplani, interpreted her results to show “an acute infarction of the corpus
callosum with involvement of the pons in the right cerebellum. She had progression of the
cervical spine ischemic injury and now has a high spinal cord injury as a result.” Pet. Ex. 7 at 8.
7
Dyspnea is defined as “breathlessness or shortness of breath; difficult or labored respiration.”
Dorland’s: Dorland’s Illustrated Medical Dictionary, 582 (32nd ed. 2012).
8
Hypoxemia is “deficient oxygenation of the blood.” Dorland’s: Dorland’s Illustrated Medical
Dictionary, 908 (32nd ed. 2012).
5
Petitioner was examined by infectious disease specialist Aline Brown, M.D., on January
7, 2011. Pet. Ex. 5 at 173. Dr. Brown’s diagnosis was ADEM “which is usually post-
infectious.” Id. She recommended a sputum test, laboratory results from which showed a
positive H1N19 result as of January 7, 2011. Id. at 42; Pet. Ex. 17 at 1-3. Petitioner was started
on Tamiflu, in addition to the many medications she was already taking. Id. She started on a
four day course of Intravenous Immunoglobulin (“IVIG”) treatment on January 13, 2011. Id. at
42. When doctors attempted to wean her from the ventilator, she was unable to be weaned and a
tracheostomy was performed. Id; Pet. Ex. 22 at 1. The chest tube was discontinued on February
8, 2011, after doctors determined that her pneumothorax had resolved, and her ventilator was
discontinued the next day. Pet Ex. 5 at 42.
Several physicians attributed her condition to the H1N1 virus, for which she tested
positive for on January 7, 2011. Pet. Ex. 17 at 2. Dr. William B. Schueler, a professor at the
University of Oklahoma Health Sciences Center, opined that Petitioner had “some paralysis
secondary to the swine flu in January 2011.” Pet. Ex. 6 at 24. Another physician, Dr. Jenny Lee,
opined that Petitioner had an asthma exacerbation that “turned into bronchitis and then
pneumonia. This in turn was complicated by a ‘collapsed lung’ which required a chest tube and
intubation and ventilator assistance (Dec. 28, 2010). During her recovery she contracted the
‘swine flu’ (Jan 2011) which turned into encephalitis.” Pet. Ex. 6 at 27.
On February 17, 2011, Petitioner was transferred to Jim Thorpe Rehabilitation (“Jim
Thorpe”), where she remained until March 25, 2011. Id. at 28, 42. Her discharge diagnoses, as
reported on her discharge summary from Integris Baptist Medical Center, were: acute hypoxemic
respiratory failure, community-acquired pneumonia, H1N1 influenza, asthma exacerbation, right
pneumothorax, hypertension, acute disseminated encephalomyelitis, central hypothermia, critical
illness myopathy10, anxiety, mild protein-calorie malnutrition, and mild oropharyngeal
dysphagia11. Id. at 40-43.
Petitioner continued to receive treatment from home health aides following her discharge
from Jim Thorpe. See generally Pet. Ex. 6. She continues to require a wheelchair, as seen at the
onset hearing, and she requires assistance for many activities of daily living. Tr. at 5; Pet. at 4.
9
H1N1 is a seasonal flu virus with several severe complications such as pulmonary and cardiac
conditions. See John G. Barlett, MD, 2009 H1N1 Influenza – Just the Facts: Clinical Features
and Epidemiology, Medscape, last reviewed on November 23, 2009, available at:
http://www.medscape.com/viewarticle/709540_4; see also H1N1 (originally referred to as Swine
Flu), Flu.gov, available at: http://www.flu.gov/about_the_flu/h1n1/.
10
Critical illness myopathy is defined as “severe muscle weakness, hypotonia, and depressed
tendon reflexes of many different muscles . . . in some it may be a complication of therapy with
corticosteroids or neuro-muscular blocking agents, but in others the cause is unknown.”
Dorland’s: Dorland’s Illustrated Medical Dictionary, 1224 (32nd ed. 2012).
11
Dysphagia is defined as “difficulty in swallowing”; oropharyngeal dysphagia refers to
“difficulty initiating the swallowing process.” Dorland’s: Dorland’s Illustrated Medical
Dictionary, 579 (32nd ed. 2012).
6
b. Affidavits
In addition to the medical records, Petitioner filed several affidavits. Petitioner’s own
Affidavit was filed on December 5, 2012. See Pet. Ex. 1, ECF No. 5-1. In this affidavit,
Petitioner stated that a few weeks after vaccination12, she would get “fatigued easily.” Pet. Ex. 1
at 2. Additionally, she stated that she was lethargic, fatigued, and frequently had headaches. Id.
She explained that she didn’t tell her mother about her health because she suspected that her
mother would make her return home from her on-campus housing and go to the doctor. Id. at 2.
However, one day she felt dizzy, light-headed, weak, and nauseous and she told her mother, who
urged her to come home. Id. After seeking treatment at the on-campus health center, she stated
that her symptoms continued, but she didn’t tell her mother. Id.
Petitioner filed an affidavit authored by her college roommate, Caramia Testa, on
December 5, 2012. See Pet. Ex. 3, ECF No. 5-3. Ms. Testa recounted that Petitioner was
healthy and active prior to vaccination, but that “[a] few weeks after getting the flu shot, Sydney
started showing symptoms of something being wrong.” Id. at 1. The specific symptoms she
discussed included fatigue and headaches. Id. at 1-2. Ms. Testa noted a particular occasion,
Halloween 2010, where Petitioner appeared ill and fatigued. Id. at 2. The affidavit describes
that she thought Petitioner’s symptoms seemed to worsen until the semester ended and Sydney
was hospitalized. Id. at 2-4.
Petitioner also filed an affidavit from witness Aurora Tapia.13 See Pet. Ex. 24, ECF No.
60. Ms. Tapia affirmed that she “specifically recall[ed] when Sydney got her flu shot,” and that
she “recall[ed] her symptoms starting shortly thereafter.” Pet. Ex. 24 at 1. According to Ms.
Tapia, Petitioner’s symptoms included headaches, dizziness, fatigue, and acting different than
usual; she specified that these symptoms started in late October of 2010 and into November of
2010. Id. at 1. She indicated that she was responsible for training Petitioner at Panera Bread,
their mutual place of employment, and she noticed Petitioner was slow to complete tasks
following receipt of the vaccine at issue here. Id.
Finally, Petitioner filed an affidavit authored by her mother, Heather Rich, on May 2,
2013. Pet. Ex. 16, ECF No. 23. According to Ms. Rich, Petitioner received the flu vaccination
on September 26, 2010, and Petitioner’s symptoms, including fatigue, headaches, and trouble
sleeping, began “[a] couple of weeks later.” Id. at 1. Other symptoms Ms. Rich noted included
trouble speaking in complete sentences, weakness, lack of energy, and headaches. Id. at 1-2.
Ms. Rich believed that these symptoms were attributable to Petitioner’s asthma. Id. at 2.
c. Testimony
i. Sydney Rich
Petitioner testified as to the date of onset of her symptoms at the hearing
12
In her affidavit, Petitioner never gives a date, or range or dates, for the onset of her symptoms.
See Pet. Ex. 1, ECF No. 5-1.
13
Aurora Tapia testified under the name Aurora Tapia-Contreras at the hearing. Tr. at 73.
7
on October 30, 2014. She explained that, prior to vaccination, she was involved with a sorority
at the University of Oklahoma and felt healthy. Tr. at 129-31. Although she used her rescue
inhaler a few times during the move-in process, this was not abnormal, as she regularly used her
rescue inhaler a couple of times a week. Tr. at 130.
Petitioner stated that her first symptom was “feeling tired” and it began a few weeks after
vaccination, in mid-October. Tr. at 137-38, 162. Petitioner clarified that when she said she was
“feeling tired,” her “body started feeling heavier than it did [before she experienced this
symptom]” and her legs were heavy. Tr. at 137, 162-63. The next symptoms she began to
experience were headaches and dizziness and she recalled that these began in early to mid-
November. Tr. at 139, 162. Although she attempted to use her rescue inhaler and experienced
some initial relief, it did not continue to alleviate her symptoms. Tr. at 138-39. Petitioner
explained that after experiencing the first symptoms, she never improved and her symptoms
worsened over time. Tr. at 165.
Counsel attempted to clarify the specific time of onset; Petitioner specifically recalled
having symptoms during Halloween of 2010. Tr. at 139-40. The symptoms she remembered
included being exhausted, feeling “heavy”, having difficulty breathing and headaches. Id. She
stated that while experiencing these symptoms, she spoke to her mother but didn’t tell her mother
about her ailments because she was afraid she would be forced to seek medical treatment. Tr. at
140-41. One of her last symptoms, being bothered by light, began “[l]ate November into
December.” Tr. at 145. By the finals period, at the beginning of December 2010, Petitioner was
“exhausted all the time. [Her] body felt so heavy. [She] was tired. [She] was having trouble
breathing. [She] was having headaches, dizziness on a daily basis. And [she] couldn’t hardly
focus at all.” Tr. at 158. A couple of weeks before she was hospitalized, on December 27, 2010,
she felt unusually irritable and emotional. Tr. at 159-60. Until this time, however, she was still
able to function. Tr. at 160. She could still drive; she could carry things. Id.
Petitioner was questioned about her doctors’ visits. She stated that she visited her
primary care physician, Dr. Colleen Dooley, on October 8, 2010, without her mother. Tr. at 142.
She explained that she didn’t discuss the symptoms she was experiencing and that she was given
asthma medication, but didn’t take it. Tr. at 142-43. She went back to Dr. Dooley with her
mother on October 23, 2010, and was given more medication, which she finally did take. Tr. at
143. She went to the on-campus infirmary on November 10, 2010. Tr. at 146. In between these
appointments, Petitioner testified that her symptoms were worsening, that “it was so hard to
function,” and that she “was so scared.” Id. Even then, however, she did not discuss these
symptoms with the medical personnel at either Dr. Dooley’s office or at the on-campus health
center. Tr. at 146-52. When given a checklist at the on-campus health center, however,
Petitioner checked the boxes for muscle aches and headaches, which she explained she was
experiencing at the time. Tr. at 151-52. Petitioner testified that her reasoning for not discussing
her other symptoms was that she believed her symptoms were asthma related, and that she “just
thought [she] was going to get better.” Tr. at 169-70, 172. She was also worried that the doctor
would prescribe steroids for her, which would cause her to gain weight. Tr. at 178.
The mental symptoms Petitioner was experiencing were discussed at the hearing as well.
Petitioner stated that she experienced trouble focusing at work and that it took her longer to
8
finish tasks than it did before vaccination, but she didn’t think “it was bad enough that [her] job
would be in trouble.” Tr. at 154, 186. She was still able to carry her belongings, drive a car, and
get in and out of bed, although it became increasingly more difficult. Tr. at 157, 160.
Petitioner testified that many individuals, including her mother, co-workers, and friends,
were concerned about her health; she also testified that she was concerned about her own health.
Tr. at 180. Despite their concerns and her own, Petitioner did not discuss her symptoms with
medical professionals because “[she] was just naive. [She] was stupid. . . [she] was just a stupid
teenager.” Tr. at 180. During the onset hearing, Petitioner stated, multiple times, that she did
not report her specific symptoms because she attributed them to her asthma. See, e.g., Tr. at 188.
ii. Heather Rich
Heather Rich, Petitioner’s mother, was the first to testify at the onset hearing; she
also testified at the previous fact hearing.14 Ms. Rich testified that her daughter was healthy in
the fall of 2010, aside from the asthma she controlled using medication; however, Ms. Rich
testified that Petitioner was not always compliant with taking her prescribed medication. Tr. at
12; 14. Ms. Rich explained that Petitioner had asthma problems “probably every couple of
months” and used a breathing machine to treat these flare-ups. Tr. at 32. Ms. Rich stated that the
symptoms Petitioner usually experiences when in distress due to asthma include trouble
breathing, coughing, and wheezing. Tr. at 32-33. Typically, she described, “when [Petitioner]
was at her worst she would do two breathing treatments, and she would be fine. It opened her
right up.” Tr. at 62.
Ms. Rich stated that she had a good relationship with her daughter, and that although
Petitioner lived on-campus at the University of Oklahoma, they spoke daily on the phone. Tr. at
17. Petitioner called her mother a “helicopter mom” and testified that Ms. Rich was heavily
involved in her daughter’s life. Tr. at 62. Ms. Rich explained that she saw Petitioner weekly
because Petitioner came home on the weekends to work at Panera Bread, a local restaurant. Tr.
at 17. The Rich home had “a couple of levels” and Ms. Rich did not notice Petitioner having
trouble with the steps when she was home, although she clarified that they were not often in the
house at the same time. Tr. at 38-39.
The symptoms of Petitioner’s ADEM began, according to Ms. Rich, around the “first part
of October.” Tr. at 18. Ms. Rich explained that after vaccination, Petitioner called her mother
with complaints of headaches and lack of energy. Id. They spoke about seeing a doctor, but
Petitioner “made the comment that she would be fine, that she should probably take her [asthma]
medication.” Id. Ms. Rich testified that Petitioner told her that she “was having trouble walking
to class … her legs were tired … and … felt heavy,” which prompted a visit to her primary care
physician, Dr. Dooley, on October 23, 2010. Tr. at 19-20. During this visit, Ms. Rich attended
the appointment and gave a history to the physician’s office as “[she] tended to talk for Sydney a
lot.” Tr. at 20. The symptoms, such as trouble walking and headaches, were not discussed at
this appointment, because Ms. Rich stated that she “thought it was just asthma.” Tr. at 21-22,
14
A fact hearing was held on June 24, 2013, to determine whether Petitioner received a flu
vaccination. The transcript for the June 24, 2013 will be cited as “Tr. June.” The transcript from
the current hearing will be cited as “Tr.”.
9
41. Ms. Rich did not notice any changes in Petitioner’s balance, but she did notice that Petitioner
“wasn’t like herself.” Tr. at 41.
Ms. Rich informed the Court that when Petitioner’s symptoms continued, Ms. Rich urged
her to see at doctor. Tr. at 24. Petitioner agreed to go to an on-campus health center at the end
of November. Tr. at 24. The symptoms Ms. Rich recalled that Petitioner had complained of
trouble with her legs, headaches, trouble sleeping, and weakness. Tr. at 24-25. When they spoke
on the phone, Ms. Rich said that Petitioner “was kind of slurring her words a little bit.” Tr. at 25.
Ms. Rich explained that the first symptoms she noticed that weren’t typical for an asthma
exacerbation, including slurred speech and the inability to walk to class. Tr. at 40.
Following finals, which Petitioner struggled to complete, she returned home for
Christmas break. Tr. at 26-27. During the break, Ms. Rich noticed that Petitioner seemed
“different.” Tr. at 27-28. Ms. Rich received a phone call from Petitioner on December 27, 2010,
stating that something was wrong and that she needed to be transported to the emergency room.
Tr. at 28-29. Again, Ms. Rich gave medical personnel a history and again she noted that she
“tend[s] to speak up for Sydney.” Tr. at 30.
iii. Aurora Tapia-Contreras
Aurora Tapia-Contreras, Petitioner’s supervisor at Panera Bread, testified second
at the onset hearing. She stated that she met Petitioner in January of 2009 at their mutual place
of employment and “became friends right off the bat.” Tr. at 73-74. Ms. Tapia-Contreras noted
that Petitioner began to take shorter, weekend-only shifts after school started, but she did not
notice any physical or mental shortcomings related to her job performance. Tr. at 75-76.
In October 2010, Ms. Tapia-Contreras noted that Petitioner complained that she was not
feeling well, and particularly that she complained of headaches, dizziness, and fatigue. Tr. at 77.
She first noticed Petitioner’s breathing troubles in mid-November. Tr. at 89. Furthermore, Ms.
Tapia-Contreras noted that Petitioner’s “mental process was kind of slow” and she had trouble
understanding job-related tasks. Tr. at 79. When discussing her physical performance, Ms.
Tapia-Contreras explained that the job was physical and required Petitioner to stand; however,
she did not notice any physical deficits. Tr. at 84-85.
As Petitioner continued to experience worsening symptoms, Ms. Tapia-Contreras felt that
she needed to cover for Sydney’s inadequate performance; Ms. Tapia-Contreras explained that
she told Petitioner to seek medical treatment “all the time.” Tr. 80-83.
iv. Caramia Enrich15
Caramia Enrich, Petitioner’s high school friend and freshman year roommate, testified. Mrs.
Enrich stated that, prior to vaccination, Petitioner did not appear to have any trouble walking,
any dizziness, or any headaches. Tr. at 98-99. She remembers Petitioner getting the vaccination
15
Caramia filed an affidavit on December 5, 2012 using her maiden name, Caramia Testa. At
the hearing, on October 30, 2014, Caramia was married and testified under her married name,
Caramia Enrich.
10
and recounted that she noted Petitioner’s health changing in October 2010. Tr. at 100. The first
symptom she noticed was fatigue, at the beginning of October. Tr. at 108, 115. In particular, she
remembered that Petitioner was excited about a trick-or-treat event on Halloween, but that at the
end of the event, Petitioner “was completely drained,” which was uncharacteristic of Petitioner’s
behavior. Tr. at 100-01. She explained that, contrary to testimony in her own affidavit,
Petitioner had complained of dizziness and leg pain immediately preceding Halloween. Tr. at
101, 122. The leg pain, as clarified by Mrs. Enrich, was “not like a shooting pain. What she had
said was, like, heavy.” Tr. at 122.
Mrs. Enrich stated that Petitioner’s symptoms worsened in November of 2010 and that
“[t]owards November, she was really tired all the time, really fatigued and complaining more
about heavy arms and legs and so forth. And I saw more of the dizziness and headaches.” Tr. at
103. Although Petitioner complained of dizziness, Mrs. Enrich does not remember Petitioner
losing her balance or stumbling. Tr. at 103. Mrs. Enrich recounted that Petitioner spoke to her
mother frequently and that “[s]he would talk about how she felt tired . . . [b]ut she was usually
pretty quiet about symptoms and so forth.” Tr. at 121.
Ms. Enrich mentioned that sound and light seemed to bother Petitioner. Tr at 105.
Petitioner would take the stairs to their sixth floor dormitory room; Ms. Enrich stated that
Petitioner was still using the stairs to reach the sixth floor at the end of October. Tr. at 115-16.
Mrs. Enrich explained that Petitioner’s speech wasn’t slurred, but she seemed incoherent at times
and would “easily los[e] her train of thought.” Tr. at 117-18.
Petitioner’s trip to the on-campus health facility was discussed, and Ms. Enrich recalled
that Petitioner wanted to discuss the symptoms she had been experiencing including “how she
felt tired at the time, and [that] she really thought her asthma was kicking up.” Tr. at 118-19.
Petitioner purportedly told Mrs. Enrich that the doctors thought she might have bronchitis or the
flu. Tr. at 104. The last time Mrs. Enrich saw Petitioner before her hospitalization was the day
before Christmas break. Tr. at 110.
II. The Applicable Legal Standards
A petitioner must prove, by a preponderance of the evidence, the factual circumstances
surrounding her claim. 42 U.S.C. §300aa-13(a)(1)(A). To meet the preponderance of the
evidence standard, the special master must “believe the existence of a fact is more probable than
its nonexistence before [she] may find in favor of the party who has the burden to persuade the
[special master] of the fact’s existence.” In re Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J.,
concurring, quoting F. James, Civil Procedure, at 250-51 (1965)).
In determining whether a petitioner is entitled to compensation under the Vaccine Act, a
special master must consider the record as a whole. 42 U.S.C. §300aa-13(a)(1). The special
master may not make a finding based on the claims of a petitioner that are not substantiated by
medical records or medical opinion. Id. The process of finding facts pursuant to the Vaccine
Act begins with analyzing the medical records. 42 U.S.C. §300aa-11(c)(2). As set forth in 42
U.S.C. §300aa-13(b)(1)(A), a special master shall consider “all . . . relevant medical or scientific
evidence contained in the record,” including “any diagnosis, conclusion, medical judgment . . .
11
regarding the nature, causation, and aggravation of petitioner’s illness, disability, injury,
condition, or death.”
To resolve factual issues, the special master must weigh the evidence presented, which
may include contemporaneous medical records and testimony. See Burns v. Sec’y of Health &
Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special master must decide
what weight to give evidence including oral testimony and contemporaneous medical records).
“Medical records, in general, warrant consideration as trustworthy evidence.” Cucuras v. Sec’y
of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Records created
contemporaneously with the events they describe are presumed to be accurate, as individuals
seeking treatment will likely report the circumstances relating to their symptoms and history
accurately to ensure their doctors have all the information necessary to treat their malady.
Cucuras, 993 F.2d at 1527-28. Similarly, doctors recording their patients’ histories are paying
particular attention to record such histories accurately so that they will be aware of all of the
patient’s aliments in order to effectively treat them. Id. Therefore, particular attention should be
paid to contemporaneous medical records and opinions of treating physicians. Capizzano v.
Sec’y of Health & Human Servs., 440 F.3d 1317, 1326 (Fed. Cir. 2006); Cortez v. Sec’y of
Health & Human Servs., No. 09-176V, 2012 WL 4829301, at *6 (Fed. Cl. Spec. Mstr. Aug. 31,
2012).
When considering the weight to be given to oral testimony versus contemporaneous
records, “[i]t has generally been held that oral testimony which is in conflict with
contemporaneous documents is entitled to little evidentiary weight.” Murphy v. Sec’y of Health
& Human Servs., 23 Cl.Ct. 726, 733 (1991), aff’d, 968 F.2d 1226 (Fed. Cir.), cert. denied sub
nom. Murphy v. Sullivan, 506 U.S. 974 (1992) (citing United States v. United States Gypsum
Co., 333 U.S. 364, 396 (1947) (“Where such testimony is in conflict with contemporaneous
documents we can give it little weight, particularly when the crucial issues involve mixed
questions of law and fact.”)
Records that are clear, consistent, and complete should be accorded substantial weight.
Lowrie v. Sec’y of Health & Human Servs., No. 03-1585, 2005 WL 6117475, at *20 (Fed. Cl.
Spec. Mstr. Dec. 12, 2005). To overcome the presumptive accuracy of the written medical
records through testimony, the testimony must be “consistent, clear, cogent, and compelling.”
Sanchez v. Sec’y of Health & Human Servs., No. 11-685, 2013 WL 1880825, at *3 (Fed. Cl.
Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).
III. Discussion
“Petitioner alleges that shortly after having received the influenza vaccine on September
26, 2010, she began to experience the onset of neurological symptomology that was
subsequently diagnosed as ADEM.” Petitioner’s Pre-Hearing Submission, ECF No. 61, at 1.
That “neurological symptomology” allegedly included “unprecedented symptoms [of] extreme
fatigue, headaches, lack of concentration, dizziness, and feeling nauseous.” Id. at 2; see also Pet.
Ex. 1; Pet. Ex. 24.
12
At hearing, Petitioner testified that she was experiencing this multitude of symptoms
before her visits with Dr. Dooley and with the on-campus health center, but that she did not
report these symptoms to the medical professionals. Tr. at 142-43, 147-48, 150-51. Petitioner
gave several reasons for not telling her physician about these symptoms--that she thought the
symptoms were related to her asthma, tr. at 169; that the doctors would put her on steroids,
which had caused her to gain weight in the past, Tr. at 178; and that her mother “would make
[her] move back home.” Tr. at 165, 171; Pet. Ex. 1 at 2. She also stated that she thought she
“was going to get better.” Tr. at 146-47.
However, the medical histories provided during Petitioner’s medical visits, both to Dr.
Dooley and to the on-campus health center, consistently reflect that her symptoms in the fall of
2010 were related to her asthma and her developing bronchitis/ pneumonia, and not to ADEM.
On October 8, 2010, about two weeks after receiving the vaccine, Petitioner made her first visit
to a medical professional post-vaccination. She was unaccompanied by her mother, who
otherwise tended to speak for her. Pet. Ex. 4 at 8. Petitioner’s chief complaint was that she was
“having trouble breathing at night and hasn’t been able to get Advair [asthma medication].” Pet.
Ex. 4 at 8. Petitioner did not complain of fatigue, “heaviness,” dizziness, sensitivity to light,
difficulty remembering things, or completing tasks. Petitioner was given samples of several
asthma medications, id., which she did not take. Tr. at 142-143.
Petitioner saw Dr. Dooley again on October 23, 2010; again her chief complaint was
“asthma--worse when [she] comes home.” Pet. Ex. 4 at 7. Again, nothing about heaviness, lack
of concentration, dizziness, headaches, or nausea. The impression of the treating professional
was asthma, and Petitioner was again treated with asthma medication. Id. This time, she was
also given the steroid Prednisone. Id.
On November 10, 2010, Petitioner saw a medical professional, Stephanie A. Parker,
D.O., at the University of Oklahoma Health Services Center. Pet. Ex. 15 at 1. Upon checking
in, Petitioner filled out intake forms, including a checklist of symptoms on which she was to
mark the symptoms she was experiencing. Id. at 2. Petitioner stated that her worst symptoms
were coughing and trouble breathing, but she also indicated that she was experiencing fever,
night sweats, sore throat, headache, ear ache/pain, cough, wheezing, and muscle aches. Id. She
stated that her symptoms started five days prior and that they were “somewhat improving.” Id.
Petitioner stated in her affidavit that in early November 2010, she felt dizzy, lightheaded,
weak, and nauseous, which prompted her to call her mother and make an appointment with the
on-campus health center. Pet. Ex. 1 at 2. At the hearing, Petitioner testified that she was
confused, dizzy, having trouble walking coupled with heavy legs, and had blurry vision prior to
her November 10 appointment. Tr. at 147-51. The records from the health center reflect none of
those concerns. Petitioner had three separate opportunities to tell someone at the clinic about
these symptoms: when she filled out the intake sheet, when she spoke with the doctor, and when
she spoke with the nurse after the first nebulizer treatment, but she did not avail herself of those
opportunities. The focus of that visit, as had been the focus of her earlier medical visits, was
exclusively her difficulty breathing and related issues.
13
Petitioner did not see another medical professional until she went to the emergency room
at Integris Baptist Hospital on December 27, 2010. Petitioner presented to the emergency room
with shortness of breath, chest tightness, wheezing, and dyspnea which started one day prior.
Pet. Ex. 5 at 9. Even then, Petitioner “denie[d] weakness, fatigue,” “denie[d] nausea,””denie[d]
muscle pain or weakness,” Id at 48-49, and her responsiveness did not begin to decline until
several days after her admission for pneumonia, pneumothorax, and hypoxemia. Id. at 41.
Petitioner was familiar with doctors, as she had had asthma, a chronic illness, since
childhood and would go to the doctor occasionally for a flare-up of asthma or to refill an asthma
related medication prescription. Tr. at 126-27. Therefore, she was familiar with the practice of
visiting a physician and reporting symptoms, particularly when prompted. She continued this
practice when she went to college: she went to the doctor three times that first semester, and she
reported the symptoms from which she was suffering so that they could be treated. The
undersigned is not persuaded that Petitioner would not be forthcoming with her doctors,
particularly if the symptoms were as unprecedented, persistent and severe as has been described.
The undersigned finds that Petitioner reported the symptoms she was experiencing, related to the
severe pulmonary illness for which she was eventually hospitalized.
Petitioner’s medical records clearly document her worsening medical condition
throughout the fall of 2010, but the worsening condition that they document is pulmonary.
Petitioner has not put forward evidence sufficient to refute the contemporaneous medical
records, which firmly support the onset of the symptoms of ADEM concurrently with or shortly
after Petitioner’s hospitalization for pneumonia, pneumothorax and hypoxemia, on or after
December 27, 2010.
The undersigned has carefully reviewed the record. Consistent with the foregoing
discussion, the undersigned finds that the symptoms of ADEM began concurrently with or
shortly after Petitioner’s hospitalization for pneumonia, pneumothorax and hypoxemia, on or
after December 27, 2010.
14
IV. Conclusion
The undersigned has carefully reviewed the record. Consistent with the foregoing
discussion, the undersigned finds that the symptoms of ADEM began concurrently with or
shortly after Petitioner’s hospitalization for pneumonia, pneumothorax and hypoxemia, on or
after December 27, 2010.
Petitioner may now proceed with her claim. The parties are ordered to provide this ruling
to any expert whom they retain for the purpose of litigating that claim. The undersigned is
unlikely to find persuasive expert opinion that is inconsistent with these findings of fact. See
Burns, 3 F.3d at 417 (special master did not abuse his discretion in refraining from conducting a
hearing when the petitioner’s expert “based his opinion on facts not substantiated by the
record”). The parties shall also contact my chambers no later than September 25, 2015 to
schedule a telephonic status conference in this case to discuss next steps.
IT IS SO ORDERED.
s/Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
Special Master
15
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Case: 09-40039 Document: 00511232693 Page: 1 Date Filed: 09/14/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 14, 2010
No. 09-40039
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL MARTINEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 1:02-CR-804-2
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Gabriel Martinez appeals his conviction and sentence. Because we find no
error, we affirm.
*
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: 09-40039 Document: 00511232693 Page: 2 Date Filed: 09/14/2010
No. 09-40039
I.
In 2003, Martinez pleaded guilty to one count of conspiracy to engage in
unlawful conduct in relation to a racketeer influenced and corrupt organization
(“RICO”), 18 U.S.C. § 1962(d), and one count of conspiracy to receive firearms by
a convicted felon, 18 U.S.C. §§ 371, 922(g). As part of his plea agreement, he
“waive[d] the right to appeal the sentence imposed or the manner in which it
was determined.” R. 394. During the plea colloquy, however, the district court
mistakenly informed Martinez that he could appeal any illegal sentence.
In return for the guilty plea, the government agreed to move for a down-
ward departure from the sentencing guideline range and to recommend a 140-
month sentence. The government failed to make that recommendation, however,
and the court sentenced Martinez to 216 months on the RICO count and 60
months on the firearms count, to run concurrently. Martinez appealed, and we
vacated the sentence and remanded for resentencing. United States v. Martinez,
255 F. App’x 884 (5th Cir. 2007) (per curiam).
On remand, the district court held a sentencing hearing in June 2008 at
which the government made the agreed-upon recommendation. The court deter-
mined that under the guidelines, Martinez had an offense level of 39 and a crim-
inal history of II, resulting in a guideline range of 292-365 months. After consid-
ering the government’s recommendation, Martinez’s conduct, the guideline
range, and the other factors required by 18 U.S.C. § 3553(a), the court departed
downward from that range and orally sentenced Martinez to 168 months on the
RICO count and 60 months on the firearms count, to run concurrently.
The court did not enter judgment at that time but instead held a hearing
in January 2009 at which the court explained that it had erred in calculating the
offense level, which should have been 40.1 At the same time, however, the court
1
The cause of the error was that the court had failed to group the two counts together
(continued...)
2
Case: 09-40039 Document: 00511232693 Page: 3 Date Filed: 09/14/2010
No. 09-40039
mistakenly deleted a two-level enhancement for obstruction of justice, forgetting
that it had overruled an objection to that enhancement at the June hearing.
Compare R. 1183-84 (overruling the objection), with R. 1209 (deleting the en-
hancement). Consequently, the court calculated the new offense level to be 38,
one level lower than the level 39 it had found at the June hearing.
The new offense level yielded a guidelines range of 262-327 months, slight-
ly lower than the range calculated at the June hearing. The court did not impose
a different sentence, however, stating that it merely wanted to ensure that its
guideline calculation was correct on the record. Thus, the court imposed the
same sentence as it had at the June hearing.
II.
Martinez argues that his guilty plea was not voluntary, that the court
erred in conducting a second sentencing hearing to impose a different sentence,
and that the record is incomplete. Each of those arguments is without merit.
A.
Martinez contends that his guilty plea was not voluntary and intelligent
under Matthew v. Johnson, 201 F.3d 353, 367 n.22 (5th Cir. 2000), because he
did not understand the plea agreement.2 Martinez’s argument rests on the
1
(...continued)
under U.S.S.G. § 3D1.2(c) (Nov. 2007). Thus, it neglected to impose a two-level enhancement
for possession of a firearm in connection with the drug activity underlying the RICO charge.
See id. § 2D1.1(b)(1) (imposing the two-level enhancement to all drug charges); see also id.
§ 2E1.1(a)(2) (applying the offense level applicable to the underlying racketeering activity to
RICO charges). Instead, the court had left the two offenses ungrouped and imposed only a
one-level enhancement under the guidelines for determining a combined offense level in
§ 3D1.4. Consequently, the total offense level should have been one level higher than what
was announced at the June 2008 hearing.
2
See also FED . R. CRIM . P. 11(b) (describing the procedure courts must use to ensure
(continued...)
3
Case: 09-40039 Document: 00511232693 Page: 4 Date Filed: 09/14/2010
No. 09-40039
court’s erroneous statement at the rule 11 hearingSSthat Martinez could appeal
any illegal sentenceSSa statement that contradicts the plea agreement’s explicit
waiver of that right. We need not consider whether that misstatement rendered
the plea involuntary or unintelligent, however, because Martinez waived that
argument when he sought specific performance of the plea agreement in his first
appeal.3 He cannot now challenge the plea agreement after previously relying
on its validity.4
B.
Martinez asserts that the court erred by conducting the second sentencing
hearing in 2009, months after orally announcing the sentence at the initial hear-
ing. He argues that the second hearing violates Federal Rule of Criminal Proce-
dure 35(a), which allows the court to correct “arithmetical, technical, or other
clear error” in a sentence only within seven days after sentencing. F ED. R. C RIM.
P. 35(a) (2008);5 see also F ED. R. C RIM. P. 35(c) (defining “sentencing” as “the oral
announcement of the sentence”). Thus, Martinez urges that we remand to the
district court to reinstate the original sentence from the June hearing.
Granting Martinez’s request would serve no purpose, because the sentence
2
(...continued)
that a plea is voluntary and intelligent).
3
See United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004) (explaining that the man-
date rule “bars litigation of issues decided by the district court but foregone on appeal or other-
wise waived”); see also United States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995) (“Waived er-
rors are entirely unreviewable . . . .”).
4
Even if Martinez had not waived the argument, the remedy for a defendant’s failure
to understand the scope of an appellate waiver is to render it unenforceable. See United States
v. Almany, 598 F.3d 238, 241 (6th Cir. 2010), petition for cert. filed, 78 U.S.L.W. 3745 (June 8,
2010) (No. 09-1497). Because the government does not seek to enforce Martinez’s waiver of
the right to appeal his sentence, the argument is in any event moot.
5
The rule was amended in 2009 to increase that window to fourteen days. See FED . R.
CRIM . P. 35(a).
4
Case: 09-40039 Document: 00511232693 Page: 5 Date Filed: 09/14/2010
No. 09-40039
at the first hearing was identical to the one imposed at the second. Moreover,
rule 35(a) does not apply where the sentence has not been altered.6 Because the
sentence was not altered at the second hearing, it was merely an opportunity for
the court to expand and clarify its reasons for imposing the sentence, much like
a written elaboration of an oral sentence.7 The court did not err by holding the
second hearing or by anything it did at that hearing.
C.
Martinez maintains that the record on appeal is incomplete because the
transcript of his rearraignment hearing in 2003 omits portions of the proceeding
in violation of 28 U.S.C. § 753(b). The omitted portions are marked with the
comment that the “the Court heard other matters,” presumably related to the
other three codefendants. That argument fails, however, because Martinez
waived it when he failed to raise it in his first appeal. “[I]ssues not arising out
of this court’s ruling [on appeal] and not raised in the appeals court, which could
have been brought in the original appeal, are not proper for reconsideration by
the district court below.” United States v. Griffith, 522 F.3d 607, 610 (5th Cir.
2008) (emphasis deleted) (quoting Lee, 358 F.3d at 323).
There is no reason why Martinez could not have raised the issue of the
completeness of the record in his first appeal. By his failure to do so, the district
court could not have considered it, so it is not properly before us on appeal.
Thus, we decline to consider Martinez’s argument that the record is incomplete.
The judgment of conviction and sentence is AFFIRMED.
6
See United States v. Spencer, 513 F.3d 490, 491 (5th Cir. 2008) (stating that “Rule
35(a) is implicated when a district court seeks to alter the actual sentence imposed on a crimin-
al defendant as announced at the sentencing hearing” (emphasis added)).
7
That interpretation is bolstered by the court’s comments about the purpose of the sec-
ond hearing, which it stated was not to consider changing the sentence but merely to “get the
guideline calculation right.” R. 1211.
5
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475 S.W.2d 346 (1971)
RIO DELTA LAND COMPANY, Appellant,
v.
E. W. JOHNSON et al., Appellees.
No. 660.
Court of Civil Appeals of Texas, Corpus Christi.
December 30, 1971.
Rehearing Denied January 13, 1972.
*347 Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, Harry L. Hall, McAllen, for appellant.
Sonfield & Hasse, Robert L. Sonfield, Brownsville, for appellees.
OPINION
NYE, Chief Justice.
This is a suit to set aside a Sheriff's sale of land (sometimes called the third suit). The trial court granted a summary judgment against Rio Delta Land Company the plaintiff and in favor of John S. Caputa and other defendants. Rio appeals.
E. W. Johnson and wife obtained a judgment against Rio in the amount of $15,210.00, interest and costs, in a prior separate suit (sometimes called the first suit). Rio appealed to this Court without obtaining a supersedeas bond. During the course of the appeal of this first suit, the Johnsons levied execution on land owned by Rio. This land was sold by the Sheriff to the Johnsons who purchased the land for the amount of their judgment. Thereafter, Rio failed to file an appellants' brief in the Court of Civil Appeals in the first suit. This Court, on motion filed by the Johnsons, dismissed the appeal. In the meantime, the Johnsons sold the land to John S. Caputa, appellee. He in turn sold lots to various purchasers. Nearly two years after the subject Sheriff's sale, Rio brought this suit to cancel the Sheriff's deed, contending principally that the Sheriff's sale was *348 irregular because of lack of proper notice; that the property was sold at a grossly inadequate price; and that Caputa the subsequent purchaser had actual knowledge or was charged with knowledge of the irregularities, making the sale voidable. Numerous affidavits have been filed by Rio in opposition to the motion for summary judgment. We believe that the facts contained in the affidavits raise a genuine issue of fact that must be tried before the trier of facts. Rule 166-A, Texas Rules of Civil Procedure.
It is uncontradicted that proper notice of the sheriff's sale as required by Rule 647, T.R.C.P., was not given by the sheriff preparatory to the execution sale. The publication of the notice was made on August 15, 1968, August 22, and the third notice on August 29. The sale was had on September 3, 1968, less than twenty days from the date of the first notice. Appellee admits that written notice to the appellant was not given until August 19, 1968. The appellants deny under oath that any notice was ever received by them.
Generally, irregularities in a sheriff's sale standing alone might not warrant the setting aside of an execution sale. However, when such irregularity is coupled with a grossly inadequate purchase price, the irregularity becomes material, giving rise to a cause of action to set aside the sale. Steffens v. Jackson, 16 Tex.Civ. App. 28, 41 S.W. 520 (1897, err. ref'd); Allen v. Stephanes, 18 Tex. 658; Nance v. Currey, 257 S.W.2d 847 (Tex.Civ.App. Dallas 1953).
The purchase price at the sheriff's sale (by the Johnsons) was $15,900.00, the amount of the judgment. Rio's affidavits from two witnesses placed the value of the property in excess of $500,000.00. Appellees attack these affidavits as being insufficient to raise a fact issue of value because they say they are mere conclusions and opinions of the witnesses, citing Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970). However there were other affidavits filed by two other witnesses that say that appellee Caputa had sold a number of lots out of the land in question for $1700.00 each. (Ninety lots according to one witness, and 1100 lots in the area in question by another witness). Even using the lower number of 90 lots sold out of the land in question, this would make a total sales price of $153,000.00. Appellees argue on the other hand that in a suit filed by Rio (hereafter referred to as the second suit) immediately following the sheriff's sale, Rio contended that they were damaged in the amount of $2,500.00 because of the sheriff's sale. Therefore they say that the $15,900.00 sale price was not unreasonable under the circumstances. All of this evidence indicates a conflict as to the value of the land. It is not up to us to weigh the summary judgment evidence, but only determine whether the summary judgment record establishes as a matter of law that no genuine issue of fact has been raised as to a grossly inadequate purchase price for the property in question. We hold that such an issue as to the irregularity of the sheriff's sale and to the inadequacy of the price paid for the land has been raised by the summary judgment proof.
Appellees next contend that the summary judgment evidence is sufficient to establish that appellees were innocent purchasers for value as a matter of law and that summary judgment was therefore proper. The Johnsons did not join in the motion for summary judgment. The trial court severed Rio's cause of action against the Johnsons from Rio's cause of action against the appellees. The Johnsons were the judgment creditors in the first suit and purchased Rio's land at the sheriff's sale. The sheriff's deed shows on its face the irregularity of the notice. Where a judgment creditor becomes the purchaser at an execution sale, he is deemed to have notice of all of the errors and irregularities that occurred in the proceedings or in the judgment itself. Stroud v. Casey, 25 Tex. 740. If the judgment creditor purchased the land at an execution sale and pays the purchase *349 price by crediting the judgment with the amount of his bid, he is not an innocent purchaser for value. 24 Tex.Jur.2d pp. 644-645, § 179, Executions, and authority cited therein. Here the appellees purchased the property in question from the Johnsons and contend that even if the Johnsons were charged with notice of the irregularities that render the sale voidable, nevertheless appellee is an innocent purchaser unaffected by the irregularity since he purchased the land in question without actual notice.
The summary judgment evidence establishes that Caputa had constructive notice of the irregularities that led up to the execution sale. The lack of sufficient notice of the sale both by publication and as to notice mailed to Rio by the sheriff, clearly appear in the deed to the Johnsons. The deed was filed for record on September 19, 1968. Caputa did not receive his deed from the Johnsons until September 26, 1968.
"`Notice in law is of two kindsactual and constructive. * * * In common parlance "actual notice" generally consists in express information of a fact, but in law the term is more comprehensive. In law whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand, which if pursued by the proper inquiry the full truth might have been ascertained. Means of knowledge with the duty of using them are in equity equivalent to knowledge itself. * * * So that, in legal parlance, actual knowledge embraces those things of which the one sought to be charged has express information, and likewise those things which a reasonably diligent inquiry and exercise of the means of information at hand would have disclosed.'" (Emphasis supplied.)
Hexter v. Pratt, 10 S.W.2d 692 (Tex.Com. App.1928); and Article 6646, Vernon's Ann.C.S. This above language was cited with approval by the Supreme Court in Champlin Oil & Refining Company v. Chastain, 403 S.W.2d 376 (Tex.Sup.1965) and in Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951).
The affidavits of two witnesses raised fact issues that would show that Caputa also knew of the grossly inadequate price paid by the Johnsons for the land in question. Caputa had sold 90 of the lots for approximately $153,000.00. Caputa paid the Johnsons $18,200.00 for the land. In addition, Caputa had other constructive notice of the defective sale because Rio had filed suit against the sheriff (the second suit) to set aside the sale in question. A lis pendens notice of this second suit was also filed of record[1] on September 11, 1968.
Finally, the appellees assert that even if there were fact issues as to material irregularities in the sale of the property, such a cause of action or complaint was, as a matter of law, waived by the acts and conduct of Rio. Rio, they say, is estopped to present any such irregularities as a defense to this case; they are guilty of laches and stale demand.
The summary judgment evidence shows that Caputa created a subdivision out of the property known as South Shores Subdivision, Unit #1. A map or plat thereof was recorded on August 20, 1969. This suit was not filed until July 15, 1970, almost 22 months after the sheriff's sale of the property. In the meantime many of these lots have been sold to third parties. Appellees further point out that Polk Hornaday was the attorney of record for Rio in the first suit and on appeal to the Court of Civil Appeals before the case was dismissed on December 31, 1968. This same attorney was at the courthouse and was present during the sheriff's sale on September 3, 1968. He made no complaint of any irregularity. Eight days later, however, on September 11, attorney Hornaday filed suit for Rio against the sheriff to set aside the sheriff's deed. Lis pendens notice of this suit was filed of record September 11, 1968. Appellees suggest that waiver and estoppel are applicable here because from September 3, 1968 until *350 July 15, 1970 Rio made no character of objection or protest to appellee Caputa with respect to the sale of the property, although they certaintly had knowledge that Caputa was engaged in the developing of a subdivision and selling lots therein to the public.
Attorney Hornaday in his affidavit states, that he was in the courthouse on the afternoon of the sale in question on other business. He heard that the property of Rio was to be sold under execution. He categorically denied that his appearance at the place where the sale was being held was as an attorney representing Rio. He states that he was not authorized to appear or represent Rio nor did he acquiesce in the proceedings that took place during the sale.
In order to establish estoppel there must be a false representation or concealment of material facts; it must have been made with knowledge (active or constructive) of the material fact. The party to whom it was made must have been without knowledge or the means of knowledge of the true facts. It must have been made with the intention that it should be acted on, and finally the party to whom it was made must have relied on its or acted on it to his prejudice. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). Before an estoppel can arise as a matter of law, there must be certainty to every intent, and the facts alleged to constitute estoppel are not to be taken by argument or inference. Red Jacket Manufacturing Company v. Adams, 346 S.W.2d 897 (Tex.Civ.App. -El Paso 1961, n. r. e.) and A. R. Clark Investment Company v. Green, 375 S.W.2d 425 (Tex.Sup.1964).
Waiver is an intentional release, relinquishment, or surrender of a right that is at the time known to the party making it. In order to constitute a waiver it is essential that there be an existing right, benefit or advantage, a knowledge (actual or constructive) of its existence, and an actual intention to relinquish it. It must be a voluntary act with full knowledge of the facts. 60 Tex.Jur.2d Waiver pp. 181-200.
The record shows that attorney Hornaday who represents Rio in the first and second suit, withdrew as attorney for Rio on September 12, 1968. Rio's stockholders for the most part lived out of the State of Texas. Appellees' argument concerning limitations, laches, waiver and estoppel and stale demand, all are in the category that requires a determination of all of the facts at a full trial. The summary judgment record is not conclusive in this respect. We have reviewed all of the evidence and are convinced that appellees have failed to demonstrate that there is no genuine issue as to any material fact that would entitle them to a judgment against appellees as a matter of law. All of the asserted defenses raised by appellees may ultimately prevail, but based on the record that is before us, they are not entitled to a summary judgment.
It has been brought to the attention of this Court that many subsequent purchasers of lots out of the land in question may be innocent purchasers for value. Their rights will have to be protected. Until all necessary and indispensable parties have been joined as parties to this suit or such innocent purchasers' land is excluded from this controversy, the trial court in the exercise of its equitable powers, may require amendments to the pleadings in order to determine all of the issues that may be brought before the Court.
The Court in rendering its summary judgment for the appellees, cancelled lis pendens notice filed by the appellants. Article 6640, V.A.C.S., authorizes the filing of a lis pendens notice during the pendency of any suit or action involving the title of real estate or in a suit which seeks to establish any interest or right therein. We hold that the trial court erred in cancelling appellants' notice. The notice is hereby ordered reinstated until a final judgment is had on the merits.
The judgment of the trial court is reversed and the cause is remanded for trial.
NOTES
[1] This second suit was ultimately dismissed for lack of prosecution.
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630 F.2d 322
MFA LIFE INSURANCE COMPANY, Plaintiff-Appellee,v.Earleaer KYLE, Defendant-Appellee,v.Eddie Mae KYLE, Defendant-Appellant.
No. 79-3238.
United States Court of Appeals,Sixth Circuit.
Submitted Oct. 15, 1979.Decided Nov. 3, 1980.
Ishmael C. Childs, Childs & Perry, Cleveland, Ohio, for defendant-appellant.
Fletcher C. Lewis, Johnson & Lewis, Ltd., Little Rock, Ark., for Earleaer Kyle.
Linda M. Pistner, Arter & Hadden, Cleveland, Ohio, for MFA.
Before KENNEDY and JONES, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
PER CURIAM.
1
This interpleader action was filed by MFA Life Insurance Company to determine who is entitled to the proceeds of an insurance policy on the life of William Kyle. Appellant filed a motion to submit the appeal on briefs without oral argument. This motion is granted.
2
Two parties claim the proceeds of the insurance policy: Eddie Mae Kyle, decedent's wife of forty-four days at the time of his death, and Earleaer Kyle, decedent's wife of five and one-half years at the time of their divorce in 1977.
3
District Judge Robert M. Krupansky summarized the undisputed facts as follows:
4
On May 28, 1972, William Kyle and Earleaer were married in Augusta, Arkansas and lived together as husband and wife in Patterson, Arkansas .... Thereafter, on December 20, 1977, the Chancery Court of Woodruff County, Arkansas, entered a Decree of Divorce dissolving their marriage .... In said Decree, the Chancery Court also approved and incorporated a child custody and property settlement agreement executed by and between William Kyle and Earleaer. Said property settlement agreement made no reference to MFA life insurance policy No. L-135307, which had been issued previously to William Kyle, as insured, effective September 27, 1977, and under which Earleaer was the named beneficiary.
5
Subsequently, at an undisclosed date, William Kyle moved to Cleveland, Ohio, where he married Eddie Mae on January 21, 1978, and where he died on March 5, 1978. William Kyle died intestate and without giving written notice to MFA regarding a change of beneficiary.
6
Judge Krupansky held that since the property settlement between William Kyle and Earleaer Kyle was executed in Arkansas by then residents of Arkansas, Ohio conflict of law rules required that the district court look to Arkansas law to determine what effect, if any, this agreement might have on the rights of Earleaer Kyle to take the proceeds of the life insurance policy. As authority for this proposition, the court cited Mutual Life Ins. Co. of New York v. Cohen, 179 U.S. 262, 21 S.Ct. 106, 45 L.Ed. 181 (1900); Sheerin v. Steele, 240 F.2d 797 (6th Cir. 1957); Alropa Corp. v. Kirschwehm, 138 Ohio St. 30, 33 N.E.2d 655 (1941); McCormick v. Taft, 61 Ohio App. 200, 22 N.E.2d 510 (1938).
7
In granting the motion of Earleaer Kyle for summary judgment, Judge Krupansky held that Allen v. First National Bank of Fort Smith, 261 Ark. 230, 547 S.W.2d 118 (1977) is dispositive. In that case the Supreme Court of Arkansas held that a former wife who is the named beneficiary of an insurance policy issued on the life of her then husband, later divorced, is not divested of her interest in the proceeds of the policy absent a provision to that effect in the property settlement agreement. The property settlement between Earleaer Kyle and William Kyle contained no such provision.
8
The life insurance policy which is the subject of this appeal contained this language:
9
Unless otherwise provided by endorsement hereon or attached hereto, the Beneficiary for insurance payable upon the death of the Insured shall be the Insured's spouse if living, otherwise the Insured's estate....
10
"Insured spouse" was defined by the policy as: "the wife or husband of the Insured named in the application for this policy." Judge Krupansky ruled that these provisions of the life insurance policy required that Earleaer Kyle be awarded the proceeds of the policy since she was the wife of William Kyle at the time of the application for the policy and as she was the named beneficiary of that policy at the time of William Kyle's death.
11
We conclude that the district court did not err in determining that there is no genuine issue as to any material fact, and in granting summary judgment to Earleaer Kyle.
12
Affirmed. The costs of this appeal are taxed against the appellant, Eddie Mae Kyle.
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615 F.2d 1359
Blackmonv.Engle
No. 78-3500
United States Court of Appeals, Sixth Circuit
1/17/80
S.D.Ohio
AFFIRMED
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-3566
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Chad Joseph Sumner, * [PUBLISHED]
*
Appellant. *
___________
Submitted: March 10, 1999
Filed: March 26, 1999
___________
Before FAGG and WOLLMAN, Circuit Judges, and WEBBER,1 District Judge.
___________
PER CURIAM.
Chad Joseph Sumner appeals his conviction of robbery, a violation of 18
U.S.C. § 2111, and from the fifty-one month sentence imposed by the district court.2
We affirm.
1
The HONORABLE E. RICHARD WEBBER, United States District Judge for
the Eastern District of Missouri, sitting by designation.
2
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
I.
On September 13, 1997, Sumner and several others were drinking on the
grounds of St. Mary’s Catholic cemetery on the Red Lake Indian Reservation.
Without warning, Sumner attacked Jerilyn Whitefeather, a member of the group. He
punched Whitefeather in the face, threw her to the ground, and kicked her. He then
demanded her car keys. After digging the keys out of one of Whitefeather’s pockets,
Sumner drove away in her car. The automobile was discovered abandoned the next
day. There was interior and exterior damage to the car, and the stereo system had
been removed.
II.
Sumner contends that the government violated the dictates of Brady v.
Maryland, 373 U.S. 83 (1963), by failing to inform him that a fingerprint analysis of
an envelope found in the car failed to match his own prints. The latent print analysis
of the envelope did not identify a matching set of fingerprints.
In order to prove a Brady violation, the “defendant must show that the
prosecution suppressed the evidence, the evidence was favorable to the
accused, and the evidence was material to the issue of guilt or
punishment.” Evidence is material under Brady “only if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.”
“Reasonable probability” is defined as a “probability sufficient to
undermine confidence in the outcome.”
United States v. Flores-Mireles, 112 F.3d 337, 339-340 (8th Cir.), cert. denied, 118
S. Ct. 350 (1997) (citations omitted).
We conclude that no Brady violation occurred here. Although the fingerprint
analysis indicated that the prints did not match Sumner’s, that fact would have been
-2-
of little or no import. In addition to Whitefeather, two other witnesses testified that
Sumner attacked Whitefeather and left with her car. In light of this testimony, there
is no reasonable probability that the verdict would have been different had the results
of the fingerprint analysis been made known to Sumner prior to trial.
During the trial, the prosecutor asked a Red Lake police officer if he knew what
Sumner’s status was at the time of his arrest. The officer answered that Sumner “had
active tribal warrants in Red Lake and also an active federal warrant.” Defense
counsel’s objection on relevancy grounds was sustained and the answer was stricken.
Moments later, defense counsel moved for a mistrial. The district court overruled the
motion, but gave the jury a cautionary instruction. Sumner contends that the district
court abused its discretion in denying the motion for mistrial. We do not agree. See,
e.g., United States v. Brown, 903 F.2d 540, 542 (8th Cir. 1990) (reference to the
defendant’s pretrial detention did not require a mistrial where the remark was isolated
and a cautionary instruction was given to the jury); United States v. Leisure, 844 F.2d
1347, 1362 (8th Cir. 1988) (witness reference to a state court indictment was harmless
error, where evidence from other witnesses confirmed the defendant’s guilt); United
States v. Hernandez, 779 F.2d 456, 460 (8th Cir. 1985) (reversal of the conviction
was not proper when, although the court failed to give a curative instruction, the
improper prosecutorial comment had minimal cumulative effect and strong evidence
of the defendant’s guilt was presented).
Sumner also argues that the district court erred in imposing the two-level
sentencing enhancement that the Sentencing Guidelines call for if the victim of a
robbery suffers bodily injury. See U.S.S.G. § 2B3.1(b)(3)(A). Whitefeather testified
that Sumner punched her in the face and kicked her repeatedly. She was required to
visit the hospital for x-rays. In addition, she testified that her face was red and puffy
for a substantial period of time, that she had a black eye for three weeks, and that her
face was tender six months after the incident. Thus, this is not a case in which there
was not even a minimal showing of bodily injury, as was the case in United States v.
-3-
Dodson, 109 F.3d 486 (8th Cir. 1997). Accordingly, we conclude that the district
court did not clearly err in imposing the enhancement. See United States v. Coney,
949 F.2d 966, 968 (8th Cir. 1991) (applying clearly erroneous standard to sentence
enhancements).
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-4-
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60 F.3d 819
U.S.v.Jeffrey Alan Stokely
NO. 94-7663
United States Court of Appeals,Third Circuit.
May 23, 1995
Appeal From: M.D.Pa., No. 94-35,
Nealon, J.
1
AFFIRMED.
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"pile_set_name": "FreeLaw"
} |
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