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[Cite as Toledo Bar Assn. v. Pheils, 129 Ohio St.3d 279, 2011-Ohio-2906.]
TOLEDO BAR ASSOCIATION v. PHEILS.
[Cite as Toledo Bar Assn. v. Pheils, 129 Ohio St.3d 279, 2011-Ohio-2906.]
Attorneys — Misconduct — Providing financial assistance to client — Conflict of
interest — One-year suspension with six months stayed on conditions.
(No. 2010-1886 — Submitted February 16, 2011 — Decided June 23, 2011.)
ON CERTIFIED REPORT of the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-019.
__________________
Per Curiam.
{¶ 1} Respondent, David R. Pheils Jr. of Toledo, Ohio, Attorney
Registration No. 0005574, was admitted to the practice of law in Ohio in 1974.
On February 8, 2010, relator, the Toledo Bar Association, filed a four-count
complaint charging respondent with numerous disciplinary violations, including
providing financial assistance to a client and creating a conflict of interest by
representing clients with adverse interests.
{¶ 2} A panel of the Board of Commissioners on Grievances and
Discipline held a hearing and issued findings of fact, conclusions of law, and a
recommended sanction. The board adopted the panel’s findings and conclusions
and recommended that respondent be suspended from the practice of law for one
year with six months stayed on conditions.
{¶ 3} For the following reasons, we adopt the board’s recommendation.
I. Misconduct
{¶ 4} Charles Robinson hired respondent to represent him as a plaintiff
in a civil action (the “Royal Homes” case).1 Respondent negotiated a settlement,
1. Respondent also represented two coplaintiffs in the Royal Homes case. However, because they
are irrelevant to resolving the disciplinary charges against respondent, we do not refer to them in
the opinion.
SUPREME COURT OF OHIO
pursuant to which Robinson was to receive $20,000. Defense counsel prepared
the settlement agreement, but respondent advised Robinson not to sign it because
he believed that the agreement imposed obligations to which Robinson had not
agreed. While Robinson was discussing with a coplaintiff whether to sign the
settlement agreement, respondent overheard Robinson say that he needed money
and that he wanted to settle the case so that he could get his money. Later,
Robinson asked respondent for a loan. Robinson testified that respondent told
him to come back later that afternoon and respondent would have a $4,000 check
ready. Respondent arranged for his wife to lend Robinson $4,000. When
Robinson returned to respondent’s office later that day, there was a $4,000 check
from respondent’s wife for Robinson. Robinson also signed a promissory note.
Robinson had never met respondent’s wife, and she was not present when
Robinson picked up the check.
{¶ 5} Respondent prepared the promissory note and acted as his wife’s
attorney for purposes of the loan. However, respondent never advised Robinson
to seek independent counsel regarding the transaction, and he never acquired
Robinson’s informed consent before representing his wife’s adverse interests in
the loan.
{¶ 6} Subsequent to the loan, respondent and defense counsel continued
to negotiate over the language of the settlement agreement in the Royal Homes
case. Eventually, the trial court granted the defendants’ motion to enforce the
agreement, and respondent advised Robinson to appeal. Respondent had
Robinson sign an “Addendum to Representation Agreement,” in which Robinson
agreed to share costs and expenses from any recovery in excess of $20,000 in the
event of a retrial. On June 25, 2008, respondent filed an appeal on Robinson’s
behalf.
{¶ 7} Robinson testified that he did not want to appeal; he wanted to
accept the settlement. Respondent was aware that Robinson was still having
2
January Term, 2011
financial difficulties, and eventually, Robinson asked respondent for another loan.
Respondent arranged another loan from his wife to Robinson in July 2008. In
connection with this loan, respondent acquired a cashier’s check for $10,500
issued by the Huntington Bank payable to respondent’s firm’s escrow account.
Respondent testified that the money was withdrawn from his wife’s Huntington
Bank account. However, he never produced any evidence to indicate the source
of these funds. Respondent deposited the $10,500 cashier’s check into his firm’s
escrow account. On July 3, 2008, a $10,450 check from respondent’s firm’s
escrow account was issued with Robinson and his wife named as the payees. The
check was signed by respondent, but it included a typed notation indicating that it
was a loan from respondent’s wife. Robinson signed a promissory note for
$14,500. Ostensibly, $4,050 of the $14,500 loan was used to repay the principal
and interest on the $4,000 loan. Robinson also agreed to assign his rights in the
Royal Homes case to respondent’s wife as security for the loan.
{¶ 8} Respondent drafted the promissory note and the assignment
agreement. And respondent again acted as his wife’s attorney in the loan
transaction. Respondent did not advise Robinson to seek independent counsel
regarding the loan, nor did he acquire Robinson’s informed consent before
representing his wife’s adverse interest in the loan.
{¶ 9} Several months after receiving the second loan, Robinson hired a
new attorney and signed a settlement agreement in the Royal Homes case.
Robinson terminated respondent as his lawyer in a letter dated November 17,
2008.
{¶ 10} On December 17, 2008, respondent, representing his wife, filed
suit against Robinson seeking repayment of the loans pursuant to the promissory
note and the assignment agreement. Respondent dismissed the case after
Robinson repaid the loans from proceeds he received in settling the Royal Homes
case.
3
SUPREME COURT OF OHIO
{¶ 11} Pursuant to counts 1 and 3 of relator’s complaint, the panel found
that respondent had violated Prof.Cond.R. 1.8(e) (prohibiting a lawyer from
providing financial assistance to a client in connection with pending litigation)
and 8.4(a) (prohibiting a lawyer from violating the Ohio Rules of Professional
Conduct through the acts of another). Pursuant to counts 2 and 3, the panel also
found that respondent had violated Prof.Cond.R. 1.7(a) (prohibiting a lawyer’s
continued representation of a client if the representation of that client would be
directly adverse to another client) and 1.7(b) (prohibiting the continued
representation of a client if a conflict of interest would be created, unless the
affected client gives informed consent in writing).
{¶ 12} However, pursuant to counts 1 and 3, the panel concluded that
there was insufficient evidence to prove that respondent had violated
Prof.Cond.R. 1.8(a) (forbidding business transactions with a client or the knowing
acquisition of a pecuniary interest adverse to a client, unless the transaction is fair
and reasonable, the client is advised in writing to seek independent legal counsel,
and the client gives informed consent in writing). The panel further
recommended dismissal of the allegation in count 3 that respondent violated
Prof.Cond.R. 1.8(i) (prohibiting the acquisition of a pecuniary interest in the
litigation the lawyer is conducting for a client), as well as the charge in count 4 of
a violation of Prof.Cond.R. 8.1(b) (prohibiting a lawyer from failing to respond to
or failing to disclose a material fact in responding to a demand for information by
a disciplinary authority).
{¶ 13} The board adopted the panel’s findings of fact and conclusions of
law, but rejected the panel’s recommendation of a one-year suspension, all stayed
on conditions. Based on respondent’s contempt for his obligations and for the
disciplinary system, as well as his repeated deceptions throughout the
proceedings, the board recommended that we suspend respondent for one year,
with six months stayed upon conditions.
4
January Term, 2011
{¶ 14} Respondent objects to the board’s conclusions and recommended
sanction. The relator filed an answer to respondent’s objections. For the reasons
that follow, we overrule respondent’s objections and accept the board’s findings
of fact, conclusions of law, and recommended sanction.
II. Respondent’s Objections
A. Providing Financial Assistance
{¶ 15} Respondent steadfastly maintains that he did not provide financial
assistance to Robinson, because it was respondent’s wife who lent money to
Robinson. Respondent argues that a violation of Prof.Cond.R. 1.8(e) can occur
only when the financial assistance comes directly from the attorney. Respondent
also argues that if we hold that he improperly provided financial assistance to
Robinson, it will discourage attorneys from assisting clients in securing loans
from a bank.
{¶ 16} Except for advancing costs and expenses of litigation under certain
circumstances, “[a] lawyer shall not provide financial assistance to a client in
connection with pending or contemplated litigation.” Prof.Cond.R. 1.8(e).
Comment 10 to this rule provides that “[l]awyers may not subsidize lawsuits or
administrative proceedings brought on behalf of their clients, including making or
guaranteeing loans to their clients for living expenses, because to do so would
encourage clients to pursue lawsuits that might not otherwise be brought and
because such assistance gives lawyers too great a financial stake in the litigation.”
{¶ 17} Respondent testified that the funds used to finance both loans to
Robinson belonged to respondent’s wife. Respondent asserts that the fact that the
funds did not come directly from him is sufficient to exonerate him from a charge
of violating Prof.Cond.R. 1.8(e). We disagree. If respondent had referred
Robinson to a bona fide financial institution, our answer would be different. A
lending institution has absolutely no stake in the litigation and no interest in
encouraging a borrower to pursue litigation. However, respondent did not advise
5
SUPREME COURT OF OHIO
Robinson to seek such a loan. Instead, respondent, realizing that he could not
lend money to Robinson, arranged loans from his wife. Respondent suggested to
his wife that she lend the money to his client, telling her that the client “had a
judgment” and that assigning the client’s rights in that judgment to her “would be
enough that it would cover up to a $15,000 loan.” Clearly, respondent’s wife
relied on this advice, because she made the loans to Robinson even though she did
not know him. Furthermore, Robinson received the check from the first loan on
the day that he requested the loan.
{¶ 18} Under these circumstances, we find that respondent significantly
influenced his wife to make the loan to Robinson. Respondent’s personal
relationship with his wife and his professional relationship with Robinson in the
context of these loans placed him in a unique position to use financial leverage to
influence Robinson’s litigation of the Royal Homes case. This is precisely the
type of financial assistance that Prof.Cond.R. 1.8(e) was intended to prevent.
{¶ 19} Even if respondent’s sole intention was to benefit Robinson, that
intention does not excuse his conduct. The prohibition against providing financial
assistance to a client is absolute. Prof.Cond.R. 1.8(e) does not inquire into the
attorney’s motivation in providing financial assistance to a client. The mere fact
that an attorney provides financial assistance to a client is a problem in and of
itself because it “gives lawyers too great a financial stake in the litigation.”
Comment 10, Prof.Cond.R. 1.8(e).
{¶ 20} Finally, respondent’s actions promoted maintenance and/or
champerty. Prof.Cond.R. 1.8(e) has its basis in the common law of maintenance
and champerty. See Comment 16 to Prof.Cond.R. 1.8. “Maintenance” is
rendering assistance to a litigant in pursuing or defending a lawsuit provided by
someone who does not have a bona fide interest in the case, while “champerty” is
a form of maintenance in which a nonparty undertakes to further another person's
interest in a suit in exchange for a share if a favorable result ensues. Rancman v.
6
January Term, 2011
Interim Settlement Funding Corp., 99 Ohio St.3d 121, 2003-Ohio-2721, 789
N.E.2d 217, ¶ 10. It is a disciplinary violation for an attorney to make such an
agreement with a client. See Disciplinary Counsel v. Williams (1990), 51 Ohio
St.3d 36, 553 N.E.2d 1082 (interpreting former DR 5-103(A)).
{¶ 21} Respondent’s wife, who had no interest in the Royal Homes case,
lent money to Robinson, and in return, Robinson assigned to her his rights in the
Royal Homes case. Clearly, this agreement promoted maintenance and /or
champerty.
{¶ 22} Therefore, we hold that respondent violated Prof.Cond.R. 1.8(e)
and 8.4(a).
B. Conflict of Interest
{¶ 23} Respondent also argues that he did not create a conflict of interest
by representing both his wife and Robinson in the loan transactions. Specifically,
he asserts that his representation of Robinson was expressly limited to the Royal
Homes case, and therefore, Robinson was not his client with regard to the loans.
Thus, respondent argues that he did not create a conflict of interest by
representing his wife in those transactions.
{¶ 24} We acknowledge that Prof.Cond.R. 1.2(c) provides, “A lawyer
may limit the scope of a new or existing representation if the limitation is
reasonable under the circumstances and communicated to the client, preferably in
writing.” (Emphasis sic.) However, the issue is not about limiting the scope of
representation. Respondent still represented Robinson in the Royal Homes case,
the very matter that he agreed to undertake. The settlement was not concluded.
This rule does not excuse an attorney for committing misconduct in representing
clients with conflicting interests.
{¶ 25} Respondent represented Robinson in the Royal Homes case.
However, because the attorneys could not agree on the terms of a settlement in
that case, Robinson was unable to recover the proceeds from the settlement at a
7
SUPREME COURT OF OHIO
time when he needed the money. Consequently, Robinson asked respondent for
loans on two different occasions during the pendency of the litigation.
Respondent arranged two loans from his wife so that he could buy time by
reducing Robinson’s financial pressures, which allowed respondent to continue
negotiating the settlement. Under these particular circumstances, we find that
both loan transactions fell within the scope of respondent’s representation of
Robinson in the Royal Homes case.
{¶ 26} Thus, respondent represented both his wife and Robinson in the
two loans. Representing both the lender and the borrower within the same
transaction creates a conflict of interest. Columbus Bar Assn. v. Ewing (1992), 63
Ohio St.3d 377, 588 N.E.2d 783. And respondent acknowledged that he did not
advise Robinson to seek independent counsel for either loan, nor did he acquire
informed consent from Robinson. Indeed, this conflict resulted in respondent’s
suing his own client for the proceeds of the loan after respondent’s services were
terminated, and the loan was in fact repaid from the proceeds of the eventual
settlement, the very situation that Prof.Cond.R. 1.7 was designed to prevent.
Accordingly, we hold that respondent’s conduct created a conflict of interest in
violation of Prof.Cond.R. 1.7(a) and 1.7(b).
III. Sanction
{¶ 27} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
8
January Term, 2011
A. Mitigating and Aggravating Factors
{¶ 28} In support of mitigation, respondent argues that he is retired and
does not intend to practice law again, and therefore our sanction should be limited
to a reprimand. While respondent claims that he has voluntarily decided to retire
from practicing law, he is currently registered as an active attorney with this
court. Unlike an attorney who has retired or resigned from the practice of law
pursuant to Gov.Bar R. VI(6), an act that is “unconditional, final, and
irrevocable,” Gov.Bar R. VI(6)(A)(1)(c), respondent could decide to begin
practicing again at any time. Therefore, respondent’s claim that he is retired will
not affect the sanction that we will impose.
{¶ 29} In mitigation, the board found that respondent did not have any
prior disciplinary violations. BCGD Proc.Reg. 10(B)(2)(a). However, the panel
found the following aggravating factors: respondent committed multiple offenses
(BCGD Proc.Reg. 10(B)(1)(d)), he did not cooperate with the disciplinary process
(10(B)(1)(e)), he engaged in deceptive practices (10(B)(1)(f)), and he refused to
acknowledge the wrongful nature of his conduct (10(B)(1)(g)). We agree with all
the board’s conclusions regarding the mitigating and aggravating factors. It is
clear that respondent committed multiple violations and that he continues to deny
wrongdoing.
{¶ 30} Further, respondent failed to disclose material facts in an attempt
to deceive the panel regarding the source of funds for the second loan to
Robinson. In response to relator’s interrogatory requesting a list of respondent’s
bank accounts, either personal or business, respondent answered that he had none.
However, when questioned regarding the source of the funds for the loans to
Robinson, respondent testified that he and his wife kept their accounts separate.
He contradicted himself again when he later said that his wife kept her accounts
separate, but he did not have any.
9
SUPREME COURT OF OHIO
{¶ 31} Finally, respondent’s interaction with relator’s counsel during the
investigation was at times uncooperative. For example, when relator’s counsel
inquired by e-mail about respondent’s failure to provide discovery in a timely
manner, respondent replied:
{¶ 32} “Have you ever practiced trial Law? Do you have any familiarity
with the rules of discovery? Can you read and understand the English Language?
I do not believe that my cooperation requires me to correct your incompetence
and/or ignorance and/or do your work for you. We await any cogent, informed,
rational and fact base [sic] response which to date we have been denied.”
{¶ 33} Accordingly, we find that the aggravating factors outweigh the
mitigating factors in this case.
B. Case Law
{¶ 34} In Cleveland Metro. Bar Assn. v. Podor, 121 Ohio St.3d 131,
2009-Ohio-358, 902 N.E.2d 488, an attorney represented clients in a personal-
injury case. During the litigation, the attorney, through his corporation, lent his
clients $19,800. We concluded that respondent had provided his clients financial
assistance in violation of former DR 5-103(B) (prohibiting a lawyer from
advancing financial assistance to client except in certain circumstances). We
imposed a one-year suspension of respondent’s license, with the entire suspension
stayed on conditions.
{¶ 35} However, in the instant case, providing financial assistance to a
client was not respondent’s only disciplinary violation. Respondent also caused a
conflict of interest by representing both his wife and Robinson in the loan
transaction between his wife (the lender) and Robinson (the borrower). And in
fact, respondent, on behalf of his wife, eventually filed suit against Robinson to
recover the proceeds from the loans. We have held that an actual suspension is
appropriate when an attorney’s representation of multiple clients creates an actual
10
January Term, 2011
conflict of interest. See, e.g., Cuyahoga Cty. Bar Assn. v. Newman, 102 Ohio
St.3d 186, 2004-Ohio-2068, 808 N.E.2d 375 .
IV. Conclusion
{¶ 36} In considering the sanction that we have imposed in similar cases,
the aggravating and mitigating factors in this case, and respondent’s conduct in
this case, including his uncooperative attitude and deceptive responses pertaining
to the investigation, we agree with the board that an actual suspension is
warranted. Accordingly, we accept the recommendation of the board.
Respondent is therefore suspended from the practice of law for one year, with six
months stayed upon the conditions that respondent complete an additional six
hours of continuing legal education in ethics and office management and that he
not commit further disciplinary violations. If he fails to comply with these
conditions, the stay will be lifted, and he will serve the full one-year suspension.
{¶ 37} Costs are taxed to respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Kitch, Drutchas, Wagner, Valitutti & Sherbrook and Patrick B.
Cavanaugh; and Michael A. Bonfiglio, Bar Counsel, for relator.
David R. Pheils Jr. and Marshall D. Wisniewski, for respondent.
______________________
11
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Case: 19-13135 Date Filed: 03/13/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13135
Non-Argument Calendar
________________________
D.C. Docket No. 3:18-cv-00091-TCB
KENNETH RAMION,
Plaintiff-Appellant,
versus
BRAD COLE CONSTRUCTION COMPANY, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 13, 2020)
Before ED CARNES, Chief Judge, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Case: 19-13135 Date Filed: 03/13/2020 Page: 2 of 6
Kenneth Ramion filed a charge with the Equal Employment Opportunity
Commission alleging that his employer, Brad Cole Construction Company, fired
him because of his age in violation of the Age Discrimination in Employment Act,
29 U.S.C. § 623. The EEOC found no cause and mailed Ramion and his attorney a
right to sue letter on May 11, 2018. Ramion filed this lawsuit against Brad Cole
Construction on August 14, 2018.
Shortly after submitting an answer to Ramion’s complaint, Brad Cole
Construction moved for summary judgment and moved to stay further discovery,
contending that Ramion had not filed his complaint within ninety days of receiving
his right to sue letter as required under the ADEA. Ramion filed a response and
attached a scanned copy of the envelope in which his attorney received the right to
sue letter; the envelope was stamped with a May 16, 2018 receipt date. He also
attached an affidavit stating that it was the regular business practice of the firm to
stamp mail with a receipt date when it arrived. Ramion did not, however, file a
statement of disputed material facts as is required under Local Rule 56.1B(2) of the
Northern District of Georgia. Nor did his response cite to the stamped copy of the
letter as required under that rule.
The magistrate judge recommended granting the motion for summary
judgment. The report found that Ramion had not properly objected to Brad Cole
Construction’s statement of undisputed facts, nor had he properly cited to any
2
Case: 19-13135 Date Filed: 03/13/2020 Page: 3 of 6
evidence in the record showing when he received the letter. Under the local rules,
the court could not rely on the envelope to find a genuine dispute of material fact.
As a result, it found that there was no evidence of when Ramion received the letter,
and it applied our rule that a plaintiff is presumed to have received a right to sue
letter three days after it was mailed. See Kerr v. McDonald’s Corp., 427 F.3d 947,
952 n.9 (11th Cir. 2005). Relying on that presumption, Ramion would have
received the letter on May 14, and the ninety day window to sue would have ended
on August 13, 2018. 1 The district court adopted the magistrate judge’s
recommendation and granted summary judgment.
Ramion appeals.
I.
We review de novo a district court’s grant of summary judgment, applying
the same standard used by the district court. Burton v. Tampa Hous. Auth., 271
F.3d 1274, 1276–77 (11th Cir. 2001). We view all evidence and draw all
reasonable factual inferences in the light most favorable to the non-moving party.
Id. Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
1
Ninety days after May 14 is actually August 12. But August 12 fell on a Sunday in
2018, and under Rule 6(a) of the Federal Rules of Civil Procedure, if the final day falls on a
weekend or legal holiday we continue the period until the next working day, which was Monday,
August 13.
3
Case: 19-13135 Date Filed: 03/13/2020 Page: 4 of 6
matter of law.” Fed. R. Civ. P. 56(a). “[W]hile all reasonable inferences must be
drawn in favor of the nonmoving party, ‘an inference based on speculation and
conjecture is not reasonable.’” Hinson v. Bias, 927 F.3d 1103, 1115 (11th Cir.
2019).
II.
Ramion contends that the district court erred by finding that there was no
genuine dispute of material fact about whether his complaint was timely.2 He
argues that he submitted evidence showing that his lawyer did not receive the right
to sue letter until May 16, which would have meant that he filed his complaint
within ninety days.
Once a defendant contests whether a plaintiff filed his complaint within
ninety days of receiving the EEOC right to sue letter, the plaintiff “has the burden
of establishing that he met the ninety day filing requirement.” Green v. Union
2
Ramion makes two other contentions that are both without merit. He first contends that,
even without his date-stamped letter, there is no evidence that would require a jury to find that
the right to sue letter was received before May 16, so summary judgment is inappropriate. But
the burden was on Ramion to prove that he sued within the ninety day window. Green v. Union
Foundry Co., 281 F.3d 1229, 1234 (11th Cir. 2002). He did not carry that burden.
Ramion also contends that the district court imposed a heightened pleading standard
because it required him to cite to evidence in his response to the motion for summary judgment
before he had an opportunity to develop the record through discovery. But Brad Cole
Construction had the right to move for summary judgment when it did because “a party may file
a motion for summary judgment at any time until 30 days after the close of all discovery.” Fed.
R. Civ. P. 56(b). If the facts Ramion needed to oppose the motion for summary judgment were
not yet available to him, he could have moved to delay the motion so that he could conduct
discovery. Fed. R. Civ. P. 56(d). He did not.
4
Case: 19-13135 Date Filed: 03/13/2020 Page: 5 of 6
Foundry Co., 281 F.3d 1229, 1234 (11th Cir. 2002). Under Northern District of
Georgia Local Rule 56.1(B)(2)(b), a response to a summary judgment motion must
include a statement of additional material facts. The respondent must also make
“specific citations to evidence.” N.D. Ga. Local R. 56.1(B)(2)(a)(2). “We give
great deference to a district court’s interpretation of its local rules and review a
district court’s application of local rules for an abuse of discretion.” Mann v. Taser
Int’l, Inc., 588 F.3d 1291, 1302 (11th Cir. 2009) (quotation marks omitted). To
meet that high standard, Ramion must show that the district court made a “clear
error in judgment.” Id.
But in his brief before us, Ramion does not argue that the district court made
a clear error in judgment in applying its local rules. He asserts that he attached a
copy of the signed letter and an affidavit to his response to the motion for summary
judgment. But he does not assert that he complied with the local rules, nor does he
assert that the court erred by applying the local rules. In fact, the only time he
mentions the local rules in his argument is when he claims that they imposed a
heightened pleading standard. Supra n.2. As a result, Ramion has abandoned any
argument that the district court clearly erred in its judgment when applying the
local rules. See Sappuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th
Cir. 2014) (“We have long held that an appellant abandons a claim when he either
makes only passing references to it or raises it in a perfunctory manner . . . .”).
5
Case: 19-13135 Date Filed: 03/13/2020 Page: 6 of 6
Because the district court properly found that Ramion did not comply with
the local rules, it also properly applied the three day presumption to find that he
received the right to sue letter on May 14. Because Ramion received the right to
sue letter on May 14, his complaint was not filed within ninety days, and the
district court properly granted summary judgment to Brad Cole Construction.
AFFIRMED.
6
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742 F.2d 1443
U.S.v.Dalmau
83-1093
United States Court of Appeals,Second Circuit.
8/11/83
1
E.D.N.Y.
AFFIRMED
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i i i i i i
MEMORANDUM OPINION
No. 04-08-00653-CR
IN RE Jerry SETTLES
Original Petition for Writ of Habeas Corpus1
PER CURIAM
Sitting: Alma L. López, Chief Justice
Karen Angelini, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: September 24, 2008
PETITION FOR WRIT OF HABEAS CORPUS DISMISSED FOR LACK OF JURISDICTION
On August 27, 2008, relator Jerry Settles filed a petition entitled “petition for writ of habeas
corpus motion to appeal,” seeking relief relating to the sentence imposed on him following a
criminal conviction. We construe relator’s petition as a post-conviction petition for writ of habeas
corpus. In criminal matters, the courts authorized to issue writs of habeas corpus are the Texas
Court of Criminal Appeals, the district courts, and the county courts. See TEX. CODE CRIM. PROC.
ANN. art. 11.05 (Vernon 2005). This Court has no jurisdiction to consider a post-conviction petition
for writ of habeas corpus in a felony case. See Board of Pardons & Paroles ex rel. Keene v. Court
of Appeals for the Eighth District, 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); In re Gutierrez,
1
… This proceeding arises out of Cause No. 2008-CR-3740, styled The State of Texas v. Jerry Settles, in the
226th Judicial District Court, Bexar County, Texas, the Honorable Sid L. Harle presiding.
04-08-00653-CR
No. 04-06-00382-CV, 2006 WL 1748421, *1 (Tex. App.—San Antonio June 28, 2006, orig.
proceeding) (mem. op.).
If relator intended to file a notice of appeal, he should have filed a timely notice of appeal
in the trial court. A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction.
See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A notice of appeal is timely if it
is filed within thirty days of the day sentence is imposed or suspended in open court, or within ninety
days after sentencing if the defendant timely files a motion for new trial. TEX. R. APP. P. 26.2(a)-(b).
However, Rule 26.3 allows the appellate court to extend the time to file a notice of appeal if, within
fifteen days after the deadline for filing the notice of appeal, the party files: (1) a notice of appeal
with the trial court, and (2) files a motion in the court of appeals that complies with Texas Rule of
Appellate Procedure 10.5(b). TEX. R. APP. P. 26.3. If relator fails to comply with Rules 26.2 and
26.3, only the Court of Criminal Appeals has the exclusive authority to grant post-conviction relief,
such as an out-of-time appeal. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3 (Vernon Supp.
2007); Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991).
Accordingly, the petition for writ of habeas corpus and all relief requested is dismissed for
lack of jurisdiction.
PER CURIAM
DO NOT PUBLISH
-2-
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974 So.2d 402 (2008)
PIERRE
v.
DEPARTMENT OF REVENUE.
No. 5D06-3741.
District Court of Appeal of Florida, Fifth District.
February 12, 2008.
Decision without published opinion. Affirmed.
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190 S.E.2d 682 (1972)
STATE of North Carolina
v.
Burl Tillman McSWAIN.
No. 7227SC558.
Court of Appeals of North Carolina.
August 23, 1972.
*683 Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Rafford E. Jones, for the State.
Tim L. Harris, by Don H. Bumgardner, Gastonia, for defendant appellant.
MORRIS, Judge.
Defendant has failed to assign his exceptions as error as required by our rules. However, he has listed the exceptions upon which he relies under the heading "Grouping of Exceptions and Assignments of Error". Because of the gravity of the charge and the importance of the questions raised, we have chosen to consider the appeal on its merits and will refer to the questions presented as exceptions carrying the numbers given by defendant in the record and in his brief.
By exception No. 1 defendant contends that by certain questions propounded to prospective jurors in determining their views on capital punishment, the court expressed an opinion in violation of G.S. § 1-180, thus committing prejudicial error. Eight of the prospective jurors stated that they had conscientious scruples against capital punishment. Each was challenged by the State for cause. Before ruling on the challenge, the court questioned each of the eight. Examples of portions of the colloquy between the judge and some of the jurors, in the presence of the other prospective jurors, follow:
"COURT: You don't believe in capital punishment; all right; but regardless of what your personal beliefs are, is there any set of facts which could arise in a case in which you would consider returning a verdict of guilty which would require the imposition of the death penalty?
A. No, sir.
COURT: You would not return a verdict requiring the death penalty, regardless of what the facts were in the case?
A. That's right.
*684 COURT: Even if it was your own brother or your mother who was the victim in the case?
A. Yes; that's right.
COURT: So if you were a juror in this case and if you were satisfied beyond a reasonable doubt that the defendant is guilty, you would automatically vote to give him life imprisonment?
A. That's right.
COURT: Regardless of what the facts were?
A. That's right.
. . . . . .
COURT: If you were a juror, is there any fact situation which you would consider bad enough or serious enough for you to consider returning a verdict of guilty which would require the imposition of the death sentence?
A. No, sir.
COURT: Now, you couldn't do this no matter how bad the facts were?
A. No.
COURT: Even if it was your child or your husband who was the victim of the assault?
A. It's true. I could not.
COURT: So, Mrs. McIntosh, if you were on the jury in this case and if you were satisfied beyond a reasonable doubt that the defendant was guilty of first degree murder, then I take it you would automatically vote every time to grant him life imprisonment?
A. That's true.
COURT: Regardless of what the facts are?
A. Yes.
COURT: And you would not consider the death penalty as a verdict?
A. No, sir.
. . . . . .
COURT: Mrs. Jonas, have you heard what I have said so far about this problem?
A. Yes, sir.
COURT: As a juror, is there any case where you would consider the facts to be bad enough or serious enough so if you were a juror, you would consider the possibility of returning a verdict which would require the imposition of the death sentence?
A. No, I don't think I could.
COURT: You say you don't think you could?
A. No, sir.
COURT: You could not do that, no matter what the facts were?
A. No.
COURT: No matter even if it was your husband or your brother who was the victim?
A. No, I couldn't.
COURT: Mrs. Leonard, let me ask you this: In your mind is there any fact situation that you could think of which you would consider as a juror to be sufficient for you to return a verdict of guilty, requiring a sentence of execution?
A. I couldn't do that.
COURT: Even if someone put a bomb on an airplane and blew up fifty small school children and killed them all and if you were a juror on that case, you would not consider execution?
A. I don't think I could.
COURT: So if you were on the jury in this case, if you were satisfied beyond a reasonable doubt that this defendant was guilty of murder in the first degree, you would always vote for a verdict which would require life imprisonment?
A. That's right.
*685 COURT: Regardless of the facts?
A. Yes, sir."
Defendant argues on appeal that as in State v. Canipe, 240 N.C. 60, 81 S.E.2d 173 (1954), the questions propounded by the trial judge "had a logical tendency to implant in the minds of the trial jurors the convictions that the presiding judge believed that the prisoner had killed . . . (the deceased) in an atrocious manner, that the prisoner was guilty of murder in the first degree, and that the prisoner ought to suffer death for his crime." 240 N.C., at p. 65, 81 S.E.2d, at p. 178. We agree that the presiding judge here, as in Canipe, "inadvertently over-stepped his self-appointed bounds and unintentionally expressed an opinion on the facts adverse to the prisoner." 240 N.C., at p. 65, 81 S. E.2d, at p. 178. The State argues that Canipe has no application, because there the defendant was convicted of murder in the first degree and sentenced to death; whereas here, the defendant was convicted only of manslaughter, and no prejudice could exist.
We cannot say with such clarity of conviction that defendant suffered no prejudice. After the jury had deliberated for more than an hour they returned to the courtroom and reported that they were "hung up" on question number one, which was whether defendant had sufficient mental capacity or ability to distinguish right from wrong and to understand the nature, quality, and consequences of his act. The court instructed them that if they answered that question "`No,' that would be a finding that the defendant, McSwain, was insane and it would be your duty then to find him not guilty of all charges." Whereupon the jury asked whether he could be "committed to an institution or. . . turned out free." The court instructed them that that was not a question for their concern. The court no doubt considered himself bound, as do we, by State v. Bracy, 215 N.C. 248, 1 S.E.2d 891 (1939). In Bracy the Court held that a defendant charged with a capital felony, whose defense is lack of mental capacity to commit the crime of murder in the first degree, is not entitled to have the jury know the statutory provisions allowing his detention in a State hospital, and that his discharge can only be procured in the manner provided by statute. Though the holding was couched in general terms, we note the court's comment as follows: "All the evidence was to the effect that the defendant was guilty of murder in the first degree. The killing was willful, deliberate and premeditated for the purpose of robbing the deceased. This was so found by the jury beyond a reasonable doubt." 215 N.C., at p. 259, 1 S.E.2d, at p. 897. We note also the lack of evidence in that case with respect to insanity. While we may not regard the divulgence of the information requested as informing the jury of the punishment for the crime, the imposition of which is the responsibility of the court; nevertheless, on the authority of Bracy, we are compelled to overrule defendant's exception to the court's denying the jury's request that they be informed as to the result of their finding defendant not guilty by reason of insanity.
The jury later returned to the courtroom and asked whether they could see a transcript of the questions and answers of the State and the defense with respect to the three psychiatrists. The court advised them that no transcript was available, and they would have to rely on their memories. The jury then asked if they could have read to them the answers the psychiatrists gave to the solicitor. This request was also denied.
The record, it seems to us, speaks clearly of the jury's concern and confusion. They were uninformed as to whether defendant would remain in custody for treatment if found not guilty by reason of insanity. We cannot say that the questions propounded by the court did not implant in their minds a strong inference that the court considered defendant guilty and deserving of punishment even though they *686 might have been convinced of defendant's insanity at the time of the killing.
Although there may be cases in which the type of questions propounded might not be prejudicial, we cannot approve them in any situation. Suffice it to say, we are of the opinion that in this case the probability of prejudice to defendant exists and he must, therefore, be granted a
New trial.
BROCK and HEDRICK, JJ., concur.
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644 F.3d 642 (2011)
UNITED STATES of America, Appellee,
v.
Yahya Muhumed SHAKAL, Appellant.
No. 09-3619.
United States Court of Appeals, Eighth Circuit.
Submitted: October 22, 2010.
Filed: July 8, 2011.
*643 Katherine M. Menendez, AFPD, Minneapolis, MN, for appellant.
James Lackner, AUSA, St. Paul, MN, for appellee.
Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
SMITH, Circuit Judge.
Yahya Muhumed Shakal pleaded guilty to four counts of aiding and abetting the preparation of false federal income-tax returns. At sentencing, Shakal argued that his experiences in Somalia during the violent Somali civil war entitled him to a sentence well below the advisory Guidelines range. The district court[1] denied *644 Shakal's request, and sentenced him to a Guidelines sentence of 72 months' imprisonment. Shakal now appeals, urging that the district court's sentence is substantively unreasonable. We affirm.
I. Background
The facts of this case are undisputed. Shakal, a Somali immigrant, was born in Mogadishu, Somalia, and endured numerous atrocities perpetrated against him and his family during the Somali Civil War of the mid-1990s. In 1996, Shakal escaped to the United States, initially settling in Dallas, Texas, where, in 1999, his wife and children arrived from Somalia to join him. Thereafter, Shakal and his family relocated to Minnesota's Twin Cities area.
In 2003 and 2004, Shakal operated two tax preparation businesses in Minneapolis, Minnesota. Shakal filed over 1,000 federal and state income tax returns, each fraudulently claiming fuel credits to which the taxpayer was not entitled. Shakal thus helped defraud the United States of $2,027,832.
On April 12, 2005, a federal grand jury indicted Shakal on 43 counts of aiding and abetting the preparation of false tax returns, in violation of 26 U.S.C. § 7206(2). The following day, authorities arrested Shakal, who was subsequently released on $25,000 personal recognizance bond. Shakal promptly absconded, and on April 28, 2005, a warrant for his arrest issued.
Shakal remained at large until July 23, 2008, when authorities apprehended him in Canada. In February 2009, Canadian officials extradited Shakal back to the United States. On March 9, 2009, a second grand jury returned a superseding indictment, and on April 15, 2009, Shakal pleaded guilty without a plea agreement to four counts of the indictment.
On October 13, 2009, the district court held a sentencing hearing in Shakal's case. First, the court heard and ruled on objections concerning certain adjustments and enhancements under the Sentencing Guidelines, and Shakal does not appeal these rulings. Next, the court calculated Shakal's sentencing range under the advisory Guidelines to be 63 to 78 months' imprisonment.[2] Shakal argued that his sentence should be no greater than 48 months based upon his personal history and circumstances as a Somali immigrant supporting a large family.
After considering Shakal's arguments and the government's responses, the court sentenced Shakal to a mid-range Guidelines sentence of 72 months' imprisonment, followed by one year of supervised release. Shakal now appeals this sentence on the ground that it is substantively unreasonable because it gives too much weight to the Guidelines, insufficient weight to his personal circumstances and other § 3553(a) factors, and fails to account for a purported sentencing disparity between Shakal and an individual who allegedly taught Shakal his tax fraud methodology.
II. Discussion
On appeal, Shakal urges this court to vacate the district court's sentence and remand for resentencing on the ground that his 72-month sentence is substantively unreasonable. Specifically, Shakal maintains that a Guidelines sentence in his case is substantively unreasonable because it (1) gives too much weight to the purely advisory Guidelines, (2) gives too little weight to his personal history and circumstances as required by § 3553(a), and (3) fails to account for a purported sentencing disparity existing between Shakal and one of his cohorts in the underlying tax-fraud scheme.
*645 In reviewing Shakal's challenge to the substantive reasonableness of his sentence, we review the trial court's sentencing decision only for abuse of discretion. United States v. Shuler, 598 F.3d 444, 447 (8th Cir.2010). "A district court abuses its discretion when it (1) fails to consider a relevant factor that should have received significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) considers only the appropriate factors but in weighing those factors commits a clear error of judgment." United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc). Moreover, "[a] sentence within the Guidelines range is accorded a presumption of substantive reasonableness on appeal." United States v. Robinson, 516 F.3d 716, 717 (8th Cir.2008). "`Substantive appellate review in sentencing cases is narrow and deferential[,]'" and "`[i]t will be the unusual case when we reverse a district court sentencewhether within, above, or below the applicable Guidelines rangeas substantively unreasonable.'" Shuler, 598 F.3d at 447 (quoting Feemster, 572 F.3d at 464).
The record clearly shows that the district court considered Shakal's violent experiences during the Somali Civil War, including witnessing the murder of his father and the rapes of his sisters. Indeed, the district court agreed with Shakal's counsel that Shakal and his family had "been through hell," and conceded that "[t]he real issue is going to be . . . how should that affect his sentence this morning."
Also, the district court considered but rejected Shakal's sentencing-disparity argument. Specifically, Shakal maintained, as he does now, that a "Mr. Mohamed" initially taught Shakal how to fraudulently request the fuel tax credit on tax returns, and that Mohamed received only 18 to 24 months at sentencing (from a different judge). The district court responded to this argument by first acknowledging that it had read through Mohamed's entire file the night before Shakal's sentencing, but ultimately concluded that Mohamed's case differed greatly from Shakal's in that Mohammed's tax scheme cost the United States Government only $44,000, far less than Shakal's $2 million haul.
Prior to its formal pronouncement of Shakal's sentence, the district court fully considered Shakal's history and circumstances, as well as the other § 3553(a) factors, stating among other things:
My judgment is anything less than 72 months would not promote respect for the law. . . . I don't mean to upset your family or your children, but I believe that is a fair and just sentence in this case. If it wasn't for some of what you have been through, I actually frankly believe that 78 months does not appropriately meet the 3553(a) factors what has been admitted to here. And I believe a sentence of something closer to 90 months would have been appropriate. And I believe for the reason I stated, 72 months will properly reflectit is far more than most of you think is fair, and I stand by it.
Thus, the district court not only considered Shakal's personal history and circumstances in fashioning a sentence but reduced the sentence it would have otherwise assessed Shakal in light thereof. Therefore, the district court did not abuse its discretion in sentencing Shakal to 72 months' imprisonment.
III. Conclusion
Accordingly, we affirm.
NOTES
[1] The Honorable Donovan W. Frank, United States District Judge for the District of Minnesota.
[2] Shakal does not challenge the district court's Guidelines computation.
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662 S.E.2d 777 (2008)
ZILKA et al.
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
No. A08A0174.
Court of Appeals of Georgia.
May 23, 2008.
*778 Paul P. Zilka, Stone Mountain, James F. Steckbauer, for appellants.
Swift, Currie, McGhee & Hiers, John W. Campbell, Valerie E. Pinkett, Atlanta, for appellees.
MILLER, Judge.
Dina and Paul Zilka sued State Farm Mutual Automobile Insurance Company ("State Farm")[1] and Bill Rhinehart Insurance Agency, *779 Inc. ("Rhinehart") asserting breach of contract and bad faith claims arising out of State Farm's refusal to pay the Zilkas' claims under two State Farm automobile insurance policies. The trial court granted State Farm and Rhinehart's motion for summary judgment, and the Zilkas appeal.[2] We affirm for the reasons set forth below.
On appeal from a grant of a motion for summary judgment, we review the evidence de novo in the light most favorable to the nonmovant to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga.App. 250, 510 S.E.2d 541 (1998). So viewed, the evidence shows that State Farm issued an automobile insurance policy to Dina Zilka on her Toyota Camry, which she co-owned with her husband, Paul Zilka. State Farm also issued a separate insurance policy to Paul Zilka on his Dodge Ram truck.
Dina Zilka was required to make premium payments to State Farm every six months. State Farm sent her a bill on September 5, 2000, requesting that she pay her policy premium by October 9, 2000. She failed to pay the premium by the due date.
State Farm's operation manager, Larry Erickson, averred that as a consequence of Dina Zilka's failure to pay, State Farm sent her a policy cancellation notice on October 19, 2000. Attached to Erickson's affidavit is a copy of the notice as well as a certificate prepared by State Farm as part of its routine business practices, date stamped by the United States Postal Service, indicating that a nonpayment cancellation notice was mailed to Dina Zilka on October 19, 2000. According to the notice, the policy would be cancelled due to nonpayment effective November 1, 2000, but that payment of the amount due prior to the cancellation date would reinstate the policy. The notice further provided that, if payment was made after the cancellation date, "you will be informed whether your policy has been reinstated and if so, the exact date and time of reinstatement. There is no coverage between the date and time of cancellation and the date and time of reinstatement." (Emphasis supplied.) The Zilkas did not remember seeing the cancellation notice, although Dina Zilka admitted that "[i]t doesn't mean I didn't receive it," and Paul Zilka deposed that "I wouldn't deny [receiving] it."
Paul Zilka mailed the policy premium to State Farm agent Bill Rhinehart on November 6, 2000. Dina Zilka was involved in a collision on November 7, 2000, while driving the Toyota. That same day, she and her husband went to Rhinehart's office to report the accident and ask if there would be a problem with coverage. Rhinehart indicated that since the premium check was in the mail that he did not foresee any problems. The Zilkas were not, however, aware that the cancellation notice had been sent, so they did not inform Rhinehart of that fact.
Dina Zilka later made a policy claim for reimbursement of $4,500 in property damages arising out of the November 7, 2000 accident. State Farm denied the claim on the grounds that the policy was not in force from November 1, 2000, until November 8, 2000, when State Farm received the premium payment and reinstated the policy. Paul Zilka also filed a claim under his own policy with State Farm on the grounds that his wife was an uninsured motorist. State Farm also denied this claim. According to the Zilkas, they had previously paid the State Farm policy premiums late on their respective policies on several occasions, and that State Farm had accepted the late payments.
1. The Zilkas contend that the trial court erred in granting summary judgment to State Farm and Rhinehart because they had "failed to conclusively establish [an] absence or nonexistence of any defense." However, as the defendants, State Farm and Rhinehart may establish that there is no genuine issue of material fact
*780 by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.
(Citation omitted.) Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Accordingly, we find no merit to this argument.
2. The Zilkas further maintain that the trial court erred in granting summary judgment to State Farm and Rhinehart because there remained an issue of material fact as to whether Dina Zilka's insurance coverage had been effectively cancelled and not reinstated at the time of the loss. We disagree.
Pursuant to OCGA § 33-24-44(d), a policy may be cancelled for nonpayment of premiums "by delivering or mailing written notice to the named insured . . . at least ten days prior to the effective date of cancellation. . . ." Dina Zilka failed to pay her premiums when due, and State Farm mailed a notice of cancellation to her on October 19, 2000, more than ten days prior to the November 1, 2000 cancellation date. The address to which the notice was mailed is indicated on the certificate of mailing, and the Zilkas do not maintain that the address was incorrect. Although the Zilkas do not recall seeing the notice of cancellation, they do not deny its receipt. Furthermore, "[i]n order to prove cancellation of the policy it was unnecessary . . . to prove that the insured actually received the written notice, where it is undisputed that the notice was mailed to the address of the insured as stated in the policy." (Citation and punctuation omitted.) Harris v. United States Fidelity & Guaranty Co., 134 Ga.App. 739, 744(3), 216 S.E.2d 127 (1975).
While the Zilkas cite Garner v. Govt. Employees Ins. Co., 129 Ga.App. 235, 236-237(2), 199 S.E.2d 350 (1973) (physical precedent only), Garner held that an insurer may not fail to renew certain insurance policies without providing proper notice. Id. Here, the policy was cancelled, not "non-renewed." Moreover, the policy provides State Farm with the right to "cancel or non-renew this policy" if the insured fails to timely pay the premiums.
State Farm reinstated the policy upon its receipt of the premium payment on November 8, 2000, but nothing in the policy required that the reinstatement be retroactive to the date of cancellation, and the notice of cancellation specifically provided that there would be no coverage between the date of cancellation and the date of any reinstatement. See State Farm etc. Ins. Co. v. Moore, 104 Ga.App. 194, 195, 121 S.E.2d 286 (1961) (lapsed policy was not in force on date of loss where nothing in the policy or in the conduct of the parties indicated an intention that the reinstatement of the policy should be retroactive). Accordingly, State Farm and Rhinehart have demonstrated that there remains no issue of material fact as to whether the policy issued to Dina Zilka had been effectively cancelled when the loss occurred on November 7, 2000.
3. The Zilkas also claim that the trial court erred in granting summary judgment to State Farm because there is an issue of material fact raised by State Farm's practice of accepting late premium payments. We disagree.
OCGA § 13-4-4 provides:
Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement. The contract will be suspended by the departure until such notice.
"Though a quasi new agreement arises where the parties mutually depart from the terms of the original agreement and pay or receive money under such departure, there must be more than a simple breach on the part of one of the parties; there must be a mutual departure." (Citations and punctuation omitted.) *781 Prudential Ins. Co. etc. v. Nessmith, 174 Ga.App. 39, 40, 329 S.E.2d 249 (1985).
The evidence shows that between 1994 and 2000, Dina Zilka sent in her premium payment late at least three times. According to Dina Zilka, State Farm never sent her a reimbursement check for any lapsed period of time that the policy was not in effect, and that "each time that I sent my premium late to [State Farm] they retroactively reinstated my automobile insurance policy." Dina Zilka does not show, however, that State Farm ever reinstated the policy after it had sent a notice of cancellation, as is this case here, or that any reinstatement following cancellation was without interruption of coverage. Thus, there is no evidence that the parties departed from the terms of the contract insofar as cancellation and reinstatement such that State Farm was required to give prior notice of its intent to adhere to the policy terms. See generally Guideone Life Ins. Co. v. Ward, 275 Ga.App. 1, 4(1)(a), 619 S.E.2d 723 (2005) (acceptance of late payments did not depart from terms so as to reach "practically new agreement"); Nessmith, supra, 174 Ga. App. at 40, 329 S.E.2d 249 (one or few separate instances of insurer's acceptance of over-due premium payment does not show insurer's waiver of forfeiture claim for late payment of subsequent premium).
Furthermore, even if the parties had mutually departed from the terms of the policy, State Farm provided Dina Zilka advance written notice of its intent to expressly rely on the policy terms based upon her failure to timely pay the insurance premiums in this instance; specifically, that the policy would be cancelled effective November 1, 2000, and that any reinstatement would not provide coverage between the date of cancellation and the date of reinstatement. Accordingly, we find that the terms of the policy were not suspended by reason of OCGA § 13-4-4.
4. Lastly, the Zilkas contend that the trial court erred in granting summary judgment to State Farm because Dina Zilka and Paul Zilka could recover for the loss to their jointly owned Toyota under the uninsured motorist provisions of Paul Zilka's State Farm insurance policy. We find no merit to this argument.
Paul Zilka's policy provided that State Farm "will pay damages . . . an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle." However, Paul Zilka's policy also provided that an "uninsured motor vehicle" does not include a motor vehicle "furnished for the regular use of you, your spouse or any relative." The Zilkas do not contend that an uninsured vehicle, other than the Toyota, was involved in the accident, nor do they argue that for purposes of the policy that the Toyota was not a vehicle furnished for Dina Zilka's regular use. The Zilkas nevertheless contend that the provision excluding those vehicles "furnished for the regular use of you, your spouse or any relative" from the definition of uninsured motor vehicles is in violation of OCGA § 33-7-11 and inconsistent with Doe v. Rampley, 256 Ga. 575, 351 S.E.2d 205 (1987) and White v. Metro. etc. Ins. Co., 266 Ga. 371, 467 S.E.2d 332 (1996). We disagree.
The policy's definition of uninsured motor vehicle mirrors the language of OCGA § 33-7-11(b)(1)(D), which provides that "`Uninsured motor vehicle' means a motor vehicle, other than a motor vehicle owned by or furnished for the regular use of . . . the spouse of the named insured. . . ." (Emphasis supplied.) The policy complies with OCGA § 33-7-11(a)(1) because State Farm agreed to provide uninsured motorist coverage within the statutory limits. The policy complies with OCGA § 33-7-11(b)(1)(B) because Dina Zilka is included as an insured as the spouse of Paul Zilka. Doe and White are not factually analogous because they involved claims in which the insured was involved in a collision with an uninsured third party. See Doe, supra, 256 Ga. at 576, 351 S.E.2d 205 (insured operated truck furnished for his regular use by his employer and was involved in a collision with unidentified motorist who negligently drove his vehicle into the insured's path); White, supra, 266 Ga. at 371, 467 S.E.2d 332 (relative of name insured was driving her own vehicle when she was in collision with uninsured motorist).
In this case, it is the vehicle co-owned by the Zilkas that is alleged to be the only uninsured motor vehicle involved in the accident. *782 "The only requirement for recovery under the uninsured motorist statute is that an individual is an `insured who is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle.'" (Citation omitted.) White, supra, 266 Ga. at 373, 467 S.E.2d 332. Pretermitting whether either of the Zilkas might otherwise be entitled to recover for the loss to the Toyota, no "uninsured motor vehicle" for purposes of the policy was involved in the accident. It follows that State Farm was entitled to deny the Zilkas' claims for uninsured motorist coverage under Paul Zilka's policy.
Judgment affirmed.
BLACKBURN, P.J., and ELLINGTON, J., concur.
NOTES
[1] State Farm was sued as "State Farm Insurance Mutual Automobile Insurance Co., Inc." and so named in the summary judgment order and the subsequent notice of appeal. State Farm has consistently shown, and the Zilkas do not deny, that its correct name is "State Farm Mutual Automobile Insurance Company."
[2] State Farm and Rhinehart's motion to dismiss this appeal on the grounds that the Zilkas filed an untimely appellate brief is denied.
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65 So.3d 496 (2009)
EX PARTE RAYMOND MATHIS.
Nos. 1081054, (CR-07-2121).
Supreme Court of Alabama.
August 14, 2009.
DECISION WITHOUT PUBLISHED OPINION
Cert. denied.
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938 S.W.2d 408 (1997)
The CITY OF TULLAHOMA, Tennessee, and the City of Shelbyville, Tennessee, et al., Plaintiffs-Appellants,
v.
BEDFORD COUNTY, Tennessee, and Kathy K. Prater, County Clerk, Bedford County, Tennessee, Defendants-Appellees.
Supreme Court of Tennessee, at Nashville.
January 27, 1997.
*409 William G. Colvin, Phillip E. Fleenor, Shumacker & Thompson, P.C., Chattanooga, Stephen M. Worsham, Robertson & Worsham, Gregory & Giffin, Tullahoma, James W. Dempster, Marsha Adcock, McMinnville, Robert F. Hazard, Copeland, Conley & Hazard, Tullahoma, for Plaintiffs-Appellants.
John T. Bobo, Diane M. Segroves Bobo, Hunt & Bobo, Shelbyville, for Defendants-Appellees.
ORDER
In reaction to the Court's decision that Chapter 52 of the Private Acts of 1991 is inconsistent with general laws which mandate a comprehensive plan for the control of solid waste and is, therefore, invalid, Bedford County and the county clerk have filed a petition to rehear, the City of Tullahoma, et al. have filed a motion for clarification regarding the relief to which they are entitled *410 and the Attorney General and the Commissioner of Environment and Conservation have filed a motion seeking permission to file an amicus brief on the petitions, all of which have been granted and are before the Court for consideration.
The petition of Bedford County and the clerk insists that the Court erred in finding that the private act is impermissible class legislation. Their reliance for their position is the fact that the private act was enacted prior to the enactment of the Solid Waste Management Act. Priority of enactment is not determinative. Bedford County and the clerk do not deny the validity of the Solid Waste Management Act and the several other statutes which set forth a uniform statewide policy regarding the disposition of solid waste. Therefore, the only issue is whether the private act is inconsistent with the general law within the meaning of Article XI, Section 8 of the Tennessee Constitution. That issue is discussed adequately in the opinion.
The petition filed by the City of Tullahoma, et al. seeks instructions for further proceedings in the trial court on remand. The only issue presented on the motion for summary judgment was the validity of the private act, and that is the only issue decided by the Court. The only relief to which the appellants are entitled at this stage of the proceedings is the declaration that the private act is invalid. The appellants' contention that they are entitled to certain relief, including a refund of all funds collected pursuant to the provisions of the private act, has not been considered by the trial court and is not properly before this Court for review.
The amicus brief filed by the Attorney General and the Commissioner does not challenge the decision that chapter 52 of the 1991 Private Acts violates the equal protection provisions of the Tennessee Constitution. It does, however, request clarification of an inaccurate statement made by the author of the opinion. In the discussion of the authority of local governments to impose and collect tipping fees pursuant to Tenn. Code Ann. § 68-211-835, the Court stated: "There is no provision in any statute authorizing local governments to impose additional fees." A correct statement is: "There is no provision in any statute authorizing Bedford County to impose additional fees by the procedure followed in this case." However, proper treatment of the point can best be accomplished by revising the paragraph in which that statement is made, as follows:
The imposition, collection, and use of fees by counties and municipalities incident to the control and disposition of solid waste is authorized and regulated by Tenn. Code Ann. § 68-211-835. Even though the purposes for which the charges imposed pursuant to the private act are not inconsistent with the purposes of the Solid Waste Management Act, those charges may be imposed only as authorized by general law. The statute provides that only local governments and solid waste authorities may impose county fees, and then, only when statutory conditions are met. The charges in this case were authorized by the General Assembly, not by local government, and they do not conform to the statutory conditions.[1]
The original opinion filed in this case will be withdrawn and a revised opinion, a copy of which is attached hereto, will be filed.
Costs are taxed in the revised opinion.
/s/ Lyle Reid
Reid, J.
BIRCH, C.J., and DROWOTA and ANDERSON, JJ., concur.
WHITE, J., not participating.
*411 OPINION
REID, Justice.
This is a suit for declaratory judgment, filed by the City of Tullahoma and the City of Shelbyville against Bedford County,[1] in which the Court of Appeals affirmed the summary judgment by the trial court that a private act authorizing the Bedford County Commission to impose a tax on the privilege of disposing of solid waste at landfills in Bedford County does not violate the equal protection provisions of the Tennessee Constitution.[2] This Court, upon finding that the private act is inconsistent with general laws which mandate a comprehensive plan for the control of solid waste in the state, is constrained to declare the private act invalid.
THE CASE
The private act under review is Chapter 52 of the Private Acts of 1991. It provides, in part:
An Act relative to the levy of a privilege tax on solid waste disposal at landfills in Bedford County; to provide for its collection and distribution; and to provide for penalties for violations of this act.
... .
Section 2. The legislative body of Bedford County, by resolution, is authorized to levy a tax for the privilege of disposing of solid waste at a landfill located in Bedford County at a rate not to exceed ten dollars ($10.00) per ton of solid waste.
Section 3. The proceeds received by the county from the tax shall be retained by the county and deposited into the general fund of the county. This tax shall be used by Bedford County to offset expenses realized by the county resulting from a landfill operation within the county, including, but not limited to, road maintenance and repair, the employment of a qualified inspector or inspectors, vehicles, equipment and test services for the purpose of monitoring and inspecting solid waste disposal in Bedford County.
Bedford County does not own or operate a landfill. The only landfill located in the county is owned and operated by an intervening plaintiff, Sanifill, Inc.
The appellants insist that the private act authorizing the county commission to impose a tax on the privilege of disposing of solid waste in landfills in Bedford County is in conflict with the Solid Waste Management Act and other statutes regulating the disposal of solid waste.[3]
The appellees assert that the Court of Appeals properly held that the obligation imposed is a privilege tax authorized by the legislature for the purpose of producing revenue for the county's general fund and, as such, is valid.
*412 Standard of Review
This appeal is from the grant of summary judgment for Bedford County and the county clerk, which was affirmed by the Court of Appeals. Rule 56.03 of the Tennessee Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Here, the facts are not in dispute, the only issues are questions of law. Consequently, the scope of review is de novo with no presumption of correctness. See Tenn.R.App.P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
Analysis
While the legislature has wide discretion in declaring those privileges which may be subject to taxation for the purpose of raising revenue, Knoxtenn Theatres v. Dance, 186 Tenn. 114, 208 S.W.2d 536, 538 (1948), that discretion does not extend to the imposition of a charge, whether a tax or a fee, which is inconsistent with a mandatory general law unless there is a reasonable basis for the discrimination. In the case of Brentwood Liquors Corp. of Williamson County v. Fox, 496 S.W.2d 454 (Tenn. 1973), an act authorizing Williamson County to levy a privilege tax on retail liquor dealers was found to be unconstitutional. That Court's conclusion rested on the lack of a reasonable basis for the additional tax burden:
Chapter 276 of the Private Acts of 1957 recites no reasonable basis, nor can we conceive of any reasonable basis why a particular business in Williamson County should be subject to a different and higher tax than are similar businesses in all the counties of the State.
Id. at 457.
The record does not show that Bedford County is unique or distinguishable from other counties in any aspect pertinent to the issues in this case, so there is no reasonable basis for excepting it from applicable general law. Consequently, if the private act offends "obligatory" general law or violates "uniform state policy," it is rendered invalid by the constitution. City of Alcoa v. Blount County, 658 S.W.2d 116, 118 (Tenn. Ct. App. 1983).
The Court of Appeals held that the "local privilege tax is not in conflict with state mandated `fees,' which are not in the same category as taxes." Whether the charge for depositing waste in a landfill is a tax or a fee, even though denominated a tax, is determined by its purpose. A tax is a revenue raising measure levied for the purpose of paying the government's general debts and liabilities. Memphis Retail Liquor Dealers' Ass'n v. City of Memphis, 547 S.W.2d 244, 245-46 (Tenn. 1977). See City of Knoxville v. Lee, 159 Tenn. 619, 623, 21 S.W.2d 628, 629-30 (1929); 16 Eugene McQuillin, The Law of Municipal Corporations § 44.02 (rev.3d ed. 1994). A fee is imposed for the purpose of regulating a specific activity or defraying the cost of providing a service or benefit to the party paying the fee. Memphis Retail Liquor Dealers' Ass'n v. City of Memphis, 547 S.W.2d at 246; Solid Waste Authority v. Division of Natural Resources, 195 W. Va. 1, 462 S.E.2d 349, 353-54 (1995); Brewster v. City of Pocatello, 115 Idaho 502, 768 P.2d 765, 768 (1988); Crocker v. Finley, 99 Ill.2d 444, 77 Ill.Dec. 97, 459 N.E.2d 1346, 1349-50 (1984); Emerson College v. City of Boston, 391 Mass. 415, 462 N.E.2d 1098, 1105 (1984).
Judged by these definitions, the private act under consideration shows the charge made for depositing waste is a fee. Section 3 of the private act states the purpose of the charge, as follows:
This tax shall be used by Bedford County to offset expenses realized by the county resulting from a landfill operation within the county, including, but not limited to, road maintenance and repair, the employment of a qualified inspector or inspectors, vehicles, equipment and test services for the purpose of monitoring and inspecting solid waste disposal in Bedford County.
Since use of the proceeds is limited to defraying costs to the county "resulting from" the operation of a landfill, the charge is not a tax levied for the purpose of paying the *413 county's general debts and obligations, but is a fee imposed to defray the cost of providing a service.
The imposition, collection, and use of fees by counties and municipalities incident to the control and disposition of solid waste is authorized and regulated by Tenn. Code Ann. § 68-211-835. Even though the purposes for which the charges imposed pursuant to the private act are not inconsistent with the purposes of the Solid Waste Management Act, those charges may be imposed only as authorized by general law. The statute provides that only local governments and solid waste authorities may impose county fees, and then, only when statutory conditions are met. The charges in this case were authorized by the General Assembly, not by local government, and they do not conform to the statutory conditions.[4]
The issue, then, is whether the charges imposed offend the obligatory general law or violate a uniform state policy. The General Assembly has enacted comprehensive legislation regarding the control of solid waste, including the Tennessee Solid Waste Disposal Act,[5] the Tennessee Solid Waste Planning and Recovery Act,[6] the Solid Waste Management Act of 1991,[7] and the Solid Waste Authority Act of 1991.[8] The general policy provisions of those acts are as follows:
XX-XXX-XXX. Public policy. (a) In order to protect the public health, safety and welfare, prevent the spread of disease and creation of nuisances, conserve our natural resources, enhance the beauty and quality of our environment and provide a coordinated statewide solid waste disposal program, it is declared to be the public policy of the state of Tennessee to regulate solid waste disposal to:
...
(3) Provide a coordinated statewide program of control of solid waste processing and disposal in cooperation with federal, state, and local agencies responsible for the prevention, control, or abatement of air, water, and land pollution... .
...
XX-XXX-XXX. Purpose. (a) The general assembly finds that the public health, safety and welfare require comprehensive planning for the disposal of solid waste on a local, regional and state level....
Several policy principles are set forth in these several acts: the disposal of solid waste will be accomplished at the local, regional, and state level pursuant to comprehensive planning; the development of a comprehensive, integrated statewide program for solid waste management will assure that solid waste facilities whether publicly or privately operated do not adversely affect the health, safety, and well-being of the public; and public spending for the control and disposal of solid waste is to be accomplished by appropriations by the legislature and the imposition of tipping fees by local operators. These statutes regulate all aspects of solid waste management, they control facilities operated by private persons and public agencies, they mandate uniformity, they specifically limit the means of generating revenue, and they require that all revenue received by the state and local governments be used only for solid waste management purposes. The Solid Waste Management Act expressly regulates the imposition, collection, and use of fees and surcharges by the state and local governments; it limits the use of proceeds collected by local governments; and it requires *414 that the comprehensive plan for the management of solid waste include a uniform accounting system developed by the state comptroller.[9]
In Martha M. Gentry & William R. Bruce, A Lawyer's Guide to the New Solid Waste Management Act, 27 Tenn. B.J. no. 6, at 32, 36 (1991), the authors make the following observations regarding the funding of solid waste management:
The [Solid Waste Management Act] creates a new taxing structure to provide the resources needed to enact this comprehensive approach to solid waste management.
...
[T]he most important victory of the new act is it provides funding for the new programs instituted.... [T]he act also provides continuing revenues to administer the new programs authorized.
The article notes that local governments that own and operate solid waste disposal facilities are authorized to impose a tipping fee, but notes that the revenue generated may be used "only for expenses incurred for solid waste management administration in the region." Id. at 36.
Review of these statutes require the conclusion that there is obligatory general law and a clearly stated uniform state policy on the subject of the disposition of solid waste applicable to all local governments, including the charges which may be imposed. The imposition of a separate and additional charge for disposing of solid waste in Bedford County is not consistent with this comprehensive scheme for planning, managing, funding, and accounting found in the general law.
The existence of an obligatory general law or uniform state policy has been recognized in comparable situations. In Sandford v. Pearson, 190 Tenn. 652, 231 S.W.2d 336 (1950), the Court considered the constitutionality of a private act regulating the transportation, sale, and possession of beer in Haywood County. The Court stated:
In our reported decisions, so numerous have been the assaults on Private Acts under Article I, Section 8, "The Due Process Clause," and Article 11, Section 8, "The Partial Legislation Clause," of the Constitution, that to consider them all would be impossible in a single opinion. As we define the present Act, while it does incidentally affect Haywood County in its governmental function, its primary purpose is to regulate under the police power, the citizens of Haywood County in their private rights to sell, transport and possess beer, when those private rights are already governed, regulated and limited by general statutory law, Code §§ 1191.1-1191.20.
"It is further insisted that the act here involved was designed to affect the county in its political and governmental capacity. While it may so affect the county, as most statutes limited to a particular county do, nevertheless, if it primarily affects the rights of the citizens, without affecting others in like condition elsewhere in the state, it is invalid." State ex rel. Hamby v. Cummings, 166 Tenn. 460, 464, 63 S.W.2d 515, 516.
...
Giving our obligation of judicial notice its most elastic exercise, we can imagine no *415 basis on which to distinguish any aspect of the beer problem in Haywood County, from the same problem in other counties of the same or similar size throughout the State. In the Act passed, the Legislature makes no attempt to justify the classification, and that justification was a legislative, not a judicial function. Justice Cook's dissenting opinion, Darnell v. Shapard, 156 Tenn. 544, 566, 3 S.W.2d 661.
Under the foregoing authorities for the reasons stated, we are forced to hold that Chapter 756 of the Private Acts of 1949, is unconstitutional as violating Article I, Section 8, and Article 11, Section 8, of the State Constitution... . (emphasis added).
Id. 231 S.W.2d at 338, 339.
A similar result was reached in Jones v. Haynes, 221 Tenn. 50, 424 S.W.2d 197 (1968). In that case, a private act which banned the sale and use of fireworks in Fentress County at all times of the year, was held unconstitutional because it differed from a general law of statewide application which allowed the sale and use of fireworks during certain limited time periods. The Court noted:
Special legislation, as this Act is, that is, it is special legislation affecting Fentress County, affecting different counties or cities in their governmental or political capacities, does not offend Article 11, Section 8, or Article 1, Section 8, of our Constitution even though contrary to a general statute, provided that there is a reasonable basis for the classification... . There is nothing in the act now before us to show that Fentress County is in any different circumstances or condition than any other county in the State of the same size and population. Such a showing is necessary where the general law is to be suspended and when such is not shown the Act is plainly unconstitutional and violative of Article 1, § 8 of our Constitution.
Id. 424 S.W.2d at 198-99.
In State v. Cummings, 166 Tenn. 460, 63 S.W.2d 515 (1933), the Court considered a private act which prohibited family members of the county court of Hamilton County from contracting with the county for any purpose. The Court stated, "We are unable to perceive any justification for denying to the large number of citizens of Hamilton County affected by this act their constitutional right to contract with citizens similarly situated in the other counties of the state are not deprived of that privilege." Id. 63 S.W.2d at 516. The Court stated further:
It is further insisted that the act here involved was designed to affect the county in its political and governmental capacity. While it may so affect the county, as most statutes limited to a particular county do, nevertheless, if it primarily affects the rights of the citizens, without affecting others in like condition elsewhere in the state, it is invalid.
Id.
These decisions require that the general law prevail.
Conclusion
The conclusion is that the imposition of an additional charge for depositing solid waste in a landfill in Bedford County is not consistent with uniform state policy and obligatory general law applicable to all the counties in the state. The private act authorizing that charge is, therefore, invalid.
The judgment of the Court of Appeals is reversed, summary judgment is entered on behalf of the plaintiffs, and the case is remanded to the trial court.
Costs are taxed to defendants, Bedford County and Kathy K. Prater, County Clerk.
NOTES
[1] The charges are not authorized by subsection (a) because Bedford County does not own the disposal facility; they are not authorized by subsection (e) because the record does not show that Bedford County is a host county to a "regional" solid waste disposal facility; they are not authorized by subsection (f) because the record does not show the proceeds were used for solid waste collection and disposal or that a regional solid waste plan had been approved for Bedford County; nor are the charges authorized by subsection (g) because the record does not show the proceeds were used only for collection and disposal services to which all residents of the county had access. There is no contention that the charges are authorized pursuant to Title 5 of the Code.
[1] Batesville Casket Co.; City of Winchester; Coffee County; Franklin County; Laidlaw Environmental Services of Chattanooga, Inc.; Sanifill, Inc.; Tennessee Southern Central Iron & Metal; and The City of McMinnville were allowed to intervene as parties-plaintiffs. Sanifill, Inc. was allowed to intervene to interplead the funds it had collected under the challenged act. The City of Shelbyville, an original plaintiff, was dismissed by order of voluntary dismissal. Only Batesville Casket Co., Coffee County, Laidlaw Environmental Services, Inc., The City of McMinnville, Southern Central Iron and Metal, and The City of Tullahoma are before this Court on appeal.
[2] Article 1, Section 8 and Article 11, Section 8 of the Tennessee Constitution are the state's expression of equal protection corresponding to Section 1 of the Fourteenth Amendment of the United States Constitution. Tennessee Small School Sys. v. McWherter, 851 S.W.2d 139, 152 (Tenn. 1993); Sandford v. Pearson, 190 Tenn. 652, 231 S.W.2d 336, 339 (1950).
No man to be disturbed but by law. That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any matter destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.
Tenn. Const. art. I, § 8.
General laws only to be passed. The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land... .
Tenn. Const. art. XI, § 8.
... No state shall ... deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, § 1.
[3] See page 413, infra.
[4] The charges are not authorized by subsection (a) because Bedford County does not own the disposal facility; they are not authorized by subsection (e) because the record does not show that Bedford County is a host county to a "regional" solid waste disposal facility; they are not authorized by subsection (f) because the record does not show the proceeds were used for solid waste collection and disposal or that a regional solid waste plan had been approved for Bedford County; nor are the charges authorized by subsection (g) because the record does not show the proceeds were used only for collection and disposal services to which all residents of the county had access. There is no contention that the charges are authorized pursuant to Title 5 of the Code.
[5] Tenn. Code Ann. §§ 68-211-101 to XX-XXX-XXX (1992 & Supp. 1995).
[6] Tenn. Code Ann. §§ 68-211-601 to XX-XXX-XXX (1992 & Supp. 1995).
[7] Tenn. Code Ann. §§ 68-211-801 to XX-XXX-XXX (1992 & Supp. 1995).
[8] Tenn. Code Ann. §§ 68-211-901 to XX-XXX-XXX (1992 & Supp. 1995).
[9] Revenue from tipping fees at publicly owned solid waste disposal facilities and incinerators received by counties, municipalities and solid waste authorities shall be expended only for solid waste management purposes.
(c) When a municipal solid waste disposal facility is operated as a joint venture by more than one (1) city or county, or combination thereof, or by an authority, the tipping fee authorized under this section shall be imposed by the joint operators or authority, and the tipping fee received shall be remitted to the participating local governments or authorities for expenditure for solid waste management purposes only.
Tenn. Code Ann. § 68-211-835.
(a) Effective July 1, 1992, each county, solid waste authority and municipality shall account for financial activities related to the management of solid waste in either a special revenue fund or an enterprise fund established expressly for that purpose... .
(b) The comptroller of the treasury is directed to develop a uniform financial accounting system conforming to generally accepted accounting principles for use as required by this section.
Tenn. Code Ann. § 68-211-874.
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437 F.2d 1321
George D. JOHNSON, Plaintiff,v.Robert H. FINCH, Secretary of Health, Education and Welfare,Defendant.
No. 255-70.
United States Court of Appeals, Tenth Circuit.
Feb. 16, 1971.
James P. Johnston, Wichita, Kan., for appellant.
J. F. Bishop, Dept. of Justice, Washington, D.C. (William D. Ruckelshaus, Asst. Atty. Gen., Robert J. Roth, U.S. Atty., and Kathryn H. Baldwin, Atty., Dept. of Justice, Washington, D.C., on the brief) for appellee.
Before HILL and HOLLOWAY, Circuit Judges, and DOYLE, District Judge.
HILL, Circuit Judge.
1
This appeal is from the District Court's order granting summary judgment on appellee Secretary's motion. Judgment was thereby entered affirming the Secretary's final determination against appellant's disability claim.
2
On May 1, 1963, appellant filed an application for a period of disability and/or disability insurance pursuant to the provisions of the Social Security Act, as amended, 42 U.S.C. 416(i), 423. This application was advanced to the hearing stage on February 8, 1965, and thereafter appellee Secretary's Hearing Examiner handed down a decision holding that appellant was not disabled on or before August 1, 1963. Appellant's request for review by appellee's Appeals Council was denied and appellant resorted to suit in the Federal District Court. On March 22, 1966, the United States District Court for the District of Kansas affirmed the administrative decision. Thereafter appellant appealed to this court and for the reasons set forth in our reported opinion in that case,1 the judgment of the District Court was reversed and the case was remanded to the District Court with instructions to remand the case to the Secretary for a rehearing and for the making of new findings in conformity with our opinion.
3
On March 1, 1967, appellee's Appeals Council vacated its previous decision denying appellant's claim, and a new hearing was held on the question. Subsequently, on September 20, 1967, the Hearing Examiner determined in a recommended decision that appellant was not entitled to a period of disability or to disability insurance benefits under the Social Security Act as in effect prior to the Social Security Amendments of 1965, or as amended thereby. The Hearing Examiner's decision became the final determination of the Secretary when the Appeals Council adopted the Examiner's decision. Again appellant petitioned the Federal District Court-- as provided under 42 U.S.C. 405(g)-- for review of the final determination by the Secretary. Both appellant and appellee Secretary made motions for summary judgment, and after review of the evidentiary record, the District Court granted appellee Secretary's motion for summary judgment and overruled appellant's motion.
4
The underlying facts are largely without dispute and may be stated in brief since our previous opinion set them out in detail. At the time of filing his application for disability benefits in 1963, appellant was 46 years of age, blind in his right eye since he was five years old, and afflicted with a congenital bilateral clubfoot deformity. Appellant has satisfied the various procedural requirements of the Social Security Act, and in order to receive benefits there only remains the question whether appellant was disabled within the meaning of the Act on or prior to December 31, 1963.2
5
Needless to say, the judges of this court do not sit as a super trial court empowered to make our own determination whether appellant is disabled within the meaning of the Act. That is true regardless of how we would have decided the issues had we constituted the fact finding tribunal. On the contrary, 42 U.S.C. 405(g) restricts judicial review stating: 'The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. * * *' In two comprehensive memorandum decisions, the District Court reviewed the evidence and determined under the applicable law that substantial evidence supports appellee Secretary's finding that appellant was not disabled on or prior to December 31, 1963. We agree with the District Court that substantial evidence supports the finding of the Secretary. In coming to this conclusion, we have not overlooked the evidence supportive of appellant's view. However, that evidence is not compelling because, as we have already pointed out, we cannot make a de novo determination but must limit our review to whether within all the evidence there exists such relevant evidence as a reasonable mind might accept as adequate to support appellee Secretary's determination.3
6
The statutory definition of 'disability' is contained in 42 U.S.C. 423(d)(1): 'The term 'disability' means-- (A) inability 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. * * *'4 In subsection 2(A) of 42 U.S.C. 423(d), Congress elaborated on this definition saying, 'an individual * * * shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he 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 gainful 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. For purposes of the preceding sentence (with respect to any individual), 'work which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.'5 The burden of proving disability by acceptable evidence rests with the claimant. 42 U.S.C. 423(d)(5).
7
The evidence adduced at the administrative proceedings shows that appellant's congenital bilateral clubfoot deformity severely impairs his ability to walk or even to stand for any length of time. The medical evidence and appellant Johnson's own testimony leave little doubt that he suffers constant pain in his feet and legs when he is on his feet. This, of course, precludes any finding that appellant could engage in any substantial gainful activity which would require him to be on his feet for any length of time. However, the medical evidence in this case also supports the conclusion that appellant's physical impairment should not cause him pain while he is sitting, and that therefore he can engage in sedentary type employment for which he is qualified.
8
At the second hearing before appellee Secretary's Hearing Examiner, Dr. William R. Miller, a specialist in orthopedic medicine, testified concerning appellant's condition after examining the medical records placed in evidence relating to appellant's clubfoot deformity. Dr. Miller verified that appellant's condition would produce pain while appellant was on his feet. But the doctor's further testimony was that if appellant limits his movement during the day, he should be able to spend time on his feet at intervals without producing constant severe pain. Dr. Miller also indicated that pain killing drugs would have a beneficial effect if appellant were in a sedentary state and did not engage in prolonged activities on his feet.
9
By letter admitted into evidence, Dr. J. F. Lance qualified his earlier statement that appellant's condition made him unemployable, by noting that the clubfoot condition should not affect appellant's activities while sitting. Additional medical evidence was produced by way of a report made by Dr. H. O. Marsh after Dr. Marsh examined appellant on May 1, 1967. In sum, the report states that appellant's condition precludes heavy, manual labor, but there are many types of light work he can do. This conclusion stems from Dr. Marsh's opinion that when appellant is not actually weight bearing, he would not be suffering pain. The medical evidence also included a report of an examination of appellant's eyesight which discloses that appellant has virtually lost the sight in one eye, but the other eye is correctable to substantially normal vision. The eye doctor's evaluation was that appellant can do most jobs requiring the use of his eyes, but he should not use moving machinery such as drill presses or bandsaws which require accurate judgment of close distances.
10
On the medical evidence summarized above, the Hearing Examiner determined that appellant's clubfoot condition and the accompanying pain did not prevent appellant from engaging in substantial gainful activity, if that activity is limited to sedentary type work. With respect to this determination, further inquiry was made at the hearing to determine whether appellant was qualified for sedentary type work existing in the national economy, keeping in mind his age, education, and work experience.
11
Evidence with respect to appellant's ability to perform sedentary jobs showed that appellant had approximately a high school education and possessed a high I.Q., which at one time was tested to be 130. In 1960, he completed ten months of an eighteen-month business preparatory course conducted under the auspices of the Kansas Vocational Rehabilitation Service. On these facts, a vocational expert testified at the hearing that there were many sedentary jobs existing in 1963 which appellant could have successfully performed. The expert enumerated clerical type jobs requiring intelligence, but which were not demanding on the eyesight and which could be performed while seated with occasionally having to stand or walk for a short time.
12
On the record of the evidence, we must agree with the District Court that substantial evidence supports appellee Secretary's finding that appellant does not suffer severe pain while seated and is not prevented from engaging in sedentary work; and that despite his impairments, appellant is able, in view of his intelligence, education, training, and work experience, to engage in at least several types of substantial gainful activity of a sedentary nature.
13
Affirmed.
1
Johnson v. Gardner, 368 F.2d 909 (10th Cir. 1966)
2
The special earnings requirements of the Act were met through December 31, 1963. In order to be entitled to a period of disability or to disability insurance benefits, it is necessary for appellant to establish that he was under a disability from a time on or prior to December 31, 1963, the date when the earnings requirements were last met
3
Gardner v. Bishop, 362 F.2d 917 (10th Cir. 1966)
4
Congress adopted an identical definition of 'disability' in 42 U.S.C. 416(i) with regard to establishing a period of disability
5
The definition cited derives from the Social Security Amendments of 1967 158(b), 81 Stat. 868. Although the case on appeal has its beginning long before 1967, the definition of 'disability' and the companion subsection contained in the 1967 amendments are applicable to our case, because when Congress enacted the amendments on January 2, 1968, it further provided that the 1967 amendments shall apply to applications for disability benefits which have not been finally determined by the Secretary, or if so determined are yet undergoing review in civil proceedings on the date when the amendments were enacted. Social Security Amendments of 1967 158(e), 81 Stat. 869
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicholas Miloro, :
:
Petitioner :
:
v. :
: No. 1262 C.D. 2016
Workers’ Compensation Appeal : Submitted: November 23, 2016
Board (Department of Veterans :
Affairs and Inservco Insurance :
Services), :
:
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: January 20, 2017
Nicholas Miloro (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that affirmed the decision of a
Workers’ Compensation Judge (WCJ) denying his request for unreasonable contest
attorney fees with respect to a petition to modify benefits filed by the
Commonwealth of Pennsylvania (Employer). We affirm.
Claimant sustained a low back injury and herniated disc at the L5
level in 2002 in his employment with Employer and began receiving total
disability benefits of $347.38 per week under the Workers’ Compensation Act (the
Act)1 for that injury. (WCJ Decision Finding of Fact (F.F.) ¶1.) Prior to the
proceedings at issue here, Claimant’s benefits were modified to partial disability
benefits based upon an impairment rating evaluation and the amount of Claimant’s
benefits was reduced to $185.08 per week to account for Claimant’s receipt of a
pension for which Employer was entitled to an offset. (Id. F.F. ¶¶2-3.)
On July 16, 2014, Employer filed a modification petition seeking to
reduce Claimant’s disability benefits based on a labor market survey in accordance
with Section 306(b)(2) of the Act.2 This petition was based on the medical opinion
of Dr. Berman, an orthopedic surgeon who examined Claimant on Employer’s
behalf, and Mr. Kushner, a vocational expert who evaluated Claimant for
Employer and identified four employment opportunities that were approved by Dr.
Berman as within Claimant’s physical abilities. The WCJ held a hearing on the
modification petition at which Claimant testified and received testimony by trial
deposition of four witnesses: Dr. Berman and Mr. Kushner, Claimant’s treating
neurologist, who testified that Claimant was not capable of returning to work in
any capacity, and a vocational expert retained by Claimant, who testified that the
positions identified by Mr. Kushner were not within Claimant’s physical
limitations. (WCJ Decision F.F. ¶¶5-9.) Claimant’s counsel also submitted a
quantum meruit attorney fee statement and requested that the WCJ award attorney
fees for his work opposing the modification petition.
On October 1, 2015, the WCJ issued a decision denying Employer’s
modification petition. The WCJ found the testimony of Claimant and his treating
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
2
Added by the Act of June 24, 1996, P.L. 350, No. 57, § 4, as amended, 77 P.S. § 512(2).
2
neurologist and vocational expert credible, and rejected the testimony of Dr.
Berman and Mr. Kushner as not credible to the extent that their testimony
conflicted with the testimony of Claimant’s experts. (WCJ Decision F.F. ¶¶10-13.)
Based on these credibility findings, the WCJ held that Employer failed to satisfy its
burden of proving that Claimant had earning power sufficient to support a
modification of his benefits. (Id. Conclusions of Law ¶¶2-3.) The WCJ also ruled
that Employer established a reasonable basis for contest and denied Claimant’s
counsel’s request for attorney fees, noting that “[h]ad I credited Dr. Berman’s
testimony that Claimant could perform light duty work with additional
modifications, and had I credited Mr. Kushner’s testimony that in his experience
such additional modifications could be accommodated by two of the potential
employers, Employer would have prevailed in this matter.” (Id. F.F. ¶15.)
Claimant appealed the denial of attorney fees to the Board. Employer did not
appeal the denial of its modification petition. On July 1, 2016, the Board affirmed
the WCJ’s decision. Claimant now appeals the Board’s affirmance of the denial of
attorney fees to this Court.3
Section 440(a) of the Act4 provides:
In any contested case where the insurer has contested liability
in whole or in part, including contested cases involving
petitions to terminate, reinstate, increase, reduce or otherwise
modify compensation awards, agreements or other payment
3
Our review is limited to determining whether there has been any error of law or violation of
Board procedures or constitutional rights, and whether the WCJ’s necessary findings of fact are
supported by substantial evidence. Thompson v. Workers’ Compensation Appeal Board (Cinema
Center), 981 A.2d 968, 972 n.4 (Pa. Cmwlth. 2009). The issue here, whether Employer’s
litigation of its modification petition was a reasonable contest, is a question of law fully
reviewable by this Court. Thompson, 981 A.2d at 973.
4
Added by the Act of February 8, 1972, P.L. 25.
3
arrangements or to set aside final receipts, the employe or his
dependent, as the case may be, in whose favor the matter at
issue has been finally determined in whole or in part shall be
awarded, in addition to the award for compensation, a
reasonable sum for costs incurred for attorney’s fee,
witnesses, necessary medical examination, and the value of
unreimbursed lost time to attend the proceedings: Provided,
That cost for attorney fees may be excluded when a
reasonable basis for the contest has been established by the
employer or the insurer.
77 P.S. § 996(a) (emphasis added). The burden of establishing a reasonable basis
for the contest is on the employer. Thompson v. Workers’ Compensation Appeal
Board (Cinema Center), 981 A.2d 968, 973 (Pa. Cmwlth. 2009); Costa v. Workers’
Compensation Appeal Board (Carlisle Corp.), 958 A.2d 596, 601-02 (Pa. Cmwlth.
2008); Striker v. Workmen’s Compensation Appeal Board (California University of
PA), 650 A.2d 1109, 1111 (Pa. Cmwlth. 1994). This burden is satisfied and
attorney fees are properly denied to a prevailing claimant where the parties’
evidence is conflicting and where the employer’s contest was brought to resolve a
genuinely disputed factual or legal issue. Thompson, 981 A.2d at 973; Costa, 958
A.2d at 602; Schachter v. Workers’ Compensation Appeal Board (SPS
Technologies), 910 A.2d 742, 746 (Pa. Cmwlth. 2006); Striker, 650 A.2d at 1111.
Claimant argues that Employer’s evidence was insufficient to support
its modification petition even if found credible and that there was therefore no
genuine dispute that could make its contest reasonable. We do not agree.
Claimant bases his argument on the contentions that Employer’s
medical expert, Dr. Berman, testified that Claimant would need breaks every one
to two hours and that none of the jobs identified by Employer’s vocational expert
satisfied this requirement. These assertions, however, are not an accurate
characterization of the evidence that Employer presented to the WCJ. Dr. Berman
4
testified that the breaks that Claimant would need consisted only of the ability to
stand up and walk briefly and Dr. Berman specifically approved the four positions
identified by Mr. Kushner as jobs that Claimant was capable of performing.
(Employer Ex. E, Berman Dep. at 21-22, 25-26 & Ex. C thereto, Reproduced
Record (R.R.) at 21a-22a, 25a-26a, 73a-80a.) The job description for the position
of sales representative at Progressive Business Publications expressly provided for
“breaks as needed throughout the day.” (Employer Ex. E, Berman Dep. Ex. C,
R.R. at 73a.) In addition, all four job descriptions provided that the employee
could change position from sitting to standing while working: the job descriptions
for Progressive Business Publications and the New Pig Energy customer service
specialist stated that “[t]he employee may change positions as needed by sitting or
standing at the work station as desired” and the descriptions for the positions of
cashier at Lowe’s and Walmart stated that “[s]itting and standing will occur
intermittently through the work shift and at the employees discretion” and that
“[c]hange of position between sitting and standing during the shift would occur at
the discretion of the employee.” (Id., R.R. at 73a, 75a, 77a, 79a.) Moreover, Mr.
Kushner testified that he knows from personal experience dealing with Lowe’s and
Walmart that those two employers make accommodations for employee
disabilities. (Employer Ex. F, Kushner Dep. at 13-14, 16-17, R.R. at 97a-98a,
100a-101a.) Employer’s evidence, if found credible, was therefore sufficient to
prove that Claimant had earning power that could support a modification of his
benefits.
While Employer failed to prove that Claimant had earning power, that
was because the WCJ found Claimant and his expert witnesses more credible than
Dr. Berman and Mr. Kushner, not because Employer’s evidence was legally
5
insufficient. (WCJ Decision F.F. ¶¶10-13, 15.) Because the medical and
vocational expert testimony conflicted and Employer’s modification petition
involved a genuine factual dispute, Employer’s contest was reasonable and
attorney fees were properly denied. Thompson, 981 A.2d at 973; Costa, 958 A.2d
at 602; Schachter, 910 A.2d at 746-47; Striker, 650 A.2d at 1111. We therefore
affirm the order of the Board.
____________________________________
JAMES GARDNER COLINS, Senior Judge
Judge Hearthway did not participate in the decision of this case.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicholas Miloro, :
:
Petitioner :
:
v. :
: No. 1262 C.D. 2016
Workers’ Compensation Appeal :
Board (Department of Veterans :
Affairs and Inservco Insurance :
Services), :
:
Respondents :
ORDER
AND NOW, this 20th day of January, 2017, the order of the Workers’
Compensation Appeal Board in the above matter is AFFIRMED.
____________________________________
JAMES GARDNER COLINS, Senior Judge
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
MICHAEL ROGER MILLS,
Appellant,
v. Case No. 5D14-2814
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed July 29, 2016
Appeal from the Circuit Court
for St. Johns County,
Howard M. Maltz, Judge.
Michael R. Ufferman, of Michael Ufferman
Law Firm, P.A., Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca Roark Wall,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
Michael Roger Mills appeals the judgment and sentence entered against him after
he was found guilty, by a jury, of soliciting a minor using a computer device, in violation
of section 847.0135(3)(a), Florida Statutes (2013), unlawful use of a two-way
communications device, in violation of section 934.215, Florida Statutes (2013), and
traveling to meet a minor, in violation of section 847.0135(4)(a), Florida Statutes (2013).
Mills raises a number of issues on appeal, however, only one warrants reversal: namely,
that his convictions for soliciting a minor using a computer device and unlawful use of a
two-way communication device violate double jeopardy principles because the elements
to prove each are subsumed within the elements for traveling to meet a minor. Based on
the facts of this case and the State’s concession of error, we agree with Mills and conclude
that double jeopardy principles preclude separate convictions under section
847.0135(3)(a), section 934.215, and section 847.0135(4)(a). See State v. Shelley, 176
So. 3d 914, 919 (Fla. 2015); see also Holt v. State, 173 So. 3d 1079, 1081-84 (Fla. 5th
DCA 2015). Accordingly, we reverse Mills’ convictions and vacate his sentences for
soliciting a minor using a computer device and unlawful use of a two-way communication
device. Finding no error in the remaining issues or that any error was harmless, we affirm
in all other respects.
AFFIRMED in part, VACATED, in part.
PALMER, EVANDER and BERGER, JJ., concur.
2
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71 F.3d 413
315 U.S.App.D.C. 154, Util. L. Rep. P 14,072
Jack J. GRYNBERG, Individually and as General Partner forthe Greater Green River Basin Drilling Program:72-73, Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent,Rocky Mountain Natural Gas Company, Intervenor.
Nos. 94-1699, 95-1134.
United States Court of Appeals,District of Columbia Circuit.
Argued Oct. 10, 1995.Decided Dec. 12, 1995.
On Petitions for Review of Orders of the Federal Energy Regulatory Commission.
Nancy J. Skancke argued the cause and filed the briefs for petitioner Jack J. Grynberg.
John T. Miller, Jr. argued the cause and filed the briefs for petitioner and intervenor Rocky Mountain Natural Gas Company.
Jill L. Hall, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief was Jerome M. Feit, Solicitor, Federal Energy Regulatory Commission.
Before: SILBERMAN, HENDERSON, and RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge:
1
In 1975, Jack J. Grynberg entered into a contract to sell natural gas to Rocky Mountain Natural Gas Company in intrastate commerce. Rocky Mountain now argues that the contract was illegal because Grynberg had previously dedicated the gas to interstate commerce under a 1968 agreement between Grynberg and Mountain Fuel, an interstate pipeline. If the gas was dedicated to interstate commerce, the maximum lawful price of the gas would be lower than the contract price paid by Rocky Mountain. The Federal Energy Regulatory Commission decided that the gas had been dedicated to interstate commerce under the 1968 agreement.
2
Both Grynberg and Rocky Mountain have filed petitions for review. Grynberg contests the Commission's finding that the gas was dedicated to interstate commerce. Rocky Mountain contests the Commission's refusal to order Grynberg to refund certain overpayments. We grant Grynberg's petition for review because the Commission's interpretation of the 1968 agreement is not reasonable. We therefore vacate the Commission's orders and remand the case, without addressing Grynberg's other arguments and without considering Rocky Mountain's petition.
3
* In 1968, Grynberg entered into a contract with Mountain Fuel to sell gas from certain fields in Colorado. Grynberg applied to the Commission for a certificate of public convenience and necessity to sell the gas in interstate commerce. The Commission granted the certificate on March 24, 1969. Grynberg completed well No. 1-25 and sold the gas from that well to Mountain Fuel until November 1978.
4
In 1973, Grynberg drilled two new wells in the fields listed in the 1968 contract. Grynberg offered the gas from these wells--Nos. 1-24 and 1-36--to Mountain Fuel, but Mountain Fuel declined the offer. In 1975, Grynberg entered into a contract with Rocky Mountain to sell the gas from these two wells in intrastate commerce. Grynberg eventually drilled four additional wells--Nos. 2-25 (spudded in April 1988), 2-36 (June 1988), 4-25 (July 1990), and 5-25 (October 1990)--and sold the gas from these wells to Rocky Mountain under the 1975 agreement. The central issue in this case is whether the gas from these six wells was dedicated to interstate commerce by the 1968 agreement with Mountain Fuel.
5
Until 1978, the Federal Energy Regulatory Commission had authority to regulate only gas sold in interstate commerce. 15 U.S.C. Sec. 717(b). In order to sell gas in interstate commerce, a seller had to receive a certificate of convenience and necessity from the Commission. 15 U.S.C. Sec. 717f(c). Once the gas was certified--or dedicated to interstate commerce--it had to be sold in interstate commerce subject to the Commission's price regulations until the Commission permitted the service to be abandoned. 15 U.S.C. Sec. 717f(b).
6
The scope of the dedication to interstate commerce is determined by the language of the certificate issued by the Commission. See Sunray Oil Co. v. FPC, 364 U.S. 137, 152-54, 80 S.Ct. 1392, 1401-02, 4 L.Ed.2d 1623 (1960). If the certificate is inconclusive, the dedication is controlled by the certificate application, and, if necessary, the contract underlying the application. Gulf Oil Corp. v. FPC, 563 F.2d 588, 594 (3d Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978). Here, the certificate does not provide any details about the scope of the dedication. It refers back to the application which, in turn, quotes Articles II-1 and II-2 of the 1968 contract, a copy of which Grynberg attached. The Commission based its decision on its interpretation of the contract. 62 F.E.R.C. p 61,046 (1993).
7
The Commission's reading of the contract is entitled to judicial respect, see Transwestern Pipeline Co. v. FERC, 988 F.2d 169, 173 (D.C.Cir.1993), but here the Commission has gone beyond a fair construction to reach a result it has not supported. The Commission viewed the 1968 agreement as having dedicated all of the gas underlying the fields described in the contract to Mountain Fuel. This the Commission derived not from the body of the contract, but from the introductory "Whereas" clause, which states: "WHEREAS, Seller owns or controls, and desires to sell and Buyer desires to purchase Seller's share of gas underlying the lands and leaseholds (subject lands) described in Appendix 'A'...."
8
In its order, the Commission brushed aside Article II of the contract, which is titled "Agreement to sell and reservations." Article II-1 states: "Seller agrees to sell to Buyer all gas owned or controlled by Seller, produced from or allocated to Seller's interest in subject gas reserves...." Article I-6 defines subject gas reserves to "include only gas reserves ... open to production in a completed well or wells connected to Buyer's pipeline" that "underlie the lands surrounding such wells." Such gas reserves "shall not be calculated to underlie more lands around any given well than ... the number of acres embraced within a valid spacing order." In Colorado, well spacing is approximately 40 acres.
9
The Commission explained that these provisions only "describe Grynberg's contract obligation to sell gas (i.e. gas from completed wells hooked up to Mountain Fuel and not, for example, gas from undeveloped reserves in place)." 62 F.E.R.C. p 61,046. While we do not disagree with this reading, we fail to see how it supports the Commission's interpretation that in light of the "Whereas" clause, Grynberg was obligated to sell all of the gas underlying all of the subject lands to Mountain Fuel. In its brief, the Commission attempted to bolster its interpretation by explaining Article II as a take-or-pay provision. Take-or-pay provisions protect sellers from cash flow fluctuations by requiring buyers to pay for a certain percentage of the production from a well whether or not the buyer actually accepts delivery of the gas. Transcontinental Pipe Line v. State Oil & Gas Bd., 474 U.S. 409, 412, 106 S.Ct. 709, 711-12, 88 L.Ed.2d 732 (1986) (citing Pierce, Natural Gas Regulation, Deregulation, and Contracts, 68 VA.L.REV. 63, 77-79 (1982)).
10
The Commission's interpretation of the contract and the reasons given for it do not survive close attention. Ignoring the rest of the contract, the Commission offers little more than an assertion to support its idea that the prefatory Whereas clause defines the scope of the dedication. According to the Commission, Grynberg agreed to sell all of the gas underlying the subject lands to Mountain Fuel. But if the Whereas clause defines the extent of the obligation to sell and dedicates all of the gas to Mountain Fuel, what is the role of Article II-1? It appears to determine Grynberg's obligation to sell: "Seller agrees to sell ... Seller's interest in subject gas reserves." The Commission's interpretation renders this provision meaningless, yet it is standard contract law that a Whereas clause, while sometimes useful as an aid to interpretation, "cannot create any right beyond those arising from the operative terms of the document." Abraham Zion Corp. v. Lebow, 761 F.2d 93, 103 (2d Cir.1985) (quoting Genovese Drug Stores v. Connecticut Packing Co., 732 F.2d 286, 291 (2d Cir.1984)).
11
The attempt to portray Article II as a take-or-pay clause is, moreover, plainly wrong. A take-or-pay clause obligates the buyer to buy a certain percentage of the production of a well; Article II obligates the seller to sell all of the gas from wells connected to the pipeline. Further, Article II cannot be a take-or-pay clause because Article IV is a take-or-pay clause. Article IV-1(c) states: "Buyer's take obligation shall be limited to fifty percent of the amount Seller is able to produce on a sustained basis, with the take or pay obligation being limited to a maximum of 1.825 billion cubic feet of gas per year."
12
Because the Commission has not sufficiently supported its reading of the contract, we must vacate its orders and remand the case for reconsideration. In doing so we do not pass on the question, raised in oral argument, whether the contract might properly be interpreted to give Mountain Fuel an option or right of first refusal in gas from completed wells on the subject lands. That Grynberg offered the gas from wells 1-24 and 1-36 to Mountain Fuel might support this view. Grynberg himself suggested this possibility in his brief, stating that if Mountain Fuel "exercised the election to connect a new gas well" the sale would be governed by the 1968 agreement. However, the Commission did not rely on any such reasoning and we, therefore, cannot sustain the agency's orders on this basis. SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 462-63, 87 L.Ed. 626 (1943).
II
13
Grynberg asked the Commission to grant retroactive abandonment of the six wells. The Commission rejected his request, reasoning that the equities were against Grynberg because he had unclean hands and because he had "illegally" diverted gas to the intrastate market and "illegally" collected a price higher than the maximum lawful price.
14
The Commission will need to reconsider this decision if it finds, on remand, that the 1968 agreement dedicated the gas from the six wells to interstate commerce. Grynberg appears to have acted on a good faith belief that the six wells were not dedicated to interstate commerce. As we have seen, the contract is ambiguous; it is subject to more than one reasonable interpretation. Grynberg assumed that the contract dedicated only the 40 acres surrounding wells that were actually connected to Mountain Fuel's pipeline. Grynberg's position was clear in 1986 when Celeste Grynberg--Jack Grynberg's wife--applied to the Commission for complete abandonment of the 1968 contract. The application stated that she and Mountain Fuel had mutually agreed to terminate the 1968 agreement. The application described the agreement as covering only well 1-25 and sought abandonment of that well so that she could sell the gas to Rocky Mountain. The Commission granted the application and coded the action as an "abandonment" of service rather than an "amendment to delete acreage."
15
Vacated and remanded.
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963 F.2d 370
Brownv.Duff*
NO. 91-1914
United States Court of Appeals,Fifth Circuit.
May 12, 1992
1
Appeal From: N.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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660 F.3d 587 (2011)
Earle GIOVANNIELLO, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant,
v.
ALM MEDIA, LLC, Defendant-Appellee.
Docket No. 10-3854-cv.
United States Court of Appeals, Second Circuit.
Submitted: May 19, 2011.
Decided: October 17, 2011.
*588 Todd C. Bank, Esq., Kew Gardens, NY, for Plaintiff-Appellant.
Elizabeth C. Koch, Chad R. Bowman, Levine Sullivan Koch & Schultz, LLP, Washington, D.C., for Defendant-Appellee.
Before: RAGGI, LOHIER, and WALLACE,[*] Circuit Judges.
Judge WALLACE concurs in the judgment in a separate opinion.
REENA RAGGI, Circuit Judge:
The Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227, allows persons to recover statutory damages in state court for the transmission of unsolicited advertisements by means of a telephone facsimile machine "if otherwise permitted by the laws or rules of court" of the state where the action is filed, id. § 227(b)(3). On this appeal from a judgment of dismissal entered in the United States District Court for the District of Connecticut (Janet Bond Arterton, Judge), we consider whether a state statute of limitations is among the "laws" referenced in the TCPA's "otherwise permitted" provision, or whether the statute of limitations for TCPA actions is the federal catch-all four-year limitations period provided in 28 U.S.C. § 1658(a). In the circumstances of this case, where the relevant state law, Conn. Gen.Stat. § 52-570c, specifically recognizes a cause of action for statutory damages for the transmission of *589 unsolicited commercial facsimile ("fax") communications, but permits such an action to be filed only within two years of the complained-of transmission, see id. § 52-570c(d), we conclude that a TCPA action may be maintained only as permitted by that state statute of limitations.
In ordering dismissal, the district court did not decide whether Conn. Gen.Stat. § 52-570c(d) applied to this case. Instead, it concluded that this action, filed by plaintiff Earle Giovanniello on September 9, 2009, with respect to a fax transmitted by ALM Media, LLC ("ALM") on January 28, 2004, was untimely even under the four-year limitations period of 28 U.S.C. § 1658(a). See Giovanniello v. ALM Media, LLC, No. 309 Civ. 1409(JBA), 2010 WL 3528649, at *6 (D.Conn. Sept. 3, 2010). On appeal, Giovanniello asserts that 28 U.S.C. § 1658(a), rather than Conn. Gen. Stat. § 52-570c(d), is the applicable statute of limitations. He submits, however, that the district court erred in finding that statute of limitations tolled pursuant to American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), only through dismissal of an earlier putative class action in the Southern District of New York based on the same fax transmission, and not also through reconsideration or appeal of that judgment. We need not address that issue because this TCPA action can be maintained only as permitted by Connecticut law, see 47 U.S.C. § 227(b)(3), which we now clarify includes Conn. Gen.Stat. § 52-570c(d). Accordingly, Giovanniello's complaint is untimely even if tolling were to be calculated as he urges.[1]
I. Background
A. The January 28, 2004 Fax Transmission
On January 28, 2004, Giovanniello allegedly received an unsolicited commercial fax at his home in Connecticut from ALM in New York. Giovanniello asserts that he was but one of more than 10,000 recipients of similar unsolicited fax advertisements sent by ALM between March 2003 and October 2009. He maintains that transmission of these faxes violated the TCPA, which prohibits, among other things, the "use [of] any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement." 47 U.S.C. § 227(b)(1)(C).
*590 B. The September 8, 2009 Filing
This lawsuit is the fourth filed by Giovanniello under the TCPA for transmission of the January 28, 2004 fax.
1. The Initial Connecticut State Court Filings
On April 23, 2004, Giovanniello filed a putative class action under the TCPA in Connecticut state court, which he voluntarily withdrew on August 30, 2004. The following month, on September 20, 2004, Giovanniello filed a second putative class action in Connecticut state court, but voluntarily dismissed that lawsuit without prejudice on June 27, 2005.
2. The New York Federal Court Filing
Over a year and a half later, on March 8, 2007, Giovanniello invoked federal diversity jurisdiction to file his third putative class action under the TCPA, this time in the United States District Court for the Southern District of New York ("Southern District action"). The district court dismissed the complaint on August 6, 2007, holding that (1) the TCPA incorporated a New York law prohibiting class-action suits seeking statutory damages, N.Y. C.P.L.R. § 901(b), and (2) without viable class allegations, Giovanniello failed to satisfy the minimum amount-in-controversy requirement for diversity jurisdiction. See Giovanniello v. N.Y. Law Publ'g Co., No. 07 Civ.1990(HB), 2007 WL 2244321, at *4 (S.D.N.Y. Aug. 6, 2007).
Giovanniello moved for reconsideration, which the district court denied on December 11, 2007. See Giovanniello v. N.Y. Law Publ'g Co., No. 07 Civ.1990(HB), 2007 WL 4320757, at *2 (S.D.N.Y. Dec. 11, 2007). Giovanniello timely appealed to this court on December 19, 2007. A month later, on January 15, 2008, he stipulated to withdrawal of the appeal without prejudice to reinstatement pending resolution of two other appeals challenging the application of N.Y. C.P.L.R. § 901(b) to TCPA class-action suits brought in New York. See Stipulation, Giovanniello v. ALM Media, Inc., No. 07-5371-cv (2d Cir. Jan. 15, 2008). After resolution of those appeals, Giovanniello failed to respond to an order to show cause relating to the status of his appeal. Accordingly, this court ordered the appeal dismissed pursuant to the earlier stipulation. See Order, Giovanniello v. ALM Media, Inc., No. 07-5371-cv (2d Cir. Feb. 9, 2009). The mandate subsequently issued on March 13, 2009.
3. The Instant Connecticut Federal Court Filing
On September 8, 2009more than five and a half years after he received the January 28, 2004 fax here at issueGiovanniello again invoked diversity jurisdiction to file this, his fourth, putative class action against ALM in the United States District Court for the District of Connecticut. ALM moved to dismiss the complaint as untimely, arguing that the TCPA incorporates state law filing limitations and that, under Connecticut law, a private action by the recipient of an unsolicited commercial fax must be brought within two years of transmission. See Conn. Gen. Stat. § 52-570c(d). ALM further contended that even if the federal catch-all four-year statute of limitations applied, see 28 U.S.C. § 1658(a), Giovanniello's action was nonetheless time-barred.
On September 3, 2010, the district court granted ALM's motion to dismiss. See Giovanniello v. ALM Media, LLC, 2010 WL 3528649. The court observed that Giovanniello had conceded that, even under the more generous federal statute of limitations, his complaint was time-barred unless American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, was construed to support tolling of the statute *591 of limitations through his motion for reconsideration or appeal of the judgment of dismissal entered in the Southern District action. See Giovanniello v. ALM Media, LLC, 2010 WL 3528649, at *2 & n. 3.[2] Noting the lack of any support for Giovanniello's urged construction of American Pipe in our circuit precedent, see id. at *4, and the unanimous contrary authority from our sister circuits, see id. at *5-6, the district court dismissed Giovanniello's claim as time-barred without conclusively deciding whether the state or federal statute of limitations applied. See id. at *6.
This timely appeal followed.
II. Discussion
We review de novo a district court's grant of a motion to dismiss, including its legal conclusions concerning the applicable statute of limitations. See City of Pontiac Gen. Emps.' Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir.2011). We may affirm on any ground supported in the record, even if it is not one on which the district court relied. See 10 Ellicott Square Court Corp. v. Mountain Valley Indem. Co., 634 F.3d 112, 125 (2d Cir. 2011).
A. State Statutes of Limitations Are Properly Consulted To Determine if a TCPA Action is "Otherwise Permitted" by State Law
In determining the statute of limitations applicable to Giovanniello's instant action, we begin, as we must, with the relevant statutory texts. See, e.g., Cruz-Miguel v. Holder, 650 F.3d 189, 195 (2d Cir.2011) ("Statutory analysis necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there." (internal quotation marks omitted)). Title 28 U.S.C. § 1658(a) states that "[e]xcept as otherwise provided by law, a civil action arising under an Act of Congress enacted after [December 1, 1990] may not be commenced later than 4 years after the cause of action accrues." (emphasis added). As the highlighted language indicates, the statute expresses a default position: a four-year statute of limitations applies only if Congress has not indicated that some other time period controls.
The act of Congress here at issue, the TCPA, was enacted in 1991 and does not expressly provide a statute of limitations for the private cause of action it authorizes. It does, however, state in pertinent part that "[a] person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State," a private action to enjoin a TCPA violation and to recover damages for actual monetary loss or $500, whichever is greater. 47 U.S.C. § 227(b)(3) (emphasis added). Thus, we must consider whether the highlighted language includes a state statute of limitations.
In construing the TCPA's "otherwise permitted" provision, we have concluded *592 that the language is "unambiguous" in placing "an express limitation on the TCPA which federal courts are required to respect": a TCPA claim "cannot be brought if not permitted by state law." Bonime v. Avaya, Inc., 547 F.3d 497, 502 (2d Cir.2008), abrogated on other grounds by Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., ___ U.S. ___, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). Indeed, as we recently stated, the "otherwise permitted" provision is "a delegation by Congress to the states of considerable power to determine which causes of action lie under the TCPA." Holster v. Gatco, Inc., 618 F.3d 214, 217-18 (2d Cir.2010), cert. denied, ___ U.S. ___, 131 S.Ct. 2151, 179 L.Ed.2d 952 (2011).[3] Although it may seem "unusual," Bonime v. Avaya, Inc., 547 F.3d at 499, for Congress to have created a federal cause of action that may be "define[d] by state law," Holster v. Gatco, Inc., 618 F.3d at 216, that intent is confirmed and explained in legislative history.
The purpose of the TCPA was to assist those statesthen numbering fortythat had enacted legislation to protect their residents from unsolicited commercial telecommunications by filling a perceived jurisdictional gap for interstate communications that states might not otherwise be able to reach. See TCPA, Pub.L. No. 102-243, § 2(7), 105 Stat. 2394, 2394 (1991) (codified as a note to 47 U.S.C. § 227) ("Over half the States now have statutes restricting various uses of the telephone for marketing, but telemarketers can evade their prohibitions through interstate operations; therefore, Federal law is needed to control residential telemarketing practices."); see also S.Rep. No. 102-178, at 2 (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1970 ("States do not have jurisdiction over interstate calls. Many States have expressed a desire for Federal legislation to regulate interstate telemarketing calls to supplement their restrictions on intrastate calls."); see generally Foxhall Realty Law Offices, Inc. v. Telecomm. Premium Servs., Ltd., 156 F.3d 432, 437 (2d Cir. 1998) (discussing TCPA legislative history). In providing the "interstitial law" necessary to "prevent[ ] evasion of state law by calling across state lines," Congress chose to make a TCPA action the "functional equivalent of a state law," applicable only as otherwise permitted by state law and court rules. Gottlieb v. Carnival Corp., 436 F.3d 335, 342 (2d Cir.2006) (Sotomayor, J.); see also Bonime v. Avaya, Inc., 547 F.3d at 503 (Calabresi, J., concurring) (discussing application of canon of construction pertaining to limiting clauses to TCPA's "otherwise permitted" provision). In thus delimiting TCPA actions, *593 Congress placed no restrictions on the state laws or court rules that must be satisfied. Rather, the "as permitted" requirement is unqualified.
In his concurring opinion, Judge Wallace acknowledges that "it is possible in the abstract to read the portion of [the] TCPA providing for a private claim `if otherwise permitted by the laws or rules of court of a State' ... as a decision by Congress to adopt state statutes of limitations for TCPA claims." Wallace, J., Op. Concurring in Part ("Wallace, J., Op."), post at [601]. Nevertheless, he contends that the provision should be interpreted as permitting states to decide only "to permit private TCPA actions in their courts or to not permit them." Id. That restrictive interpretation, however, is foreclosed by this court's prior decisions, which have interpreted the TCPA to "use[ ] state law to define the federal cause of action." Holster v. Gatco, Inc., 618 F.3d at 216 (emphasis added); see also id. at 217 (interpreting "otherwise permitted" provision "as a delegation by Congress to the states of considerable power to determine which causes of action lie under the TCPA"); Bonime v. Avaya, 547 F.3d at 504 (Calabresi, J., concurring) (observing that the Second Circuit has interpreted the TCPA's "state-centered language as having substantive content"). As in Holster, we need not here consider the possibility of a state rule so trivial that it would be absurd to allow non-compliance to deny a litigant his putative federal right to recover under the TCPA. See Holster v. Gatco, Inc., 618 F.3d at 217 (observing that state law prohibiting class action suits for statutory damages did not present concerns raised by "rules about `the color and size of the paper' used for the complaint" hypothesized by Justice Scalia's concurrence in Holster remand order (quoting Holster v. Gatco, Inc., ___ U.S. ___, 130 S.Ct. 1575, 1576, 176 L.Ed.2d 716 (2010) (Scalia, J., concurring))). Statutes of limitations do not fit into such a category. This is apparent from the fact that federal courts adjudicating state causes of action pursuant to diversity jurisdiction must apply outcome-determinative state statutes of limitations. See generally Guaranty Trust Co. v. York, 326 U.S. 99, 100, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); accord Diffley v. Allied-Signal, Inc., 921 F.2d 421, 423 (2d Cir.1990) ("In diversity cases, state statutes of limitations govern the timeliness of state law claims, and state law determines the related questions of what events serve to commence an action and to toll the statute of limitations." (internal quotation marks omitted)).
In sum, while a TCPA diversity action is somewhat unusual in that the cause of action is created by federal rather than state law, that federal law authorizes TCPA claims only as "otherwise permitted" by state law. This indicates that "Congress intended to give states a fair measure of control over solving the problems that the TCPA addresses." Holster v. Gatco, Inc., 618 F.3d at 218. Such control encompasses not only the general authority to recognize particular causes of action, but also the specific authority to determine the time period within which such actions will be recognized. Accordingly, we construe the "otherwise permitted" provision of 47 U.S.C. § 227(b)(3) to signal Congress's intent to allow state statutes of limitations to control a TCPA filing. If a claim for the transmission of an unsolicited commercial fax is no longer "permitted" by a state statute of limitations, it cannot be maintained under the TCPA, notwithstanding the federal catch-all statute of limitations provided in 28 U.S.C. § 1658(a).[4]
*594 B. Giovanniello's TCPA Claim Is Not Permitted by Conn. Gen. Stat. § 52-570c(d)
In light of the fact that Giovanniello received the fax at issue in Connecticut, the parties do not question the application of that state's law to this case. See generally Weber v. U.S. Sterling Sec., Inc., 282 Conn. 722, 737, 924 A.2d 816, 827 (2007) (holding TCPA claim governed by law of state where injury occurred, i.e., where fax was received). Connecticut law recognizes a cause of action for the unlawful "use [of] a machine that electronically transmits facsimiles... to transmit unsolicited advertising material ... which offers to sell goods or services." Conn. Gen.Stat. § 52-570c(a). The parties appear to agree that this is sufficient to demonstrate that a parallel federal action under the TCPA is "otherwise permitted" under Connecticut law. We do not need to decide that question because Giovanniello's claim is, in any event, not permitted under the Connecticut statute of limitations applicable to unsolicited commercial fax claims.[5] Actions for injunctive relief or statutory damages arising from a violation of § 52-570c(a) must be filed "within two years from the date of the act complained of." Id. § 52-570c(d). In short, Connecticut law does not "otherwise permit[ ]" an action for unsolicited commercial faxes filed more than two years after transmission.
Giovanniello complains that he received a single unsolicited commercial fax from ALM on January 28, 2004. He did not commence this action until September 8, 2009, more than five and a half years later. Even if Connecticut law were to toll all times when Giovanniello's earlier state and federal putative class actions pertaining to the January 28, 2004 fax were pending, including through disposition of his motion for reconsideration and appeal of the dismissal of the Southern District action, Giovanniello's September 8, 2009 filing would be untimely and, therefore, not "otherwise permitted" by § 52-570c(d).[6]
*595 Giovanniello does not contend that Connecticut law provides otherwise. Instead, he persists in arguing against the application of Conn. Gen.Stat. § 52-570c(d) to his TCPA claim. He submits that such an application is contrary to Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004), which endorsed a broad application of the federal catch-all statute of limitations. In doing so, the Supreme Court identified concerns with the federal courts' practice of "limitation borrowing" that led to enactment of 28 U.S.C. § 1658, notably (1) the difficulty in determining which of a state's statutes of limitations was best applied to a particular federal claim, and (2) inconsistencies among states' statutes of limitations for the same federal claim. See id. at 378-79, 124 S.Ct. 1836. These concerns are not present here.
First, the issue in this case is not simply what analogous state statute of limitations might apply to a cognizable TCPA claim, but whether a TCPA claim is "otherwise permitted" when filed outside a state statute of limitations given the unambiguous limitation in 47 U.S.C. § 227(b)(3). See Holster v. Gatco, Inc., 618 F.3d at 216 (recognizing "unique nature" of federal action created by TCPA, which uses "state law to define the federal cause of action" (citing Bonime v. Avaya, Inc., 547 F.3d at 503 (Calabresi, J., concurring))). For the reasons stated in the previous section, we answer this statutory construction question by construing § 227(b)(3) to encompass applicable state statutes of limitations.
Second, because Conn. Gen.Stat. § 52-570c(d) expressly applies to unsolicited commercial fax claims, there is no difficulty here in determining the period within which claims pertaining to interstate transmissions are "otherwise permitted" by Connecticut state law. Cases that have applied 28 U.S.C. § 1658(a) to TCPA claims where the analogous state statute of limitations was uncertain, see, e.g., Benedia v. Super Fair Cellular, Inc., No. 07 C 01390, 2007 WL 2903175, at *2 (N.D.Ill. Sept. 26, 2007);[7]Stern v. Bluestone, 47 A.D.3d 576, 582, 850 N.Y.S.2d 90, 96 (1st Dep't 2008), rev'd on other grounds, 12 *596 N.Y.3d 873, 883 N.Y.S.2d 782, 911 N.E.2d 844 (2009); Zelma v. Konikow, 379 N.J.Super. 480, 487-88, 879 A.2d 1185, 1189-90 (N.J.Super.Ct.App.Div.2005), are thus inapposite, and we have no reason to consider further their treatment of TCPA claims.[8]
Third, by granting states broad authority to determine when, if at all, TCPA claims may be brought in their courts, Congress has effectively disclaimed any interest in uniform treatment of TCPA claims among the states. See Foxhall Realty Law Offices, Inc. v. Telecomm. Premium Servs., Ltd., 156 F.3d at 438 (recognizing that "existence of a private right of action under the TCPA could vary from state to state"). Indeed, because Congress enacted the TCPA primarily to fill a perceived jurisdictional gap for states that choose to recognize a cause of action for unsolicited commercial faxes, it would be curious to assume that Congress intended for state courts (or federal courts exercising diversity jurisdiction) to apply a different limitations period to TCPA claims than they apply to parallel state claims.[9]
*597 Finally, Giovanniello's argument that Connecticut's statute of limitations cannot apply to TCPA claims because that state law was enacted in 1989, whereas the TCPA was enacted in 1991, merits little discussion. The TCPA's "otherwise permitted" language is not restricted to state-imposed limitations enacted after the TCPA. Cf. Holster v. Gatco, Inc., 618 F.3d at 218 (applying New York's pre-existing statutory prohibition on class-action suits seeking statutory damages to bar TCPA class claims brought in that state). In any event, Connecticut amended § 52-570c in 2003, inter alia, to increase statutory damages from two hundred to five hundred dollars, thereby aligning Connecticut law with the TCPA in that regard. See 2003 Conn. Legis. Serv. P.A. 03-128 (S.S.B.332) (West).
Accordingly, in these circumstances, where Connecticut law expressly requires claims for unsolicited commercial faxes to be filed within two years of transmission, we conclude that for Giovanniello's fourth TCPA complaint to be deemed "otherwise permitted" by Connecticut law, it had to have been filed within the limitations period set forth in Conn. Gen.Stat. § 52-570c(d), not the federal catch-all statute of limitations established by 28 U.S.C. § 1658(a). Because Giovanniello's TCPA claim was untimely and, thus, not permitted under Connecticut state law, it was properly dismissed.
III. Conclusion
To summarize, we conclude as follows:
1. State statutes of limitations are properly consulted to determine if a TCPA action is "otherwise permitted by the laws or rules of court of [that] State." 47 U.S.C. § 227(b)(3).
2. Because Conn. Gen.Stat. § 52-570c(d) expressly permits actions for unsolicited commercial faxes to be maintained only if filed within two years of transmission, plaintiff's TCPA claim had to be filed within that time, and not the four-year limitations period provided by the federal catch-all statute of limitations, 28 U.S.C. § 1658(a). Having failed to do so, plaintiff's TCPA claim is not "otherwise permitted" by Connecticut state law and must be dismissed.
Accordingly, the judgment of the district court is AFFIRMED.
WALLACE, Senior Circuit Judge, concurring in the judgment:
I agree with the majority that the district court's judgment must be affirmed. I do not agree, however, that Giovanniello's claim is barred by Connecticut General Statute § 52-570c. I would resolve this case on the same ground as the district court: that Giovanniello's claim is time-barred regardless of whether a state or federal statute of limitations applies.
In holding that Connecticut law provides the statute of limitations for Giovanniello's federal claim under the Telephone Consumer Protection Act of 1991 (TCPA), the majority adds to a growing split among the state and federal courts. Where, as here, a decision on this issue is not necessary, I would avoid it. I would do so in this case especially because I view the majority's answer to this issue to be incorrect. TCPA creates a federal claim that, if permitted by the laws or court rules of a state, runs parallel to any state-created *598 rights on the same subject matter. As a federal-created claim arising under a post-1990 Act of Congress, a TCPA claim is governed by 28 U.S.C. § 1658, which establishes a four-year statute of limitations "except as otherwise provided by law." I disagree with the majority that Congress's authorization of the states to decide whether to permit private TCPA actions in their courts also incorporates state statutes of limitations into those causes of action. Even if it did, the Connecticut statute upon which the majority relies does not purport to govern TCPA claims. I, therefore, concur only in the judgment.
I.
The district court dismissed Giovanniello's claim on the ground that it was time-barred regardless of whether a state two-year statute of limitations or the federal four-year catch-all statute of limitations applies because tolling of the limitations period under American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) ceases once the district court strips the action of its class action character. I would affirm on this basis and, as the district court did, avoid making any ruling as to whether federal or state statutes of limitations govern TCPA causes of action in states that permit them.
Giovanniello has presented no convincing reason for us to question the district court's application of American Pipe tolling to 28 U.S.C. § 1658(a). In addition, the majority acknowledges that "every circuit to have addressed the scope of this doctrine has concluded, as the district court did here, that American Pipe tolling ceases upon denial of class certification." Op. at [589] n. 1 (citations omitted).
There is a benefit for the Second Circuit to join its sister circuits on this issue. It would resolve an important, generally applicable, and as yet unsettled question of circuit law. On the other hand, while I understand the majority's desire to provide guidance to TCPA litigants and district courts presented with TCPA claims, there is very little utility in providing such guidance in this case because TCPA claims are relatively rare in district courts. The Second Circuit does not recognize federal question jurisdiction for TCPA actions. Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432, 436 (2d Cir.1998). Indeed, single-plaintiff TCPA actions based on diversity will almost never meet the amount in controversy for jurisdiction under 28 U.S.C. § 1332(a). See Holster v. Gatco, Inc., 485 F.Supp.2d 179, 182 (E.D.N.Y.2007). Thus, as a practical matter, district courts in the Second Circuit will likely only be presented with TCPA claims when jurisdiction exists under the Class Action Fairness Act, 28 U.S.C. § 1332(d). Id. This court has held that representative TCPA actions are not permitted by New York law. Holster v. Gatco, Inc., 618 F.3d 214 (2d Cir. 2010), cert. denied, ___ U.S. ___, 131 S.Ct. 2151, 179 L.Ed.2d 952 (2011). That leaves the districts of Connecticut and Vermont to wrestle with class-TCPA claims with an amount in controversy over $5,000,000. See 28 U.S.C. § 1332(d)(2).
Furthermore, the courts within this circuit that have exclusive jurisdiction over run-of-the-mill TCPA claims (i.e., the state courts) are free to ignore the majority's decision and may well disagree with its conclusions. Cf. Benedia v. Super Fair Cellular, Inc., No. 07 C 01390, 2007 WL 2903175, at *2 (N.D.Ill. Sept. 26) ("[E]ven if we decided that Illinois law controls, an Illinois court would be free to select a different statute of limitations and litigants would face the same uncertainty that Super Fair claims its interpretation would avoid"). Indeed, the majority's decision is *599 in direct conflict with the courts of New York, which apply the federal statute of limitations. Stern v. Bluestone, 47 A.D.3d 576, 850 N.Y.S.2d 90, 96 (N.Y.App.Div. 2008), rev'd on other grounds, 12 N.Y.3d 873, 883 N.Y.S.2d 782, 911 N.E.2d 844 (N.Y.2009). Whatever guidance the majority's decision provides to litigants and trial courts is largely illusory.
The majority's decision that Connecticut law, rather than federal law, provides the statute of limitations for TCPA claims originating in Connecticut is particularly troubling because it tacitly decides that litigants have a right to bring a TCPA action in Connecticut in the first place. While the parties did not present this question for our review, it makes little sense to decide whether Connecticut's or Congress's statute of limitations applies to TCPA claims originating in Connecticut if it turns out that TCPA actions are not even permitted by Connecticut law.
That Connecticut does permit private TCPA actions is far from clear. I am not aware of any statute or court rule that affirmatively authorizes TCPA actions in Connecticut state courts. Rather, Connecticut has adopted a statute that regulates unsolicited facsimile transmissions and provides a private right of action for violation of the statute. Conn. Gen.Stat. § 52-570c. Connecticut's law contains substantial differences from the TCPA. Cf. Conn. Gen.Stat. § 52-570c with 47 U.S.C. § 227(b). For example, the Connecticut statute allows an aggrieved person to recover attorney's fees whereas the TCPA does not; and the TCPA provides treble damages for a willful or knowing violation whereas the Connecticut statute does not. See id. The fact that Connecticut has adopted its own scheme providing its own remedies could be interpreted as a rejection of private TCPA actions in favor of private causes of action under Connecticut law. Connecticut's law authorizing private actions may well work exclusive of, rather than parallel to, private actions under the TCPA.
Several courts have considered whether TCPA requires the states to provide a forum for private claims. Some courts have held that the Supremacy Clause of the United States Constitution requires states to hear actions brought under section 227(b)(3). See, e.g., Italia Foods, Inc. v. Sun Tours, Inc., No. 110350, 2011 WL 2163718, at *4-*6 (Ill. June 3) (discussing and adopting the "`Acknowledgment' Approach"). Under this theory, the "if otherwise permitted" language in section 227(b)(3) merely acknowledges that states are free to adopt their own procedures for TCPA actions. Id. Other courts have held that TCPA creates a right of action that is automatically enforceable in state court, but that states may "opt out" by withdrawing the jurisdiction of their courts. See, e.g., Edwards v. Direct Access, LLC, 121 Nev. 929, 124 P.3d 1158, 1160 (2005), abrogated on other grounds by Buzz Stew, LLC v. City of North Las Vegas, 124 Nev. 224, 181 P.3d 670 (2008). Finally, one state court has held that TCPA provides a private remedy only if the states "opt in" by adopting laws or court rules that affirmatively authorize private TCPA actions. Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 184 S.W.3d 707, 716 (Tex. 2006).
The Second Circuit has not addressed this precise question. However, its decision in Foxhall supports either the "opt out" or the "opt in" theory. 156 F.3d at 438 ("[T]he clause [`if otherwise permitted by the laws or rules of court of a State'] recognizes that states may refuse to exercise the jurisdiction authorized by the statute. To the extent that a state decides to prevent its courts from hearing private actions to enforce TCPA's substantive *600 rights, the existence of a private right of action under the TCPA could vary from state to state"). Since the question was not raised or briefed before us, I do not venture an opinion as to which theory is correct. I point out, however, that plausible arguments could be made under both the "opt out" and "opt in" approaches that Connecticut does not permit a private TCPA action. If Connecticut law does not permit private actions under section 227(b)(3), then the district court would have had no subject matter jurisdiction to hear Giovanniello's claims in the first place. See Holster, 618 F.3d at 217-18 (affirming dismissal for lack of jurisdiction where TCPA class action would not be permitted by the laws or rules of court of New York).
The majority's decision that Connecticut General Statute § 52-570c provides the statute of limitations for private TCPA actions is premised on an assumption that TCPA actions are, in fact, permitted by the laws or court rules of Connecticut. I hesitate to accept that premise without further argument. Resolving this case by applying the principles of American Pipe tolling, on the other hand, would allow us to pass on that question altogether because Giovanniello's claim would be barred whether or not Connecticut law permits private TCPA actions.
II.
I disagree with the majority's decision to resolve this case by adopting a state statute of limitations rather than by merely applying American Pipe tolling. Nevertheless, because the majority tackles the question of which statute of limitations applies, I will explain why I disagree with the majority's conclusion. First, assuming that TCPA actions are permitted by Connecticut law, the Connecticut statute does not purport to provide a limitations period for such causes of action. As a matter of statutory construction, Connecticut General Statute § 52-570c cannot provide the limitations period for TCPA claims. Second, as a federal claim, the substantive elements of a TCPA claimincluding the limitations periodmust stem from federal law. Therefore, even if Connecticut did purport to impose its own limitations period for TCPA claims, such a law would be preempted by 28 U.S.C. § 1658(a).
Connecticut General Statute § 52-570c(a) prohibits, among other things, the use of a "machine that electronically transmits facsimiles through connection with a telephone network ... to transmit unsolicited advertising material...." Subsection (d) provides:
Any person aggrieved by a violation of the provisions of this section may bring a civil action in the Superior Court to enjoin further violations and for five hundred dollars for each violation, together with costs and a reasonable attorney's fee. No such action shall be brought but within two years from the date of the act complained of.
Conn. Gen.Stat. § 52-570c(d). Appellee argues, and the majority agrees, that this statute provides the limitations period for claims brought under TCPA.
The majority does not base its decision to apply the limitations period from section 52-570c to claims brought under 47 U.S.C. § 227(b) in the language of either statute. Rather, the majority concludes that the two-year limitations period applies to TCPA claims originating in Connecticut because both statutes regulate the same type of conduct. While this reasoning has some intuitive appeal, it is not supported by principles of statutory construction.
Section 52-570c creates a state cause of action. To the extent Connecticut law permits the courts of Connecticut to hear a *601 cause of action arising under 47 U.S.C. § 227(b), such a cause of action is parallel to, but distinct from, actions arising under section 52-570c. The Connecticut statute creates private civil remedies for violations "of the provisions of this section." Conn. Gen.Stat. § 52-570c(d) (emphasis added). It says nothing about a remedy for violations of 47 U.S.C. § 227(b)(3). Furthermore it provides that "such action" must be brought within two years. Id. (emphasis added). "Such action" refers to an action for violation of section 52-570c. It does not include an action for violation of TCPA. This is so even though the same act would constitute a violation of both statutes. Thus, according to the statute's terms, the two-year limitations period applies only to causes of action for violation of that section.
The majority generalizes from section 52-570c that "Connecticut law does not `otherwise permit[ ]' an action for unsolicited commercial faxes filed more than two years after transmission." Op. at [594]. But that is not what the statute says. The statute does not "otherwise permit" an action for violation of section 52-570c more than two years after the violation. We must apply the statute as it is written. Because section 52-570c, by its own terms, applies only to actions for violations of that section, I conclude that it has no applicability to TCPA actions.
III.
Even if Connecticut had adopted a statute that, by its own terms, imposed a specific limitations period for TCPA claims, the statute would be preempted by federal law. Section 1658(a) provides, "Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues." 28 U.S.C. § 1658(a). Thus, to the extent a state law purports to impose a statute of limitations on a civil action arising under a post-1990 Act of Congress, such a law is preempted. Only Congress can "otherwise provide[]" for a different limitations period.
The majority does not dispute that civil actions for violation of TCPA "arise under an Act of Congress" enacted after Congress enacted section 1658(a). Op. at [591]. The majority also does not contend that Congress has affirmatively "otherwise provided" any specific statute of limitations for TCPA actions. Rather, the majority concludes that a different limitations period is "otherwise provided by law" because Congress made the existence of a private right of action contingent on the states permitting such actions in their courts.
The majority's theory is inconsistent with Supreme Court precedent. In Jones v. R.R. Donnelley & Sons Co., the Supreme Court held that section 1658 should be interpreted broadly to provide the limitations period "if the plaintiff's claim against the defendant was made possible by a post-1990 enactment." 541 U.S. 369, 382, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). Congress did not adopt any specific limitations period for TCPA claims. Therefore, the most straightforward interpretation of the statutes is that section 1658 should apply.
Although it is possible in the abstract to read the portion of TCPA providing for a private claim "if otherwise permitted by the laws or rules of court of a State," 47 U.S.C. § 227(b)(3), as a decision by Congress to adopt state statutes of limitations for TCPA claims, that is not the interpretation consistent with Jones or the legislative history. As the majority points out, the legislative history suggests that Congress adopted this portion of TCPA merely *602 to fill a "perceived jurisdictional gap for interstate communications that states might not otherwise be able to reach." Op. at [592]. Thus, the most natural reading of the clause is that, upon filling the jurisdictional gap, Congress allowed the states to decide either to permit private TCPA actions in their courts or to not permit them. Legislative history may also support a conclusion that the clause merely leaves states free to determine the venue and procedures for TCPA actions. See, e.g., R.A. Ponte Architects, Ltd. v. Investors' Alert, Inc., 382 Md. 689, 857 A.2d 1, 13-14 (2004) (discussing statements by bill's sponsor, Senator Hollings).
To say that the "if otherwise permitted" language reflects an intent to abandon the federal statute of limitations, however, requires "linguistic contortions" that are contrary to the teachings of Jones. See Worsham v. Fairfield Resorts, Inc., 188 Md. App. 42, 981 A.2d 24, 33 (2009). Under Jones, we should interpret section 1658 to fill "more rather than less of the void" caused by borrowing state statutes of limitations for federal causes of action. 541 U.S. at 380, 124 S.Ct. 1836. This principle that section 1658 should be read to apply broadly the four-year limitations period to federal causes of action suggests the corollary principle that potential exceptions to the four-year period should be read narrowly. See Zelma v. Konikow, 379 N.J.Super. 480, 879 A.2d 1185, 1187-88 (2005). Nevertheless, the majority chooses the broadest possible reading of TCPA's "if otherwise permitted" clause.
The majority concludes that section 1658 should not be read broadly to provide a limitations period for TCPA because it does not believe the concerns with "limitation borrowing" that led Congress to enact section 1658 are present in this case. Op. at [595]. I doubt that the concerns the Supreme Court identified in Jones are absent in this case. But even if they were, I would not ignore the Court's clear direction to interpret section 1658 broadly.
First, the majority's declaration that "there is no difficulty here in determining the period within which claims pertaining to interstate transmissions are `otherwise permitted' by Connecticut state law," Op. at [595], is not accurate. If the majority were to apply the plain language of Connecticut General Statute § 52-570c(d), it would recognize that the statute provides a limitations period only for state causes of action brought under that section and not for parallel TCPA claims. However, even if some states do have clearly applicable statutes of limitations, that does not alleviate the concern with limitation borrowing that led Congress to enact section 1658. If TCPA incorporates state statutes of limitations, courts will have to decide on a state-by-state basis (1) whether the state has a statute of limitations specifically applicable to TCPA causes of action, (2) if not, whether one or more general state statutes of limitations could control a TCPA cause of action, and (3) which of the competing statutes should apply. Thus, holding that applicable state statutes of limitations control TCPA filings creates exactly the same problems that section 1658(a) was designed to avoid.
The majority brushes aside the cases that have applied section 1658 to TCPA claims by saying that, in those cases, the "analogous state statute of limitations was uncertain." Op. at [595]. This characterization of the cases is inaccurate and fails to engage the rationale that supports them, namely, that Congress has not clearly indicated that state statutes of limitations should apply.
In Zelma, the Appellate Division of the New Jersey Superior Court held that section 1658 provided the limitations period *603 for TCPA actions rather than New Jersey's two-year limitations period. 879 A.2d at 1185-86. It concluded that "Jones requires a narrow reading of the phrase `[e]xcept as otherwise provided by law' included in § 1658 and a similarly narrow reading of language of `exception' included in statutes like the TCPA that were enacted after § 1658." Id. at 1188. The court "hesitate[d] to read general language of exception to infer that Congress intended to create new `voids' in federal law governing limitation periods and reintroduce the difficulties and confusion that § 1658 was designed to eliminate. Absent a clear indication of an alternate limitation period, language of exception in post-1990 federal enactments should not be read as intended to override the limitation period provided in § 1658." Id.
Similarly, in Worsham, the Court of Special Appeals of Maryland held that the four-year period of section 1658 applies to TCPA claims, whereas a shorter, three-year period applies to a parallel claim brought under the Maryland Telephone Consumer Protection Act, "which ... declares it to be a violation of Maryland law for a person to violate the federal TCPA." 981 A.2d at 30-34. There, the court reasoned that the cause of action created by TCPA clearly falls within the scope of section 1658, and that Congress did not clearly indicate that a different statute of limitations should apply. Id. at 32-33. "[I]f Congress, in fact, had intended to exempt actions under the TCPA from the uniform federal statute of limitations, Congress could have chosen language that made such an intent more evident, or better yet, explicit." Id. at 33.
Contrary to the majority's characterization, cases such as Zelma and Worsham did not adopt section 1658 because the analagous state limitations period was unclear, but rather because TCPA does not clearly indicate that a different statute of limitations is "otherwise provided by law." I agree that the Supreme Court's instruction in Jones to interpret section 1658 to apply broadly means that we must interpret possible exceptions to section 1658 narrowly. We should hold there is an exception to section 1658 only if Congress has clearly indicated that a different limitations period controls. TCPA's "if otherwise permitted" clause does not clearly provide a statute of limitations other than section 1658.
IV.
I disagree with the majority to the extent it relies on Bonime v. Avaya, Inc., 547 F.3d 497 (2d Cir.2008), and Holster v. Gatco, Inc., 618 F.3d 214 (2d Cir.2010), for the proposition that Congress left the states to adopt their own limitations period for TCPA claims. Bonime held that a New York law barring TCPA class actions in state court also prohibited TCPA class actions in federal court. 547 F.3d at 501-02. The court reasoned that the Erie doctrine required it to apply New York's law because "TCPA functionally operates as state law." Id. at 501. As a second, independent ground for the decision, the court held that the "if otherwise permitted" clause of section 227(b)(3) unambiguously mandated that "a claim under the TCPA cannot be brought if not permitted by state law." Id. at 502. Because New York law did not permit TCPA claims to be brought as class actions in state court, so too they could not be permitted in the district court. The Supreme Court's decision in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., ___ U.S. ___, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010), abrogated Bonime's first rationale. Holster, 618 F.3d at 216-17. However, the Second Circuit reaffirmed the second rationale, reasoning that the legislative history *604 and Congress's decision not to preempt more restrictive state regulations "say to us that Congress intended to give states a fair measure of control over solving the problems that the TCPA addresses." Id. at 218. According to Holster, "[t]he ability to define when a class cause of action lies and when it does not is part of that control." Id.
Bonime and Holster are distinguishable from this case. The New York law prohibiting TCPA class-actions does not amend or abridge any of the rights enacted by Congress because Congress has not guaranteed TCPA claimants a right to bring actions on behalf of a class. It has, however, provided that private causes of action arising under an Act of Congress enacted after December 1, 1990 (including actions under the TCPA), may be brought within four years after the cause of action accrues unless Congress says otherwise. 28 U.S.C. § 1658. As explained above, the "if otherwise permitted" does not clearly provide for a different limitations period. Therefore, a state statute that purports to "permit" TCPA actions brought within two years, but "not permit" actions brought within four years attempts to modify a right established by Congress.
I am not persuaded by the majority's remaining arguments in favor of applying state statutes of limitations. The majority posits: "Congress placed no restrictions on the state laws or court rules that must be satisfied. Rather, the `as permitted' requirement is unqualified." Op. at [593]. Not so. Section 227(b)(3) does not give the states carte blanche to regulate interstate communications. If a state disagreed with Congress's decision to provide treble damages for willful or knowing violations of the TCPA and passed a law "permitting" TCPA claimants to sue for injunctive relief but "not permitting" them to sue for treble damages, such an act would certainly be preempted. Similarly, unless Congress actually intended to take TCPA actions out from under section 1658, the states have no power to impose a different limitations period.[1]
A more plausible interpretation of the "if otherwise permitted" clause is that Congress left the states to decide how to spend their resources on TCPA enforcement. Some states may open the doors of their courts to private TCPA claimants. Others may leave enforcement to their attorneys general or the Federal Communications Commission. See Int'l Sci. & Tech. Inst., Inc. v. Inacom Commc'ns. Inc., 106 F.3d 1146, 1156 (4th Cir.1997) ("[T]he clause recognizes that states may refuse to exercise the jurisdiction authorized by the statute. Thus, a state could decide to prevent its courts from hearing private actions to enforce the TCPA's substantive rights. To that extent, the existence of a private right of action under the TCPA could vary from state to state"); accord Foxhall, 156 F.3d at 438. For its part, Congress chose to limit the use of federal judicial resources for TCPA enforcement by denying private claimants a federal forum except in cases where diversity jurisdiction exists. See Foxhall, 156 F.3d at *605 437-38; Gottlieb v. Carnival Corp., 436 F.3d 335, 340-41 (2d Cir.2006). Congress's decision to authorize private actions "while mindful of not overburdening state and federal courts and respecting states' judgments about when their courts are overburdened," Foxhall, 156 F.3d at 438, does not imply that Congress granted the states power to alter the scope of the cause of action it created.
I also disagree with the majority's contention that Congress "disclaimed any interest in uniform treatment of TCPA claims among the states." Op. at [596]. In Foxhall, this court recognized that the "existence of a private right of action under the TCPA could vary from state to state," 156 F.3d at 438 (emphasis added), and Holster confirmed that states may adopt their own methods for processing claims, 618 F.3d 214, but that does not mean that Congress intended the scope of a private right of action to vary among those states where the cause of action exists. Indeed, to so hold is in direct tension with the Supremacy Clause. Whether or not it is "curious to assume that Congress intended for ... courts ... to apply a different limitations period to TCPA claims than they apply to parallel state claims," Op. at [596], the fact remains that federal claims created after 1990 are governed by section 1658 unless Congress clearly provides otherwise. Congress's decision that private actions under TCPA are authorized in state courts if permitted by state law does not clearly provide for a different statute of limitations.
I would resolve this case by holding that Giovanniello's claim was barred because even if Connecticut permits private TCPA actions and regardless of which statute of limitations applies, his claim was not timely. Nevertheless, the majority wishes to address the issue whether TCPA provides for state statutes of limitations to govern private TCPA actions. I conclude that the federal four-year limitations period must apply.
Therefore, I concur only in the judgment.
NOTES
[*] The Honorable J. Clifford Wallace of the United States Court of Appeals for the Ninth Circuit, sitting by designation.
[1] The district court's decision not to rule conclusively as to which statute of limitations applied to a TCPA claim that was untimely under both statutes is understandable. This court, however, cannot avoid that issue because the application of either the state or federal statute of limitations raises a question of law unresolved in this circuit. It serves neither the parties nor district courts presented with TCPA filings to resolve the issue applicable to 28 U.S.C. § 1658(a)the reach of American Pipe tollingand to avoid the one pertaining to Conn. Gen.Stat. § 52-570c(d) the construction of the "otherwise permitted" provision of 47 U.S.C. § 227(b)(3)the latter of which shows that the state statute of limitations, in fact, controls this TCPA filing.
This opinion does not further address American Pipe tolling, and we intimate no view with respect to whether tolling under American Pipe extends through the pendency of a motion for reconsideration or on appeal. We acknowledge, however, that every circuit to have addressed the scope of this doctrine has concluded, as the district court did here, that American Pipe tolling ceases upon denial of class certification. See Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 519 (5th Cir.2008); Bridges v. Dep't of Md. State Police, 441 F.3d 197, 211 (4th Cir.2006); Yang v. Odom, 392 F.3d 97, 102 (3d Cir.2004); Culver v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir.2002); Stone Container Corp. v. United States, 229 F.3d 1345, 1355-56 (Fed.Cir.2000); Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1391 (11th Cir.1998) (en banc); Andrews v. Orr, 851 F.2d 146, 149-50 (6th Cir. 1988); Fernandez v. Chardon, 681 F.2d 42, 48 (1st Cir. 1982).
[2] In maintaining that federal rather than state law provided the applicable statute of limitations, Giovanniello calculated the federal four-year limitations period to afford him 1,461 days from the January 28, 2004 fax transmission to file his TCPA complaint. Although acknowledging that his September 8, 2009 complaint was filed 2,051 days after the fax transmission, or 590 days outside the federal statute of limitations, Giovanniello asserted that this delinquency would be eliminated if the statute were tolled during the pendency of his two Connecticut putative class actions and the Southern District action. Specifically, if tolling continued through the August 6, 2007 dismissal of the Southern District action, the complaint would be untimely by 30 days, but if tolling were extended through either the motion for reconsideration or appeal of that decision, as Giovanniello urged, the complaint would be timely.
[3] As we recognized in Holster, the Supreme Court's opinion in Shady Grove abrogated our decision in Bonime only to the extent that it relied on the doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), to hold that, in a federal diversity action, N.Y. C.P.L.R. § 901(b) required the dismissal of a putative class action under the TCPA. See Holster v. Gatco, Inc., 618 F.3d at 216-17. Nothing in Shady Grove disturbed Bonime's alternative ground for decision, which construed the plain language of the TCPA's "otherwise permitted" provision to require federal courts to respect the prohibition of § 901(b). This distinction was drawn by Judge Calabresi in his concurring opinion in Bonime, which did not join the majority in relying on Erie because a TCPA action is created by federal, not state, law, but which nevertheless supported dismissal based on a construction of the limitation Congress placed on TCPA actions through the plain language of the "otherwise permitted" provision. See Bonime v. Avaya, 547 F.3d at 503 (Calabresi, J., concurring) (observing that "state law that bars suit in state court, like [N.Y.] C.P.L.R. [§] 901(b), thus effectively eliminates the cause of action created under the TCPA"). Indeed, Judge Calabresi clarified the continued vitality of this ground for the Bonime decision in writing for the court in Holster. See Holster v. Gatco, Inc., 618 F.3d at 217-18.
[4] Judge Wallace posits that permitting states to impose statutes of limitations on TCPA actions allows states to "modify a right established by Congress" in "direct tension with the Supremacy Clause." Wallace, J., Op., post at [604, 605]. This concern is misplaced because we construe the "otherwise permitted" provision as a congressional delegation of authority to the states to define the TCPA action permitted in their respective jurisdictions. In any event, it would be odd to conclude, as Judge Wallace's argument suggests, that the TCPA permits states, without contravening the Supremacy Clause, completely to deny a plaintiff his federal "substantive rights" under the TCPA by prohibiting such claims from being brought in state courts altogether, but not to specify a reasonable time frame within which such actions must be filed. Further, the analogy that Judge Wallace draws between a statute of limitations and a state law prohibiting treble damages under the TCPA is inapt. See id. at [604-05]. Whether a state law that restricts the remedies available in a viable TCPA action would be preemptedan issue not before us on appealis a fundamentally different question from whether such an action is "otherwise permitted" by state law in the first place. We express no opinion as to whether a state could adopt such restrictions without running afoul of the Supremacy Clause.
[5] Judge Wallace's preferred resolution of this appeal based on American Pipe tolling would similarly require us to assume that TCPA actions are "otherwise permitted" under Connecticut state law.
[6] That Connecticut's tolling rules would apply is a necessary corollary to our conclusion that the TCPA claim is subject to § 52-570c(d)'s two-year statute of limitations. See generally Board of Regents v. Tomanio, 446 U.S. 478, 485-86, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980) (restating "general principle" that borrowing of state statute of limitations "logically include[s] rules of tolling"); accord Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002); cf. Casey v. Merck & Co., 653 F.3d 95, 100-01 (2d Cir.2011) (holding that federal court evaluating timeliness of state law claims must look to relevant state law to determine whether, and to what extent, statute of limitations is tolled by filing of putative class action in another jurisdiction). While Connecticut has adopted American Pipe's class action tolling doctrine, see Grimes v. Hous. Auth., 242 Conn. 236, 244, 698 A.2d 302, 307 (1997), the Connecticut Supreme Court has not addressed whether such tolling extends through the pendency of an appeal of the denial of class certification. Because Giovanniello's claim would be time-barred under Connecticut law even if Connecticut were to extend class action tolling as far as he urges, however, we need not explore the contours of American Pipe tolling as adopted under Connecticut law.
[7] In Benedia, the district court concluded that "[a]bsent an express statute of limitations, or a clear direction to consult state law, § 1658 controls." 2007 WL 2903175, at *2. The court did not construe the TCPA's "otherwise permitted" provision to be a "direction to consult state law" because the Seventh Circuit, unlike this court, recognizes federal question jurisdiction for TCPA actions and does not look to state law to determine which causes of action lie under that statute. See id. (citing Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 451 (7th Cir.2005)); see generally Bonime v. Avaya, Inc., 547 F.3d at 503-04 (Calabresi, J., concurring) (discussing differences between Second and Seventh Circuits' interpretation of 47 U.S.C. § 227(b)(3)). To the extent the Seventh Circuit's different interpretations of § 227(b)(3) may be presumed to have informed its terse conclusion in Sawyer v. Atlas Heating & Sheet Metal Works, Inc., 642 F.3d 560 (7th Cir.2011), that § 1658(a) supplies the statute of limitations for all TCPA claims, see id. at 561, we cannot depart from our own contrary circuit precedent.
[8] Judge Wallace accuses us of "brush[ing] aside" state court cases applying § 1658(a) to TCPA claims by ignoring their underlying rationale, i.e., that Congress has not clearly indicated that state statutes of limitations should apply to TCPA claims. Wallace, J., Op., post at [602]. Not so. In Zelma v. Konikow, 379 N.J.Super. 480, 879 A.2d 1185, a New Jersey court held only that "absent adoption of a specific, shorter period of limitations expressly applicable to TCPA claims, the four-year limitation period provided in [§ 1658(a)] applies to a TCPA action in the courts of this State." Id. at 488, 879 A.2d at 1190 (emphasis added). New Jersey, unlike Connecticut, had not adopted a specific shorter statute of limitations for unsolicited commercial fax claims. See id. at 487 & n. 4, 879 A.2d at 1189 & n. 4. As for Worsham v. Fairfield Resorts, Inc., 188 Md.App. 42, 981 A.2d 24 (Md.Ct.Spec.App.2009), Maryland's intermediate appellate court concluded that § 1658(a) applied to TCPA claims based on the Maryland Court of Appeal's binding interpretation of the TCPA's "otherwise permitted" provision as (1) pertaining exclusively to a state's choice of venue for TCPA actions, and (2) not permitting individual states to decide whether to allow TCPA actions in their courts. See id. at 50, 981 A.2d at 29 (citing R.A. Ponte Architects, Ltd. v. Investors' Alert, 382 Md. 689, 711-12, 857 A.2d 1 (2004)). Thus, to the extent Worsham relied on a narrower interpretation of the TCPA's "otherwise permitted" language, its reasoning is unpersuasive and, in any event, contrary to our own binding circuit precedent.
Further, a number of other state courts have applied state statutes of limitations to TCPA claims even where such statutes, unlike Conn. Gen.Stat. § 52-570c(d), do not specifically pertain to unauthorized commercial fax transmission claims. See, e.g., Edwards v. Emperor's Garden Rest., 122 Nev. 317, 327-28, 130 P.3d 1280, 1286-87 (2006) (applying Nevada's two-year statute of limitations for actions based on "a statute for a penalty or forfeiture" to TCPA action (internal quotation marks omitted)); Weitzner v. Vaccess Am. Inc., 5 Pa. D. & C. 5th 95, 123-27 (Pa.Ct. Com.Pl.2008) (applying Pennsylvania's two-year statute of limitations for invasion of privacy to TCPA action); David L. Smith & Assocs., LLP v. Advanced Placement Team, Inc., 169 S.W.3d 816, 822-23 (Tex.Ct.App.2005) (applying Texas's two-year statute of limitations for trespass to TCPA action).
[9] In Maryland, where state law simply prohibits violations of the federal TCPA, see Maryland Telephone Consumer Protection Act ("MTCPA"), Md.Code, Com. Law § 14-3201 to -3202, state courts have determined that claims brought under the TCPA are subject to the federal catch-all four-year statute of limitations provided by 28 U.S.C. § 1658(a), see Worsham v. Fairfield Resorts, Inc., 981 A.2d 24, 30, 188 Md.App. 42, 51 (Md.Ct. Spec.App.2009), while claims brought under the MTCPA are subject to Maryland's default three-year statute of limitations provided by Md.Code, Cts. & Jud. Proc. § 5-101, see AGV Sports Grp., Inc. v. Protus IP Solutions, Inc., 10 A.3d 745, 752-53, 417 Md. 386, 399 (2010) (holding that MTCPA does not fall within exception to default statute of limitations for statutory specialties). We need not consider whether particular features of Maryland state law support the application of distinct statutes of limitations for the same alleged TCPA violation depending on whether the claim is pleaded under federal or state law. Our task is to construe federal law and, for the reasons stated, we read the "otherwise permitted" provision of 47 U.S.C. § 227(b)(3) to include Conn. Gen.Stat. § 52-570c(d), which specifically does not permit actions based on unauthorized commercial faxes filed more than two years after transmission.
[1] The majority, at note 4 of its opinion, misunderstands my concern. Congress certainly could permit states to impose statutes of limitations on TCPA actions. If, as the majority argues, Congress did provide for state limitations periods to control private TCPA actions, then obviously such statutes would not be preempted. My point is that Congress provided its own statute of limitations (28 U.S.C. § 1658), and it did not "otherwise provide[] by law" for another limitations period to apply. Thus, any attempt by a state to impose its own statute of limitations on TCPA actions is not permitted. I do not believe this argument is odd. The Congress-enacted limitations period for private TCPA actions is just as much a part of TCPA as are its remedies.
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The State of TexasAppellee
Fourth Court of Appeals
San Antonio, Texas
June 24, 2015
No. 04-15-00207-CR and 04-15-00208-CR
Jessica G. CASTILLO,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 4, Bexar County, Texas
Trial Court No. 458109 and 458110
Jason Garrahan, Judge Presiding
ORDER
In these companion cases, Appellant’s briefs were due to be filed on June 17, 2015. See
TEX. R. APP. P. 38.6(a). On the due date, Appellant filed first motions for extensions of time to
file the briefs and requested extensions of forty-five days.
Appellant’s motions are GRANTED IN PART. Appellant’s briefs are due to be filed in
this court on July 17, 2015.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 24th day of June, 2015.
___________________________________
Keith E. Hottle
Clerk of Court
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2011 Decided December 20, 2011
No. 11-5077
GUNDERSEN LUTHERAN MEDICAL CENTER, INC.,
APPELLANT
v.
KATHLEEN SEBELIUS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-02195)
Jeffrey A. Lovitky argued the cause and filed the briefs for
appellant.
Ian Samuel, Attorney, U.S. Department of Justice, argued
the cause for appellee. With him on the brief were Tony West,
Assistant Attorney General, Ronald C. Machen, Jr., U.S.
Attorney, and Michael S. Raab, Attorney. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.
Before: KAVANAUGH, Circuit Judge, and SILBERMAN and
GINSBURG, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
2
SILBERMAN, Senior Circuit Judge: Gundersen Lutheran
Medical Center, Inc. appeals the district court’s grant of
summary judgment to the Secretary of the Department of Health
and Human Services. Gundersen, which sought review under
the APA, claimed the Secretary’s delegee failed to
“disapprove[]” Gundersen’s reimbursement request within 60
working days, as required by the Medicare Act, because the
delegee did not notify Gundersen of its asserted disapproval
within the 60-day time period. We conclude that notification of
Gundersen within 60 days was not necessary for the disapproval
to be effective, and therefore affirm the district court.
* * *
Under the Medicare Act, the Secretary, acting through the
Department’s Centers for Medicare and Medicaid Services,
reimburses health care providers like Gundersen who provide
dialysis treatments to individuals with end stage renal disease.
The Act sets a “composite rate” for reimbursements for each
dialysis treatment a provider furnishes, but a provider can seek
an exception by submitting an application to one of the
Department’s fiscal intermediaries (insurance companies) who
then must pass on the application to the Department (the
Centers). The Act states – and this is the disputed language –
that “[e]ach application for such an exception shall be deemed
to be approved unless the Secretary disapproves it by not later
than 60 working days after the date the application is filed.” 42
U.S.C. § 1395rr(b)(7).
Gundersen sought such an exception on July 2, 2001,
making the 60th working day September 25, 2001. The Centers,
on September 21, 2001, informed the fiscal intermediary in
writing that the exception was denied. But the fiscal
intermediary did not notify Gundersen of the Secretary’s (the
3
Centers’s) disapproval until October 1, i.e. after the 60th
working day.
Gundersen argues that the Secretary’s decision to
“disapprove[]” an application is not effective until it is
communicated to the provider. It is claimed that communication
to the fiscal intermediary – an agent of the Secretary – is not
adequate because the Secretary’s decision (the Centers’s) could
be altered at any time. Moreover, since by regulation the
provider has only 180 days to appeal the Centers’s decision up
through the Department, if a disapproval decision was not
communicated to the provider, its appeal rights could be
jeopardized. Gundersen buttresses its Medicare statutory
argument by recourse to the Freedom of Information Act,
pointing out that 5 U.S.C. § 552(a)(2) prohibits an agency from
relying on or using final administrative orders unless they have
been “made available,” published in an agency’s reading room,
or a party has actual and timely notice of its terms. According
to Gundersen, because the agency did not publish the letter in its
reading room and Gundersen only received notice of the
Secretary’s denial after the 60-day period ended, the Centers
could not rely on it before then to make the disapproval
effective.
The government responds – which is true – that the disputed
statutory language, unlike other provisions of the Medicare Act,
does not call for notice of the Secretary’s disapproval decision
within a specific time period. The government argues that even
if the word “disapproves” was thought ambiguous, the
government is entitled to Chevron deference, and the
government’s interpretation that the Secretary “disapproves” an
application when the decision is “rendered” is permissible. Yet
the government never suggested just how a disapproval is to be
manifested in order to qualify as “rendered” – and the
4
government’s brief implied that a decision of disapproval could
be in the mind of the decision maker.
We agree with Gundersen’s premise that “disapproves” is
a meaningless concept unless disapproval is communicated in
some fashion. At oral argument, the government essentially
conceded that point by acknowledging that there would have to
be some evidence that a disapproval decision was rendered in an
official way, at a certain time. We take it that implies something
in writing. After all, the statute imposes an obligation on the
Secretary to disapprove a request within the 60-day period; the
default position, if the government does not act, is approval.
Because silence is therefore approval, the Secretary (the
Centers) must demonstrate the contrary. Although the statute
does not address the question of how a disapproval is to be
manifested, and so Chevron deference is called for, it seems to
us that it would be an unreasonable interpretation for the
government to claim that an oral statement uttered only within
the Centers is an adequate demonstration.
Be that as it may, in this case, the Centers communicated
the disapproval to the fiscal intermediary – in writing – within
the 60-day period. As such, the decision to disapprove was
clearly memorialized. As to Gundersen’s argument that FOIA
requires actual notice to the appellant, the government points out
that FOIA can be satisfied alternatively by making an order
“available.” By sending a denial letter to the fiscal intermediary,
the Centers have certainly made it available to Gundersen. All
Gundersen needed do was to call the fiscal intermediary – or
even the Centers – to determine whether the Centers
disapproved within 60 working days.
Gundersen nevertheless argues that a decision
communicated only to an agent of the Department – the fiscal
intermediary – cannot be thought a reasonable interpretation of
5
the word “disapproves” because the decision could be altered
before it was communicated to an applicant. That argument –
when one thinks about it – is rather twisted. The only way the
decision could be altered would be to revoke the disapproval,
and that could only be to the benefit of an applicant. Which
means, of course, no applicant would have standing to complain
about such an action.
Gundersen’s more substantial argument is based on a
provider’s appeal rights. By regulation, an applicant must
appeal the Centers’s decision “within 180 days of the date of the
decision.”1 If the Centers’s purported disapproval was not
communicated to an applicant in a timely manner, Gundersen
argues, an applicant’s appeal rights could be jeopardized. That
strikes us as only a theoretical problem because, as in this case,
once the disapproval is communicated to the fiscal intermediary
within the 60-day period, it is available to the applicant. But if,
for some hypothetical reason, the Centers’s decision was not
available to the applicant in a timely manner, the relevant
question would be how to interpret the appeal regulation – not
the statute. Presumably it would be unreasonable (arbitrary and
capricious) to apply the regulation to an applicant who failed to
appeal in a timely manner through no fault of its own.
For the foregoing reasons we affirm the district court.
So ordered.
1
42 C.F.R. § 413.194(c) (2001).
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103 F.2d 520 (1939)
DIRKES et al.
v.
EITZEN.
Patent Appeal No. 4054.
Court of Customs and Patent Appeals.
May 3, 1939.
*521 Eugene C. Brown, of Washington, D. C. (M. J. Reynolds and N. F. Presson, both of New York City, of counsel), for appellants.
Gustav Drews, of New York City (Hans v. Briesen, of New York City, of counsel), for appellee.
Before GARRETT, Presiding Judge, and BLAND, HATFIELD, LENROOT, and JACKSON, Associate Judges.
JACKSON, Associate Judge.
This is an appeal from a decision of the Board of Appeals of the United States Patent Office affirming a decision of the Examiner of Interferences awarding priority of invention of the subject matter in issue to appellee Eitzen.
The interference No. 71,872 is between a patent of appellants, No. 1,968,818, dated August 7, 1934, upon an application Serial No. 554,574, filed August 1, 1931, and a reissue application of appellee, Serial No. 745,600, filed September 26, 1934, of patent No. 1,822,769, dated September 8, 1931, upon application Serial No. 357,448, filed April 23, 1929.
Appellants are the junior party. The three counts originated as claims 1, 3 and 5 in the patent of appellants. The interference was declared December 6, 1935.
On January 7, 1935, an interference No. 69,776 was declared between the said patent of appellants and an application of appellee, Serial No. 338,065, filed February 7, 1929, in which interference the single count was claim 2 of the said patent.
There was another interference, No. 69,956, also declared on January 7, 1935, involving the same patent of appellants and an application of one James W. Decker, Serial No. 253,306, filed February 10, 1928, in which interference the single count was claim 9 of the patent. The applications of Eitzen and Decker, in the said former interferences, *522 and the application of appellee, Eitzen, in the present interference, are owned or controlled by the same parties in interest.
In both former interferences the preliminary statement of appellants alleged a date of conception subsequent to the filing dates of both Eitzen and Decker and the Examiner of Interferences on February 12, 1935, issued an order to show cause why judgment on the record should not be entered against Dirkes and Roberts. On March 14, 1935, the last day of the motion period, Dirkes and Roberts filed a motion to dissolve in each of the said former interferences on the ground that Eitzen and Decker respectively had no right to make the counts in issue.
On May 22, 1935, and May 24, 1935, respectively, the Primary Examiners of Examining Divisions 7 and 16 granted the motions. Upon appeal, the Board of Appeals reversed the decisions of the Primary Examiners on April 8, 1936, and the Examiner of Interferences entered judgment against Dirkes and Roberts on April 13 and 14, 1936, respectively, in both interferences. On May 2, 1936, appeals were taken to the Board of Appeals which, on November 27, 1936, affirmed the decisions of the Examiner of Interferences and awarded priority to Eitzen and Decker respectively.
Dirkes and Roberts then appealed to this court, the record of the said two interferences being consolidated into a single record. The decisions of the Board of Appeals, holding that Eitzen and Decker, respectively, were entitled to make the counts in issue were affirmed by this Court. Dirkes et al. v. Eitzen and Dirkes et al. v. Decker, 96 F.2d 849, 25 C.C.P.A., Patents, 1176.
From what has heretofore been said, it will be observed that the present interference, declared December 6, 1935, was co-pending in the Patent Office with the two prior interferences until September 16, 1937, the date upon which it was noticed for appeal to this court.
In the instant case, the appellee, desiring an interference, filed his reissue application on September 26, 1934, including therein claims 1, 3 and 5 of the said patent of appellants. The claims forming the counts of the interference were finally rejected in an ex parte proceeding by the examiner November 3, 1934. On December 3, 1934, appellee appealed to the Board of Appeals. The examiner's statement was filed December 13, 1934, and on November 5, 1935, the board reversed the decision of the examiner and held that appellee had the right to make the three claims which he had copied from appellant's patent. Whereupon the present interference was declared.
Appellants, the junior party, did not allege a date of conception in their preliminary statement prior to the filing date of the original application of appellee and the usual order to show cause why priority should not be awarded to appellee was issued against them by the Examiner of Interferences. Thereupon, appellants moved to dissolve the interference on several grounds, one ground being that appellee was estopped to make the claims by reason of his failure to proceed in one of the said prior interferences between the same parties and relating to common patentable subject matter, in accordance with the provisions of Rule 109 of the Patent Office. In view of our conclusion it is not necessary to set out the other grounds upon which the motion was based. Neither is it necessary to set out the counts of the interference.
The motion to dissolve was denied and upon appeal the Board of Appeals reversed the decision of the Primary Examiner on the ground of estoppel under Rule 109, holding as follows: "On the matter of estoppel, it is considered that although Eitzen was prior to Dirkes et al. in his original disclosure of the invention involved, he failed to make a timely motion to incorporate these counts into an interference between the parties during the motion period of the prior interferences in which these parties were involved and that Eitzen is now estopped to contest the right to these counts with the party Dirkes et al."
Upon a petition for rehearing on the ground that appellants had been placed under an order to show cause and that in such a case estoppel could not apply the Board of Appeals reversed its former decision and held that estoppel did not lie for the said reason set forth in the petition and awarded priority of invention to appellee. The board then denied the petition of appellants for a rehearing and from its decision awarding priority to appellee this appeal was taken.
Since we are of opinion under the circumstances heretofore set out that appellee is estopped because of his failure to move *523 under the provisions of Rule 109, it is not necessary to discuss any other issue of this appeal.
The present reissue application of appellee having been filed September 26, 1934, was a pending application during the entire motion period of both the said former interferences, the said period expiring on March 14, 1935. Interference No. 69,776 was between the same parties as is the present proceeding and while interference No. 69,956 was between these appellants and one Decker, the Decker application was owned by the same interests as the Eitzen application.
There can be no question but that the application here and those involved in one or the other prior interferences could have been merged in a single interference proceeding. Since the three applications each took claims from the same patent of appellants there can be no doubt but that the common assignee must have known that after the prior interferences were declared the herein involved application was then pending and deemed that it pertained to common subject matter between the same parties, directly in interference No. 69,776 and indirectly by reason of common ownership in interference No. 69,956.
It is clear to us that under the decisions of this court it was the duty of the common assignee to have amended its application in either of the said former interferences by adding the claims of its instant application in order to avoid the evil of unnecessary litigation that Rule 109 is intended to stop.
The law on this subject was set out by this court in the case of In re Austin, 40 F.2d 756, 759, 17 C.C.P.A., Patents, 1202, 1209, as follows: "* * * it has long been the practice in the Patent Office to require a common assignee, if it desires to raise the issue of priority, to bring into an interference, to which it is a party, all of its applications, patents, and claims which it deems should be made the basis of interference between it and the other parties thereto. Ex parte Temple and Goodrum, decided November 11, 1911, 176 O.G. 526, 1912 C.D. 70; Frickey v. Ogden, 1914 C.D. 19, Vol. 199, O.G. 307. Furthermore, if a party to an interference fails to comply with the rules of the Patent Office relative to the presentation of such claims, it is thereafter estopped from presenting them as a basis for another interference between the same parties. Ex parte Temple and Goodrum, supra; Frickey v. Ogden, supra; The New Departure Manufacturing Co. v. Robinson, 39 App.D.C. 504; In re Capen, 43 App.D.C. 342; In re Wasserfallen, 54 App.D.C. 367, 298 F. 826, 828; Application of Doble, 57 App.D.C. 10, 16 F.2d 350."
When the Board of Appeals made its decision herein it was without the benefit of our decision in Avery v. Chase, 101 F.2d 205, 26 C.C.P.A., Patents, ___. In that case we held that when a party to an interference proceeding fails during the motion period to bring forth claims which should have been determined in the interference he has forfeited his right to claim the subject matter involved, irrespective of the question of priority.
In view of the lengthy and detailed analysis of the pertinent authorities set out in Avery v. Chase, supra, we do not deem it necessary to extend this opinion by a further discussion of estoppel.
We are of opinion that as far as observance of Rule 109 is concerned, in view of our holding in Avery v. Chase, supra, it is immaterial that the junior party was under an order to show cause. The order to show cause is fundamentally a procedural rule and merely requires the junior party to show cause why, upon the record, priority should not be awarded to the senior party. This does not give appellee the right to ignore Rule 109. The case of Ex parte Johnson, 20 Patent Quarterly 284, relied upon by the board in its second decision, is not controlling in the instant case. Indeed we are unable to find in the Johnson case, supra, or any other case, a reason why an order to show cause changes the status of the parties under Rule 109. Neither has any sound reason for such change occurred to us. The object of Rule 109 is to prevent unnecessary and vexatious litigation. The fact that a party is under an order to show cause presents no obstacles to the application of the said rule.
We are not impressed with the contention of appellee to the effect once a finally rejected application has been appealed to the board under Rule 63(d), a subsequent motion under Rule 109 in connection with another interference is prohibited under Rule 95.
There is nothing in the rules of the Patent Office or the statutes which precludes *524 a party, while in a proceeding under Rule 63(d), from protecting his rights by conforming to the provisions of Rule 109 after an interference has been declared between the parties. It is the purpose of Rule 109 to expedite procedure in interferences and it is the practice of the Patent Office to require the parties to bring in all inter partes controversies in a single proceeding.
It is quite true that on December 3, 1934, when the ex parte appeal of appellee was taken it was the only remedy available to him to protect his rights. No interference had been declared at that time between the parties. However, when the interferences of January 1935 were declared as aforesaid, appellee was certainly of opinion that his claims on ex parte appeal contained common patentable subject matter with the patent of appellants. Otherwise he would not have taken the appeal. Since he was of such opinion it was his duty under the decisions of this court and the practice of the Patent Office to have moved to amend during the motion period which expired March 14, 1935, in accordance with Rule 109. This would not have placed him at a disadvantage for the reason that should his motion to add the claims have been again denied by the examiner he could have taken an appeal in the inter partes proceeding to the Board of Appeals. As we understand the practice, the board would then have deferred action on the ex parte appeal already taken and decide the issues in the inter partes appeal, thereby carrying out the clear intent of Rule 109 of expediting litigation and settling all of the issues between the parties in a single proceeding.
If the appellee elects to ignore the possible effect of estoppel in not observing Rule 109 he must be prepared to abide the result. A motion under Rule 109 is not a declaration of interference. It is a proceeding which determines whether or not there is common patentable subject matter and whether or not the counts proposed should be incorporated in an interference between the parties.
If the contention of appellee were to be affirmed, matters, which could have been considered inter partes might go on as ex parte proceedings with ensuing appeals which involve, as happened here, subsequent, unnecessary inter partes proceedings and place an undue burden on the other party, the Patent Office and the courts.
For the reasons set forth herein we are convinced that the board should have awarded priority to the junior parties Dirkes and Roberts.
The decision of the Board of Appeals is accordingly reversed.
Reversed.
BLAND, Associate Judge (dissenting).
I must respectfully dissent from the decision of the majority reversing the decision of the Board of Appeals and holding that Eitzen was estopped to make the claims because of the fact that he did not present them under rule 109 in one of two former interferences.
It is not my purpose to here discuss at any great length my chief reasons for believing that the majority opinion is unsound since those views are in great detail stated in the dissenting opinion of Presiding Judge Garrett and myself in Avery v. Chase, 101 F.2d 205, 26 C.C.P.A., Patents, ___. We took the position there, and I take the position here, that the application of the doctrine of estoppel in Avery v. Chase, supra, was wholly unwarranted and was the extension of an unpopular doctrine which this court has strongly intimated (Jenks v. Knight, 90 F.2d 654, 24 C.C.P.A., Patents, 1227,) it was not in favor of extending.
It was pointed out in our dissenting opinion in the Avery v. Chase case that rule 109, when adopted, was a permissive rule and when the doctrine was first applied in connection with failure to bring forward a claim under the rule it was based upon the ground of res judicata that is, what had actually been adjudicated. Later, the doctrine was modified and extended to include a so-called equitable estoppel, which had for its basis estoppel in pais. In that respect the doctrine was similar to that applied in Mason v. Hepburn, 13 App.D.C. 86. At later dates it was held that not only did estoppel apply where the matter had been adjudicated as it was in Blackford v. Wilder, 28 App.D.C. 535 (the first case on the question), but that it applied to all subject matter that could have been adjudicated in an interference. Subsequently, it was extended to a holding that it would apply when the issue could not have been adjudicated in a particular interference if the claims were not brought forward so as to bring about the declaration of another interference in which the issue could have been adjudicated.
*525 But no case goes as far as the majority has gone in this case where during the motion period of the prior interferences the subject matter of the disputed counts had been held unpatentable to the party against whom the estoppel is sought. The majority opinion states: "It is clear to us that under the decisions of this court it was the duty of the common assignee to have amended its application in either of the said former interferences by adding the claims of its instant application in order to avoid the evil of unnecessary litigation that Rule 109 is intended to stop."
The last opinion of the board indicates that it was of the view that the instant issue could not have been tried in either of the prior interferences and that the declaration of another interference such as the instant one would have been necessary. The appellee argues that the instant issue could not have been tried without the declaration of an additional interference.
No reason has been called to my attention why, if the claims corresponding to the instant counts, had been allowed they could not have been presented and the issue adjudicated in the prior interference in which appellants and appellee were the sole parties. But, it is clear that in the prior interference in which Decker was a party, even though there was a common assignee for the Decker and Eitzen applications, the instant issue could not have been tried and a separate interference would have been declared. This, I think, is the well-settled practice in the Patent Office. In any event, if the claims had stood allowed and had been brought forward under rule 109 in either interference, additional preliminary statements would have been required since the subject matter of the claims being contested in the prior interference forms no part of the present issue.
While in In re Chase, 71 F.2d 178, 21 C. C.P.A., Patents, 1183; In re Long, 83 F.2d 458, 23 C.C.P.A., Patents, 1078; Jenks v. Knight, supra, and International Cellucotton Products Co. v. Coe, 66 App.D.C. 248, 85 F. 2d 869, by reason of special circumstances, not necessary to discuss here, the doctrine of estoppel was not applied, in several other cases of this court, such as In re Austin, 40 F.2d 756, 17 C.C.P.A., Patents, 1202, and In re Shimer, 69 F.2d 556, 21 C.C.P.A., Patents, 979, the doctrine was greatly extended and the language in some of these decisions indicates to me that it was extended much further than was proper.
Obviously, if there is any right to apply a doctrine of estoppel for failure to come forward under rule 109 it is based upon the theory, or should be at least, that a party to an interference ought not to be permitted to conceal inventions of which his opponent is not apprised and avoid an interference at a time when he should seek to show his priority and then later be allowed the claims, the invention of which, under ordinary circumstances was first made by another.
As I shall hereinafter point out, based upon facts, some of which are not cited or discussed by the majority, Eitzen, on this record, has never stood in the position of concealing anything or attempting to avoid an interference for the purpose of avoiding the trial of an issue which he might lose.
To my mind, the facts in this case recited by the majority suggest, too plainly to call for extended argument, that no kind of estoppel known to the law can properly be imposed against Eitzen. It seems unusually clear that to impose the doctrine under the circumstances of this case is a radical, unwise and unsound extension of a doctrine which needs restriction rather than extension. As I pointed out in Avery v. Chase, supra [101 F.2d 216], in order to get away from the mischief that the extension of the estoppel doctrine was bringing about results "not consistent with the doctrines of equity upon which it rests" the Patent Office at the solicitation of the Secretary of Commerce has adopted rule 116. In the case at bar the Board of Appeals has refused to extend the doctrine by saying in substance what might have been put in a rule similar to rule 116. Its reason for not applying estoppel in this case was based upon the fact that the alleged conception date of Dirkes et al. was subsequent to the filing date of the Eitzen application and that Eitzen should not be estopped for not bringing forward claims when Dirkes et al. stood under order to show cause.
I took the position in Avery v. Chase, supra, that the Patent Office had no right to say by rule when estoppel applies and when it does not apply. If the party stood estopped in law, the Patent Office by rule might give notice that it would not apply it under certain circumstances but that if it existed at all its effect could not be avoided by the mere promulgation of a rule. It seems to me that, if restriction rather than extension of the rule is desired, there is *526 about as much logic in declining to apply the doctrine of estoppel to a senior party when the junior party stands under order to show cause as there is under the circumstances outlined in rule 116. The courts announced, before the adoption of rule 116, that it did apply under the circumstances recited in the rule. See In re Alexanderson, 69 F.2d 541, 21 C.C.P.A., Patents, 983.
It must be conceded that by further extending certain court decisions, as was done in Avery v. Chase, supra, a case of estoppel may be spelled out against a senior party even though by virtue of the record dates the junior party is under order to show cause, but it is obvious to me why the Patent Office has taken the course it has in the instant proceeding, and in Ex parte Johnson, 20 Patent Quarterly 284. The patent profession, the Secretary of Commerce, and obviously the Patent Office itself became alarmed at the results of the gradual extension of the doctrine which, in so many instances, was depriving the first inventor of his legal rights upon insufficient grounds.
Regardless of all that may be said in favor of the refusal of the Patent Office to apply the doctrine as against a senior party when the junior party stood under order to show cause, I think it is sufficient for my purposes here to point out that no case in the Patent Office or the courts has ever definitely held to the contrary. This, to my mind, warrants the conclusion that the holding of the majority goes beyond any decided case, and therefore is an extension of this most unpopular doctrine.
My chief reason for believing that it is erroneous to apply the doctrine to Eitzen is because under rule 95 and rule 93, common patentable subject matter must be found to be claimed in the applications involved before any interference may be declared. One is required to bring forward claims for the purpose of getting into an interference. But, where the rules provide that there shall be no interference until common patentable subject matter is found to exist, and it is definitely held by the Primary Examiner that there is no such common allowable subject matter, how can it logically be held that it is the duty of such an applicant to bring forward his disallowed claims. Eitzen upon seeing the Dirkes et al. patent immediately claimed the subject matter. He did not try to avoid an interference. He sought an interference when he copied the claims at a time when there was no other interference he could get into. He told the Patent Office he was copying them for the purpose of interference and requested such an interference before the other interferences were declared. The Patent Office considered the claims with the right to an interference in view, and when he had won the claims the Patent Office, as it had the discretionary authority to do, declared the interference. When he copied the claims he pointed out that it was the duty of the Patent Office to have previously declared an interference between Dirkes et al. and the claims of his allowed patent which covered the Dirkes et al. application.
In view of the attitude of the Patent Office and of the particular circumstances of this case, it seems clear to me that it is inequitable to bar Eitzen because he did not bring forward claims when no trial of the issue of priority could have resulted. Under the circumstances did not he properly rely upon the clearly justifiable belief that if he won his ex parte proceeding he would be entitled to win priority in an interference to be declared. The Patent Office kept faith with him. When the claims were allowed they declared the interference as they should have done and were expected to do. Is it to be held now that the Patent Office exceeded its authority and that the first inventor in fact (and I think in law) is to be penalized for not doing a futile, and unnecessary thing in bringing forward claims when an interference trial as to priority could not have resulted?
The majority admits that Eitzen, when he appealed ex parte did the only thing he could do to protect his rights. He availed himself of a right granted by statute. It is suggested that it is the practice of the Patent Office, when interference proceedings are instituted involving claims on ex parte appeal, to suspend the ex parte appeal until final decision in the interference proceedings. Whether there is warrant in law for depriving a party of his right to an ex parte appeal in this manner I need not discuss here, but I feel certain that those winning their appeals under such circumstances should not be deprived of the fruits of their victory in the manner suggested by the majority.
Concededly, Eitzen and the Patent Office both proceeded upon the theory, as happens in numerous like proceedings, that if the party appealing won his ex parte appeal, he would have the opportunity of trying out priority in an interference to be declared. The Patent Office knew his allowed *527 patent claimed broadly the subject matter of these counts. It knew the two other interferences were proceeding when his ex parte appeal was decided. It did not apply the doctrine of estoppel then as the majority holds in effect it should have done.
As to the effect of Eitzen's ex parte appeal, I think it is well to remember what was said by the Supreme Court in Chapman et al. v. Wintroath, 252 U.S. 126, 137, 40 S.Ct. 234, 236, 64 L.Ed. 491, quoting from the earlier-decided case of United States v. American Bell Telephone Co., 167 U.S. 224, 247, 17 S.Ct. 809, 42 L.Ed. 144: "A party seeking a right under the patent statutes may avail himself of all their provisions, and the courts may not deny him the benefit of a single one. These are questions not of natural but of purely statutory right. Congress, instead of fixing seventeen, had the power to fix 30 years as the life of a patent. No court can disregard any statutory provisions in respect to these matters on the ground that in its judgment they are unwise or prejudicial to the interests of the public."
Unquestionably, upon the instant record Eitzen is the first inventor of the subject matter of the pending counts. Has he done anything in law to warrant its being taken away from him by judicial fiat? Is the doctrine of estoppel to be extended in cases like this where the tribunals divide upon the question of the right to apply it and where the question is so doubtful that the Board of Appeals reverses itself upon reconsideration? What kind of diligence and foresight must a party litigant have in order to keep up with the swift and dangerous development of this unpopular doctrine? In Avery v. Chase, supra, it was sufficiently far-fetched to apply the doctrine against a party who clearly came forward and showed he was the first inventor in a separate interference set up by the Patent Office tribunals for the very purpose of determining priority between him and his adversary, but in the instant case the majority is going even further than in that case and holding that it is his duty to bring forward claims in interferences which were declared after he had been told by the Primary Examiner that he could not possibly have them, notwithstanding the fact that during the motion period he was vigorously contesting in an ex parte appeal his right to have the claims for the purpose of an interference. This, to my way of thinking, is running wild with the doctrine of estoppel.
Some of the decisions, like In re Shimer, supra, stress the point that the doctrine is a wholesome one because it prevents the multiplicity of proceedings and appeals. Eitzen had taken one appeal when he had the right to take it before any interference had been declared. If he had presented the claims at the time the majority stated, of course no interference would have been declared on these claims and since he had already been to the expense of preparing a record for appeal in the ex parte case, it is not seen how the undue multiplicity of litigation argument applies in the instant case. Moreover, if upon the ex parte appeal the examiner's rejection of the claims had been affirmed, no further litigation would have been necessary.
In this case, Eitzen (or his assignee) won the two prior interferences and as the senior party, under the practice in the Patent Office he is entitled to have allowed to him all common subject matter in the two applications. It must be remembered that in Eitzen's patent No. 1,822,769, of September 8, 1931, of which Dirkes et al. must have had full knowledge in view of its citation as prior art in the Dirkes et al. application, he had claims broad enough to cover the Dirkes et al. disclosure. The examiner in the record before us definitely held after going into the matter with great care, that the Eitzen patent covered broadly the invention disclosed in the Dirkes et al. patent. He pointed out where the counts at bar are more limited than the claims of the Eitzen patent. After Eitzen had been granted a patent for the broad subject matter of the Dirkes et al. application and after he had won two interferences as the senior party upon the clear showing that his application filing date was prior to any claimed date by Dirkes et al., and after he took an appeal ex parte and was allowed the claims in issue, is it possible that upon any equitable theory he can be estopped from claiming the matter in the present proceeding?
The fact that when the two interferences were declared Eitzen had been granted a patent, of which Dirkes et al. had full knowledge, containing claims broad enough to cover the Dirkes et al. application, seems to me to be an important consideration, which evidently is not so regarded by the majority since no mention is made of the matter. It is because of these facts that Eitzen here urges the pertinency of the decision of this court in Jenks v. Knight, supra, *528 and the decision of the Court of Appeals of the District of Columbia in Chapman v. Beede, 54 App.D.C. 209, 296 F. 956, where estoppel was not declared against a party for the sole reason that he had from the beginning broadly claimed the invention. It is true that in those cases the rule with reference to copying claims after more than two years had elapsed was involved. It seems wholly unjustifiable to hold Eitzen estopped because of his failure to claim something in an interference, where he had no allowable subject matter, when he had always claimed the broad invention and been allowed a patent for it. According to the holding of the examiner, Dirkes et al., must have known at the time they were in the two losing interference contests with Eitzen that Eitzen had claimed and been allowed in his issued patent subject matter which covered the Dirkes et al. application. What responsibility under such circumstances was Dirkes et al. placed under?
So, in summing up it seems to me that estoppel does not apply either on the basis of res judicata or estoppel in pais nor can it apply on account of the failure to comply with rule 109 since there was a definite holding that there was no allowable common subject matter at the time the majority says Eitzen stood estopped. No case involving facts comparable to those at bar has been cited by the majority and to my way of thinking the board's decision was sound and should not be reversed.
GARRETT, Presiding Judge, joins in the foregoing dissent.
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Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 06-1534
KERRY M. CASTELLO,
Plaintiff, Appellant,
v.
SUSAN J. MARTIN, ET AL.,
Defendants, Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, and Howard, Circuit Judges.
Kerry M. Castello, on brief pro se.
Stephen G. Dietrick, Deputy General Counsel, Legal Division,
Department of Correction and Nancy Ankers White, Special Assistant
Attorney General, on brief for defendant, appellee Susan J. Martin.
James A. Bello, Morrison Mahoney, LLP and Lisa R. Wichter,
Morrison Mahoney, LLP, on brief for defendants, appellees Aaron
Lazare, M.D., Arthur Brewer, M.D., and Donna Jurdak, R.N.
October 2, 2006
Per Curiam. Kerry M. Castello, a pro se prisoner,
appeals the district court's entry of summary judgment dismissing
his civil rights complaint in which he asserts an Eighth Amendment
claim for deliberate indifference to his serious medical needs.
Castello also appeals the district court's denial of his Fed. R.
Civ. Pro. 59(e) motion to alter or amend judgment. We have
carefully reviewed the record and affirm substantially for the
reasons stated in the district court's memorandum decision, adding
only the following.
Castello was diagnosed with the Hepatitis C virus ("HCV")
in October 2001, while incarcerated at MCI-Norfolk. Since at least
2003, when UMass Correctional Health ("UMCH") began providing
medical services for the Massachusetts Department of Corrections,
Castello has demanded that he receive a particular treatment for
his HCV: a combination drug therapy using pegylated interferon and
ribavirin. UMCH has monitored Castello's medical condition through
regular blood tests and a liver biopsy, which have consistently
shown that Castello suffers from a mild form of the disease.
In October 2003, pursuant to the UMCH Protocol for
treating inmates with HCV, Castello was placed on the waiting list
for the combination drug therapy. Castello has been informed that
budget constraints limit the number of inmates who can receive the
combination drug therapy, and those inmates with more severe forms
of the disease have priority on the treatment list. When the
-2-
evidentiary record closed in the district court, Castello's medical
condition remained essentially unchanged and he was still waiting
for the combination drug therapy.
On this record, which we have reviewed de novo, indulging
every inference in Castello's favor, Rathbun v. Autozone, Inc., 361
F.3d 62, 66 (1st Cir. 2004), we agree with the district court's
conclusion that Castello failed to show "acts or omissions
sufficiently harmful to evidence deliberate indifference to serious
medical needs." Miranda v. Munoz, 770 F.2d 155, 259 (1st Cir.
1985) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). While
it is clear that Castello strongly disagrees with the medical care
he is receiving, it is also clear that UMCH is providing "decent,
timely heath care ... at a level reasonably commensurate with
modern medical science and of a quality acceptable within prudent
professional standards." United States v. DeCologero, 821 F.2d 39,
42 (1st Cir. 1987). Castello's own evidence, submitted in support
of his summary judgment motions, shows that modern medical science
has reached a consensus that treatment generally is appropriate for
patients suffering more severe cases of HCV, where a liver biopsy
shows moderate inflammation and necrosis and portal or bridging
fibrosis. E.g., National Institutes for Health Consensus
Development Statement, "Management of Hepatitis C: 2002." None of
these conditions were detected in Castello's liver biopsy. On this
record, Castello failed to show that he has suffered an objectively
-3-
serious deprivation, or that appellees have subjectively acted in
"wanton disregard" of his rights. DesRosiers v. Moran, 949 F.2d
15, 19 (1st Cir. 1991) (citing Rhodes v. Chapman, 452 U.S. 337, 347
(1981)). See also Bender v. Regier, 385 F.3d 1133, 1135 (8th Cir.
2004) ("Treatment for [HCV] patients with mild liver problems may
be safely deferred.").
Castello also challenges the district court's refusal to
strike the medical defendants'1 opposition to his motion for
summary judgment and cross-motions for summary judgment, filed two
weeks late, without prior permission or explanation. Although we
do not condone such disregard of a court-ordered deadline, where
there is no showing of repeated failures to adhere to deadlines,
bad faith or prejudice, and the delay is minimal, we find no abuse
of discretion in the district court's actions. Stonkus v. City of
Brockton School Dep't, 322 F.3d 97, 101 (1st Cir. 2003). We also
find no abuse of discretion in the court's refusal to strike the
exhibits attached to defendants' late-filed pleading because of
defendants' failure to authenticate the exhibits by affidavit, as
required by the plain language of Rule 56(e). Again, we do not
condone this serious omission, see Carmona v. Toledo, 215 F.3d 124,
131 (1st Cir. 2002), but conclude that because each of the disputed
1
The "medical defendants" are appellees Dr. Lazare, Dr.
Brewer, and Nurse Brewer, all represented by private counsel.
Appellee Susan Martin is represented by a Special Assistant
Attorney General for the Department of Corrections.
-4-
exhibits (except for the Brewer Affidavit, which was properly
authenticated pursuant to Rule 56(e)) was filed with the court and
properly authenticated by Castello in support of his summary
judgment pleadings, no purpose would have been served by striking
the exhibits from this particular pleading.
Finally, we find no abuse of discretion in the court's
denial of Castello's Rule 59(e) motion. The minor factual errors
in the district court's memorandum decision, while unfortunate, are
not dispositive.
Affirmed.
-5-
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813 F.Supp. 323 (1993)
Frank SEIDMAN and Kathleen Seidman, individually and on behalf of all others similarly situated
v.
AMERICAN MOBILE SYSTEMS, INC. and William J. Young.
Civ. A. No. 92-1782.
United States District Court, E.D. Pennsylvania.
February 4, 1993.
*324 David H. Weinstein, Robert S. Kitchenoff, Lindsey B. Slaughter, Kohn, Savett, Klein & Graf, P.C., Philadelphia, PA, for plaintiff.
David L. Braverman, Klehr, Harrison, Harvey, Branzburg & Ellers, Philadelphia, PA, for defendants.
MEMORANDUM ORDER
ROBRENO, District Judge.
AND NOW, this 4th day of February, 1993, upon consideration of defendant's motion to dismiss plaintiffs' class action complaint (Document No. 4), plaintiffs' response thereto, and a February 4, 1993 hearing with counsel for the parties, it is hereby ORDERED that defendant's motion to dismiss plaintiff's class action complaint (Document No. 4) is DENIED for the following reasons:
1. Defendant American Mobile Systems, Inc. ("AMS") moves to dismiss plaintiffs' complaint on three grounds: (1) failure to state a claim for relief; (2) failure to allege the violation of section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") with the specificity required by Fed.R.Civ.P. 9(b); and (3) failure to satisfy *325 Fed.R.Civ.P. 8(a)'s requirement that the complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief.
2. The court may dismiss the complaint only where it appears beyond doubt that plaintiffs can prove no set of facts in support of their claim that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). All well-pleaded factual allegations in the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972). The court must draw all reasonable inferences from the allegations and view them in the light most favorable to the nonmoving party. Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989).
3. Defendant contends that plaintiffs failed to allege facts that plaintiffs relied upon the claimed misrepresentations. This theory is without merit. Plaintiffs have brought their action under the fraud-on-the-market theory. (Complaint ¶¶ 38-40) (alleging reliance on "the integrity of the market" and "the integrity of the market price of the stock"). Fraud-on-the-market obviates the need to prove direct subjective reliance upon defendants' alleged misrepresentations by each class member in open market transactions. Basic, Inc. v. Levinson, 485 U.S. 224, 242, 108 S.Ct. 978, 989, 99 L.Ed.2d 194 (1988); Peil v. Speiser, 806 F.2d 1154 (3d Cir.1986).
4. To utilize the fraud-on-the-market theory, however, plaintiffs must plead that the stock purchases were made on the open market. Zlotnick v. TIE Communications, 836 F.2d 818, 821-22 (3d Cir. 1988). Plaintiffs' complaint states that during the proposed class period, AMS common stock was traded on the National Association of Securities Dealers' Automated Quotation System ("NASDAQ"). While plaintiffs do not specifically allege that the NASDAQ is an "efficient and developed market," the court concludes from the totality of the circumstances,[1] for purposes of deciding this motion to dismiss that, in fact, an "efficient and developed market" has been adequately pleaded.
5. The alleged failure to plead facts to satisfy the "in connection" requirement of section 10(b) also fails. The "in connection" requirement is satisfied where a causal connection between the alleged fraud and the transaction is shown. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir.), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985); accord, In re Financial Corp. of America Shareholder Litigation, 796 F.2d 1126, 1129-30 (9th Cir.1986). In a fraud-on-the-market case, the requisite causation is shown through the presumption of reliance. Peil v. Speiser, 806 F.2d at 1154.
6. Since in this case, plaintiffs have pleaded facts showing that AMS had a duty to disclose in the public documents filed with the SEC and in other public documents the unauthorized transfers which occurred from April, 1991, to March 25, 1992, and failed to do so, "the court will presume that the misrepresentations occasioned an increase in the stock's value that, in turn, induced plaintiffs to purchase the stock." Peil v. Speiser, 806 F.2d at 1161. Therefore, plaintiffs' complaint adequately *326 pleads the requisite "in connection" requirement.
7. Defendant argues that plaintiffs' complaint fails to meet the particularity requirements of Fed.R.Civ.P. 9(b). Fed. R.Civ.P. 9(b) requires fraud to be pled with particularity. C. Wright & A. Miller, 5 Federal Practice and Procedure Civil 2d § 1297 (1990 & Supp.1992). The particularity requirement of Fed.R.Civ.P. 9(b) has three purposes: (1) to place defendants on notice and enable them to prepare meaningful responses; (2) to preclude the use of a groundless fraud claim as a pretext to discovering a wrong; and (3) to safeguard defendant from frivolous charges which might damage defendants' reputations. See Seville Industrial Machine Corp. v. Southmost Machinery Corp., 742 F.2d 786, 791 (3d Cir.1984), cert. denied, 469 U.S. 1211, 105 S.Ct. 1179, 84 L.Ed.2d 327 (1985).
8. The allegations are sufficiently specific to place defendants on notice of the statements and conduct by which plaintiffs claim to have been injured. Plaintiffs allege that defendants knowingly and recklessly misrepresented and omitted material facts, which were ultimately disclosed in the March 25, 1992, press release. Moreover, plaintiffs have provided defendant with notice of the documents and times at issue. (Complaint ¶ 30). Plaintiffs' complaint satisfies the particularity requirement, and it will not be dismissed pursuant to Fed.R.Civ.P. 9(b).
9. Defendant contends that the complaint violates Fed.R.Civ.P. 8(a)(2). Fed.R.Civ.P. 8(a)(2) requires that the complaint set forth a "short and plain statement" of the claims sufficient to give defendants fair notice of the nature of the claims and of the grounds upon which the claims are based. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 464 (3d Cir.1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978).
10. Defendant recognizes that the complaint seeks to state claims under section 10(b) of the Securities Exchange Act of 1934, Memorandum in Support of American Mobile Systems' Motion to Dismiss Plaintiffs' Class Action Complaint, p. 2, and discussed above. The complaint identifies the alleged misrepresentations and omissions, the type of documents alleged to contain material misrepresentations and omissions, the period during which the documents were issued, and the impact on defendant AMS's stated financial condition. (Complaint ¶¶ 26-41). Therefore, plaintiffs' complaint satisfies the requirements of Fed.R.Civ.P. 8(a).
AND IT IS SO ORDERED.
NOTES
[1] "[O]n a motion to dismiss the question is whether plaintiff has alleged that the stock traded in an efficient market, or whether any of the facts alleged give rise to such an inference." Hayes v. Gross, 982 F.2d 104, 107 (3d Cir.1992); see also Cammer v. Bloom, 711 F.Supp. 1264, 1286-87 (D.N.J.1989) (factual allegations sufficient to establish efficiency of a particular securities market).
Plaintiffs' complaint pleads sufficient facts to support the inference of an efficient market. Plaintiffs allege that after the "sudden" disclosures in an AMS release announcing that defendant Young had been suspended from his positions with AMS and that an internal investigation had revealed that "Young had directed and approved the `unauthorized transfer' of $4.1 million[,]" (Complaint ¶ 27), and that "[i]n reaction to these disclosures, the price of AMS common stock plunged $1.375 per share, or 22.9% of its value, from $6.00 per share at the close on March 24, 1992, to $4.625 per share at the close on March 25, 1992, on an unusually large volume of trading in AMS shares." (Complaint ¶ 29).
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52 F.Supp. 751 (1943)
UNITED STATES
v.
VEHICULAR PARKING, Limited, et al.
Civ. No. 259.
District Court, D. Delaware.
December 3, 1943.
*752 Stewart Lynch, U. S. Atty., of Wilmington, Del., Ernest S. Meyers, Sp. Asst. to the Atty. Gen., and E. H. Harsha, Sp. Atty., of Washington, D. C., for the United States.
Samuel E. Darby, Jr. (of Darby & Darby), of New York City, and Wm. S. Potter (of Southerland, Berl & Potter), of Wilmington, Del., for defendants Vehicular Parking, Limited, and others.
Edwin D. Steel, Jr. (of Morris, Steel & Nichols), of Wilmington, Del., for defendants Dual Parking Meter Co. and others.
LEAHY, District Judge.
I. Defendants are charged with violating Secs. 1, 2, and 3 of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1, 2, and 3. In an effort to prove its case, government-plaintiff offered a number of exhibits. Defendants' objections to their admissibility constitute the matter for consideration. The Vehicular Group[1] object to PX. Nos. 2, 4, 13, 25, 27, 30, 32, 33, 34, 35, 36, 38, 39, 40, 43, 48, 52, 54, 56, 57, 68, 76, 90, 102, 116, 127, 128, 131, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 149, 150, 151, 153, 157, 160, 161, 166, 174, 186, on the ground that these writings represent privileged communications *753 between attorney (in this case John Howard Joynt, Esquire, an individual defendant) and client. To pass on the question, I read, examined, and attempted to analyze the government's exhibits, Nos. 1 to 199, inclusive. Such exhibits demonstrably may be formulated into the following categories: (i) PX. 2 to 24 were offered to show the formation of the alleged monopoly; (ii) PX. 25 to 68 were offered to show the purposes and objects of the combination; (iii) PX. 69 to 124 were said to indicate the operation of the conspiracy; (iv) PX. 125 to 152 were offered to establish the use of the patents in the pool to mask the illegality of defendants' activities; (v) PX. 153 to 181 were said to indicate the utilization of a threat of infringement suits against competitors; and (vi) PX. 182 to 195 were said to disclose the conscious guilt on the part of defendants as to operations under the various license agreements.
Both plaintiff and defendant were given special opportunity to adduce evidence on the manner by which plaintiff came into possession of the writings and whether, if privilege existed, it had been waived. After this particular hearing, the parties, evidently dispensing with the testimony adduced,[2] filed a stipulation agreeing that all the specified writings objected to "were voluntarily made available, for inspection and return, to a member of the Anti-trust Division of the Department of Justice before or on August 19, 1941, by Mr. John Howard Joynt"; and that subsequently all of the writings also "were produced pursuant to subpoenas on or after November 13, 1941 by the Vehicular group of defendants before the Federal Grand Jury sitting in the District of Columbia."
II. In support of their objection, defendants argue that Joynt's services were at all times exclusively legal in nature and that, specifically, in the corporate gestative stages, all affairs of the subject companies to which his services were directed were purely legal in character. Mere examination of the disputed exhibits refutes this assertion. Without pausing to discuss each of the 197 exhibits seriatim, I am satisfied two excerpts are typical. PX. 4, a letter from Joynt to Broussard, Vice-President of Parkrite Corporation, dated April 23, 1937 states: "I have given attention to the proposals found in your letters of April 12 and 17, 1937, respecting the form of assignment from Parkrite to Vehicular Parking, Ltd. In order that a price structure may be set up in this country on parking meters, it is absolutely essential that all important manufacturers be brought under a single organization set up to control prices. This is the function of Vehicular Parking, Ltd. There can be no exceptions to its control." Again, PX. 90, a letter from Joynt to the individual defendant Herschede, dated March 24, 1941, exposes that "Mr. Magee just telephoned me from Oklahoma making a further request that the Vehicular agreement be relaxed to permit Dual to give a $25.50 trade-in allowance on the meters at Knoxville, Tennessee. I refused for the reason that it would set a bad precedent which would be followed by every city in the country. I know you are in accord with my thoughts on this, since it is something which we discussed very thoroughly on the telephone this afternoon prior to the phone call from Magee." This is more than attorney-talk. It is big as well as basic business diction.
The privileges contended for do not exist unless the attorney was acting in his professional capacity. With the exception of PX. 39, 48, 161 and 186, the communications in question indicate Joynt was advising on matters of business. Privilege is not accorded to such communications.[3] Moreover, it appears that while Joynt was attorney for one of the corporate defendants he was at the same time one of its directors, acting as one of its primary promoters and serving throughout as one of its general business managers. His communications, voiced in such non-advocate roles, prevent the claim of privilege.[4] In fact, it appears the offices and principal place of business of the primary defendant were located in the same suite where the attorney had his chambers in Washington, *754 D.C. In this setting, his communications involving business, rather than legal, advice are, therefore, not privileged.[5] As active business manager of defendant Vehicular, he did not, I suspect, wear his lawyer suit when he taxied over to the Department of Justice building and voluntarily turned over to the government the exhibits in controversy as well as the many writings concerning the Vehicular Group of defendants to which Joynt was neither the sender nor receiver. In short, I conclude, when he made delivery of the documents to the Anti-trust Division, he did so as the agent of the corporations involved; patently not as their legal adviser.
III. PX. 41, 42, 51, 53, 182, 183, 184, 185, 188, 189, 190, 195, 196 and 197 are objected to: grounds, immateriality and irrelevancy. To read these papers in view of the issues raised by the pleadings, it is manifest they are material to the monopoly, combination and conspiracy allegations found in the complaint. To isolate an instance: they bear on the purpose, for which the various license agreements were made, and they relate to acts done by defendants in carrying through those agreements. In ruling on this group of exhibits I look to the provisions of Rule 43 (a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which, inter alia, provide: "* * * All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. * * *" Moore (3 Moore, Federal Practice, § 43.01, p. 3063) summarizes the standards for admissibility of evidence under the new rules when he writes: "But it is subdivision (a) of Rule 43 that revolutionizes federal evidence, and in general places admissibility upon the sole basis of relevency and materiality." This rule is especially applicable to conspiracy cases here, to restrain a monopolized trade in the parking meter industry because it simply crystallizes established law, e.g., liberality has always been accorded to the admission of evidence in cases where conspiracy issues are present.[6]
IV. Objections were made to certain of plaintiff's exhibits on the ground such exhibits are not binding upon particular defendants. This type of objection is bottomed on the principle that statements made by a person prior to the time he joins a conspiracy can not bind any other person who is then a conspirator or who becomes a conspirator after the statements were made; or, statements made by a party to the conspiracy can not bind persons who join the conspiracy subsequent to the time such statements were made, in the absence of some express or tacit approval of them. In so far as the proofs before me disclose, defendant corporate licensees joined the alleged conspiracy during the year 1940, when they indulged in license agreements. They say no statements made by them prior to 1940 should be binding on them. Under the co-conspirator rule, declarations of one conspirator in furtherance of the illegal combination are admissible against all conspirators. The rationale of the rule is that each co-conspirator acts on behalf of all in furtherance of the conspiracy.[7] In Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 38 S.Ct. 65, 72, 62 L.Ed. 260, L.R. A. 1918C, 497, Ann.Cas.1918B, 461, the Supreme Court said: "In order that the declarations and conduct of third parties may be admissible in such a case, it is necessary to show by independent evidence that there was a combination between them and defendants, but it is not necessary to show by independent evidence that the combination *755 was criminal or otherwise unlawful. The element of illegality may be shown by the declarations themselves." Admittedly, a prima facie showing is required as to the existence of the concerted action of the parties before the foregoing rules are operative.
The government's documentary proofs offered meet this test, in view of the defendants' contract and license agreements, and the action taken by them in furtherance of the alleged conspiracy. I reach this conclusion because I am aware of the rule that a conspirator's connection with the illegal combination need not be proved directly, as circumstantial evidence is, in most cases, the only evidence available.[8] Thus, once a prima facie case has been disclosed, the admissions of every coconspirator, whether a party to the cause or not, and regardless of the time of his entrance into the combination, are admissible.[9] His declaration need not be in furtherance of the conspiracy. It suffices if the declarant's statement relates merely to the purposes of the alleged combination.[10]
V. Objections were made as to authenticity and genuineness of particular writings. Certain defendants stipulated, admitting authenticity. It seems to me nonstipulating defendants are bound by these admissions, until they disprove authenticity. Absent such proof, at this time, I shall admit the documents, reserving to the objectors a later motion to strike.
VI. Three individual defendants object to introduction of the government's documentary proof on the ground it deprives them of the right to cross-examine concerning the contents of the writings. This objection is meritless. These defendants are at liberty to offer evidence to controvert any or all statements contained in plaintiff's exhibits. This circuit recognizes that documentary proof may be offered and submitted in lieu of oral testimony in antitrust cases.[11]
When trial resumes, I shall state to the reporter that plaintiff's exhibits Nos. 1 to 197 are admitted, over objection.
NOTES
[1] Defendants Vehicular Parking, Ltd., The Karpark Corporation, Peerless Oil & Gas Company, Vernon F. Taylor, John Howard Joynt, Walter J. Herschede, Guy Kelcey and E. D. Timberlake.
[2] I have, nevertheless, considered this testimony, because it spot-lights the attorney client privilege.
[3] Hatton v. Robinson, 14 Pick., Massachusetts, 416, 25 Am.Dec. 415; Gronewold v. Gronewold, 304 Ill. 11, 136 N.E. 489; Howe v. Stuart, 68 Misc. 352, 123 N.Y.S. 971; Lifschitz v. O'Brien, 143 App.Div. 180, 127 N.Y.S. 1091; Turner v. Turner, 123 Ga. 5, 50 S.E. 969, 107 Am.St.Rep. 76; Estate of Huffman, 132 Mo.App. 44, 111 S.W. 848.
[4] In re Fisher, D.C., 51 F.2d 424.
[5] Curry v. Charles Warner Co., 16 Del. 98, 42 A. 425.
[6] Clune v. United States, 159 U.S. 590, 16 S.Ct. 125, 40 L.Ed. 269; Davis v. United States, 6 Cir., 107 F. 753; United States v. Swift & Co., 196 U.S. 375, 376, 25 S.Ct. 276, 49 L.Ed. 518; Eastern States Lumber Association v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490, L. R.A.1915A, 788; Interstate Circuit v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610; United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168.
[7] American Fur Company v. United States, 2 Pet. 358, 7 L.Ed. 450; Delaney v. United States, 263 U.S. 586, 44 S.Ct. 206, 68 L.Ed. 462; Gambino v. United States, 3 Cir., 108 F.2d 140; Vitagraph, Inc., v. Perelman, 3 Cir., 95 F.2d 142.
[8] United States v. Harrison, 3 Cir., 121 F.2d 930.
[9] Weinstein v. United States, 1 Cir., 11 F.2d 505.
[10] International Indemnity Company v. Lehman, 7 Cir., 28 F.2d 1, certiorari denied, 278 U.S. 648, 49 S.Ct. 83, 73 L.Ed. 561; Connecticut Mutual Life Ins. Co. v. Hillmon, 188 U.S. 208, 23 S.Ct. 294, 47 L.Ed. 446.
[11] See United States v. Pullman Co. et al., D.C.E.D.Pa., 50 F.Supp. 123, and United States v. General Electric Co., et al., Civil Action No. 1364, now pending in the district court for the District of New Jersey, both anti-trust cases.
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/01/2018 09:07 AM CDT
- 128 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
LeRETTE v. HOWARD
Cite as 300 Neb. 128
David LeR ette, Jr., individually and as owner
of M aster Blaster, I nc., appellants and
cross-appellees, v. Steven H. Howard and
Dowd, Howard & Corrigan, L.L.C.,
appellees and cross-appellants.
___ N.W.2d ___
Filed June 1, 2018. No. S-17-580.
1. Jurisdiction: Appeal and Error. Subject matter jurisdiction is a ques-
tion of law for the court, which requires an appellate court to reach a
conclusion independent of the lower court’s decision.
2. Judgments: Verdicts: Appeal and Error. Review of a ruling on
a motion for judgment notwithstanding the verdict is de novo on
the record.
3. Trial: Appeal and Error. The standard of review of a trial court’s
determination of a request for sanctions is whether the trial court abused
its discretion.
4. Actions: Parties. The purpose of Neb. Rev. Stat. § 25-301 (Reissue
2016) is to prevent the prosecution of actions by persons who have no
right, title, or interest in the cause.
5. Actions: Parties: Public Policy. Neb. Rev. Stat. § 25-301 (Reissue
2016) discourages harassing litigation and keeps litigation within certain
bounds in the interest of sound public policy.
6. Actions: Parties: Standing. The focus of the real party in interest
inquiry is whether the party has standing to sue due to some real inter-
est in the cause of action, or a legal or equitable right, title, or interest
in the subject matter of controversy. The purpose of the inquiry is to
determine whether the party has a legally protectable interest or right in
the controversy that would benefit by the relief to be granted.
7. Actions: Pleadings: Parties. The character in which one is a party to
a suit, and the capacity in which a party sues, is determined from the
allegations of the pleadings and not from the caption alone.
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Nebraska Supreme Court A dvance Sheets
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LeRETTE v. HOWARD
Cite as 300 Neb. 128
8. Judgments: Verdicts. On a motion for judgment notwithstanding the
verdict, the moving party is deemed to have admitted as true all rel-
evant evidence admitted that is favorable to the party against whom the
motion is directed, and, further, the party against whom the motion is
directed is entitled to the benefit of all proper inferences deducible from
the relevant evidence.
9. ____: ____. To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law and may
do so only when the facts are such that reasonable minds can draw but
one conclusion.
10. Attorneys at Law: Attorney Fees: Conflict of Interest. An attorney
who violates established rules of professional conduct and performs
services despite a conflict of interest may not receive compensation for
such services.
11. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court’s decision is clearly against justice or conscience, reason,
and evidence, or when the decision unfairly deprives the litigant of a
substantial right or a just result.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed as modified.
Ronald J. Palagi and Donna S. Colley, of Law Offices of
Ronald J. Palagi, P.C., L.L.O., and Kathy Pate Knickrehm
for appellants.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and Steinke, District Judge.
Steinke, District Judge.
NATURE OF CASE
The jury found in favor of the plaintiffs on a claim for legal
malpractice and fraudulent misrepresentation and awarded
$775,000. After trial, the district court overruled the plaintiffs’
motion for sanctions and partially granted the defendants’
motion for judgment notwithstanding the verdict (JNOV),
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LeRETTE v. HOWARD
Cite as 300 Neb. 128
reducing the damages to $235,968.78. The plaintiffs appeal,
and the defendants cross-appeal, challenging the district
court’s subject matter jurisdiction.
BACKGROUND
In November 2013, David LeRette, Jr., individually and as
the owner of Master Blaster, Inc., filed a complaint against
Steven H. Howard and his law firm, alleging, among other
things, that Howard committed legal malpractice and breached
his duty as LeRette’s attorney when he failed to advise LeRette
of his conflicts of interest and when he acted adversely to
LeRette’s interests. A jury trial was held on the matter in early
2017. From the evidence presented, we adduce the following
set of facts.
M aster Blaster’s Judgment
Against A nderson
In 2006, LeRette sold certain assets of his business, Master
Blaster, to Johnnie Anderson. Pursuant to the purchase agree-
ment, Anderson executed a promissory note to Master Blaster
for $350,000 with 12 percent annual interest. After three pay-
ments, Anderson defaulted on the note.
Master Blaster filed suit for the balance owed. During those
proceedings, Master Blaster was represented by Sandra L.
Maass.
Anderson then filed for bankruptcy. Master Blaster’s suit
against Anderson was stayed. In the bankruptcy proceeding,
Master Blaster challenged the discharge of Anderson’s debt
to Master Blaster. The bankruptcy court ultimately granted
Master Blaster’s request after finding that omissions and mis-
statements in Anderson’s schedules and statements of finan-
cial affairs were inaccurate, unreliable, and constituted inten-
tional or reckless indifference to the truth. Thereafter, the stay
was lifted from Master Blaster’s suit against Anderson. In
2009, Master Blaster secured a judgment against Anderson for
$470,020.39 plus interest.
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LeRETTE v. HOWARD
Cite as 300 Neb. 128
Legal M alpractice Action Against
A nderson’s Bankruptcy Attorneys
LeRette’s bankruptcy attorney thought Anderson’s bank-
ruptcy attorneys may have been negligent in their represen-
tation of Anderson and suggested to LeRette that Anderson
could pursue a legal malpractice claim against them in order
to generate funds that could be used to satisfy his debt to
Master Blaster. Based on this information, LeRette contacted
Maass, who told LeRette that she thought her former class-
mate, Howard, might be able to help.
With LeRette’s approval, Maass called Howard to discuss
the matter. Howard indicated that he was interested in the
case. Thereafter, Maass gave Howard’s contact information to
LeRette, who then called Howard.
After talking to Howard, LeRette contacted Anderson and
asked him if he was interested in pursuing a legal malpractice
claim against his bankruptcy attorneys. Anderson indicated
that he was, and LeRette and Anderson met at a fast food res-
taurant to discuss it. According to LeRette, he told Anderson
that he would hire the attorney.
LeRette then called Howard and scheduled a meeting in
Howard’s law office for May 1, 2009. Howard told LeRette
to bring Anderson, which he did. At the meeting, Howard
advised LeRette and Anderson that any proceeds from the
suit would be used to satisfy the judgment against Anderson.
Howard advised LeRette not to execute on the judgment
against Anderson, because it would make the case more dif-
ficult for Howard. LeRette did not execute on the judgment.
According to LeRette, Howard told him that he could not be
named in the malpractice action, because malpractice suits can-
not be assigned. But Howard represented that the suit would
be successful and that LeRette would “get [his] money and
get paid.”
Howard filed the legal malpractice claim against the bank-
ruptcy attorneys in October 2009.
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LeRETTE v. HOWARD
Cite as 300 Neb. 128
Mediation and Settlement
Agreement
In March 2012, a mediation of the legal malpractice suit
against Anderson’s bankruptcy attorneys occurred. Howard,
LeRette, and Anderson were all present. According to LeRette,
he met with Howard before the mediation to discuss what
settlement amounts might be acceptable. The mediation ulti-
mately reached an impasse.
Thereafter, the mediator issued a proposal in which he rec-
ommended that the parties settle for $350,000, with Anderson
to receive $0, LeRette to receive $300,000, and Howard to
receive $50,000 for his fees. The proposal was not accepted.
On July 23, 2012, without discussing the matter with
LeRette, Howard settled the legal malpractice action for
$350,000. Howard deposited the settlement proceeds into his
firm’s trust account and dispersed $235,964.78 to Anderson,
retaining the remaining $114,035.22 in payment of his fees
and expenses. Anderson did not pay LeRette, and LeRette
never received any of the settlement proceeds.
According to LeRette, he stopped receiving informa-
tion from Anderson and Howard after the mediation. When
LeRette followed up with the malpractice case, he was told
that the trial was to occur on October 29, 2012. Sometime
later, LeRette learned about the settlement and the payment
and filed the suit against Howard and his law firm.
Evidence of Damages
At the trial, LeRette sought to prove that Howard’s legal
malpractice and fraudulent misrepresentations caused him
damages.
As evidence of those damages, LeRette called a univer-
sity finance professor to testify. The witness calculated what
Master Blaster’s judgment against Anderson would have been
worth beginning in April 2009 through February 2017. A docu-
ment of his calculations was entered into evidence. According
to the document, the value of Master Blaster’s judgment at the
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LeRETTE v. HOWARD
Cite as 300 Neb. 128
time of the trial was either $1,209,614 or $1,276,038, depend-
ing on whether a penalty was included.
Relevant to the value of Anderson’s claim against his bank-
ruptcy attorneys, an offer of judgment filed by Howard was
admitted into evidence. In the offer, Anderson offered to accept
an entry of judgment against the bankruptcy attorneys in the
amount of $1 million.
Jury Verdict
At the conclusion of the evidence, the jury was instructed
on two theories: legal malpractice and fraudulent misrepre-
sentation. After the case was submitted, the jury returned a
general verdict for LeRette and Master Blaster with damages
of $775,000.
Damages R educed
After trial, Howard and his law firm filed a motion for
JNOV, to alter or amend judgment, and for a new trial. In the
motion, Howard and his firm alleged, among other things, that
the judgment was not supported by sufficient evidence and that
the jury awarded excessive damages. A hearing on the motion
was held, and on May 5, 2017, the district court issued an order
reducing the damages from $775,000 to $235,968.78, which
was the amount Anderson received in the settlement.
In reducing the damages to the amount that Anderson
received in the settlement, the district court reasoned:
There was no evidence adduced at trial that . . . Howard
could have obtained a more favorable settlement for
Anderson or that he performed deficiently in reaching
the settlement. It is clear from the evidence at trial that
Anderson was the only one with a legal claim against the
bankruptcy attorneys, and he agreed to settle the case for
$350,000 in which he received $235,968.78.
The only damages [LeRette and Master Blaster] could
have sustained, as a proximate cause of . . . Howard[’]s
negligence or misrepresentations, was not seeing that
LeRette [and Master Blaster] received all or part of the
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settlement proceeds received by Anderson. Under the
facts presented to the jury, the amount Anderson received
would equal the most [LeRette and Master Blaster] could
have received as damages. The Court finds, as a matter of
law, that this amount was the only damages that [LeRette
and Master Blaster] are entitled [to].
Motion for Sanctions
After the trial, LeRette filed a motion for sanctions, request-
ing that the trial court strike Howard and his law firm’s
answer, award attorney fees and costs to LeRette and Master
Blaster, and disgorge the attorney fees received by Howard
and his law firm in the underlying legal malpractice suit. The
district court overruled the motion.
On appeal, LeRette and Master Blaster argue that the district
court erred in overruling the motion, because the evidence
shows that Howard failed to comply with discovery requests
and committed fraud upon the court. LeRette and Master
Blaster argue that a pattern of misconduct by Howard and his
law firm warranted sanctions and that the trial court’s failure to
impose sanctions constituted an abuse of discretion.
ASSIGNMENTS OF ERROR
LeRette and Master Blaster assign that the trial court erred
in reducing the jury’s award of damages and in overruling the
motion for sanctions.
Howard and his law firm cross-appeal, assigning that the
trial court erred in failing to dismiss LeRette and Master
Blaster’s complaint for want of subject matter jurisdiction.
STANDARD OF REVIEW
[1] Subject matter jurisdiction is a question of law for the
court, which requires an appellate court to reach a conclusion
independent of the lower court’s decision.1
1
Deutsche Bank Nat. Trust Co. v. Siegel, 279 Neb. 174, 777 N.W.2d 259
(2010).
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[2] Review of a ruling on a motion for JNOV is de novo on
the record.2
[3] The standard of review of a trial court’s determination
of a request for sanctions is whether the trial court abused
its discretion.3
ANALYSIS
Subject M atter Jurisdiction
Before addressing LeRette and Master Blaster’s assign-
ments, we first consider Howard and his law firm’s assign-
ment regarding subject matter jurisdiction. They argue that
because the judgment debt was owned by the corporation
Master Blaster and not by LeRette, LeRette was not the real
party in interest. Howard and his firm contend that because
LeRette was not the real party in interest, he lacked standing
to sue, and that therefore, the trial court lacked subject mat-
ter jurisdiction.
[4-6] Indeed, Neb. Rev. Stat. § 25-301 (Reissue 2016)
requires that except as otherwise provided by statute, all cases
are to be brought “in the name of the real party in interest.”
The purpose of § 25-301 is to prevent the prosecution of
actions by persons who have no right, title, or interest in the
cause.4 Section 25-301 also discourages harassing litigation and
keeps litigation within certain bounds in the interest of sound
public policy.5 The focus of the real party in interest inquiry is
whether the party has standing to sue due to some real interest
2
See Bellino v. McGrath North, 274 Neb. 130, 133, 738 N.W.2d 434,
439 (2007) (“[t]o sustain a motion for [JNOV], the court resolves the
controversy as a matter of law and may do so only when the facts are
such that reasonable minds can draw but one conclusion”), and Hauser
v. Nebraska Police Stds. Adv. Council, 264 Neb. 605, 650 N.W.2d 760
(2002) (questions of law are reviewed de novo on record).
3
Malchow v. Doyle, 275 Neb. 530, 748 N.W.2d 28 (2008).
4
Manon v. Orr, 289 Neb. 484, 856 N.W.2d 106 (2014).
5
Id.
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in the cause of action, or a legal or equitable right, title, or
interest in the subject matter of controversy.6 The purpose of
the inquiry is to determine whether the party has a legally pro-
tectable interest or right in the controversy that would benefit
by the relief to be granted.7
The crux of Howard and his law firm’s jurisdictional argu-
ment rests on the premise that Master Blaster was not named a
party to this action. A review of the operative pleadings, how-
ever, reveals otherwise.
[7] We have held that the character in which one is a party
to a suit, and the capacity in which a party sues, is determined
from the allegations of the pleadings and not from the cap-
tion alone.8
Here, the caption of the operative complaint, as well as its
body, support that both LeRette and Master Blaster were par-
ties to the action. The caption of the operative complaint identi-
fies the “[p]laintiffs” as “DAVID LERETTE, JR., Individually,
and as owner of MASTER BLASTER, INC.” We notice that
the caption uses the plural form of the term “plaintiff” and
that it also lists both LeRette and Master Blaster in capital
letters, which is traditionally done with parties. In the body
of the operative complaint, under the “STATEMENT OF THE
FACTS” heading, Master Blaster was again specifically identi-
fied as a plaintiff.
We also conclude that the jury instructions, the verdict form,
the amended judgment, and the postjudgment motion for sanc-
tions all support that both LeRette and Master Blaster were
parties to the action. Each of these filed documents uses the
plural form of the term “plaintiff” and refers to both LeRette
and Master Blaster.
6
Id.
7
Id.
8
Zapata v. McHugh, 296 Neb. 216, 893 N.W.2d 720 (2017); Steinhausen v.
HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 (2015).
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Because the allegations of the pleadings sufficiently iden-
tify Master Blaster as a party plaintiff, Howard and his law
firm’s argument that this court lacks jurisdiction because this
action was not brought by the real party in interest is with-
out merit.
R eduction of Jury Award
We next consider LeRette and Master Blaster’s assignment
that the district court erred in partially granting Howard and
his law firm’s motion for JNOV and reducing the jury’s award
of damages.
[8,9] On a motion for JNOV, the moving party is deemed
to have admitted as true all relevant evidence admitted that
is favorable to the party against whom the motion is directed,
and, further, the party against whom the motion is directed is
entitled to the benefit of all proper inferences deducible from
the relevant evidence.9 To sustain a motion for JNOV, the court
resolves the controversy as a matter of law and may do so only
when the facts are such that reasonable minds can draw but
one conclusion.10
LeRette and Master Blaster assert that the trial court erred
in reducing the damages to $235,968.78, the amount Anderson
received in the settlement. He argues that reasonable minds
could have concluded that LeRette and Master Blaster were
entitled to $775,000. We disagree.
LeRette and Master Blaster’s argument is based on the
premise that the damages resulting from Howard’s legal mal-
practice are equal to the value of Master Blaster’s judgment
against Anderson. Such premise would be true if Anderson’s
legal malpractice claim had gone to trial and been success-
ful. Then, Anderson’s damages would include the damages
resulting from the bankruptcy attorney’s failure to have Master
Blaster’s judgment discharged.
9
Bellino, supra note 2.
10
Id.
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However, LeRette and Master Blaster did not present evi-
dence to support a finding that Anderson’s malpractice action
would have been successful had it proceeded to trial. Nor did
they present evidence that Howard was negligent or acted defi-
ciently in securing the $350,000 settlement or that he could or
should have secured a greater settlement.
LeRette and Master Blaster did, however, present evidence
to support a finding that Howard was negligent in advising
LeRette not to execute on the judgment, in representing that
LeRette would receive the proceeds, and in cutting LeRette
out of the settlement proceeds. With regard to executing on
the judgment, the evidence showed that at all relevant times,
Anderson had no assets except for various tools and “a partly
put together vehicle.” Because any damages resulting from the
executing advice was minimal, the only damages proximately
caused by Howard’s negligence or misrepresentations was in
not seeing that LeRette and Master Blaster received the settle-
ment proceeds.
[10] Although the district court reduced the award to the
amount that Anderson received in the settlement, we modify
that amount to include the amount Howard received in the
settlement. We so modify the award, because an attorney who
violates established rules of professional conduct and performs
services despite a conflict of interest may not receive com-
pensation for such services. In State ex rel. FirsTier Bank v.
Mullen,11 we explained:
We do not accept the contention that an attorney can
receive fees for representation which from the outset
gives the appearance of impropriety and is violative of
established rules of professional conduct. An attorney
may not recover for services rendered if those services
are rendered in contradiction to the requirements of
11
State ex rel. FirsTier Bank v. Mullen, 248 Neb. 384, 390, 534 N.W.2d 575,
580 (1995).
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professional responsibility and inconsistent with the char-
acter of the profession.
It is an established rule of professional conduct that a law-
yer may not represent a client if the representation involves a
concurrent conflict of interest, unless, among other things, the
client is advised of the conflict and consents to it.12
Here, we must assume that Howard failed to advise LeRette
and Anderson of his conflict of interest. Because a general ver-
dict does not specify the basis for an award, Nebraska law pre-
sumes that the winning party prevailed on all issues presented
to the jury.13 One of the issues presented to the jury was that
Howard failed to advise LeRette and Anderson of his conflict
of interest.
Because Howard violated the rule regarding representations
involving conflicts of interest, we conclude that, as a matter of
law, Howard is not entitled to compensation for his services in
the settlement. Thus, we modify the jury award to include the
$114,035.22 that he received for those services.
Motion for Sanctions
[11] Finally, LeRette and Master Blaster claim that the
trial court abused its discretion in overruling their postver-
dict motion for sanctions against Howard and his law firm.
An abuse of discretion occurs when a trial court’s decision is
clearly against justice or conscience, reason, and evidence, or
when the decision unfairly deprives the litigant of a substan-
tial right or a just result.14
Although the trial court did not explain its reasoning for
denying LeRette and Master Blaster’s motion for sanctions,
we think it likely did so because it found that Howard was
12
See Neb. Ct. R. of Prof. Cond. § 3-501.7.
13
Heckman v. Burlington Northern Santa Fe Ry. Co., 286 Neb. 453, 837
N.W.2d 552 (2013).
14
See Coral Prod. Corp. v. Central Resources, 273 Neb. 379, 730 N.W.2d
357 (2007).
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not acting in bad faith when he sought to protect, based on
attorney-client privilege, his files and the confidential informa-
tion of his client, Anderson. Because we see no abuse of dis-
cretion, we find that this assignment is without merit.
CONCLUSION
For the reasons set forth above, we affirm the district court’s
partial granting of Howard and his law firm’s JNOV, but mod-
ify the jury award from $235,964.78 to $350,000.
A ffirmed as modified.
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976 So.2d 1110 (2007)
MUNOZ
v.
DEPARTMENT OF REVENUE EX REL. VALENCIANA.
No. 2D07-214.
District Court of Appeal of Florida, Second District.
October 31, 2007.
Decision without published opinion. Affirmed.
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} |
373 F.Supp.2d 1353 (2005)
The CHATTOOGA CONSERVANCY, Florida Biodiversity Project, Forest Conservation Council, Georgia ForestWatch, Ouachita Watch League, Sierra Club, Southern Appalachian Biodiversity Project, Wild Alabama, Wild South, and The Wilderness Society, Plaintiffs
v.
Robert T. JACOBS, as Regional Forester of the Southern Region of the U.S. Forest Service, and the U.S. Forest Service, Defendants
No. CIV.A.1:01-CV1976ODE.
United States District Court, N.D. Georgia, Atlanta Division.
June 16, 2005.
*1354 *1355 *1356 Blaine T. Phillips, Southern Environmental Law Center, Charlottesville, VA, Donald D.J. Stack, Stack & Associates, Atlanta, Douglas A. Ruley, Southern Environmental Law Center, Inc., Asheville, NC, Jonathan Lee Schwartz, Jon L. Schwartz, Attorney at Law, P.C., Atlanta, Eric Eugene Huber, Sierra Club, Boulder, CO, Martin J. Bergoffen, Southern Appalachian Biodiversity Project, Asheville, NC, Ray Vaughan, WildLaw, Montgomery, AL, for The Chattooga Conservancy, Biodiversity Legal Foundation, Florida Biodiversity Project, Forest Conservation Council, Georgia ForestWatch, Ouachita Watch League, Sierra Club, Southern Appalachian Biodiversity Project, Wild Alabama, Wild South, Wilderness Society, Plaintiffs.
Julia B. Anderson, Office of United States Attorney, Northern District of Georgia, Atlanta, Lisa A. Holden, U.S. Department of Justice, Environment & Natural Resources Division, Myesha K. Braden, U.S. Department of Justice, Environment & Natural Resources Division, Pamela S. West, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Robert David Powell, Office of United States Attorney, Northern District of Georgia, Atlanta, for Elizabeth Estill as Regional Forester of the Southern Region of the U.S. Forest Service, United States Forest Service, Robert T. Jacobs as Regional Forester of the Southern Region of the U.S. Forest Service, Defendants.
*1357 ORDER
ORINDA D. EVANS, District Judge.
In this civil case seeking review of agency action under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, various environmental organizations contend that Robert T. Jacobs, Regional Forester for the Southern Region of the U.S. Forest Service, and the U.S. Forest Service, failed to follow the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347, and the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-1687, when the Forest Service amended or revised certain Forest Plans and supplemented a Vegetation Management Environmental Impact Statement. Plaintiffs also seek to overturn Defendant Jacobs' decisions approving projects at two locations in the Ouachita National Forest[1] Wildhorse Creek (in Oklahoma) and Oliver Branch (in Arkansas). This case is before the court on cross motions for summary judgment. For the reasons set forth below, Defendants' motion for summary judgment [# 60] is GRANTED and Plaintiffs' motion for summary judgment [# 52] is DENIED.
I. Claims Pertaining to the Ouachita National Forest
A. Facts
The following facts are undisputed unless indicated otherwise.
In 1990, Defendants issued a Vegetation Management Environmental Impact Statement ("VMEIS") for the National Forests in the Ozark/Ouachita Mountains region. The 1990 Ozark/Ouachita VMEIS is a voluminous regional planning document and environmental impact statement that discusses comprehensively the impacts and implications of a range of vegetation management methods that may be used under different circumstances to maintain the health of the forests. "Vegetation management" according to the VMEIS "is the skillful care of plants by means other than timber harvest. It is done to help young trees survive and grow, to provide a variety of wildlife habitats, to reduce hazardous fuels, to improve range forage, and to maintain safe and efficient travelways and utility lines." [Admin. Rec. IV, tab 1 (1990 Ozark/Ouachita VMEIS) at p. iii]. The VMEIS discusses five methods to manage vegetation: prescribed fire, mechanical methods (bulldozers, tractors, mowers, etc.), manual methods (i.e. hand held tools such as clippers, axes, or chain saws), biological methods (grazing), and herbicides.
Like all environmental impact statements prepared pursuant to NEPA, the VMEIS includes "mitigation measures" to reduce potential adverse environmental impacts of the five vegetation management methods. See 40 C.F.R. §§ 1502.14(f), 1502.16(h). In addition to mitigation measures that are specific to each of the five management methods, the VMEIS also discusses "General Management Requirements and Mitigation Methods" that apply to all management methods. This lawsuit focuses on one of these general requirements or mitigation measures, which appears in the VMEIS under the heading "Site-Specific Analysis." This section requires that projects within the forests be preceded by a site-specific evaluation of the effect of the selected vegetation management methods on threatened, endangered or sensitive plant and animal species, hereinafter "PETS"[2]:
*1358 1. General Management Requirements and Mitigation Measures
a. Site-Specific Analysis
The following general requirements and measures apply to all vegetation management methods. Each forest may be more restrictive, but not less.
(1) Projects must have site-specific analysis in compliance with the National Environmental Policy Act (NEPA).
* * * * * *
(2) A biological evaluation of how a project may affect any species Federally listed as threatened, endangered, or proposed, or identified by the Forest Service as sensitive, is done by a biologist as part of the site-specific environmental analysis. This evaluation considers all available inventories of threatened, endangered, proposed, and sensitive species populations and their habitat for the proposed treatment area. When adequate population inventory information is unavailable, it must be collected when the site has high potential for occupancy by a threatened, endangered, proposed, or sensitive species. Appendix D identifies potential adverse effects from vegetation management by species. When adverse effects are projected, mitigation measures specified in appendix D and this chapter are used to prevent them.
1990 Ozark/Ouachita VMEIS at II-40 and II-41.
According to the VMEIS, the purpose of the site-specific analysis and the collection of PETS data is "to ensure that these species are protected when vegetation management projects (including those designed to benefit the species) take place." [1990 Ozark/Ouachita VMEIS at IV-82]. In addition to the general requirement to review and collect information on PETS, the VMEIS also discusses in detail PETS-related concerns that arise from each of the five vegetation management methods. [1990 Ozark/Ouachita VMEIS at IV-82 through IV-84]. The VMEIS describes how different mitigation measures address specific risks posed by different methods. For example, the VMEIS discusses in detail a variety of PETS-related mitigation measures to avoid dangers related to herbicides, since herbicides can prove uniquely risky to sensitive species. [1990 Ozark/Ouachita VMEIS at II-54 through II-61].
Around the same time the 1990 Ozark/Ouachita VMEIS was published, the Forest Service also issued a new Forest Plan for the Ouachita National Forest.[3]*1359 The 1990 Forest Plan for the Ouachita National Forest was developed in connection with its own Environmental Impact Statement ("EIS").[4] This EIS is different from the VMEIS, which pertains only to vegetation management. The Forest Plan EIS applied only to the Ouachita National Forest, whereas the VMEIS applies to the Ouachita National Forest and two other national forests in the Ozark/Ouachita region.
Amendment 3 to the Ouachita Forest Plan made the Record of Decision ("ROD")[5] for the 1990 Ouachita VMEIS a part of the Ouachita Forest Plan. Amendment 3 explicitly incorporated into the Ouachita Forest Plan the VMEIS language requiring the collection of PETS data for a site-specific project whenever "adequate population inventory information" was not already available.
In Sierra Club v. Martin, 168 F.3d 1 (11th Cir.1999), the United States Court of Appeals for the Eleventh Circuit addressed the same PETS language as it appeared in the Forest Plan for the Chattahoochee and Oconee National Forests. Martin held that the Forest Service violated the requirements of the Forest Plan (and thereby violated NFMA) by implementing a logging and road construction project in the absence of "adequate population inventory information" on PETS. The Forest Service had admitted that sensitive and endangered species inhabited the project area and that they would be destroyed by the proposed timber sales, but "the Forest Service had no population inventory information and little in the way of population data for thirty-two of the thirty-seven vertebrate PETS species that inhabit the Forest." Id. at 4. Martin found that because the Forest Service acted contrary to its own Forest Plan in approving the project without "adequate population inventory information", its action in approving the project was arbitrary and capricious.
After Martin the Forest Service amended the PETS language in forest plans throughout the Southern Region, including in the 1990 Ouachita Forest Plan. The amendments made it clear that the Forest Service did not always need to collect pre-project population data on every PETS species occurring in a proposed project area. Rather, in some cases the presence of PETS could be assumed in assessing whether particular treatment methods would harm PETS. The amendments also specifically recognized that data collection efforts could be futile in the case of elusive species. The Forest Service stated that "The recent decision by the United States Court of Appeals for the Eleventh Circuit in Sierra Club v. Martin illuminated the need to clarify the management direction for conducting biological evaluations on proposed projects. The Eleventh Circuit essentially interpreted the current provision as requiring the Forest Service to have population inventory information on all PETS species occurring, or with a high potential to occur, within the project vicinity. Since the existing [PETS] provision does not clearly state the Forest Service's intent or support its view of the proper scientific methodology to be followed, the current management direction needs to be clarified." [Amendment 31 Decision Notice, Admin. Rec. IV., tab. 5, at p. 3].
*1360 Amendment 31 (August, 2000) to the 1990 Ouachita Forest Plan replaced Amendment 3 with wording that made the acquisition of additional project-related PETS data more clearly discretionary with the Forest Service:
A biological evaluation of whether, and to what extent, a management action could affect any species federally listed as threatened, endangered, or proposed, under the Endangered Species Act (ESA), or designated by the Forest Service as sensitive, is prepared as part of environmental analysis for project-level decision making. The procedures for biological evaluations are found in Forest Service Manual 2670, Threatened, Endangered, and Sensitive Plants and Animals.
During the biological process to identify possible effects, existing available information will be used to determine the PETS species known or expected to occur in the vicinity of the proposed project or likely to be affected by the action. The information considered may include data on species/habitat relationships, species range distribution, and population occurrences developed from past field surveys or observations. Existing available information considered will also include the amount, condition, and distribution of suitable habitat.
For some PETS species expected to occur in the vicinity of the project, or likely to be affected by the project, additional field surveys conducted in suitable habitat that is potentially affected by the proposed project are desirable to document the presence or absence of these species. These field surveys would be most appropriate if past field surveys are not available for such areas and if they would provide more definitive information to improve the determination of effects to PETS species.
However, there are some PETS species and situations where information to determine potential effects to PETS species may not require field surveys. For these situations, the PETS species in question would be assumed to occur in the area if suitable habitat is present, and effects to the species would be considered in the effects analysis. These situations occur when:
1. There is a low likelihood of detecting a particular species; a field survey probably would not find that species and therefore could not provide definitive information for excluding a species being considered for protection.
2. Established Forest Plan direction or mitigation that effectively protects PETS species expected to occur in suitable habitat in the project vicinity is already in place and is part of the proposed action.
3. Habitat requirements of a PETS species are well known and a) there is sufficient evidence that the proposed actions would have only short- or long-term beneficial effects or no adverse effects to PETS species or b) any adverse effects of the proposed actions would not be likely [to] cause it to be Federally listed or to suffer reduced viability.
[Am. 31 Dec. Not., Admin. Rec. IV., tab. 5, at p. 2]. Because Amendment 31 was an amendment to the 1990 Ouachita Forest Plan only and not to the 1990 Ozark/Ouachita VMEIS, the original PETS data collection wording remained in the 1990 Ozark/Ouachita VMEIS.
An environmental assessment was prepared to assess the environmental impacts of Amendment 31.[6] [Admin. Rec. IV, tab *1361 3]. It stated that the "purpose and need" for Amendment 31 were to clarify the Forest Plan's PETS-related requirements following Martin; that the amendment would have no significant impact on humans or protected species; and that "This amendment does not diminish the requirement for `adequate population inventory'" but instead simply "allow[s] the Forest Service to focus on collecting data on those species for which sufficient data are lacking." [Admin. Rec. IV, tab 3, at p. 2-4]. The Forest Service issued a Finding of No Significant Impact ("FONSI") on July 12, 2000, meaning that an environmental impact statement ("EIS") would not be required. [Admin. Rec. IV, tab 5].
On August 22, 2000, Plaintiffs Ouachita Watch League, Sierra Club and other environmental citizens' groups appealed the adoption of Amendment 31. [Admin. Rec. IV, tab 6]. Plaintiffs alleged that Amendment 31 was "a shameless attempt to skirt the holding of Sierra Club v. Martin." Plaintiffs made numerous objections to Amendment 31, including that Amendment 31 was a significant action requiring a full environmental impact statement and that because Amendment 31 was less restrictive as to the PETS data collection language than the 1990 Ozark/Ouachita VMEIS it could not lawfully be adopted absent a change in the 1990 VMEIS. The Deputy Regional Forester rejected Plaintiffs' administrative appeal on November 22, 2000. [Admin. Rec. IV, tab 7].
Plaintiffs filed their complaint in this case on July 26, 2001. Plaintiffs' primary argument was that Amendment 31 impermissibly diluted the 1990 PETS data collection requirement because it was inconsistent with the PETS data collection language of the 1990 Ozark/Ouachita VMEIS which had not changed. Plaintiffs also argued that Amendment 31 should have been accompanied by an environmental impact statement, not merely by an environmental assessment.
In August of 2001, the Forest Service published a notice of its intent to supplement the 1990 Ozark/Ouachita VMEIS so as to change the wording of the PETS data collection language. It also gave Notice of its intent to amend the Forest Service Manual for the Southern Region to effect a similar revision. The amendment to the Forest Service Manual was effective March 7, 2002. It retained the requirement of a pre-project PETS inventory only where: 1) Vegetation management techniques for a particular project would have adverse effects on PETS occupants known or assumed to be present, 2) further information on the number and location of PETS would improve the effectiveness of mitigation efforts to reduce adverse effects, or allow better assessment of effect on the viability of the population, 3) no current site-specific inventory of PETS occupants existed, and 4) feasible and effective inventory methods for the PETS assumed to be present existed. [Supplement to Forest Service Manual, Admin. Rec. IV, tab 8].
The Forest Service issued a Supplement to the 1990 Ozark/Ouachita VMEIS on October 25, 2002. [Admin. Rec. IV, tab 10]. This supplement had an effective date of November 15, 2002, and included the following new PETS language:
A Biological Evaluation of how a project may affect any species federally listed as threatened, endangered or proposed, or identified by the Forest Service as sensitive shall be done as part of the site-specific *1362 environmental analysis. This evaluation considers available information on threatened, endangered, proposed, and sensitive species populations and their habitat for the proposed treatment area.
Id. at p. 4 (emphasis in original). The effect of this supplement was to delete from the 1990 Ozark/Ouachita VMEIS any mention of PETS "inventory" or further collection of PETS data and to state that "available [PETS] information" would be considered to determine the effect of a project on PETS.
At the same time that the Supplement to the 1990 Ozark/Ouachita VMEIS was adopted, Amendment 31 to the Ouachita Forest Plan was replaced with Amendment 35 (October, 2002). Whereas Amendment 31 had emphasized guidelines for collecting new PETS data while also making the decision to collect new data more clearly discretionary, Amendment 35 simply stated:
A biological evaluation of how a project may affect any species Federally listed as threatened, endangered or proposed, or identified by the Forest Service as sensitive shall be done as part of the site-specific environmental analysis. This evaluation considers available information and sensitive species populations and their habitat for the proposed treatment area.
[Admin. Rec. IV, tab 9].
On December 20, 2002 Plaintiffs filed an administrative appeal of Defendants' approval of the Supplement to the VMEIS. Plaintiffs complained that "these exceedingly short documents contain no serious attempt to explain the proposed plan amendments, or to analyze the environmental impacts of this proposal, or to consider alternatives to the proposal." [Admin. Rec. IV, tab 16]. Plaintiffs objected to the supplement on grounds that it: (1) failed to state its purpose and need, as required by NEPA; (2) failed to consider the connected action of amending the Forest Service Manual; (3) considered an inadequate range of alternatives; (4) provided a deficient analysis of environmental impacts; and (5) had a predetermined outcome.
The Forest Service rejected Plaintiffs' appeal on July 10, 2003. [Admin. Rec. IV, tab 19]. Plaintiffs then amended their complaint in this case to add the claims which Plaintiffs had raised in their administrative appeal pertaining to the 2002 Supplement to the 1990 Ozark/Ouachita VMEIS. The 2003 amended complaint also challenged the approvals of specific projects in the Ouachita National Forest the Wildhorse Creek Project and the Oliver Branch Project which were approved after Amendment 31 to the Forest Plan had been adopted but before Amendment 35 or the 2002 Supplement to the 1990 VMEIS became effective.
In December, 2003, Plaintiffs moved [# 33] for a temporary restraining order to enjoin the projects at Wildhorse Creek and Oliver Branch. The court denied this motion in May, 2004, finding that Plaintiffs had failed to demonstrate a substantial likelihood of success on the merits. The two projects and their administrative review history are described as follows:
Wildhorse Creek Project
The Wildhorse Creek Project (LeFlore County, Oklahoma) was announced in January of 2002. [Admin. Rec. I, p. 34].[7] The project includes 2,323 acres of preparatory thinning for uneven age timber management, 70 acres of single tree selection *1363 cutting, 148 acres of group selection/thinning, 218 acres of site preparation burn and chain saw felling, 404 acres of wildlife stand improvement/release and 4,883 acres of wildlife prescribed burn. In July 2002, the Forest Service issued an environmental assessment ("EA") and a biological evaluation ("BE") of the Wildhorse Creek Project [Admin. Rec. I, p. 92 and p. 152].[8] The Wildhorse Creek Project is in the Oklahoma Ranger District, Choctaw Unit.
The Wildhorse Creek BE listed each of the 77 proposed, endangered, threatened and sensitive species (the sensitive species were drawn from the Regional Forester's sensitive species list) "known to occur within or near the Oklahoma Ranger District". [Wildhorse Creek BE, Admin. Rec. I., at p. 153]. The BE listed whether each species was known to exist "Within the Project Area," or "Not Within but Suitable Habitat Present." No species were listed as "Within the Project Area," but twelve species were listed in the second "Not Within but Suitable Habitat Present" category. In other words, there was a possibility that the twelve species could be present. These PETS species were the American Burying Beetle, Indiana Bat, Diana Fritillary (an insect/butterfly), Bachman's Sparrow, Rich Mountain Slit-Mouth Snail, Rich Mountain Salamander, Eastern Small-footed Bat, Ouachita Leadplant, Ozark Chinquapin, Ouachita Goldenrod, Ozark Spiderwort, and Ozark Least Trillium.[9]
For each of these twelve species the BE contained a discussion of their environmental baseline, noting the type of environment preferred by each of them. The baseline evaluation was based on a variety of existing data and information. For example, the BE discussed a range of caves in which the Indiana Bat was known to hibernate during winter months. Surveys found 7 bats there in 1991, one in 1993 and four in 1995. Winter surveys in 1997, 1999 and 2000 located no bats. Summer surveys in 1995 and 1997 failed to reveal any bats. These caves are not in the project area, but are in the Choctaw Unit. The same kinds of existing data were reviewed regarding each of the twelve species. For many of the twelve species the BE noted past surveys in which the surveyor had been unable to find any samples of the particular species.
The Wildhorse Creek EA relied on the BE and found that no PETS species were known to occur within the proposed project area. Moreover, even if the American Burying Beetle or the Indiana Bat were present in the proposed project area, the Wildhorse Project would have no adverse effect on them. The EA concluded that if any of the sensitive species were present *1364 in the proposed project area, the project "may impact individuals but is not likely to cause a trend toward federal listing or a loss of viability". [Admin. Rec. I, p. 135].
In a Decision Notice and Finding of No Significant Impact[10] made on July 26, 2002, the District Ranger for the Oklahoma Ranger District determined that the Wildhorse Creek Project should proceed. He determined that the project would have no significant impact on the quality of the human environment and that the project would not adversely affect protected species.
On September 9, 2002, the Ouachita Watch League appealed the District Ranger's decision on a number of grounds. [Admin. Rec. I, p. 272]. The appeal did not complain about the illegality of Amendment 31.[11] The Ouachita Watch League contended that the EA failed to provide baseline sensitive species numbers as required by the Martin decision. [Admin. Rec. I, p. 274]. Regarding the claimed inadequacy of data for PETS and so-called "MIS" species,[12] the appeal stated:
The Project Activities are likely to jeopardize the viability of species that find optimal habitat in interior forests on the Ouachita National Forest.... These include threatened, endangered, and sensitive species, as well as management indicator species. These species include the gray squirrel, Indiana bat, pine warbler, worm-eating warbler red-eyed vireo, Acadian flycatcher, ovenbird, pileated woodpecker, as well as plant species. Of those bird species listed, several have exhibited statistically significant population declines since 1996, including the Acadian flycatcher, ovenbird, loggerhead strike [sic], and pileated woodpecker.
For many of these species, the Forest Service has no up-to-date population data describing population numbers, locations or trends nor monitoring data on which the agency can rely to determine that the actions proposed in the context of Project activities will maintain numbers and distribution of these species sufficient for issuing long term viability.
[Admin. Rec. I, p. 279].
The Watch League appeal did not mention any of the twelve PETS species which the District Ranger had found were possible residents of the Wildhorse project site, with the sole exception of the Indiana bat.
The Regional Forester affirmed the District Ranger's decision that the Wildhorse Creek Project should proceed. [Admin. Rec. I, p. 300]. He found that the project *1365 would have no significant impact on the human environment; hence, no environmental impact statement was required. He also found that the project methods would not adversely affect protected species. He noted that the biological evaluation for the project reviewed "Baseline, site-specific survey information for two federally listed species and ten sensitive species in the project area" (i.e., PETS), citing pages 7-29 of the BE. [Admin. Rec. I, p. 309]. The appeal decision concluded that proper procedures had been followed.
At the time the Regional Forester affirmed the Wildhorse Creek Project, the original 1990 Ozark/Ouachita VMEIS and Amendment 31 to the Ouachita Forest Plan were in force; neither the 2002 Supplement to the VMEIS nor Amendment 35 to the Ouachita Forest Plan were in effect.
Oliver Branch Project
The Oliver Branch Project (Scott County, Arkansas) was announced in October, 2001. [Admin. Rec. II, p. 115]. This project includes timber harvest from approximately 362 acres of shelter wood, 2,099 acres of thinning, construction of 16 wildlife ponds, and prescribed burning on 5,329 acres. In July 2002, the Forest Service issued an environmental assessment ("EA") and a biological evaluation ("BE") for the project. The Oliver Branch project is located in the Poteau Ranger District.
The Oliver Branch BE listed the PETS species known to exist in the Ouachita Forest. The Forest Service concluded that fourteen of them were or might be present within the project area, either because they were known to be present or because the project area had suitable habitat for them. [Oliver Branch BE, Admin. Rec. II, at p. 470]. The fourteen specified included three endangered species (Red Cockaded Woodpecker, Indiana Bat, American Burying Beetle), one threatened species (Bald Eagle), and ten sensitive species (Bachman's Sparrow, Diana Fritillary, Kiamichi Shiner, Louisiana Fatmucket, Southern hickorynut, Ouachita Creekshell, Ouachita False Indigo, Narrowleaf Ironweed, Sand Grape, and Waterfalls' Sedge).
The BE discussed existing data and known populations of each of these fourteen species, noting the type of environment preferred by each of them. For example, after describing the Red Cockaded Woodpecker's preferred habitat, the BE noted that the Poteau Ranger District has prepared annually since 1990 a table summarizing numbers of adult woodpeckers and the nesting habits of the woodpecker. The BE also discussed basic biological and population data for the woodpecker concerning its population in the broader region (the Ouachita National Forest and nearby forested areas). The Oliver Branch BE noted numerous situations where surveys had been unable to find any samples of certain other sensitive or threatened species.
The District Ranger for the Poteau Ranger District issued a Decision Notice on July 18, 2002, finding that the Oliver Branch Project would have no significant impact on the quality of the human environment. [Admin. Rec. II, p. 397]. He also found, quoting the findings of the BE, that the project was not likely to adversely affect the Red Cockaded Woodpecker. He noted that the American Burying Beetle was not found in the project area, although it had been in found low numbers in neighboring counties; in any event, the proposed project would not adversely affect the beetle if it was present. Similarly, he found that the Bald Eagle was not known to exist within the project area, although a Bald Eagle nest had been found on Lake Hinkle (apparently a nearby lake) in 2002; further, the Bald Eagle would not be adversely affected by the project activities. He found that the Indiana Bat had never been located in the proposed project area and that "summer surveys in the Ouachita *1366 have failed to locate any individuals" though the bats appeared to be breeding in the Ozark Mountains in Arkansas; thus, he classified the Indiana Bat as a possible resident of the project area but found that the project activities would not harm the bat if it was present. He found that the project would likely have a beneficial effect on the Bachman's Sparrow and the Diana Fritillary, which were known to be located in the project area.
On August 29, 2002, an administrative appeal was filed by Plaintiff Forest Conservation Council and Jerry Williams. [Admin. Rec. II, p. 429]. The appeal made a number of claims, but did not mention the illegality of Amendment 31. The appeal specified in relevant part:
The Project Activities are likely to jeopardize the viability of species that find optimal habitat in interior forests on the Ouachita National Forest, forests with well-developed structures, and forests naturally disturbed. These species include the gray squirrel, Indiana bat, pine warbler, worm-eating warbler red-eyed vireo, Acadian flycatcher, ovenbird, pileated woodpecker, as well as plant species. Of those bird species listed, several have exhibited statistically significant population declines since 1996, including the Acadian flycatcher, ovenbird, loggerhead strike [sic], and pileated woodpecker.
For many of these species, the Forest Service has no up-to-date population data describing population numbers, locations, and trends, nor monitoring data on which the agency can rely to determine that the actions proposed in the context of Project Activities will maintain numbers and distribution of these species sufficient for insuring long term viability.
[Admin. Rec. II, p. 436].
The Regional Forester issued his written decision in the appeal on October 15, 2002, determining that the project should proceed. [Admin. Rec. II, p. 459]. At this time Amendment 31 to the Ouachita Forest Plan and the 1990 Ozark/Ouachita VMEIS were still in effect; the 2002 Supplement to the 1990 VMEIS and Amendment 35 to the Ouachita Forest Plan still were not operative. The Regional Forester quoted the BE and determined that there was sufficient "base line, site specific, survey information for PETS species in the project area". He found that the District Ranger had correctly determined that project activities would not adversely affect protected species.
B. Legal Overview
The provisions of two major environmental statutes, the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-1687, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347, and their accompanying regulations are involved in this case. Neither statute provides a private cause of action to plaintiffs. The Court's jurisdiction arises solely under the Administrative Procedure Act, 5 U.S.C. § 701-706, which authorizes federal district court review of final agency actions upon completion of any required administrative review. This Court's role is to determine whether any of the challenged actions by the Forest Service were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). The basis for Plaintiffs' claims that these actions were arbitrary and capricious is their contention that they were inconsistent with the requirements of NEPA and NFMA.
NFMA details the manner in which the Agriculture Department oversees and manages the National Forest System. The requirement that the Forest Service develop and comply with Forest Plans in *1367 each national forest derives from NFMA. 16 U.S.C. § 1604(a); 36 CFR § 200.1(c)(2). NEPA requires that all federal agencies review the environmental ramifications of "major federal actions" which will have a "significant effect on the human environment" before they are implemented; the requirement to develop environmental impact statements derives from NEPA. 42 U.S.C. § 4332.
NFMA requires the Forest Service to develop a Land Resources Management Plan (commonly known as a Forest Plan) for each national forest. 16 U.S.C. § 1604(a). The Forest Service is then required to ensure that the forest is managed in compliance with the Forest Plan. See 36 C.F.R. § 219.10(e).[13] Specific projects, such as the Oliver Branch and Wildhorse Creek projects, must be analyzed by the Forest Service; the analysis must show that each project is consistent with the plan. See 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e).
While NFMA imposes substantive duties upon the Forest Service namely, to comply with the terms of the relevant Forest Plan when taking action within a given forest NEPA "imposes procedural but not substantive requirements" on federal agencies. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 546 (11th Cir.1996). "NEPA does not work by mandating that agencies achieve particular substantive environmental results," Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), but rather by requiring that agencies study and consider the environmental consequences of proposed actions before the actions are taken.
NEPA requires that federal agencies prepare an environmental impact statement as part of any "proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(c); Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). Among other things, the EIS must discuss the environmental impact of the proposed action, including unavoidable adverse effects of the proposal, and must consider alternatives to the proposed action. 42 U.S.C. § 4332(2)(c).
In order to determine whether a proposed action is a "major" one which "significantly" affects the human environment, agencies may first produce a much shorter document, known as an environmental assessment. 40 C.F.R. § 1501.4. "The purpose of an EA is to `[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.'" Hill v. Boy, 144 F.3d 1446, 1450 (11th Cir.1998) (quoting 40 C.F.R. § 1508.9(a)(1)). A "finding of no significant impact" or "FONSI" is the determination that an EIS is not required.
In reviewing the government's NEPA compliance, a court's duty is not to guarantee any particular outcome, but rather "to ensure that the agency took a `hard look' at the environmental consequences of the proposed action." Sierra Club v. U.S. Army Corps of Engineers, 295 F.3d 1209, 1216 (11th Cir.2002). To satisfy its `hard look' duty, "the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotation omitted).
*1368 As stated above, the Administrative Procedure Act ("APA") provides the framework for review for all of Plaintiffs' claims. The APA's standard of review is highly deferential: agency action must be affirmed unless that action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). To assess whether the agency acted arbitrarily and capriciously, "the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). "Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Id.
C. Plaintiffs' Claims
Plaintiffs' Amended Complaint contains seven claims for relief. Count I alleges that the PETS data collection requirement in the 1990 Ozark/Ouachita VMEIS is mandatory and that Defendants violated the Administrative Procedure Act by allegedly ignoring this requirement.
Count II alleges that Defendants violated NEPA and the APA because they failed to supplement the 1990 Ozark/Ouachita VMEIS before, rather than after, amending the 1990 Ouachita Forest Plan to delete Amendment 3 and add Amendment 31. Count II also alleges that the environmental assessment for Amendment 31 was deficient because it failed to address the inconsistency between Amendment 31 and the 1990 VMEIS.
Count III alleges that Defendants violated NEPA and NFMA by failing to prepare an environmental impact statement, as opposed to just an environmental assessment, for Amendment 31 to the Ouachita Forest Plan.
Count IV alleges that Defendants violated NEPA by adopting revised Forest Plans for the National Forests of Florida and one National Forest in Louisiana without mentioning the proposed modification of the PETS requirements in the draft environmental impact statements for these revised forest plans.
Count V alleges that Defendants violated NEPA and the APA by preparing environmental assessments for forest plan amendments in such a way that public participation was excluded.
Count VI alleges that Defendants violated NEPA and the APA because the process by which the Supplement to the 1990 VMEIS was adopted was arbitrary and capricious in that the Supplement failed to state its purpose; failed to address related actions; considered an inadequate range of alternatives; and generally failed to take a "hard look" at foreseeable environmental impacts.
Count VII alleges the Wildhorse Creek and Oliver Branch projects were unlawful because they were approved pursuant to Amendment 31 of the Ouachita Forest Plan which was unlawful for reasons asserted in prior counts of the complaint, and also because adequate PETS data and Management Indicator Species (MIS)[14] data for the Forest and for the two project areas allegedly was lacking.
D. Exhaustion of Administrative Remedies
In order to invoke the APA to challenge agency action, a litigant must first *1369 exhaust any administrative remedies made explicitly mandatory under the relevant substantive law. 5 U.S.C. § 704; Darby v. Cisneros, 509 U.S. 137, 154, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993). The exhaustion requirement promotes judicial efficiency by allowing an agency to exercise its discretion and apply its expertise prior to judicial involvement. McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969).
The U.S.D.A. Reorganization Act of 1994, section 212(e) provides that "a person shall exhaust all administrative appeal procedures established by the Secretary or required by law before the person may bring an action in a court of competent jurisdiction against (1) the Secretary; (2) the Department; or (3) an agency, office, officer, or employee of the Department." 7 U.S.C. § 6912(e).[15] Because the Forest Service is a division of the Agriculture Department, Plaintiffs were required to exhaust administrative remedies prior to challenging the Forest Service in court. Thus Congress has placed an explicit statutory exhaustion requirement on challenges to Forest Service activities, including lawsuits alleging that a Forest Plan was adopted in violation of NEPA. See, e.g., Kleissler v. U.S. Forest Service, 183 F.3d 196 (3rd Cir.1999).
Based on a review of Plaintiffs' administrative filings, the Court concludes that administrative remedies have been exhausted as to the claims in these counts: I, II, III, VI and a portion of Count VII. The status of Count IV, which deals only with the National Forests in Florida and a National Forest in Louisiana, is discussed separately in Part II below.
Defendants are correct that Plaintiffs are barred from raising the claims appearing in Count V because they failed to exhaust remedies relevant to those claims. Count V alleges that "the public was left out of the [Amendment 31] decision-making process in violation of NEPA." [Pls.' Compl., ¶ 53]. During the administrative appeals process, Plaintiffs made no objection even resembling a criticism of the public participation process for Amendment 31. In fact, Plaintiffs' appeal of Amendment 31 even asserts that "[n]umerous parties made public comment to the Forest Service in opposition" to the proposed amendment. [Admin. Rec. IV, tab 6, p. 5]. As such, Count V will not be considered on the merits.
While the Court agrees with Plaintiffs that the claims pertaining to Amendment 31 contained in Counts II and III have been exhausted administratively, this determination deserves separate comment.
Defendants argue that Plaintiffs cannot challenge Amendment 31 because Plaintiffs failed to object to Amendment 31 during the administrative appeals of the Oliver Branch and Wildhorse Creek projects. Although Defendants are correct that Plaintiffs did not mention Amendment 31 during their project-specific appeals, Amendment 31's adoption included its own administrative appeals process, which took place separately from and prior to Plaintiffs' appeals of the two projects. At that time, Plaintiffs did appeal the adoption of Amendment 31, raising objections nearly identical to Counts II and III of their current complaint, i.e. that Amendment 31 required an environmental impact statement and that the PETS language of Amendment 31 contradicted the PETS language of the 1990 Ozark/Ouachita VMEIS.
*1370 Defendants assert without further discussion that Plaintiffs' timely appeal of Amendment 31 "does not support a finding that Plaintiffs exhausted their administrative remedies." [Defs.' Mot. for Summ. J., at p. 35]. With respect to Counts II and III, the Court disagrees. The purpose of exhaustion doctrine is to ensure that the agency has the opportunity to address objections and correct errors prior to judicial involvement. McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). The fact that Plaintiffs made their objections prior to and apart from their appeals of the Oliver Branch and Wildhorse Creek projects is of no import. The exhaustion doctrine does not require Plaintiffs to raise repeated and futile appeals already rejected by the agency. McKart, 395 U.S. at 200, 89 S.Ct. 1657.
With respect to Count VII, the Court finds that Plaintiffs' species-specific MIS and PETS claims are preserved only as to the species named in the administrative appeals for the two projects. Because only two of the species were PETS or MIS for the Ouachita National Forest in the relevant time frame, as a practical matter this means that only those two Indiana bat (PETS) and the Pileated Woodpecker (MIS) will remain for consideration on the merits.
As noted above, the purpose of the exhaustion doctrine is to ensure that the agency has the opportunity to address objections and correct errors prior to judicial involvement. McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). Given that there are over one hundred MIS and PETS species in the Ouachita National Forest, Plaintiffs' general administrative objection to a lack of sufficient data or monitoring information cannot suffice to put the agency on notice about specific objections to the Forest Service's data on species not named. Instead, Plaintiffs' objections seem to have functioned more as a place marker so that Plaintiff might later look for data deficiencies to challenge in court.
"[A]dministrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that `ought to be' considered and then, after failing to do more to bring the matter to the agency's attention, seeking to have that agency determination set aside in Court." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978).
E. Ripeness
Before proceeding to analyze Plaintiffs' claims, the Court must also consider the issue of whether each claim is ripe for adjudication. In Ohio Forestry Association v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998), the Supreme Court held that because forest plans are broad, programmatic documents which represent "tools for agency planning and management", an attack on a Forest Plan is not ripe for review until it is presented in the context of a specific proposed project wherein the end product of the plan is presented in a concrete way. Because NEPA, unlike NFMA, "simply guarantees a particular procedure, not a particular result", the Court stated in dicta that "a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper." Id. at 737, 118 S.Ct. 1665.
While the Supreme Court's statement concerning a failure to comply with "the NEPA procedure" is straightforward, it is not self-explanatory. The Court may have been referring only to a failure to prepare *1371 an environmental impact statement (or environmental assessment). On the other hand, the Court may have been referring to other, broader NEPA claims such as the claimed failure of the environmental impact statement to take a "hard look" at the environmental consequences of an issue before deciding it. This latter type of challenge is close to being substantive; the former are not.
In this case, some of Plaintiffs' claims are clearly ripe for review because they are tied to the Wildhorse Creek and Oliver Branch projects which now are before the Court for review. It does not matter whether these claims are classified as substantive or procedural. This includes the claims in Counts I, II, III and VII.[16]
Upon consideration the Court finds that Plaintiffs' NEPA claim in Count VI is not ripe for review. It is not tied to any specific project and is as much substantive as it is procedural in nature. In Count VI, Plaintiffs contend that Defendants violated NEPA and APA because the process of adopting the 2002 Supplement to the 1990 Ozark/Ouachita VMEIS was arbitrary and capricious, in that the Supplement failed to state its purpose; failed to address related actions; considered an inadequate range of alternatives; and generally failed to take a "hard look" at the foreseeable environmental impacts of Amendment 35 and the Supplement itself.
While it would not be difficult to determine whether the Supplement properly stated its purpose and properly addressed any related actions, the question of whether the Supplement took a "hard look" at foreseeable environmental impacts is much more complicated because the substantive and procedural aspects of this question are inextricably intertwined.
In this case, the 1990 Ozark/Ouachita VMEIS is a combination document. It is both a regional planning guide for vegetation management and it is an environmental impact statement which evaluates the methods adopted in the plan.[17] Similarly, the 2002 Supplement to the VMEIS is both substantive and procedural. The Supplement modifies certain substantive language in the 1990 VMEIS pertaining to a "mitigation method". It also evaluates the significance of this change and determines that it is not significant. Amendment 35 to the Ouachita Forest Plan, which is attached to the 2002 Supplement to the VMEIS, contains the identical substantive change in the language of the Forest Plan. Determining whether the 2002 Supplement takes a "hard look" at the environmental effects of Amendment 35 is impossible without envisioning actual potential applications of Amendment 35. Any analysis the Court might do at this time would necessarily be hypothetical and conjectural to the degree that the Court would only be guessing at how this change might relate to a specific project. In addition, the Court has no evidence that any planned project relies on Amendment 35 or the 2002 Supplement to the VMEIS. Finally, it is likely that the Forest Service has just enacted a new Ouachita Forest Plan and an accompanying environmental impact statement, which might or might not have an impact on the vegetation management techniques addressed in the 1990 VMEIS. For all these reasons, the Court holds that Plaintiffs' challenge to the 2002 Supplement to the VMEIS is not ripe for *1372 adjudication at this time, but remains too hypothetical and conjectural. See also Lujan v. National Wildlife Federation, 497 U.S. 871, 891, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Wilderness Society v. Alcock, 83 F.3d at 386 (11th Cir.1996). Therefore, this claim is dismissed without prejudice and will not be addressed on the merits in this order.
F. Merits Analysis of Plaintiffs' Claims
Counts I, II, III and VII will be analyzed on the merits.
1. Count I
In Count I Plaintiffs contend that Defendants' failure to maintain appropriate population inventory data for PETS in the Forest violated the Administrative Procedure Act. "As a procedural statute, the APA does not expand the substantive duties of a federal agency, but merely provides the framework for judicial review of agency action. Accordingly, there is no right to sue for a violation of the APA in the absence of a relevant statute whose violation forms the legal basis for the complaint." Sierra Club v. Martin, 110 F.3d 1551, 1555 (11th Cir.1997)(internal citations omitted). Count I mentions only the APA and does not specifically mention NFMA or NEPA as a basis for relief. As such, Count I must be dismissed for failure to state a claim. Nonetheless, the Court will consider these claims as part of its analysis of Count VII.
2. Count III
Count III of Plaintiffs' complaint contends that because Amendment 31 was a "significant" amendment to the 1990 Ouachita Forest Plan, both NFMA and NEPA required the Forest Service to complete an environmental impact statement evaluating its potential impact, rather than just an environmental assessment.
NFMA grants the Forest Service wide discretion to amend a Forest Plan. 16 U.S.C. § 1604(f)(4). The regulations stipulate that "the Forest Supervisor shall determine whether a proposed amendment would result in a significant change in the plan." 36 C.F.R. 219.10(f). If the amendment is "significant", the Forest Service must undertake the same procedure required to adopt a Forest Plan, including completion of an environmental impact statement. Id. Count III alleges that the Forest Service arbitrarily failed to explain the determination that Amendment 31 was insignificant and that the conclusion that no EIS was required was arbitrary and capricious.
Plaintiffs' initial contention that the Forest Service failed to address whether Amendment 31 was "significant" is incorrect. The Forest Service implicitly considered that question and concluded that the amendment was not significant. The Amendment 31 environmental assessment acknowledged that under the new PETS language, the Forest Service "would make greater use of existing data on species occurrences, habitat conditions, and species/habitat relationships in determining the level of surveys required." [Amendment 31 EA, Admin. Rec. IV, tab 3, p. 8] However, it also explained that this constituted nothing more than a clarification of the Forest Service's PETS duties. See [Amendment 31 EA, Admin. Rec. IV, tab 3, p. 4] ("This amendment does not diminish the requirement for `adequate population inventory'. The proposed amendment would allow the Forest Service to focus on collecting data on those species for which sufficient data are lacking."); [Amendment 31 EA, Admin. Rec. IV, tab 3, p. 14] ("This amendment ... will not change any management prescriptions or areas contained in the Forest Plan"). The fact that the EA did not include an explicit statement *1373 that the amendment was insignificant under NFMA is unimportant.
The crux of Plaintiffs' challenge to the lack of an environmental impact statement for Amendment 31 is that Amendment 31 represented far more than a mere "clarification" of the Forest Service's PETS duties. If Amendment 31 was a significant change, the Forest Service was required by NFMA to develop a full environmental impact statement prior to approving the amendment. 36 C.F.R. 219.10(f). In addition, if the amendment would have "a significant impact on the human environment" NEPA also required that an environment impact statement be prepared. 42 U.S.C. § 4332(2)(c).
The Court agrees with Defendants that Amendment 31 was not a significant amendment to the 1990 Ouachita Forest Plan. Therefore, under NFMA no environmental impact statement was needed.
To determine whether Amendment 31 was a significant change, it is necessary to define the point of beginning for the analysis. The Court's analysis begins with determining the meaning of the 1990 Ouachita Forest Plan's requirement (in Amendment 3) of "adequate population inventory information" on PETS occurring within a project site. The Eleventh Circuit in Martin applied this precise phrase in a case involving the Chattahoochee-Oconee Forest Plan, but did not interpret it. The Court of Appeals found that because "population inventory information" on PETS was so entirely lacking, the proposed projects in the Forest could not proceed. This court interprets Martin as saying, in effect, "Regardless of precisely what the phrase `adequate population inventory information' means, the PETS data is so wholly lacking that it is inadequate under any interpretation." Therefore, this Court is free to interpret the "adequate population inventory information" phrase in the 1990 Ouachita Forest Plan (more specifically, in Amendment 3 to the Plan).
The key words "adequate", "inventory", and "information" are all important to the meaning of the phrase. "Adequate" implies that what is sufficient in one case might not be in another. Also, with respect to the word "adequate", the question must be asked, "adequate for what purpose?" Given that the inventory information phraseology in the Ouachita Forest Plan was literally lifted from the 1990 Ozark/Ouachita VMEIS and given the VMEIS's focus on the impact of different vegetation management techniques, it is obvious that "adequate" in essence means "adequate to predict whether the vegetation management techniques called for in the project plan will have an adverse impact on PETS within the project area." Thus, the phrase was never intended to establish an automatic requirement of a head-count or census of all PETS within the project area (or for that matter outside the project area) as a condition of approval of the project. The intent was to give adequate protection to PETS species residing within a given project site.
Turning to the meaning of "inventory information", the parties have pointed out that the word "inventory" can have different meanings. Plaintiffs, while protesting that "the methodology of the inventory is not at issue", suggest in their memorandum in support of their motion for summary judgment in the companion case, Forest Conservation Conservancy et al. v. Jacobs, et al., p. 25, footnote 5, that the correct definition is found in Merriam-Webster Online Dictionary 2004, as follows: "Inventory: (2) the quantity of goods or material on hand." Defendants, on the other hand, assert that the correct meaning in the context of this case is "a survey of natural resources" citing Merriam-Webster's Collegiate Dictionary 616 *1374 (10th ed.1996). [Defs.' Mot. for Summ. J., p. 25, fn. 10].
The Court finds the following definitions in Webster's Third New International Dictionary: for "inventory": "(1) an itemized list of current assets: as a) a written list or catalog ... b) a list or schedule of raw materials ... c) a survey of natural resources; specif: an estimate or enumeration of the wildlife (as game animals) of a region.... (2) a detailed study or recapitulation: survey, summary...." (Emphasis in original). Webster's Third New International Dictionary 1189 (1986).
Given its context, the Court believes that the use of the word "inventory" in the 1990 Ozark/Ouachita VMEIS and 1990 Ouachita Forest Plan did not mean a head-count or census of PETS species within a given project site; rather, it meant a measurement based on some type of estimating procedure. This conclusion is reinforced by the use of the word "information", which suggests something less than a strict inventory, such as would be used to count commercial goods.
Turning to the language of Amendment 31, the Court does not find significant differences in meaning though the format is different. The amendment discontinues the language "when adequate population inventory information is unavailable, it must be collected when the site has a high potential for occupancy by a threatened, endangered, proposed, or sensitive species." At the same time, however, the amendment continues to require a biological evaluation of how a particular project may affect protected species within the project site. It is implicit that "adequate" information is required for this purpose that is, adequate to determine whether PETS will be affected. The amendment adds that in certain cases, the analysis of potential effects on PETS may be based on an assumption that PETS exist in the project area and in such case no further survey for PETS is required. This type of analysis is sanctioned by Amendment 31 where (1) it is unlikely that a survey would detect the presence of the species; (2) established mitigation procedures are already in effect which will protect any PETS which are present from adverse effects; and (3) the habitat requirements of the species are well known and the actions proposed for the project will have beneficial effects or no adverse effects on PETS or any adverse effects are unlikely to cause the species to be federally listed or to suffer reduced viability.
Amendment 31 spells out what was implicit in the PETS language in Amendment 3 of the 1990 Ouachita Forest Plan. The amendment clarified that "adequate" data would not require actual data where the PETS in question were assumed to be present in the project area and where the project activities would not harm any PETS that were present.
Throughout Plaintiffs' complaint and briefs, Plaintiffs discuss the duty to review and collect data on PETS species as though the collection of data were an end in itself. Quite clearly, the purpose behind the PETS information requirement is to facilitate the protection of PETS species. Cf. Shenandoah Ecosystems Defense Group v. U.S. Forest Service, 194 F.3d 1305, 1999 WL 760226, *5 (4th Cir.1999) ("[t]he Forest Service is not required to maintain [PETS] inventories and data to [the plaintiff's] satisfaction, but only as necessary to make the decisions committed to its discretion")(quoting Krichbaum v. U.S. Forest Service, 973 F.Supp. 585, 592 (W.D.Va.1997)), aff'd, 139 F.3d 890 (4th Cir.1998). After Martin, the Forest Service chose to adopt Amendment 31 not to reduce the Forest Service's duty to protect PETS species, but rather to clarify the timing and circumstances under which additional data should be sought and to *1375 "make the greatest use ... of existing data and information." [Am. 31 FONSI, Admin. Rec. IV., tab 5, at p. 3].
It is easy to believe that Defendants never intended for Amendment 3 to the 1990 Ouachita Forest Plan to have the meaning Plaintiffs attribute to it. As a practical matter, Plaintiffs' interpretation would mean that the Forest Service had imposed upon itself an impossible burden to take a literal count of large numbers[18] of highly mobile, elusive species including fish and tiny species like the American Burying Beetle as a precursor to approving each and every project within the forest.
Such a requirement would bring Forest Service project planning to a standstill. Until a specific project is proposed within a forest, the contours of the project area are not known. As such, there is little chance that existing species data, even if extensive, would be specific to the proposed project area. Plaintiffs' interpretation of the PETS language in the 1990 VMEIS would therefore force the Forest Service to literally count each of the PETS insects, fish, plants, birds and other vertebrates within project areas of thousands of acres, even where the treatment methods proposed would have no adverse effect on protected species. Such a proposition is not just unreasonable. It is absurd.
An additional claim in Count III is that defendants' finding that Amendment 31 would have "no significant effect on the human environment", thus avoiding NEPA's requirement of the preparation of an environmental impact statement, was arbitrary and capricious. Plaintiffs have made no effort in their briefs to explain why the substitution of Amendment 31 for Amendment 3 would have a significant effect on the environment. Consistent with the discussion above determining that Amendment 31 was not a significant change to the Ouachita Forest Plan, the Court also finds that defendants' determination that the amendment would have "no significant impact on the human environment" was not arbitrary and capricious.
The nature of the data collection requirements and the environmental impacts of Amendment 31 are issues uniquely within the expertise of the Forest Service; its decisions are not to be overturned lightly. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). It was not arbitrary and capricious for the Forest Service to amend the original Forest Plan PETS language to state that new data would not be required where the project activities would not adversely affect species present or assumed to be present.
3. Count II
In Count II, Plaintiffs contend that the approval of Amendment 31 was arbitrary and capricious because the 1990 VMEIS continued to include the old PETS data collection requirement and also stated that "[e]ach forest may be more restrictive, but not less" than the VMEIS as to PETS protection. Based on this language, Plaintiffs argue that Amendment 31's alleged dilution of the PETS data collection requirement in the Ouachita Forest Plan was arbitrary and capricious because it contradicted a non-discretionary requirement still in effect in the 1990 VMEIS, thereby violating NEPA.
Plaintiffs point both to regulations and to cases from other jurisdictions supporting their contention that the Forest Service *1376 must implement mandatory mitigation measures appearing in an environmental impact statement. 40 C.F.R. § 1505.3 ("Mitigation ... and other conditions established in the environmental impact statement or during its review and committed as part of the decision shall be implemented"); see also, e.g., Heartwood, Inc. v. U.S. Forest Service, 230 F.3d 947, 949 (7th Cir.2000). Defendants counter that NEPA is a procedural statute that can impose no such substantive requirement. Defendants also argue that 40 C.F.R. § 1505.3 is applicable only to mitigation measures adopted as part of a specific project approval and not to generally applicable provisions like those in the VMEIS.
Whether or not Plaintiffs' claim is cognizable under NEPA, the Court has concluded that Amendment 31 did not significantly alter the Forest Service's obligation to protect PETS under the Ouachita Forest Plan. Since there are not important distinctions between the PETS requirements under Amendment 31 and those under the 1990 VMEIS, the failure to amend or supplement the substantially identical language in the 1990 VMEIS before adding Amendment 31 was of no consequence and was not arbitrary or capricious.
4. Count VII
Plaintiffs assert generally in Count VII of their complaint that the Oliver Branch and Wildhorse Creek projects were unlawful because the Forest Service approved them despite lacking adequate PETS inventory data and adequate Management Indicator Species (MIS) data. The complaint mentions no particular PETS or MIS species for which adequate data was lacking.
In response to Defendants' motion for summary judgment, Plaintiffs filed a brief which did not mention data inadequacies for any PETS or MIS species. In their memorandum in support of their motion for summary judgment, Plaintiffs asserted that the Oliver Branch project lacked "project area population inventories for Bachman's Sparrow, Diana Fritillary, Kiamichi Shiner or mollusks" and that the Wildhorse Creek project lacked "project area population inventories for Indiana Bat, Eastern Small-footed Bat, Diana Fritillary, Bachman's Sparrow, Rich Mountain Salamander and Rich Mountain Slit Mouthed Snail." [Pls.' Mot. for Summ. J., at p. 24-5]. Having made these assertions, Plaintiffs have provided no explanation or argument as to why the data is deficient as to any of these individual species. They merely point out that the data for each species must be examined separately, and that just because there may be sufficient data on one species, that does not mean that the data is adequate for another species.
Plaintiffs' claim of inadequate monitoring data for MIS is only mentioned in a footnote in Plaintiffs' memorandum in support of its motion for summary judgment as follows: "In addition, Management Indicator species data was not collected as required under Martin." [Pls.' Mot. for Summ. J., p. 25, fn. 3]. No particular MIS species is mentioned.
In the face of Defendants' motion for summary judgment, Plaintiffs' response as to MIS is inadequate. Defendants are entitled to summary judgment on this part of Count VII for that reason alone. It is Plaintiffs' responsibility to point out and describe claimed inadequacies, not to leave such inquiry to the Court's imagination. It is not the Court's responsibility to ferret out the information contained in the massive record on PETS and MIS species for the Ouachita National Forest to determine whether the Forest Plan requirements regarding PETS data were met, and whether regulatory requirements for MIS monitoring were met.
*1377 The only PETS species which is even mentioned both in Plaintiffs' briefs and in the administrative appeals is the Indiana bat[19] as to the Wildhorse Creek Project only. Therefore, Plaintiffs' NFMA PETS claim will be considered as to this species only.
The 1990 Ouachita Forest Plan considered the possibility that the Indiana bat might be found in the Forest, as follows:
Two species of endangered bats, the Indiana bat (Myotis sodalis) and the gray bat (Myotis grisescens) were previously listed as possibly occurring on Forest. Recent studies on the Forest's bat fauna have been completed in both Arkansas and Oklahoma. These studies included extensive mist netting of riparian areas and examination of known caves and abandoned mining drifts. Neither species was found.
* * * * * *
The Indiana bat also uses caves as hibernacula, but examination of caves and abandoned mining drifts did not reveal use by this species which has very narrow microclimate requirements. One specimen discovered hibernating in nearby Pushmataha County, Oklahoma, and reported in 1959, is generally considered a waif. There are no records of the Indiana bat occurring south of the Arkansas River in Arkansas. Data collected in other portions of the state where bats range indicates that the bat does establish maternity colonies within snags located in riparian areas. This is often some distance from hibernating caves, indicating this species should be considered to possibly occur on Forest lands during the maternity period, May-August. Snags used by two maternity colonies in Illinois, were of tree species commonly found in riparian areas of the Forest in both Arkansas and Oklahoma. Standards and guides for Management Area 9 will adequately protect riparian areas potentially used by this species, should it occur.
[1990 Ouachita Forest Plan, Admin. Rec. III, at IV-41].
The Forest Service's reasoning that the project activities for Wildhorse Creek would have no adverse impact on the bat, assuming it was present in the project site, was extensively laid out in the biological evaluation for this project as follows:
Evaluated Species Survey Information
* * * * * *
2. Indiana Bat
This species is known to occur within the Choctaw Unit, but is not known to occur within the Kiamichi, Broken Bow, or Tiak Units. This species is not known to occur within the proposed project areas, but suitable habitat exists within the proposed project area.
Glass and Ward (1959) first documented the Indiana bat in Oklahoma in two caves in Adair and Pushmataha Counties. Surveys for the Indiana Bat on the Oklahoma Ranger District began in 1989 with Saugey, et al (1990) finding seven hibernating Indiana Bats within Bear Den Caves at the west end of the Choctaw Unit. These caves have been surveyed several Times since then, with seven Indiana Bats being found in 1991, one being found in 1993, and four in 1995. No Indiana Bats were found during winter surveys of 1997, 1999, and 2000. Summer surveys at Bear Den Caves by Caire (1986) and Clark and Clark (1997) did not find Indiana Bats. Additional summer surveys completed on the Tiak Unit (Clark and Clark, *1378 1995), Choctaw Unit (Clark and Clark, 1995a), and Broken Bow Unit (Clark and Clark, 1997) did not find Indiana Bats. Caire (1986) did not find any Indiana Bats in his survey of 35 additional locations in Southeast Oklahoma.
No new surveys have been completed for this proposed project because the likelihood of detecting this species in a survey is small. This species is known to use Bear Den Caves during hibernation and is assumed to use the general forest area in that vicinity during spring and fall swarming periods.
* * * * * *
Environmental baseline information
* * * * * *
2. Indiana Bat
The Indiana Bat was listed as endangered in 1967. This is a migratory species with approximately 85% of the known population hibernating in seven caves (U.S. Fish and Wildlife Service, 1992). This species is found primarily in the midwestern and eastern United States. The largest populations are in Arkansas, Indiana, Kentucky, Missouri, and Tennessee. Eastern Oklahoma is at the western limit of its range, with known locations occurring in Adair, Delaware, LeFlore, and Pushmataha Counties.
During the summer months, Indiana Bats typically roost during the day in snags or living trees. Most roost sites are located beneath loose or exfoliating bark or in tree cavities. Preferred roost sites are in trees that are 22 cm (9 inches) or larger in dbh and are located in forested habitat where the degree of overstory canopy cover ranges from 60% to 80% (Romme, et al 1995). In general, the largest available trees with suitable bark characteristics and at least some daily exposure to sunlight are the most likely to be used by Indiana Bats as maternity roosts. The suitability of a given area as roosting habitat declines slightly as canopy closure increases from 80% to 100%, and also declines as canopy closure falls below 60% (Romme, et al 1995). Indiana Bats also use tree roosts during the autumn months prior to entering hibernation (Kiser and Elliott, 1996) and probably use them in the springtime as well. In addition, groups of adult males have been found roosting by day in summer in some caves that are also used as winter hibernacula.
* * * * * *
Effects analysis
* * * * * *
2. Indiana Bat and Eastern Small-footed Bat
Direct impacts to individuals or small groups of roosting bats may occur when trees are cut that harbor undetected roosts or as a result of the accidental felling of occupied snags, shagbark hickories, or damaged or hollow trees during timber harvest or site preparation. None of the areas proposed for timber harvest are located in hardwood or hardwood/pine forest types, which is the main habitat for these species. Because the timber harvest does not occur in preferred habitat, this would be expected to reduce the impact to any roosting bats.
The likelihood of cutting a tree containing a maternity colony or individual roosting bat is extremely low (U.S. Fish and Wildlife Service, 1999). This is due to the large number of suitable roost trees present on the Oklahoma Ranger District, the rarity of these species within Oklahoma, the wide dispersal of Indiana Bats, Eastern Small-footed Bats, and maternity colonies throughout these species' range, and the fact that there have been no maternity colonies found in Oklahoma.
*1379 Indirect effects are possible through removal of living trees or snags which have the potential to serve as roosts for maternity colonies or individual bats. Reduction in the density of mature trees could result in the loss or alteration of summer and prehibernation habitat. Timber harvest could also alter insect species composition and reduce the availability of certain insects causing the bats to search for alternate foraging habitat. Based upon the total amount of available habitat: within the Oklahoma Ranger District, this reduction would be a minimal effect.
Due to the proposed prescribed burning being cool season burns while most bats are hibernating, direct bat mortality due to loss of roost trees would be minimized. Smoke can also be a problem for winter hibernaculums when it is allowed to filter into the cave and disturb the hibernation period. This occurs when the smoke sinks into the hibernaculum. Bear Den Caves is approximately 6-10 miles west of the proposed project area. There would not be expected to be any direct effects to hibernating Indiana Bats or Eastern Small-footed Bats from the proposed prescribed burning (U.S. Fish and Wildlife Service, 1999). Prescribed burning would be expected to be somewhat beneficial through restoring and maintaining uncluttered open foraging pathways for the bats and allow easier access to roost trees.
Indirect effects to these bat species could result from the felling of snags during the prescribed burn itself or from dozer activity pushing over a snag near the fireline. This would cause the snags to be taken away from potential use as roost sites. Additionally, on warmer days in late winter, prescribed burns have the potential to disturb bats from their roost trees. This would cause the bats to fly and use energy they would otherwise be conserving. The possibility of an Indiana Bat or Eastern Small-footed Bat roosting within an area outside of Bear Den Caves during the cool season is highly unlikely given the biology and known distribution of these species.
The proposed low standard, intermittent service road construction would have no effect on the Indiana Bat or Eastern Small-footed Bat. These bats are not known to rest beneath leaf litter or use the forest floor to where they would be directly impacted through temporary road construction. The proposed intermittent roads would be planned to where trees removed within the proposed roadway would be removed for purposes of the timber sale and not the temporary road construction. Therefore, no additional mature trees beyond what is proposed for removal by the timber sale would occur for the creation of temporary roads.
There would not be any expected cumulative effects from implementation of the proposed project. The proposed project would not provide any long-term negative impacts to these bat species considering their mobility and extremely low population level. There are no known planned actions on private lands that would add to any cumulative effects.
* * * * * *
Determination of Effects:
* * * * * *
As documented in the Indiana Bat Biological Opinion (U.S. Fish and Wildlife Service, 1999), it is my determination that the proposed project is not likely to adversely affect the Indiana bat.
* * * * * *
In all cases where new information on threatened, endangered, or sensitive species within the project area is disclosed, appropriate mitigation measures *1380 will immediately be implemented as well as any necessary changes in project proceedings.
[Wildhorse Creek BE, Admin. Rec. I, at 158, 164, 175, 180].
Plaintiffs' obligation is to demonstrate that the Forest Service's reasoning as to the Indiana bat was arbitrary and capricious. The only argument expressly made by Plaintiffs is that Defendants did not conduct a separate "population inventory" of Indiana bats within the Wildhorse Creek project area. By "population inventory", Plaintiffs mean an actual count of bats obtained by a species survey within the population area. However, Amendment 31 sanctioned Defendants' decision not to conduct a species survey because it provided that a survey would not be required where the protected species were assumed to be present for purposes of the effects analysis, and no adverse effect was shown. Plaintiffs also argue that Amendment 31 was invalid; however, the Court has rejected that argument elsewhere in this order.[20]
II. Claims Pertaining to National Forests in Florida and Louisiana
In 1999 revised Forest Plans were enacted for the National Forests in Florida. Also, a revised Forest Plan was enacted for the Kisatchie National Forest in Louisiana. The revised Forest Plans[21] are not in the record, but the record does contain the Record of Decision for each revised plan, which is a short summary of the plans' contents. The Records of Decision each indicate that the revised plans were the outgrowth of new environmental impact statements. These environmental impact statements are not in the record, though they are referenced in the Records of Decision.
Plaintiffs argue that the revised Forest Plans and the environmental impact statements for the Florida National Forests and the Kitsachie National Forest in Louisiana are defective because "the language weakening the PETS monitoring requirements did not appear in the draft revised Forest Plans in these two states, nor was it mentioned in the draft EISes accompanying these revisions, nor was it mentioned or discussed in the final EISes accompanying the final revised plans, even though the weakened PETS monitoring requirements appeared in these final revised plans." [Pls.' Mot. for Summ. J., p. 13]. Plaintiffs refer in their brief to Exhibits Z-DD, identified as excerpts of relevant plan revision documents in Louisiana and Florida, but it is unclear whether these documents are in the record.
The Court is unsure how to assess Plaintiffs' argument. It is not obvious why, when Defendants enacted new Forest Plans with new environmental impact statements, the PETS provisions could not be different from those in the 1990 Regional VMEISs. For one thing, the record does not clarify whether the 1990 VMEISs as supplemented continued to exist after the new Forest Plans and environmental impact statements were enacted or whether they were a required point of reference for the new Forest Plans. Finally, the Court cannot, based on the sparse documentation provided, determine whether any differences between the drafts and *1381 final Revised Forest Plans and EISs were the product of improper procedures.
In any event, however, the Court agrees with Defendants that this claim is not ripe for review because it is not tied to any specific project as required under Ohio Forestry discussed above. Therefore, it must be dismissed without prejudice.
III. Claims Pertaining to National Forests in Georgia and Alabama
In 2000, an amendment was added to the Chattahoochee-Oconee Forest Plan (Amendment 18) and also to the Forest Plan for the National Forests in Alabama (Amendment 17) which were similar to Amendment 31 to the 1990 Ouachita Forest Plan, discussed above. In 2002, amendments were again added to the Chattahoochee-Oconee Forest Plan (Amendment 20) and the Alabama Forest Plan (Amendment 18) which were similar to Amendment 35 to the 1990 Ouachita Forest Plan. The record does not disclose whether any specific projects have been approved since the enactment of these amendments, though Plaintiffs do allude generally in their brief to the pendency of new projects.
In January 2004, revised Forest Plans were adopted for the National Forests in Alabama and also for the Chattahoochee-Oconee National Forest. These revised Forest Plans are not in the record, but the record does contain Records of Decision which summarize the content of the final environmental impact statement and the Revised Forest Plan in each case. [Admin. Rec. V, tabs 1 and 2].
Plaintiffs make the same arguments as to the amendments to the Chattahoochee-Oconee Forest Plan and the Alabama Forest Plan as they did regarding Amendment 31 of the Ouachita Forest Plan, discussed above. While the Court did rule on Plaintiffs' challenges to Amendment 31 on the merits, it cannot do so with respect to the challenges to the similar amendments to the other plans. Again, these claims are not ripe for review because no claims pertaining to a specific project approved pursuant to the guidelines established by these amendments have been made in this case. Therefore, they must be dismissed without prejudice.
IV. Claims Pertaining to the Appalachian Mountains Region and the Coastal Plains/Piedmont Region
In October 2002 the Forest Service supplemented regional VMEISs for the Appalachian Mountains Region and the Coastal Plains/Piedmont Region in the same manner as it supplemented the 1990 Ozark/Ouachita VMEIS to make it consistent with Amendment 31. Plaintiffs make the same argument as to these VMEIS supplements: that they did not constitute the "hard look" required by NEPA and that they were merely afterthoughts to make the VMEISs consistent with the language of the already adopted Forest Plan amendments regarding PETS data collection.
Here again, Plaintiffs have failed to attach this argument to any specific project which was analyzed after these supplemental EISs became effective. For the same reasons stated in Part I.D above, these claims are not ripe for judicial resolution and must be dismissed without prejudice.
CONCLUSION
In summary, Plaintiffs' Motion for Summary Judgment [# 52] is DENIED and Defendants' Motion for Summary Judgment [# 60] is GRANTED IN PART. Summary Judgment is GRANTED to Defendants with respect to Counts I, II, III and VII pertaining to the Ouachita National Forest. The claims in Counts IV and V are DISMISSED without prejudice. All claims pertaining to the National Forests in Florida, Louisiana (Kisatchie National *1382 Forest), Georgia and Alabama and claims pertaining to the Appalachian Mountains Region and the Coastal Plans/Piedmont Region are also DISMISSED without prejudice.
Plaintiffs have moved to supplement the Administrative Record [# 70] to add documents concerning Amendment 17 to the Georgia forest plans and Amendment 18 to the Alabama forest plans. The motion is unopposed and is GRANTED. Defendants' similar motion to supplement the Administrative Record [# 67] is also GRANTED. The parties' joint motion for oral argument [# 72] is DISMISSED AS MOOT.
NOTES
[1] The Ouachita National Forest is located in U.S. Forest Service Region Eight, also known as the Southern Region. The Southern Region includes Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, Puerto Rico, South Carolina, Tennessee, Texas and Virginia. Its headquarters is in Atlanta, Georgia.
[2] "PETS" is an acronym which describes federally protected species, i.e., proposed, endangered, threatened and sensitive species. A proposed species is one "that is proposed in the Federal Register to be listed under ... the [Endangered Species] Act." 50 C.F.R. § 402.02. An "endangered" species is "Any species that is in danger of extinction throughout all or a significant part of its range...." 16 U.S.C. § 1532(6). Endangered species are designated in the Federal Register.
A "threatened species" is "Any species that is likely to become an endangered species within the foreseeable future throughout all of a significant part of its range." 16 U.S.C. § 1532(20). Said species are designated in the Federal Register.
A "sensitive species" is any "plant [or] animal species identified by a Regional Forester for which population viability is a concern, as evidenced by: significant current or predicted downward trends in population numbers or density; or significant or predicted downward trends in habitat capability that would reduce a species' distribution." Forest Service Manual, at § 2670.5(19).
[3] NFMA requires the Forest Service to promulgate Forest Plans for all units of the National Forest system. 16 U.S.C. § 1604. Under NFMA, the 1990 Ouachita Forest Plan can last no more than 15 years; within that time a revised Forest Plan must be promulgated as well as a revised EIS. 16 U.S.C. § 1604(f)(5). By the Court's calculation, a new Forest Plan and new EIS for the Ouachita National Forest are now due, and probably have been created since the filing of the parties' briefs.
[4] The EIS for the 1990 Ouachita Forest Plan does not appear to be in the record.
[5] "A record of decision is a concise written rationale by the RFO [Responsible federal official] regarding implementation of a proposed action requiring an environmental impact statement." 7 C.F.R. § 650.4. The ROD must (1) state the decision made, (2) identify all alternatives considered, and (3) state "whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not." 40 C.F.R. § 1505.2.
[6] An Environmental Assessment, prepared pursuant to NEPA, is "a concise public document" which "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or [to issue] a finding of no significant impact." 40 C.F.R. § 1508.9(a)(1); see also Hill v. Boy, 144 F.3d 1446, 1450 (11th Cir.1998).
[7] Apparently, it had been previously announced in 2000 but was delayed. The process started again in January 2002.
[8] The biological evaluation was required by the 1990 Ozark/Ouachita VMEIS as well as by the Ouachita Forest Plan, both of which require the Forest Service to "perform biological evaluation on all projects to determine possible effects on threatened or endangered species, or on species proposed for such listing, or on sensitive species." [1990 Ozark/Ouachita VMEIS, at II-40; Ouachita Forest Plan, Admin. Rec. III, at IV-13]. The Endangered Species Act also requires that "[e]ach Federal agency shall ... insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary,... to be critical." 16 U.S.C. § 1536(a)(2). Because the Forest Plan and the Endangered Species Act both require an evaluation of the effect of the project as a whole on protected species, the biological evaluation is not limited to the effect of proposed "vegetation management methods".
[9] The American Burying Beetle and the Indiana bat are endangered species. The remaining species are sensitive species.
[10] A "decision notice" is a concise written record of a Forest Service official's decision on a particular matter based upon an environmental assessment and a finding of no significant impact. 36 C.F.R. § 215.2. A "finding of no significant impact" or "FONSI" is the determination that a full environmental impact statement is not required. 40 C.F.R. § 1501.4; Dep't of Transportation v. Public Citizen, 541 U.S. 752, 124 S.Ct. 2204, 2209-10, 159 L.Ed.2d 60 (2004).
[11] The appeal did complain of the illegality of Amendment 33, but not of Amendment 31. However, the claim regarding Amendment 33 has not been asserted in the instant lawsuit.
[12] In conducting forest planning the Forest Service is required to "estimate the effects of each [management] alternative on fish and wildlife" species that are selected "because their population changes are believed to indicate the effects of management activities." 36 C.F.R. § 219.19(a)(1). These species are known as "Management Indicator Species" ("MIS") because they act as indicators for the relative success of forest management.
In January 2005, the NFMA regulations found at 36 C.F.R. § 219 pertaining to MIS were repealed. See 70 F.R. 1023-1061 (Jan. 5, 2005). When citing 36 C.F.R. § 219, unless otherwise stated, the Court refers to the 1982 regulations that were in force until January, 2005, and therefore at the time the subject projects were approved.
[13] The relevant Forest Service regulations were recently revised, and 36 C.F.R. § 219.10(e) was deleted. See 70 F.R. 1023-1061 (Jan. 5, 2005). However, the overall framework requiring development of a forest plan remains in place.
[14] See note 12, supra. Plaintiffs' claims related to Management Indicator Species are addressed in greater detail in the companion case Forest Conservation Council et. al. v. Jacobs et. al.
[15] 36 C.F.R. § 215.20 provides that "unless waived in a specific case, it is the position of the Department of Agriculture that any filing for Federal judicial review of a decision subject to review under this part is premature and inappropriate unless the plaintiff has first sought to invoke and exhaust the procedures available under this part."
[16] Claims in Count IV which pertain to forests other than the Ouachita are addressed in the sections of this Order pertaining to those other forests. Count V is no longer before the Court because of failure to exhaust administrative remedies.
[17] Apparently there is no separate Vegetation Management Plan. If there is, it is not in the record.
[18] Because the sensitive species list varies from one Region to another, the total list of PETS for each forest varies. In July 2002 there were 77 PETS species possibly residing in the Ouachita National Forest. Thirteen were Endangered species. The rest were sensitive species designated by the Regional Forester.
[19] Most of the species mentioned in Plaintiffs' administrative appeals were neither PETS nor MIS for the Ouachita National Forest at relevant times. Only the Indiana Bat (PETS) and the Pileated Woodpecker (MIS) were.
[20] Even if Amendment 3 had been in effect, the decision not to seek additional "inventory information" for the bat was correct, because there was not a "high probability" that the Indiana bat was present in the project area as required by Amendment 3. Rather, there was a "possibility" that the bat would be present.
[21] The Court believes these are revised plans required by 16 U.S.C. § 1604(f), which states that each Forest Plan must be revised at least every fifteen years.
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78 So.3d 547 (2011)
CITY OF MIAMI
v.
FRATERNAL ORDER OF POLICE.
No. 3D10-3036.
District Court of Appeal of Florida, Third District.
December 22, 2011.
DECISION WITHOUT PUBLISHED OPINION
Prohibition denied.
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140 Cal.App.2d 233 (1956)
THE PEOPLE, Respondent,
v.
GEORGE VILLARICO, Appellant.
Crim. No. 3174.
California Court of Appeals. First Dist., Div. Two.
Mar. 26, 1956.
George Villarico, in pro. per., for Appellant.
Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, and John S. McInerny, Deputy Attorney General, for Respondent.
NOURSE, P. J.
Appellant was found guilty by a jury of two felonies as stated in an information in two counts, to wit robbery committed on March 18, 1955, armed with a deadly weapon on a certain Lum (Pen. Code, 211) and assault with intent to commit robbery perpetrated on March 17, 1955, on a certain Romero. (Pen. Code, 220.) His motion for a new trial was denied and he was sentenced to San Quentin, the two sentences to run concurrently. He appeals in propria persona from the judgment and from the order denying his motion for a new trial.
Appellant complains that he was not brought to trial within 60 days after the information was filed in contravention of section 1382, subdivision 2, of the Penal Code and article I, section 13 of the state Constitution, the filing of the information having occurred on April 11, 1955, and the trial having commenced on June 20th, 1955. However, the clerk's transcript shows that the trial was set for May 2, 1955, and thereupon continued "by consent" from May 2 to May 23 and from May 23 to June 20. [1] "The defendant's consent to the postponement of his trial is equivalent to a postponement on his application and is sufficient cause for the delay." (In re Lopez, 39 Cal.2d 118, 120 [245 P.2d 1].) [2] Moreover appellant did not move in the trial court for *236 dismissal on the ground of the delay and thereby waived the benefit of the provisions he now relies on. (People v. Hawkins, 127 Cal. 372, 374 [59 P. 697]; People v. Scott, 74 Cal.App.2d 782, 784 [169 P.2d 970].) Appellant's contention that he refrained from protesting the delay because of intimidation by police officers is not based on anything contained in the record. [3] Facts outside the record, stated in briefs only, cannot be considered on appeal. (People v. Croft, 134 Cal.App.2d 800, 804 [286 P.2d 479].)
[4] Appellant's contention that he was arrested on a complaint charging him with assault with intent to do bodily harm to Romero and other unclear grievances relating to illegality of the commitment are equally unsupported by the record and any such objection to the information was waived because not taken in the trial court by motion to set aside the information (Pen. Code, 995, 996; People v. Thompson, 133 Cal.App.2d 4, 9 [284 P.2d 39].)
[5] Double jeopardy, repeatedly urged by appellant is not involved in this case. Appellant was not twice tried or punished for the same offense, but for two separate offenses of the same class by one information in accordance with section 954 of the Penal Code. (See People v. Finkel, 94 Cal.App.2d 813, 817 [211 P.2d 888].)
Appellant's several grievances, as to alleged failure to prove the corpus delicti, conviction on perjured evidence known to be false, and misconduct of prosecution, court and jury have no specific basis and amount to no more than a contention that the evidence does not support the verdict and judgment. They are without merit.
The evidence showed the following: In the morning of March 18, 1955, shortly after 9:30 a. m. two men separately entered Lum's shop and after they had busied themselves a few moments in the shop one, which Lum later identified as the defendant, drew a gun, said it was a stickup, and pushed Lum to the back room, where the other man tied him up. Defendant, who had gone back to the shop, where later the cash register proved to have been emptied, came back to Lum, searched him and took from $175 to $200 from his pockets, after which both men ran away. Lum pointed out a portrait of defendant in the police files as possibly the robber with the gun and at the trial positively identified him as such.
On March 17, 1955, Romero, who was having supper in the kitchen behind his store together with his wife, his daughter *237 and his son-in-law Mikroulis, heard the store bell ring. When Romero went there a man threatened him with a gun and said, "This is a stick-up." Romero pushed him and they struggled on the floor. Another man kicked Romero in the ribs. When the others from the kitchen came into the shop the man with the gun hit Romero two or three times over the head with it and both men backed out of the shop. Romero and Mikroulis followed them. Romero, who was wounded, had to give up soon. He could not identify his assailants. Mikroulis pursued the men further; the two went different ways. Mikroulis caught up with one of them, the defendant. The defendant refused to go back with him and ran off. Mikroulis the next day pointed out a portrait of defendant in the police files as very much like the man he followed and later he identified defendant positively in a police line-up and at the trial.
Defendant was arrested on March 25 in his home, a small apartment next to the garage in the basement of 518 Pennsylvania Avenue, San Francisco. At the time of the arrest police inspectors searched the apartment, the garage and defendant's car parked in front of the house, and found and seized rope and electric wire similar to that with which Lum had been bound. Both the rope and wire with which Lum had been bound and those found at the search were introduced in evidence and an expert testified as to their similarity and to the fact that examination of the ends showed that the two pieces of rope had once been one and also the pieces of wire.
Defendant denied all connection with the crimes and he and the woman with whom he was living at the apartment testified that at the time of both crimes he was at the apartment taking care of the woman who was not well and at any moment expected the birth of defendant's child, which in the afternoon of March 18 was born in a hospital where defendant brought her.
[6] The above evidence proves all the elements of the two crimes with which defendant was charged and the fact that defendant was armed with a gun, a deadly weapon, caused the robbery perpetrated on Lum to be of the first degree (Pen. Code, 211a; People v. Rainey, 125 Cal.App.2d 739, 741 [271 P.2d 144].) [7] It is true that the testimony of Mikroulis proved only that defendant was one of the two men who attacked Romero, but even if he would have been the man who participated by kicking only, such would have constituted *238 an assault and from the statement of the other man the intent of both participants to rob clearly appeared. The credibility of the witnesses was for the jury. [8] The alibi evidence caused a conflict only with the testimony of Mikroulis and Lum, who saw defendant at the scene of the crimes, and the resolution of the conflict by the jury against defendant cannot be disturbed on appeal (People v. Mercer, 103 Cal.App.2d 782, 791 [230 P.2d 4].)
Appellant contends, however, that part of the evidence was illegal, because obtained by a search of his home without a warrant and that because of the influence of the illegal evidence reversal must follow. (People v. Berger, 44 Cal.2d 459 [282 P.2d 509]; People v. Tarantino, 45 Cal.2d 590, 595 [290 P.2d 505].) A motion to have the evidence introduced stricken because it was taken during illegal search and seizure was made in the trial court and denied. Correctly so. [9] A reasonable search without a warrant may be made as incident to a lawful arrest (People v. Winston, 46 Cal.2d 151, 161, 162 [293 P.2d 40]) and it is not important whether the search precedes or follows the arrest. (People v. Simon, 45 Cal.2d 645, 648 [290 P.2d 531]; People v. Boyles, 45 Cal.2d 652, 655 [290 P.2d 535].) Section 836, subdivision 3 of the Penal Code permits a peace-officer to arrest a person without a warrant "When a felony has in fact been committed and he has reasonable cause for believing the person arrested to have committed it." [10] The identification of defendant's portrait by two independent witnesses of the two similar felonies, even if not with certainty, prior to the arrest provided the required reasonable cause for believing that defendant was the robber. [11] "Probable cause is a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true" (People v. Brite, 9 Cal.2d 666, 687 [72 P.2d 122]). [12] Moreover, although no express permission of search was given neither the owner of the premises nor defendant or the woman present in his apartment, who all spoke to the police officers when the arrest and search were made, protested the search at any time during the action of the police officers, which circumstance may influence the reasonableness of the search. We hold that the search and the introduction of the wire and rope seized were not unlawful.
[13] Appellant also predicates prejudicial error on certain instructions given by the court as to assault with a deadly weapon and simple assault as lesser offenses included in the *239 charge of assault with intent to commit robbery. The instructions were correct. Appellant could have complained if they had not been given and therefore no possibility of conviction for the lesser offenses had been open to him. (People v. Duncan, 72 Cal.App.2d 423, 426 [164 P.2d 510].) That appellant was nevertheless found guilty of the higher offense cannot have been caused by the instructions complained of.
No separate grievances have been developed with respect to the denial of defendant's motion for a new trial.
Judgment and order affirmed.
Dooling, J., and Kaufman, J., concurred.
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263 Wis.2d 113 (2003)
2003 WI 86
665 N.W.2d 729
IN RE the COMMITMENT OF Harris D. BYERS:
STATE of Wisconsin, Petitioner-Respondent,
v.
Harris D. BYERS, Respondent-Appellant-Petitioner.
Nos. 99-2441, 00-0454.
Supreme Court of Wisconsin.
Oral argument January 21, 2003.
Decided July 3, 2003.
*114 For the respondent-appellant-petitioner there were briefs by Jack E. Schairer and Jefren E. Olsen, assistant state public defenders, and oral argument by Jefren E. Olsen.
For the petitioner-respondent there was a brief and oral argument by Kevin C. Greene, Brown County Assistant District Attorney.
*115 ¶ 1. ANN WALSH BRADLEY, J.
The petitioner, Harris Byers, seeks review of a decision of the court of appeals[1] affirming a judgment and order committing him pursuant to Wis. Stat. Chapter 980 (1997-98) to a secure mental health facility as a sexually violent person.[2] Byers asserts that a district attorney lacks authority to file a Chapter 980 petition unless the agency with jurisdiction has first requested the filing of a petition and the Department of Justice (DOJ) has declined. We agree and conclude that a request from the agency with jurisdiction and a subsequent decision by the DOJ not to file are prerequisites to a district attorney's authority to file a Chapter 980 petition. Accordingly, we reverse the court of appeals and remand the matter to the circuit court for dismissal of the petition.
I
¶ 2. Prior to Byers' release on parole in January of 1995, the Department of Corrections (DOC) evaluated Byers to determine his status under the sexually violent person commitment provisions of Chapter 980, Wisconsin Statutes. The doctor who performed the evaluation concluded that Byers did not meet the criteria for referral under Chapter 980. Another evaluation, conducted by a second doctor, took place in August of 1998 after Byers was revoked from parole and shortly before *116 his scheduled release date. This evaluation also concluded that Byers was not eligible for commitment. Consequently, the DOC did not request that a Chapter 980 petition be filed against Byers.
¶ 3. The DOC notified the Brown County district attorney that Byers intended to reside in Brown County after his release. The Brown County district attorney arranged for an independent evaluation of Byers by Dr. Raymond M. Wood. Dr. Wood opined that Byers met the criteria for a Chapter 980 proceeding. Based on this determination and the fact that Byers had been convicted for a "sexually violent offense," the Brown County district attorney concluded that Byers came within Chapter 980's definition of "sexually violent person."[3] The district attorney filed a Chapter 980 petition against Byers prior to his release date and requested a jury trial.
¶ 4. Byers moved to dismiss the petition claiming that the Brown County district attorney did not have the authority to file the Chapter 980 petition without the DOC requesting that such a petition be filed. He argued that the statutory scheme contemplated that the district attorney would not have authority unless the agency with jurisdiction requested the DOJ to file a petition and the DOJ declined to do so.
*117 ¶ 5. The circuit court concluded that the Brown County district attorney could file the petition even though there was no DOC request and subsequent decision by the DOJ declining to file. It noted that while the authority of the DOJ to file a Chapter 980 petition is conditioned upon a request from the agency with jurisdiction, there is no such condition on the authority of a district attorney.
¶ 6. Byers filed an interlocutory appeal contesting the circuit court's interpretation. The court of appeals denied review.
¶ 7. A jury trial commenced on the issue of whether Byers was a sexually violent person. On the second day of the trial, Byers agreed that he would admit that he was a sexually violent person in exchange for the district attorney's agreement not to oppose his request for conditional release.
¶ 8. At the dispositional hearing, the State did not oppose Byers' request for conditional release, but it also did not join the request. The court determined that institutional care was appropriate and ordered Byers committed to the Wisconsin Resource Center.
¶ 9. Byers appealed the circuit court's judgment and order for commitment. The court of appeals granted Byers' motion requesting remand to the circuit court for a hearing on the effectiveness of his trial counsel. He then filed a post-commitment motion with the circuit court asserting that his trial counsel was ineffective in connection with preserving for appeal the issue of the district attorney's authority. Based on testimony presented, the circuit court found that Byers' trial counsel advised him that this issue would be preserved despite Byers' admission and waiver of rights. The circuit court also found that Byers relied on this *118 advice and that he would not have made the admission if he had not been so advised.
¶ 10. The circuit court further found that the advice of the trial counsel was erroneous because, at the very least, the law is unclear regarding whether Byers could pursue the issue on appeal. Nevertheless, the circuit court concluded that Byers did not suffer any prejudice by the erroneous advice because it was satisfied that, even if the issue had been preserved, Byers would not have prevailed. The circuit court noted that § 980.02(1) was "poorly worded" but concluded that Byers would not have prevailed because the statute did not limit the authority of the district attorney to cases where the agency with jurisdiction has first made a request of the DOJ. The circuit court therefore denied Byers' post-commitment motion and Byers appealed this decision.
¶ 11. The court of appeals consolidated the appeals and addressed the issue of the Brown County district attorney's authority. It concluded that § 980.02(1) did not prevent the district attorney from filing the Chapter 980 petition against Byers. The court then rejected Byers' claims of ineffectiveness of counsel and the absence of a knowing and voluntary plea. It reasoned that these claims were based on Byers' ability to obtain appellate review of the issue of the district attorney's authority and the court of appeals had now addressed the issue. Accordingly, his ineffectiveness of counsel claim failed because there was no prejudice and his knowing and voluntary plea claim failed because any error was harmless since the court of appeals addressed the issue he sought to preserve. Therefore, the court of appeals affirmed the judgment and orders of the circuit court.
*119 II
[1]
¶ 12. This case provides us with an opportunity to examine the limits of a district attorney's authority to file a petition alleging that a person is subject to involuntary commitment under Chapter 980 as a sexually violent person. Specifically, we must resolve whether, under Wis. Stat. § 980.02(1), a district attorney may file a Chapter 980 petition only if the agency with jurisdiction has first requested the filing of a petition and the DOJ has declined to file.[4] The resolution of this issue is a matter of statutory interpretation which presents a question of law subject to independent appellate review. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997).
[2]
¶ 13. The goal of statutory interpretation is to discern the intent of the legislature. Id. at 406. We first analyze the language of Wis. Stat. § 980.02(1) to determine whether the legislature intended that a district attorney have authority to file only if the DOJ has declined to do so following a request by the agency with jurisdiction. We next examine the statute's legislative history, its purpose, and the policy reasons supporting the conclusion that the legislature intended to create a *120 significant gatekeeper role for the agency with jurisdiction. Finally, based on our analysis, we determine that the intent of the legislature in enacting § 980.02(1) was to require that there be a request of the agency with jurisdiction followed by a DOJ decision not to file before a district attorney has authority to file a Chapter 980 petition.
III
[3]
¶ 14. Chapter 980 creates an involuntary civil commitment procedure that is intended primarily to provide treatment for sexually violent persons and to protect the public. State v. Carpenter, 197 Wis. 2d 252, 258-259, 541 N.W.2d 105 (1995). Under Chapter 980, when a person who may meet the criteria for commitment as a sexually violent person is nearing release from confinement, the agency that will release the person (the "agency with jurisdiction")[5] is required to notify the DOJ and the appropriate district attorneys.[6] The appropriate district attorneys are the district attorney *121 for the county in which the proceeding occurred that resulted in the person's confinement and the district attorney of the county in which the person will reside upon release. In re Commitment of Goodson, 199 Wis. 2d 426, 437, 544 N.W.2d 611 (Ct. App. 1996).
¶ 15. The notice from the agency with jurisdiction must contain specified information including the person's offense history and documentation regarding any treatment.[7] The notice must be sent as soon as possible beginning three months prior to the person's release.
¶ 16. Under § 980.02(1), the authority to file a Chapter 980 petition is limited to the DOJ and the appropriate district attorneys. The language of § 980.02(1) provides as follows:
980.02 Sexually violent person petition; contents; filing. (1) A petition alleging that a person is a sexually violent person may be filed by one of the following:
(a) The department of justice at the request of the agency with jurisdiction, as defined in s. 980.015(1), *122 over the person. If the department of justice decides to file a petition under this paragraph, it shall file the petition before the date of the release or discharge of the person.
(b) If the department of justice does not file a petition under par. (a), the district attorney for one of the following:
1. The county in which the person was convicted of a sexually violent offense, adjudicated delinquent for a sexually violent offense or found not guilty of or not responsible for a sexuality violent offense by reason of insanity or mental disease, defect or illness.
2. The county in which the person will reside or be placed upon his or her discharge from a sentence, release on parole or extended supervision, or release from imprisonment, from a secured correctional facility, as defined in s. 938.02(15m), or a secured child caring institution, as defined in s. 938.02(15g), or from a commitment order.
(Emphasis added.) The parties agree that the agency with jurisdiction in this case is the DOC.
¶ 17. Byers argues that a request by the agency with jurisdiction and the subsequent declination of the DOJ are prerequisites to the district attorney's authority to file a Chapter 980 petition. This narrow interpretation of the district attorney's authority focuses on the introductory clause in par. (b) that states "If the department of justice does not file a petition under par. (a) . . . ." Byers advances that this clause reflects a statutory framework in which the district attorney's authority to file arises only if the DOJ has had the opportunity to file but has elected not to do so.
*123 ¶ 18. Under this interpretation, if there has been no request by the agency with jurisdiction, the DOJ does not have the opportunity to file a petition. Therefore, in such circumstances, the district attorney's authority is never triggered. Essentially, Byers argues that paragraph (b)'s reference to paragraph (a) incorporates into paragraph (b) the conditions set forth in paragraph (a). Since an agency request is a part of the procedure prescribed in paragraph (a), the request must occur before filing authority can be vested in the district attorney under paragraph (b). Byers maintains that to read the statute otherwise would essentially delete the words "under par. (a)" from the statute.
¶ 19. The State counters that an agency request is not a prerequisite to the district attorney's authority to file a Chapter 980 petition. Its broad interpretation of the district attorney's authority focuses on the prefatory clause to paragraphs (a) and (b) that states that a petition may be filed by "one of the following." Paragraph (a) allows the DOJ to file the petition pursuant to an agency request. Paragraph (b) allows a district attorney to file the petition if the DOJ has not filed a petition. The State advances that the only predicate to the authority of the district attorney to file is that a petition has not already been filed by the DOJ. To interpret the statute otherwise would require that the language "at the request of the agency with jurisdiction" be written into paragraph (b).
¶ 20. The reference to paragraph (a), according to the State, is simply a direction as to where the authority of the DOJ originates. It was not intended to incorporate the "at the request of the agency with jurisdiction" language as a limit on the district attorney's authority to file. The State argues that to read in such an intention ignores that the agency request language *124 appears in paragraph (a) but not in paragraph (b) or even in the introductory language to paragraphs (a) and (b).
¶ 21. The language of § 980.02(1) could have more clearly delineated the limits of the district attorney's authority. We agree with the circuit court that the statute is "poorly worded." If the legislature intended Byers' narrow interpretation, it could have repeated the "at the request of the agency with jurisdiction" language directly within paragraph (b). On the other hand, if the legislature intended the State's broad interpretation, it could have omitted the reference to the DOJ's ability to file "under par. (a)" from paragraph (b). Thus, we look to the legislative history to assist us in discerning the intent of the legislature.
IV
¶ 22. Chapter 980 was created by 1993 Wis. Act 479. The bill that eventually became Act 479 was Assembly Bill 3 of the 1994 May Special Legislative Session (A.B. 3). As originally introduced, A.B. 3 contained language that granted filing authority to the district attorney without any requirement that there be a request from the agency with jurisdiction. A.B. 3 also granted filing authority to the DOJ, but the DOJ could file only at the request of the district attorney or the agency with jurisdiction.
¶ 23. Initially, the district attorney's filing authority was broader than the DOJ's filing authority. The original language of A.B. 3 read as follows:
980.02 Sexually violent person petition; contents; filing. (1) A petition alleging that a person is a sexually violent person may be filed by one of the following:
(a) The district attorney for the county in which *125 the person was convicted of a sexually violent offense, adjudicated delinquent for a sexually violent offense or found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness.
(b) The department of justice in any case at the request of a district attorney or the agency with jurisdiction, as defined under s. 980.015(1), over the person. . . .
¶ 24. A.B. 3 was amended by Assembly Amendment 2 (AA-2), which changed the above language to substantially what currently exists in § 980.02(1). Thus, the bill as originally introduced would have allowed the district attorney to file absent a request from the agency with jurisdiction. The State would have us interpret the effect of AA-2 as having very little impact on the district attorney's authority, other than granting the authority to two district attorneys instead of one.
¶ 25. However, the placement of the provisions and the legislative history more strongly support the position that the legislature decided to place the district attorney's authority as secondary to the DOJ's authority and to place the agency with jurisdiction as a "gatekeeper" that limits the authority of both the DOJ and the district attorneys.
¶ 26. A review of the placement of the provisions, together with the legislative history, reflects an intent to create a step-by-step process that must be followed before a district attorney has authority to file a petition. Under this step-by-step process, the initial step is that the agency with jurisdiction evaluates the person to be released to determine whether the person may meet the criteria for commitment as a sexually violent person. If *126 the agency determines that the person may meet the criteria, the agency requests that the DOJ file a petition. The DOJ can then file a petition or coordinate with one of the appropriate district attorneys regarding filing a petition. Alternatively, the DOJ can determine that a filing is not warranted despite the agency request, in which case one of the appropriate district attorneys can then file the petition on his or her own.
¶ 27. Interpreting AA-2 as changing the district attorney's broad authority to narrow authority is supported by AA-2's change in the placement of the provisions granting authority to the district attorney and the DOJ. As originally drafted, A.B. 3 placed the district attorney's authority first, in paragraph (a). However, AA-2 changed that priority. It instead placed the DOJ in paragraph (a) and the district attorney in paragraph (b), supporting an interpretation that the legislature intented to place the role of the district attorney as secondary to that of the DOJ.
¶ 28. An examination of other legislative history reveals a contemporaneous Legislative Fiscal Bureau memorandum describing the pending bill to members of the legislature. See May 19, 1994 Memorandum to Legislators from Robert Lang. The purpose, in part, of the memorandum was to explain the effect of the very amendment which is the focus of our analysis, and which sets forth a step-by-step process: (1) notice is given of impending release or discharge, (2) the DOJ must first make a determination if it is going to file, and (3) if the DOJ determines that it will not prosecute the petition, then (4) the appropriate district attorney can proceed. The memorandum states:
Amendment 2 . . . provide[s] that DOC . . . inform (a) the Department of Justice and (b) the District Attorneys of both the county of conviction and the county of *127 release (if different) of the anticipated discharge or release of the sexual offender. Require DOJ to make a determination of whether it will prosecute the petition for civil commitment and to notify the appropriate DAs of its decision no less than 30 days prior to discharge or release. . . . Provide that, if DOJ determines it will not prosecute the petition, either the DA of the county of convicion or the DA of the county of release may prosecute the petition (at their own cost).
¶ 29. The drafting instructions also support an interpretation that the legislature intended to place the role of the district attorney as secondary to that of the DOJ. Assembly Amendment 2 (AA-2) was identical to Senate Amendment 2 (SA-2), which was drafted using instructions that were identified in the drafting file as being a part of LRBa4722.[8] The instructions provided that "if DOJ refuses, DA can do it . . . (and) DOJ must make decision no later than 30 days b4 release."
¶ 30. Both parties acknowledge that in order for the DOJ to have made a determination of whether it wants to proceed, a referral must be made as a precondition to that determination. Thus, any discussion of a DOJ determination necessarily is premised upon an initial agency referral.
¶ 31. However, the State advances an argument that all that is needed as a precondition for the district attorney to file is that the DOJ has not yet filed. Presumably, under the State's interpretation, even if the DOJ intended to file, but had not yet done so, the district attorney could proceed to file. Under its interpretation, the district attorney need not wait for the DOJ to determine whether it is going to file.
*128 ¶ 32. AA-2 created Wis. Stat. § 980.02(1)(a) and (b) as they currently exist, along with the requirement that if DOJ decides to file a petition, it must do so no later than 30 days before the date of discharge or release. This 30-day notice requirement, though subsequently vetoed by the governor, illustrates that the State's interpretation is misguided and that the district attorney was to wait for a decision from the DOJ.
¶ 33. The 30-day notice requirement was vetoed by the governor, not because the governor wanted to restore the primary power of the district attorney that AA-2 had taken away, but rather to assist the DOJ. The governor's veto message states that the purpose of the partial veto was to provide the DOJ with more flexibility in filing Chapter 980 petitions. The drafting record for 1993 Wis. Act 479 contains a letter dated May 26, 1994 from the governor to the assembly. The letter states, in part:
Section 40 contains a requirement that the Department of Justice (DOJ) file a petition against a sexually violent person no later than 30 days before the date of release. This does not provide sufficient flexibility for DOJ to petition for releases. Accordingly, I am partially vetoing the provision requiring the filing of a petition no later than 30 days prior to release or discharge.
¶ 34. The State argues that it is incorrect to interpret the district attorney's authority as secondary to the DOJ's authority because other provisions in Chapter 980 grant the district attorney the same or broader authority than the DOJ. We are not persuaded that the provisions cited by the State support an interpretation that would give a district attorney broader filing authority than the DOJ.
¶ 35. The State cites first several provisions of Chapter 980 that grant equal authority to the district *129 attorney and the DOJ.[9] However, these grants of equal authority simply reflect that, even under the narrow interpretation of the district attorney's authority, there can be circumstances when the district attorney rather than DOJ has properly filed a Chapter 980 petition. In fact, many of these provisions refer to the "district attorney or the department of justice" but then qualify the reference with "whichever is applicable" or "whichever filed the original petition." Therefore, the State's citations regarding the equal authority of the district attorney and the DOJ do not support the conclusion that the district attorney's filing authority must be at least equivalent to the DOJ's authority.
¶ 36. The State also argues that certain provisions of Chapter 980 grant the district attorney broader authority than the DOJ. The State cites two examples. First, the State argues that the listing of two district attorneys (i.e., the county of conviction and the county of intended residence) reflects a broader grant of authority to the district attorneys than to the DOJ. This, however, does not reflect that the authority itself is broad, only that more than one district attorney has the power to exercise the authority that exists.
*130 ¶ 37. As its second example, the State argues that it appears the district attorney can file a Chapter 980 petition at any time up to 90 days after a person has been released. This position is untenable in that it is contrary to precedent which interprets § 980.02(2)(ag) as requiring that a Chapter 980 petition be filed on or before the date of a person's release or discharge.[10]See State v. Thiel, 2000 WI 67, ¶¶ 30-32, 235 Wis. 2d 823, 612 N.W.2d 94; State v. Thomas, 2000 WI App 162, ¶ 17, 238 Wis. 2d 216, 225, 617 N.W.2d 230; State v. Pharm, 2000 WI App 167, ¶ 15, 238 Wis. 2d 97, 111, 617 N.W.2d 163.
¶ 38. We recognize that the step-by-step process elevates the role of the agency with jurisdiction in determining when a Chapter 980 petition can be filed. There are several policy reasons that support having the agency with jurisdiction serve as such a gatekeeper.
¶ 39. First, the agency with jurisdiction has the person under its supervision, care, and custody. Accordingly, it has the most comprehensive information regarding the person's status under Chapter 980. Second, not only does the agency with jurisdiction have a significant amount of information regarding the person, but it also has a significant amount of knowledge and expertise with supervising and dealing with the type of offenders that are potentially subject to Chapter 980 petitions.
¶ 40. Third, the agency with jurisdiction has the most recent contact with the person, whereas the district attorney of the county of conviction will likely have lost personal contact during the years of confinement. *131 The district attorney of the county of intended residence may have had no prior contact with the person. Fourth, a gatekeeper role for the agency with jurisdiction facilitates creating a consistent and coordinated process for filing Chapter 980 petitions.
¶ 41. Fifth, there is a benefit to having a central screening process to conserve scarce resources because Chapter 980 cases can be complex and can result in significant treatment costs. Sixth, the use of the independent expertise of the agency with jurisdiction can be a tool for ensuring that the decision to file a Chapter 980 petition is insulated from local pressures.
¶ 42. Granted, there is nothing in the legislative history that directly articulates reasons for or against placing the agency with jurisdiction in a gatekeeper role that limits the district attorney's authority. However, the existence of these policy reasons supports the conclusion that such a broad gatekeeper role would be consistent with a legislative intent to create a step-by-step process that enhances the coordinated and efficient operation of Chapter 980.
V
[4]
¶ 43. In sum, we conclude that, under § 980.02(1), a request from the agency with jurisdiction and a subsequent decision by the DOJ not to file are prerequisites to a district attorney's authority to file a Chapter 980 petition. Because those prerequisites were not met in this case, we determine that the petition was not properly filed. Accordingly, we reverse the court of appeals and remand the matter to the circuit court for dismissal of the petition.
By the Court.The decision of the court of appeals is reversed and the cause is remanded.
*132 ¶ 44. JON P. WILCOX, J., did not participate.
¶ 45. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring).
I write separately to respond to Justice Crooks's conclusion, in dissent, that the rules of statutory interpretation, specifically the plain meaning rule, "prohibit" a court from looking to legislative history, context, purpose, and subject matter when construing a statute in the absence of an express finding that the statute is ambiguous.[1]
¶ 46. An examination of our cases involving statutory interpretation demonstrates that this court often mechanically repeats the plain meaning rule that it will not resort to extrinsic sources when the meaning of the text is unambiguous. Yet in a large number of these cases the court has examined sources beyond the specific text of the statute at issue to determine the meaning of the language, regardless of any finding that the text is ambiguous.[2] Even a casual observer of the *133 Wisconsin cases would, without fear of being contradicted, summarize the case law as adopting inconsistent approaches to statutory interpretation.[3]
¶ 47. We should, I believe, stop paying lip service to the supremacy of the plain meaning rule[4] and clearly *134 adopt a more encompassing analytic model for statutory interpretation.[5]
*135 ¶ 48. This court has consistently and resolutely held that the purpose of statutory interpretation is to determine and give effect to the intent of the legislature in enacting a particular statute. It is, of course, a legal fiction to assert that there is an actual legislative "intent."[6] "It is impossible to argue that a legislative body actually has a collective, corporate intent that is somehow the sum of the individual, and often conflicting, intents of its members."[7]
¶ 49. Rather, discerning and giving effect to the "intent" of the legislature is an exercise in logic in which a court determines what a reasonable person in the position of a legislator enacting the statute would have said about the legal issue presented in a given case.[8] As Judge Richard Posner has written, "The judge should try to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar."[9] Rules of statutory interpretation are merely codified expressions of legal reasoning that assist courts in this task.
¶ 50. To insist dogmatically on the primacy and supremacy of the plain meaning rule, to the exclusion of *136 all other rules of statutory interpretation, is neither helpful to this endeavor[10] nor supported in law.[11] Proper statutory interpretation requires that a court take a comprehensive view toward determining legislative intent. A court begins with the language of the statute and then considers all relevant evidence of legislative intent including its "scope, history, context, subject matter and purpose."[12] All of these factors bear on the interpretation of the language, and no single one is exclusive or controlling.[13]
¶ 51. The language of a given statute is without a doubt the most important indication of legislative "intent." After all, the words are the objective manifestation of the legislative intent we seek to discern. More *137 importantly, citizens obligated to follow the law, public officials elected to carry out the law, and attorneys employed to advise clients on the meaning of the law should be able to rely upon the words written in the Wisconsin Statutes when fulfilling these duties.
¶ 52. Nevertheless, language, especially statutory language, is often ambiguous. "Anything that is written may present a problem of meaning . . . . The problem derives from the very nature of words. They are symbols of meaning. But unlike mathematical symbols, the phrasing of a document, especially a complicated enactment, seldom attains more than approximate precision."[14] Language is further a product of its time and context. "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used."[15]
¶ 53. Moreover, statutory language is also specifically adopted with a purpose beyond the mere conveyance of words as symbols of meaning. The legislature enacts statutes in order to address social problems. As Karl Llewellyn has remarked, "If a statute is to make sense it must be read in the light of some assumed purpose. A statute merely declaring a rule, with no purpose or objective, is nonsense."[16]
*138 ¶ 54. Proper statutory interpretation therefore requires that a court beginbut not necessarily end with the language of the statute. A court must also consider all other relevant and available evidence concerning the history of the statute's enactment, the purpose of the statute, the statute's context, and the subject matter of the statute to ensure that it adopts the construction most consistent with the "intent" of the legislature. A judge must consider "the usual things that the intelligent literature on statutory construction tells him to look atsuch as the language and apparent purpose of the statute, its background and structure, its legislative history . . . and the bearing of related statutes."[17]
¶ 55. Scholars have long understood that statutory interpretation is a process involving the consideration of all evidence bearing on the meaning of a statute.[18] State courts are following suit. The Alaska *139 Supreme Court, for example, has adopted a sliding-scale approach to statutory interpretation in which a court looks to the statutory language as well as all other extrinsic sources of information bearing on legislative intent, recognizing that the clearer the language is in a given statute, the more convincing other sources must be to prove a contrary legislative intent.[19] Similarly, the Connecticut Supreme Court has rejected its on-again-off-again adherence to the plain meaning rule and made explicit that it will consider "all of those sources beyond *140 the language itself without first having to cross any threshold of ambiguity of the language."[20]
¶ 56. Wisconsin should be no different. As early as 1871, our court recognized that the plain meaning rule was merely part of a broader, more comprehensive view toward statutory interpretation. We explained:
[T]he true rule for the construction of statutes is, to look at the whole and every part of the statute, and the apparent intention derived from the whole, to the subject matter, to the effects and consequences, and to the reason and spirit of the law, and thus, to ascertain the true meaning of the legislature, though the meaning so ascertained may sometimes conflict with the literal sense of the words.[21]
This comprehensive analytical framework reflects a more pragmatic view of the legislative and judicial processes, promotes greater judicial candor, and maintains the supremacy of the legislature as the policy and rule making governmental institution. By using this comprehensive approach to statutory interpretation we acknowledge and deal with "interpretive problems that arise from the inherent ambiguity of language as well as the limits of our linguistic capabilities"[22] and sufficiently uphold our duty to interpret and apply the statutory law of the state of Wisconsin.
¶ 57. For the reasons set forth, I write separately.
¶ 58. I am authorized to state that Justice WILLIAM A. BABLITCH joins this concurrence.
*141 ¶ 59. WILLIAM A. BABLITCH, J. (concurring).
"That depends on what the meaning of the word `is' is." William Jefferson Clinton.
¶ 60. I write only to emphasize that canons of statutory construction, such as the "plain meaning" rule, are tools, not rules. They are all designed to reach one fundamental goal: discerning legislative intent. Ignoring relevant evidence on legislative intent in the name of "plain meaning" will necessarily at times lead to an interpretation that is completely contrary to what the legislature intended.
¶ 61. Language is inherently ambiguous perhaps not as ambiguous as the quotation above would have us believe, but the quote makes a point: plain meaning is frequently in the eye of the beholder. What is plain to one may be ambiguous to another. If good evidence as to legislative intent is present, why not use it? Accordingly, I join Chief Justice Abrahamson's concurrence.
¶ 62. N. PATRICK CROOKS, J. (dissenting).
For the reasons set forth below, I respectfully dissent.
¶ 63. The majority opinion fails to follow well-established rules of statutory interpretation. As we have consistently noted, the purpose of statutory interpretation is to ascertain and give effect to the legislature's intent. State v. Delaney, 2003 WI 9, ¶ 13-14, 259 Wis.2d 77, 658 N.W.2d 416. In a results-oriented analysis, the majority fails to cite several well-established statutory interpretation rules. See majority op., ¶ 13. Specifically, the majority ignores the rule, which we have reiterated on several occasions this term, that when determining legislative intent, we first look to the language of the statute itself. State v. Delaney, 2003 WI 9, ¶ 13-14; VanCleve v. City of *142 Marinette, 2003 WI 2, ¶ 17, 258 Wis.2d 80, 655 N.W.2d 113. As we clearly noted in VanCleve:
... [I]t is a well established rule that if the language of a statute is clear and unambiguous, the court must not look beyond the statutory language to ascertain the statute's meaning. Only when statutory language is ambiguous may we examine other construction aids such as legislative history, context, and subject matter.
VanCleve, ¶ 17 (citing State v. Waalen, 130 Wis.2d 18, 24, 386 N.W.2d 47 (1986). Accordingly, if the meaning of the statute is clear on its face, this court will not look outside the statute in applying it.
¶ 64. The majority disregards this first step. Indeed, the majority never explicitly finds the language of Wis. Stat. § 980.02(1) ambiguous. Instead, the majority uses phrases such as: "[t]he language of § 980.02(1) could have more clearly delineated the limits of the district attorney's authority," and "if the legislature intended the State's broad interpretation, it could have omitted the reference to the DOJ's ability to file. . . ." See majority op. at ¶ 21 (emphasis added). The majority does not state that the statutory language is ambiguous. Instead, without doing so, the majority engages in an analysis of the legislative history.
¶ 65. As noted above, the rules of statutory interpretation are clear. Unless the language is ambiguous, we are to apply the clear language of the statute. Moreover, if the language is clear, the rules of statutory interpretation prohibit us from doing exactly what the majority does. Unless the statutory language is established as ambiguous,[1] we are prohibited from engaging *143 in an analysis of whether the legislature could have worded the statute differently, or whether it could have omitted certain references. *144 worded the statute differently, or whether it could have omitted certain references.
¶ 66. Following these well-established rules of statutory interpretation, I agree with the court of appeals that Wis. Stat. § 980.02(1) is clear on its face. As the court of appeals noted:
If the DOJ does not file a petition, subsec. (b) allows the district attorney for the county where the person was convicted of the sexually violent offense or where that person will reside or be placed upon release from imprisonment to file a petition for commitment. Wis. Stat. § 980.02(1)(b). We note that § 980.02(1) neither requires the DOC to make a referral to the DOJ nor the latter to expressly decline filing as a condition precedent to the district attorney instituting proceedings. The sole requirement is that the DOJ, under whatever circumstances, did not file a petition.
We conclude that Wis. Stat. § 980.02(1)(b) unambiguously permits the district attorney in either the county of conviction or of anticipated residence or placement upon discharge to file a Wis. Stat. ch. 980 petition in the event the DOJ does not. Here it is undisputed that the department did not file a petition, but the district attorney for the county in which Byers would have resided upon discharge did.
State v. Byers, Nos. 99-2441 & 00-0454, unpublished slip op. at ¶ 18-19 (Wis. Ct. App. Jan. 23, 2001).
¶ 67. For the reasons discussed, I respectfully dissent.
¶ 68. I am authorized to state that Justice DIANE S. SYKES joins this dissent.
NOTES
[1] State v. Byers, Nos. 99-2441 & 00-0454, unpublished slip op. (Wis. Ct. App. January 23, 2001) (affirming a judgment and orders of the circuit court for Brown County, William C. Griesbach, Judge). The court of appeals' decision also affirmed the circuit court's order denying Byers' post-commitment motion.
[2] All references to the Wisconsin Statutes are to the 1997-1998 version unless otherwise indicated.
[3] Wisconsin Stat. § 980.01(7) defines "sexually violent person" as follows:
(7) "Sexually violent person" means a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness, and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.
[4] The court of appeals determined that the circuit court's post-commitment order concluding that Byers suffered no prejudice because the district attorney had authority to file a Chapter 980 petition preserved the authority issue on appeal. This determination is not contested on review in this court.
Additionally, Byers raised two due process issues in his brief. Because we have reversed the court of appeals decision on the issue of the district attorney's authority, we need not address the due process issues.
[5] Wisconsin Stat. § 980.015(1) states that ". . . `agency with jurisdiction' means the agency with the authority or duty to release or discharge the person."
[6] Wisconsin Stat. § 980.015(2) provides as follows:
(2) If an agency with jurisdiction has control or custody over a person who may meet the criteria for commitment as a sexually violent person, the agency with jurisdiction shall inform each appropriate district attorney and the department of justice regarding the person as soon as possible beginning 3 months prior to the applicable date of the following:
(a) The anticipated discharge from a sentence, anticipated release on parole or extended supervision or anticipated release from imprisonment of a person who has been convicted of a sexually violent offense.
(b) The anticipated release from a secured correctional facility, as defined in s. 938.02 (15m), or a secured child caring institution, as defined in s. 938.02 (15g), of a person adjudicated delinquent under s. 938.183 or 938.34 on the basis of a sexually violent offense.
(c) The termination or discharge of a person who has been found not guilty of a sexually violent offense by reason of mental disease or defect under s. 971.17.
[7] Wisconsin Stat. § 980.015(3) provides as follows:
(3) The agency with jurisdiction shall provide the district attorney and department of justice with all of the following:
(a) The person's name, identifying factors, anticipated future residence and offense history.
(b) If applicable, documentation of any treatment and the person's adjustment to any institutional placement.
[8] See Drafting Record for Senate Amendment 2, May 1994 Spec. Sess. A.B. 3, in drafting record 1993 Wis. Act 479.
[9] The State cites the following sections that grant equal authority to the district attorney and the DOJ: § 980.015 (notice from the agency with jurisdiction regarding the release); § 980.05(2) (request for jury trial); § 980.08(2) (right to receive petitions by committed individuals for supervised release); § 980.09(1)(a) (right to receive petition for discharge); § 980.09(1)(b) (representing the state in connection with a petition for discharge with DHFS approval); § 980.09(2)(b) (representing the state in connection with a petition for discharge without DHFS approval); and § 980.11(4) (right to receive notice cards from DHFS without charge).
[10] Wisconsin Stat. § 980.02(2)(ag) requires that a Chapter 980 petition allege that the "person is within 90 days of discharge or release, on parole, extended supervision or otherwise, from a sentence . . . ."
[1] Dissent, ¶ 65.
[2] For an example of a recent Wisconsin case discerning legislative intent by looking to the language of a statute as well as its scope, history, context, subject matter, and purpose, see Fox v. Catholic Knights Insurance Co., 2003 WI 87, 263 Wis. 2d 208, 665 N.W.2d 181 (examining legislative history to support interpretation of unambiguous language).
The dissent cites to VanCleve v. City of Marinette, 2003 WI 2, ¶ 17, 258 Wis. 2d 80, 655 N.W.2d 113, and State v. Delaney, 2003 WI 9, ¶¶ 13-14, 259 Wis. 2d 77, 658 N.W.2d 416, for the proposition that the court must not look beyond the statutory language to ascertain a statute's meaning if the language of a statute is clear and unambiguous. Yet neither of these cases adopts such a simplistic method of statutory interpretation. In VanCleve, for example, this court looked to case law and legislative history to properly construe Wis. Stat. § 81.17. See VanCleve, 258 Wis. 2d 80, ¶ 23 ("In addition to the plain language of the statute, Wisconsin case law interpreting the statutory language provides guidance on this issue."), ¶¶ 28-29 (setting forth the historical construction and development of Wis. Stat. § 81.17). Similarly, in Delaney, this court admitted that even a clear and unambiguous statute could be construed contrary to its plain meaning "if a literal application would lead to an absurd or unreasonable result." Delaney, 259 Wis. 2d 77, ¶ 15 (citing Coca-Cola Bottling Co. v. LaFollette, 106 Wis. 2d 162, 170, 316 N.W.2d 129 (Ct. App. 1982)).
[3] See, e.g., Kenneth R. Dortzbach, Legislative History: The Philosophies of Justices Scalia and Breyer and the Use of Legislative History by the Wisconsin State Courts, 80 Marq. L. Rev. 161, 201-19 (1996); Brad A. Liddle, Statutory Construction Legislative IntentUse of Extrinsic Aids in Wisconsin, 1964 Wis. L. Rev. 660.
[4] Rules of interpretation cannot by themselves be dispositive in interpreting a statute because almost every rule can be countered by an opposing rule. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395 (1950).
Moreover, the dissent's insinuation that employing the full array of rules of statutory construction should be equated with a "results-oriented" analysis is simplistic. Dissent, ¶ 63. The plain meaning rule can be manipulated as well as any other rule of statutory construction to reach a particular result. See Richard A. Posner, Statutory InterpretationIn the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 816-17 (1983) ("By making statutory interpretation seem mechanical rather than creative, the canons conceal, often from the reader of the judicial opinion and sometimes from the writer, the extent to which the judge is making new law in the guise of interpreting a statute or a constitutional provision."). Although courts may be influenced by rules of interpretation, the legislature apparently is not. Former Chief Judge of the District of Columbia Court of Appeals and former Congressman Abner Mikva writes of "canons of interpretation" as follows: "When I was in Congress, the only `canons' we talked about were the ones the Pentagon bought that could not shoot straight." Abner Mikva, Reading and Writing Statutes, 48 U. Pitt. L. Rev. 627, 629 (1987).
[5] I have used this approach in majority and minority opinions. See, e.g., Fox v. Catholic Knights Ins. Co., 2003 Wis. 2d 87, ¶ 44, 665 N.W.2d 181 (Abrahamson, C.J., concurring); State v. Peters, 2003 WI 88, ¶ 34, 263 Wis. 2d 475, 665 N.W.2d 171 (Abrahamson, C.J., concurring); State v. Davison, 2003 WI 89, 263 Wis. 2d 146, 666 N.W.2d 1 (Abrahamson, C.J., dissenting); State v. Cole, 2003 WI 59, 262 Wis. 2d 167, 663 N.W.2d 700; Juneau County v. Courthouse Employees, 221 Wis. 2d 630, 641-51, 585 N.W.2d 587 (1998); State v. Sample, 215 Wis. 2d 487, 510, 573 N.W.2d 187 (1998) (Abrahamson, C.J., concurring); State v. Stoehr, 134 Wis. 2d 66, 75-82, 396 N.W.2d 177 (1986); City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 244, 332 N.W.2d 782 (1983) (Abrahamson, J., dissenting); Milwaukee County v. DILHR, 80 Wis. 2d 445, 451, 456, 259 N.W.2d 118 (1977).
I have tried to use this approach consistently, though I, like all judges, probably have not been consistent. Justice Scalia explains his inconsistency in using legislative history in interpreting statutes contrary to his textualist approach as follows: "I play the game like everybody else . . . I'm in a system which has accepted rules and legislative history is used . . . You read my opinions, I sin with the rest of them." Judges and Legislators: Toward Institutional Comity, 175-75 (R. Katzmann ed. 1988) (Justice Scalia's comments during a panel discussion) (quoted in Frank H. Easterbrook, What Does Legislative History Tell Us?, 66 Chi.-Kent L. Rev. 441, 442 n.4 (1991)).
[6] See, e.g., Daniel A. Farber & Philip P. Frickey, Legislative Intent and Public Choice, 74 Va. L. Rev. 423, 423 (1988).
[7] Burt Neuborne, Background Norms for Federal Statutory Interpretation, 22 Conn. L. Rev. 721, 724 (1990).
[8] Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 429 (1989) (arguing that searching for legislative intent does not involve looking for "a general legislative aim or purpose, but instead to see more particularly how the enacting legislature would have resolved the question, or how it intended that question to be resolved, if it had been presented.").
[9] Richard A. Posner, Statutory InterpretationIn the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 817 (1983).
[10] See State v. Courchesne, 816 A.2d 562, 581-83 (Conn. 2003) (concluding that the plain meaning rule is not a "useful rubric for the process of statutory interpretation" because it is inconsistent with the purposive and contextual nature of the legislative language, it is inherently self-contradictory, and it requires the court to engage in a threshold determination of whether language is ambiguous, which tends to lead to "intellectually and linguistically dubious" declarations that leave a court open to criticisms that it is results-oriented).
[11] See Train v. Colo. Pub. Interest Research Group, Inc., 426 U.S. 1, 10 (1976) ("[W]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no `rule of law' which forbids its use, however clear the words may appear on `superficial examination.'") (quoting United States v. Am. Trucking Ass'ns, 310 U.S. 534, 543-44 (1940)).
[12] Scott by Ricciardi v. First State Ins. Co., 155 Wis. 2d 608, 612, 456 N.W.2d 152 (1990) ("The cardinal rule in all statutory interpretation, as this court has often said, is to discern the intent of the legislature. The court will ascertain that intent by examining the language of the statute as well as its scope, history, context, subject matter and purpose.").
[13] State v. Stoehr, 134 Wis. 2d 66, 82, 396 N.W.2d 177 (1986).
[14] Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 528 (1947).
[15] Towne v. Eisner, 245 U.S. 418, 425 (1918); see also William N. Eskridge, Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509, 1559 (1998) (reviewing Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)) ("Reading the legislative history puts the judge better in touch with the values, vocabulary, and policy choices of the authors of the statute . . . .").
[16] Llewellyn, supra note 4, at 400 (1950).
[17] Posner, supra note 9, at 818; see also William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 352 (1990):
[A]n interpreter will look at a broad range of evidencetext, historical evidence, and the text's evolutionand thus form a preliminary view of the statute. The interpreter then develops that preliminary view by testing various possible interpretations against the multiple criteria of fidelity to the text, historical accuracy, and conformity to contemporary circumstances and values. Each criterion is relevant, yet none necessarily trumps the others.
[18] See, e.g., T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 Mich. L. Rev. 20 (1988); Stephen Breyer, On the Uses of Legislative History, 65 S. Cal. L. Rev. 845 (1992); Ronald Dworkin, Law as Interpretation, 60 Tex. L. Rev. 527 (1982); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321 (1990); Daniel A. Farber & Philip P. Frickey, Legislative Intent and Public Choice, 74 Va. L. Rev. 423 (1988); Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527 (1947); L. Fuller, Positivism and Fidelity to LawA Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958); J. Willard Hurst, Dealing with Statutes (1982); Llewellyn, supra note 4; William D. Popkin, Statutes in Court: The History and Theory of Statutory Interpretation (1999); Richard A. Posner, The Problems of Jurisprudence (1990); Max Radin, A Short Way with Statutes, 56 Harv. L. Rev. 388 (1942); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997); Jane S. Schacter, The Confounding Common Law Originalism in Recent Supreme Court Statutory Interpretation: Implications for the Legislative History Debate and Beyond, 51 Stan. L. Rev. 1 (1998); Norman J. Singer, Statutes and Statutory Construction § 45.02 (6th ed. 2000); Adrian Vermeule, The Cycles of Statutory Interpretation, 68 U. Chi. L. Rev. 149 (2001).
The literature on statutory interpretation is voluminous.
[19] Homer Elec. Ass'n v. Towsley, 841 P.2d 1042, 1043-44 (Alaska 1992); State v. Alex, 646 P.2d 203, 208 n.4 (Alaska 1982) (under Alaska's sliding-scale approach to statutory interpretation, the more plain the language of the statute, the more convincing the evidence of contrary legislative intent must be).
See J. Willard Hurst, The Legislative Branch and the Supreme Court, 5 U. Ark. J. L. 487, 499 (1985) (suggesting this kind of sliding scale).
[20] Courchesne, 816 A.2d at 578.
[21] Harrington v. Smith, 28 Wis. 43, 59 (1871) (emphasis in original).
[22] Sample, 215 Wis. 2d at 510 (Abrahamson, C.J., concurring) (citing Lawrence M. Solan, The Language of Judges 38, 117 (1993)).
[1] The Chief Justice Abrahamson's concurrence claims that language is often ambiguous. See Chief Justice Abrahamson's concurrence at ¶ 52: "language, especially statutory language, is often ambiguous." If this was correct, we could never simply "appl[y] the law as written," as we have previously done. See State ex rel. Brookside Poultry Farms v. Jefferson County Bd. of Adjustment, 131 Wis. 2d 101, 113, 388 N.W.2d 593 (1986) ("The statute and ordinance clearly state that persons aggrieved, not parties aggrieved, have a right to appeal. This court applies the law as written.") (emphasis in original). Instead, we would as a rule in every case, start with the assumption of ambiguity, and then begin a search for extrinsic sources of meaning. To the contrary, we have repeatedly held that the statutory language at issue was quite clear (and therefore not "often ambiguous"). See, e.g., State v. Wideman, 206 Wis. 2d 91, 102, 556 N.W.2d 737 (1996) (Wis. Stat. § 346.65(2)(c) is "clear and unambiguous"); Nicholson v. Home Ins. Co., 137 Wis. 2d 581, 593, 405 N.W.2d 327 (1987) ("The operative language of sec. 807.01(4) clearly indicates that an offer of settlement under sec. 807.01(4) must be made under sec. 807.01 . . . . Sec. 807.01(3) makes it clear . . ." The statute also makes clear that . . .").
See also Stephenson v. Universal Metrics, Inc., 2002 WI 30, 251 Wis. 2d 171; 641 N.W.2d 158 ("The immunity statute does not apply in the present case because imposing liability on Kreuser for breaking his promise is unrelated to and outside of the clear and unambiguous scope of this immunization statute.") (Abrahamson, C.J., dissenting).
If language were "often ambiguous," it is not at all clear how the language a court might examine regarding the scope, history, context, and purpose of a statute would be at all helpful. In fact, "one Supreme Court Justice [has] remarked that because the legislative history is often ambiguous, `it is clear that we must look primarily to the statutes themselves to find the legislative intent,' rather than the other way around." See Kenneth R. Dortzbach, Legislative History: The Philosophies of Justices Scalia and Breyer and the Use of Legislative History by the Wisconsin State Courts, 80 Marq. L. Rev. 161, 162 (1996); Chief Justice Abrahamson's concurrence, ¶ 46 n.3.
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673 S.W.2d 490 (1984)
STATE of Missouri, Respondent,
v.
Ulysses C. HARRIS, Appellant.
No. 45974.
Missouri Court of Appeals, Eastern District, Division Five.
June 19, 1984.
*491 David O. Fischer, Richard M. Miller, St. Louis, for appellant.
John Ashcroft, Atty. Gen. by Dan Crawford, Asst. Atty. Gen., Jefferson City, for respondent.
SATZ, Judge.
After a jury-waived trial, the trial court convicted defendant of two counts of possession of a controlled substance and sentenced him to ten years imprisonment on each count, to be served concurrently. We affirm.
Defendant was arrested on June 6, 1979, as he exited from a drug store in St. Louis County. The arresting officer was a member of the St. Louis County Police Department. He and a fellow officer, three police officers from the City of St. Louis and an agent from the Federal Drug Administration followed defendant to the drug store. The arresting officer observed defendant as he approached the prescription counter, saw him take three pieces of paper out of his pocket and hand them to the pharmacist. Upon his exit from the drug store, the officers arrested defendant without a warrant. An ensuing search produced a paper bag containing three prescription vials and a plastic bag containing three syringes. The prescriptions were made out to three different people, none of which was defendant. Two of the vials contained hydromorphonetrade named, Dilaudid, and one contained phenmetrazinetrade named, Preludin. Each of these drugs is a Schedule II controlled substance.
Defendant argues he was unlawfully searched and, therefore, reasons that the products of the searchthe vials and syringesshould have been excluded from evidence. Defendant's motion to suppress this evidence was denied at a pretrial hearing. However, he has not furnished us with the transcript of that hearing. Defendant has, thus, failed to fulfill his responsibility to furnish a full and complete record which we need to review to determine the propriety of his complaint. Rule 81.12; E.g. State v. Harris, 564 S.W.2d 561, 565 (Mo.App.1978); See Jackson v. State, 514 S.W.2d 532, 533-534 (Mo.1974). This failure constrains us to rule against defendant on this issue. State v. Ball, 622 S.W.2d 285, 291 (Mo.App.1981); State v. *492 Smith, 612 S.W.2d 895, 897 (Mo.App.1981); State v. Harris, supra at 566.
Defendant also argues the state failed to prove he "knowingly" possessed the controlled substances in issue. We disagree.
In both counts, defendant was charged with violating § 195.020 RSMo 1978. "To sustain a conviction for possession of a controlled substance under § 195.020, the state must prove that the defendant knowingly and intentionally possessed the proscribed substance." State v. Barber, 635 S.W.2d 342, 343 (Mo.1982). To meet this burden, the state must show the defendant knew the presence and character of the substance and consciously intended to possess it. Id. at 343.
In this case, as in most criminal cases, knowledge and intent are proved by circumstantial evidence. Thus, defendant's conviction is based primarily upon circumstantial evidence. To support a conviction based upon circumstantial evidence, the facts and circumstances must be consistent with each other, must tend to prove guilt and must also be inconsistent with every other reasonable hypothesis of innocence. State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976). The evidence, however, need not be conclusive of guilt and need not demonstrate the impossibility of innocence. Id. at 534. Moreover, in our review, we consider only those operative facts and inferences favorable to the state. Id. at 534.
With these often repeated rules as a guide, we review the evidence. The only testimony in the case came from one police officer. Defendant put on no evidence. Defendant was seen to hand a pharmacist three pieces of paper, and, upon his exit from the drug store, three vials of prescription drugs were found on him. Prescription drugs imply the drugs are, at least, a restricted substance and are drugs not commonly taken. In addition, defendant carried three syringes, which, the officer testified, drug abusers use to inject a solution of the dissolved drugs into their veins. Although it is common knowledge that some diabetics carry syringes for injection of insulin, the officer testified the defendant told him he was not a diabetic but was a "junkie." Moreover, the names on the prescription vials were the names of three different people, none of which was the defendant. Even the most naive and credulous among us would not conclude defendant, a named "junkie," was a good Samaritan providing pick-up and delivery service for three different debilitated friends or acquaintances. Furthermore, the police were unsuccessful in their search for the three persons named on the vials.[1]
On circumstantial evidence less convincing than the foregoing facts, this court has inferred a defendant knowingly possessed a controlled substance. See, e.g., State v. Williams, 539 S.W.2d 530, 534-535 (Mo. App.1976); State v. Lee, 521 S.W.2d 180, 181-182 (Mo.App.1975). From the operative facts and inferences in the instant case, we have no difficulty in affirming the trial court's finding that defendant knowingly and intentionally possessed the controlled substances in issue and, therefore, was guilty as charged.
Finally, defendant contends he was denied his constitutional right to a speedy trial, guaranteed by the Sixth Amendment to the United States Constitution and similarly guaranteed by Article I, Section 18(a) of the Missouri Constitution.[2] Defendant filed a pretrial motion to dismiss the indictment based upon this alleged violation of his constitutional rights. The motion was *493 denied after a pretrial hearing. Again, defendant has failed to include the transcript of this hearing in his record on appeal. However, we find there is sufficient evidence on the record before us to address and dispose of this issue on the merits.
As noted, defendant was initially arrested on the present charges on June 6, 1979. According to defendant's pretrial motion to dismiss and his brief on appeal, he was subsequently released from custody following his arrest. On August 14, 1980, approximately 14 months after the arrest, defendant was indicted on the present charges. On October 2, 1980, defendant was taken into custody again and was arraigned on October 24. On September 10, 1981, some 11 months after his second arrest, defendant filed his motion to dismiss based upon an asserted violation of his right to a speedy trial. On October 22, 1981, this motion was denied. On November 18, 1981, defendant's jury-waived trial was held. This was approximately 29 months after his first arrest and 15 months after his indictment.
In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set out an ad hoc, four factor balancing test to determine whether a defendant was denied his right to a speedy trial. These factors are: (1) length of pretrial delay, (2) the reasons for the delay, (3) whether defendant has asserted his right to a speedy trial, and (4) prejudice to the defendant resulting from the delay. Id. at 530, 92 S.Ct. at 2192.
1) Length Of Pretrial Delay
The length of pretrial delay is "to some extent a triggering mechanism", for, unless the delay is presumptively prejudicial, no further inquiry need be made into the other factors which complete the test. Barker v. Wingo, supra at 530, 92 S.Ct. at 2192. The protection of the Sixth Amendment right to a speedy trial attaches at the time defendant becomes an "accused", e.g. State v. Holmes, 643 S.W.2d 282, 285 (Mo. App.1982), and a defendant becomes an "accused" at the time of an indictment or information or an arrest whichever occurs first. Id. at 285. See Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 303-304, 46 L.Ed.2d 205 (1975); See United States v. Marion, 404 U.S. 307, 318-319, 92 S.Ct. 455, 462-463, 30 L.Ed.2d 468 (1971). In the present case, defendant was arrested, released and then indicted on the same charges causing the first arrest. This raises the question whether defendant became an "accused" at the first arrest.
Previously, we have held that when a defendant is arrested, released and then re-arrested for the same offense, the defendant becomes an "accused" and his right to a speedy trial begins to run from the first arrest. State v. Black, 587 S.W.2d 865, 875 (Mo.App.1979). This holding, however, has been nullified recently by the United States Supreme Court in United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). Noting a split in the jurisdictions, as we did in Black, the Court, over a vigorous dissent, held that "[o]nce charges are dismissed, the speedy trial guarantee is no longer applicable." Id. at 8, 102 S.Ct. at 1502. We must follow the holding and teaching of the MacDonald case.
Since defendant was released after the first arrest, the 14 month period from that arrest until the subsequent indictment is irrelevant to the issues here. However, 15 months elapsed from the filing of the indictment until the trial began. For our purposes here, we will assume this 15 month delay to be presumptively prejudicial, see United States v. Washington, 504 F.2d 346, 348 (8th Cir.1974) (14 month delay served as the "triggering mechanism"). See generally, Joseph, Speedy Trial Rights On Application, 48 Fordham L.Rev. 611, 623, n. 71 (1980) (generally, 8 months or longer is considered to be presumptively prejudicial). We now turn to the other three factors of the Barker v. Wingo test.
2) Reasons For The Delay
The 15 month delay between the indictment and the trial was due, for the most *494 part, to defendant's motions, requests for continuances and continuances granted at the request of both parties. "Where [the defendant] has contributed to the delay by asking for and being granted continuances, he cannot later successfully allege the denial of his constitutionally guaranteed right to a speedy trial." State v. Campbell, 612 S.W.2d 371, 374 (Mo.App.1980). Although the state is required to bring the defendant to a timely trial, the reasons for the delay in the instant case are weighed heavily against the defendant.
3) Assertion Of The Right To A Speedy Trial
Defendant did not assert his right to a speedy trial until September 10, 1981, some 11 months after his second arrest. Subsequent to defendant's assertion of the right, a continuance was granted at the request of both parties. Admittedly, defendant had no affirmative duty to bring himself to trial, but, obviously, this did not preclude him from seeking a quick trial after his second arrest. See State v. Black, 587 supra at 876. Defendant's actions contradict his present claim that his right to a speedy trial was violated. See State v. Powers, 612 S.W.2d 8, 13 (Mo.App.1980); State v. Santonelli, 600 S.W.2d 205, 207 (Mo.App.1980); see also State v. Black, supra at 876.
4) Prejudice To The Defendant
The factors to be assessed in determining whether delay resulted in prejudice to the defendant are (1) prevention of oppressive pretrial incarceration; (2) minimization of anxiety and concern of the accused; and (3) limitation of the defendant's ability to defend himself. Barker v. Wingo, supra 407 U.S. at 532, 92 S.Ct. at 2193. Defendant focuses his argument on the last factor. Defendant claims the delay made it nearly impossible to contact the witnesses he needed for his defense.
As previously demonstrated, the 14 month delay from defendant's first arrest to indictment is irrelevant to the issues here, and the 15 month delay from the indictment to trial was, for the most part, caused by defendant. Thus, if any delay worked any prejudice against defendant, he was the cause of the delay and, thus, the cause of the prejudice. More important, there is nothing in the record showing how the delay precluded defendant from locating or contacting his alleged witnesses.[3] To require reversal, the claimed prejudice resulting from delay "must be actual prejudice apparent on the record or by reasonable inferencenot speculative or possible prejudice." State v. Buckles, 636 S.W.2d 914, 920 (Mo. banc 1982). Defendant's bald assertion of prejudice does not meet this standard.
Having weighed the four factors set out in Barker v. Wingo, supra, we conclude defendant's constitutional right to a speedy trial has not been violated.
Judgment affirmed.
DOWD, C.J., and THOMAS F. McGUIRE, Special J., concur.
NOTES
[1] In its case, the state proved defendant had been convicted of 4 prior drug-related crimes2 for possession and 2 for sale. In its brief, the state argues these prior convictions tend to show defendant's knowledge and intent and should be used as additional probative evidence. The record, however, shows these crimes were proffered by the state to show defendant was "a persistent offender for punishment under § 558.016" and "further, a habitual drug offender... under § 195.200.1(3) ..." We must conclude these crimes were admitted into evidence for the limited purpose requested and not to prove knowledge and intent.
[2] In his brief, defendant focuses his argument on the alleged violation of his Sixth Amendment right to a speedy trial.
[3] The unverified motion to dismiss, signed by defendant's counsel, states:
"That the Defendant was prejudiced by the delay of the State as described above because he cannot and has not been able to locate DAVID KNIGHT and has heard that he has moved to somewhere in Texas, that the memory of EDNA DAVIS has faded and that RICHMOND BRAUN has been unwilling to talk with Defendant's counsel for the reason that he is afraid of being charged."
This motion is not self proving.
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
For the First Circuit
No. 18-2013
UNITED STATES OF AMERICA,
Appellee,
v.
YAIRA T. COTTO-FLORES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Thompson, Circuit Judges.
Luis Rafael Rivera-Rodríguez, with whom Allan Amir Rivera-
Fernández was on brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
August 10, 2020
THOMPSON, Circuit Judge. Once again, we are called upon
to explain how a federal government in which Puerto Ricans have no
vote may regulate them more extensively than it can most every
other American citizen. Bound by our precedent, here we go.
One fateful day in March 2015, Yaira Taines Cotto-
Flores, then a 26-year-old English teacher, drove a 14-year-old
student to a motel in San Lorenzo, Puerto Rico and had sex with
him. That was a crime. See P.R. Laws Ann. tit. 33, §§ 4770, 4772.
And to anyone familiar with our federal system of government, which
trusts the states to handle most local criminal offenses (and
thereby protects their citizens from federal overreach), it might
have seemed like a case for Puerto Rico to prosecute and punish.
After all, "[p]erhaps the clearest example of traditional state
authority is the punishment of local criminal activity." Bond v.
United States, 572 U.S. 844, 858 (2014). By limiting federal
jurisdiction over local criminal conduct, and leaving room for
state prosecutors to exercise discretion, the Constitution not
only protects states' "sovereign" policy choices; it safeguards
"the liberty of the individual from arbitrary power." Id. at 864–
65. It gives people "within a State" the right to be free from
federal prosecution for "laws enacted in excess" of Congress's
delegated "governmental power[s]," Bond v. United States, 564 U.S.
211, 222, 225 (2011), powers that are carefully "limited" within
the fifty states, United States v. Morrison, 529 U.S. 598, 607,
- 2 -
618 (2000) ("The regulation and punishment of intrastate violence
that is not directed at the instrumentalities, channels, or goods
involved in interstate commerce has always been the province of
the States."). But not in Puerto Rico.
As the Supreme Court frequently reminds us, Puerto Rico
is not a "State" but part of the "Territory or other property
belonging to the United States." Harris v. Rosario, 446 U.S. 651,
651 (1980) (quoting U.S. Const., Art. IV, § 3, cl. 2) (emphasis
added). For that reason, in important ways, the U.S. government
can treat the island and its residents differently. See id.;
Puerto Rico v. Shell Co., 302 U.S. 253, 257 (1937) (citing Balzac
v. Porto Rico, 258 U.S. 298, 304, 205 (1922)); Franklin Cal. Tax-
Free Tr. v. Puerto Rico, 805 F.3d 322, 344–45 (1st Cir. 2015); see
also below at 64-67 and cases cited. Unfortunately for Cotto,
that's just what happened here.
After an investigation, federal prosecutors charged
Cotto in the United States District Court for the District of
Puerto Rico with transporting a minor "in interstate or foreign
commerce, or [as relevant here] in any commonwealth, territory or
possession of the United States" with the intent to engage in
criminal sexual activity — a federal crime under the Mann Act of
1910 (as amended) that carries a mandatory minimum sentence of ten
- 3 -
years in prison. 18 U.S.C. § 2423(a).1 Cotto was tried, convicted,
and sentenced to ten years in federal prison. She now appeals.
She makes four main arguments. First, she contends that
§ 2423(a), like its counterpart covering adult victims, see United
States v. Maldonado-Burgos, 844 F.3d 339, 349–50 (1st Cir. 2016)
(construing 18 U.S.C. § 2421(a)), only applies to transportation
in "interstate or foreign commerce" with respect to Puerto Rico
(that is, to travel to or from the island); and since she never
left Puerto Rico with the victim, the drive wasn't a federal crime.
Second, even if § 2423(a) covers intra-Puerto Rico travel, there
was insufficient evidence to prove she drove the victim anywhere
— even within Puerto Rico. Third, the judge confused the jury by
explaining the elements of the Puerto Rico crimes (of "sexual
assault" and "lewd acts") the government alleged she'd intended to
commit at her destination. And fourth, the judge should not have
let the victim testify by two-way videoconference, which violated
Cotto's Sixth Amendment right to confront her accuser in person.
1 In a related case heard on the same day as this one, see
United States v. Montijo-Maysonet, No. 18-1640, defense counsel
reported that Puerto Rico is the only place where the government
has prosecuted wholly local conduct like Cotto's under § 2423(a),
based on her search of the judiciary's Public Access to Electronic
Records system. When we followed up during oral argument in this
case, the government responded that it was not aware of any such
case brought in any other United States territory outside of Puerto
Rico.
- 4 -
Here are the spoilers. We disagree with all but one of
Cotto's gripes. Namely: § 2423(a)'s ban on transporting a minor
to commit a sex crime, unlike § 2421(a)'s general prohibition,
applies to transportation within Puerto Rico, which is a
"commonwealth . . . of the United States" under the statute; there
was ample evidence to find Cotto guilty; and the judge properly
instructed the jury on the local crimes Cotto allegedly drove the
victim to the motel to commit. However, we hold that the judge
violated Cotto's Sixth Amendment right to in-person confrontation
when he allowed the victim to testify by two-way close-circuit
television ("CCTV") under a misreading of Maryland v. Craig, 497
U.S. 836, 855–56 (1990), and without making the specific "on the
record" findings that 18 U.S.C. § 3509(b)(1)(C) and Craig require.
On these unique facts, we conclude that the appropriate remedy is
to reverse Cotto's conviction and remand for a new trial.
HOW WE GOT HERE
The Crime2
Cotto started teaching at Escuela Manuel Torres
Villafañe, a public school in San Lorenzo, Puerto Rico, in August
2015. Before long, other teachers started to notice that a 14-
year-old ninth grader — we'll call him "YMP" — wasn't finishing
2
Since Cotto makes a sufficiency challenge, we tell the story
from the government's perspective so far as the evidence reasonably
supported the inferences the government draws. See United States
v. Tanco-Baez, 942 F.3d 7, 15 (1st Cir. 2019).
- 5 -
his schoolwork and would often skip class to spend time alone with
Cotto. One day, a teacher walked by Cotto's classroom and saw her
alone with YMP holding hands. As it turns out, that was the tip
of the iceberg. By November, Cotto and YMP were messaging each
other constantly through WhatsApp (the smartphone application).
Cotto told YMP that she loved him, that "if you were older, I would
already be by your side," and proposed that they have sex. In
January, she planned how to do it without getting caught: "I
prefer to go into that motel than out front in the car because
it's not safe," she wrote. She told him she'd take steps to make
sure she didn't get pregnant. She also bought him gifts — facial
creams and an expensive watch for Valentine's day — and left love
notes in his school bag. All the while, Cotto stressed the need
to keep their relationship hidden. "I have left a lot for you,"
she messaged him, "and risk myself every day, to losing even my
job." "We have to hide babe" (she wrote); "[i]f your mom makes a
complaint, well, then the biggest scandal in the world explodes."
On February 3, 2016, they went to a nearby motel and had sex for
the first time.
A month later, on March 1, 2016, YMP told a school staff
member that he needed to leave early to go to the barbershop and
his grandmother's house. In reality, just after noon, he walked
to the restaurant La Casa de Abuela (which, to be fair, translates
to "Grandmother's House"), where he and Cotto had planned for her
- 6 -
to pick him up. YMP testified that about five minutes after he
got to the restaurant, Cotto arrived in her gray Kia Rio, YMP got
into the passenger seat, and they drove to Motel Oriente. When
they got there, Cotto drove into the carport and paid through a
window. They went to a room on the second floor and had sex.
Meanwhile, tipped off that something was up, the school social
worker and a volunteer went to the barbershop and YMP's
grandmother's house and learned that YMP hadn't been to either.
Around three hours later, Cotto dropped off YMP on a road near the
restaurant and he walked back to school, where the principal and
YMP's mother were waiting for him. Initially, YMP told those
adults and his friends that he hadn't been with Cotto that day.
But later, YMP revealed that he had been.
The Trial
Cotto was charged under 18 U.S.C. § 2423(a), which (along
with §§ 2421–24) codifies the Mann Act of 1910, Pub. L. No. 61–
277, § 2, 36 Stat. 825 (1910), as amended in the Protection of
Children from Sexual Predators Act of 1998, Pub. L. No. 105–314,
§ 103, 112 Stat. 2974, 2976 (1998) (the "Protect Act").3 Section
2423(a) provides that anyone "who knowingly transports" someone
under eighteen years old "in interstate or foreign commerce, or in
3 We chronicled the post-1910 amendments to the Mann Act in
Maldonado-Burgos, 844 F.3d at 341 n.3.
- 7 -
any commonwealth, territory or possession of the United States
with intent that [the minor] engage in prostitution, or in any
sexual activity for which any person can be charged with a criminal
offense, shall be fined . . . and imprisoned not less than 10 years
or for life." 18 U.S.C. § 2423(a). Cotto twice moved to dismiss
the indictment, arguing both times that § 2423(a) requires
transportation across state or territorial lines and doesn't cover
trips from one place to another within Puerto Rico. But the judge
denied both motions, finding that Puerto Rico is a "commonwealth"
within the meaning of the Act. See United States v. Cotto-Flores,
No. Cr. 16-206, 2016 WL 5818476, at *2–3 (D.P.R. Oct. 5, 2016).
Having upheld the indictment, the judge set the case for trial.
Several days before trial, the government filed a motion
to have YMP testify by two-way closed-circuit television ("CCTV")
under 18 U.S.C. § 3509(b) (permitting that procedure if the
government shows the victim can't testify in the defendant's
presence "because of fear" or because expert testimony has
established a "substantial likelihood" (s)he "would suffer
emotional trauma from testifying," among other reasons).4 Cotto
4Section 3509(b)(1)(D) describes how the procedure works:
essentially, it's a two-way videoconference. The witness, the
prosecutor, and the defendant's attorney go to a separate room,
while the judge, jury, and defendant stay in the courtroom. The
attorneys for each side then question the witness in the separate
room (conducting direct and cross examination) while a camera
transmits the live video/audio feed of the minor to a
- 8 -
opposed the request, arguing that remote testimony wasn't
necessary and would violate the Sixth Amendment Confrontation
Clause; in her view, YMP had to testify in open court in Cotto's
presence. But the judge disagreed. Long story short (we'll give
you the details when the time comes), after interviewing YMP in
chambers, the judge found YMP would be unable to testify in court
in front of Cotto, granted the government's motion, and permitted
YMP to testify via two-way CCTV.
So at trial, the Assistant United States Attorney
("AUSA" for short) and Cotto's attorney questioned YMP in a
separate room, with his testimony streamed via CCTV to Cotto, the
judge, and the jury in the courtroom. See 18 U.S.C.
§ 3509(b)(1)(D). YMP could see Cotto and she could see him. See
id. He testified to the WhatsApp messages, his relationship with
Cotto, the trip to the motel, and the sex. In her defense, Cotto
called one of YMP's classmates, who testified that he saw YMP leave
school that day and get into a white car, not Cotto's car. But
based on YMP's testimony, along with that of two other teachers,
a school volunteer, the school social worker, the school director,
monitor/speaker in the courtroom, where the defendant, judge,
jury, and the public can see and hear the minor testify. Id.
Meanwhile, thanks to another camera in the courtroom, the minor
can see a live video stream of the defendant (on a monitor in the
separate room) and hear the judge through a speaker while (s)he
testifies. Id. The defendant must also be given a way to privately
communicate with his defense attorney during the testimony. Id.
- 9 -
YMP's mother, and several government investigators, the jury found
Cotto guilty.
After the last government witness, then again after the
guilty verdict, Cotto moved for a judgment of acquittal under Rule
29 of the Federal Rules of Criminal Procedure. She repeated her
claim that § 2423(a) requires the defendant to have transported
the minor across state or territorial lines, and she urged that
even if § 2423(a) applied to drives from here to there within
Puerto Rico, there was no evidence Cotto drove YMP to the motel as
charged. The judge denied those motions and sentenced her to the
mandatory minimum of ten years in prison. Needless to say, Cotto
appealed.
ANALYSIS
Applying § 2423(a) within Puerto Rico
On appeal, as she did below, Cotto first argues that her
case should never have gone to trial because § 2423(a) does not
apply to the conduct she was charged with — transporting a minor
within Puerto Rico to commit a sex crime. In the fifty states,
that section only applies if the defendant transported the victim
"in interstate or foreign commerce." In Cotto's view, the same is
true in Puerto Rico, which is (since 1952) a "self-governing
Commonwealth" vested with "state-like autonomy." United States v.
Maldonado-Burgos, 844 F.3d 339, 340, 348–50 (1st Cir. 2016) (first
quote quoting Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863, 1874
- 10 -
(2016)). In fact, she reminds us, in Maldonado-Burgos, we held
that another section of the Mann Act (18 U.S.C. § 2421(a), which
penalizes transporting anyone "in interstate or foreign commerce,
or in any Territory or Possession of the United States" to commit
a sex crime) did not apply to travel within Puerto Rico. 844 F.3d
at 349–50. Cotto urges us to read § 2423(a) in the same way. If
she's right, then the judge should have dismissed the indictment,
which never alleged Cotto took YMP beyond Puerto Rico. On the
other hand, the government insists the plain text of § 2423(a)
(which covers the transportation of a minor "in any commonwealth,
territory, or possession of the United States" to commit a sex
crime) shows that unlike its more general cousin, § 2423(a) covers
intra-Puerto Rico transportation.
Despite Cotto's objections, we have to agree with the
government. Cotto has this much right though: given its promise
to grant Puerto Rico state-like status, we don't lightly conclude
that Congress intended to exercise a police power — like the power
to define, prosecute, and punish local crime — in Puerto Rico that
the law elsewhere reserves for state governments. See Cordova &
Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank N.A., 649
F.2d 36, 42 (1st Cir. 1981); see also Morrison, 529 U.S. at 618
("Indeed, we can think of no better example of the police power,
which the Founders denied the National Government and reposed in
the States, than the suppression of violent crime and vindication
- 11 -
of its victims."). In this case, however, the plain words of the
Protect Act (which amended § 2423(a) to specifically add the word
"commonwealth"), compel that conclusion. So unlike § 2421(a),
§ 2423(a) applies to a defendant who transports his or her victim
wholly within Puerto Rico.
Like any question of statutory interpretation, whether
and how a statute applies to Puerto Rico depends not only on the
"words in the statute," but also "the context, the purposes of the
law, and the circumstances under which the words were employed."
Maldonado-Burgos, 844 F.3d at 347 (quoting Cordova, 649 F.2d at
38). So here, as in Maldonado-Burgos, Puerto Rico's transition
into a "self-governing Commonwealth" sets the stage for our
analysis. Id. at 340–41. To start then, we'll retrace that
historical current and reinforce the strong tug it exerts against
the government when it claims that a federal law regulates conduct
in Puerto Rico that the law doesn't reach in the states. See id.
at 342–43 (citing Cordova, 649 F.2d at 42). With that background
in place, we'll come back to the statute's text.
Puerto Rico's Commonwealth Status under Federal Statutes
Before Puerto Rico became a "commonwealth," that is, for
its first fifty-four years as a United States territory, its
internal affairs were almost entirely "subject to the command of
Congress," Cordova, 649 F.2d at 39, and a local government largely
run by federal appointees, see Sánchez Valle, 136 S. Ct. at 1868.
- 12 -
Starting in 1900 (under the Foraker Act), "[t]he U.S. President,
with the advice and consent of the Senate, appointed the governor,
supreme court, and upper house of the legislature," although "the
Puerto Rican people elected the lower house themselves." Id. Over
time, Congress gave the Puerto Rican people limited self-
government over local affairs but kept a firm grip on levers of
colonial control. See Cordova, 649 F.2d at 39. In 1917, the Jones
Act granted Puerto Ricans U.S. citizenship and the right to elect
both houses of the local legislature. See Sánchez Valle, 136 S.
Ct. at 1868. But the U.S. President still appointed the
territory's most powerful executive and judicial officers
(including the governor, the attorney general, the commissioner of
education, and the justices of the Puerto Rico Supreme Court);5
and federal law required the Puerto Rican legislature to report
all its acts to the federally-appointed governor and to Congress,
which could veto them. See Cordova, 649 F.2d at 39; Jones Act of
1917, §§ 12–13, 34, 40, 39 Stat. 951, 960–61 (Mar. 2, 1917).
Moreover, "in cases of conflict, Congressional statute, not Puerto
5
In 1947, Congress amended the Jones Act to let Puerto Ricans
elect the governor "and granted that Governor the power to appoint
all cabinet officials," but the United States "President retained
the power to appoint (with Federal Senate confirmation) judges, an
auditor, and the new office of Coordinator of Federal Agencies."
Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv., LLC,
140 S. Ct. 1649, 1660 (2020) (citing Act of Aug. 5, 1947, ch. 490,
§§ 1, 3, 61 Stat. 770, 771).
- 13 -
Rico law, would apply no matter how local the subject." Cordova,
649 F.2d at 39 (citing the Jones Act, §§ 37, 57, 39 Stat. at 964,
968).
The tectonic plates shifted in 1950, which marked "a
significant change in the relation between Puerto Rico and the
United States." Id. That year, under mounting pressure from
Puerto Rico's leaders and the international community, Congress
authorized Puerto Rico to call a convention to draft its own
constitution, which would take effect when ratified by popular
referendum in Puerto Rico and approved by Congress. See Act of
July 3, 1950, Pub. L. 600, § 1, 64 Stat. 319 ("[F]ully recognizing
the principle of government by consent, this Act is now adopted in
the nature of a compact so that the people of Puerto Rico may
organize a government pursuant to a constitution of their own
adoption."). Two years later, when Congress approved the new
constitution, it repealed the inconsistent provisions in the Jones
Act and rechristened the remainder the Puerto Rico Federal
Relations Act (the "PRFRA"), which (along with the U.S.
Constitution) is now the cornerstone of the island's legal
relationship with the federal government. See id. §§ 4, 5, 64
Stat. at 320. Puerto Rico thus emerged from the process "a new
kind of political entity, still closely associated with the United
States but governed in accordance with, and exercising self-rule
through, a popularly ratified constitution." Sánchez Valle, 136
- 14 -
S. Ct. at 1874. Or as we've put it, "Puerto Rico's status changed
from that of a mere territory to the unique status of
Commonwealth": the name the new constitution and the statute
approving it gave the new polity. Cordova, 649 F.2d at 41; see
P.R. Const. art. I, § 1 ("The Commonwealth of Puerto Rico is hereby
constituted."); Act of July 3, 1952, Pub. L. 447, 66 Stat. 327
(approving "the constitution of the Commonwealth of Puerto Rico").
The Puerto Rico constitutional convention chose that
label ("commonwealth") because in the delegates' view, it
reflected Puerto Rico's "legislative autonomy in local matters."
Cordova, 649 F.2d at 40. As the convention explained:
the single word 'commonwealth', as currently used,
clearly defines the status of the body politic
created under the terms of the compact existing
between the people of Puerto Rico and the United
States, i.e., that of a state which is free of
superior authority in the management of its own
local affairs but which is linked to the United
States of America and hence is a part of its
political system in a manner compatible with its
federal structure.
P.R. Const. Convention Res. 22 (P.R. 1952).
Congress ratified that understanding when it approved
the Puerto Rico constitution and passed the PRFRA, acts which
(according to the Supreme Court) "relinquished [Congress's]
control over [Puerto Rico's] local affairs" and granted the island
"a measure of autonomy comparable to that possessed by the States."
Sánchez Valle, 136 S. Ct. at 1874 (quoting Examining Bd. of Eng'rs,
- 15 -
Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 597
(1976)); see also Calero-Toledo v. Pearson Yacht Leasing Co., 416
U.S. 663, 673 (1974) (holding that Puerto Rico was a "State" under
the federal statute requiring that a three-judge panel convene to
consider any challenge to a state statute; reasoning that the
Commonwealth, like a state, is "sovereign over matters not ruled
by the [U.S.] Constitution," unlike "a territory whose local
affairs are subject to congressional regulation"); Cordova, 649
F.2d at 40 (reviewing the 1950–52 legislative history and
concluding that "Commonwealth represents the fulfillment of a
process of increasing self-government over local affairs by the
people of Puerto Rico" and an "end" to its "subordinate status").
And in 1953, the executive branch assured the United Nations that
Public Law 600, the PRFRA, and the Puerto Rico constitution gave
the new commonwealth the authority to respond to Puerto Rican
voices free from federal "interference with matters of local
government."6
6
In 1953, the U.S. State Department, seeking to have Puerto
Rico classified as a "self-governing territory" (which freed the
United States from certain international obligations with respect
to the island), wrote in a memorandum to the United Nations that
"Congress ha[d] agreed that Puerto Rico shall have, under [its]
Constitution, freedom from control or interference by the Congress
in respect of internal government and administration, subject only
to compliance with applicable provisions of the Federal
Constitution, the [PRFRA] and the acts of Congress authorizing and
approving the Constitution, as may be interpreted by judicial
decision." Cordova, 649 F.2d at 40–41 & n.28. And it assured the
- 16 -
In at least one way, these broad brushstrokes exaggerate
the rights the 1950–52 Acts granted Puerto Rico and its people.
Under the U.S. Constitution, Puerto Rico is still a "Territory,"
meaning that Congress (acting under its power to "make all needful
Rules and Regulations respecting the Territory . . . belonging to
the United States," U.S. Const., Art. IV, § 3, cl. 2), "may treat
Puerto Rico differently from the States so long as there is a
rational basis for its actions." United States v. Vaello-Madero,
956 F.3d 12, 20 (1st Cir. 2020) (quoting Harris, 446 U.S. at 651–
52); Franklin Cal. Tax-Free Tr., 805 F.3d at 344 (holding that
"the limits of the Tenth Amendment do not apply to Puerto Rico"
because it is "still constitutionally a territory" and its "powers
are not 'those reserved to the States' but those specifically
granted to it by Congress under its constitution" (quoting U.S.
Const. amend. X)). Before 1952, we held (following Supreme Court
precedent) that Congress may use that power under the Territory
Clause to regulate purely local crime or other internal affairs in
Puerto Rico that Congress could not reach in the states. See
members that "[t]hose laws which directed or authorized
interference with matters of local government by the Federal
Government ha[d] been repealed." Id. at 41 n.28. Presidents
Truman and Kennedy made similar statements in other official
memoranda. See id. at 40–41 (quoting President Truman's
recognition, in transmitting the draft constitution to Congress,
that its approval would vest "full authority and responsibility
for local self-government . . . in the People of Puerto Rico").
- 17 -
Crespo v. United States, 151 F.2d 44, 45 (1st Cir. 1945). We
assume (because Cotto does not dispute) that even after 1952,
Congress may still regulate such intra-Puerto Rico conduct, even
if doing so would break the promises it made that year. See below
at 68-70; United States v. Lopez Andino, 831 F.2d 1164, 1172–75
(1st Cir. 1987) (concluding that the Court in Harris "reaffirmed
the existence of Congress's post-1952 plenary power over Puerto
Rico pursuant to the Territory Clause," and the PRFRA is not a
true "compact" but "merely an Act of Congress" that "does not bind
future Congresses"). But see Fin. Oversight & Mgmt. Bd. for P.R.
v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1677–83 (2020) (Sotomayor,
J., concurring) (arguing that, to the contrary, the 1952
legislation may well have been a "compact" that may place limits
on Congress's power to regulate Puerto Rico).7
In other words, we need not decide whether the 1952
legislation restricts Congress's power to legislate in Puerto
Rico. Rather, "this case requires us [only] to answer a question
of congressional intent," Maldonado-Burgos, 844 F.3d at 345: what
did Congress mean to do when it amended § 2423(a) to include the
7
Thus, in case there's any room for doubt, we need not and
do not decide that the 1952 legislation constitutes a "compact"
between the United States and Puerto Rico that differs from a
regular statute; and we do not suggest that there is some basis
other than the Territory Clause on which Congress may criminalize
illicit transportation within Puerto Rico that does not affect
interstate commerce. Contra below at 70.
- 18 -
word "commonwealth"? So for present purposes, what's important is
that Congress's commitment in the PRFRA to give Puerto Rico state-
like autonomy in its local affairs, see Sánchez Valle, 136 S. Ct.
at 1874, has at least the force of federal statute, see Lopez
Andino, 831 F.2d at 1174–75 (Torruella, J., concurring), subject
to repeal only by an express statement or clear implication in
later legislation, see Aurelius, 140 S. Ct. at 1677 (Sotomayor,
J., concurring) (quoting Carcieri v. Salazar, 555 U.S. 379, 395
(2009)). That commitment (as we and the Court have construed it)
forms the backdrop against which Congress now legislates when it
comes to Puerto Rico and "informs Congress's intent" when it does
so. Jusino Mercado v. Puerto Rico, 214 F.3d 34, 44 (1st Cir.
2000).
Cordova/Maldonado-Burgos
That background plays an especially critical role when,
as here, we're asked to construe another federal statute "to
intervene more extensively into the local affairs of post-
Constitutional Puerto Rico than into the local affairs of a state."
Cordova, 649 F.2d at 42. In such cases, we ask whether the "Act's
framers, if aware of Puerto Rico's current [post-]constitutional
status, would have intended it to be treated as a 'state' or a
'territory' under the Act." Id. at 39. That assumption comes
with a corollary: that, if the enacting Congress was aware of
Puerto Rico's "commonwealth" status and long road to attaining it,
- 19 -
it would have acted with an intent to "fulfill [its] promise" to
grant Puerto Ricans state-like self-rule free from the selective
intervention of a federal government they do not elect.8 Jusino
Mercado, 214 F.3d at 44. With that pledge in mind, we do not read
statutes "to treat Puerto Rico in one way and the states in another
unless the language of [the] particular statute" or "some other
compelling reason" in its structure, context, or legislative
history demands that result. Id. at 42 (anchoring that rule in
§ 9 of the PRFRA, 48 U.S.C. § 734, which we read to "advise[] us
with uncharacteristic bluntness that [Congress] does not intend a
generally applicable statute to regulate Puerto Rico to the full
extent allowed by the Constitution unless it either specifically
singles out Puerto Rico or imposes similar regulations on the
states"); see also Cordova, 649 F.2d at 42 (holding that "there
would have to be specific evidence or clear policy reasons embedded
in [a] statute to demonstrate" that Congress meant it to regulate
more local conduct in "post-Constitutional Puerto Rico" than it
does in the states).9
8 Despite Public Law 600's peon to "government by consent,"
Puerto Rican residents do not have voting representatives in
Congress, which can nonetheless regulate them; and to boot, they
cannot vote for President. See Igartúa de la Rosa v. United
States, 626 F.3d 592, 596 (1st Cir. 2010).
9 Cordova established this framework in holding that the
Sherman Antitrust Act did not apply to restraints on trade or
commerce taking place wholly within Puerto Rico. 649 F.2d at 42.
- 20 -
In Maldonado-Burgos, we applied that test to § 2421(a)
(which bans the transportation of "any individual in interstate or
foreign commerce, or in any Territory or Possession of the United
States" to commit a sex crime) and held that after 1952, that
section no longer applies to travel wholly within Puerto Rico.
844 F.3d at 346–47. The government had indicted a man who
transported an 18-year-old woman with a severe mental disability
within Puerto Rico to engage in unlawful sexual activity. Id. at
340. The district court dismissed the indictment. Id. On appeal,
the government argued that the statute applied to Puerto Rico as
a "Territory or Possession" and covered transportation within it,
as we'd held in 1945. See id. at 342–43 (citing Crespo, 151 F.2d
at 45 (holding that it could "not be doubted that [§ 2421(a)]
applie[d] to transportation within Puerto Rico," which was "a
territory within the meaning of the Act")). The government urged
that despite the intervening developments, Crespo still
controlled. We disagreed; rather, we held that Cordova "blazed a
trail" we had to follow. Id. at 340. As in Cordova, we asked the
question Crespo hadn't answered: whether "the Mann's Act framers,
if aware" of Puerto Rico's "post-Crespo transformation from a
[mere] United States territory to the 'self-governing
Commonwealth' it is today," "would have intended it to be treated
as a 'state' or 'territory' under the Act." Id. at 340, 347 (first
quoting Sánchez Valle, 136 S. Ct. at 1874; then quoting Cordova,
- 21 -
649 F.2d at 39). Reviewing the statute's text, legislative
history, and the government's policy arguments (that human
trafficking is a "pervasive problem" in Puerto Rico), we
nonetheless found no "specific evidence or clear policy reasons
embedded in § 2421(a)" to show that its framers would have meant
to federalize the prosecution of local crime in the Commonwealth
of Puerto Rico. Id. at 347–50. Thus, we concluded that § 2421(a)
reaches "only transportation 'in interstate or foreign commerce'
with respect to the island." Id. at 350. In other words, § 2421(a)
reserves for Puerto Rico (as it does for states) the decisions of
when to prosecute, and how severely to punish, illicit
transportation that occurs wholly within its borders.
Section 2423(a)
In this case, Cotto urges us to extend Maldonado-Burgos
and hold that § 2423(a) also requires cross-border travel and
doesn't apply to drives from schools to motels within Puerto Rico.
As we outlined in Maldonado-Burgos, however, § 2423(a) defines a
separate crime against a distinct class of victims (minors) and
uses language different from § 2421(a)'s "to identify the
transportation covered." Id. at 351, n.11. Most damning, in 1998,
Congress amended § 2423(a) to cover illicit transportation "in any
commonwealth, territory, or possession of the United States." Id.
at 350 n.10 (quoting the Protect Act, Pub. L. No. 105–314, § 103,
- 22 -
112 Stat. 2974, 2976) (emphasis added).10 When it did so (we must
assume), Congress was well "aware of Puerto Rico's [commonwealth]
status," id. at 347, of Cordova, and of the parade of decisions in
which the District of Puerto Rico had exempted "'intra-
commonwealth' activities" from several important "statutes which,
by their terms, appl[ied] to 'intra-territory,' but not to 'intra-
state,' activities," Cordova, 649 F.2d at 38 & n.6, 42 (listing
decisions holding that the Federal Firearms Act, the Federal
Alcohol Administration Act, and the Sherman Act did not apply to
wholly local activity in Puerto Rico). See Guerrero-Lasprilla v.
Barr, 140 S. Ct. 1062, 1072 (2020) (explaining that courts
"normally assume that Congress is 'aware of relevant judicial
precedent' when it enacts a new statute" (quoting Merck & Co. v.
Reynolds, 559 U.S. 633, 648 (2010)).11 Against that background,
10
The Protect Act also amended § 2423(a) to increase the
maximum penalty for violating that section and added enhanced
penalties for repeat offenders. See Pub. L. 105–314, 112 Stat. at
2974.
11 Of course, being one circuit among many, we might not
normally assume that Congress has our caselaw in mind when it
enacts legislation. As other circuits have recognized, however,
given our jurisdiction over appeals from the District of Puerto
Rico, our decisions have an outsized impact on how federal law
applies to Puerto Rico. See Rodríguez v. P.R. Fed. Affairs Admin.,
435 F.3d 378, 382 (D.C. Cir. 2006) (adopting our reasoning in
Jusino Mercado and considering us "the court most expert on Puerto
Rico's status"); see also United States v. Laboy-Torres, 553 F.3d
715, 719 n.3 (3d Cir. 2009) (according our decisions concerning
the application of federal statutes to Puerto Rico "great weight").
In addition, by 1998, Cordova (which was authored by then-Judge
Breyer), had been around for a while, and the Supreme Court had
- 23 -
there's only one plausible reason for the amendment: to remove
any doubt that § 2423(a) applied to the transportation of minors
in non-state "commonwealths" like Puerto Rico. See United States
v. Medina-Ayala, 906 F. Supp. 2d 20, 22 (D.P.R. 2012) (concluding
that "[t]here could hardly be a clearer [indication] of purpose
than the specific addition of the word 'commonwealth' to the
existing language of the Mann Act").12
In her effort to resist that conclusion, Cotto makes two
main arguments. First, she suggests that Congress must expressly
call out "Puerto Rico" in the statute before we can read it to
treat the island differently from the states. But nothing in the
PRFRA, Cordova, or Maldonado-Burgos lets us disregard Congress's
cited it with approval to describe Puerto Rico's commonwealth
status. See Rodríguez v. Popular Democratic Party, 457 U.S. 1, 8
(1982) (citing Cordova, 649 F.2d at 39–42).
12 Four states (Massachusetts, Pennsylvania, Virginia, and
Kentucky) and the Commonwealth of the Northern Mariana Islands
("CNMI"), all share the same "commonwealth" prefix. But Cotto
concedes that § 2423(a) doesn't cover transportation wholly within
any state. And for good reason, she does not argue that Congress
added the word "commonwealth" to single out the CNMI, which enjoys
an arguably even stronger presumption than Puerto Rico's that
Congress does not selectively intervene in its local affairs.
See U.S. ex rel. Richards v. De Leon Guerrero, 4 F.3d 749, 754
(9th Cir. 1993) (explaining that when Congress "pass[es]
legislation with respect to the CNMI" that "cannot also be made
applicable to the several States[,] the Northern Mariana Islands
must be specifically named therein for it to become effective in
the Northern Mariana Islands" (quoting U.S.-CNMI Covenant, Pub. L.
94–241, § 105, 90 Stat 263, 264 (Mar. 24, 1976))).
- 24 -
clearly-expressed intent because it failed to use those two magic
words.13 To the contrary, both decisions sought to "effectuate the
intent of the lawmakers" expressed in "the words of the statute"
and "the circumstances under which [they] were employed."
Maldonado-Burgos, 844 F.3d at 347 (quoting Cordova, 649 F.3d at
38). In those cases, unlike here, it was far from clear that the
operative text of § 2421(a) and the Sherman Act (reaching conduct
"in any territory or possession of the United States") was meant
to reach intra-commonwealth activity. And there was another,
plausible way to read that text: to apply only to pre-
constitutional Puerto Rico and other territories that hadn't
achieved state-like status. To resolve the ambiguity, we relied
on a background assumption about Congress's intent — that absent
"specific evidence" or "clear policy reasons" to the contrary,
13
Some laws — including the covenant between the CNMI and the
United States — do say that Congress must recite certain words
before its legislation can encroach on local sovereignty (among
other sensitive areas). See De Leon Guerrero, 4 F.3d at 753–54
(quoting U.S.-CNMI Covenant, Pub. L. 94–241, § 105, 90 Stat 263,
264 (Mar. 24, 1976)). Per our higher-ups, statutes that require
Congress to use such "express references" or "magical passwords"
really create "less demanding interpretive requirement[s]" because
they can't compel courts to "disregard [ ] the will of a later
Congress" conveyed "either expressly or by necessary implication
in a subsequent enactment." Dorsey v. United States, 567 U.S.
260, 274 (2012) (first quoting Lockhart v. United States, 546 U.S.
142, 149 (2005) (Scalia, J., concurring); then quoting Great N.
Ry. Co. v. United States, 208 U.S. 452, 465 (1908)). So whether
the 1952 Act could have required Congress to say "Puerto Rico" to
regulate its local affairs implicates another question not briefed
here: whether that legislation was more than an ordinary statute
that Congress may repeal without Puerto Rico's consent.
- 25 -
Congress would have meant to treat the Commonwealth like a state.
Maldonado-Burgos, 844 F.3d at 350 (concluding based on the "clear
congressional intent to grant Puerto Rico state-like autonomy"
that "the [Mann] Act's framers, if aware of Puerto Rico's current
constitutional status, would have intended it to be treated as a
'state'" and not a "territory" under § 2421(a) (quoting Cordova,
649 F.3d at 39) (relying on a "general Congressional intent to
grant Puerto Rico state-like autonomy" to reach the same conclusion
under the Sherman Act)); see also Jusino Mercado, 214 F.3d at 42
(explaining that was reasonable to assume Cordova's "default rule
. . . inform[ed] Congress's intent") (emphases all added).
But, when "Congress has made its [contrary] intent
clear," courts "must give effect to that intent," even if it defies
our settled expectations. Miller v. French, 530 U.S. 327, 328
(2000) (internal quotation marks omitted); In re Palladino, 942
F.3d 55, 59 (1st Cir. 2019) ("Absent [a] constitutional challenge,
when [we're] confronted with a clear statutory command . . . that
is the end of the matter." (citing TVA v. Hill, 437 U.S. 153, 194
(1978)). So when a statute like § 2423(a) clearly means to reach
more conduct in Puerto Rico than it does in the states, we have to
enforce it as written, even if it doesn't single out "Puerto Rico"
in so many words. See Dávila-Pérez v. Lockheed Martin Corp., 202
F.3d 464, 467–68 (1st Cir. 2000)(construing the words "Territory
or Possession outside the continental United States," in light of
- 26 -
the statutory context and legislative history, to cover Puerto
Rico); cf. Gregory v. Ashcroft, 510 U.S. 452, 460, 467 (1991)
(explaining that despite the rule that Congress must speak
"unmistakably" clearly to intrude on traditional state
prerogatives, the statute at issue did not have to "mention [state]
judges explicitly" to regulate their qualifications as long as it
was "plain to anyone reading the Act that it cover[ed] judges").
Cordova doesn't license us to nullify Congress's "commonwealth"
amendment; so we have to enforce its only reasonable meaning.
As her fallback, Cotto points to another clause in the
Protect Act, Pub. L. No. 105-314, § 104(a), 112 Stat. at 2976,
codified at 18 U.S.C. § 2426, which triples the maximum penalty
for offenders who violate the updated Mann Act (§§ 2421–24) after
being convicted of a prior sex offense "under State law." Section
2426(b) provides that "in this section," the term "State" includes
"a State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States."
There you have it, says Cotto: by defining "commonwealth[s]" as
"states," § 2426(b) shows that Congress meant to treat Puerto Rico
like a state in § 2423(a). But § 2426(b) defines "commonwealth[s]"
as "states" only for the purposes of § 2426 — to broaden the reach
of the repeat-offender penalties. So Cotto can't use § 2426(b)'s
definition to narrow § 2423(a)'s plain meaning. Her concession
that Congress used the term "commonwealth" to refer to Puerto Rico
- 27 -
elsewhere in the Protect Act only bolsters our conclusion that it
did the same in § 2423(a). See Envtl. Def. v. Duke Energy Corp.,
549 U.S. 561, 574 (2007) ("We presume that the same term has the
same meaning when it occurs here and there in a single statute.").
So, like every federal judge in District of Puerto Rico
to have addressed the question, we hold that § 2423(a) applies to
the transportation of a minor within Puerto Rico for the purpose
of committing a sex crime.14 Given that conclusion, the district
court did not err in denying Cotto's motion to dismiss the
indictment or her motions for judgment of acquittal based on the
lack of evidence that she took YMP outside Puerto Rico.15
14
See Santiago-Rivera v. United States, No. Cr. 14-742, 2019
WL 3365846, at *2 (D.P.R. July 25, 2019); United States v. Greaux-
Gomez, 254 F. Supp. 3d 329, 332 (D.P.R. 2017); United States v.
Montalvo-Febus, 254 F. Supp. 3d 319, 329 (D.P.R. 2017); United
States v. Montijo-Maisonet, 254 F. Supp. 3d 313, 315 (D.P.R. 2017);
United States v. Mercado-Flores, 109 F. Supp. 3d 467, 475 (D.P.R.
2015), adhered to, 124 F. Supp. 3d 55 (D.P.R. 2015), and vacated
on other grounds, 872 F.3d 25 (1st Cir. 2017); Cotto-Flores, 2016
WL 5818476, at *2–3; Medina-Ayala, 906 F. Supp. 2d at 22.
15
Cotto also urges that insofar as the statute covers
transportation within Puerto Rico, it is unconstitutional because
it exceeds Congress's power under the commerce clause. But
"Congress does not plainly lack plenary power under the Territorial
Clause to criminalize certain intra-jurisdictional activity in
[Puerto Rico] simply because it may not do so under the Commerce
Clause within the fifty states." United States v. Ríos-Rivera,
913 F.3d 38, 44 (1st Cir. 2019) (holding the district court did
not plainly err in upholding § 2423(a) as a valid exercise of
Congress's authority under the Territory Clause); Harris, 446 U.S.
at 651–52 (holding that Congress may rely on the Territory Clause
to "treat Puerto Rico differently from the States so long as there
is a rational basis for its actions"). Cotto does not address
- 28 -
Sufficiency of the Evidence
Cotto next argues that the government failed to prove
that Cotto "transported" YMP anywhere (nevermind outside Puerto
Rico). And even on our reading, the government had to prove that
Cotto "transport[ed]" YMP "in [the] commonwealth" as an element of
the offense. 18 U.S.C. § 2423(a). So as she sees it, even if we
view all the evidence in a light most favorable to the verdict (as
we must), the government's evidence lacked enough "bite" for a
reasonable jury to find "that the government proved each of the
elements of the charged crime beyond a reasonable doubt." Tanco-
Baez, 942 F.3d at 15 (quoting United States v. Lara, 181 F.3d 183,
200 (1st Cir. 1999)). If Cotto is right, then she'd be entitled
to a judgment of acquittal, not just a new trial. See Burks v.
United States, 437 U.S. 1, 18, (1978) (holding that "the Double
Jeopardy Clause precludes a second trial once the reviewing court
has found the evidence legally insufficient").
Her problem is that YMP testified in clear terms that
Cotto picked him up at La Casa de Abuela and drove him to the Motel
these precedents or argue that § 2423(a) oversteps Congress's power
to "make all needful Rules and Regulations respecting the Territory
. . . belonging to the United States," U.S. Const., Art. IV, § 3,
cl. 2. Nor does she develop any argument that the statute, as
we've interpreted it, lacks a "rational basis" (which would violate
the Equal Protection Clause) or violates a U.S.-Puerto Rico
compact. As such, we cannot conclude in this case that Congress
lacked the authority to regulate illicit transportation within
Puerto Rico. See Ríos-Rivera, 913 F.3d at 43–44.
- 29 -
Oriente to have sex. Cotto urges that YMP's testimony can't
sustain her conviction because she "impeached" him "extensively";
another student (called by the defense) testified that he saw YMP
get into a white car (Cotto's car was gray) that day, and on cross,
YMP admitted he lied to his mom and school staff about where he'd
disappeared to. But Cotto skates over the evidence that she
herself urged YMP to lie in order to hide their relationship from
his mother and school officials (and for obvious reasons). See
above at 6. Of course, the jury didn't have to find YMP lied at
trial simply because he'd fibbed to protect her two years earlier.
Anyway, when testing the sufficiency of the evidence, we do not
"assess the credibility of trial witnesses" or "resolve conflicts
in the evidence," United States v. Gaudet, 933 F.3d 11, 15 (1st
Cir. 2019) (quoting United States v. Hernández, 218 F.3d 58, 66
n.5 (1st Cir. 2000)); "that is a role reserved for the jury."
United States v. Kanodia, 943 F.3d 499, 505 (1st Cir. 2019)
(quoting United States v. Robles-Alvarez, 874 F.3d 46, 50 (1st
Cir. 2017)). And based on the evidence the government presented,
the jury was well within its rights to credit YMP's story of being
carted off by Cotto, which school staff (testifying that Cotto
left school early that day too), the WhatsApp messages, and the
motel records corroborated.
- 30 -
Jury Instructions
Third, Cotto faults the judge for instructing the jury
about the crime of sexual assault under Puerto Rico law. Although
we need not reach this issue, since we ultimately remand for a new
trial, we address it to provide guidance on remand. See
Swajian v. Gen. Motors Corp., 916 F.2d 31, 35 (1st Cir. 1990).
To recap, to show Cotto violated § 2423(a), the
government had to prove she transported YMP in Puerto Rico "with
intent that [he] engage in . . . sexual activity for which
[someone] can be charged with a criminal offense" (stress added).
And the judge told the jury precisely that, both before the trial
(in a set of preliminary instructions) and after the close of
evidence. He then explained:
Under the laws of Puerto Rico, criminal sexual
activity includes the following conduct: One, when
a person performs or provokes another person to
perform an oral-genital act or vaginal or anal
sexual penetration, whether genital, digital, or
instrumental, if the minor has not yet reached the
age of 16 at the time of the event; or, number two,
when a person purposefully, knowingly or
recklessly, without consummating the conduct
defined in the point above, submits another person
to an act that tends to awake, excite, or satisfy
the passion or sexual desires of the suspect, if
the minor has not yet reached the age of 16 at the
time of the event.
Though the judge didn't name them, he was describing the offenses
of "sexual assault" and "lewd acts" under Puerto Rico law, P.R.
Laws Ann. tit. 33, §§ 4770, 4772. He followed up by reminding the
- 31 -
jury that the government need not prove Cotto committed those
crimes; only that she "intended" to do so.
Cotto argues that these instructions about Puerto Rico
crimes "unnecessarily confused [the jurors] by implicitly telling
them to convict based on sexual assault instead of transportation
of a minor," which she calls "a fatal flaw" in the trial that
unfairly "tipped the scale in favor of conviction."
We test such "preserved claims of instructional error
under a two-tiered standard: we consider de novo whether an
instruction embodied an error of law, but we review for abuse of
discretion whether the instructions adequately explained the law
or whether they tended to confuse or mislead the jury on the
controlling issues." United States v. Symonevich, 688 F.3d 12, 24
(1st Cir. 2012) (internal quotation marks omitted). The
instructions here correctly stated the law, and Cotto gives us no
reason to think they may have thrown off the jury. To know if
Cotto intended to commit "sexual activity for which any person can
be charged with a criminal offense," 18 U.S.C. § 2423(a), the jury
had to know what kind of "sexual activity" constitutes a criminal
offense in Puerto Rico. See United States v. Dávila-Nieves, 670
F.3d 1, 8 (1st Cir. 2012) (upholding the judge's decision to
instruct the jury on the offense of sexual assault under Puerto
Rico law in a prosecution under 18 U.S.C. § 2422(a), which
prohibits enticing a minor to engage in "sexual activity for which
- 32 -
any person can be charged with a criminal offense," because "where
a federal prosecution hinges on an interpretation or application
of state law, it is the district court's function to explain the
relevant state law to the jury" (quoting United States v. Fazal-
Ur-Raheman-Fazal, 355 F.3d 40, 49 (1st Cir. 2004)); United States
v. Rodríguez-Rodríguez, 663 F.3d 53, 58 (1st Cir. 2011) (reasoning
that "[i]n order for the jury to determine" whether the defendant
violated § 2422(b), "it had to be instructed on Puerto Rico law").
So, as the government notes, every circuit (including ours) with
a pattern jury instruction for offenses using the phrase "sexual
activity for which any person can be charged with a criminal
offense" tells the district court to insert the allegedly intended
criminal offense into the instruction and, in most cases, to
describe its elements.16 In this case, as in the cases just cited,
following that convention was not an abuse of discretion.
Testimony by Two-Way Television
However, Cotto's last challenge spells the end of the
government's winning streak. Specifically, she argues that the
judge violated her Sixth Amendment right to confront YMP in person
16 See First Circuit Pattern Criminal Jury Instructions
§ 4.18.2422(b) (instruction for enticement of a minor under 18
U.S.C. § 2422(b)); Fifth Circuit Criminal Jury Instructions § 2.91
(for enticement of a minor under § 2422(b)); Sixth Circuit Pattern
Criminal Jury Instructions § 16.10 (for § 2423(a)); Seventh Circuit
Pattern Criminal Jury Instructions for § 2423(a); Eighth Circuit
Pattern Jury Instructions § 6.18.2423A (for § 2423(a)).
- 33 -
when he permitted YMP to testify remotely through two-way CCTV.
See above n.4 (describing the procedure). We'll start with the
legal framework governing this claim before we explain how the
judge misapplied it here and why the slip warrants a new trial.
Law on Tele-Testimony
In the ordinary case, the Sixth Amendment to the
Constitution gives the defendant the right "physically to face"
the witnesses who testify against her. Coy v. Iowa, 487 U.S. 1012,
1017, 1021 (1988) (holding that placing a screen in front of two
child witnesses to block their view of the defendant while they
testified against him violated the Sixth Amendment). The idea is
that insisting that witnesses testify "in the presence of the
person [they] accuse" helps ferret out the truth and lowers the
risk of wrongful conviction. Id. at 1020. As the old wisdom goes,
it is "more difficult to tell a lie about a person 'to his face'
than 'behind his back.'" Id. at 1019 ("A witness 'may feel quite
differently when he has to repeat his story looking at the man,"
or woman, "whom he will harm greatly by distorting or mistaking
the facts.'" (quoting Zechariah A. Chafee, Jr., The Blessings of
Liberty 35 (1956)). And, "even if the lie is told, it will often
be told less convincingly" under the gaze of the defendant and
jurors who can see the fibber's demeanor with their own eyes. Id.
(explaining that the Constitution prescribes face-to-face
confrontation as the best way to "confound and undo the false
- 34 -
accuser" and "reveal the child coached by a malevolent adult,"
even if it might "upset" honest victims who take the stand to
implicate the guilty).
But, like the presumptions that underpin it, the
constitutional right to unscreened in-person confrontation has its
limits. See Craig, 497 U.S. at 844, 849 (holding that defendants
do not have an "absolute right to a face-to-face meeting with
witnesses against them at trial"). The state also has a
"compelling" interest in protecting "minor victims of sex crimes
from further trauma and embarrassment." Id. at 852 (quoting Globe
Newspaper Co. v. Superior Court of Norfolk Cty., 457 U.S. 596, 607
(1982)). So, in sexual abuse cases, when "necessary" to elicit a
minor victim's testimony without subjecting him or her to further
trauma, "at least where such trauma would impair the child's
ability to communicate," the court may allow the minor to testify
from another room through CCTV — that is, as long as the minor
still testifies under oath, subject to live cross-examination,
"and the judge, jury, and defendant are able to view (albeit by
video monitor) the demeanor (and body) of the witness as he or she
testifies." Id. at 851, 857.
"The requisite finding of necessity," however,
"must . . . be a case-specific one: The trial court must hear
evidence and determine whether use of the [CCTV] procedure is
necessary to protect the welfare of the particular child witness
- 35 -
who seeks to testify." Id. at 855. That entails two key findings:
first, that the minor would be "traumatized, not by the courtroom
generally, but by the presence of the defendant" (since otherwise,
(s)he could testify "in less intimidating surroundings" with the
defendant present); and second, "that the emotional distress
suffered by the child witness in the presence of the defendant is
more than . . . mere nervousness or excitement or some reluctance
to testify." Id. at 856 (internal quotation marks omitted). The
Maryland statutory procedure challenged in Craig (as the state
court applied it) allowed testimony by CCTV if testimony "in the
presence of the defendant" would cause the child to "suffer[ ]
serious emotional distress such that the child could not reasonably
communicate." Id. at 858. The Supreme Court held that standard
passed constitutional muster. Id. After all, "where face-to-face
confrontation causes significant emotional distress in a child
witness, there is evidence that [it] would in fact disserve the
Confrontation Clause's truth-seeking goal." Id. at 857 (citing,
among other things, the Brief for American Psychological Ass'n as
Amicus Curiae, Maryland v. Craig, 1990 WL 10013093, at 18–24 (1990)
("APA Brief") (discussing empirical evidence that a defendant's
physical presence can influence child sex abuse victims to give
less accurate, detailed, and complete testimony)).
In Craig's wake, Congress enacted 18 U.S.C. § 3509(b),
which sets out alternatives to in-person testimony in child sexual
- 36 -
abuse cases. See Child Victims' and Child Witnesses' Rights Act
of 1990, Pub. L. 101–647, § 225, 104 Stat. 4789, 4798 (Nov. 29,
1990). Among other things, the statute allows minor victims in
such cases to testify from a room outside the courtroom by two-
way CCTV if the court finds on the record "that the child is unable
to testify in open court in the presence of the
defendant . . . because of fear." 18 U.S.C. § 3509(b)(1)(B)(i).
Since Cotto raises both statutory and constitutional challenges
(and neither party distinguishes the two), we'll assume that the
statute requires at least what the Sixth Amendment does. In other
words, to satisfy § 3509(b)(1)(B)(i), the judge has to make "a
specific finding" that if the minor testified "in the presence of
the defendant" — even "in a less intimidating environment" —
(s)he'd feel fear so severe "that [(s)he] could not reasonably
communicate." Craig, 497 U.S. at 856, 858. Thus, "a generalized
finding that the child suffers from fear [is not] enough to trigger
closed-circuit testimony; the fear must be related to the prospect
of testifying in the presence of the defendant." 136 Cong. Rec.
H13288-02, H13296 (Oct. 27, 1990) (Statement of Rep. Edwards);
accord United States v. Garcia, 7 F.3d 885, 887–88 (9th Cir. 1993)
(concluding that Congress intended § 3509(b)(1)(B) to "codify[]
- 37 -
the requirement in Craig that the child be unable to testify in
open court due to the presence of the defendant").17
Whether the trial judge made specific findings
"sufficient to permit the use of closed-circuit television
testimony . . . is a legal issue that we review de novo": that
is, without deference. United States v. Turning Bear, 357 F.3d
730, 735–36 (8th Cir. 2004). When the judge makes the required
findings, however, we review them for "clear error," United States
v. Cox, 871 F.3d 479, 484 (6th Cir. 2017) (citing Hernandez v. New
York, 500 U.S. 352, 364 (1991)), meaning we must defer to the
judge's findings unless "after whole-record review — we have 'a
strong, unyielding belief'" that the judge got the facts wrong.
United States v. Rivera-Carrasquillo, 933 F.3d 33, 42 (1st Cir.
2019) (quoting Toye v. O'Donnell (In re O'Donnell), 728 F.3d 41,
17 Since neither party makes an issue of them, we've made two
more assumptions here. First, we assume without deciding that the
test announced in Craig (which involved one-way CCTV through which
the witness couldn't see the defendant) also applies to the two-
way CCTV procedure, as most circuits have held. Compare United
States v. Carter, 907 F.3d 1199, 1207–08 & n.4 (9th Cir. 2018)
with United States v. Gigante, 166 F.3d 75, 80–81 (2d Cir. 1999).
Second, we assume (also without deciding) that the Supreme Court's
later decision in Crawford v. Washington, 541 U.S. 36 (2004), which
overruled a key case Craig relied on, did not modify Craig itself.
See Carter, 907 F.3d at 1206 n.3 (holding that
"while Craig and Crawford stand in 'marked contrast' in several
respects, 'Crawford did not overturn Craig'" (quoting United
States v. Cox, 871 F.3d 479, 492–95 (6th Cir. 2017) (Sutton, J.,
concurring)).
- 38 -
45 (1st Cir. 2013)). That doesn't mean we let the findings stand
whenever there's some evidence to support them. As the Court has
put it, "[a] finding is 'clearly erroneous' when although there is
evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction" the judge made a
mistake. Anderson v. City of Bessemer City, N.C., 470 U.S. 564,
573 (1985) (quoting United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948)) (emphases ours). But as long as the judge's
finding is "plausible," we may not reverse it even if we're sure
that "had [we] been sitting as the trier[s] of fact, [we] would
have weighed the evidence differently." Id. at 573–74.
So meeting the "clear error" standard is "no easy task";
it's "not enough that a finding strikes us as possibly or even
probably wrong." Díaz-Alarcón v. Flández-Marcel, 944 F.3d 303,
312 (1st Cir. 2019). It has to be "wrong with the force of a
[five] week old, unrefrigerated, dead fish." Id. (quoting
O'Donnell, 728 F.3d at 46). The bar is high for a reason. When
we review a transcript on appeal, we weren't there to see the
testimony unfold live; unlike the trial judge, we didn't "see [the]
witnesses face-to-face" or "appraise in person their demeanor and
inflection." United States v. Pérez-Díaz, 848 F.3d 33, 38 (1st
Cir. 2017) (quoting United States v. Guzmán-Batista, 783 F.3d 930,
937 (1st Cir. 2015)). We can't see the distress on someone's face,
or hear the stress in their voice, by reading their words in 12-
- 39 -
point Courier New. And unlike us, trial judges "listen to
witnesses" and gauge their credibility "for a living." Díaz-
Alarcón, 944 F.3d at 311 (quoting Taglieri v. Monasky, 907 F.3d
404, 408 (6th Cir. 2018)). So unless "objective evidence . . .
contradicts a witness's story," or it's "so internally
inconsistent or implausible that no reasonable factfinder would
credit it," Pérez-Díaz, 848 F.3d at 38 (quoting Guzmán-Batista,
783 F.3d at 937), a judge's choice to believe a witness "can
'virtually never be clear error.'" Cooper v. Harris, 137 S. Ct.
1455, 1478 (2017) (quoting Anderson, 470 U.S. at 575).
With that high standard in mind, we turn to YMP's in-
chambers testimony and the judge's findings based on it.
YMP's Testimony
About a week before trial, the government filed a motion
to have YMP testify by two-way CCTV under § 3509(b). Cotto opposed
the request, arguing that remote testimony wasn't necessary and
would violate the Sixth Amendment. The court tabled the matter
until the day before YMP was set to testify. When the time came
on the fifth day of trial, the judge called a recess and
interviewed YMP in his chambers with his mother and both sides'
lawyers.
To begin, there were several rounds of questions: first
from the government (e.g., "Q: [H]ow do you feel [about]
testify[ing] in open court? A: Very bad."), then the defense,
- 40 -
which sought to paint YMP as a high-functioning scholar-athlete
unaffected by Cotto's alleged crime: he had decent grades in
school (YMP agreed) and played on a traveling baseball team. But
on redirect, the government got back to the issue at hand. The
AUSA (that is, the attorney for the government) asked:
[AUSA]: How would you feel about seeing [Cotto] in
court today?
A: Bad, uncomfortable.
[AUSA:] How bad and how uncomfortable?
A: Too much.
The Court: Would you be able to testify?
YMP: No.
At that point, Cotto's lawyer jumped back in; he pointed out that
"everybody is uncomfortable as a witness," and YMP had spoken in
public before — he'd given interviews on sports radio. YMP
admitted he had. But on the radio (YMP added), he'd been talking
about baseball; he hadn't had to discuss this case. So the
government followed up: "How would you feel if you were in that
same radio station speaking about what is happening today in
court?" "Very, very, very bad," said YMP. Then, the defense
attorney stepped in once more:
[Defense Counsel]: And you feel bad because you
don't want to talk about personal things; is that
correct?
A: Yes.
- 41 -
[Defense Counsel]: But if you are compelled to do
it and you have to testify, you will do it?
A: If I am compelled I wouldn't do it either.
[Defense Counsel]: If you are called as a witness
for the prosecution, would you be conversant in
answering her questions truthfully in open court?
A: No.
The Court: Why?
YMP: Because it's uncomfortable.
The Court: Well —
Cotto's lawyer cut in again: had the prosecution ever explained
"[t]hat it is a normal process for you to testify as a witness at
trial?" YMP was confused. "What do you mean, 'at trial'?" he
asked. That's when the judge painted the picture. At "a trial,"
he explained:
The Court: . . . there is a jury, and your mother
and your father will be present, your lawyer will be
present, the judge will be present, and the defendant
. . . Yaira Cotto, she is entitled to be there. She
is not going to be asking questions, but she is
entitled to be there.
YMP: That wouldn't be the best.
The Court: Well, would you be able to testify?
That's the issue.
YMP: No.
The Court: So you would not testify?
YMP: No.
[Defense Counsel]: May I ask something? Why? Why
can't you do that?
- 42 -
A: Because, no, I don't feel comfortable.
The Court: And why would you feel not comfortable?
YMP: Because I don't want to see her. I don't want
to be there.
The Court: Would that cause you to lose your tongue?
Is that what you're telling me?
YMP: Yes.
The Court: Why?
YMP: Because I don't want to testify with her there.
I don't want to be uncomfortable.
At that point, the judge dismissed YMP and his mother to confer
with the lawyers.
"So counsel," the judge leveled (quoting from Craig),
"mere nervousness or excitement or some reluctance to testify is
not enough, but it has to be serious emotional distress such that
the child cannot reasonably communicate." On that score, the judge
was skeptical: YMP "seem[ed] to be in the middle[.]" So the
lawyers skirmished over whether YMP expressed "fear" of testifying
or just discomfort or "some reluctance" to do so. The judge noted
that YMP had "a change of face when he stated, kind of annoyed,
that he did not want to testify against her." The defense clapped
back that "that per se doesn't mean fear" — and even if YMP felt
fear, it would have to come from Cotto, and he hadn't said that he
feared her. The judge responded that "[t]he fear can be fear to
testify before a jury, fear to testify before other people, and
- 43 -
fear to testify before the judge. There's many fears involved.
It's fear." Moving on, the judge had his clerk pull out a
dictionary to find synonyms for "fear" and asked the interpreter
how he'd translate them. Then, he called YMP back in to get more
specifics.
Using those synonyms for "fear," the judge asked YMP if
"testifying in this case [would] subject you to distress?" (YMP
said "yes"), "cause you to become agitated?" ("yes"), "cause
you . . . great distress?" ("yes"), and "cause you some sort of
apprehension or alarm?" ("yes").
The Court: And do you think — above all, do you
think that this is fear that you would be — be
causing yourself?"
YMP: Yes.
The Court: So all of those that I just stated, which
is the one that really causes you to not be able to
testify?
YMP: Seeing her, standing there; that I have never
been there.
The Court: Have been where?
YMP: In the court.
On re-cross, Cotto's lawyer took aim at YMP's testimony that
"seeing [Cotto] standing there" caused him fear. He pointed out
that in a statement YMP wrote for investigators two years earlier,
YMP "didn't write that he was afraid of Mrs. Cotto." "No," YMP
admitted.
- 44 -
[Defense Counsel]: Because you didn't feel afraid of
her; is that correct?
A: No.
[Defense Counsel]: And today you don't feel any fear for
her either?
A: I am not afraid, but I do feel uncomfortable when I
see her.
. . .
[AUSA]: How would you feel if you have to testify in
front of Mrs. Cotto today in court?
A: Super bad, as I said before.
[AUSA]: And when you say "super bad," could you describe
to the judge, what does that mean?
A: That I am going to feel nervous, anxious.
[AUSA]: Do you want to see Ms. Cotto?
A: No.
. . .
The Court: Does that bring fear to you by the fact that
she is there?
[YMP]: Yes.
Unsatisfied, Cotto's lawyer followed up a final time:
[Defense Counsel]: What type of fear? Explain to
us what type of fear can come to you.
A: I don't want to see her because I don't feel good
when I see her. I don't want to see her and — I
don't want to see her.
[Defense Counsel]: Is that it? That's all the —
[AUSA]: Do you fear her looking at you?
- 45 -
A: Not necessarily.
[AUSA]: What exactly do you fear?
[Defense Counsel]: Let the record reflect that he
has remained silent.
The Court: No, let the record also reflect that he's
become red in the face.
[Defense Counsel]: He is blushing.
The Court: Of course, he is blushing. Fine.
[Defense Counsel]: Okay. But does that mean fear?
[AUSA]: Yes. Yes.
[Defense Counsel]: He hasn't answered, Your Honor.
The record should reflect that it's been almost 20
seconds and he hasn't answered.
The Court: He's been getting red.
[AUSA]: Let the record reflect, Your Honor, that we
are talking with a 16-year-old minor.
The Court: He is still a minor. All right. Do we
have any further questions?
They didn't.
Back in court, the judge granted the government's
motion. To start off, the judge "f[ound] that [YMP] demonstrated
reluctance to testify and [had a] frightened demeanor, as he
physically flushed (his face became red), his body choked, he
started moving his legs, and expressed that his chest was tight on
his left side by moving his right hand to his chest." After
describing YMP's testimony and noting that "the face-to-face
- 46 -
confrontation requirement is not absolute" but "not easily
dispensed with" (quoting Craig), the judge then concluded:
As such, the Court determines that there is a necessity
to protect the welfare of this particular child witness
who has demonstrated physical effects of fear as the Court
asked specific questions using different synonyms of the
word "fear," as the victim stated to the Court on every
synonym used that he would either not testify or was
reluctant to testify in the presence of the defendant in
accordance with the requirements of [§] 3509.
(emphasis ours). When the trial resumed, YMP testified by two-
way CCTV.
Our Take
Cotto argues that the judge failed to make the specific
findings § 3509(b) and Craig together require, and even if he made
the needed findings, the evidence didn't support them. Like Cotto,
we doubt that YMP's testimony was sufficient to justify the use of
CCTV. But we need not decide that issue — because in our view,
the judge's use of the wrong legal standard and inadequate factual
findings, set against the inconsistencies and gaps in the
evidentiary record, warrant a new trial in this case.
As we said up front, § 3509(b) and Craig together demand
more than a general conclusion that CCTV is "necess[ary] to protect
the welfare" of the witness; they demand (as relevant here) a
"specific finding" that the minor could not "reasonably
communicate" in the defendant's presence because of fear. Craig,
497 U.S. at 856; 18 U.S.C. § 3509(b); see, e.g., Garcia, 7 F.3d at
- 47 -
888 (affirming use of CCTV based on judge's finding that "because
of [her] fear of the defendant," the victim's "testimony would not
be open, complete, and substantially helpful to the jury" if she
testified with him present). Here, the judge made no such finding.
Instead, his explicit findings concluded only "that [YMP]
demonstrated reluctance . . . to testify" and "demonstrated the
physical effects of fear" when the judge asked "specific questions"
using various synonyms for it (which YMP answered affirmatively).
But those "specific questions" were about "testifying in this case"
generally; they did not ask YMP how he felt about Cotto,
specifically. So the judge did not find that Cotto frightened YMP
or that her presence (as opposed to the daunting courtroom setting)
would make him "unable" to testify. 18 U.S.C. § 3509(b); see
Craig, 497 U.S. at 857–58 (explaining that "[t]he question of
whether a child is unavailable to testify . . . should not be asked
in terms of inability to testify in the ordinary courtroom setting,
but in the much narrower terms of the witness's inability to
testify in the presence of the accused"). As such, the judge did
not resolve the issues Craig made critical. See United States v.
Bordeaux, 400 F.3d 548, 552 (8th Cir. 2005) (holding the trial
court's finding "that [the child's] fear of the defendant was only
one reason why she could not testify in open court" was inadequate
because it "did not find that [her] fear of the defendant was the
dominant reason" she couldn't testify) (citing Turning Bear, 357
- 48 -
F.3d at 737 (holding the trial court's finding that a "combination"
of factors frightened the victim came up short because it "failed
to separate out the effect on [the victim] of [the defendant's]
presence")).
The judge's remarks earlier in the hearing clue us in to
why he failed to make the needed findings. During the brief
intermission in questioning, the defense pointed out that the
government had to show "where [YMP's] fear comes from" (i.e., Cotto
herself) and argued that YMP did not fear Cotto ("I have a
statement from him here saying he is in love with the teacher, not
that he feared her," he proffered). But the judge dismissed that
argument, saying (incorrectly) that "the fear can be fear to
testify before a jury, fear to testify before other people, and
fear to testify before the judge," as long as it was "fear." In
other words, he overlooked Craig's demand for a showing that YMP
feared "the presence of the defendant" and not just the "courtroom
generally." Craig, 497 U.S. at 856. Without that showing, CCTV
may not have been "necessary," since YMP could reasonably have
testified in "less intimidating surroundings" with Cotto there.
Id.18 The judge's misreading of Craig, and resulting failure to
18
For example, if the judge believed that the combination of
the courtroom and the defendant's presence would interfere with
YMP's testimony, he could have considered closing the courtroom to
the public or permitting non-essential observers to watch from an
overflow room. See 18 U.S.C. § 3509(e) (allowing the court to
- 49 -
make the needed findings, undermines his conclusion that CCTV was
necessary. See Pullman-Standard v. Swint, 456 U.S. 273, 287
(1982) ("[I]f a district court's findings rest on an erroneous
view of the law, they may be set aside on that basis.").
Wait a second, says the government. In his oral
decision, the judge "noted YMP testified that he felt 'greatly
distressed and uncomfortable about testifying in court before the
Defendant.'" Appellee's Br. at 38. And he also said that YMP
"stated that he would be unable to testify if he were in front of
the defendant," not just in the courtroom generally. But as the
government implicitly concedes, while the judge may have "noted"
that YMP made those statements, he didn't find that either of them
were true. So, given the judge's earlier misstatement of the legal
standard, we can't conclude he was adopting YMP's statements
wholesale as his own findings of fact — at least not in this case,
where YMP's testimony about his feelings toward Cotto,
specifically, was equivocal at best.
close the courtroom to "all persons, including members of the
press, who do not have a direct interest in the case" if open-
court testimony "would cause substantial psychological harm to the
child or would result in the child's inability to effectively
communicate" and the order is "narrowly tailored to serve the
government's compelling interest"); Craig, 497 U.S. at 852
(explaining that the court may exclude the "press and public" from
the courtroom where the trial court makes "a case-specific finding
that closure of the trial is necessary to protect the welfare of
the minor" (citing Globe Newspaper Co., 457 U.S. at 608–09)).
- 50 -
Indeed, a firm finding on the key issue — whether YMP
felt frightened and unable to testify because of Cotto, and not
just the crowded courtroom — was especially needed on this shaky
record. On that critical point, YMP never gave a clear answer.
Twice, it's true, the judge asked YMP if he "[w]ould . . . be able
to testify," and YMP said no. But both times, the judge was
following up on questions about how YMP would feel about testifying
in court, where (the judge made clear) "there is a jury, and
[YMP's] mother and [his] father would be present" as well as Cotto.
And when asked why he believed he wouldn't be able to testify, YMP
gave two reasons: that he didn't "want to see Cotto" and that he
didn't "want to be there" in court. A similar thing happened later
— after YMP agreed that "testifying in this case" would cause him
"fear" (and its synonyms). When the judge asked what "cause[d]
YMP" to be afraid and not "able to testify," YMP gave the same two
answers: one, "seeing [Cotto] standing there" and two, "that I
have never been there . . . in court." In other words, YMP never
singled out Cotto as the "dominant reason" he couldn't testify in
court. Bordeaux, 400 F.3d at 552. So he never addressed whether
he could testify in a less stressful setting with Cotto in the
room. Craig, 497 U.S. at 856. And no one ever asked.
Fighting on, the government points out that when the
judge asked YMP (albeit awkwardly) if "that brings fear to you by
the fact that [Cotto] is there?" YMP said yes. But it reads that
- 51 -
statement in isolation — a luxury we don't have, see Anderson, 470
U.S. at 573 (tasking us to review "the entire evidence"). When
pressed to explain, YMP clarified (as he had before) that he just
didn't "want" to see Cotto because she made him "uncomfortable."
Of course, not wanting to see Cotto — or feeling "nervous,"
"anxious," and "uncomfortable" around her (like virtually all
witnesses do) — didn't mean she'd make him unable to "reasonably
communicate" his story to the jury. See Craig, 497 U.S. at 856.
And here's the real killer: when the defense asked him point-
blank, YMP testified that he was "not afraid" of Cotto. With that
plain statement etched in the record, we doubt it could have borne
a finding that Cotto frightened YMP so much that she'd chill his
testimony. See United States v. Moses, 137 F.3d 894, 898–99 (6th
Cir. 1998) (reversing the judge's because-of-fear finding where
the child testified she was "not afraid of" the defendant but
didn't "want" to see him).
Let's be clear: we do not expect that child victims
will always (or even usually) be able to explain "what exactly"
they fear about testifying in the courtroom or give the clarity
Craig requires; and nor could we, when the whole point is to figure
out whether the witness can "reasonably communicate" in the
defendant's presence. Craig, 497 U.S. at 856. But that's where
expert testimony (while not required, United States v. Rouse, 111
F.3d 561, 569 (8th Cir. 1997)) can help fill in the gaps. See
- 52 -
Craig, 497 U.S. at 842 (noting that "expert testimony" had
"suggested that each child [victim] would have some or considerable
difficulty in testifying in Craig's presence"); Cox, 871 F.3d at
485 (affirming the use of CCTV where an expert witness examined
the child and gave "particularized" and specific testimony that
the defendant's presence would cause the child trauma and interfere
with their testimony); APA Br. at 24 (recommending that "multiple
sources of information, including expert testimony, should be
sought in making an individualized determination whether there is
a need to limit the defendant's right to face-to-face confrontation
when a particular child victim testifies"). In United States v.
Graham, for example, "the district court, on voir dire, found that"
the 17-year-old victim was "extremely nervous and uncomfortable
and fearful . . . and credited her statement that she was 'afraid'
of facing [her trafficker] in court." 707 F. App'x 23, 28 (2d
Cir. 2017). Still, the Second Circuit wrote that "[t]hese
apprehensions of appearing for live testimony may fail to meet our
demanding constitutional standard absent specific indicia of the
emotional trauma the child witness would experience 'not by
[testimony in] the courtroom generally, but by the presence of the
defendant.'" Id. (quoting Craig, 497 U.S. at 856). What tipped
the scales was a psychiatrist's finding (which the district court
credited) that the witness would "be unable to reasonably
communicate if forced to testify in the live presence of the
- 53 -
defendant." Id. Here in contrast, the government did not enlist
an expert to examine YMP and help fill the holes or reconcile the
contradictions in his in-chambers testimony.19 And all told,
that's left us with too little to go on.
As a result, even if the district judge intended to find
that YMP was "unable to testify in front of [Cotto]," we could
"[ ]not on this record . . . sustain [that] finding" without more
explanation for how the judge arrived at it. United States v.
Oquendo-Rivera, 586 F.3d 63, 68 (1st Cir. 2009). Ordinarily, we
might not require a trial judge to explain why he found certain
facts, at least when "the basis is plain from the record." Id.
That's especially true when it comes to "credibility," which (as
we've said) "is largely a matter for the fact-finder." Id. at 67.
But that doesn't mean we can "insulate . . . findings from review
by denominating them credibility determinations[.]" Anderson, 470
U.S. at 575. As the Supreme Court has explained, that's because
19 Just before YMP testified in chambers, the government did
present an expert who testified outside the jury's presence on
"the general effects that boys suffer when they are the subject of
sexual abuse, be it from a male or a female." "Hearing an expert's
general testimony" on "the trauma a child may experience from
testifying in court in a defendant's presence" "is not prohibited
by Craig, so long as the testimony is not the sole basis for
finding that an individual child would suffer emotional trauma
from testifying in the presence of a defendant." Garcia, 7 F.3d
at 889. However, the government wrote in its appellate brief that
the expert's "testimony was unrelated to the issue of whether the
minor should testify via two-way [CCTV]." Thus, it has waived any
argument based on the expert's testimony.
- 54 -
factors other than demeanor and inflection go into the
decision whether or not to believe a witness. Documents
or objective evidence may contradict the witness' story;
or the story itself may be so internally inconsistent or
implausible on its face that a reasonable factfinder
would not credit it. Where such factors are present,
the court of appeals may well find clear error even in
a finding purportedly based on a credibility
determination.
Id. Thus, when it appears (but is not certain) that "[d]ocuments
or objective evidence . . . contradict[ed] the witness' story," or
when the relied-on testimony seems "implausible" or "internally
inconsistent" on a critical issue, we have required judges to give
more explanation for their conclusions. See, e.g., Oquendo-
Rivera, 586 F.3d at 67–68 (vacating revocation judgment based on
the judge's failure to explain why he credited a key witness's
story despite apparent contradictions in the evidence); United
States v. Forbes, 181 F.3d 1, 7–8 (1st Cir. 1999) (vacating order
denying a motion to suppress for the same reason); see also United
States v. Lacouture, 835 F.3d 187, 191–92 (1st Cir. 2016) (vacating
sentence because judge failed to explain why he credited child
victim's statements in transcript of a forensic interview despite
"apparent inconsistencies" in the child's story). "How much
explanation" is needed "depends on the circumstances — for example,
on the closeness of the case, the nature and extent of gaps or
doubts" that plague the record, and the "suppositions" needed "to
fill the gaps or answer the doubts." Oquendo-Rivera, 586 F.3d at
68. But the upshot is that "[i]n some cases, a result, possibly
- 55 -
defensible, may not have been adequately explained or supported."
Id.
That's our conclusion in this case. Given the key gap
in YMP's testimony — that he never testified he'd be unable to
testify in front of Cotto even in less daunting surroundings — his
equivocation on the other critical point (whether Cotto frightened
him at all), and the lack of any other evidence such as expert
testimony to clear up the muddle, we could not sustain the judge's
because-of-fear finding (even if he had made one explicitly)
without some explanation for how he filled in the gaps and
untangled the apparent contradictions in YMP's testimony.20
20 For example, if the judge had known to isolate YMP's
feelings toward Cotto from his fear of the courtroom, the judge
might have nonetheless explained that YMP's tone, inflection and
demeanor suggested that Cotto was the main source of his distress.
For example, when YMP testified that he feared "seeing her,
standing there" and testifying in the courtroom, maybe he put the
stress on "seeing her, standing there" (adding "that I've never
been there . . . in court" as an afterthought). See Cooper, 137
S. Ct. at 1474 (noting that a judge's choices of how to construe
and whether to credit live testimony get "singular deference"
precisely "because the various cues that 'bear so heavily on [both]
the listener's understanding of and belief in what is said' are
lost on an appellate court later sifting through a paper record."
(quoting Anderson, 470 U.S. at 575). Of course, that train of
thought would have hit the same roadblock we identify above — that
when asked directly, YMP explicitly said he was "not afraid" of
Cotto. But perhaps his demeanor colored those words too; perhaps
the judge (with his own life experience the government's expert's
testimony, see above at n.19, in mind) could have disregarded YMP's
"I'm not afraid" as false bravado. But, given the constitutional
right at stake, and the judge's misconception that he didn't need
to suss out the source of YMP's fear, we decline to speculate about
whether (and if so why) he credited some portions of YMP's
testimony but not others. See Oquendo-Rivera, 586 F.3d at 68.
- 56 -
"Without [that] further explanation," "we would have a definite
and firm conviction" that the evidence was insufficient to show
that CCTV was needed. Forbes, 181 F.3d at 8.
In sum, then, the trial judge applied an overbroad legal
standard, failed to make the required "because-of-Cotto" finding,
and didn't articulate the explanation necessary to support one (if
the record permitted such a finding at all, which we don't decide).
As a result, when the judge allowed YMP to testify by CCTV, he
violated Cotto's right to confront YMP in person absent a
compelling need for remote testimony. See Craig, 497 U.S. at 855–
56.
Nonetheless, the government tells us, Cotto's conviction
can stand because she hasn't argued the error impacted the verdict
(so she's "waived" any argument it did). Appellee's Br. at 40.
But it's the government, not Cotto, that must shoulder the burden
to show that a constitutional violation was "harmless beyond a
reasonable doubt." Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). In
answering that question, we have to assume that if Cotto had been
allowed to confront YMP in person, "the damaging potential of [her]
cross-examination" would have been "fully realized." Id. As the
Supreme Court explained in Coy, when the trial court violates the
defendant's right to face-to-face confrontation, our
- 57 -
assessment of harmlessness cannot include
consideration of whether the witness testimony would
have been unchanged, or the jury's assessment
unaltered, had there been confrontation; such an
inquiry would obviously involve pure speculation,
and harmlessness must therefore be determined on the
basis of the remaining evidence.
487 U.S. at 1021–22. Rather, we focus on "the importance of the
witness' testimony in the prosecution's case, whether the
testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on
material points," and "the overall strength of the prosecution's
case." Van Arsdall, 475 U.S. at 684; see also Carter, 907 F.3d at
1210 (holding that the victim was wrongly permitted to testify by
two-way CCTV and considering only the "remaining evidence" besides
her testimony to hold that the error wasn't harmless).
Having scoured "the whole record" through that lens, we
can't "confidently say" that "the constitutional error" here
(letting YMP testify remotely without the required findings) was
"harmless beyond a reasonable doubt." Van Arsdall, 475 U.S. at
681. First off, as we've explained in detail, it's not at all
clear the judge would have permitted YMP to testify remotely if
he'd applied the right legal standard, grappled with Cotto's
independent impact on YMP's testimony, and made the more precise
findings Craig requires. And if YMP had testified under the
"truth-inducing effect" of Cotto's "unmediated gaze," Bordeaux,
400 F.3d at 554; Carter, 907 F.3d at 1207, he may well have changed
- 58 -
his story or told the same tale less convincingly. See Coy, 487
U.S. at 1020–22. The government points out that Cotto and YMP's
text messages detailed their sexual relationship, and that school
staff and records corroborated that both of them left school early
on the day in question. Moreover, records from the motel placed
Cotto's car in the motel's garage that afternoon. But without
YMP's testimony, none of that evidence establishes that Cotto took
him to the motel, or that she did so to have sex with him. So in
the end, the government admits that "YMP's testimony" was
"undoubtedly . . . important" because he "was the only witness to
establish Cotto transported him to the Motel Oriente on March 1,
2016 with the intent they have sex," as charged in the indictment.
Appellee's Br. at 41. Thus, if "the damaging potential of [YMP's]
cross-examination were fully realized," Van Arsdall, 475 U.S. at
684, the jury could have reasonably doubted Cotto's guilt.
Instead, it may well have believed the other student's testimony
that YMP left school in a white car (not Cotto's gray Kia) and
YMP's initial statements to school staff and his friends that he
hadn't seen Cotto that day. See Moses, 137 F.3d at 902 (holding
the error wasn't harmless when the child "provided the only eye-
witness testimony" to the crime).
Which brings us to the remedy. When a trial judge fails
to make required factual findings or provide an adequate
explanation for his decision, we "normally" remand for him to
- 59 -
reconsider the evidence and make the appropriate findings, if
warranted, or to reverse himself if not. See Pullman-Standard,
456 U.S. at 292; Forbes, 181 F.3d at 8 (remanding for the district
court to "clarify and amplify the reasons for its factual findings
or, perhaps, reconsider its conclusion"). However, we have broad
discretion to craft the scope of our "remand in the interests of
justice," United States v. Merric, 166 F.3d 406, 412 (1st Cir.
1999), and may also order a new hearing or trial when it would
serve those interests, Ruiz-Troche v. Pepsi Cola of P.R. Bottling
Co., 161 F.3d 77, 88 (1st Cir. 1998) (holding that when a trial
court excluded evidence on a mistaken basis, "[t]he choice of
remedies (including whether to require a new trial or merely remand
for further findings) [was] ours," and remanding for a new trial
even though further findings might have justified excluding the
proffered evidence on other grounds) (citing 28 U.S.C. § 2106);
cf. Oquendo-Rivera, 586 F.3d at 69 (vacating defendant's
revocation judgment and remanding for "more evidence and more
explanation" before a different judge when the court didn't
adequately explain why it credited the government's key witness);
Andre v. Bendix Corp., 774 F.2d 786, 801 (7th Cir. 1985)
(explaining that an appellate court may "remand[] for a new trial"
when the judge fails to make sufficient findings of fact under
civil rule 52(a) (citing 9C Fed. Prac. & Proc. Civ. § 2577
(1971))).
- 60 -
We think that's the appropriate course here. To begin
with, when a trial judge has decided the facts — even under an
incorrect legal standard — it can be hard "to put aside a belief
sincerely arrived at and look at the evidence through fresh eyes."
Oquendo-Rivera, 586 F.3d at 69 (reassigning the case on remand for
that very reason); see also United States v. Hernández-Rodríguez,
443 F.3d 138, 148 (1st Cir. 2006) (explaining that we may remand
"to a different district judge not only in recognition of the
difficulty that a judge might have putting aside his previously
expressed views, but also to preserve the appearance of justice").
For similar reasons, the interests of justice counsel against
asking the judge to revisit his previous ruling that CCTV was
necessary and find the missing facts.21 In this case, the key
finding needed to sustain Cotto's conviction by tele-testimony
(i.e., that YMP could not have testified in Cotto's presence) has
faint (at best) support in the evidence. To make it, the judge
would have to rely on subtle variations in YMP's tone, pace, and
demeanor when he gave certain answers. And he'd need to do so
based on two-year-old testimony. See Rucker v. Higher Educ. Aids
Bd., 669 F.2d 1179, 1184 (7th Cir. 1982) (remanding for a new
21As we note below, since YMP is now over eighteen and has
aged out of § 3509(b)'s coverage, the judge would not have to
revisit his CCTV ruling if the court holds a new trial. So we
don't think it's necessary to order this case reassigned to a
different judge — something Cotto has not requested.
- 61 -
trial, instead of for further findings, when the judge applied an
incorrect legal standard because, among other things, "the trial
ended a year [before] and the record" would be too "stale in the
judge's mind"). We trust that if asked to do so, the judge would
rise to the challenge and reconsider his previous ruling with an
open mind. But if in doing so he sustains his previous finding,
"it might appear that his determination was improperly influenced
by his initial decision" instead of YMP's now-stale and barely
sufficient testimony. Hernández-Rodríguez, 443 F.3d at 148.
Without a doubt, testifying in front of an abuser in
court can "be more emotionally traumatic to [a] child than the
initial abuse itself," no matter what his age or gender. H.R.
Rep. No. 101-681(I) (Sept. 5, 1990), reprinted in 1990 U.S.C.C.A.N.
6472, 6572; see Craig, 497 U.S. at 855 (citing the already-"growing
body of academic literature documenting the psychological trauma
suffered by child abuse victims who must testify in court").
That's true for adults as well as children, though Craig and its
offspring don't protect them. See 18 U.S.C. § 3509(b) (capping
the age of covered witnesses at eighteen). So we do not lightly
order a retrial, where (if the government chooses to prosecute),
YMP (now over eighteen) would likely need to face Cotto again.
But the right to confrontation is fundamental. See Pointer v.
Texas, 380 U.S. 400, 404 (1965). It preserves not just the
"perception," but also the "reality" of fairness in our criminal
- 62 -
justice system. Coy, 487 U.S. at 1017 ("[T]here is something deep
in human nature that regards face-to-face confrontation between
accused and accuser as 'essential to a fair trial in a criminal
prosecution.'" (quoting Pointer, 380 U.S. at 404)). And Cotto
faces ten years in prison without the chance to confront her key
accuser. We do not think that sustaining that result based on
YMP's two-year-old chambers testimony — equivocal at best on
whether he could face Cotto in person — would reasonably assure
Cotto and the public that her conviction rests on a fair and just
foundation.
END
For those reasons, we are bound to hold that despite
Congress's promise to grant Puerto Ricans state-like "autonomy"
over their local affairs, see Sánchez Valle, 136 S. Ct. at 1874,
and an "end" to their island's "subordinate status" under federal
law, Cordova, 649 F.2d at 42, the Protect Act — though it refers
to Puerto Rico as a "commonwealth" — treats the island as
a "territory . . . belonging to the United States" and not as a
member of the Union. Shell Co., 302 U.S. at 257. As a result, we
affirm the judge's decision to sustain the indictment and hold
there was sufficient evidence to sustain Cotto's conviction.
But because Cotto's trial violated her Sixth Amendment
rights, we vacate her conviction and remand for a new trial.
-Concurring Opinion Follows-
- 63 -
TORRUELLA, Circuit Judge, Concurring. Although I fully
agree with the decision reached by the majority (as well as its
reasoning) to reverse the conviction by reason of the violation of
appellant's Sixth Amendment rights, I wish to express my
disagreement with the manifestations made regarding Puerto Rico's
constitutional status and related subjects.
The constitutional status of Puerto Rico was established
by the infamous Insular Cases:22 it is that of an unincorporated
territory, whatever that means. This is not a term you will find
anywhere in the Constitution, but one by which the Supreme Court
22 See generally De Lima v. Bidwell, 182 U.S. 1 (1901) (holding
that once Puerto Rico was acquired by the United States through
cession from Spain it was not a "foreign country" within the
meaning of tariff laws); Goetze v. United States, 182 U.S. 221
(1901) (holding that Puerto Rico and Hawaii were not foreign
countries within the meaning of tariff laws); Dooley v. United
States, 182 U.S. 222 (1901) (holding that the right of the
President to exact duties on imports into the United States from
Puerto Rico ceased with the ratification of the peace treaty
between the United States and Spain); Armstrong v. United States,
182 U.S. 243 (1901) (invalidating tariffs imposed on goods
exported from the United States to Puerto Rico after the
ratification of the treaty between the United States and Spain);
Downes v. Bidwell, 182 U.S. 244 (1901) (holding that Puerto Rico
did not become a part of the United States within the meaning of
Article I, section 8 of the Constitution); Huus v. N.Y. & P.R.
S.S. Co., 182 U.S. 392 (1901) (holding that a vessel engaged in
trade between Puerto Rico and New York is engaged in the coasting
trade and not foreign trade).
- 64 -
of the time23 used to validate Puerto Rico's colonial status of
inequality,24 and by which the Court supported the Manifest Destiny
and American exceptionalism theories that were prevalent during
the imperial period of the United States. This ruling and the
biased treatment of the residents of Puerto Rico that it promoted
prevailed even after they were granted U.S. citizenship25 and
continues to the present day. Although it is a status that is
based on a rationale of racial inequality,26 its flawed premises
are ones that the Supreme Court has studiously avoided confronting,
or even modifying, while at the same time creating no small amount
of confusion by its kaleidoscope of decisions as to what this
status stands for or encompasses constitutionally speaking, and
notwithstanding the platitudes that are quoted as the need arises.
A brief sample of the confusing and contradictory
language that has issued over the last century will suffice to
illustrate this point. The Court has ruled that under Puerto
23 Almost to a man, the same Court that validated Plessy v.
Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Bd. of Educ.,
347 U.S. 483 (1954).
24 See Juan R. Torruella, The Insular Cases: The Establishment of
a Regime of Political Apartheid, 29 U. Pa. J. Int'l L. 283 (2007).
25 Balzac v. Porto Rico, 258 U.S. 298 (1922).
26 See Downes, 182 U.S. at 282, 286-87 (Brown, J. concurring). See
also Rubin Frances Weston, Racism in U.S. Imperialism: The
Influence of Racial Assumptions on American Foreign Policy, 1893-
1946, at 15 (1972) ("The racism which caused the relegation of the
Negro to a status of inferiority (during the Reconstruction Period)
was to be applied to the overseas possessions of the United
States.").
- 65 -
Rico's constitutional status as an unincorporated territory,
Puerto Rico belongs to but is not a part of the United States;27
that it is "foreign to the United States in a domestic sense";28
that it is a jurisdiction over which Congress has plenary powers29
pursuant to the Territorial Clause;30 that its residents are only
entitled to the constitutional protection of fundamental rights,31
which does not include the right to trial by jury;32 that all the
granting of U.S. citizenship did for the residents of Puerto Rico
was to allow them the right to enter the United States freely, and
there exercise full citizenship rights if they became residents;33
that state juries must reach unanimous verdicts;34 and that Puerto
Rico is like a state for purposes of the Three-Judge Court Act, 28
U.S.C. § 2281,35 but lacks sovereignty in the context of the double
27 Downes, 182 U.S. 244.
28 Id. at 341.
29 See Harris v. Rosario, 446 U.S. 651 (1980); Califano v. Gautier
Torres, 435 U.S. 1 (1978).
30 U.S. Const. art. IV, § 3: "The Congress shall have the power
to dispose of and make all needful Rules and Regulations respecting
the Territory or other Property belonging to the United
States . . . ."
31 See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663,
668-69 n.5. (1973).
32 See Balzac, 258 U.S. at 304-06, 309. But compare Duncan v.
Louisiana, 391 U.S. 145, 149 (1968) (holding that trial by jury is
a fundamental right), and Reid v. Covert, 354 U.S. 1, 8 (1957)
(same, and applies to prosecution of U.S. citizens outside the
U.S.).
33 See Balzac, 258 U.S. at 308.
34 Ramos v. Louisiana, 140 S. Ct. 1390 (2020).
35 Calero-Toledo, 416 U.S. at 673.
- 66 -
jeopardy clause notwithstanding that "Congress . . . 'relinquished
its control over [Puerto Rico's] local affairs'" and granted the
island "a measure of autonomy comparable to that possessed by the
States."36 Topping this contradictory list of haves and have nots
we have the most downgrading of all actions validated by the
Supreme Court pursuant to Congress's omnipotent powers under the
territorial clause, wiping out all concepts of local autonomy
and/or "compact" to which it had previously given lip service
(erroneously, in my opinion), and setting Puerto Rico back to the
unvarnished colonial regime that existed in the days of the Foraker
Act37 (which spawned the Insular Cases), imposing on the U.S.
citizens of Puerto Rico an unelected board to run the territory
over its elected government.38
It seems to me that much confusion and disenchantment
would have been avoided had someone bothered to read the extensive
evidence that is available as to what Congress intended and
36 Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863, 1874 (2016)
(quoting Examining Bd. of Engineers, Architects and Surveyors v.
Flores de Otero, 426 U.S. 572, 597 (1976)).
37 31 Stat. 77 (1900).
38 See Puerto Rico Oversight, Management, and Economic Stability
Act (PROMESA), 48 U.S.C. § 2101 et seq.; see also, Fin. Oversight
& Mgt. Bd. for Puerto Rico v. Aurelius Inv., LLC, 140 S. Ct. 1649
(2020).
- 67 -
actually did in enacting the bill that authorized the "creation"
of the "Commonwealth of Puerto Rico."39
Starting with the statute in question, as we must, one
cannot find an iota of language in that legislation, which simply
authorized a modicum of autonomy and self-government to the people
of Puerto Rico, that supports the contention that a new
constitutional status was being created, much less that one was
being established which superseded the existing unincorporated
territorial one. If that statement is not convincing enough, even
though the language of Public Law 600 self-evidently supports it,
looking at the legislative history in the Congressional Record is
helpful.
On May 17, 1950, the Senate subcommittee considering
S. 3336, the precursor of Public Law 600, heard the testimony of
Puerto Rico's Resident Commissioner in Congress,40 Dr. Antonio
Fernós-Isern, regarding the bill, and specifically regarding the
39 See Juan R. Torruella, The Supreme Court and Puerto Rico: The
Doctrine of Separate and Unequal 144-160 (1985). See also David M.
Helfeld, "The Historical Prelude to the Constitution of the
Commonwealth of Puerto Rico," 21 Rev. Jur. U.P.R. 135 (1952) and
David M. Helfeld, "Congressional Intent and Attitude Toward Public
Law 600 and the Constitution of the Commonwealth of Puerto Rico,"
21 Rev. Jur. U.P.R. 255 (1952), both of which are excellent
contemporaneous accounts of what Congress intended in enacting
Public Law that authorized what became the "Commonwealth of Puerto
Rico," and are based on the evidence in the Congressional Record
and supporting official documentation.
40 Puerto Rico's non-voting Congressman.
- 68 -
"in the nature of a compact" phrase, which was causing uneasiness
because of its Sphinx-like inscrutability. In that respect Fernós-
Isern testified: "S. 3336 would not change the status of the island
of Puerto Rico relative to the United States. . . . It would not
alter the powers of sovereignty acquired by the United States over
Puerto Rico under the terms of the Treaty of Paris."41
He had already testified in a similar manner the previous
day before the House's committee dealing with H.R. 7674,42 the
counterpart to S. 3336, at which hearing the Secretary of the
Interior testified that there would be no change in "Puerto Rico's
political, social and economic relationship to the United
States,"43 a position also endorsed by Cecil Snyder, an Associate
Justice of the Supreme Court of Puerto Rico, in his own testimony.44
The Senate's report on S. 3336 succinctly stated on this point:
"The measure would not change Puerto Rico's fundamental political,
social, and economic relationship to the United States."45
This in a nutshell represents the understanding of
Congress regarding Public Law 600, and in addition to which, I
41 Puerto Rico Constitution: Hearing on S. 3336 Before a Subcomm.
of the S. Comm. on Interior & Insular Affs., 81st Cong. 4 (1950).
42 Puerto Rico Constitution: Hearings on H.R. 7674 and S. 3336
Before the H. Comm. on Pub. Lands, 81st Cong. 63 (1950).
43 Id. at 50.
44 Id. at 54.
45 S. Rep. No. 81-1779, at 3 (1950).
- 69 -
refer the reader to the litany of supportive evidence summarized
in the literature cited in footnote 39.
I further disagree with the majority's views, to the
extent it relies on the existence of a "compact" between the United
States and Puerto Rico. At most, the language used in Public Law
600 is "in the nature of a compact," which is a far cry from saying
there is a "compact," which implies mutually binding promises, a
situation which does not and cannot exist between Puerto Rico and
the United States,46 given Puerto Rico's unincorporated territorial
status, which as previously demonstrated, is still validated by
the Supreme Court.
I join the merits of this case notwithstanding its
reliance on a "commonwealth" jurisdictional basis because, even
ignoring the "commonwealth" issue, there is still jurisdiction to
legislate intra Puerto Rico under the present Supreme Court case
law regarding unincorporated territories. This alternate view
validates the prosecution, and does not, however, affect my
concurring with the majority on the outcome of this appeal.
46 See Dorsey v. United States, 567 U.S. 260, 274 (2012) ("[O]ne
Congress cannot bind a later Congress, which remains free to repeal
[an] earlier [law]."); see also Christina D. Ponsa-Kraus,
Political Wine in a Judicial Bottle: Justice Sotomayor's
Surprising Concurrence in Aurelius (July 27, 2020), 130 Yale L.J.
Forum _________ (Forthcoming 2020), available at
SSRN: https://ssrn.com/abstract=3661668. But see Aurelius Inv.,
LLC, 140 S. Ct. at 1677-78 (Sotomayor, J., concurring in judgment)
(noting that "[t]he truism that 'one Congress cannot bind a later
Congress' appears to have its limits" (citation omitted)).
- 70 -
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6392
MAURO GOROSTIETA HERNANDEZ,
Plaintiff - Appellant,
v.
B. J. MEEKS, Warden; STEPHEN HOEY; L. SANCHEZ, HIT; N. ROSARIO, RN;
L. CROSS, HSA; CHRISTOPHER DAVIS, NP; FEDERAL BUREAU OF
PRISONS,
Defendants - Appellees.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Mary G. Lewis, District Judge. (2:18-cv-00661-MGL)
Submitted: August 22, 2019 Decided: August 26, 2019
Before KING and RICHARDSON, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Mauro Gorostieta Hernandez, Appellant Pro Se. Marshall Prince, II, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mauro Gorostieta Hernandez appeals the district court’s order granting Defendants’
motion for summary judgment in Hernandez’s civil action. The district court referred this
case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) (2012). The magistrate
judge recommended that Defendants’ motion for summary judgment be granted and
advised Hernandez that failure to file timely objections to this recommendation could
waive appellate review of a district court order based upon the recommendation.
The timely filing of specific objections to a magistrate judge’s recommendation is
necessary to preserve appellate review of the substance of that recommendation when the
parties have been warned of the consequences of noncompliance. Wright v. Collins, 766
F.2d 841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S. 140 (1985). Hernandez
has waived appellate review by failing to file timely objections after receiving proper
notice. Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
2
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435 F.3d 1238
Ralph ROBBINS, Plaintiff-Appellee,v.Larry CHRONISTER, in his personal and official capacity, Defendant Appellant,United States of America, Intervenor.
No. 02-3115.
United States Court of Appeals, Tenth Circuit.
January 25, 2006.
Patrick Matthew Waters, Assistant Counsel (Kenneth J. Moore and F. Charles Dunlay, Assistant Counsel, with him on the briefs), Unified Government of Wyandotte County/Kansas City Kansas Legal Department, Kansas City, KS, for the Defendant-Appellant.
Larry J. Leatherman, Palmer, Leatherman & White, Topeka, KS, for the Plaintiff-Appellee.
Jonathan H. Levy, Attorney (Barbara L. Herwig, Attorney, Peter D. Keisler, Assistant Attorney General and Eric F. Melgren, United States Attorney, with him on the briefs), Appellate Staff, Department of Justice, Washington, DC, for the Intervenor.
Before TACHA, Chief Judge, SEYMOUR, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL & TYMKOVICH, Circuit Judges.
HARTZ, Circuit Judge.
1
While incarcerated at the Federal Correctional Institution in Greenville, Illinois, Ralph Robbins filed a civil lights claim under 42 U.S.C. § 1983 against police officer Larry Chronister based on an incident predating his imprisonment. The district court appointed an attorney to assist him in pursuing the claim. After a three-day bench trial the district court awarded him nominal damages of $1. The Prison Litigation Reform Act (PLRA) limits the attorney-fee award in civil-rights suits filed by prisoners to 150% of the money judgment. See 42 U.S.C. § 1997e(d). The district court, however, awarded a $9,680 fee, ruling that it would be absurd to apply the fee limitation to suits on claims arising before the prisoner was incarcerated. Mr. Chronister appealed the fee award. A divided panel of this court affirmed, agreeing with the district court that applying the plain language of § 1997e(d) would be absurd. Rehearing the matter en banc, we now hold that § 1997e(d) applies and Mr. Robbins's attorney-fee award is limited to $1.50.
I. BACKGROUND
2
In December 1995 Officer Chronister, returning home from work in his personal truck, recognized Mr. Robbins sitting in his car at a gas station in Kansas City, Kansas. He knew that there were five outstanding traffic warrants for Mr. Robbins's arrest. After pulling into the gas station and parking his truck behind Mr. Robbins's car, Officer Chronister approached the driver's side door of Mr. Robbins's car with his baton in his hand. He identified himself and ordered Mr. Robbins out of the car. Mr. Robbins began to back the car toward Officer Chronister's truck. Officer Chronister swung his baton into a car window, shattering it, and attempted to pull Mr. Robbins from the car. Mr. Robbins managed to maneuver the car away from Officer Chronister's truck, and tried unsuccessfully to accelerate on the icy pavement. His car spun around the parking lot, eventually fishtailing toward Officer Chronister. As the car approached him, Officer Chronister shot at its hood and windshield. Mr. Robbins was able to drive off but wrecked the car a few blocks away. He was taken to the University of Kansas Medical Center for treatment of three gunshot wounds.
3
Mr. Robbins later pleaded guilty to attempted aggravated assault on a law enforcement officer and was incarcerated at the Greenville prison. While incarcerated he filed a pro se civil rights complaint under 42 U.S.C. § 1983, alleging that Officer Chronister had used excessive force, in violation of the Fourth Amendment. The district court appointed counsel for him. After a bench trial the district court ruled that Officer Chronister's use of deadly force in firing the shots was reasonable under the Fourth Amendment, but that breaking Mr. Robbins's car window with a baton was not. Because Mr. Robbins was not physically injured by the use of the baton, the district court awarded him nominal damages of one dollar, a determination he does not appeal.
4
Mr. Robbins filed a motion for attorney fees under 42 U.S.C. § 1988(b), which allows the district court to award a reasonable attorney fee to a prevailing plaintiff in a § 1983 action. Officer Chronister opposed the motion, arguing that the plain language of § 1997e(d) of the PLRA caps Mr. Robbins's attorney fee at 150% of his damages, or $1.50, because he was a prisoner when he filed suit. The district court declined to apply the PLRA cap, holding that applying the cap in these circumstances would produce an absurd result; in its view, Congress could not have intended the statute to apply to meritorious civil rights claims that arose before a prisoner's confinement. The court awarded Mr. Robbins $9,680 in fees and $915.16 in expenses. Officer Chronister appealed.
II. DISCUSSION
5
We review issues of statutory construction de novo. United States v. Oberle, 136 F.3d 1414, 1423 (10th Cir.1998). The PLRA provides in relevant part:
6
(1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under section 1988 of this title, such fees shall not be awarded, except to the extent that —
7
(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiffs right protected by a statute pursuant to which a fee may be awarded under section 1988 of this title;....
8
(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.
9
42 U.S.C. § 1997e(d) (footnotes omitted). The statutory language may be inartful, but appellate courts have consistently interpreted the statute to limit a defendant's liability for attorney fees to 150% of the money judgment. See, e.g., Royal v. Kautzky, 375 F.3d 720, 725 (8th Cir.2004); Walker v. Bain, 257 F.3d 660, 667 (6th Cir.2001) (citing cases).
10
Mr. Robbins does not contest that the statute's plain language imposes a 150% fee cap if (1) the plaintiff was a prisoner at the time he brought the action and (2) the plaintiff was awarded attorney fees under § 1988. It is undisputed that Mr. Robbins was a prisoner when he filed his § 1983 action and that the district court entered judgment in his favor by awarding him one dollar in nominal damages and reasonable attorney fees under § 1988(b). Accordingly, the plain statutory language limits the award of attorney fees to $1.50.
11
Mr. Robbins argues, however, that the district court was correct in ruling that it would be absurd to apply the cap in this case. The clear intent of Congress, he contends, was to control the torrent of litigation by prisoners concerning their treatment by prison authorities, not to deter prisoner suits arising from allegations of preincarceration misconduct. Why, he asks, should a prisoner's attorney-fee award be limited just because the prisoner did not get around to filing suit until he was incarcerated? After all, he could have filed suit earlier, and then the fee cap would not have applied. To explain why we reject this argument, we first address the absurdity doctrine and then we discuss its application to the PLRA.
12
The United States Supreme Court has long recognized the absurdity doctrine as a means to avoid applying the unequivocal language of a statute. But the doctrine has been strictly limited. Chief Justice Marshall wrote:
13
[I]f, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.
14
Sturges v. Crowninshield, 4 Wheat. 122, 17 U.S. 122, 202-03, 4 L.Ed. 529 (1819). This court has said that an interpretation of a statute is absurd if it leads to "results `so gross as to shock the general moral or common sense.'" United States v. Newsome, 898 F.2d 119, 121 n. 3 (10th Cir. 1990) (quoting Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 75 L.Ed. 156 (1930)).
15
The absurdity doctrine should not be confused with a useful technique for resolving ambiguities in statutory language. When statutory language reasonably admits of alternative constructions, there is nothing remarkable about resolving the textual ambiguity against the alternative meaning that produces a result the framers are highly unlikely to have intended. We choose the reasonable result over the "absurd" one. Application of this technique is not what Mr. Robbins is suggesting. He acknowledges that § 1997e(d) cannot be read to permit more than a $1.50 attorney-fee award in this case.
16
One claiming that the plain, unequivocal language of a statute produces an absurd result must surmount a formidable hurdle. It is not enough to show that the result is contrary to what Congress (or, perhaps more accurately, some members of Congress) desired. In other words, we cannot reject an application of the plain meaning of the words in a statute on the ground that we are confident that Congress would have wanted a different result. Instead, we can apply the doctrine only when it would have been unthinkable for Congress to have intended the result commanded by the words of the statute— that is, when the result would be "so bizarre that Congress could not have intended it," Demarest v. Manspeaker, 498 U.S. 184, 190-91, 111 S.Ct. 599, 112 L.Ed.2d 608 (1992) (internal quotation marks omitted). Accordingly, whether some members of Congress (or even a committee) expressed a view contrary to the statute's language is beside the point. For the same reason, we cannot reject the plain meaning of statutory language just because Congress may not have anticipated the result compelled by that language in a particular case. As the Supreme Court has stated, "[I]t is not, and cannot be, our practice to restrict the unqualified language of a statute to the particular evil that Congress was trying to remedy—even assuming that it is possible to identify that evil from something other than the text of the statute itself." Brogan v. United States, 522 U.S. 398, 403, 118 S.Ct. 805, 139 L.Ed.2d 830 (1998). The Court "acknowledge[d] the reality that the reach of a statute often exceeds the precise evil to be eliminated." Id. Thus, references by Mr. Robbins to floor debate on the PLRA, a singularly perilous method of discerning congressional intent in any event, see, e.g., Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 457 n. 15, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (rejecting reliance on two statements in Congressional Record), cannot affect our analysis. It is simply irrelevant whether any member of Congress affirmatively wished to limit attorney fees in a case like this.
17
The Supreme Court's recent Barnhart decision illustrates two important features of the modern absurdity doctrine that limit its scope. Barnhart addressed the Coal Industry Retiree Health Benefit Act of 1992, the most recent effort to achieve solvency for coal-industry health-retirement plans established through collective bargaining agreements over the years. The Act requires contributions to the plans from both "signatory operators" (those who have entered into retirement plans contained in collective bargaining agreements) and "related persons" (certain persons affiliated in specific ways with a defunct signatory operator). See Barnhart, 534 U.S. at 442-47, 122 S.Ct. 941. Under the Act, successors in interest to related persons are themselves related persons. Id. at 452, 122 S.Ct. 941. The dispute between Social Security Commissioner Barnhart and the coal company respondents was whether successors in interest to signatory operators are likewise "related persons." The Court, adopting the plain meaning of the Act, held that successors in interest to signatory operators are not "related persons," rejecting Commissioner Barnhart's apparent request "that the Court invoke some form of an absurd results test." Id. at 459, 122 S.Ct. 941.
18
One important factor in the Court's analysis was that no canon of construction required departure from the statute's plain meaning, as do some canons employed to avoid results that contradict longstanding traditions or fundamental legal principles —results that might be labeled "absurd." The Court wrote:
19
Our role is to interpret the language of the statute enacted by Congress. This statute does not contain conflicting provisions or ambiguous language. Nor does it require a narrowing construction or application of any other canon or interpretative tool. . . . We will not alter the text in order to satisfy the policy preference of the Commissioner.
20
Id. at 461-62, 122 S.Ct. 941 (emphasis added). Examples of such interpretative tools are the presumption of a mens rea requirement for criminal offenses, see Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) ("[W]e must construe the statute in light of the background rules of the common law in which the requirement of some mens rea for a crime is firmly embedded." (internal citations omitted)), and the presumption that categorical limitations periods are nonetheless "subject to equitable tolling," Young v. United States, 535 U.S. 43, 49-50, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002) ("Congress must be presumed to draft limitations periods in light of this background principle." (internal quotation marks omitted)). What was once the domain of the absurdity doctrine has been narrowed by the more common use of such interpretative tools. In the absence of these background principles, a court might resort to imposing, say, a mens rea requirement on the ground that it would be "absurd" not to impose the requirement. What the language of Barnhart suggests is that courts should be particularly resistant to claims of absurdity when rejection of plain language cannot be justified by a recognized canon of construction or interpretative tool. See generally, John F. Manning, The Absurdity Doctrine, 116 Harv. L.Rev. 2387, 2465-76 (2005) (discussing background legal conventions used to interpret statutes).
21
The second feature of modern absurdity doctrine illustrated by Barnhart is the recognition that application of a court's "commonsense" view of public policy must not override the rough and tumble of the legislative process. What would be the most "rational" legislation simply may not survive the battles necessary for enactment. In the words of Professor Manning:
22
[L]egislative preferences do not pass unfiltered into legislation; they are distilled through a carefully designed process that requires legislation to clear several distinct institutions, numerous veto gates, the threat of a Senate filibuster, and countless other procedural devices that temper unchecked majoritarianism. Hence, the precise lines drawn by any statute may reflect unrecorded compromise among interest groups, unknowable strategic behavior, or even an implicit legislative decision to forgo costly bargaining over greater textual precision.
23
Id. at 2390. The result in Barnhart is certainly peculiar. While not imposing a contribution obligation on the purchaser of a coal operator, the Act does impose that obligation on the purchaser of a dairy farm that was affiliated with the coal operator. See Barnhart, 534 U.S. at 465, 122 S.Ct. 941 (Stevens, J., dissenting). Yet the Court was satisfied to note that coal operators may have objected to any expansion of their liability for retirement benefits or to the impact of successor liability "on the valuation and sale of union companies and properties," id. at 460, 122 S.Ct. 941, and continued:
24
Where the statutory language is clear and unambiguous, we need neither accept nor reject a particular "plausible" explanation for why Congress would have written [the Act as it did]. Dissatisfied with the text of the statute, the Commissioner attempts to search for and apply an overarching legislative purpose.... Dissatisfaction, however, is often the cost of legislative compromise.... [The Act's] delicate crafting reflected a compromise amidst highly interested parties attempting to pull the provisions in different directions.... As such, a change in any individual provision could have unraveled the whole.
25
Id. at 460-61, 122 S.Ct. 941. In short, courts, out of respect for their limited role in tripartite government, should not try to rewrite legislative compromises to create a more coherent, more rational statute. A statute is not "absurd" if it could reflect the sort of compromise that attends legislative endeavor.
26
With the above understanding of the absurdity doctrine in mind, we see that this is not a close case. We have been pointed to no canon of construction or interpretative rule that would suggest a need to depart from the statute's plain language. And even though one could argue that applying the PLRA cap to cases like this is not the most rational means for controlling litigation, such a result is certainly not outside the bounds of legitimate legislative compromise. As a brief discussion will reveal, there is simply nothing bizarre about treating prisoner suits alleging preincarceration civil-rights violations the same as prisoner suits alleging violations of civil rights during incarceration.
27
It is worth remembering that the American Rule is that the losing party in litigation is not required to reimburse the prevailing party's attorney fees. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). An award of attorney fees under 42 U.S.C. § 1988 is a departure from general practice, presumably designed as an incentive to plaintiffs to engage in litigation to vindicate civil rights. Section 1997e(d) reduces that incentive in civil-rights suits by prisoners, at least for low-dollar-value claims unlikely to result in a significant award of damages, by limiting recovery of attorney fees from the defendant to 150% of the damage award.
28
We see nothing absurd about reducing that incentive for all civil-rights claims filed by prisoners, not just those challenging conditions in prison. The balance of incentives and disincentives for filing suit is quite different for prisoners than for free persons, regardless of the subject matter of the claim, whether it be prison conditions or preincarceration conduct. Free persons must weigh the value of a possible victory in court against the burdens on their time and wallets in pursuing litigation. Prisoners, in contrast, have time in abundance, do not need money for their own necessities, and are entitled to free legal assistance or access to legal materials. And what may be perceived as burdens to free persons, such as taking time for depositions or court appearances, may well be considered an attractive change of scenery for prisoners. Given these circumstances, there is nothing absurd about applying the restriction on attorney-fee awards to prisoner civil-rights claims arising before incarceration as well as to such claims arising during incarceration.
29
Therefore, we reverse the district court's award of attorney fees and remand for an award limited to $1.50. We can understand the frustration that the district court must have felt after having requested Mr. Leatherman to represent Mr. Robbins. Certainly, Mr. Leatherman's performance at oral argument before this court indicates how fortunate Mr. Robbins was to have such a compelling advocate on his side. But any temptation we may have to reward Mr. Leatherman for his service is overcome by our duty to respect an Act of Congress.
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109 N.H. 1 (1968)
ALICE O. DOIRON
v.
JOSEPH A. DOIRON.
No. 5639.
Supreme Court of New Hampshire.
Argued November 7, 1967.
Decided April 30, 1968.
King, Nixon, Christy & Tessier (Mr. Thomas J. Tessier orally), for the plaintiff.
*2 Devine, Millimet, McDonough, Stahl & Branch and Robert A. Backus (Mr. Backus orally), for the defendant.
LAMPRON, J.
This is an action brought by a wife against her husband to recover for personal injuries sustained in a fall, on May 8, 1964, on premises in Reed's Ferry, as a result of her husband's negligence. Defendant filed a motion to dismiss on the ground that the parties were residents of and domiciled in Massachusetts when this action was commenced on October 26, 1965, and that the law of that state, which should determine the issue, prohibits such a cause of action by a wife against her husband.
The parties have agreed, for the purposes of this motion, that "at the time of the accident the plaintiff wife and defendant husband, were living and domiciled in New Hampshire" and that "at the time suit was instituted and presently the plaintiff and defendant are domiciled and residing in Massachusetts." The Trial Court (Loughlin, J.) transferred without ruling the issue of law raised by the motion.
In New Hampshire, it is well settled law that a wife may maintain an action for tort against her husband for acts of negligence committed during coverture. Morin v. Letourneau, 102 N. H. 309, 310; RSA 460:2. Under Massachusetts law, however, no such action is permitted. Callow v. Thomas, 322 Mass. 550; Mass. Gen. Laws Anno. Ch. 209, s. 6. This court held in Thompson v. Thompson, 105 N. H. 86, that when spouses are domiciled in New Hampshire, the wife can maintain an action in this state against her husband for a tort which occurred in Massachusetts. It was later decided in Johnson v. Johnson, 107 N. H. 30, that when the spouses are domiciled in Massachusetts, the wife cannot maintain an action in New Hampshire against her husband for a tort inflicted on her by him in this state.
The issue before us involves the right of a wife to recover, for a tort committed in New Hampshire by her husband while they were both domiciled here, in an action commenced in this state when both are then domiciled in Massachusetts. This question has never been decided in this jurisdiction nor has any such decision elsewhere come to our attention.
This court has decided that choice-of-law decisions, such as the one with which we are concerned in this case, ought to be based on relevant choice-influencing considerations. Clark v. *3 Clark, 107 N. H. 351, 353. These considerations are (1) predictability of results; (2) maintenance of reasonable orderliness and good relationship among the States in our federal system; (3) simplification of the judicial task; (4) advancement by the court of its own state's governmental interests rather than those of other states; (5) the Court's preference for what it regards as the sounder rule of law, as between the two competing ones. Clark v. Clark, supra, 354, 355. "Obviously, some of them will be more relevant to some type of cases, less to other types." Id., 353, 354.
In a case involving a suit by a wife against her husband for a tort committed by him, the domicile of the parties is of great importance. Restatement (Second), Conflict of Laws, s. 390 g, comment a (Tent. Draft No. 9, 1964). As in all torts, however, the state where the conduct and injury occurred is also of considerable importance. Id., s. 379 a, comment e. In determining the relative importance of these and other relevant contacts, "the forum will consider the issues, the character of the tort, and the relevant purposes of the tort rules of the interested states." Id., s. 379(3).
On May 8, 1964, the day of this accident, the plaintiff and the defendant were domiciled and living as husband and wife in New Hampshire. The husband's negligent conduct took place in this state. The resulting injuries to the wife were incurred here. A cause of action in her favor was thereby created by the laws of New Hampshire. Morin v. Letourneau, 102 N. H. 309, 310. The wife's right of action being transitory, it followed her in whatever state she moved to. Roscoe v. Roscoe, 379 F. 2d 94, 99 (D.C. Cir. 1967). Consequently she could enforce this right by suit in any state where jurisdiction could be obtained over the husband unless the particular state had a prohibition against the institution of such an action, as does Massachusetts. See Parson &c. Lumber Co. v. Southwick, 101 N. H. 258, 259.
Turning to the prohibition of suits between husband and wife under the laws of Massachusetts, the "more fundamental reason" for such prohibition, that is, "because of the marital relationship no cause of action ever came into existence" (Callow v. Thomas, 322 Mass. 550, 552) is not present under the facts of this case. Morin v. Letourneau, 102 N. H. 309, 313. This leaves "the disability of one spouse to sue the other during coverture" as the only basis to bar the wife from bringing her action in Massachusetts. Callow v. Thomas, supra; Lubowitz v. Taines, 293 Mass. *4 39; Mass. Gen. Laws Anno. Ch. 209 s. 6. See Giles v. Giles, 279 Mass. 284, 293 Mass. 495.
The reasons usually advanced in support of the latter doctrine are the preservation of domestic harmony and the avoidance of collusive suits. Thompson v. Thompson, 105 N. H. 86, 88; Prosser, Law of Torts (3d ed.) s. 116, p. 883. However, New Hampshire has permitted interspousal suits for over a century. Seaver v. Adams, 66 N. H. 142, 143; Gilman v. Gilman, 78 N. H. 4; Laws 1846, 327:4. This surely evidences a lack of fear by our Legislature and by our courts that permitting such suits would engender collusion or discord among the families within its borders. Thompson v. Thompson, supra. Professor Prosser, after attacking the arguments in support of interspousal immunity, states that "any such precarious structure . . . is likely sooner or later to develop cracks." Prosser, Law of Torts, supra, 884. As evidence thereof, he points to the ever increasing number of jurisdictions which "have rejected all arguments in justification of the immunity as specious [and] have thrown it completely overboard." Id., 884; Self v. Self, 58 Cal. 2d. 683; Klein v. Klein, 58 Cal. 2d 692; Cramer v. Cramer, 379 P. 2d 95 (Alaska 1963). See 79 Harv. L. Rev. 1650-1665; 40 So. Cal. L. Rev. 307, 316, 317.
This court has enforced the interspousal immunity doctrine of Massachusetts when the husband and wife were domiciled there at the time of the occurrence in New Hampshire of the event upon which suit was brought here. In such a case no right of action between the parties would have arisen under the law of their domicile. Johnson v. Johnson, 107 N. H. 30. In other words, under the guise of promoting federal felicity, we cannot subscribe to a view that the law of the domicile of the parties when an action is instituted should bar a suit by a wife against her husband instituted in New Hampshire to enforce a right of action which arose here from conduct of one spouse toward the other when they were domiciled in this state. Clark v. Clark, 107 N. H. 351, 354, 356-357. This, in our opinion, would constitute an unreasonable interference with our long-standing and well articulated policy of allowing a right of action to arise and suit to be brought between New Hampshire spouses as a result of negligent conduct of one toward the other.
The law of conflicts must remain flexible in an increasingly mobile society. However, such flexibility should not be achieved *5 at the expense of the reasonable predictability which results from the establishment with reasonable certainty of the legal rights and liabilities between the parties upon occurrence of an accident. This principle "from a standpoint of certainty, insurability, and discouragement of forum shopping makes sense, for the rule is not subject to change whenever the parties change their residence." 40 So. Cal. L. Rev., 307, 332. Determining the applicable law of interspousal immunity by the domicile of the parties at the time the wrong occurred and the right of action arose, will prevent the expansion or contraction of the rights and liabilities of the parties by a subsequent removal from that state, whether for valid reasons or for the purpose of forum shopping. See Gore v. Northeast Airlines, 373 F. 2d 717, 723 (2d Cir. 1967); 37 Conn. B.J. 520, 537, 538.
We are of the opinion that a denial of defendant's motion to dismiss plaintiff's action is in accordance with the choice-influencing considerations which apply to a case like the present. We hold that defendant's motion to dismiss should be denied.
Remanded.
All concurred.
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502 F.Supp. 182 (1980)
NATIONAL CREDIT UNION ADMINISTRATION, Plaintiff,
v.
BEACON COMMUNITY FEDERAL CREDIT UNION, Defendant.
No. 80 C 4898.
United States District Court, N. D. Illinois, E. D.
October 9, 1980.
*183 Thomas P. Sullivan, U. S. Atty., Roderick A. Palmore, Asst. U. S. Atty., Chicago, Ill., for plaintiff.
Narda J. Cisco, Evanston, Ill., for defendant.
MEMORANDUM
LEIGHTON, District Judge.
This is a petition to enforce a subpoena duces tecum issued by the National Credit Union Administration to the Beacon Community Federal Credit Union and sought to be served on its president, the Reverend Carolina Hampton. On September 19, 1980, this court enforced the subpoena and ordered Reverend Hampton to provide officials of the National Credit Union Administration access to Beacon's books and records no later than September 24. The credit union, by its president, now moves to vacate the enforcement order, dismiss the petition to enforce, or in the alternative to stay enforcement of the compliance order.
The grounds for these motions are the same. The president of the credit union contends that this court lacks personal jurisdiction over him because he was not a named party to the petition to enforce; that no process was served on him, nor were summons issued and served either on him or on the credit union. He insists that entry of the enforcement order, without judicial proceedings against him, was a violation of his constitutional right to due process of law. For the following reasons, this court rejects these contentions and denies the motion to vacate, the motion to dismiss, and the motion to stay enforcement of the compliance order.
I
Beacon Community Federal Credit Union is insured under the provisions of the Federal Credit Union Act, 12 U.S.C. §§ 1752 et seq. Under this statute, the National Credit Union Administration Board may make periodic examinations of insured federal credit unions, 12 U.S.C. § 1789(a)(8); and "[i]n connection [therewith], the Board, or its designated representatives, shall have power ... to issue subpoenas and subpoenas duces tecum and, for the enforcement thereof, to apply to the United States District Court for the judicial district...in which the principal office of the credit union is located.... Such courts shall have jurisdiction and power to order and require compliance with any such subpoena." 12 U.S.C. § 1784(b).
The petition to enforce and the affidavits in support disclose that on August 25, 1980 examiners of the Board attempted to serve a subpoena duces tecum on the Reverend Hampton, president of Beacon. It had been issued by the Board's secretary and asked for Beacon's books and records to be examined on the credit union's premises. Reverend Hampton refused to accept service and refused to allow the Board's designated representatives to see the books and records. Thereafter, the Board filed its petition to enforce which this court granted because the allegations and affidavit in support showed that issuance of the subpoena was within the authority of the National Credit Union Administration, and the examination sought was authorized by the applicable statutes. The order was served on the Reverend Hampton as president of the credit union on September 22, 1980; it has not been obeyed.
II
The power to issue a subpoena duces tecum is one that Congress has given to a number of federal agencies and departments of government. For example, the statute authorizing the Secretary of Labor *184 to administer the Labor-Management Relations Act and the one under which he administers the Fair Labor Standards Act, contain provisions for issuance of subpoena duces tecum and give United States district courts jurisdiction to enforce them. 29 U.S.C. §§ 161(1), (2) and 209. Under 12 U.S.C. § 1818(n), the statute most analogous to the one before the court, the Federal Deposit Insurance Corporation can issue subpoenas duces tecum; and it may apply for an enforcement order from any United States district court in the judicial district where the relevant proceedings are pending. The statute in this case, enacted by Congress in 1970, has never been construed in a reported decision of a federal court; but the many cases concerned with identical or similar language in other statutes are a sufficient guide for this court's construction of 12 U.S.C. § 1784(b).
Starting with the statutory language itself, Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668 (1976), it appears that when the Board authorizes issuance of a subpoena duces tecum, its Secretary or a designated representative, can issue it; no summons or notice of issuance need be given to any intended respondent. The Federal Rules of Civil Procedure do not restrict or control an administrative subpoena. Cf. Bowles v. Bay of New York Coal & Supply Corp., 152 F.2d 330, 331 (2nd Cir. 1945); F. T. C. v. Turner, 609 F.2d 743, 745 (5th Cir. 1980). On issuance of a subpoena duces tecum, pursuant to a statute like 12 U.S.C. § 1784(b), it may be addressed to any natural person who has in his or her possession books and papers of a credit union or corporation being examined, even though that person is not subject to the regulatory powers of the agency. See F. T. C. v. Harrell, 313 F.2d 854 (7th Cir. 1963); cf. Freeman v. Fidelity-Philadelphia Trust Company, 248 F.Supp. 487, 492 (E.D.Pa.1965). While service of a subpoena does not place the records sought in custodia legis, in a strict sense, it does place the subpoenaed person on formal notice that the records are required for judicial or administrative proceedings. In Re D. I. Operating Company, 240 F.Supp. 672, 677 (D.Nev.1965).
When a petition to enforce a subpoena is filed, the only judicial inquiry to be made is whether the evidence sought is plainly incompetent or irrelevant to any lawful purpose of the agency, United States v. Feaster, 376 F.2d 147 (5th Cir.), cert. denied 389 U.S. 920, 88 S.Ct. 237, 19 L.Ed.2d 265 (1967). A subpoena issued by a federal regulatory agency is sufficient if the information or evidence sought is within authority of the agency, the demand is not too indefinite, and the evidence is reasonably relevant to the agency purpose. Security & Exchange Commission v. Arthur Young & Co., 584 F.2d 1018, 190 U.S.App.D.C. 37 (C.A.D.C.1978), cert. denied 439 U.S. 1071, 99 S.Ct. 841, 59 L.Ed.2d 37 (1979). Enforcement proceedings of this sort generally are summary in nature. United States v. Anaconda Co., 445 F.Supp. 486, 491 (D.C.D.C. 1977). And questions concerning agency subpoenas should be promptly determined so that if they are valid, they may be speedily enforced. Securities & Exchange Commission v. First Security Bank of Utah, 447 F.2d 166, 168 (10th Cir. 1971), cert. denied 404 U.S. 1038, 92 S.Ct. 710, 30 L.Ed.2d 729 (1972).
This is particularly true of a subpoena duces tecum for books and records of a federally insured credit union. When 12 U.S.C. § 1784(b) was included in legislation that provided for credit union deposit insurance, it was known that "[w]ithin the United States there [were] more than 24,000 credit unions which [held] savings of over 22 million Americans. These savings, which total almost $14 billion, represent in large part the earnings of the `little man' who can least afford to sustain an unprotected loss." Pub.L. 91-468; 1970 U.S.Code Cong. and Adm.News, pp. 4166, 4167. Today, ten years later, the number of credit unions, and of affected Americans, and their total savings have almost doubled; and it is still "the little man" who is protected by the examination of credit union books and records, such as the one sought by the Board when it issued the subpoena duces tecum.
When the petition to enforce was filed with this court, the subpoena was examined. *185 The court found it was issued under the authority of 12 U.S.C. §§ 1756, 1784(a), (b), and 1789(a)(8) "in connection with an examination of the Beacon Community Federal Credit Union and at the instance of the National Credit Union Administration Board ...." Therefore, the subpoena was issued under authority of law and for a purpose which by statute has been committed to the Board's jurisdiction. It specifically described the documents which were to be furnished by the addressee, Reverend Carolina Hampton, president of the credit union; it was not indefinite in the information sought; and its scope was reasonably relevant to the agency purpose. Accordingly, this court had to enforce it "because of the Government's interest in expeditious investigation to carry out its congressionally mandated duties." United States v. Anaconda Co., 445 F.Supp. 486, 490 (D.C.D.C.1977); cf. Oklahoma Press Publishing Company v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946).
Of course, the recipient of an agency subpoena, like Reverend Hampton, may challenge the reasons behind its issuance. Ayers v. Securities & Exchange Commission, 482 F.Supp. 747, 751 (D.Mont.1980). If it was issued "for an improper purpose such as to harass ... or for any other purpose reflecting on the good faith of the particular investigation," it will not be enforced. United States v. Powell, 379 U.S. 48, 58, 85 S.Ct. 248, 255, 13 L.Ed.2d 112 (1964).
However, such a recipient, on claimed jurisdictional grounds, is not entitled to an order vacating enforcement of the subpoena, or one dismissing the petition to enforce, or one staying compliance with the order. This court has power to enforce a subpoena sought to be served by the National Credit Union Administration Board when the record shows it was issued in connection with an inquiry which the agency had authority to conduct; that the demand was not too indefinite, and the information sought was reasonably relevant to the agency's purpose. Securities and Exchange Commission v. Arthur Young & Co., 584 F.2d 1018, 190 U.S.App.D.C. 37 (C.A.D. C.1978), cert. denied 439 U.S. 1071, 99 S.Ct. 841, 59 L.Ed.2d 37 (1979).
So ordered.
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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0224-17T1
JOANNE K. SNYDER,
Plaintiff-Appellant,
v.
HOWARD I. SNYDER,
Defendant-Respondent.
________________________________
Argued August 8, 2018 – Decided August 24, 2018
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FM-03-1076-11.
Ronald G. Lieberman argued the cause for
appellant (Cooper Levenson, PA, attorneys;
Ronald G. Lieberman, on the briefs).
Jonathan Stone argued the cause for
respondent.
PER CURIAM
In this matrimonial action, plaintiff Joanne K. Snyder
appeals from the provisions of the August 4, 2017 order compelling
her to execute a Qualified Domestic Relation Order (QDRO) for the
division of her ex-husband's pension. After a review of the
contentions in light of the record and applicable principles of
law, we affirm.
After thirty years of marriage, the parties were divorced in
June 2011. A Final Judgment of Divorce incorporated the parties'
Property Settlement Agreement (PSA). Defendant Howard I. Snyder
had a pension in pay status at the time of the divorce from which
he was receiving established payments. This pension is the subject
of this appeal.
Paragraph 3.5 of the PSA addressed the parties' retirement
accounts and pension plans. Specifically as to defendant's pension
in pay status, it stated:
Wife shall be entitled to $2800.00 a
month from Husband's Pension with the
remaining monthly payout being the sole
property of the Husband. Wife will remain on
the bank account where the funds from the
Pension are currently deposited until such
time as a [QDRO] can be drafted and the . . .
Pension [is] divided as per the above
specifications. Until such time as a QDRO is
completed, wife may withdraw $2800.00 a month
from the bank account that receives the
monthly Pension payments.
Paragraph 4.4, entitled "Income Tax Effect," provided: "All
of the foraging(sic) transactions as set forth in Article III,
(Equitable Distribution), are intended to be tax-free events." It
further stated that any financial events required under Article 6
2 A-0224-17T1
of the PSA were "intended to be non-taxable events under the
Internal Revenue Code 1041."
For more than five years after the divorce, as per the PSA,
plaintiff withdrew $2800 a month from the joint bank account as
her share of defendant's pension. During this time period
defendant paid the tax liability for the entire distribution. In
February 2016, defendant self-prepared a QDRO and presented it to
the pension plan administrator. Plaintiff's counsel objected to
the form of the QDRO, the plan administrator took no action, and
plaintiff continued to withdraw $2800 tax-free from the bank
account.
In June 2017, defendant filed a motion, in pertinent part,
compelling plaintiff to execute the QDRO. Plaintiff's cross-
motion asserted she was entitled to receive $2800 net of taxes
under the PSA, and judicial estoppel prevented defendant from
requiring her to pay taxes on her share of the distribution, which
would result in a downward modification of her net monies.
Following extensive oral argument, the Family Part judge
issued an oral decision on August 4, 2017, memorialized in an
order under the same date. In applying the plain language of the
PSA, the judge noted that Paragraph 3.5 did not address the "tax
consequences of distributions received by the Wife from Husband's
pension." Although he acknowledged the statement in Paragraph 4.4
3 A-0224-17T1
that the parties intended transactions in Article III to be non-
taxable events under Internal Revenue Code (IRC) 1041, the judge
advised that Section 1041 did not apply to the tax consequences
of pension distributions made pursuant to a QDRO. A pension
distribution was governed by Sections 402(e)(1)(A) and 72 of the
IRC, which provided that a spouse or former spouse of a participant
who receives a distribution or payment under a QDRO is an
"alternate payee," and must pay federal income tax on the
distribution or payment.
Concluding that there was "no explicit provision" in the
parties' PSA that contradicted the pertinent sections of the tax
code, the judge resolved that, going forward, plaintiff was
required to pay federal income tax on her share of defendant's
pension; the $2800 was deemed a gross figure subject to tax
obligations under the QDRO. Defendant's motion was granted and
plaintiff was ordered to execute the QDRO.
On appeal, plaintiff argues that the parties' course of
conduct for five years evidenced an intent that plaintiff was to
receive a distribution of $2800 per month from defendant's pension
net of taxes, and that the judge erred in not ordering a plenary
hearing. Plaintiff also argues, for the first time, that she
should not have to pay taxes on her share of the pension
distribution despite the existence of tax law to the contrary.
4 A-0224-17T1
Our standard of review requires us to give considerable
deference to the discretionary decisions of Family Part judges.
Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009)
(citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)).
That is so "[b]ecause of the family courts' special jurisdiction
and expertise in family matters." Cesare v. Cesare, 154 N.J. 394,
413 (1998). Unlike a trial judge's fact and credibility findings,
the judge's "interpretation of the law and the legal consequences
that flow from established facts are not entitled to any special
deference." Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div.
2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378, (1995)).
Consistent with New Jersey's "'strong public policy favoring
stability of arrangements' in matrimonial matters," where matters
in dispute in a post-judgment matrimonial motion are addressed in
a PSA, courts will not "unnecessarily or lightly disturb[]" the
agreement so long as it is fair and equitable. Quinn v. Quinn,
225 N.J. 34, 44 (2016) (quoting Konzelman v. Konzelman, 158 N.J.
185, 193-94 (1999)); see also Pacifico v. Pacifico, 190 N.J. 258,
266 (2007) (a matrimonial agreement is enforceable so long as it
is not inequitable); Dolce v. Dolce, 383 N.J. Super. 11, 20 (App.
Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981))
(PSAs are entitled to "'considerable weight with respect to their
5 A-0224-17T1
validity and enforceability' in equity, provided they are fair and
just").
Plaintiff asserts that she has relied on receiving $2800
gross as her share of defendant's pension for more than seven
years and, therefore, the doctrine of laches requires the
perpetuation of this arrangement. We disagree.
As the judge stated, the PSA permitted plaintiff to withdraw
$2800 monthly from a joint bank account. This arrangement was to
continue until a QDRO was executed to divide the pension monies.
Although paragraph 3.5 did not address the tax consequences to
either party following the execution of the QDRO, paragraph 4.4
informed that all transactions under Article III were to be non-
taxable events, referring to IRC 1041. Pursuant to those
provisions, plaintiff has received $2800 monthly, free of taxes,
as her share of the pension distribution for more than seven years.
Although the PSA requires the preparation of a QDRO to divide
the pension account, it is silent as to the tax consequences of
the division of the account under the QDRO. Plaintiff does not
dispute that a tax liability is incurred on a pension distribution,
instead, she argues that since defendant paid the taxes on the
full distribution for so many years, she has become reliant on
that arrangement.
6 A-0224-17T1
We agree, as did the trial judge, that defendant failed to
comply with his responsibility for drafting and submitting a QDRO
for the division of the account. However, defendant's neglect was
to his detriment and resulted in a windfall for plaintiff. She
has not paid any taxes on her share of the pension distribution
from June 2011 to the present time.
The PSA does not address the tax consequences to the parties
following the entry of a QDRO. The IRC imposes a tax liability
on pension distributions. Under the circumstances present here,
we are satisfied the trial judge's determination that each party
be responsible, going forward, for the tax owed on their respective
shares of the pension distribution is a fair and just reading of
the PSA.
Although defendant was dilatory in the preparation of the
QDRO, plaintiff did not pursue the division of the account either.
Instead, she collected a tax-free share of the pension for more
than seven years. The equities favor the conclusion that the
gross distribution paid to plaintiff of $2800 is subject to the
requisite imposition of taxes.
We discern no abuse of discretion in the judge's denial of a
plenary hearing, and we decline to address plaintiff's argument
that the trial court could have entered an order contrary to
7 A-0224-17T1
existing tax laws as it was not raised to the trial court. See
Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012).
Affirmed.
8 A-0224-17T1
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835 F.2d 1432
Myerv.Weeks*
NO. 87-2515
United States Court of Appeals,Fifth Circuit.
DEC 10, 1987
1
Appeal From: E.D.Tex.
2
AFFIRMED IN PART.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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United States Court of Appeals
for the Federal Circuit
______________________
UNWIRED PLANET, LLC,
Appellant
v.
GOOGLE INC.,
Appellee
______________________
2015-1810, 2015-1811
______________________
Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board, in Nos.
IPR2014-00036, CBM2014-00005.
______________________
Decided: November 15, 2016
______________________
WILLIAM M. JAY, Goodwin Procter LLP, Washington,
DC, argued for appellant. Also represented by ELEANOR
M. YOST; BRETT M. SCHUMAN, DAVID ZIMMER, San Fran-
cisco, CA.
JON WRIGHT, Sterne Kessler Goldstein & Fox, PLLC,
Washington, DC, argued for appellee. Also represented by
MICHAEL V. MESSINGER, DEIRDRE M. WELLS, JOSEPH E.
MUTSCHELKNAUS; PETER ANDREW DETRE, Munger, Tolles
& Olson, LLP, San Francisco, CA; ADAM R. LAWTON, Los
Angeles, CA.
______________________
2 UNWIRED PLANET, LLC v. GOOGLE INC.
Before REYNA, PLAGER, and HUGHES, Circuit Judges.
REYNA, Circuit Judge.
Unwired Planet, LLC (“Unwired”) appeals from the
final written decisions of the Patent Trial and Appeal
Board (“Board”) in Inter Partes Review (“IPR”) No. 2014-
00036 and Covered Business Method (“CBM”) Patent
Review No. 2014-00005. Google Inc. v. Unwired Planet,
LLC, IPR2014-00036, 2015 WL 1478653 (P.T.A.B. Mar.
30, 2015) (“IPR Final Decision”); Google Inc. v. Unwired
Planet, LLC, CBM2014-00005, 2015 WL 1519056
(P.T.A.B. Mar. 30, 2015) (“CBM Final Decision”). For the
reasons stated below, we affirm the Board’s decision that
the challenged claims of U.S. Patent No. 7,024,205 (the
“’205 patent”) are invalid as obvious in the IPR appeal
and dismiss the CBM appeal as moot.
BACKGROUND
U.S. Patent No. 7,024,205
The ’205 patent is entitled “Subscriber Delivered Lo-
cation-Based Services.” It describes a system and method
for providing wireless network subscribers (e.g., cell
phone users) with prioritized search results based on the
location of their mobile device (e.g., the nearest gas sta-
tion). The specification describes how search results can
be personalized for subscribers by taking into account, for
example, “favorite restaurants; automobile service plans;
and/or a wide variety of other subscriber information.”
’205 patent col. 2 ll. 18–19.
In contrast, the specification also describes how
search results can be ordered to give priority to “preferred
service providers defined by the network administrator.”
Id. at col. 8 ll. 35–36. This allows the network to generate
revenue by charging service providers to be put on the
preferred-service-provider list. Id. at col. 8 ll. 46–52.
Preferred-provider status, in turn, leads to preferred
UNWIRED PLANET, LLC v. GOOGLE INC. 3
providers’ listings being prioritized in search results
provided to subscribers.
Prioritization based on subscriber information and
preferred provider status is independent of a subscriber’s
location; hence, it can lead to service providers that are
actually farther away from the subscriber being given
priority over service providers that are nearer. As a
consequence, the results returned to the subscriber can
order preferred providers and other service providers that
are farther away higher than nearer service providers.
The parties and the Board refer to this result as “farther-
over-nearer ordering,” although that term is not used in
the patent.
The sole independent claim of the ’205 patent, claim 1,
claims farther-over-nearer ordering in the context of
wireless location-based services through a series of meth-
od steps. We treat claim 1 of the ’205 patent as repre-
sentative and dispositive because the parties do not argue
that any limitations of the dependent claims alter the
obviousness analysis in the context of the asserted prior
art. Relevant here, it claims:
identifying, on said network platform, first and
second service providers and associated first and
second service provider information[,] . . . wherein
said first service provider is farther from [a] mo-
bile unit than said second service provider; [and]
***
based on said stored prioritization information,
prioritizing said first and second service provider
information, wherein said first [farther] location
information is assigned a higher priority than said
second [nearer] location information; and
4 UNWIRED PLANET, LLC v. GOOGLE INC.
outputting both said first and second service in-
formation on said mobile unit based upon said
step of prioritizing.
’205 patent, cl. 1, col. 10 ll. 27–57.
Asserted Prior Art
Five asserted prior art references are relevant to the
issues addressed below.
The primary reference, U.S. Patent No. 6,108,533
(“Brohoff”), is entitled “Geographical Database for Radio
Systems.” It describes a system using a radio telecom-
munication network in combination with a database of
consumer services. Brohoff col. 2 ll. 18–25. The system
provides the information about nearby consumer services
in response to search requests. To do so, the system
determines the location of the mobile device sending the
search request and provides information about nearby,
relevant consumer services from its database. Id. at col. 2
ll. 33–42. Brohoff teaches using a database where the
consumer services are grouped by geographic zones and
returning location-based search results grouped by these
geographic zones. Id. at col. 2 ll. 48–58, col. 3 ll. 13–19.
One secondary reference is Wilbert O. Galitz’s book
The Essential Guide to User Interface Design: An Intro-
duction to GUI Design Principles and Techniques (John
Wiley & Sons, Inc. (1997)) (“Galitz”). It discusses princi-
ples for interface design, including discussing the ad-
vantages of various techniques for ordering text
information and menus. Id. at 120–21, 255–56. It also
discusses the benefits and applications of several ordering
techniques, including alphabetic order. Id. at 256. Galitz
further suggests how the design principles it discusses
may be applied in designing interfaces for future, special-
ized devices. Id. at 32.
Another secondary reference is Laura Rich’s article IQ
News: New Search Engine Allows Sites To Pay Their Way
UNWIRED PLANET, LLC v. GOOGLE INC. 5
To Top. 1 It describes a search engine that orders search
results “according to who paid the most for that particular
keyword” in a search. It also discusses ranking sites
“according to user and editor input.”
A fourth reference is European Patent No. EP
0647076 (“Remy”), entitled, “Cellular radio communica-
tion system with access to location dependent service,
location retrieving module and server module for person-
al, location dependent services.” It describes a cellular
radio communication system within a network of geo-
graphical cells that responds to a location-based query
with the nearest result.
Finally, International Patent No. WO 97/22066
(“Hopkins”) is entitled “Method for computer aided adver-
tisement.” It describes a computer-implemented method
for presenting vendor advertising information to a user.
Hopkins discusses how users can search the information
alphabetically, by name, by address, or by geographical
area.
Procedural History
Google Inc. (“Google”) filed the IPR and CBM petitions
on appeal on October 8, 2013. In both proceedings, Google
challenged claims 1–6 of the ’205 patent. The Board
consolidated the proceedings before the same panel and,
on April 8, 2014, instituted both proceedings on all chal-
lenged claims. IPR2014-00036, 2014 WL 1410358;
CBM2014-00005, 2014 WL 1396977. On March 30, 2015,
the Board issued final written decisions invalidating all of
the challenged claims as obvious.
1 Laura Rich, IQ News: New Search Engine Allows
Sites To Pay Their Way To Top, http://www.adweek.com/
news/advertising/iq-news-new-search-engine-allows-sites-
pay-their-way-top-24893 (Feb. 23, 1998).
6 UNWIRED PLANET, LLC v. GOOGLE INC.
In the IPR final written decision, the Board held the
challenged claims were obvious on three grounds. IPR
Final Decision, 2015 WL 1478653, at *18. In the first
ground, claims 1–3, 5, and 6 were held obvious over
Brohoff in view of Galitz. In the second ground, claim 4
was held obvious in further view of Rich. In the third
ground, claims 1–6 were also held obvious over Remy in
view of Hopkins.
In the CBM final written decision, the Board held
that claims 1–6 were invalid for lack of written descrip-
tion under 35 U.S.C. § 112 ¶ 1. 2 CBM Final Decision,
2015 WL 1519056, at *17. Specifically, the Board deter-
mined that the specification lacked written description
support for the claim term “prioritization information
establishing a basis independent of proximity and inde-
pendent of any subscriber preferences for prioritizing said
first and second service provider information” and for
farther-over-nearer ordering. Id. at *14, *16.
Unwired appeals from both final written decisions.
We consolidated the appeals for briefing and argument.
Order Consolidating Appeals, No. 2015-1810, ECF No. 2
(Fed. Cir. July 15, 2015). We have jurisdiction under 28
U.S.C. § 1295(a)(4)(A) and 35 U.S.C. §§ 319, 329.
2 35 U.S.C. §§ 103 and 112 were replaced with new
versions in the America Invents Act (“AIA”). See Leahy
Smith America Invents Act, Pub. L. No. 112-29, §§ 3(c),
4(c), 125 Stat. 284, 287, 296 (2011) (“AIA”). However, the
AIA versions of §§ 103 and 112 do not apply to the pa-
tents-in-suit in view of the AIA’s effective date provi-
sions. See AIA, §§ 3(n)(1), 4(e), 125 Stat. 293, 297. Thus,
we refer to the pre-AIA version of Title 35.
UNWIRED PLANET, LLC v. GOOGLE INC. 7
STANDARD OF REVIEW
We review the Board’s factual determinations for sub-
stantial evidence and its legal conclusion of obviousness
de novo. In re Cuozzo Speed Techs., LLC, 793 F.3d 1268,
1280 (Fed. Cir. 2015), aff’d, Cuozzo Speed Techs., LLC
v. Lee, 136 S. Ct. 2131 (2016); Inphi Corp. v. Netlist, Inc.,
805 F.3d 1350, 1354 (Fed. Cir. 2015). “Substantial evi-
dence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Ken-
nametal, Inc. v. Ingersoll Cutting Tool Co., 780 F.3d 1376,
1381 (Fed. Cir. 2015) (quotation marks omitted).
DISCUSSION
A claim would have been obvious “if the differences
between the subject matter sought to be patented and the
prior art are such that the subject matter as a whole
would have been obvious at the time the invention was
made to a person having ordinary skill in the art to which
said subject matter pertains.” 35 U.S.C. § 103(a) (2006).
In order to determine if a claim would have been obvious,
“the scope and content of the prior art are to be deter-
mined; differences between the prior art and the claims at
issue are to be ascertained; and the level of ordinary skill
in the pertinent art resolved.” KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 406 (2007) (quoting Graham v. John
Deere Co., 383 U.S. 1, 17 (1966)). Given the differences
between the prior art and the claimed invention, the
claimed combination would have been obvious only if
there was an apparent reason for a skilled artisan “to
combine the known elements in the fashion claimed by
the patent at issue.” KSR, 550 U.S. at 418.
Unwired makes three challenges to the Board’s basis
for the first ground of obviousness in the IPR. Unwired
argues (1) that Galitz is not analogous prior art, (2) that
the prior art does not teach farther-over-nearer ordering,
and (3) that a person of skill in the art would not have
been motivated to combine Brohoff with Galitz. Unwired
8 UNWIRED PLANET, LLC v. GOOGLE INC.
does not separately dispute the further combination with
Rich in the second ground of obviousness. We find sub-
stantial evidence supports the Board’s factual findings
with respect to the first two grounds of the IPR, and these
facts lead to the conclusion that claims 1–6 of the ’205
patent were obvious. This resolves the patentability of all
challenged claims, so we do not reach the third ground in
the IPR or the issues presented in the CBM review.
1. The relevant prior art includes Galitz.
Unwired challenges the Board’s factfinding with re-
spect to the scope of the prior art. Unwired argues that
Galitz “has nothing to do with mobile telephony or loca-
tion-based services, but instead is a manual for designers
of graphic user interfaces—a thoroughly different con-
cept.” Unwired Br. 16. We disagree.
Prior art is analogous and can be applied in an obvi-
ousness combination if it either (1) “is from the same field
of endeavor, regardless of the problem addressed” or
(2) “is reasonably pertinent to the particular problem with
which the inventor is involved.” In re Clay, 966 F.2d 656,
658–59 (Fed. Cir. 1992). To determine if art is analogous,
we look to “the purposes of both the invention and the
prior art.” Id. at 659. If a reference disclosure and the
claimed invention have a same purpose, the reference
relates to the same problem, which supports an obvious-
ness rejection. Id.
The field of endeavor of the ’205 patent is not limited
to technical issues related to the wireless network system;
it also teaches methods for ordering and displaying infor-
mation from the network on users’ mobile devices. The
’205 patent discusses various ways that “the service
information can be provided to the user,” including “on a
visual display of the [mobile device], as an audible, rec-
orded message, or through any other appropriate means.”
’205 patent col. 3 ll. 15–18. “In cases where the service
information is provided as a menu of selections, the
UNWIRED PLANET, LLC v. GOOGLE INC. 9
method may further involve receiving a menu selection
entered by the user and outputting further service infor-
mation in response to the menu selection. Id. at col. 3 ll.
18–22. One particular problem the ’205 patent addresses
is how to display and order information on a mobile
device. When a menu is displayed on a mobile device, it
“may be ordered based on any of various criteria such as
the preferences expressed in the subscriber profile, near-
est to farthest, preferred service providers defined by the
network administrator, etc.” Id. at col. 8 ll. 32–36.
The Galitz reference deals generally with graphical
user interface design and includes a chapter devoted to
menu design with specific suggestions for how to order
menu items. J.A. 1182–94. This discussion substantially
focuses on displaying and ordering text in lists and men-
us. One example that Galitz uses is address text, which it
urges should be ordered “in the customary way” and
sequenced to accord with user expectations, i.e., “street,
city, state, and zip code.” J.A. 1053. Additionally, Galitz
discusses future operating systems for internet-connected
devices that “will aim at niches,” including “the purse or
wallet.” J.A. 966. It suggests that the “narrower focus”
on such devices “will result in much less complexity.” Id.
The Board also relied on the testimony of Dr. Donald
Cox. IPR Final Decision, 2015 WL 1478653, at *10. He
discussed the Yellow Pages as a “customary and conven-
tional use of sequential or alphabetical ordering for loca-
tion-based services.” Id. The Yellow Pages list businesses
in a “specific geographic area,” sort “the businesses into
similar types,” and then alphabetically order the listings
in each category. Id. (quoting Decl. of Dr. Donald Cox,
¶ 27, J.A. 494).
Taken together, this evidence establishes that Galitz
is analogous prior art to the ’205 patent. The field of
endeavor of a patent is not limited to the specific point of
novelty, the narrowest possible conception of the field, or
10 UNWIRED PLANET, LLC v. GOOGLE INC.
the particular focus within a given field. Here, both
Galitz and the ’205 patent are in the field of interface
design, with Galitz focusing on graphical user interfaces
and the ’205 patent focusing on interfaces for location-
based services. These two areas of focus overlap within
the broader field of interface design because the teachings
in graphical user interface design, including design prin-
ciples for displaying text and ordering menus, have rele-
vance in interfaces for location-based applications.
Likewise, a skilled artisan seeking to apply interface
design principles to display addresses—one of the particu-
lar problems dealt with by the inventor of the ’205 pa-
tent—would reasonably look to Galitz, which teaches
solutions to this same problem. As the Board found, Dr.
Cox’s testimony shows a skilled artisan would have
understood the applicability of Galitz’s teachings to this
problem by providing an example of conventional address
text and ordering in the location-based context. The
Board correctly applied Galitz as analogous art based on
substantial evidence that Galitz is both from the same
field of endeavor as the ’205 patent and is reasonably
pertinent to the problem of displaying address infor-
mation.
2. The prior art teaches prioritization that results in
farther-over-nearer ordering.
Unwired argues that none of the prior art references
cited teach farther-over-nearer ordering as claimed. It
faults the Board for equating prioritization schemes that
“sometimes return a farther result” with “farther-over-
nearer ordering.” Unwired Br. 18–19 (emphasis in origi-
nal). We reject this argument because combinations of
prior art that sometimes meet the claim elements are
sufficient to show obviousness. See Hewlett-Packard Co.
v. Mustek Sys., Inc., 340 F.3d 1314, 1326 (Fed. Cir. 2003).
Unwired acknowledges that the claims do not require
prioritizing locations that are farther away because they
UNWIRED PLANET, LLC v. GOOGLE INC. 11
are farther away. The claims only require using prioriti-
zation information that results in a farther-over-nearer
order. ’205 patent, cl. 1, col. 10 ll. 53–55 (“wherein said
first location information is assigned a higher priority
than said second location information”). The claimed
result, where a farther first location is given priority over
a nearer second location, could result from many prioriti-
zation schemes that do not depend on location.
The prioritization information used in the proposed
combination of the prior art is alphabetical ordering.
Galitz recommends “alphabetical ordering” for lists with
“a large number of options” and “small lists where no
frequency or sequence pattern is obvious.” J.A. 1189.
Alphabetical prioritization will often result in locations
that are farther away being given a higher priority than
locations that are nearer. For example, prioritizing a list
of countries in English by alphabetical order will place
Afghanistan before Niger, even when the prioritization is
done in nearby Nigeria. Alphabetical order, thus, will
result in instances of farther-over-nearer ordering.
It does not matter that the use of alphabetical order
for locations would not always result in farther-over-
nearer ordering. It is enough that the combination would
sometimes perform all the method steps, including far-
ther-over-nearer ordering. See Hewlett-Packard, 340 F.3d
at 1326. Because the use of alphabetical order as prioriti-
zation information would sometimes meet the farther-
over-nearer claims elements, the Board was correct to
conclude that the proposed combination taught all of the
elements of claim 1.
3. A skilled artisan would be motivated to combine.
Unwired argues that in the context of location-based
services, a skilled artisan would have no motivation to
combine the prior art references to achieve farther-over-
nearer ordering. Unwired argues that “Google has never
shown a motivation to modify Brohoff, because Google has
12 UNWIRED PLANET, LLC v. GOOGLE INC.
never shown that those working in the art perceived a
problem with nearer-first ordering.” Unwired Br. 30.
Google argues that the proposed combination does not
require abandoning nearer-first ordering. It notes that
Galitz teaches the advantages of using ordering tech-
niques in combination. Google characterizes the proposed
combination as using the ordering techniques of Galitz in
combination with Brohoff’s disclosure of grouping search
results based on proximity zones. Google also argues that
it does not need to show that there was a known problem
with the prior art system in order to articulate the re-
quired rational underpinning for the proposed combina-
tion. We agree.
The Court in KSR described many potential ration-
ales that could make a modification or combination of
prior art references obvious to a skilled artisan. 550 U.S.
at 417–22; see also MPEP § 2143. KSR overturned the
approach previously used by this court requiring that
some teaching, suggestion, or motivation be found in the
prior art. 550 U.S. at 415. Instead, the Court explained
that a rationale to combine could arise from “interrelated
teachings of multiple patents; the effects of demands
known to the design community or present in the market-
place; and the background knowledge possessed by a
person having ordinary skill in the art.” Id. at 418. For
example, the Court stated that “if a technique has been
used to improve one device, and a person of ordinary skill
in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.”
Id. at 417. For the technique’s use to be obvious, the
skilled artisan need only be able to recognize, based on
her background knowledge, its potential to improve the
device and be able to apply the technique.
The device to be improved is Brohoff. The Board ex-
plained that Brohoff teaches a system that allows users to
UNWIRED PLANET, LLC v. GOOGLE INC. 13
search for information and be provided results based on
their location. In the provided search results, “the identi-
fied service providers are grouped by their respective
locations within a zone.” IPR Final Decision, 2015 WL
1478653, at *8 (citing Brohoff, col. 6 ll. 45–49). While the
zones in Brohoff are ordered nearer-first, Brohoff does not
explain how the service providers are prioritized within
their zone groups. See Brohoff, col. 8 ll. 47–55.
The improvement is provided by using the technique
of combining ordering methods found in Galitz. As the
Board recognized, Galitz teaches benefits of various
ordering techniques and suggests using them in combina-
tion. IPR Final Decision, 2015 WL 1478653, at *8. To
take advantage of the benefits of multiple techniques,
“[s]creen layout normally reflects a combination of [differ-
ent] techniques.” Id. (quoting Galitz at 121, J.A. 1054)
(second modification in original). Using ordering tech-
niques in combination is, thus, a technique that a person
of ordinary skill in the art would recognize could be used
to improve information display.
The Board’s determination that a person of skill in the
art would have been motivated to apply the techniques of
Galitz to Brohoff is supported by substantial evidence.
The Board found that testimony of Dr. Cox was entitled to
“substantial weight because [it] is consistent with the
teachings of Brohoff and Galitz.” Id. at *11. He explained
that “Galitz recognized that information may be ordered
by category—such as Brohoff’s geographic zones—and,
within each category, information may be ordered by
other prioritization information.” Id. at *8 (quoting Decl.
of Dr. Donald Cox, ¶ 42, J.A. 502).
Unwired does not dispute that a person of ordinary
skill in the art would have been able to apply the teach-
ings of Galitz to make the improvement it suggests.
Unwired claims that the specific problem of farther-over-
nearer ordering itself is not discussed in the combined
14 UNWIRED PLANET, LLC v. GOOGLE INC.
references. Galitz’s teaching of the advantages of combin-
ing ordering techniques shows “there was an apparent
reason to combine the known elements in the fashion
claimed by the patent at issue.” KSR, 550 U.S. at 418.
Irrespective of whether a person of skill in the art would
have recognized specific use of Brohoff, substantial evi-
dence exists if she could have seen the advantages of
applying the teachings of Galitz to improve Brohoff. This
is sufficient to render the combination obvious. Id. at 417.
CONCLUSION
We affirm the Board’s determination that claims 1–6
of the ’205 patent were obvious in No. 2015–1810. We
dismiss as moot the appeal in No. 2015–1811.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
No costs.
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 3, 2007
Charles R. Fulbruge III
Clerk
No. 06-10587
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHILLIP LINTON MOBLEY,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:05-CR-75-ALL
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
The Assistant Federal Public Defender Counsel appointed to
represent Phillip Linton Mobley has moved for leave to withdraw
and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967). Mobley was notified of counsel’s motion,
but he has not filed a response.
Our independent review of counsel’s brief and the record
discloses no nonfrivolous issue for appeal. Accordingly,
counsel’s motion for leave to withdraw is GRANTED, counsel is
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-10587
-2-
excused from further responsibilities herein, and the APPEAL IS
DISMISSED. See 5TH CIR. R. 42.2.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1415
RENEE LOUISE MCCRAY,
Plaintiff - Appellant,
v.
WELLS FARGO BANK, N.A.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:14-cv-03445-GLR; 13-26131; 13-00710)
Submitted: October 28, 2016 Decided: December 9, 2016
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Renee Louise McCray, Appellant Pro Se. Michael S. Barranco,
Douglas Brooks Riley, TREANOR, POPE & HUGHES, PA, Towson,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Renee Louise McCray appeals the district court’s orders:
(1) adopting the bankruptcy court’s proposed findings of fact
and conclusions of law and dismissing her civil action, and
(2) denying her postjudgment motions for reconsideration. We
have reviewed the record and find no reversible error.
Accordingly, we affirm for the reasons stated by the district
court. McCray v. Wells Fargo Bank, N.A., No. 1:14-cv-03445-GLR;
13-26131; 13-00710 (D. Md. Oct. 14, 2015; Mar. 30, 2016; Apr. 8,
2016). We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
2
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46 Ill.2d 572 (1970)
264 N.E.2d 151
THE PEOPLE ex rel. Thomas Bowman, Appellant,
v.
JOSEPH I. WOODS, Sheriff, Appellee.
No. 42174.
Supreme Court of Illinois.
Opinion filed November 17, 1970.
*573 R. EUGENE PINCHAM, EARL E. STRAYHORN, and CHARLES B. EVANS, all of Chicago, for appellant.
WILLIAM J. SCOTT, Attorney General, of Springfield, and EDWARD V. HANRAHAN, State's Attorney, of Chicago, (JAMES B. ZAGEL, Assistant Attorney General, and ROBERT A. NOVELLE, and MICHAEL J. GOLDSTEIN, Assistant State's Attorneys, of counsel,) for the People.
Judgment reversed; petitioner discharged.
Mr. JUSTICE KLUCZYNSKI delivered the opinion of the court:
The petitioner, Thomas Bowman, appeals directly to this court from an order of the circuit court of Cook County denying a writ of habeas corpus in an extradition proceeding and remanding him to the custody of the Cook County sheriff for delivery to an agent of the State of Alabama.
On May 3, 1968, the State of Alabama filed extradition papers with the Governor of Illinois asking the apprehension and delivery of the petitioner. The supporting extradition papers established that during the months of March and April, 1951, ten complaints and warrants of arrest were issued by the circuit court of Autauga County, Alabama, each charging that Tom Bowman had stolen a cow. The complaints arose out of one transaction, but the ten cows were owned by ten different individuals. To those complaints he pleaded guilty, and on May 4, 1951, he was sentenced to serve one year and one day for each separate *574 offense. Bowman was imprisoned in the Alabama State Penitentiary in execution of said judgments on or about May 5, 1951. On August 28, 1952, after serving over a year, he escaped from the Alabama Prison Farm, and fled to the State of Illinois. In compliance with the extradition demand filed by the State of Alabama, the Governor of Illinois issued a warrant commanding petitioner's arrest, and he was taken into custody by the sheriff of Cook County. Following his arrest, on June 7, 1968, petitioner filed his petition for writ of habeas corpus contesting the legality of his detention.
At the hearing on the writ it was established that twice before petitioner had been arrested for extradition to the State of Alabama. In 1955 he was arrested on a gambling charge, and it was discovered that he was wanted in Alabama as an escapee. A fugitive warrant was issued, and Bowman was retained in custody. On motions of the State, the hearing on the complaint was continued on five occasions. Alabama had been notified to begin extradition proceedings but informed the State's Attorney that it had no desire for Bowman's return at that time. By reason thereof, on August 12, 1955, on motion of the State, the complaint was nol-prossed and petitioner was released.
In March, 1957, Bowman was again arrested pursuant to a warrant issued by the Governor of Illinois at the request of the Governor of Alabama. Petitioner initiated habeas corpus proceedings, seeking relief because of inaction on the part of Alabama, and when Alabama failed to take further action to facilitate extradition he was discharged from custody on June 18, 1957.
Finally, in May, 1968, petitioner was arrested a third time pursuant to a warrant of the Governor of Illinois made at the request of the Governor of Alabama. Bowman again filed a petition for writ of habeas corpus which was denied.
The issue before the court is whether Illinois will be a party to the extradition of Bowman after two prior proceedings *575 and a delay of some 13 years after the first proceeding. The State cites People ex rel. Barrett v. Dixon, 387 Ill. 420, for the proposition that a lapse of time in enforcing an extradition does not discharge a violator of an out-of-the-State parole, and People ex rel. Ritholz v. Sain, 26 Ill.2d 455, for the proposition that a prior discharge from an extradition proceeding by writ of habeas corpus does not operate as an acquittal. We are aware of the rulings in these cases and the fact that normally the scope of inquiry in habeas corpus proceedings commenced to test the validity of extradition is limited to: "(1) whether the accused is the person named in the warrant; (2) whether he is substantially charged with a crime in the demanding State; (3) whether he is a fugitive from justice of the demanding State; (4) whether the papers are regular in form. (People ex rel. Ponak v. Lohman, 7 Ill.2d 156.)" People ex rel. Levin v. Ogilvie, 36 Ill.2d 566, 567; cf. People ex rel. Banks v. Farner, 39 Ill.2d 176, 180.) However, because there was an inordinate delay not attributable to the petitioner, closer scrutiny is required.
In this case there was an unexplained 13-year delay between the first extradition proceeding in 1955 and the last effort in 1968. During this period the State of Alabama knew of Bowman's presence in Illinois and twice refused to extradite him. As a consequence, because he has been unable to make bail, petitioner has been imprisoned in Illinois on three occasions pending disposition of the extradition proceeding. We believe that the extraordinary circumstances of this case require an application of the concept of fundamental fairness, as expressed in many appeals. (See: People v. Raymond, 42 Ill.2d 564; People v. Hamby, 32 Ill.2d 291, and cases cited therein.) While normally the mere passing of time will not discharge petitioner, at a certain point and after a certain number of incompleted extraditions, we must find that the State of Alabama has forfeited its right to enforce extradition.
*576 Petitioner did initially leave the State of Alabama before completion of his sentence. However, he has been available for extradition in this State since then, and did not contest the validity of the first two proceedings. Serving the remainder of the term at this point in time is manifestly different from the sentence originally imposed. The ends of justice will not be served by enforcing extradition for the crime involved on a person who has lived openly within this State for the last eighteen years, and who has been imprisoned on three occasions during the pendency of the extradition proceedings.
For the foregoing reasons the judgment of the circuit court of Cook County is reversed and the petitioner is ordered discharged.
Judgment reversed; petitioner discharged.
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87 Ariz. 35 (1959)
347 P.2d 696
E.J. POLEY and Elizabeth M. Poley, his wife, Appellants,
v.
O.L. BENDER and Laura M. Bender, his wife, Appellees.
No. 6574.
Supreme Court of Arizona.
December 23, 1959.
Rehearing Denied January 19, 1960.
*36 Locklear & Wolfinger, Prescott, for appellants.
Charles E. McDaniel and Jack L. Ogg, Prescott, for appellees.
UDALL, Justice.
This is an action in tort for fraud and misrepresentation as to the adequacy of a domestic water supply in the sale of a ranch. O.L. Bender, purchaser of the ranch and appellee herein, chose not to sue for rescission and restitution based on the claimed misrepresentation; instead he elected to affirm the sale and sue for damages for the alleged fraud. The action was brought in the Superior Court of Yavapai County, wherein the court, sitting without a jury, rendered judgment on the complaint for the plaintiff and assessed damages against the seller, E.J. Poley, in the amount of $1,717.31. This appeal followed.
The following facts are undisputed:
The defendant-appellant E.J. Poley (hereinafter referred to as Poley) was, since 1924, the owner and operator of what is locally known as the "Poley Ranch" in the Tonto Springs-Skull Valley area, located some 20 miles west of Prescott. In the first year after he moved on to the ranch some time in 1925 a well, some 3 feet in diameter and 150 feet deep, was dug by hand on the property. The water pump was first operated by a 3 horsepower gas engine; in later years the engine was replaced by a windmill. Poley used a 1,000-gallon storage tank and two water troughs with an aggregate capacity of approximately 2,000 gallons. During the years that Poley and his wife lived on the ranch, they wholly relied upon this well to supply water for their house, livestock (he had a permit to run 36 head of cattle), flowers, trees, and shrubbery. In addition, Poley frequently gave water to neighbors and passers-by who ran short (reportedly including Bender, who needed water while *37 he was drilling the well on his own property). As Poley said on the witness stand, "Everyone short of water, didn't have a well, mine was it." No evidence was presented to contradict the showing made by defendants that there was sufficient water for these purposes during the 27 years the Poleys occupied the ranch. On the contrary, all the testimony covering this period tended to support Mrs. Poley's statement that, "We had all the water for everything we wanted."
On October 7, 1952, Poley conveyed the ranch property (a homestead entry) to O.L. Bender, the plaintiff-appellee herein (henceforth referred to as Bender). Bender did not take possession of the premises until early in January, 1953, at which time his son-in-law, Richard Hargus, moved onto the ranch. At that time the old 1,000-gallon storage tank used by Poley was replaced by a tank with a 2,000-gallon capacity.
About a week or ten days after Hargus took possession of the ranch for Bender, it was testified that they began to experience trouble with the well. When they were unable to get any water, Bender and Hargus pulled the cylinder pump rod and found that the "leathers" had worn out. As described in the record, the "leathers" are the leather couplings on the plunger of the pump which operate to seal the water in and prevent it from escaping as it is pulled up by the pump action. It appears that the regular submersion in the water is generally sufficient to lubricate the leathers and to keep them from wearing out. However, if the pump is operating in a dry hole without this natural lubrication effect, the friction will wear away the leathers in a short time. When the leathers are worn out, the sealing of the plunger is ineffective and the pump fails to pull any water.
Poley testified that during his long occupancy of the ranch he had not needed to change the leathers more than twice; whereas Bender and Hargus both stated that they found it necessary to replace the leathers three times in some 30 days. They further testified that after the leathers had been replaced the well would function satisfactorily for a week or ten days; then the leathers would wear out again and the pump would cease to function.
At the trial Bender introduced evidence of occurrences after he took possession of the ranch in January 1953. This evidence was not substantially contradicted, and the facts adduced from a physical inspection of the well bottom are as follows: the maximum depth of water standing in the well was variously estimated at from 15 inches to 3 1/2 feet (Poley had said that he thought the well held 3 1/2 to 4 feet of water); at the high-water level the capacity was estimated to be some 100 gallons; when the well had been pumped dry (by the use of a special portable submersible pump capable of pumping 20 gallons a *38 minute) it required about three hours for the underground water to trickle in and refill the sump; Bender timed it, and he stated that the water therein would run the pump jack for about 10 or 12 minutes, after which if the windmill was kept running the pump ran on a dry cylinder until the well refilled. By periodically turning off the windmill and allowing the water level to rise to capacity, it was found that the well would produce approximately 500 gallons per day.
Rather than continue at this rate, Bender hired a well-driller to improve the well. As a result of this, an 8-inch shaft was drilled down another 150 feet, making the total depth some 300 feet. A good flow of underground water was encountered that produces 10 gallons a minute continuously, and it cannot be pumped dry with the submersible pump equipment. It is the cost of this new drilling and pipe which Bender sought to and by the court's judgment did recover in this action.
The representation upon which Bender bases his complaint was admittedly made by Poley shortly before the date of the sale, i.e., October 7, 1952. It is alleged in the complaint, and is expressly admitted by Poley in his answer thereto, that
"there was a good domestic well on the premises and the well would furnish sufficient water for the proper operation of the pump and windmill located on the premises."
The primary defense relied upon by Poley at the trial and the basis for his sole assignment of error was that the actual falsity of this statement had never been established, and that in his bona fide opinion this was in fact a "good domestic well". Bender, on the other hand, asserted that the well produced so little water that it could not properly be operated, and that, in effect, "* * * Mr. Poley had sold me a dry hole in the place of a good well."
It should be borne in mind that this was entirely an "arms length" transaction. Poley and Bender were both ranchers; in fact, Bender had recently purchased a ranch adjacent to that which he later bought from Poley. At the time of the negotiations, Bender asked Poley apparently several times how much water the well would produce. All witnesses agree including Bender that Poley answered that he did not know at what rate water could be drawn from the well, that he had "never measured it."
As noted above, the specific evidentiary facts as related by the respective parties are not in dispute. It is clear that Poley, during his occupancy, did have water and that to all appearances this water supply was sufficient for his purposes. It is equally clear that Bender although he was able to get some 500 gallons per day out of the well was not able to extract enough water to satisfy him and that it was the "opinion" *39 of both him and his witnesses that this was not "a good domestic well".
Nor is there any serious controversy as to the legal principles applicable. It is well settled in Arizona that an action for fraud must be based upon nine elements, which include the actual falsity of the representation alleged, as well as defendant's knowledge of that falsity or ignorance of the truth of the matters presented. See, Waddell v. White, 56 Ariz. 420, 108 P.2d 565; Wilson v. Byrd, 79 Ariz. 302, 288 P.2d 1079; Koen v. Cavanagh, 70 Ariz. 389, 222 P.2d 630; Rice v. Tissaw, 57 Ariz. 230, 112 P.2d 866. Proof of all nine of these essential elements of fraud must, in this state, be clear and convincing. Smith v. Pinner, 68 Ariz. 115, 201 P.2d 741; Cole v. Town of Miami, 52 Ariz. 488, 83 P.2d 997.
We have repeatedly emphasized that this Court is not the trier of the facts. However, we do have the duty to review the evidence and to determine whether, as a matter of law, the trial court's judgment is supported by clear and convincing evidence sufficient to justify a finding of fraud.
Bender asserts that he has proved the fraud by clear and convincing evidence. Poley denies this and maintains that the evidence does not even prove that this was not a "good domestic well". The real dispute in this case is as to the allowable inferences which may be drawn from the admitted facts.
Upon the given facts, the trial court apparently inferred that Poley, in October 1952, knew that this was not a "good domestic well" but was in fact insufficient for any practical purpose, and that he consciously misrepresented the facts in order to induce Bender to purchase the ranch. On this basis judgment was rendered for Bender. On the other hand, it might also be inferred that the representation made by Poley was true or nearly enough so that it fell within the allowable limits of a vendor's recommendation of his property to a prospective purchaser and that the troubles which befell Bender resulted from his doubling the capacity of the storage tank and trying to run the pump continuously in order to supply this new facility. A determination of this appeal turns on the question of whether the trial court was justified in drawing the inference which it did.
The key phrases in the representation relied upon are: "good domestic well", "sufficient water", and "proper operation of the pump and windmill". It is obvious that the indefinite adjectives "good", "sufficient", and "proper", are at least in this context too vague to be taken as anything other than reflections of the *40 opinion of the speaker. See, Else v. Freeman, 72 Kan. 666, 83 P. 409. There is nothing in these words to indicate that the well would, as a matter of fact, make a certain number of gallons per day be it 500 or 5,000. It is well settled that actionable fraud cannot be based upon an expression of opinion. Law v. Sidney, 47 Ariz. 1, 53 P.2d 64; Waddell v. White, supra. There is certainly no clear and convincing evidence to show that from Poley's point of view this well was not "good", "sufficient", and "proper". If the admitted representation involved no misstatement of actual facts, then there was no actionable fraud.
We held, in Sunseri v. Katz, 53 Ariz. 234, 87 P.2d 797, that the following was a correct statement of the law:
"Fraud is never to be presumed, but must be affirmatively proven by the party alleging the same. The law presumes that all men are fair and honest that their dealings are in good faith, and without intention to disturb, cheat, hinder, delay or defraud others; where a transaction called in question is equally capable of two constructions one that is fair and honest and one that is dishonest then the law is that the fair and honest construction must prevail and the transaction called in question must be presumed to be fair and honest." 53 Ariz. 239, 87 P.2d 798.
In the light of this rule and the rule requiring proof of the elements of fraud by clear and convincing evidence we hold that the trial court erred in finding that actionable fraud had been committed in this case.
Judgment reversed.
PHELPS, C.J., and STRUCKMEYER, JOHNSON and BERNSTEIN, JJ., concur.
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767 N.W.2d 429 (2009)
Louis Lahood SARKIS and Patrizia Lahood-Sarkis, Plaintiffs, and
Arundhati Umesh, Intervening Plaintiff-Appellee,
v.
The CINCINNATI INSURANCE COMPANY, Defendant-Appellant.
Docket No. 137971. COA No. 280860.
Supreme Court of Michigan.
June 23, 2009.
Order
On order of the Court, the application for leave to appeal the November 13, 2008 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
CORRIGAN, J., not participating for the reasons stated in People v. Parsons, ___ Mich. ___, 728 N.W.2d 62 order of the Supreme Court, entered March 6, 2007 (Docket No. 132975).
MARKMAN, J. (dissenting).
Arundhati Umesh sustained lacerations to her face when Patrizia Sarkis threw a martini glass into her face. Ms. Sarkis was charged with aggravated assault and pleaded no contest.
Ms. Umesh then sued Ms. Sarkis, alleging that Ms. Sarkis threw the contents of her glass into Ms. Umesh's face after Ms. Umesh accidentally nudged her, and that when Mr. Umesh attempted to separate the two, Ms. Sarkis threw her glass directly into Ms. Umesh's face. Ms. Sarkis asked defendant, her homeowner's insurer, to defend her, but it declined. Ms. Sarkis then sought a declaratory judgment that defendant was obligated to defend her. The trial court granted summary disposition for defendant, ruling that the incident was not a "covered occurrence" under the terms of the relevant policy and fell within the policy's intentional act exclusion. However, the Court of Appeals reversed because it was unable to conclude that no genuine issue of material fact existed. In particular, the court cited Ms. Sarkis's deposition that her glass "flew out of her hand" and that she "did not know" what happened to the glass.
I would reverse the Court of Appeals judgment and reinstate the order of the trial court. Ms. Sarkis's testimony that her drink glass "flew out of her hand" would seem to contradict most known laws of physics and, in my judgment, constitutes an insufficient basis for proceeding to trial. Rather, in my judgment, the policy's exclusion of coverage for intentional and criminal acts precludes coverage under the instant circumstances. Coverage is precluded where an insured's claim "flies in the face of all reason, common sense and experience." Auto-Owners Ins. Co. v. Harrington, 455 Mich. 377, 384, 565 *430 N.W.2d 839 (1997) (quotation marks and citations omitted).
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536 U.S. 919
HENDERSONv.GENERAL AMERICAN LIFE INSURANCE CO. ET AL.
No. 01-1068.
Supreme Court of the United States.
June 17, 2002.
1
C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Devlin v. Scardelletti, ante, p. 1. Reported below: 268 F. 3d 627.
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Affirmed and Memorandum Opinion filed October 22, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00645-CR
NO. 14-12-00646-CR
RICHARD ANTHONY HEROD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause Nos. 10CR0325,10CR0326
MEMORANDUM OPINION
A jury convicted Richard Anthony Herod of aggravated robbery1 in cause
number 10CR0326 and aggravated sexual assault2 in cause number 10CR0325.
The jury assessed appellant‘s punishment at confinement for ―99 years or life,‖ and
1
See Tex. Pen. Code Ann. § 29.03 (Vernon 2011).
2
See Tex. Pen. Code Ann. § 22.021 (Vernon 2011).
the trial court‘s written judgment reflects appellant‘s sentence to be 99 years‘
confinement for both offenses to run concurrently. Appellant challenges his
conviction and sentence. He contends that (1) the jury verdict of ―99 years or life‖
for each offense violated Texas law and the trial court was without authority to
reform his sentence to ―99 years;‖ and (2) the trial court erred by denying his
motion to suppress evidence. We affirm.
Background
Appellant was indicted for aggravated robbery on March 24, 2010; he was
indicted for aggravated sexual assault on April 9, 2010. A jury trial was held from
June 4, 2012 to June 12, 2012. During the guilt-innocence phase of his trial, the
following evidence was presented.
On January 7, 2010, two robbers with guns broke into the home of Alissia
and Ronnie Gallagher. Ronnie recognized the first robber as ―Ricky D‖ — the
appellant. The man Ronnie identified as ―Ricky D‖ blindfolded Ronnie, used a zip
tie to restrain him, and took codeine and $500 in cash. ―Ricky D‖ also sexually
assaulted Alissia and asked for her cell phone number, which she gave him.
Ronnie heard the sound of a diesel truck pulling away when the robbers left.
Alissia went to the neighbor‘s house to call 9-1-1, and police arrived to investigate
the scene.
On January 8, 2010, Alissia received two cell phone calls in quick
succession; she recognized the voice as that of her assailant from the night before,
the man Ronnie identified as appellant. Alissia called 9-1-1 immediately
afterwards. Detective Robles of the Texas City Police Department, who was in
charge of investigating the aggravated robbery and sexual assault, obtained arrest
warrants for appellant in connection with both offenses. Detective Robles also
requested Alissia‘s cell phone records from her service provider.
2
Police officers stopped and arrested appellant on January 28, 2010, while he
was driving in his truck. The arresting officers started conducting an inventory of
the truck on the grass embankment next to the highway where they had stopped
appellant. One of the police officers present at the scene, Officer Johnson of the
Texas City Police Department, noticed dark-colored clothing and what looked like
a black beanie or ski mask in the truck and contacted his supervisor, Sergeant Pope
of the Texas City Police Department. Johnson claimed he contacted Pope because
the police reports from the aggravated robbery and sexual assault indicated that the
robbers had their faces covered and were wearing dark-colored clothing. Pope told
Johnson to stop the inventory so that he could determine if consent to search or a
warrant was necessary. Officer Johnson then drove the truck to the Texas City
Police Department, leaving everything in the truck where it was.
At the police department, appellant was taken to Detective Robles‘s office.
Robles explained to appellant the investigation and the charges against him.
Appellant was offered food, water, cigarettes, and a chance to use the restroom.
Robles then asked whether appellant would consent to a search of his truck. After
Robles read and explained the Consent to Search form, appellant signed it,
granting Detectives Robles and Flores (also of the Texas City Police Department)
permission to search the vehicle, ―[i]ncluding the containers and contents located
therein.‖ Robles described appellant‘s demeanor at the time as ―calm.‖ Appellant
also gave verbal permission to search the truck, and Robles explained to appellant
that he could withdraw his consent at any time. Appellant was present in leg
shackles with Robles and Flores as Robles conducted the search. Appellant did not
withdraw his consent at any time.
During the search, Robles found several articles of clothing and two cell
phones and tagged the clothing into evidence. Robles did not tag the two cell
3
phones because he was not sure the cell phones had evidentiary value. Robles and
appellant returned to Robles‘s office immediately after the truck search was
completed. Robles called his office phone with each of the cell phones he found in
appellant‘s truck in order to get the cell phone numbers from his office phone‘s
caller identification. Robles documented the two numbers. After Robles made the
calls and documented the numbers, appellant requested that Robles return the cell
phones to appellant. Robles handed the cell phones to appellant, who then
disassembled them and swallowed the SIM cards.
Appellant filed two pretrial motions seeking to suppress: (1) ―all evidence
seized as a result of the arrest of defendant and the search of defendant‘s person,
papers and effects within defendant‘s vehicle‖ because the search of appellant‘s
vehicle was ―effected without a valid search warrant in violation of the Fourth and
Fourteenth Amendments to the United States Constitution, as well as Article I
Section 9 of the Texas Constitution;‖ and (2) ―all evidence seized as a result of the
Texas City Police Department and the Galveston County District Attorney[‘]s
illegal seizure of cell phone records to include but not limited to positioning
records obtained from cell towers that purportedly track this defendant[‘]s
movements‖ because the ―taking of the cell records without his consent from the
cell provider is an illegal search and seizure in violation of the Fourth and
Fourteenth Amendments to the United States Constitution, as well as Article I
Section 9 of the Texas Constitution.‖ The trial court denied appellant‘s motions to
suppress.
The jury found appellant guilty of aggravated sexual assault and aggravated
robbery. Appellant elected to have the jury assess his punishment. The jury
charge for each offense included two enhancements, which the jury found to be
―true.‖ The court‘s charge also instructed the jury that if it found both
4
enhancements to be ―true,‖ the appropriate punishment range for each offense was
confinement ―for a period of not less than twenty-five (25) years nor more than
ninety-nine (99) years or life.‖ When the jury returned the sentences for both
cause numbers, the court read the sentences aloud as ―99 years or life,‖ based on
what the jury wrote in the blanks on the verdict forms. The trial judge later
announced for the record in open court that the jury ―assessed punishment in this
case at 99 years confinement,‖ and the written judgment for both offenses reflects
a 99-year sentence.
Appellant filed a ―Motion for New Trial and Motion in Arrest of Judgment,‖
alleging that (1) appellant‘s Sixth and Eighth Amendment rights under the United
States Constitution were ―violated with evidence illegally gathered from taped jail
phone calls between Appellate and his defense counsel;‖ (2) trial counsel failed to
call an essential fact witness, resulting in a violation of appellant‘s Sixth
Amendment right to effective assistance of counsel; (3) ―[t]rial counsel from the
[S]tate presented, and the trial court admitted as evidence, an incomplete DNA
laboratory report resulting in a Brady violation as described in Brady v. Maryland,
373 U.S. 83;‖ and (4) ―Police actions, regarding the confiscation of cell phones
were in violation of Appellant‘s 4th amendment constitutional right regarding
search and seizure.‖ The trial court did not rule on the motion for a new trial, and
it was overruled by operation of law. See Tex. R. App. P. 21.8. Appellant filed a
timely appeal.
Analysis
I. Punishment
In his first issue, appellant contends that the jury‘s assessment of ―99 years
or life‖ as punishment for each offense creates an illegal and void punishment
outside the maximum range of punishment, and requires reversal and remand for a
5
new sentencing hearing. Appellant asserts that he has an absolute right to be
sentenced within the proper range of punishment, and the trial court did not have
authority to correct the jury‘s error ―by simply inserting an appropriate sentence in
the judgment.‖ According to appellant, the court cannot reform or change a verdict
to conform to the proper statutory range unless it is with the jury‘s consent and
before the jury is released.
Texas Code of Criminal Procedure section 37.07(2)(b) allows a defendant to
elect to have the jury assess punishment. See Tex. Code Crim. Proc. Ann. art.
37.07(2)(b) (Vernon 2011). Before the trial began, appellant elected to have the jury
assess punishment.
The jury charge for both cause numbers included the following instructions
regarding the two enhancements and the allowable punishment range: ―[I]f you
find that both of these allegations are ‗True,‘ you are to assess punishment at
confinement in the Institutional Division of the Texas Department of Criminal
Justice for a period of not less than twenty-five (25) years nor more than ninety-
nine (99) years or life, and so state in your verdict.‖3 The jury found the
enhancements to be ―true.‖ Each verdict form read:
We, the Jury, find that the allegations in both Enhancement paragraphs of
this indictment are TRUE, and assess the Defendant‘s punishment at
confinement in the Institutional Division of the Texas Department of
Criminal Justice for ________ years.
3
Texas Penal Code section 12.42(d) states:
. . . if it is shown on the trial of a felony offense . . . that the
defendant has previously been finally convicted of two felony
offenses, . . . on conviction the defendant shall be punished by
imprisonment . . . for life, or for any term of not more than 99
years or less than 25 years.
Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2012).
6
_________________________
FOREPERSON OF THE JURY
The jury assessed punishment by writing ―99 or life‖ in the blank for cause number
10CR0325, and ―99 years or life‖ in the blank for cause number 10CR0326. The
jury foreperson signed both forms. When the jury returned the sentence for both
cause numbers, the court read both sentences aloud in open court, including the
―99 years or life‖ language. Defense counsel requested that the court poll the jury.
The court asked each juror, ―[A]re the verdicts that I have read here in open court
on punishment, are those verdicts your verdicts?‖ All jurors responded
affirmatively, and the court announced: ―The court confirming these are the
unanimous verdicts of the jury in these two cases, the court accepts these verdicts
and orders them filed of record.‖
After dismissing the jury, the trial court announced: ―[M]ay the record
reflect . . . the jury having found the enhancement provisions of the indictments to
be true and having assessed punishment, assessed punishment in this case at 99
years‘ confinement in the penitentiary.‖ The written judgment for both offenses
read: ―Punishment and Place of Confinement: NINETY-NINE (99) YEARS
INSTITUTIONAL DIVISION, TDCJ.‖
Although neither party objected to the trial court‘s assessment of
punishment, appellant‘s argument regarding the legality of his sentence properly is
before this court. ―Unlike most trial errors which are forfeited if not timely
asserted, a party is not required to make a contemporaneous objection to the
imposition of an illegal sentence.‖ Tufele v. State, 130 S.W.3d 267, 274 (Tex.
App.—Houston [14th Dist.] 2004, no pet.) (quoting Mizell v. State, 119 S.W.3d
804, 806 n.6 (Tex. Crim. App. 2003)). In addition, an illegal sentence has ―no
legal effect‖ and any court with jurisdiction may notice and take action upon a void
7
or illegal sentence at any time. Baker v. State, 278 S.W.3d 923, 926-27 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (citing Mizell, 119 S.W.3d at 805-07).
An appellant is not barred from complaining of a void sentence on direct appeal
even if the issue was not first raised before the trial court. Heath v. State, 817
S.W.2d 335, 336 (Tex. Crim. App. 1991), overruled on other grounds by Ex parte
Williams, 65 S.W.3d 656 (Tex. Crim. App. 2001).
A sentence that is outside the maximum or minimum punishment range is
unauthorized by law and thus void and illegal. See Mizell v. State, 119 S.W.3d
804, 806 (Tex. Crim. App. 2003); Baker, 278 S.W.3d at 926. Here, the jury found
appellant guilty of both offenses, and further found that appellant had been
convicted of two prior felonies. The statutory punishment for a defendant who has
previously been finally convicted of two felony offenses is imprisonment for life,
or for any term of not more than 99 years or less than 25 years. See Tex. Penal
Code Ann. § 12.42(d) (Vernon Supp. 2012).
Appellant relies on Baker for the proposition that a trial court may not revise
a jury verdict when the punishment assessed by the jury is illegal. In Baker, the
jury was instructed to assess a punishment of ―between 180 days and two years in a
state jail facility plus a fine of up to $10,000.‖ Baker, 278 S.W.3d at 925. The
jury assessed five years and a $10,000 fine as punishment. Id. The term of
imprisonment was more than the maximum allowed by statute for the relevant
offense. Id. The court held that a sentence that is outside the maximum or
minimum range of punishment is unauthorized by law and therefore illegal. Id.
(quoting Mizell, 119 S.W.3d at 806).
Here, the jury returned a verdict for each offense assessing the defendant‘s
punishment at ―confinement . . . for 99 or life years.‖ Both punishments are
authorized by the relevant statute; neither is an unauthorized punishment outside
8
the statutory punishment range. See Tex. Pen. Code Ann. § 12.42(d). Therefore,
the assessed punishment is not an illegal sentence.
To the extent appellant attempts to argue that the jury returned an informal
verdict which the trial court lacked authority to ―change‖ without the jury‘s
consent in violation of Texas Code of Criminal Procedure section 37.10(a), we will
address this argument next.
We assume without deciding that the jury returned an informal verdict in
this case. An informal verdict is ―one that does not meet the legal requirements of
being written or answered as authorized.‖ Jennings v. State, 302 S.W.3d 306, 309
(Tex. Crim. App. 2010); see Tex. Code Crim. Proc. Ann. art. 37.10(a) (Vernon 2006).
In addressing appellant‘s argument and determining whether the trial court
reversibly erred by ―changing‖ the jury‘s informal verdict, we look to our decision
in Perez v. State, 21 S.W.3d 628 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
In Perez, the jury foreman signed three alternative punishment verdicts: one for life
imprisonment, one for life imprisonment with no fine, and one for 30 years‘
confinement. Perez, 21 S.W.3d at 630. The trial court read the verdict for 30
years‘ confinement in open court, and asked the jury if that was its verdict. Id.
The jury responded ―yes‖ in unison and then was excused. Id. The trial court
signed a judgment reflecting punishment for 30 years‘ confinement. Id. at 631.
This court held that, although the trial court should have sent the verdict back to
the jury to be corrected, the trial court did not commit error because a liberal
interpretation of the jury verdict establishes that the jury intended a sentence of 30
years‘ imprisonment without a fine.4 Id. This court also concluded that any trial
4
The Perez court noted that the ―general rule is that a jury‘s verdict should be held good if the
jury‘s intention can reasonably be ascertained. A verdict should receive a liberal rather than a strict
construction and, when a finding of the jury can be reasonably ascertained, the verdict is sufficient.‖
Perez, 21 S.W.3d at 631. The court also stated: ―In the instant case, we find that a reasonable and liberal
9
court error in receiving the conflicting verdict and signing a judgment to reflect a
30 year sentence would have been harmless. Id. at 630-31.
Following Perez, we note it is the duty of the trial judge to reject
unresponsive, incomplete or insufficient verdicts, call the problem to the attention
of the jury and have the problem corrected with the jury‘s consent or
reconsideration. Id. at 631. When a jury returns an informal verdict, the court
shall call the jury‘s attention to the informal verdict, and with the jury‘s consent,
reduce the verdict to the proper form. Id.; see Tex. Code Crim. Proc. Code Ann. §
37.10(a); Reese v. State, 773 S.W.2d 314, 317 (Tex. Crim. App. 1989). ―As this
was not done in this case, nor did appellant object or otherwise bring the problem
to the court‘s attention,‖ we must determine whether this trial court error was
harmful. See Perez, 21 S.W.3d at 631 (Tex. App.—Houston [14th Dist.] 2000, no
pet.).
When a trial court commits reversible error, an appellate court must
determine if the error is constitutional in nature or affects a substantial right. Tex.
R. App. P. 44.2. A defendant does not have a constitutional right to have
punishment assessed by the jury; that right is granted to a defendant by statute. See
Tex. Code Crim. Proc. Ann. § 37.07(2)(b); Ivey v. State, 277 S.W.3d 43, 46-47
(Tex. Crim. App. 2009) (citing Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim.
App. 2006)). Further, this court stated in Perez that this error is not constitutional
in nature. Perez, 21 S.W.3d at 631. Therefore, we proceed to determine if the
error was harmless and must be disregarded under Rule 44.2(b). See Tex. R. App.
P. 44.2(b).
interpretation of the jury‘s verdict forms leads us to conclude that the jury intended a thirty year sentence
without a fine. This was the sentence that was read in open court and agreed to by the jury, and the
sentence that was reflected in the court‘s judgment.‖ Id. Here, the jury did not confirm or agree that
appellant‘s sentence should be for 99 years imprisonment as reflected in the trial court‘s judgment.
10
In Tollett v. State, 799 S.W.2d 256, 259 (Tex. Crim. App. 1990), the Court
of Criminal Appeals noted the court of appeals‘ characterization that a 99-year
sentence and a sentence of life in prison are ―equivalent sentences‖ as ―a practical
matter.‖ Tollett, 799 S.W.2d at 259 (quoting Tollett v. State, 727 S.W.2d 714, 18
(Tex. App.—Austin 1987), reversed by 761 S.W.2d 376 (Tex. Crim. App. 1988)).
The Court of Criminal Appeals also noted the court of appeals‘ finding that ―‗[t]o
the extent that these terms of imprisonment differ, ninety-nine years . . . is the
lesser.‘‖ Id. (quoting Tollett, 727 S.W.2d at 718). The Court of Criminal Appeals
stated: ―We agree with the Court of Appeals‘ analysis of the relative severity of the
two sentences.‖ Id.
In this case, the sentences were likewise equivalent as a practical matter; if
they were not equivalent, then the trial court‘s judgment assessed a lesser sentence.
Tollett, 799 S.W.2d at 259 n. 3 (―Theoretically, a ninety-nine year sentence may be
discharged during a prisoner‘s lifetime, but a life sentence will continue as long as
he lives. Thus a felon serving a life sentence will always be on parole, while a
felon with a ninety-nine year term could theoretically outlive his sentence.‖). We
hold that any error in failing to comply with the procedure set out in section
37.10(a) was not harmful to appellant.
Accordingly, we overrule appellant‘s first issue.
II. Motion to Suppress
In his second issue, appellant argues that the trial court abused its discretion
when it refused to suppress ―information pulled from Appellant‘s cell phones
without a warrant‖ in violation of the Fourth Amendment of the United States
Constitution, and of Article I, Section 9 of the Texas Constitution.
11
We review a trial court‘s ruling on a motion to suppress by applying a
bifurcated standard of review, giving almost total deference to a trial court‘s
determination of historic facts and mixed questions of law and fact that rely upon
the credibility of a witness, but applying a de novo standard of review to pure
questions of law and mixed questions that do not depend on credibility
determinations. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011)
(citing Guzman v. State, 955 S.W.2d 85, 87–89 (Tex. Crim. App. 1997)). When a
trial court makes written findings of fact, as it did in this case, we must examine
the record in the light most favorable to the ruling and uphold those fact findings
so long as they are supported by the record. Baird v. State, 398 S.W.3d 220, 226
(Tex. Crim. App. 2013). We then proceed to a de novo determination of the legal
significance of the facts as found by the trial court. Id. We will sustain the trial
court‘s ruling if that ruling is reasonably supported by the record and is correct on
any theory of law applicable to the case. Valtierra v. State, 310 S.W.3d 442, 448-
49 (Tex. Crim. App. 2010).
The Fourth Amendment guarantees individuals ―the right . . . to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.‖ Gutierrez v. State, 221 S.W.3d 680, 684-85 (Tex. Crim. App. 2007); see
U.S. Const. amend. IV. The Texas Constitution similarly provides: ―The people
shall be secure in their persons, houses, papers and possessions, from all
unreasonable seizures or searches . . . .‖ Tex. Const. art. I, § 9. ―[A] warrantless
search of either person or property is considered per se unreasonable.‖ McGee v.
State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003); see also Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973). There are certain recognized exceptions to
the warrant requirement, and it is the State‘s burden to prove that the search falls
within one of these exceptions. McGee, 105 S.W.3d at 615. Consent to search is
12
one of the well-established exceptions to the constitutional warrant requirement.
Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000); see Welch v.
State, 93 S.W.3d 50, 52 (Tex. Crim. App. 2002). The test for a valid consent to
search is that the consent be voluntary, and voluntariness is a question of fact to be
determined from all the circumstances. Carmouche, 10 S.W.3d at 331.
Appellant argues that ―[n]o authority allows the State to search property
merely because its officers have probable cause to believe a crime occurred and
evidence of that crime can be found on the property to be searched.‖ Appellant
complains that evidence of the two cell phone numbers Robles obtained by calling
his office phone after he had removed the two cell phones from appellant‘s truck
should have been suppressed. Appellant does not address his verbal or written
consent to search his vehicle.
Appellant gave verbal permission to search his truck, saying ―you can search
my truck,‖ and Robles explained to appellant that he could withdraw his consent at
any time. Appellant also signed a Consent to Search form after Robles read and
explained it to him. The consent form stated: ―I, Richard Herod, hereby grant my
consent to Det. Robles and Det. Flores, officers of the Texas City P.D. to search
the following: vehicle . . . Including the containers and contents located therein.‖
Immediately above appellant‘s signature line, the form stated: ―I understand that I
have the right to consent to the search described above and to refuse to sign this
form. I further state that no promises, threats, or physical or mental coercion of
any kind whatsoever have been used against me to get me to consent to the above
described search or to sign this form.‖
Appellant was present as Robles and Flores searched his truck; appellant
was present when Robles removed two cell phones from his truck and brought
them to his office. Appellant was also present in Robles‘s office when Robles used
13
the cell phones to call his desk phone. Appellant did not withdraw his consent at
any time. After Robles called his desk phone, appellant asked Robles to return the
cell phones to appellant and Robles returned the phones.
Further, the trial court made findings of fact concerning appellant‘s motion
to suppress evidence obtained from the two cell phones that were removed from
appellant‘s vehicle, in pertinent part, as follows:
12. After explaining to the Defendant that he had the right to refuse to
allow the Texas City police to search his vehicle, the Defendant
provided written consent to search his vehicle. The Court finds the
Defendant consented knowingly and voluntarily.
13. The Defendant provided written consent to allow Texas City
Police to search his vehicle with the understanding that the consent
could be withdrawn at any time. The Defendant was taken to the
vehicle during the search so that he could be present to withdraw that
consent at any time. At no time did the Defendant withdraw his
consent to Texas City Police Department‘s search of his vehicle.
In one of its conclusions of law, the trial court stated: ―3. The Defendant provided
lawful, voluntary written consent to Texas City Police Detective Ernest Robles to
search his vehicle and its contents. At no time did the Defendant withdraw that
voluntary consent.‖
The record shows that the removal of the two cell phones from appellant‘s
vehicle and the call from the two cell phones to Robles‘s office phone to obtain the
cell phone numbers constituted a valid search. See Kirsch v. State, 276 S.W.3d
579, 588 (Tex. App.—Houston [1st Dist.] 2008), aff’d, 306 S.W.3d 738 (Tex.
Crim. App. 2010) (holding that trial court properly denied a motion to suppress
evidence that had been retrieved from a car‘s black box when the car owner told
police they could do whatever they needed to the vehicle to complete their
investigation and police officers removed the black box from the car because they
were unable to download the data from the black box and took the black box to a
14
private crash reconstructionist who had appropriate tools to download the data
from the black box).
Appellant does not challenge the validity of his oral and written consent to
search his vehicle and the contents therein on any grounds. Nor does appellant
challenge the scope of his consent, or argue that his consent to search his vehicle
and its contents did not include the two cell phones in his vehicle. Appellant does
not assert that the two phones were not part of the contents of the vehicle and thus
were not encompassed by his consent to search. Appellant does not contend that
he ever withdrew or limited his consent after signing the consent form.
Appellant‘s consent to the search of his truck rendered the search valid under the
Fourth Amendment. See Kirsch, 276 S.W.3d at 588-89 (citing Welch v. State, 93
S.W.3d 50, 52-53 ((Tex. Crim. App. 2002)).
We hold that Robles‘s removal of the cell phones and his call from the two
cell phones to his office phone did not violate appellant‘s federal and state
constitutional right not to be subjected to unreasonable search and seizure. See id.
Accordingly, we overrule appellant‘s second issue.
Conclusion
We affirm the trial court‘s judgment.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Jamison and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).
15
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Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
6-20-2003
McMullen v. Bay Ship Mgt
Precedential or Non-Precedential: Precedential
Docket No. 00-3157
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"McMullen v. Bay Ship Mgt" (2003). 2003 Decisions. Paper 406.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/406
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PRECEDENTIAL
Filed June 20, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-3157
ED McMULLEN,
Appellant
v.
BAY SHIP MANAGEMENT,
Appellee
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 99-CV-00164)
Magistrate Judge: Honorable Raymond J. Durkin
Argued April 22, 2003
Before: SCIRICA, Chief Judge,* AMBRO and
WEIS, Circuit Judges.
Filed: June 20, 2003
Vincent S. Cimini, Esquire
(ARGUED)
Foley, Cognetti, Comerford & Cimini
507 Linden Street, Suite 700
Scranton, Pennsylvania 18503
Attorney for Appellant
* Judge Scirica began his term as Chief Judge on May 4, 2003.
2
Thomas R. Daniels, Esquire
(ARGUED)
Lehahan & Dempsey, P.C.
Kane Building, Suite 400
116 N. Washington Avenue
P.O. Box 234
Scranton, Pennsylvania 18503
Attorneys for Appellee
OPINION OF THE COURT
WEIS, Circuit Judge.
In this diversity case, we conclude that the plaintiff ’s
proper invocation of the Fifth Amendment privilege against
self-incrimination did not warrant dismissal of the
litigation. Because other less drastic measures were
available to cope with the failure to comply with the
defendant’s discovery requests, we will reverse and remand
for further proceedings.
Plaintiff filed a civil action on January 29, 1999 asserting
claims for breach of contract and unjust enrichment based
on painting services he had performed on military vessels
at defendant’s instance. With the consent of the parties, the
matter was assigned to a magistrate judge for trial.
On August 15, 1999, while this civil suit was still
pending, an Information was filed in the Middle District of
Florida charging one of the defendant’s employees with
irregularities in carrying out a contract with the United
States to service and maintain military vessels. Plaintiff was
a named, but uncharged, co-conspirator in that
Information.
One month later, on September 17, 1999, the defendant
served on plaintiff interrogatories and request for
production of documents. In a letter dated November 11,
1999, counsel for the plaintiff advised defendant that:
With respect to the Information handed down by the
Federal Grand Jury, Mr. McMullen will obviously be
asserting his Fifth Amendment privilege at the time of
3
his deposition. Moreover, so that there can be no
question as to Mr. McMullen’s waiver of his Fifth
Amendment privilege, he must also assert said privilege
in response to the outstanding discovery requests.
In response, defendant filed a motion to compel answers
to the interrogatories and a request for production. The
parties filed briefs and discussed the issue as well as
possible settlement with the magistrate judge at a pretrial
conference in December 1999.
Upon receiving notification in the following month that
settlement efforts had been unavailing, the Court ruled on
defendant’s motion to compel. The Court recognized that
generally an order to compel compliance with discovery is
a prerequisite to the imposition of sanctions. However, the
magistrate judge concluded that in view of the plaintiff ’s
unequivocal assertion that he would invoke his Fifth
Amendment privilege, the issuance of an order compelling
discovery would be a futile act.
Relying on Serafino v. Hasbro, 82 F.3d 515 (1st Cir.
1996), the Court directed that the case be dismissed with
prejudice, noting that an examination of the plaintiff ’s
records might be helpful, but would be a poor proxy for his
testimony. Although both parties had suggested the
alternative of staying the case, the Court did not indicate
why that procedure would not be a satisfactory solution for
the problem.
After the appeal was taken, the parties participated in an
extended period of negotiations in accordance with this
Court’s Appellate Mediation Program. The criminal matter
was concluded in June 2002, and on July 9, 2002, the
plaintiff advised that he was now available for an oral
deposition. Defendant declined the offer on the ground that
too much time had elapsed. The case was then placed on
the regular docket for submission to this Court.
I.
Federal Rule of Civil Procedure 37 provides the means to
be used in sanctioning obstructive conduct in discovery
matters. Generally, the Rule requires the issuance of an
4
order to compel and only after failure to comply with that
rule should a penalty be imposed. Daval Steel Prods. v. M/V
Fakredine, 951 F.2d 1357, 1363-64 (2d Cir. 1991) (judicial
intervention between a discovery request and the
imposition of sanctions demonstrates the seriousness of the
dereliction, and permits judicial scrutiny of the discovery
request); see also Keefer v. Provident Life & Acc. Ins. Co.,
238 F.3d 937, 940 (8th Cir. 2000); Lillie v. United States, 40
F.3d 1105, 1109 (10th Cir. 1994); 8A Charles Alan Wright
& Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE
§ 2282 (2d ed. Supp. 2003).
Although the prerequisite of an order to compel is the
usual rule, we agree with the District Court that following
that procedure in this case would have been a meaningless
formality. The plaintiff had clearly stated his position and
the issue had been briefed and argued before the
magistrate judge at a pretrial conference. The reasons
underlying the Rule — active judicial review of the
discovery dispute and recognition of the gravity of the issue
— had already been satisfied. Thus, issuance of an order in
this situation, indeed, would have been an exercise in
futility. See Serafino, 82 F.3d at 519.
II.
We come, therefore, to the sanction imposed. This Court
has emphasized that control of discovery is committed to
the discretion of the trial court and we will seldom
intervene. However, the District Court’s power is not
without limit. In re Orthopedic “Bone Screw” Products Liab.
Litig., 132 F.3d 152, 156 (3d Cir. 1997). We have
emphasized this Court’s policy of favoring litigation on the
merits, rather than imposing dismissals with prejudice or a
default judgment. In Hewlett v. Davis, 844 F.2d 109, 113
(3d Cir. 1988), we stated that “[t]hese must be sanctions of
last, not first, resort.” See also Poulis v. State Farm Fire &
Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (setting out
checklist applicable for sanction of dismissal).
In Serafino, the Court of Appeals considered that in the
circumstances of that case, the trial court did not abuse its
discretion in dismissing the case with prejudice. Serafino,
5
82 F.3d at 519. The appellate court emphasized the
necessity of balancing the competing interests of the parties
and cited, among others, our opinion in SEC v. Graystone
Nash, Inc., 25 F.3d 187 (3d Cir. 1994). Id. at 518.
Curiously, despite its obvious pertinency, counsel for
neither party cited Graystone to the District Court in this
case.
In Graystone, the defendants invoked the Fifth
Amendment privilege, refusing to answer questions during
discovery depositions. 25 F.3d at 188-89. As a sanction, the
District Court precluded defendants from presenting
evidence in opposition to the plaintiff ’s summary judgment
motion and granted judgment for the plaintiffs. Id.
We recognized that the civil litigant had the right to the
protection of the Fifth Amendment, but that invoking that
privilege had a prejudicial effect on the adversary’s right. Id.
at 190. Sanctions, therefore, had to be tailored to provide
equitable treatment to the adversary, as well as
accommodating the Fifth Amendment rights of the party
invoking the privilege. Id. at 192. “[T]he detriment to the
party asserting [the privilege] should be no more than is
necessary to prevent unfair and unnecessary prejudice to
the other side.” Id.
Here, the factual situation differs from Graystone in that
the party availing himself of the Fifth Amendment privilege
is a plaintiff who chose to bring the suit, rather than a
defendant who had been summoned into court. Some
commentators have suggested that having selected the
litigation process, a plaintiff may not use the privilege to
advance his cause — to use it as a sword, rather than a
shield. That approach, however, has not carried the day.
Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084,
1086 (5th Cir. 1979), held that “the Fifth Amendment
would serve as a shield to any party who feared that
complying with discovery would expose him to a risk of self-
incrimination.” The Court stated that “[i]n most cases, a
party ‘voluntarily’ becomes a plaintiff only because there is
no other means of protecting legal rights.” Wehling, 608
F.2d at 1089 n.10. The Court reversed the District Court’s
dismissal and suggested instead a protective order staying
6
discovery until the statute of limitations on the criminal
matter had expired. Id. at 1089.
A leading commentator has dismissed arguments against
extending the Fifth Amendment privilege to a plaintiff. “It is
inconceivable that by exercising the constitutional right to
bring or defend an action a person waives his or her
constitutional right not to be a witness against himself or
herself, and no case has so held.” 8 Charles Alan Wright &
Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE
§ 2018 (2d ed. 1994). See also Mitchell v. Roma, 265 F.2d
633, 637 (3d Cir. 1959) (explaining that by instituting a
suit, plaintiff does not automatically waive any privilege).
This case does not differ in any major respect from
Graystone, and we therefore apply it to the controversy
presently before us. The general approach in both cases
should be the same. Although the privilege is available,
prejudice to the other party must be minimized and an
equitable resolution adopted. Here, that task has been
greatly simplified by the conduct of the parties.
In his brief to the District Court, the plaintiff suggested
as alternatives to dismissal a stay of the matter or allowing
an adverse inference because of his failure to testify. The
defendant moved for dismissal, but also suggested as an
alternative that the case be placed on the inactive list until
plaintiff “is no longer under the cloud of criminal
prosecution.”
Although a stay had been suggested as a satisfactory
solution by both parties, the District Court simply
dismissed the case without commenting on the parties’
alternative suggestions for a disposition. Placing the case
on the inactive list would have been in harmony with the
balancing test set out in Graystone, which, rather than
Serafino, is the governing precedent within this circuit.
The only virtue in dismissing the case here was clearing
the court’s docket. Although promptness in judicial
administration is highly desirable, delay may sometimes be
necessary to the mission of doing justice. We are all too
often reminded that “justice delayed is justice denied.” But,
it is equally true that in some situations “justice rushed is
justice crushed.”
7
As the Supreme Court has reminded us, “a myopic
insistence upon expeditiousness in the face of a justifiable
request for delay can render the right to defend with
counsel an empty formality.” Ungar v. Sarafite, 376 U.S.
575, 589 (1964). In a similar vein, we have said, “we are
not unmindful of the need for judicial eagerness to expedite
cases, to fully utilize the court’s time, to reduce
overcrowded calenders and to establish finality of
judgments. However, these commendable aspirations
should never be used to thwart the objectives of the blind
goddess.” Boughner v. Sec. of Hlth., Educ. & Welfare, 572
F.2d 976, 978-79 (3d Cir. 1978).
In the circumstances here, dismissal of the case was not
consistent with a sound exercise of judicial discretion.
Accordingly, the order of the District Court will be
reversed, and the case remanded for further proceedings
consistent with this Opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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USCA1 Opinion
October 18, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1529
BETSY FOREST,
Plaintiff, Appellant,
v.
TRANS CARRIERS, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Selya, Stahl and Lynch,
Circuit Judges.
______________
____________________
Mark S. Kierstead on brief for appellant.
_________________
Peter T. Marchesi on brief for appellee.
_________________
____________________
____________________
Per Curiam. We have carefully reviewed the record in
__________
this case and affirm the dismissal for lack of personal
jurisdiction. The record indicates that, although much of
the information would have been available to her from the
proper sources, plaintiff failed to place in the record the
"specific facts" necessary to support her jurisdictional
allegation. Boit v. Gar-Tec Products, Inc., 967 F.2d 671,
____ ______________________
680 (1st Cir. 1992). The record likewise shows that
plaintiff never asked that the court permit discovery on the
limited issue of personal jurisdiction. See id.
___ __
Consequently, plaintiff has not met her burden, id. at 675,
__
of showing that defendant's contacts with Maine were
sufficiently "substantial" or sufficiently "continuous and
systematic" so that the exercise of personal jurisdiction
over it in this case would comport with due process.
Affirmed. See Loc. R. 27.1.
________ ___
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6702
TYRONE PRESTON,
Petitioner - Appellant,
versus
L. M. EDWARDS, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:06-cv-00173-JCC)
Submitted: August 8, 2007 Decided: May 9, 2008
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Tyrone Preston, Appellant Pro Se. Susan Bland Curwood, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyrone Preston, a Virginia prisoner, appeals the district
court’s order dismissing his 28 U.S.C. § 2254 (2000) petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
Having previously granted a certificate of appealability, see 28
U.S.C. § 2253(c) (2000), we now find the district court erred in
dismissing the petition. Accordingly, we vacate the district
court’s order and remand for its reconsideration.
In his § 2254 petition, Preston alleged that his term of
incarceration was extended because he refused to participate in a
state sex offender treatment program requiring him to admit past
offending behavior in violation of his Fifth Amendment right to be
free from compelled self-incrimination. See McKune v. Lile, 536
U.S. 24 (2002). The district court construed Preston’s petition as
“merely seek[ing] to assert a constitutional violation stemming
from his not receiving the classification level he wanted.” The
court further ruled Preston’s challenge to the constitutionality of
the state program was properly brought in an action under 42 U.S.C.
§ 1983 (2000), not under § 2254. The court did not analyze
Preston’s claim under McKune but dismissed the petition after
finding he had no liberty interest in his classification level.
In his informal brief on appeal, Preston contended that
the extension of his confinement as a result of his refusal to
participate in the state program constituted unconstitutional
- 2 -
compulsion under McKune, and the district court erred in ruling his
challenge to the program was only properly brought in an action
under § 1983. After granting a certificate of appealability on the
issue of whether the district court erred in dismissing Preston’s
Fifth Amendment compelled self-incrimination claim, we directed
that the Appellee file a responsive brief pursuant to 4th Cir. R.
22(a)(1)(B). In the brief, the Appellee notes that Preston’s lack
of a liberty interest in being placed in a particular good conduct
classification level does not answer the question as to whether he
can be compelled to discuss possible criminal wrongs as a condition
of receiving a statutory benefit, and the framework to address this
question is contained in the Supreme Court’s decision in McKune.
The Appellee asserts that because Preston challenged an
alleged extension of his term of incarceration, and thus the “fact
or duration” of his confinement, “his claim must be brought as a
habeas corpus action, subject to the exhaustion requirement.”
Because Preston acknowledged in his § 2254 petition that he did not
present his claim in state court, the Appellee contends his
petition should be dismissed without prejudice for failure to
exhaust his state court remedies. In his reply brief, Preston
responds that he must only exhaust those administrative and state
court remedies that are actually available, and he asserts there
were no adequate or effective state court remedies in his case.
- 3 -
As contended by both parties on appeal, we find that
Preston’s claim challenging the alleged extension of his term of
confinement as a violation of his Fifth Amendment right to be free
from compelled self-incrimination is cognizable in a habeas action
and therefore subject to the exhaustion requirement under 28 U.S.C.
§ 2254(b). See Wilkinson v. Dotson, 544 U.S. 74 (2005); Preiser v.
Rodriguez, 411 U.S. 475 (1973); Todd v. Baskerville, 712 F.2d 70
(4th Cir. 1983). We thus conclude the district court erred in
dismissing Preston’s petition under Rule 4 after ruling he had no
liberty interest in his classification level and his claim was only
properly brought in an action under § 1983.
Accordingly, we remand this case to the district court
for reconsideration of Preston’s § 2254 petition. 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.
VACATED AND REMANDED
- 4 -
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58 Mich. App. 430 (1975)
228 N.W.2d 407
HILL
v.
MICHIGAN NATIONAL BANK OF DETROIT
Docket No. 18474.
Michigan Court of Appeals.
Decided February 11, 1975.
David E. Eason, for plaintiff.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Sally Lee Foley, J. Ronald Kaplansky, and Edwin N. Bladen, Assistants Attorney General, for intervenor appellant.
Travis, Warren, Hammond, Ziegelman & Burgoyne, for defendant.
Before: V.J. BRENNAN, P.J., and T.M. BURNS and CARLAND,[*] JJ.
Leave to appeal denied, 394 Mich 769.
T.M. BURNS, J.
On May 22, 1972, plaintiff Percy B. Hill purchased a new 1972 Volkswagen from Tom Sullivan VW Company and executed an automobile retail installment contract with that company. The cash purchase price was $2,380. Plaintiff paid a down payment of $350, and the time balance of $2,446.92 was to be paid in 36 consecutive monthly installments of $67.97, commencing June 20, 1972. Under this agreement, Tom Sullivan VW *432 Company retained a security interest in the vehicle.
The contract was later assigned to defendant Michigan National Bank of Detroit. Under the contract, the secured party was given the right to repossess the vehicle in the event of default by the purchaser in any of the payments. Paragraph 7 of the security agreement[1] provides that:
"In the event of a default the Second Party shall have the right, without notice or demand, to take immediate possession of the Goods, wherever the same may be located, without legal process unless such repossession cannot be accomplished without a breach of the peace * * * All rights and liabilities of the parties hereto concerning the retaking, retention, redemption, and resale of the Goods, and the disposition of the proceeds thereof, shall be governed by the applicable provisions of the Uniform Commercial Code as adopted in the State of Michigan."
Pursuant to this contractual provision and pursuant to the applicable provision of the Michigan Uniform Commercial Code, MCLA 440.9503; MSA 19.9503, the defendant, on June 21, 1973, at a time when plaintiff's account was delinquent for two months, repossessed the vehicle from the driveway in front of plaintiff's residence for nonpayment of *433 installments. The vehicle was removed without any confrontation between plaintiff and defendant's agents. On that same day, defendant sent plaintiff a notice of repossession and sale, said notice advising plaintiff of the sum needed to redeem the vehicle and informing him that if not redeemed, the vehicle would be sold at public auction on July 6, 1973.
On July 2, 1973, plaintiff filed his complaint in Wayne County Circuit Court and obtained an ex parte restraining order enjoining the bank from proceeding with the repossession sale. The complaint sought injunctive relief and damages of $250,000. After a show cause hearing, an order was entered on July 11, 1973, dissolving the temporary restraining order.
On July 25, 1973, defendant filed a motion for summary judgment of dismissal in accordance with GCR 1963, 117.2(1) for plaintiff's failure to state a claim upon which relief could be granted. After a hearing and oral argument, the lower court granted the motion on August 24, 1973. On September 12, 1973, plaintiff filed a petition for rehearing, which after another hearing and oral argument, was denied on September 21, 1973. Plaintiff now appeals as of right from the trial court's dismissal of his complaint. The Attorney General was granted leave to intervene in this appeal, and has filed a brief urging this Court to grant the relief requested by the plaintiff.
The controlling issue raised by plaintiff on appeal is whether self-help repossession pursuant to MCLA 440.9503; MSA 19.9503, constitutes state action and thus denies plaintiff his Fourteenth Amendment right to due process of law.[2] Plaintiff *434 argues that MCLA 440.9503; MSA 19.9503, denies due process because no notice or opportunity to be heard is accorded the owner of the vehicle prior to the seizure by the secured party. In its opinion, the trial court found otherwise, concluding that there was no state action in connection with defendant's repossession of plaintiff's vehicle.
A thorough research of Michigan case law indicates that there is no Michigan case directly in point which deals with this particular issue. However, there is a considerable amount of authority from other jurisdictions, both state and Federal, that have upheld a secured creditor's right to voluntarily repossess a defaulting debtor's vehicle without prior notice or hearing.[3]
Most recently, in Turner v Impala Motors, 503 F2d 607 (CA6, 1974), the Sixth Circuit Court of Appeals considered and rejected arguments identical to those presented by plaintiff in the instant case. In that case, Tennessee's statutory implementation of the Uniform Commercial Code's § 9-503[4]*435 was challenged as being unconstitutional. Like the plaintiff in the case at bar, the plaintiff in Turner relied on Fuentes v Shevin, 407 US 67; 32 L Ed 2d 556; 92 S Ct 1983 (1972), which held that notice and a hearing are required before the execution of a prejudgment writ of replevin. Like plaintiff Hill, the plaintiff in Turner argued that: (1) the presence of state action is indicated by the fact that the state has authorized and encouraged repossession by secured creditors; (2) the Tennessee statute deprives the debtor of his rights to notice and an opportunity to be heard; and (3) the waiver provision contained in the contract does not exclude the requirements of notice and a judicial hearing on the waiver prior to the repossession.
Replying to the plaintiff's arguments, the Court, speaking through Circuit Judge Peck, stated:
"However, in the recent case of Mitchell v W T Grant Co, 42 USLW 4671; 94 S Ct 1895; 40 L Ed 2d 406 (1974), it would appear that Fuentes has been effectively overruled. See concurring opinion of Powell, J., id at 4678; 94 S Ct 1895; and the dissenting opinion of Stewart, J., id at 4682; 94 S Ct 1895. In Mitchell, judicial sequestration procedures in Louisiana, similar to the replevin statutes struck down in Fuentes, allowed a creditor to obtain, on an ex parte basis from a judicial authority, a writ of sequestration upon submission of an affidavit and posting of a security bond. Thereupon a public official, without providing notice and a hearing to the debtor, seized the property. Distinguishing judicial control over the process from the court clerk's control in Fuentes, the Supreme Court found the procedure was not invalid.
"Prior to Mitchell, the challenge to the Commercial Code's self-help repossession provisions generated considerable litigation. However, the only federal appellate courts to have met the issue to date have failed to find significant state action present." (Citations omitted) 503 F2d at 610.
*436 In affirming the district court's dismissal of the suit for failure to state a cause of action, the Court, in concluding that a finding of state action was not justified, stated at pp 611-612:
"It is clear that in this case the state did not exert any control or compulsion over the creditor's decision to repossess. The private activity was not commanded by the simply permissive statute. While mere existence of the statute might seem to suggest encouragement, we conclude that the effect of the statute is only to reduce a creditor's risk in making repossessions. As a practical matter, a creditor's decision is more likely to be principally influenced by the economics of the situation than by the presence of a permissive statute.
"We fail to see where the creditor has sought to invoke any state machinery to its aid. Rather, the creditor has simply relied upon the terms of its security agreement pursuant to the private right of contract. Compare Shelley v Kraemer, 334 US 1 (1948). Assuming that the statute was non-existent, the remedy of self-help repossession could still be utilized based on its common law heritage and the private right to contract. We fail to see how the creditor is attempting to enforce any right in reliance upon a constitutional or statutory provision as in Reitman or is even asserting any state-created right. Rather, we see a creditor privately effectuating a right which was created in advance by contract between the parties. At best, the right is one that is merely codified, but not created, in the statute."
Such is the case here. MCLA 440.9503; MSA 19.9503 is simply a permissive statute. Defendant's decision to repossess was not compelled by the statute; it was made in reliance upon the terms of its security agreement pursuant to the private right of contract. Furthermore, absent the statute, defendant could still utilize the remedy of self-help repossession because that common law right was long recognized in Michigan prior to the enactment *437 of MCLA 440.9503; MSA 19.9503.[5] Finally, as in Turner, we are of the opinion that the common law right of self-help repossession has merely been codified by our present statute.
Therefore, we hold that self-help repossession pursuant to MCLA 440.9503; MSA 19.9503 does not constitute state action within the meaning of the due process clause of the Fourteenth Amendment. Accordingly, the trial court's action in granting defendant's motion for summary judgment was proper.
Since due process rights may not be invoked until there is a finding of state action, The Civil Rights Cases, 109 US 3; 3 S Ct 18; 27 L Ed 835 (1883), in light of our holding, it is unnecessary for us to consider plaintiff's claim that he did not voluntarily waive his rights to notice and an opportunity to be heard.
Plaintiff also contends that the trial court erred in dismissing his complaint because the trial court failed to consider plaintiff's claims that the repossession was not peaceful and that the contract provision in question was unconscionable. We disagree.
In its opinion, the trial court stated that the plaintiff was not required by MCLA 440.9503; MSA 19.9503 to give up the property being repossessed, and that if the repossession could not be conducted peacefully, then defendant would have been required to seek the aid of the state through judicial process. Since defendant did not seek the aid of the state through judicial process, it is quite *438 apparent that the trial court concluded that the repossession was peaceful. While we think that the trial court should have addressed this question more directly, we will not reverse its findings merely on this question of semantics.
As to the contention that the trial court erred in failing to consider plaintiff's claim that the contract provision was unconscionable, we point out to the plaintiff that while he did argue this point to the court during oral argument, his complaint fails to allege this contention. A motion based solely on GCR 1963, 117.2(1) is to be tested by the pleadings alone. Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974). Since this argument concerning unconscionability is not in the pleadings, plaintiff cannot now complain that the trial court erred in not considering this oral claim.
Finally, we have carefully considered plaintiff's remaining allegations of error. These claims were either not preserved on appeal or do not require decisional discussion.
Affirmed.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] This right of repossession is similar to that codified in MCLA 440.9503; MSA 19.9503 which states:
"[R]ight to possession of collateral after default.
"Sec 9503. Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. If the security agreement so provides the secured party may require the debtor to assemble the collateral and make it available to the secured party as a place to be designated by the secured party which is reasonably convenient to both parties. Without removal a secured party may render equipment unusable, and may dispose of collateral on the debtor's premises under section 9504. PA 1962, No. 174, § 9503, Eff Jan 1, 1964."
[2] US Const, Am 14: [N]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of law, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
[3] The Federal cases that have so ruled include Gibbs v Titelman, 502 F2d 1107 (CA 3, 1974); Nowlin v Professional Auto Sales, Inc, 496 F2d 16 (CA 8, 1974); James v Pinnix, 495 F2d 206 (CA 5, 1974); Shirley v State National Bank of Connecticut, 493 F2d 739 (CA 2, 1974); Adams v Southern California First National Bank, 492 F2d 324 (CA 9, 1973); Pease v Havelock National Bank, 351 F Supp 118 (D Neb, 1972); Greene v First National Exchange Bank of Virginia, 348 F Supp 672 (WD Va, 1972); Oller v Bank of America, 342 F Supp 21 (ND Cal, 1972); McCormick v The First National Bank of Miami, 322 F Supp 604 (SD Fla, 1971).
Other jurisdictions that have upheld this right include: Chrysler Credit Corp v Tremer, 267 So 2d 467 (Ala Civ App, 1972); Messenger v Sandy Motors, Inc, 121 NJ Super 1; 295 A2d 402 (1972); Frost v Mohawk National Bank, 74 Misc 2d 912; 347 NY Supp 2d 246 (1923); Brown v United States National Bank of Oregon, 509 P2d 442 (Or, 1973).
[4] Tennessee Code Annotated (TCA) § 47-9-503 is identical to Michigan's version contained in MCLA 440.9503; MSA 19.9503.
[5] See e.g., Tanahill v Tuttle, 3 Mich 104, 111 (1854); Thurber v Jewett, 3 Mich 295, 298 (1854); Bateman v Grand Rapids & Indiana Railroad Co, 96 Mich 441; 56 NW 28 (1893); Tuomista v Moilanen, 310 Mich 381, 384, 17 NW2d 222 (1945); National Cash Register Co v Richards, 159 Mich 128; 123 NW 587 (1909); Wiggins v Snow, 89 Mich 476; 50 NW 991 (1891).
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STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Michael R.,
Petitioner Below, Petitioner
FILED
vs) No. 18-0679 (Raleigh County 18-C-311-D) November 15, 2019
EDYTHE NASH GAISER, CLERK
Donnie Ames, Superintendent, SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Mt. Olive Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Michael R.,1 pro se, appeals the July 12, 2018, order of the Circuit Court of
Raleigh County dismissing his petition for a writ of habeas corpus. Respondent Donnie Ames,
Superintendent, Mt. Olive Correctional Complex,2 by counsel Holly M. Flanigan, filed a response
in support of the circuit court’s order. Petitioner filed a reply.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
In 2014 and 2015, petitioner perpetuated various sexual acts on his nine-year-old adopted
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
2
Since the filing of the appeal in this case, the superintendent at Mt. Olive Correctional
Complex has changed and the superintendent is now Donnie Ames. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”
are now designated “superintendents.” See W.Va. Code § 15A-5-3.
1
daughter and also photographed her in engaging sexually explicit conduct. On September 15, 2015,
petitioner was indicted on four counts of first-degree sexual assault, four counts of incest, seven
counts of sexual abuse by a parent, three counts of first-degree sexual abuse, and fourteen counts
of filming a minor child engaging in sexually explicit conduct. In an additional count of the
indictment (count thirty-three), the grand jury alleged that the victim was a child under twelve
years of age, that petitioner was an adult over twenty-one years of age, and that petitioner employed
forcible compulsion in his perpetuation of the charged offenses. 3 According to respondent, if
petitioner was convicted of all the offenses alleged in the indictment, petitioner would have
received an aggregate sentence of 205 to 815 years of incarceration.
On October 7 and 20, 2015, petitioner underwent a court-ordered psychological evaluation
to determine his criminal responsibility for the alleged acts and his competency to stand trial. In a
report dated November 18, 2015, the forensic psychologist opined that petitioner suffered from no
mental disease or defect which would have rendered him unable to appreciate the wrongfulness of
the alleged acts and/or conform his conduct to the requirements of the law. The psychologist
further opined that petitioner was competent either to stand trial or enter into a plea agreement
with the State:
. . . [petitioner] has the capacity to assist his attorney in his defense with a
reasonable degree of rational and factual understanding of the charges against him,
their potential consequences, and the nature and object of the adjudicatory process.
He has the capacity to understand and agree to the terms of a plea agreement if one
is offered to him and should be able to follow the directives of the [c]ourt.
On January 6, 2016, petitioner and the State entered into a plea agreement, under which
petitioner agreed to plead guilty to counts one and four of the indictment charging him with first-
degree sexual assault. Petitioner further agreed to admit the facts alleged in count thirty-three
rendering him ineligible for alternative sentencing. In exchange, the State agreed to dismiss the
other thirty counts of the indictment. Under West Virginia Code § 61-8B-3(c), counts one and four
each subjected petitioner to a sentence of 25 to 100 years of incarceration; under the plea
agreement, the circuit court would decide whether petitioner would serve those sentences
concurrently or consecutively with each party free to argue that issue.4
At the beginning of the February 11, 2016, plea hearing, the circuit court noted that “the
only issue at sentencing will be whether the sentences are to run concurrently . . . or
consecutively[.]” After petitioner was sworn, the circuit court advised him to let the court know if
he needed clarification on any issue during the hearing.
3
Petitioner was either forty-three or forty-four years old at the time of his offenses. For a
person to be ineligible for alternative sentencing, West Virginia Code § 61-8B-9a provides that
the person must be over “eighteen years of age.” Therefore, in alleging that petitioner was over
twenty-one years of age, the grand jury alleged more than what was required by the statute.
4
The plea agreement further provided that petitioner register as a sex offender for life and
serve fifty years of supervised release should he be released from incarceration.
2
Because petitioner is illiterate, the court confirmed that petitioner’s counsel read the
indictment and the plea form to him in their entirety. The court noted that petitioner faced a
sentence of 25 to 100 years of incarceration for each count to which he was pleading guilty,
emphasizing that the only issue at sentencing would be a determination of whether those sentences
would run concurrently or consecutively. Petitioner acknowledged that he understood the limited
issue that his sentencing would entail.
The circuit court asked petitioner whether he had sufficient time to discuss the matter with
his counsel, and petitioner answered, “Yes, sir.” Petitioner further testified that he did not have
any present complaints regarding counsel’s performance. The court further inquired: “Do you feel
that, at least up until now, [counsel] has done everything reasonably possible to represent you in
this matter?” Petitioner responded, “Yes, sir.”
The circuit court then asked petitioner if he suffered from any mental health issues, and
petitioner answered that he had previously been diagnosed with a learning disability. When the
court inquired about any medications petitioner was taking, petitioner responded that he was taking
Lithium. The court followed up by asking petitioner the number of times he took his medication
daily and its potential effects on him:
Q. All right. Is Lithium the only medication you’re taking now?
A. Yeah. It’s the only one they will give me.
Q. Are you taking that in the morning? Or at the evening time? Or at both times?
A. Both times, sir.
Q. Have you taken one medication dose today?
A. Yes, sir.
Q. Do you take this Lithium pursuant to your prescribed dosage?
A. Yes, sir.
Q. You don’t abuse it?
A. No, sir.
Q. Does this Lithium cause you to be nervous, upset[,] or distraught?
A. No, sir.
Q. In fact, does it calm you down and help you to be able to think more clearly?
3
A. Yes, sir. It keeps me calm.
Q. Naturally, people that come [into] criminal court are nervous and apprehensive
and have some anxiety. That’s to be expected. Anybody that would do that would
feel that way. What I want to guard against is somebody coming in that is so upset
and so filled with anxiety that they can’t reason or think properly. Would you be in
that category? Do you believe that you can’t reason or think or understand?
A. No, sir.
The circuit court stated that it did not have a copy of the November 18, 2015, report at the
bench. Both the State’s counsel and petitioner’s counsel confirmed that the psychologist opined
that petitioner was criminally responsible for the alleged acts and competent to either stand trial or
enter into a plea agreement. Thereafter, the court resumed its questioning of petitioner by
inquiring: “Based upon your reflection and your conversations with [counsel], do you believe that
this plea agreement that has been spread upon the record is in your own best interest?” Petitioner
answered, “Yes, sir.” Petitioner further testified that he was not being coerced into pleading guilty
and that he was not being promised anything improper, such as money, to do so.
The circuit court next reviewed the rights petitioner would be giving up by pleading guilty,
such as the right to have a jury trial, the right to have the State prove its case beyond a reasonable
doubt, and the right to stand silent or testify in his own defense. The court further advised petitioner
that he had the right to suppress any illegally obtained evidence, but that he would lose the right
to appeal any alleged pretrial and trial errors if he pled guilty. However, the court informed
petitioner that he had “an absolute right” to appeal “any conviction and for any so-called errors of
law” and that the appeal process was initiated by filing the appeal before the West Virginia
Supreme Court of Appeals. The court asked whether petitioner understood its explanation of his
rights and the rights he would be giving up by pleading guilty, to which petitioner responded, “Yes,
sir.”
The court inquired if petitioner was pleading guilty “in regard to these two counts of first[-
]degree sexual assault because [petitioner was,] in fact[,] guilty of committing these crimes.”
Petitioner answered, “Yes, sir.” The court requested that the State provide the factual basis for the
counts to which petitioner was pleading guilty. The State advised that petitioner’s crimes were
discovered when his former wife, the victim’s mother, found a picture of the victim on petitioner’s
phone “with the little girl naked from the waist down.” The victim was subsequently interviewed.
The victim reported that, on at least five occasions, petitioner “forced her to engage in oral sex by
placing his penis in her mouth” and “also described repeated instances of [petitioner] penetrating
her vagina with his fingers and . . . penetrating her vagina with his penis.” The State advised that
there was forcible compulsion given the victim’s statements that what petitioner did to her “hurt
her” and made her cry. The State further proffered that petitioner threatened the victim that, if she
told anyone of his acts, “he would go to jail for the rest of his life and . . . she was to keep it a
secret.” The State advised that, in a voluntary statement, petitioner “admitted that he . . . committed
multiple acts of first[-]degree sexual assault by forcing the [victim] to perform oral sex on him”
and “also admitted to penetration.” The State further advised that there was sexual gratification
4
given the victim’s description of petitioner ejaculating on multiple occasions. Finally, the State
noted that the acts alleged in the indictment occurred at petitioner’s home.
The circuit court inquired whether petitioner agreed with the factual proffer by the State.
Petitioner stated that the proffer was “totally incorrect.” When the court sought clarification,
petitioner admitted to performing the sexual acts on the victim, but denied doing so by force. The
court concluded that the State provided an adequate factual foundation for petitioner’s proposed
guilty pleas:
A. I didn’t never force nothing.
Q. All right. So[,] it’s your contention that you never forced [the victim] to perform
any sexual act?
A. No, sir.
Q. But, nevertheless, despite that contention on your part, everything else that [the
State] said occurred?
A. Yes, sir.
Q. All right.
THE COURT: The [c]ourt believes that the elements of the crimes have been
sustained and can be satisfied.
The State requested that the circuit court make the specific findings necessary to render
petitioner ineligible for alternative sentencing pursuant to West Virginia Code § 61-8B-9a. The
court did so, finding that the victim was a child under twelve years of age, that petitioner was an
adult over twenty-one years of age, and that petitioner employed forcible compulsion in his
perpetuation of the charged offenses. The court asked petitioner if he objected to these findings.
Consistent with the plea agreement, petitioner stated that he had no objection.
The circuit court specifically advised petitioner that he must appreciate that he faced the
prospect of being sentenced “for the rest of [petitioner’s] life.” Once again, the court cautioned
petitioner that the only issue the court would address at sentencing would be whether petitioner
serves his sentences concurrently or consecutively and inquired if petitioner understood. Petitioner
answered, “Yes, sir.” The court asked petitioner if he had “any questions about any of the material
that we have covered so far.” Petitioner responded in the negative. In conclusion, the court
inquired: “Do you still wish to enter your pleas as we have discussed?” Petitioner answered, “Yes,
sir.”
Thereafter, petitioner pled guilty to counts one and four of the indictment, charging him
with first-degree sexual assault. The circuit court found that petitioner was competent to enter the
guilty pleas based on the findings set forth in the psychological evaluation report. The court
5
determined that petitioner voluntarily, knowingly, and intelligently entered the pleas. The court
further found that petitioner understood his trial rights and “knowingly and intelligently waived
all of those constitutional rights explained to him on this record.” The court asked petitioner
whether he wanted to withdraw his guilty pleas “for any reason whatsoever.” Petitioner responded,
“No, sir.” Accordingly, the court adjudicated petitioner guilty of two counts of first-degree sexual
assault.
At a March 24, 2016, sentencing hearing, petitioner’s counsel argued for concurrent
sentences while the State argued in favor of consecutive sentences. During its argument, the State
noted that, on the questionnaire petitioner filled out as a part of the presentence investigation
report, petitioner stated that his conduct had no effect on the victim given that “she came on to
[sic] [petitioner].” The State further noted that, in a written statement to the court, the victim asked
that petitioner receive the maximum sentence possible. The victim’s mother gave an oral statement
asking that the circuit court impose consecutive sentences. Thereafter, the court sentenced
petitioner to consecutive terms for two counts of first-degree sexual assault for an aggregate
sentence of 50 to 200 years of incarceration. Petitioner did not appeal his criminal convictions.
On July 3, 2018, petitioner filed a petition for a writ of habeas corpus, raising four grounds
for relief: (1) the circuit court permitted petitioner to enter guilty pleas that were not voluntarily,
knowingly, and intelligently made; (2) the circuit court denied petitioner due process of law by not
providing him with an adequate competency evaluation; (3) the circuit court failed to advise
petitioner of his appeal rights; and (4) petitioner’s trial counsel provided ineffective assistance by
advising petitioner to accept a plea agreement that effectively imposed a life sentence, neglecting
to explain the difference between concurrent and consecutive sentences, and failing to ensure that
the circuit court considered the November 18, 2015, psychological evaluation report when the
court made its competency determination. In the petition, petitioner conceded that his claims were
contradicted by the February 11, 2016, plea transcript in that the circuit court (1) cautioned
petitioner that he could spend the rest of his life incarcerated; (2) confirmed the findings set forth
in the psychological evaluation report with petitioner’s counsel and the State before it made the
competency determination; and (3) asked petitioner “the standard questions required by Rule[s]
11[(c) and (d) of the West Virginia Rules of Criminal Procedure].” Petitioner suggested that his
sworn testimony at the plea hearing should not be believed given that no defendant answers the
“perfunctory question[s]” during a plea colloquy in a manner not expected by the court.
By order entered July 12, 2018, the circuit court noted that it reviewed various documents
such as the February 11, 2016, plea transcript; the March 24, 2016, sentencing transcript; and the
November 18, 2015, psychological evaluation report and determined that it could rule on
petitioner’s habeas petition without a hearing and appointment of counsel. The court found that,
based on the documentary evidence, each of petitioner’s claims lacked merit. Accordingly, the
court dismissed the habeas petition. It is from the circuit court’s July 12, 2018, order that petitioner
now appeals.
In Syllabus Points 1 and 3 of Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016),
we held:
6
“In reviewing challenges to the findings and conclusions of the circuit court
in a habeas corpus action, we apply a three-prong standard of review. We review
the final order and the ultimate disposition under an abuse of discretion standard;
the underlying factual findings under a clearly erroneous standard; and questions
of law are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W. Va.
417, 633 S.E.2d 771 (2006).
....
“‘A court having jurisdiction over habeas corpus proceedings may deny a
petition for a writ of habeas corpus without a hearing and without appointing
counsel for the petitioner if the petition, exhibits, affidavits or other documentary
evidence filed therewith show to such court’s satisfaction that the petitioner is
entitled to no relief.’” Syllabus Point 1, Perdue v. Coiner, 156 W. Va. 467, 194
S.E.2d 657 (1973).” Syl. Pt. 2, White v. Haines, 215 W. Va. 698, 601 S.E.2d 18
(2004).
“West Virginia Code section 53-4A-7(c) (1994) requires a circuit court denying or granting relief
in a habeas corpus proceeding to make specific findings of fact and conclusions of law relating to
each contention advanced by the petitioner, and to state the grounds upon which the matter was
determined.” Syl. Pt. 1, State ex rel. Watson v. Hill, 200 W. Va. 201, 488 S.E.2d 476 (1997).
On appeal, petitioner argues that the circuit court’s July 12, 2018, order should be reversed
and that the matter should be remanded for specific findings of fact and conclusions of law relating
to each contention raised in his petition, following appointment of counsel and an evidentiary
hearing. Respondent counters that the findings set forth in the circuit court’s order were sufficient
to show that petitioner’s habeas petition lacked merit. We agree with respondent and note that
claims “without detailed factual support do[ ] not justify the issuance of a writ, the appointment of
counsel, and the holding of a hearing.” Losh v. McKenzie, 166 W.Va. 762, 771, 277 S.E.2d 606,
612 (1981).
Here, the circuit court found that the claims set forth in petitioner’s habeas petition lacked
sufficient factual support to justify the appointment of counsel or holding an evidentiary hearing
given that each claim was contradicted by the documentary evidence, including the February 11,
2016, plea transcript. We concur with the circuit court’s determination and find that it is clear that
petitioner is entitled to no relief. In the petition, petitioner conceded that his claims were
contradicted by the plea transcript and attempted to have the circuit court find merit to the claims
simply by suggesting that the court disbelieve his own sworn testimony in the prior proceeding.
Based on our review of the record, we find no error. Therefore, we conclude that the circuit court
did not abuse its discretion in dismissing the habeas petition as petitioner himself acknowledged
that his testimony at the plea hearing substantiated his criminal convictions and sentence.
For the foregoing reasons, we affirm the circuit court’s July 12, 2018, order dismissing
petitioner’s petition for a writ of habeas corpus.
7
Affirmed.
ISSUED: November 15, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
8
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214 B.R. 411 (1997)
In re Diann Lattimore CAMPBELL, Debtor.
Bankruptcy No. 97-3433-BKC-3P7.
United States Bankruptcy Court, M.D. Florida, Jacksonville Division.
October 20, 1997.
*412 D. Randall Briley, Jacksonville, FL, for Debtor.
Gregory K. Crews, Jacksonville, FL, for trustee.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
GEORGE L. PROCTOR, Bankruptcy Judge.
This case is before the Court upon the Trustee's objection to Debtor's claim of exempt property. A hearing on the objection was held on August 13, 1997. Upon consideration of the evidence, the Court makes the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. Alphonso Campbell and Diann Lattimore Campbell (Debtor) were husband and wife at all relevant times.
2. On May 5, 1997, Diann Lattimore Campbell filed a voluntary petition under Chapter 7 of the Bankruptcy Code. 11 U.S.C. § 101-1330 (1997). Her husband did not file separately or join in this petition.
3. On her Schedule C, "Property Claimed as Exempt," filed on May 5, 1997, Debtor claimed the following property as exempt under § 522 of the Bankruptcy Code and Florida law:
1996 Chevrolet Cavalier $4,484.34
Property located at 10884
Krugerrand Lane, Jacksonville,
FL (jointly owned with
non-filing spouse) $113,000.00
Household Furnishings $2,005.00
4. Joint credit card debts with her husband were not scheduled by Debtor. Those debts include Nation's Visa, First U.S.A. Visa, and Chase Mastercard, totaling approximately $29,350.00. No evidence was presented to show that these joint creditors hold a pre-petition judgment on any property of Debtor and/or her husband.
5. The Trustee timely filed his objection to Debtor's claim of exemptions. First, the Trustee objects to Debtor's claim of exemption as to the 1996 Chevrolet Cavalier (automobile) *413 under Florida Statute § 222.25, because the value exceeds $1,000.00. FLA.STAT. ANN. § 222.25 (West 1989). Second, he objects to Debtor's claim of exemption of various household furnishings. The Trustee contends that the items are not exempt under § 522(b)(2)(B) because they are not held as tenants by the entirety. Third, the Trustee argues that the real property located at 10884 Krugerrand Lane, Jacksonville, Florida (real property), is subject to administration for the benefit of the joint creditors.
6. At the hearing, Debtor testified that she did not understand the meaning of "tenants by the entirety." However, Debtor and her husband testified that they intended for the household furnishings to be held in joint ownership, with full ownership rights transferring to the surviving spouse, to the exclusion of all other persons, upon either of their deaths.
CONCLUSIONS OF LAW
The issue before the Court is whether the Debtor's claim of exemptions should be disallowed. Cases commenced under the Bankruptcy Code create an estate which is compromised of all the property in which the debtor has a legal or equitable interest as of the date of the petition filing. 11 U.S.C. § 541(a) (1997). However, an individual is permitted to exempt property from the estate by claiming exemptions authorized by 11 U.S.C. § 522. 11 U.S.C. § 522 (1997). See also In re Colston, 87 B.R. 193, 194 (Bankr. M.D.Fla.1988).
Section 522 permits a state to opt out of the federal exemptions and limit its residents to those exemptions provided under state law. 11 U.S.C. § 522(b) (1997). The State of Florida has exercised this option. FLA. STAT.ANN. § 222.20 (West 1989). Therefore, debtors residing in Florida may claim exemptions pursuant to subsections 522(b)(2)(A)-(B), Article X, Section 4 of the Florida Constitution and Florida Statute, Chapters 222.
In this case, the Trustee asserts that Debtor's claim of exemptions to certain properties are improper and should be disallowed. The Trustee's objections are: (1) Debtor's claim of exemption as to the automobile exceeds the $1,000.00 exemption permitted under state law; (2) the household furnishings are not exempt under § 522(b)(2)(B) because they are not held as entireties properties; and (3) the real property, held as tenants by the entirety, is subject to administration for the benefit of the joint creditors of Debtor and her non-filing spouse. The Court will address each objection separately.
A. AUTOMOBILE
The Trustee objects to Debtor's claim of exemption as to the automobile. Debtor's Schedule C lists a 1996 Chevrolet Cavalier as having a fair market value of $11,925.00, with a lien of $7,440.66, leaving $4,484.34 in equity. Debtor claimed the $4,484.34 as exempt pursuant to Florida Statute § 222.25. However, § 222.25 provides that a debtor can only claim up to $1,000.00 in value, in a single automobile, as exempt from property of the bankruptcy estate. FLA.STAT.ANN. § 222.25 (West 1989). Accordingly, the Trustee's objection to Debtor's claim of exemption, as the automobile, is sustained.
B. HOUSEHOLD FURNISHINGS
The Trustee also asserts that Debtor is not entitled to an exemption regarding the household furnishings, contending they are not owned as tenants by the entireties. Section 522(b)(2)(B) of the Bankruptcy Code provides that a debtor may claim as exempt "any interest in property in which the debtor had, immediately before commencement of the case, an interest as a tenant by the entirety . . . to the extent that such interest as a tenant by the entirety . . . is exempt from process under applicable nonbankruptcy law." 11 U.S.C. § 522(b)(2)(B) (1997).
Florida state courts recognize that entireties estates can exist in both real and personal property, and federal courts sitting in Florida have followed this position. In re Peeples, 105 B.R. 90, 94 (Bankr.M.D.Fla. 1989). Under Florida law, property held by a husband and wife as tenants by the entirety belongs to neither individual spouse, but to a separate entity referred to as the "unity" or "the marriage." Id.; see also In re Stanley, 122 B.R. 599, 604 (Bankr.M.D.Fla.1990). Therefore, with limited exceptions, entireties *414 property does not become property of the bankruptcy estate when only one spouse has filed a bankruptcy petition. Mesa Petroleum Co. v. Coniglio, 16 B.R. 1015, 1021 (M.D.Fla. 1982); see also Peeples, 105 B.R. at 94-95.
In Florida, a viable tenancy by the entireties estate is created in either personalty or realty when the unities of possession, interest, title, time, and marriage are satisfied. Stanley, 122 B.R. at 604. If the matter involves personalty, the intent to create an entireties estate, at the time of acquisition, must be shown. Id. Such a requirement alleviates concern that the debtor will claim the personalty as entireties property so as to insulate it from claims of creditors of one of the spouses. Id. The burden of proof is not met solely by the debtor's, or the non-filing spouse's, testimony at the hearing on the objection to the claimed exemption. Id.; see also In re Spatola, 65 B.R. 49 (Bankr. S.D.Fla.1986). Rather, the debtor must provide a quantum of documentary proof establishing that an entireties estate was intended when the personalty was acquired. In re Allen, 203 B.R. 786, 791 (Bankr.M.D.Fla. 1996).
In this case, Debtor provided scant evidence to show that the household furnishings were acquired with the intent to be held entireties properties. The only evidence of such intent was testimony by Debtor, and her husband, that they consider the household furnishings to be jointly owned with survivorship rights. However, Debtor did not provide supplementary documentation to establish that a tenancy by the entireties was intended. Debtor's failure to do provide such documentation is fatal to her claim of exemption. Therefore, the Trustee's objection to Debtor's claim of exemption, with respect to the household furnishings, is sustained.[1]
C. REAL PROPERTY
The Trustee acknowledges that the real property is held as tenants by the entirety. However, the Trustee maintains that Debtor's joint debts with her non-filing spouse subjects the realty to administration for the benefit of those joint creditors. Those joint creditors include Nation's Visa, First U.S.A. Visa, and Chase Mastercard. The Trustee does not claim, nor does the record reflect, that the joint creditors have a judgment against either Debtor or her husband.
Section 522(b)(2)(B), requires a court to ascertain whether property is "exempt from process under applicable nonbankruptcy law." Thus, this Court must examine Florida state law to determine whether the real property is exempt. In Florida, property held as tenants by the entirety is beyond the reach of creditors of only one spouse, but is not beyond the reach of both spouses' creditors. See FLA.STAT.ANN. § 56.061 (West 1994). Thus, if there is a creditor holding a claim against both spouses, then the property in which Debtor has an interest as a tenant by the entirety is not exempt from process under Florida law as to that joint creditor. It is important to note, however, that Florida state courts have restricted joint creditors' access to entireties properties to those holding a judgment against both the husband and wife. The Florida Supreme Court first addressed the issue of whether property held as tenants by the entireties can be reached by joint creditors in Stanley v. Powers. The court held that "[a] judgment against both husband and wife is a general lien on the interest of both in property held by them as tenants by the entireties and the property may be sold under execution issued on the judgment." 123 Fla. 359, 366, 166 So. 843 (1936) (emphasis added).
Federal bankruptcy courts sitting in Florida have differed on whether an actual judgment is necessary before a joint creditor can seek entireties property, when only one of the spouses filed bankruptcy. See e.g., In the Matter of Anderson, 132 B.R. 657, 660 (Bankr.M.D.Fla.1991) (holding that a joint creditor "must have the capacity to have process issue under state law; i.e., writ of execution, levy, or post-judgment attachment *415 or garnishment."); Accord In re Planas, 199 B.R. 211, 215 (Bankr.S.D.Fla.1996). But see In re Himmelstein, 203 B.R. 1009, 1013 (Bankr.M.D.Fla.1996) (holding that "Florida law allows for a joint creditor holding a judgment to pursue entireties property . . .") (emphasis added).
First, a joint creditor's rights against a debtor who holds property as a tenant by the entirety will be examined. This Court has often held that "[t]o the extent of claims held by creditors of both the debtor and non-filing spouse, the property of the estate in which debtor has an interest as a tenant by the entireties is subject to administration . . .". In re Colston, 87 B.R. 193, 195 (Bankr. M.D.Fla.1988). See also In re Ciccarello, 76 B.R. 848, 850 (Bankr.M.D.Fla.1987). A careful review of this Court's opinions reveals that such administration was permitted when the creditor held a judgment against both the debtor and non-filing spouse.
Next, the Court has to determine the extent of a trustee's powers of administration regarding property held by a debtor as a tenant by the entirety. Section 544 limits the trustee's powers to that of a creditor who obtains "an execution against the debtor that is returned unsatisfied at such time . . .". 11 U.S.C. § 544(a)(2) (1997). Accordingly, a trustee can only administer property held as tenants by the entirety if the creditor has a judgment against both the debtor and non-filing spouse. See also Himmelstein, 203 B.R. at 1013 (holding that "because only a joint judgment creditor can pursue property held as tenants by the entirety under Florida law, the trustee is only empowered to the same extent."). In the present case, the Trustee does not claim, nor does the record reflect, that, any of the joint creditors hold a judgment against Debtor and her husband. Therefore, the Trustee's objection to Debtor's claim of exemption, as to the real property, is overruled.
CONCLUSION
The Court sustains the Trustee's objections to Debtor's Claim of exemption as to the 1996 Chevrolet Cavalier and the household furnishings. The Trustee's objection to Debtor's claim of exemption regarding the real property is overruled. The Court will enter an Order consistent with these Findings of Fact and Conclusions of Law.
NOTES
[1] The Trustee also suggested that Debtor's failure to understand the meaning of "tenants by the entirety" indicates a lack of intent to create such an estate. Because Debtor's failure to provide documentary proof of an intent to create an entireties estate is sufficient to defeat her claim of exemption, the Court need not address this issue.
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525 F.2d 1197
Stamatis SOUYOUTZIS, Plaintiff-Appellant,v.M/V GEORGIOS K, her engines, tackle, apparel, etc., et al., Defendants,United States Marshal, Appellee.
No. 75--1924.
United States Court of Appeals,Fifth Circuit.
Jan. 16, 1976.
Hillord H. Hinson, Houston, Tex., for plaintiff-appellant.
Edward B. McDonough, Jr., U.S. Atty., Jack Shepherd, Asst. U.S. Atty., Houston, Tex., Morton Hollander, Mark Mutterperl, Leonard Schaitmann, Appellate Section, Civ. Div., Dept. of Justice, Washington, D.C., for appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before GODBOLD, DYER and MORGAN, Circuit Judges.
PER CURIAM:
1
Without prepayment of costs pursuant to 28 U.S.C.A. § 1916, Souyoutzis filed a suit in rem for wages against the M/V Georgios K. Relying on 28 U.S.C.A. § 1921, the Marshal refused to execute the warrant of attachment without a deposit for costs to be incurred. The district court denied relief. We affirm for the reasons explicated in Araya v. McLelland, 5 Cir. 1976, 525 F.2d 1194.
2
Affirmed.
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530 F.3d 381 (2008)
UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Bernardo RODRIGUEZ-RODRIGUEZ, Defendant-Appellant.
No. 06-41160 Summary Calendar.
United States Court of Appeals, Fifth Circuit.
June 9, 2008.
*382 Mary Jane Harmon, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, H. Michael Sokolow, Sarah Beth Landau, Houston, TX, for Defendant-Appellant.
Before GARWOOD, CLEMENT and PRADO, Circuit Judges.
PER CURIAM:
Defendant-appellant Rodriguez-Rodriguez was convicted on his plea of guilty of one count of having been found in the United States following deportation contrary to 8 U.S.C. § 1326. In July 2006, he was sentenced to 57 months' imprisonment. In his direct appeal to this court, he challenged his sentence, and we affirmed. United States v. Rodriguez-Rodriguez, 238 Fed.Appx. 16 (5th Cir.2007) (per curiam) (unpublished). Appellant did not file a motion for rehearing in this court, but in September 2007 he filed a Petition for Writ of Certiorari in the United States Supreme Court. On January 7, 2008, the United States Supreme Court entered its order therein, Rodriguez-Rodriguez v. United States, ___ U.S. ___, 128 S.Ct. 876, 169 L.Ed.2d 717 (2008), stating:
"Motion of petitioner for leave to proceed in forma pauperis and petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light *383 of Gall v. United States, 552 U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)."
The case is now before us again pursuant to that order of the Supreme Court.
Pursuant to our February 25, 2008 letter directive the parties have filed letter briefs addressing what further action this court should take in light of the Supreme Court's above referenced order.[1]
The PSR reflected an advisory guideline range of 57 to 71 months[2] and the district *384 court rejected appellant's request for some wholly unspecified lower sentence, and sentenced him to 57 months' confinement (with credit for time served).
Discussion
In Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Supreme Court held that the court of appeals, in reversing the district court's below guideline-range sentence, erred by failing to give "the requisite deference" to the district court's decision as required by the "deferential abuse-of-discretion standard of review," id. at 598, that "applies to appellate review of all sentencing decisions whether inside or outside the Guidelines range." Id. at 596. The Court further held that "[i]f the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness", "id." (citing Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)),[3] "[b]ut if the sentence is outside the Guidelines range, the [appellate] court may not apply a presumption of unreasonableness." Gall at 597.[4]
Gall went on to emphasize at some length the "[p]ractical considerations" favoring appellate deference to district court sentencing decisions, quoting with approval language from the amicus brief of the Federal Public and Community Defenders, including that "`[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case'" and "`gains insights not conveyed by the record.'" Id. (emphasis added). The Court also quoted from Rita, 127 S.Ct. at 2469, that "`[t]he sentencing judge has . . . greater familiarity with . . . the individual defendant before him,'" and from Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996), that "`[d]istrict courts have an institutional advantage over appellate courts. . . especially as they see so many more Guidelines sentences than appellate courts do.'" Gall, 128 S.Ct. at 597-98. We note in this latter connection that the district judge here, at the time of the instant sentencing, had served as such in the Laredo Division of the Southern District of Texas for more than twenty-five years. Gall further quotes language from Koon, 116 S.Ct. at 2053, emphasizing the federal sentencing tradition of considering "`every *385 convicted person as an individual'" and every case as "`unique'", but Gall then immediately goes on to say "[t]he uniqueness of the individual case, however, does not change the deferential abuse-of-discretion standard of review that applies to all sentencing decisions." Id. at 598.
Gall also contains the following general statements as to the proper sentencing process and appellate review, viz:
". . . a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. . . . the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume that the Guidelines range is reasonable. . . . He must make an individualized assessment based on the facts presented.
. . .
Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard. It must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence including an explanation for any deviation from the Guidelines range. Assuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Id. at 596-97 (footnote omitted).
As directed by the Supreme Court, we have given further consideration to this sentencing appeal in light of Gall. Having done so, we remain convinced that affirmance of the sentence is called for and that Gall does not call for any other result.
The relevant differences between this case and Gall are vast. Here we affirmed a sentence within the advisory guideline range which had been correctly calculated by the district court, a sentence properly subjected on appeal to a nonbinding presumption of reasonableness, and we did not fail to give due deference to the district court's sentencing decision. By contrast, in Gall the court of appeals reversed the district court's out-of-guideline sentence, erroneously presuming it to be unreasonable for that reason and failing to accord the district court's sentence the deference it was due under the applicable abuse-of-discretion standard of review. Nothing of that kind happened here.
Appellant appears to argue that the district court committed some kind of unspecified significant procedural error. The court did not fail to calculate or improperly calculate the advisory guideline range, and properly used the Guidelines as the starting point and the initial benchmark. It did not treat the Guidelines as mandatory (indeed, the PSR specifically noted that they were advisory only and this was a year and half after Booker) or fail to consider the section 3553(a) factors or select a sentence based on clearly erroneous facts or fail to adequately explain the chosen sentence. The district court gave the parties an opportunity to argue for whatever sentence they deemed appropriate.
*386 Apart from a brief, unsworn statement by the appellant, no evidence was presented at the sentencing hearing. The relevant facts are all contained in the PSR, as to which no relevant objection was made (see note 2, supra).
At the sentencing hearing the court first ascertained from appellant that he had gone over the PSR with his lawyer, was 39 years old, had been deported in 1999 and reentered in the summer of 2005. The court then stated "You say you had come to see your daughter?" to which appellant replied "yes."[5] Then the court stated:
"You have a pretty bad record. You have an assault in 1990, attempted burglary of a habitation in 1994, possession of drugs in 1994, failure to identify in 1995, another burglary in 1997, and then a few other things that did not come to fruition. You've had several relationships with P[ ] and S[ ] and A[ ]. Different children along the way."[6]
Appellant responded "yes" and, after asked if he wanted to say anything further, responded as follows:
"I only came to see my daughter and to work for a while, and then I was going to go back. In Mexico, my family is waiting. My daughter was sick. My daughter has been suffering from bronchitis since she was a baby, and that's the reason why I came. I have not seen her for six years and I wanted to see her. If you could give me a small time and I'm not coming back."
The court responded "No. Your record is too bad for that. I can't give you a small time. Anything else?" Appellant responded "That is all."
Appellant's counsel then addressed the court on the objections to the PSR (see note 2, supra), which he conceded were foreclosed by this court's precedents and Almendarez-Torres, and which the court announced were overruled. Then appellant's counsel further argued:
". . . we would ask the Court to consider a downward variance in this case. The prior offenses for which which drive the 16 level enhancement are 1994 and 1997, Your Honor. The Defendant, as he indicated, was here wanting to make one last ditch effort to see his his daughter, who is very ill. He was informed that she was ill and wanted to come and see her. He hadn't seen her in six years.
The Defendant understands now that he's looking at very serious jail time whenever whenever he's found here again. I don't think that he intends to come back after this time. I think that he's had enough. We would ask the Court to to grant a downward variance in this case, and nothing further."[7]
The court then stated:
*387 "Well, I think, in your case, Mr. Rodriguez, I'm going to leave you where you are in the guidelines. You've had some serious stuff. Granted, not in the last few years, but pretty persistent. I am going to sentence you at the low end, though. You're under the guidelines, you're looking at a low of 57 and a high of 71. I'll sentence you to the bottom of that to 57 months."
Appellant appears to argue that the district court gave undue weight to his criminal history score under the Guidelines. However, two of the five particular prior convictions specifically identified by the district court, the 1990 assault (as to which the PSR says "[a]ccording to the criminal complaint, the defendant struck the victim with a baseball bat on her shoulder") and the 1994 felony possession of a controlled substance, were assigned no criminal history points and contributed nothing to either his criminal history score (seven) or his criminal history category (IV) and hence had absolutely nothing to do with his advisory Guideline sentencing range of 57 to 71 months. This is likewise true of the "other things [on defendant's record] that did not come to fruition" mentioned by the district court. Moreover, other matters reflected by the PSR which had nothing to do with appellant's Guideline sentencing range but could reasonably be found to support a sentence not less than that imposed, include the fact that defendant had at least three prior deportations.[8] Also, the PSR reflects the defendant had used numerous aliases including several completely unlike his true name (e.g., "Martin Gomez" and "Gerardo Martinez," as well as others perhaps more similar to it such as "Jose Arrillano").[9]
It is amply clear that the district court duly considered and gave individualized attention to the defense pleas for a sentence lower than 57 months, but reasonably concluded, as it sufficiently explained at sentencing, that other factors, specifically including several factors not to any extent reflected in the applicable Guideline advisory range, counseled against such a sentence.
Appellant further argues that reversible sentencing error occurred because he was sentenced at a time when this court's post-Booker jurisprudence erroneously held, contrary to Gall, "that a sentence outside the guidelines requires extraordinary circumstances, not considered, or inadequately considered, by the guidelines themselves." Appellant contends that such asserted holdings amounted to "essentially a restatement of the sentencing regime struck down in Booker" and hence resentencing is required. No such (or even remotely similar) contention was ever raised in the district court and hence *388 our review is only for plain error under FED.R.CRIM.P. 52(b). United States v. Mares, 402 F.3d 511, 520-22 (5th Cir. 2005). We conclude that the requisite showing for Rule 52(b) reversal and remand has not been made. We recognize that certain of our opinions have arguably supported the view, rejected in Gall, that we may, at least in certain instances, require district courts to find extraordinary circumstances before they impose sentences outside of the guidelines range. See United States v. Williams, 517 F.3d 801, 811 (5th Cir.2008).[10]
Even if we assume arguendo that Gall has now rendered certain prior aspects of our post-Booker jurisprudence not only erroneous but also plainly so, there is absolutely nothing to indicate that any such state of affairs influenced the sentence imposed in this case, and certainly affirmance of the instant sentence would not seriously adversely affect the fairness, integrity or public reputation of judicial proceedings. Neither the district court, nor the PSR, nor counsel for the government, nor defense counsel, ever stated or took the position below that any sentence less than 57 months would be presumed to be legally erroneous or that such a sentence could only be imposed if the case presented extraordinary circumstances, not considered, or inadequately considered, by the guidelines.[11] There is absolutely nothing in the record to indicate that the district court felt that a sentence of less than 57 months would be reasonable and appropriate under section 3553(a), or that the court likely would have imposed a lesser sentence than it did had it not felt constrained by this court's jurisprudence to sentence within the guidelines or to presume that a non-guideline sentence was improper or unreasonable. Indeed, nothing in the record indicates that the district court in making its sentencing decision here felt in any way limited in the alternatives it desired to consider by this court's sentencing jurisprudence, or in any way disagreed with the guidelines or felt that a sentence within the guideline range was too harsh, or had any inclination, for any reason, to impose a lesser sentence than it did. The fact that the district court knowingly imposed a sentence at the bottom of the guideline range does not suffice to *389 show otherwise. See, e.g., United States v. Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir.2007) (pre-Booker sentence, Booker objection raised for first time on appeal, requisite prejudice not shown by fact that sentence at bottom of guideline range); United States v. Duarte-Juarez, 441 F.3d 336, 339 (5th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 161, 166 L.Ed.2d 114 (2006) (same). Similarly, post-Gall, in United States v. Cisneros-Gutierrez, 517 F.3d 751 (5th Cir.2008), the defendant challenged on appeal his bottom of the guideline range sentence arguing "that the district court improperly treated the Guidelines range as presumptively reasonable." Id. at 764. We rejected that contention and affirmed. We noted the district court's conclusion that "although I do believe that a sentence at the bottom of the range is appropriate, this is a case that I believe should be sentenced within the advisory guidelines." Id. at 766 (internal quotations omitted). We then stated:
"There is no indication in the district court's comments that it believed the Guidelines range presumptively should apply. The court understood that the Guidelines were advisory, but concluded that the Guidelines provided an appropriate sentencing range. In short, the district court disagreed with Defendant over whether the Guidelines sentence was appropriate; that, however, is a substantive, not procedural, conclusion. . . ." Id.
The same remarks are fully applicable here.
Appellant is not entitled to resentencing under the argument, not raised below, that his sentencing was under a regime of this court's post-Booker jurisprudence that amounted to "essentially a restatement of the sentencing regime struck down in Booker."
The district court committed no procedural error under Gall. We accordingly review the sentence under an abuse-of-discretion standard for substantive reasonableness. As the sentence is within the properly calculated guideline range we accord it a non-binding presumption of reasonableness. We conclude that it is fully reasonable, given appellant's record as reflected by the PSR, including his use of numerous aliases and his multiple deportations as well as his prior criminal convictions and the nature thereof.[12]
We have further considered this sentence appeal in light of Gall and we conclude that, applying Gall, the sentence should be and hereby is
AFFIRMED.[13]
NOTES
[1] On March 5, 2008, appellant filed a motion "to summarily vacate the judgment of sentence and remand for resentencing in light of Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)." The motion also states that:
"Assistant United States Attorney James L. Turner was consulted, and he advised that the government does not oppose this motion to summarily vacate the sentence and remand for resentencing. By its nonopposition to this motion, the government does not necessarily agree that Mr. Rodriguez-Rodriguez should receive a lower sentence on remand, and it reasserts its contention that the sentence imposed by the district court was reasonable."
Likewise on March 5 appellant filed his letter brief as called for by our February 25 directive, presenting his arguments that the sentence should be vacated and the case remanded for resentencing in light of Gall and Kimbrough. The same day the United States submitted its letter brief stating in relevant part as follows:
"The United States, appellee, acknowledges and confirms that it is unopposed to Appellant's unopposed motion to summarily vacate the judgment of sentence and remand for resentencing in the light of the Supreme Court's decision in Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). However, in the event that the Court does not grant the motion, the United States submits this supplemental letter brief in the alternative and in response to the Court's order on February 25, 2008, directing the parties to brief what further action this Court should take in light of Gall.
. . .
The United States reurges its argument and authority in its original brief in support of its position that (1) Rodriguez failed to rebut the presumption of reasonableness that attached to his within-Guidelines sentence and (2) the sentence, at the lowest point in the Guideline range, was reasonable. The record shows that there was no procedural error in the sentencing process. This court should affirm the sentence imposed as reasonable under the procedures defined in Gall. (emphasis added).
. . .
In Rodriguez's case, the district court committed no procedural error. The district court did not improperly calculate the Guideline range, did not treat the Guidelines as mandatory or presumptively reasonable, did not fail to consider the § 3553(a) factors, did not select a sentence based on clearly erroneous facts, and did not fail[ ] to adequately explain the chosen sentence."
Though authorized by our February 25 letter, no response briefs have been filed.
[2] The PSR observed that:
"In light of the Supreme Court opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Federal Sentencing Guidelines are now advisory. As stated in Booker, `The district court, while not bound by the Guidelines, must consult those Guidelines and take them into account when sentencing.'"
The PSR likewise stated in its "sentencing options" section that under Booker "the guideline provisions listed below are advisory."
The appellant objected to the PSR only in three respects, each of which was overruled by the district court and none of which remain viable. He first asserted that the 16 level base offense level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) by reason of his prior Texas conviction for felony burglary of a habitation was improper because that Texas offense did not constitute "burglary of a dwelling" within the meaning of § 2L1.2 cmt. n. 1(B)(iii) and hence was not a "crime of violence" for purposes of § 2L1.2(b)(1)(A)(ii). That contention, which is refuted by our decision in United States v. Garcia-Mendez, 420 F.3d 454 (5th Cir.2005), has not been raised post-sentencing. His second objection was based on the fact that the indictment did not allege any prior conviction as assertedly required by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). His third objection was that the PSR misstated the maximum sentence as being 20 years under § 1326(b)(2) because the two year maximum under § 1326(a) was controlling and Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which supported the PSR calculation, was no longer good law in light of Apprendi. These latter two objections were rejected in our prior opinion herein, as they have been in so many of our decisions, see United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005), and are not remotely implicated by the Supreme Court's direction "for further consideration in light of Gall."
[3] Rita authorizes (but does not require) a "nonbinding appellate presumption that a Guidelines sentence is reasonable." See Rita, 127 S.Ct. at 2466.
[4] Gall also observed that the Guidelines are "the product of careful study based on extensive empirical evidence," and that:
"In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts may therefore take the degree of variance into account and consider the extent of a deviation from the Guidelines. We reject, however, an appellate rule that requires `extraordinary' circumstances to justify a sentence outside the Guidelines range." Id. at 594-95.
Such an appellate rule would "come too close to creating an impermissible presumption of unreasonableness for sentences outside of the guidelines range." Id. at 595.
[5] The PSR reflects that appellant stated that in August 2005 he entered the United States by wading across the Rio Grande and he "was traveling to Dallas, to see his daughter. She is sick but he is unsure of the diagnosis. He wanted to see her and work for about three months to save some money. He expressed remorse . . . but that he needed to see his daughter and find out what is wrong."
[6] The PSR reflects that appellant had been married in Mexico to P, a Mexican national; they had one child, and were divorced in about 1990 or 1991. He had "a cohabiting relationship" with S (a United States citizen) in Dallas, from about 1993 to 2001, their daughter (born about 1997 or 1998) "has had bronchial problems since birth" and a totally unidentified "friend of the defendant told him that" S wanted him to see their daughter "because she was sick." Appellant has not seen S or the daughter "in over six years." Appellant has had a cohabiting relationship with A in Mexico since 2003; she has one daughter by a prior relationship who lives with them.
[7] Nothing in the record suggests what even approximate length or range of sentence (or extent of "downward variance") counsel was seeking; the same is true of appellant's request for "a small time."
Counsel's statement that the daughter was "very" ill is not supported by anything in the record other than she was about eight years old, was "sick" and "has had bronchial problems since birth."
[8] This may have been what moved the district court at sentencing to strongly emphasize at some length that defendant would continue for the rest of his life to face serious criminal charges if he again illegally reentered "for any reason, no matter how noble you think it is."
[9] The indictment names defendant "Jose Bernardo Rodriguez-Rodriguez;" the PSR lists his "True Name" as "Jose Bernardo Rodriguez-Arellano."
We also observe that the facts of the 1994 attempted burglary of a habitation conviction, as reflected by the PSR, can reasonably be regarded as more aggravated than the usual such offense, as it involved an attempted entry at night by attempting to pry open the bedroom window of the house then occupied by a lone female, and the defendant giving an alias on arrest.
[10] Williams cites the following cases in this respect: United States v. Walters, 490 F.3d 371, 374 (5th Cir.2007); United States v. Perrin, 478 F.3d 672, 678 (5th Cir.2007); United States v. Sanchez-Ramirez, 497 F.3d 531, 535-36 (5th Cir.2007). Williams, 517 F.3d at 811 n. 55. Appellant cites the same cases and also United States v. Tzep-Mejia, 461 F.3d 522, 527 (5th Cir.2006); United States v. Leatch, 482 F.3d 790 (5th Cir.2007), cert. granted, judgment vacated and remanded for further consideration in light of Kimbrough, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2008); and United States v. Guidry, 462 F.3d 373, 377 (5th Cir.2006). The cited decisions of this court were all handed down after the July 17, 2006 sentencing in this case. Moreover, with the exception of Tzep-Mejia, all the cited cases deal with such different offenses, guidelines and sentences as to form an insufficient basis for concluding that they represent any clear mandate that any below guidelines sentence in this case would have been reversed by this court on appeal by the government. In Tzep-Mejia we reviewed for reasonableness and affirmed a non-guideline sentence imposed by the district court in a § 1326 illegal reentry case in which we noted that the district court "after carefully considering the guidelines, decided to impose a non-Guideline sentence based on individualized § 3553(a) factors," id. at 528, particularly the seriousness of his prior assault offense which was not adequately taken into account by the assumed guideline range. Id. at 526. Tzep-Mejia undermines appellant's contention that prior to Gall we would not have affirmed an out-of-Guideline range sentence here.
[11] Indeed the government filed no objection to the PSR, filed nothing with the court below concerning sentencing, and said nothing at the sentencing hearing.
[12] Appellant also relies on Kimbrough. We see nothing presently relevant in Kimbrough which is not covered by Gall, and the Supreme Court's order herein called for further consideration in light of Gall, but did not mention Kimbrough, which was handed down the same day. Nothing in Kimbrough points to a different result than that which we reach here.
[13] Appellant's March 5, 2008 motion to "summarily vacate the judgment of sentence and remand for resentencing in light of Gall v. United States and Kimbrough v. United States" is DENIED.
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Affirmed and Memorandum Opinion filed February 3, 2011.
In The
Fourteenth Court of
Appeals
___________________
NO. 14-10-00423-CR
___________________
Jason Alan Rodriguez, Appellant
V.
The State of Texas, Appellee
On
Appeal from the County Criminal Court at Law No. 15
Harris County,
Texas
Trial Court Cause No. 1648129
MEMORANDUM OPINION
Pursuant to a plea bargain, appellant Jason Alan
Rodriguez, pleaded guilty to misdemeanor driving while intoxicated. The trial
court assessed punishment at 180 days’ confinement and a fine of $500 and
placed Rodriguez on community supervision for one year. In two issues, Rodriguez
challenges the trial court’s denial of his motion to suppress evidence. We
affirm.
I
Following
a traffic stop, Webster Police Officer T. Phan arrested Rodriguez for operating
a motor vehicle in a public place while intoxicated. Rodriguez filed a motion
to suppress all evidence seized as a result of the arrest. He argued, in part,
that (1) he “was seized without any reasonable suspicion and/or adequate
reasonable suspicion that he was engaged in criminal activity,” (2) the
evidence the State would offer “was not discovered pursuant to a reasonable
investigative detention,” and (3) the stop and seizure violated his rights
under the Fourth Amendment of the United States Constitution and article I,
section 9, of the Texas constitution.
Phan, called by the
defense, was the only witness at the suppression hearing.[1] Viewed in the
light most favorable to the trial court’s ruling, Phan’s testimony established
the following facts.[2]
At approximately 2:20
a.m. on December 16, 2009, Phan stopped Rodriguez for speeding on the IH-45
feeder road after radar indicated he was traveling at seventy-four miles per
hour in a forty-five mile-per-hour zone, or twenty-nine miles per hour over the
posted speed limit. Rodriguez had a male passenger with him. Phan initially
approached the vehicle from the passenger side and talked to Rodriguez about
speeding. At that point, Rodriguez and the passenger told Phan where they were
coming from, and Phan clearly understood them. Phan noticed the odor of
alcohol coming from the passenger compartment of the vehicle at that time and
suspected he might “have an intoxicated driver.” Phan did not ask the men any
further questions.
Phan returned to his
patrol car and ran a computerized license and NCIC records check for both occupants.
The records for both men came back clear.
After the computer
check, Phan returned to the driver’s side of Rodriguez’s vehicle and asked Rodriguez
“[t]o step out to see if he was all right to drive” and to “[d]o field sobriety
tests.” Phan continued to smell alcohol as he got closer to Rodriguez, and the
smell was stronger when Rodriguez was talking. Phan did not know that the alcohol
he initially had smelled in the vehicle was specific to Rodriguez until he got Rodriguez
out of the vehicle. Phan talked to Rodriguez before having him perform the
field sobriety tests, and Rodriguez informed Phan he “[w]as coming from a local
bar,” namely The Dock’s Bar. Phan asked Rodriguez how much he had to drink,
and Rodriguez “[c]laimed to have consumed two beers.”
Phan, who was certified
to administer the horizontal-gaze-nystagmus (HGN) test, first administered that
field sobriety test to Rodriguez. Phan shined his flashlight in Rodriguez’s
eyes and noticed Rodriguez’s eyes were red, bloodshot, and “glossy” and Rodriguez’s
speech was slurred. Phan observed six clues during the HGN test, indicating Rodriguez
had a possible blood-alcohol content of .08 or higher. Phan next administered
the walk-and-turn test and observed four clues, also indicating Rodriguez had a
possible blood-alcohol content of .08 or higher. Finally, Phan administered
the one-leg-stand test and observed two clues, again indicating a level of
intoxication of .08 or higher. At that point, Phan felt Rodriguez was
intoxicated, and arrested him. He also arrested the passenger for public
intoxication.
The trial court denied
the motion to suppress, stating, “The officer had—in my judgment, having
smelled alcohol coming from the vehicle after stopping him, and an automobile
going 30 miles over the speed limit had a duty to investigate. He smelled
alcohol, it was his duty to check to see whether that driver is impaired or
not.” Rodriguez did not request that the trial court prepare findings of fact
and conclusions of law, and, consequently none appear in the appellate record.
II
Rodriguez raises two
issues. In issue one, he argues the trial court erred “in finding that the
prosecution met its burden of proving that Webster Police Officer Phan had
reasonable suspicion to prolong the traffic stop of Rodriguez beyond the length
and scope necessary to fulfill the purpose of the original stop under the
Fourth Amendment of the United States Constitution.” In issue two, he frames
the identical issue under article I, section 9, of the Texas constitution. He
does not, however, provide specific arguments or authorities to distinguish his
state-law claim from his federal-law claim. Accordingly, we will limit our
analysis to the Fourth Amendment. See Hubert v. State, 312 S.W.3d 554,
558 n.8 (Tex. Crim. App. 2010) (“Because the briefs do not provide specific
arguments or authorities to distinguish the state-law claims from the
federal-law claims, we will limit our analysis to the Fourth Amendment.”).
A
We
generally review a trial court’s decision to grant or deny a motion to suppress
using an abuse-of-discretion standard. Swain v. State, 181 S.W.3d 359,
365 (Tex. Crim. App. 2005). During the suppression hearing, the trial court is
the exclusive trier of fact and judge of the witnesses’ credibility. State
v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Mason v. State,
116 S.W.3d 248, 256 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). An
appellate court affords almost total deference to the trial court’s
determination of historical facts supported by the record, especially when the
trial court’s findings are based on an evaluation of credibility and demeanor. Johnson
v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002) (citing Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We afford the same amount
of deference to a trial court’s ruling on mixed questions of law and fact if
the resolution turns on evaluating credibility and demeanor. Johnson,
68 S.W.3d at 652; Guzman, 955 S.W.2d at 89. We review de novo, however,
those mixed questions of law and fact not turning on credibility or demeanor. Johnson,
68 S.W.3d at 653 (citing Guzman, 955 S.W.2d at 89). If the trial court’s
ruling is reasonably supported by the record and is correct on any theory of
law applicable to the case, the reviewing court must sustain it. Villarreal
v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Flores v. State,
172 S.W.3d 742, 748 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
In
reviewing a trial court’s ruling on a motion to suppress, we view the evidence
in the light most favorable to the trial court’s ruling. State v. Kelly,
204 S.W.3d 808, 818 (Tex. Crim. App. 2006). If, as here, the trial court makes
no explicit fact findings, we imply the necessary fact findings that would
support the trial court’s ruling if the evidence (viewed in the light most
favorable to the trial court’s ruling) supports these implied fact findings. Id.
at 819.
B
The Fourth Amendment
protects individuals from unlawful searches and seizures. U.S. Const. amend.
IV. A traffic stop is considered a Fourth Amendment seizure. Berkemer v.
McCarty, 468 U.S. 420, 436–37 (1984); see Davis v. State, 947
S.W.2d 240, 243–45 (Tex. Crim. App. 1997). Because traffic stops are analogous
to investigative detentions, they are analyzed under the two-prong test in Terry
v. Ohio, 392 U.S. 1, 19–20 (1968); State v. Williams, 312 S.W.3d
276, 280 (Tex. App.—Houston [14th Dist.] 2010, no pet.). To be a valid traffic
stop, the stop must be reasonable. Davis, 947 S.W.2d at 244. A
detention is reasonable if (1) the police officer’s actions were justified at
the stop’s inception; and (2) the stop was reasonably related in scope to the
circumstances that initially justified the stop. Terry, 392 U.S. at
19-20; Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004).
Once the reason for the
traffic stop has been satisfied, the officer may not use the detention as a “‘fishing
expedition for unrelated criminal activity.’” Vasquez v. State, 324 S.W.3d
912, 919 (Tex. App.—Houston [14th Dist.] 2010, no pet. h.) (quoting Spight
v. State, 76 S.W.3d 761, 766 (Tex. App.—Houston [1st Dist.] 2002, no pet.)).
Generally, it is lawful to detain and question an individual while the computer
check is pending. Id. However, once the officer completes the computer
check and knows the driver has a valid license with no outstanding warrants and
the car is not stolen, the traffic-stop investigation is finished. Kothe,
152 S.W.3d at 63–64; Vasquez, 324 S.W.3d at 919. It is at this time the
detention must end and the driver must be permitted to leave. Kothe,
152 S.W.3d at 64; Vasquez, 324 S.W.3d at 919.
Nevertheless, once an
officer concludes the investigation of the conduct that initiated the traffic
stop, he may continue to detain a person if he has reasonable suspicion to
believe another offense has been or is being committed. Davis, 947
S.W.2d at 244. “‘Reasonable suspicion’ exists if the officer has specific
articulable facts that, when combined with rational inferences from those
facts, would lead him to reasonably suspect that a particular person has
engaged or is (or soon will be) engaging in criminal activity.” Garcia v.
State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).
C
Rodriguez
does not challenge the reasonableness of the initial traffic stop. Instead, he
contends that the traffic stop was complete when the computer check “came back
clear” and that Officer Phan prolonged the stop “beyond the necessary length
and scope needed to effectuate the purpose of the stop . . . .” He further argues
the odor of alcohol alone does not establish reasonable suspicion that someone
is intoxicated.[3]
We turn first to the facts of which Phan was aware when he ran the computer
check and before he requested Rodriguez to perform the field sobriety tests.
We then consider his decision to delay performing the tests until after he
obtained the results of the computer check.
Viewed
in the light most favorable to the trial court’s ruling, the evidence at the
suppression hearing established Phan was aware of at least three articulable
facts when he asked Rodriguez to perform the field sobriety tests. First, Rodriguez
was driving twenty-nine miles per hour in excess of the posted speed of
forty-five miles per hour. Speeding can contribute to reasonable suspicion of
driving while intoxicated. See, e.g., State v. Cullen,
227 S.W.3d 278, 282 (Tex. App.—San Antonio 2007, pet. ref’d); Arthur v.
State, 216 S.W.3d 50, 55–56 (Tex. App.—Fort Worth 2007, no pet.); State
v. $30,660.00, 136 S.W.3d 392, 399–401 (Tex. App.—Corpus Christi 2004, pet.
denied).
Second,
it was approximately 2:20 a.m. The time of night can also contribute to
reasonable suspicion of driving while intoxicated. See $30,660.00,
136 S.W.3d 392 at 399–401.[4]
Third,
there was an odor of alcohol coming from the passenger compartment of the car.
The odor of alcohol can constitute, or contribute to, reasonable suspicion of
intoxication. See Sanchez v. State, 582 S.W.2d 813, 814–15 (Tex. Crim. App.
[Panel Op.] 1979); State v. Brabson, 899 S.W.2d 741, 749 (Tex.
App.—Dallas 1995), aff’d, 976 S.W.2d 182 (Tex. Crim. App. 1998).
Given these facts, we
conclude Officer Phan had reasonable suspicion Rodriguez was intoxicated before
he requested Rodriguez to perform the field sobriety tests.
We turn now to Phan’s
decision to perform the tests after he had run the computer check. Phan was
patrolling alone. There were two men in the car he had stopped. The men would
necessarily have to exit the car in order to perform the tests. That Phan, who
had reasonable suspicion Rodriguez was intoxicated, chose not to conduct field
sobriety tests until after he checked the men’s records does not alter the
conclusion that the length of the detention was reasonable in the present
case. See Kothe, 152 S.W.3d at 66 (“[T]he order of events, while
relevant to the legal determination of ‘reasonableness,’ is not in itself
determinative.”); United States v. Brigham, 382 F.3d 500, 511 (5th Cir.
2004) (en banc) (“Computerized license and registration checks are an efficient
means to investigate the status of a driver and his auto, but they need not be
pursued to the exclusion of, or in particular sequence with, other efficient
means.”).
For the preceding
reasons, we overrule Rodriguez’s first and second issues.
* * *
Having
overruled Rodriguez’s two issues, we affirm the judgment.
/s/ Jeffrey
V. Brown
Justice
Panel consists of Justices
Brown, Boyce, and Jamison.
Do
Not Publish — Tex. R. App. P. 47.2(b).
[1] The defense also played
State’s exhibit one, a video recording of the traffic stop, but there is no
indication the exhibit was admitted into evidence. Although the video was not
initially part of the appellate record, the State filed a motion to supplement
the record with the videotape, and this court granted the motion. Rodriguez
does not challenge this court’s ruling.
[2] See State v. Kelly,
204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
[3] In support, Rodriguez
cites Domingo v. State, 82 S.W.3d 617 (Tex. App.—Amarillo 2002, no
pet.). Domingo involved a citation for public intoxication, and, unlike
the present case, the only articulable fact was the odor of alcohol.
[4] On direct examination by
the defense, Phan testified that, during the initial encounter, he asked the
occupants where they were coming from, they told him, and he clearly understood
them. On cross-examination by the State, Phan testified as follows:
Q
[by prosecutor] Okay. Now, when you approached the car, you smelled
alcohol coming from the car, correct?
A Yes,
ma’am.
Q Okay.
And did you suspect at that time that you may have an intoxicated driver?
A Yes,
ma’am.
Q Okay.
What did you do because of that?
A I
asked the driver to step out of the vehicle so we could do field sobriety
exercises.
Q When
you got closer to the driver, did you continue smelling the alcohol?
A Yes,
ma'am.
Q Was
it stronger when he was talking?
A Yes,
ma’am.
Q At
that point, did you notice anything about his eyes?
A Yes,
his eyes were bloodshot.
Q Okay.
And did you talk to him before you performed the field sobriety tests?
A Yes.
Q Did
he say where he was coming from?
A He
was coming from a local bar.
Q Okay.
What was the bar?
A The
Docks Bar is what he said.
From the context of the questioning, it is difficult
to determine when Phan first learned the occupants had come from a local bar.
It would not be unreasonable to infer he learned this fact during the initial
encounter on the passenger’s side of the car.
| {
"pile_set_name": "FreeLaw"
} |
25 Cal.2d 697 (1944)
Estate of CARL A. LINDQUIST, Deceased. UNITED STATES OF AMERICA, Appellant,
v.
THE STATE OF CALIFORNIA, et al., Respondents.
S. F. No. 16883.
Supreme Court of California. In Bank.
Dec. 30, 1944.
Francis M. Shea, Assistant United States Attorney General, Frank J. Hennessy, United States Attorney, W. F. Mathewson, Assistant United States Attorney, and Leavenworth Colby, Attorney, Department of Justice, for Appellant.
Robert W. Kenny, Attorney General, and Clarence A. Linn, Deputy Attorney General, for Respondents.
SCHAUER, J.
The United States of America has appealed from "the Decree of Settlement of Final Account and of Final Distribution" in the estate of Carl A. Lindquist, deceased, "distributing the residue of the estate of the decedent to the State of California under the provisions of Section 1027 of the Probate Code of the State of California, and denying *700 the claim of the United States of America for distribution of said residue under the provisions of Section 450 of Title 38 of the United States Code." A hearing was granted by this court, after decision by the District Court of Appeal, First Appellate District, Division One, for the purpose of giving further study to the problems presented and in order to provide a decisive precedent for guidance in the settling of similar controversies which it has been suggested would otherwise arise in the future. After such study we have concluded that the opinion of the District Court of Appeal, prepared by Mr. Justice Ward, correctly treats and disposes of the issues involved, and it is therefore, with further discussion concerning one phase of the matter which was the subject of an added memorandum of authorities before us, adopted as and for the opinion of this court. Such opinion (with appropriate deletions of introductory and conjunctive matter as indicated) is as follows:
"[ ] Lindquist, a veteran of the United States Navy, was declared incompetent and the Pacific National Bank of San Francisco was appointed guardian of his estate. Shortly thereafter the Veterans' Administration awarded him a pension under the provisions of the act of August 13, 1935, ch. 521, 49 Stats. 614 (38 U.S.C. 368) in the amount of $60 a month, and this was regularly paid to the guardian. At the time of the veteran's death his estate, consisting entirely of an unexpended balance of pension payments and amounting to the sum of $1,445.87, was turned over to the public administrator, and the Superior Court of the State of California in and for the City and County of San Francisco sitting in probate ordered distribution of the residue thereof to the State of California as escheated property. (Cal. Prob. Code, 1027.)"
"The main question presented is the construction of section 450(3) of title 38, U.S.C. The respondents contend that the act purports to lay down a rule of succession to property--a matter in which the federal government is without authority. The act so far as pertinent here provides as follows: 'Where any payment of compensation, adjusted compensation, pension, emergency officers' retirement pay, or insurance under any Act administered by the Veterans' Administration is to be made ... to a person mentally incompetent, or under other legal disability adjudged by a court of competent jurisdiction, such payment may be made to the person who is constituted guardian, curator, or conservator by the laws of the *701 State of residence of claimant, or is otherwise legally vested with the care of the claimant or his estate. ..."
" 'Authority is granted for the payment [from funds so derived] of any court or other expenses incident to any investigation or court proceeding for the appointment of any guardian, curator, conservator, or other person legally vested with the care of the claimant or his estate or the removal of such fiduciary and appointment of another, and of expenses in connection with the administration of such estates by such fiduciaries, or in connection with any other court proceeding hereby authorized, when such payment is authorized by the Administrator. ..."
" 'Provided further, That any funds in the hands of a guardian, curator, conservator, or person legally vested with the care of the beneficiary or his estate, derived from compensation, automatic or term insurance, emergency officers' retirement pay, or pension, payable under said Acts, which under the law of the State wherein the beneficiary had his last legal residence would escheat to the State, shall escheat to the United States and shall be returned by such guardian, curator, conservator, or person legally vested with the care of the beneficiary or his estate, or by the personal representative of the deceased beneficiary, less legal expenses of any administration necessary to determine that an escheat is in order, to the Veterans' Administration, and shall be deposited to the credit of the current appropriations provided for payment of compensation, insurance, or pension.'"
"The state contends that the pension was an outright, absolute and complete gift; that the statute above uses the term 'escheat' in a technical sense to mean succession to property where there are no heirs; and that the statute constitutes an attempt by the federal government to regulate the laws of succession of this state as to a particular type of property. It is admitted that the federal government has no power to pass laws regulating succession to property by citizens of the states, that being a power reserved by the Tenth Amendment to the states."
"The appellant contends that the word 'escheat' as used in the statute does not have the technical, limited meaning urged by the respondents; that when the statute is read as a whole it has a broader meaning; that the obvious purpose, intent and meaning of the statute is that the federal government has not *702 made the gift of a pension absolute and complete, but has retained in itself a contingent reversionary interest--that is, if the pensioner die possessed of any portion of the gift, and if he has not by will disposed of the interest, and if under the laws of the state the gift would otherwise escheat to the state, then the reversionary contingent interest of the federal government will vest."
[1] "The word 'escheat' under the old English feudal system relating to the lapsing or reversion of lands to the ford of the fee upon a failure of heirship has survived but outgrown its restricted meaning. The custom or practice was originally confined to land, but its scope has been enlarged to include personal property. (19 Am.Jur., p. 383, 5.) In the case of In re Melrose Ave. in Borough of the Bronx, 234 N.Y. 48 [136 N.E. 235, 237, 23 A.L.R. 1233], the court, in an opinion delivered by Justice Cardozo, said: 'Escheat, as it survives in the Constitution of New York, preserves the name but ignores the origin of its feudal prototype. In origin it was an incident, not of sovereignty, but of tenure.' 'Escheat to-day is not the privilege of one, but the collective right of all when the individual right has failed.'"
"In the United States, a state or some governmental agency is ordinarily the beneficiary of an escheat. In Canada, a province succeeds unless the Dominion by statute provides to the contrary. 'As between the country or state of domicil and the country or state in which the property is located, real property escheats to the country in which the property is found, since every sovereign state has dominion over the land within its borders. In England it has been held that the personal property of an intestate dying without heirs, located in a foreign country, escheats to that country, and not to the country of domicil of the owner, the maxim "mobilia sequuntur personam" not applying, because the right claimed is not in the nature of a succession. However, in the United States it has been held that the state is not entitled by escheat to unclaimed property owned by non-residents within the state.' (19 Am.Jur., p. 382, 3.) The United States Government, in dealing with objects of its bounty, by statutory provision has applied the principle of escheat. In Tax Commission of Ohio v. Rife, 119 Ohio St. 83 [162 N.E. 390, 391], involving the question of exemption from taxation of insurance payable under an act of Congress *703 known as the World War Veterans' Act, the following is set forth: ' "That the compensation, insurance, and maintenance and support allowance payable under titles II, III, and IV, respectively, ... shall be exempt from all taxation ..." 43 Stats. at L. 607, 613, c. 320, sec. 22, June 7, 1924 (38 U.S.C.A., 454)'; ' "that in cases when the estate of an insured would escheat under the laws of the place of his residence the insurance shall not be paid to the estate but shall escheat to the United States and be credited to the military and naval insurance appropriation. This section shall be deemed to be in effect as of October 6, 1917." 43 Stats. at L. 1302, 1310, c. 553, sec. 303, March 4, 1925 (38 U.S.C.A., sec. 514).' The court said, pages 392-393: 'It is to be noted that there shall be no escheat to the state of Ohio, as would be the case in the event the state statutes controlled entirely; but by the Act of March 4, 1925, the insurance shall not be paid to the estate of the insured, but shall escheat to the United States and shall be credited to the United States government life insurance fund or the military and naval insurance appropriation, as may be appropriate. ... This right to take this property is by virtue of a contract between the United States government and the soldier, and does not arise by reason of the statutes of descent and distribution of this state, even though the government has seen fit to distribute such fund through the agency of an administrator acting under the statutes of descent and distribution of the state of Ohio."
" 'It is reasonable to assume that the purpose of Congress in making the payment to the administrator of the deceased soldier was for the benefit of the government, to relieve the government of the necessity of selecting and determining the next of kin of the deceased soldier to whom payment should be made, and to place this burden upon the administrator appointed in the state of the soldier's residence. The administrator becomes a mere trustee or conduit for the government to make the payments to the persons entitled to the same under the provisions of the federal law. The intestate laws do not operate upon the decedent's property, but are referred to in order to determine who shall take the proceeds of the insurance. Congress had a right to adopt the course of descent prevailing in the state of the residence of the soldier, and the proceeds of the insurance therefore pass under the federal act, the intestate laws of Ohio being adopted as *704 a standard or guide for ascertaining the next of kin to whom payment shall be made.'"
[2] "The deceased [ ] herein had no vested right to a pension. In Abbott v. Morgenthau, 93 F.2d 242 [68 App. D.C. 83], a case quite similar to the present, accumulated pension payments made to a guardian who had signed an application for his incompetent ward's admission to a veterans' home, were involved. At page 245, the court said: 'It must be borne in mind that Folley had no vested interests or rights in the pension money. He had no vested legal right to a pension at all, for, as has been said time and time again, pensions are bounties which Congress has the right to give, to withhold, to distribute, or to recall, at its discretion. When, therefore, it is considered that Congress could annex whatever conditions it pleased, whenever it pleased, to the grant or the gratuity, it seems to us clear that it was competent for Congress to say, as it did say, that, if anyone enjoyed the benefits of the home and was still a member of the home at the time of his death, his accumulated pension money should be distributed in a particular manner. Indeed, the provision in the act for distribution of the balance to certain limited relatives of the deceased pensioner was itself but another gratuity, and since, as we have pointed out, there is and can be no dissent to the proposition that Congress may give, withhold, distribute, or recall and change at will its gratuities, it seems beyond dispute that when it does so it is the duty of the courts to give effect to the congressional purpose.' (Writ of certiorari denied 303 U.S. 638 [58 S.Ct. 526, 82 L.Ed. 1098].)"
[3] "The laws of the United States dealing with matters within its jurisdiction are supreme 'and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' (U.S. Const., art. VI, par. 2; [People ex rel. Happell v. Sischo (1943), 23 Cal.2d 478, 491 [144 P.2d 785, 150 A.L.R. 1431].]) Upon the state courts is often imposed the duty of enforcing federal laws, and in this connection they are likewise called upon to determine their constitutionality. If the terms of an act are constitutional, and due process is complied with, state agencies, judicial or otherwise, may with propriety and to the great convenience of the federal government lend their and in their enforcement. Laws of the United States, when *705 constitutional, are binding upon state courts (Tax Commission of Ohio v. Rife, supra, 119 Ohio St. 83 [162 N.E. 390, 393]), and should not be viewed as emanating from a foreign jurisdiction. The principle of cooperation, not competition, should be followed. (Miller v. Municipal Court, 22 Cal.2d 818 [142 P.2d 297].) Congress is required to establish adequate and exact standards for the practical administration and reasonable enforcement of an act, and, Congress having done so, the state courts should assist and cooperate in any policy declared for all the states. (Miller v. Municipal Court, supra.)"
[4a] "That unexpended pension money, under the conditions enumerated in the statute, should be returned to its source and be used in further aid of veterans, is eminently just and equitable, and state agencies should accept the burden of aiding in the enforcement of the act unless the method of return is contrary to constitutional provision. In Beaver v. Short, 300 F. 113, the power to legislate relative to property constituting a gift from, or within the provisions of, the federal government is held to be exclusively within such government."
[5] "If not prescribed by statute, a formal contract is not required to bind one in the disposition of his property upon his death. (Keefe v. Keefe, 19 Cal.App. 310 [125 P. 929]; Barr v. Ferris, 41 Cal.App.2d 527 [107 P.2d 269]; Davis v. Jacoby, 1 Cal.2d 370 [34 P.2d 1026]; Wolf v. Donahue, 206 Cal. 213 [273 P. 547].)"
[6] "There is no doubt that if the pension statute requires the pensioner to contract that in certain contingencies the unused pension fund shall revert to the donor, that such contract is valid, and that no formal consent by the pensioner or his guardian is required, the statute itself plus acceptance of its benefits constituting the contract. United States v. Stevens, 302 U.S. 623 [58 S.Ct. 388, 82 L.Ed. 484], reversing Stevens v. United States, 89 F.2d 151, is similar to the present case except that in the Stevens case in his written application for admission to a national soldiers' home the applicant agreed that upon his death all of his personal property should pass to and vest in the board of managers of the home. (36 Stats. 736, 24 U.S.C.A., 136.) Basing its decision primarily upon the Tenth Amendment to the Constitutional the circuit court (89 F.2d 151) had held the act to be unconstitutional and *706 void. In United States v. Stevens, supra, 302 U.S. 623 [58 S.Ct. 388, 82 L.Ed. 484], the question was concisely stated as follows (p. 624): 'Can the United States enforce a contract executed by an ex-soldier in order to obtain admission into the National Home for Disabled Volunteer Soldiers, which contract provides that upon the death of the veteran while a member of the home, all his personal property shall pass to the home subject to be reclaimed within five years by any legatee or person entitled to receive the property by inheritance?" The Supreme Court there said (pp. 626-627): 'The Court of Appeals was of the opinion that the Act of Congress authorizing the contract was void as an interference with the reserved rights of the state of the veteran's legal domicile when he died (Massachusetts) in that "it was at most but an attempt to make a future testamentary disposition of McGovern's property, when such a disposition could only be effected by will" ' and held (p. 628): 'Nothing in the record indicates that the agreement was not fairly and voluntarily entered into between the parties, or that it was inequitable, unjust or not upon valuable consideration. Both parties were competent to make the contract. This contract is valid and enforceable.' The statutory provision in the Stevens case specified 'all personal property'; that in the present, applies to funds derived from 'compensation, automatic or term insurance, emergency officers' retirement pay, or pension' only (Italics added.) If the federal government simply by statute can lawfully create a contract that requires all the personal property of the pensioner to be paid over in certain circumstances, it can also provide that as to the particular fund that is the subject of the gift, the donor retains a contingent interest. That is all the statute here involved attempts to do.
[7] "The statute herein makes no provision for consent by the veteran; the pension, if accepted, must be held in accordance with the statutory provisions applying to a gift, bounty or periodical allowance, the granting of such pension being sometimes referred to as part consideration of a contract of employment, or as additional payment for past meritorious service. While in California it has been held that upon the granting of a pension to an employee a vested right accrues to the recipient, this simply means that the vesting is subject to contingencies, which may cause a discontinuance of payment, *707 such as conviction of a felony or an automatic decrease in amount (Douglas v. Pension Board, 75 Cal.App. 335 [242 P. 756]; Klench v. Board of Pension Fd. Commrs., 79 Cal.App. 171 [249 P. 46]; Jordan v. Retirement Board, 35 Cal.App.2d 653 [96 P.2d 973]) if the pension statute so provides. [8] Likewise, a legislative body may provide that an unexpended portion of an allowance may revert or escheat to a designated governmental body. (United States v. Stevens, supra, 302 U.S. 623 [58 S.Ct. 338, 82 L.Ed. 484].) This rule applies to pensions. (Abbott v. Morgenthau, supra, 93 F.2d 242 [68 App.D.C. 83].)"
[9a] "The fact that the veteran herein had been declared an incompetent makes no difference in the determination of the issues involved. In the Abbott case, the veteran was insane and, as regards the absence of a requirement of consent, the court declared that 'It is a self-executing act.' In the present case the incompetent was represented by a duly appointed and qualified guardian. The receipt of the pension, a benefit to the incompetent, was one of the elements in a quasi contractual transaction which, it may be assumed, was approved by the superior court in the guardianship proceeding. The decree of distribution sets forth the appointment of the guardian, the award of the pension, the period of payment to the guardian and that the entire estate consisted of money received from the Veterans' Administration."
[10] "California has no right, by virtue of its sovereignty, to escheat the funds herein merely because they are found within the jurisdiction of the state. (First Nat. Bank v. California, 262 U.S. 366 [43 S.Ct. 602, 67 L.Ed. 1030].) They were derived from the United States government as an absolute gift only in the sense that the guardian might have expended the full amount had it been necessary. The gift was limited to the extent that if the veteran died intestate and without heirs, any unexpended balance reverted to the donor. There is nothing inequitable in this provision of the federal statute. As between state and federal governments, there can be no question of the justice of the federal claim."
"Had the veteran in this case not been declared an incompetent he could have confided his pension to the keeping of the treasurer of a veteran's home, reserving the right to withdraw and expend it as he desired, but with an agreement on his *708 part that if unexpended at the time of his death it should be retained by the home. In Mauck v. United States, 94 F.2d 745, using the Stevens case as authority, the court said (p. 746): 'It was pointed out in the Stevens case that the statute requiring the contract did not operate to invade the reserved powers of the state over the course of intestate descent and distribution, inasmuch as the law of the veteran's domicile, Massachusetts, permitted and enforced contracts directing the distribution of the promisor's property after his death."
" 'Such is also the law in California. Nichols v. Emery, 109 Cal. 323, 41 P. 1089, 50 Am.St.Rep. 43; Booth v. Oakland Bank, 122 Cal. 19, 54 P. 370; Treadway v. Board of Directors, 14 Cal.App. 75, 85, 86, 111 P. 111, hearing by Supreme Court denied; Monsen v. Monsen, 174 Cal. 97, 99, 162 P. 90; cf. Cal. Civ. Code, sec. 1624, subd. 6; Levi v. Murrell, 9 Cir., 63 F.2d 670, 671.'"
[11] "The entrusting of an incompetent petitioner's funds to the management of a guardian appointed by a state court has been recognized by the Congress of the United States as proper. (Hines v. Stein, 298 U.S. 94 [56 S.Ct. 699, 80 L.Ed. 1063].) The necessity of a guardian applying for a pension on behalf of an incompetent veteran is apparent. (World War Veterans' Act, 1924, 21; 43 U.S.Stats., pp. 607, 613.) Whatever terms of a contract the veteran would be compelled to make, expressly or impliedly, in order to obtain the pension, they bind the guardian with equal force."
[9b] "The objection that the incompetent veteran cannot be considered as having consented to the condition of the gift is without merit. This conclusion is strengthened when the holding in Abbott v. Morgenthau, supra, 93 F.2d 242 [68 App.D.C. 83], is considered, namely, that the terms of the statute became operative upon the award and acceptance of the pension, and that formal consent to reversion of the unexpended funds was not necessary."
[4b] "There is nothing unreasonable in the provision that the particular funds herein shall escheat to the federal government. The reference to 'funds ... which under the law of the State wherein the beneficiary had his last legal residence would escheat to the State' is simply adopting, as regards the operation of escheat to the federal agency, the same rule that the state has adopted for itself. The method is a matter of convenience. There may be cases in which pension money *709 would escheat to the Veterans' Administration, and other property, real or personal, owned by the decedent, would escheat to the state. Respondents' contention that the pension money was paid to the deceased or his guardian without reservation that the United States could any longer assert control over it, is not well founded when the provisions of the pension act are given due consideration."
"This opinion would be unduly lengthened if each of respondents' citations should be analyzed. None of them covers facts similar to those of this case. As an example, in Spicer v. Smith, 288 U.S. 430 [53 S.Ct. 415, 77 L.Ed. 875, 84 A.L.R. 1525], in which a living incompetent veteran was involved, whose guardian used as a depositary an institution which became insolvent, it was held that the guardian was not an agent of the United States, and that federal authority is not concerned in the depositary selected by him. No question of the right of escheat upon the death of the veteran was considered."
"In Carrier v. Bryant, 306 U.S. 545 [59 S.Ct. 707, 83 L.Ed. 976], the court held that bonds of the United States purchased by a guardian on behalf of an incompetent veteran with 'payments of benefits' were not exempt from execution. At page 549, the court simply said, quoting from Trotter v. Tennessee, 290 U.S. 354 [54 S.Ct. 138, 78 L.Ed. 358]: 'We see no token of a purpose to extend a like immunity to permanent investments or the fruits of business enterprises.' In this respect it is interesting to observe changes in the statute as noted in Culp v. Webster, 25 Cal.App.2d Supp. 759 [70 P.2d 273] and Lawrence v. Shaw, 300 U.S. 245 [57 S.Ct. 443, 81 L.Ed. 623, 108. A.L.R. 1102].)"
"In Christianson v. King County, 239 U.S. 356 [36 S.Ct. 114, 60 L.Ed. 327], the court determined that territorial schemes of government for Washington territory properly included provisions establishing and defining the jurisdiction of probate courts. The failure of heirs resulted in an escheat to the county, but the opinion was not based upon an agreement of the deceased that, in the absence of testamentary disposition or heirs, the property should revert to the federal government. The right of succession to estates of deceased persons is a matter for state cognizance. Referring to 'escheat,' the Christianson case, page 366 [239 U.S.], said 'In the case of the Territories, *710 Congress could have dealt with this subject if it chose, but it did not see fit to establish a rule of its own.'"
"There is an abundance of authority, statutory and judicial, to the effect that the state has control over the disposition of the property of a deceased within its jurisdiction, and the authority to determine the right of succession, but there is no constitutional provision that federal authority may not ordain as a condition to its grant that in a given contingency property shall escheat to a federal governmental agency."
"In some instances a distinction has been drawn between real and personal property--a question not necessary to discuss here. Whatever constitutional rights the state possesses, it may not decree to one party or to one governmental agency property that was obtained by donation from another if there was an agreement, express or implied, that upon certain contingencies it should revert to the donor."
"In determining the main question involved it must be borne in mind that the federal government has the right to grant pensions with reservations, as, for example, by providing for a reversion, as it did in the case before us. [12] A state escheat statute is based upon state sovereignty and is a direction for the devolution of property. It may not prevail over the United States Constitution or over a congressional act which does not deprive one of property interests without due process of law."
[13] "[ ] The United States Government delegated the state government of residence of the deceased veteran to act in its probate capacity to determine intestacy and lack of kindred; it is therefore bound by the procedural methods adopted by such state. California statutes provide that property [provisionally] escheats to the state as of the date of the death of a decedent (Prob. Code, 231) and 'shall be held by the State Treasurer for a period of five years from the date of the decree making such distribution, within which time any person may appear in the superior court for the county of Sacramento and claim the estate or any part thereof.' (Prob. Code, 1027.) In view of the adoption by the federal statute of the state law on the subject of heirship, under the facts of this case the property may not revert to the donor, the United States or its agency, until the five-year statutory period allowed for claimant heirs has elapsed. [ ]"
[14] Appellant, in the hearing before this court, has contended *711 vigorously that immediately upon entry of the decree of distribution it became entitled to receive possession of the property involved and that we should accordingly modify the order of the District Court of Appeal requiring that the money be held by the State Treasurer for the period of five years. We are satisfied, however, that such order is proper. Section 1027 of the Probate Code, above mentioned, which concerns the time at which escheated property shall finally vest in the state, provides that "Executors or administrators, public or otherwise, must apply for distribution of an estate at the time of filing a final account. ... If the court, at the time set for the hearing of the final account, or such time thereafter to which the matter may be continued, does not distribute the entire balance of the estate remaining for distribution to known heirs, devisees or legatees entitled to succeed thereto, it must distribute to the State of California that portion of such estate not distributed to such known heirs, devisees or legatees."
"If the court distributes the estate or any portion thereof to the State of California, and the distributing clause contains words otherwise creating a trust in favor of certain unknown or unidentified persons as a class, such distribution shall vest in the State of California both legal and equitable title to the property so distributed; saving, however, the right of claimants to appear and claim the estate or any portion thereof, as in this section provided." After setting forth various procedural steps thereafter to be followed and specifying that claimants may assert their claims within five years from the date of distribution to the state, the section then concludes: "Any person who does not appear and claim, as herein required, shall be forever barred, and such property, or so much thereof as is not claimed, shall vest absolutely in the State." It thus appears that title to property distributed to the state pursuant to the provisions of section 1027 does not vest absolutely and unconditionally in the state, nor is the escheat complete, until the lapse of the five-year period without the appearance of claimants; theretofore the title held by the state is conditional and subject to divestment by the appearance of legitimate claimants. Thus until the five-year period has elapsed it cannot be finally determined whether the property will go to heirs of the deceased veteran or *712 whether the situation contemplated by the statute under which the federal government is now claiming--i.e., ultimate escheat to the State of California--will take place. As stated in Estate of Williams (1940), 37 Cal.App.2d 181, 186 [99 P. 2d 349], "The very purpose of the escheat statute is to permit heirs who were unknown at the time of distribution to subsequently establish their right to property distributed to the State for lack of 'known heirs'." Until expiration of the period during which such rights may be established it is substantially impossible for the United States to prove the fact which would make the reversionary provision of its statute operative (see State v. Smith (1886), 70 Cal. 153, 156-157 [12 P. 121]; People v. Roach (1888), 76 Cal. 294, 296-297 [18 P. 407]; State v. Miller (1906), 149 Cal. 208 [85 P. 609], which cases, although arising under a different statute, are analogically pertinent) and hence it is proper that the funds here involved be held by the State Treasurer. We have considered the cases of Lyeth v. Hoey (1938), 305 U.S. 188 [59 S.Ct. 155, 83 L.Ed. 119, 119 A.L.R. 410], and United States v. Allegheny County (1944), 322 U.S. 174 [64 S.Ct. 908, 88 L.Ed. 1209], cited by appellant, but find nothing therein which would lead us to a contrary conclusion on this point.
That portion of the decree appealed from which denied unconditionally the claim of the federal government to the residue of the estate of decedent is reversed, and the probate court is directed to amend its decree to provide that such residue shall revert and be paid to the United States of America upon elapse of five years from the date of distribution if the same has not theretofore been claimed by any legal heir pursuant to the laws of California.
Gibson, C.J., Shenk, J., Curtis, J., and Traynor, J., concurred.
CARTER, J.
I dissent. In my opinion the provision in the federal statute (38 U.S.C. 450) providing for the escheat to the United States of funds belonging to the estate of a deceased veteran is in contravention of the Tenth Amendment to the Constitution of the United States and is therefore invalid. Under this amendment all powers not delegated to the United States nor prohibited to the states are reserved to the states. By this reservation the rights of sovereignty are guaranteed to the states by the Constitution. No act of Congress *713 can subtract an attribute of sovereignty from a state. Citation of authority is not necessary to demonstrate that probate jurisdiction over the property of a resident situated within a state is the exercise of the right of a sovereign.
There are many authorities to the effect that the state has the sole and exclusive power over the disposition of property under its jurisdiction. (United States v. Fox 94 U.S. 315 [24 L.Ed. 192]; Sunderland v. United States, 266 U.S. 226 [45 S.Ct. 64, 69 L.Ed. 259]; United States v. Perkins, 163 U.S. 625 [16 S.Ct. 1073, 41 L.Ed. 287]; Beaver v. Short, 300 F. 113.) In the case of Hamilton v. Brown, 161 U.S. 256 [16 S.Ct. 585, 40 L.Ed. 691], the Supreme Court of the United States lays down the rule as follows (at p. 263):
"By the law of England, before the Declaration of Independence, the lands of a man dying intestate and without lawful heirs reverted by escheat to the King as the sovereign lord; but the King's title was not complete without an actual entry upon the land, or judicial proceedings to ascertain the want of heirs and devisees. Attorney General of Ontario v. Mercer, L.R. 8 App.Cas. 767, 772, 2 Bl.Com. 245. The usual form of proceeding for this purpose was by an inquisition or inquest of office before a jury, which was had upon a commission out of the Court of Chancery, but was really a proceeding at common law; and, if it resulted in favor of the King, then, by virtue of ancient statutes, any one claiming title in the lands might, by leave of that court, file a traverse, in the nature of a plea or defence to the King's claim, and not in the nature of an original suit. Lord Somers, in The Bankers' case, 14 Howell's State Trials, 1, 83; Ex parte Webster, 6 Ves. 809; Ex parte Gwydir, 4 Maddock, 281; In re Parry, L.R. 2 Eq. 95; People v. Cutting, 3 Johns. 1; Briggs v. Light-Boats, 11 Allen, 157, 172. The inquest of office was a proceeding in rem; when there was a proper office found for the King, that was notice to all persons who had claims to come in and assert them; and, until so traversed, it was conclusive in the King's favor. Bayley, J., in Doe v. Redfern, 12 East, 96, 103; 16 Vin. Ab. 86, pl. 1."
"In this country, when the title to land fails for want of heirs and devisees, it escheats to the State as part of its common ownership, either by mere operation of law, or upon an inquest of office, according to the law of the particular State. *714 4 Kent Com. 424; 3 Washb. Real Prop. (4th ed.) 47, 48." (Italics supplied.)
(See, also, United States v. De Repentigny, 5 Wall. (72 U.S.) 211 [18 L.Ed. 627].) Even money deposited in the United States Treasury when an escheat occurs escheats to the state where it was originally situated. (United States v. Klein, 303 U.S. 276 [58 S.Ct. 536, 82 L.Ed. 840]; American Loan & Trust Co. v. Grand Rivers Co., 159 F. 775.)
Statutes providing for escheat have been held to be part of the intestate laws of a state. (People v. Richardson, 269 Ill. 275 [109 N.E. 1033]; 29 Harv. L. Rev. 455.)
This being the case it is all the more evident that there can be no federal escheat statute. Laws governing the devolution of property have always been the subject of exclusive state jurisdiction.
There is only one exception to the rule that a state has exclusive control over the devolution of title to property located within its jurisdiction. This exception tends to prove the general rule. The exception is in the case of the property of restricted Indians whose property is held in trust for them by the government. In the case of such property the courts have held that:
"Restricted Indian lands do not become subject to the operation of the laws of the state until all restrictions from the right of the allottee to alienate have been removed and relinquished by the Congress." (Beaver v. Short, 300 F. 113.)
In the instant case, the veteran is not to be treated as a restricted Indian. There are no restrictions on his right to alienate his property and the government does not hold it in trust for him.
The fact that the money in the estate was derived from the United States does not change the general rule, that the state escheat statutes control property situated within the state. (Etheridge v. Doe, 18 Ala. 565.)
It has been held by the Supreme Court of the United States and by the courts of several states that when money is paid to a veteran pursuant to a pension, title vests in the recipient and the United States has no right or interest in said money. (Spicer v. Smith, 288 U.S. 430 [53 S.Ct. 415, 77 L.Ed. 875, 84 A.L.R. 1525]; Carrier v. Bryant, 306 U.S. 545 [59 S.Ct. 707, 83 L.Ed. 976]; United States Fidelity & Guaranty Co. v. Montgomery, 226 Ala. 298 [146 So. 528]; State ex *715 rel. Smith v. Board of Commissioners, 132 Kan. 233 [294 P. 915] (certiorari denied, 283 U.S. 855 [51 S.Ct. 648, 75 L.Ed. 1426].)
In Spicer v. Smith, supra, the Supreme Court of the United States speaking through Mr. Justice Butler stated that the very escheat provision of the federal statute was evidence that title to the money had passed to the veteran.
The fact that the money was paid to a guardian does not alter the situation. The intervention of a guardian does not leave the pension funds in the hands of the government but, when paid to the guardian, the title and possession have both passed from the government. (State ex rel. Smith v. Board of Commissioners, 132 Kan. 233 [294 P. 915] (certiorari denied, 283 U.S. 855 [51 S.Ct. 648, 75 L.Ed. 1462]).)
This rule is best expressed by the Supreme Judicial Court of Massachusetts, in the case of Kellogg v. Waite, 12 Allen (Mass.) 529. The pertinent portion of this decision reads as follows:
"It is undoubtedly competent for the United States to attach such conditions as they may see fit to the grant of a pension, and to fix by law the time and manner in which the property shall finally pass to the pensioner. But when this money was paid to the agent of the principal defendant, by her consent, and in conformity with the existing provisions of law, it became her property, and created a debt from the agent to her, over which the United States government had no longer any control or jurisdiction. It was no longer, in the language of the statute of 1866, 'a sum of money due or to become due to any pensioner under the laws of the United States.' It had been paid, and was received by her in the manner she had chosen. It could not be recalled by the government, nor could its disposal be qualified or in any manner limited or abridged." (Italics supplied.)
The pension money in the estate of the deceased had been his money. He had both title and possession and the money itself was within the jurisdiction of the California courts and subject to its statutes.
In support of its conclusion that the federal escheat statute will prevail over the state escheat statute, the majority opinion relies in part on the case of Tax Commission of Ohio v. Rife, 119 Ohio St. 83 [162 N.E. 390]. This case involved the proceeds of a war risk insurance policy. Under the law and the *716 contract, payments under the contract of insurance were not subject to inheritance taxes. The court held that the beneficiaries named in the policy took under the contract and not by reason of the statutes of descent and distribution, and therefore the inheritance tax did not attach. In the instant case, however, the State of California is taking under its statutes of distribution and the United States is attempting to take the funds involved not by reason of any contractual relationship between the deceased and the government, or by virtue of any trust impressed upon the money, but by virtue of a statute of distribution which the Congress was powerless to enact. The Ohio case points out this provision in the following language:
"This right to take this property is by virtue of a contract between the United States government and the soldier, and does not arise by reason of the statutes of descent and distribution of this state, even though the government has seen fit to distribute such fund through the agency of an administrator acting under the statutes of descent and distribution of the State of Ohio." (Tax Commission of Ohio v. Rife, supra.)
Reliance is also placed upon the case of Abbott v. Morgenthau, 93 F.2d 242. (Certiorari denied 303 U.S. 638 [58 S.Ct. 526, 82 L.Ed. 1098].) This is another case involving a contract between the government and the veteran. The veteran entered a soldiers' home. Upon entering the home the veteran agreed that " 'The balance due the pensioner at the date of his death shall be disposed of as directed by Act of Congress approved July 1, 1902'." The statute was amended in 1910. The court held that the 1910 amendment did not affect the contract and that as the claimant was not entitled to take under the 1902 statute, he balance of the pension money on deposit with the home should be paid into the federal treasury in accordance with the 1902 statute and the contract. There is dicta in the cited case to the effect that there is "no vested legal right to a pension at all, for, as has been said time and time again, pensions are bounties which Congress has the right to give, to withhold, to distribute, or to recall, at its discretion." I am disposed to agree with this dicta. "To recall" a pension means to repeal the act so that the pension does not continue. I know of no case in which, in the absence of fraud, an attempt is made to recover title *717 to pension money once the pensioner has taken title and possession of the same.
The statute relied on by appellant in the instant case does not attempt to distribute or recall the pension. What it does is to attempt to engraft an escheat statute on the substantive law of the State of California contrary to the state law and in violation of the Tenth Amendment to the Constitution.
Beaver v. Short, 300 F. 113, is likewise relied upon by the majority opinion. This case provides the only exception to the rule that a state has exclusive control of the devolution of title to property located within its jurisdiction. This exception tends to prove the general rule. The cited case concerned the property of restricted Indians whose property was held in trust for them by the government. In case of such property the court held that:
"Restricted Indian lands do not become subject to the operation of the laws of the state until all restrictions from the right of the allottee to alienate have been removed and relinquished by the Congress." (Beaver v. Short, supra.)
In the instant case the veteran is not to be treated as a restricted Indian. The Congress has impressed no restrictions on his right to alienate his pension award and the government does not hold the same in trust for him. He can do as he pleases with the money--spend it, give it away, or throw it away.
The fact that the money in the estate was derived from the United States does not change the general rule, that the state escheat statutes control property situated within the state. (Ethridge v. Doe, 18 Ala. 565.)
The majority opinion, hovewer, relies principally on the case of United States v. Stevens (1938), 302 U.S. 623 [58 S.Ct. 388, 82 L.Ed. 484].
The cited case is analogous to the case at bar. The rationale of the decision, however, supports the position of the respondents in this case. In the Stevens case the veteran died an inmate of a federal veterans' home. By statute (24 U.S.C. 136) and as a prerequisite to admission to the home, inmates were required to turn over to the home all property which the inmate did not dispose of by will, and upon death the property was to vest in the board of managers of the home. The inmates were required to execute a written contract *718 which embodied the statutory requirements. In the Stevens case such a contract was executed. Upon the death of a veteran inmate the United States sued his administratrix for the proceeds of the estate. The Circuit Court of Appeal (89 F.2d 151) held that the statute and contract were in violation of the Tenth Amendment to the Constitution as an interference with the reserved rights of the state.
The Supreme Court in reversing the Circuit Court of Appeal stated:
"This contract, however, is valid under the applicable state law. ..."
"During the life of the veteran, his property was his own to dispose of as he desired; ..."
"In passing the Act of June, 1910, Congress merely directed the terms and conditions under which veterans, consistently with state law, can obtain admittance to Homes built, maintained and operated by the government for the benefit of veterans. Homes for the aged, needy, or infirm, in return for the benefits bestowed by them, generally receive some benefit from any property or estates of their members." (Italics supplied.) (United States v. Stevens, supra.)
The decision just cited is based upon the proposition that the veteran's property is his own, to be dealt with as he sees fit. If he chooses to become an inmate of a veteran's home, he does so by contract and the home succeeds to the veteran's property by virtue of a contract with the veteran made and enforced in acordance with the laws of the state.
All of the important cases relied upon by the majority opinion in arriving at its determination are cases based upon contracts between the veteran and the government, either insurance contracts or domiciliary contracts. In each of these cases the government took, not by virtue of an escheat law, but by reason of a contract with the veteran.
In the instant case the government attempts to take under an escheat statute. If the government is entitled to the money in question under a contract, it would have established its right in a plenary action by the filing of a claim and the institution of a suit. However, recognizing that its right is not based upon contract, it appeared in the probate proceeding and asked for distribution of the estate under the federal escheat law.
In my opinion the federal government cannot prevail because *719 escheat statutes are part of the laws providing for the devolution of title to property located within the jurisdiction of a state. Such laws are part of the sovereign powers of a state, reserved to the state under the Tenth Amendment to the Constitution of the United States.
In my opinion the decree should be affirmed.
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81 F.3d 157
Cummingsv.Southland*
NO. 95-10523
United States Court of Appeals,Fifth Circuit.
Mar 01, 1996
Appeal From: N.D.Tex., No. 3:91-CV-2055
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
Local Rule 47.6 case.
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88 Cal.App.2d 941 (1948)
JOHN J. CONNELL, Respondent,
v.
HENRY CLARK et al., Appellants.
Civ. No. 16479.
California Court of Appeals. Second Dist., Div. Two.
Dec. 2, 1948.
William K. Young for Appellant Clark.
Syril S. Tipton and Patrick H. Ford for Appellant Colonial Insurance Company.
Marvin Wellins and Don L. Gilman for Respondent.
WILSON, J.
This appeal is from a judgment awarding plaintiff damages for an assault and battery which he suffered *944 at the hands of the driver of a taxicab operated by defendant Clark, aided by a sailor who was riding in the front seat with the driver.
As grounds for reversal defendants contend (1) that the complaint fails to state a cause of action; (2) that the evidence is insufficient to support the verdict; (3) that certain of the jury instructions were prejudicially erroneous; defendant Colonial Insurance Company asserts an additional defense in its behalf that it is not liable by reason of the limitations in its insurance policy.
1. The Complaint. Defendants maintain that the complaint fails to state a cause of action for assault and battery because it does not allege (1) that defendants had any direct connection with the assault by the taxi driver and the sailor, (2) that the taxi driver or the sailor committed the assault as agents, servants or employees of defendant Clark or (3) that the driver was at all times mentioned in the complaint acting within the scope or course of his employment.
There is no merit in defendants' contentions. It is admitted that at the time of the occurrence involved in this action defendant Henry Clark was a licensed taxicab operator and was the owner of and doing business as the Garden Cab Company. The complaint alleges that plaintiff telephoned the place of business of the Garden Cab Company and ordered a cab; that the man who answered the telephone said a cab would be sent; that a few minutes thereafter a cab bearing the words "Garden Cab Company" arrived at the place to which the cab had been ordered; that plaintiff entered the cab and ordered the driver to take him to plaintiff's residence; that plaintiff was accepted as a passenger for hire by the driver acting within the course and scope of his employment as the agent, servant or employee of defendant Clark; that while riding as a passenger for hire and during the course of the ride plaintiff was assaulted and beaten by the driver and a sailor who accompanied the driver and that plaintiff suffered damages.
It is not essential that plaintiff allege that defendants had any direct connection with the assault or that the driver and the sailor committed the assault as agents of defendants. [1] If the assault takes place in the course of the agent's employment, the principal is liable (Carr v. Wm. C. Crowell Co., 28 Cal.2d 652, 654-5 [171 P.2d 5]; Hiroshima v. Pacific Gas & Elec. Co., 18 Cal.App.2d 24, 31-32 [63 P.2d 340]) and it is immaterial whether the assault was authorized by the *945 defendants if it was committed by the driver in the course of his employment. (Carr v. Wm. C. Crowell Co., supra; Ruppe v. City of Los Angeles, 186 Cal. 400, 402 [199 P. 496]; Stansell v. Safeway Stores, Inc., 44 Cal.App.2d 822, 823 [113 P.2d 264].)
[2] The allegation that plaintiff was accepted as a passenger for hire by the driver acting within the course and scope of his employment as the agent, servant or employee of the defendant Clark is sufficient without alleging that at the time of the injuries the driver and the sailor were acting for defendant Clark, the taxi owner.
[3] The complaint also sufficiently states a cause of action against defendant Colonial Insurance Company since it alleges that the policy of insurance issued by the company and insuring defendant Clark against loss or damage was issued pursuant to the provisions of an ordinance of the county of Los Angeles which provides in part that "The undertaking required before a taxicab operator's license can be issued shall be conditioned that the taxicab operator shall pay all damages to person or property, for the payment of which he may become liable arising out of the conduct of the business of taxicab operator, and that any person having such a cause of action against the principal may join the surety as a party defendant or in his own name sue separately the surety on such undertaking." [4] An insurance carrier may be joined as a party defendant whenever the policy itself, or the municipal ordinance in compliance with which it is issued, provides that the policy shall inure to the benefit of the public. (Grier v. Ferrant, 62 Cal.App.2d 306, 314 [144 P.2d 631]; Milliron v. Dittman, 180 Cal. 443, 445, 446 [181 P. 779].)
2. Sufficiency of the Evidence. Defendants contend that the evidence is insufficient to support the verdict; that there was no substantial evidence to identify the assailants or to establish that those who beat plaintiff were acting in the course of employment by defendants; that there was no identification by plaintiff of the cab driver except by his voice.
[5] Plaintiff testified that in the evening on which the alleged assault occurred he called at Eurick's service station, which is located at the corner of Eagle and Atlantic Boulevards in Montebello, in connection with repairs on his car; that about 8:15 p.m. he called the Garden Cab Company from a public telephone in the service station and requested a cab; that the first words spoken by the person answering the *946 telephone were "Garden Cab Company" and that plaintiff was informed they would have a cab there in a very few minutes; that about five minutes later a cab with the words "Garden Cab Company" printed on the doors drove up and the driver asked plaintiff if he had called for a cab; that plaintiff replied that he had and gave the driver his home address and directions to that address; that a sailor was seated in the front of the cab with the driver; that the driver passed by the street leading to plaintiff's house and plaintiff called attention to the fact whereupon the driver slowed down and asked if plaintiff was trying to get a free ride; that plaintiff replied he was not trying to get a free ride; that he reached in his pocket, took out his money and showed it to the driver; that the driver drove on and finally stopped the cab in a neighborhood where there were no buildings or street lights; that the driver got out of the cab, opened the rear right door and ordered plaintiff to get out and then reached in the cab and dragged him out; that he struck plaintiff on the jaw, knocked out his artificial teeth, struck him across the nose, on the eyes and on the back of the head; that he kicked him in the back and stomach and knocked him unconscious; that the sailor who had been seated with the driver joined in the assault and battery; that when plaintiff regained consciousness the taxi, the sailor and the driver were gone, together with plaintiff's money in the sum of $65. Plaintiff identified Milton Bryant as the driver of the cab solely by his voice.
Rex McCormick, the dispatcher for the Garden Cab Company, in response to a question whether he received a call from any area at or near Atlantic and Eagle Boulevards, testified he received a call from Roberts Ranch Market at about 8 or 8:15 on the night in question; that he gave the call slip to driver Milton Bryant, who about 20 minutes later returned the slip and stated he could not pick up the person at Roberts Market because he did not have room for him; that he did not give the call to any other driver.
Bryant testified that he was on duty on that night from 6 p. m. to 6 a. m. the following day; that he had a pickup ticket for Roberts Market but that he had a full load and therefore drove back to the office and handed the ticket to the dispatcher and told him he had a load and could not make the pickup at Roberts Market. Bryant further testified that he never had a friend, a sailor, riding with him; that Roberts Market is about half a block from Eurick's; that he did not pick up or have a man in his car between 8 and 8:30 *947 of that evening; that he had never carried plaintiff in his cab; that he returned to the cab office about 8:15 after delivering the five passengers he had had in his cab and at the time when he returned to tell the dispatcher he could not make the pickup at Roberts Market.
The evidence, while conflicting, is sufficient to support the verdict. [6] The jury having chosen to believe the evidence of plaintiff and his witnesses and to disbelieve that of defendants and their witnesses, their determination will not be disturbed on appeal. Where there is a conflict in the evidence the verdict cannot be disturbed as being contrary to the evidence. (Caraveo v. Pickwick Stages System, 113 Cal.App. 443, 448 [298 P. 516]; Harrington v. Freddi, 133 Cal.App. 96, 98 [23 P.2d 525].)
[7] With respect to the identification of Bryant as the driver of the cab being solely by his voice, the law regards the sense of hearing as reliable as that of any other of the five senses. (Bowlin v. Commonwealth, 195 Ky. 600 [242 S.W. 604, 607].) [8] It is universally recognized that the voice, as well as the physical appearance of a person, is a means by which identification is made possible, there being no more similarity in the voices of different people than there is in their physical appearance. A definite impression of the one is made upon the mind through the medium of the sense of hearing, while the impression of the other is made on the mind through the sense of sight. Therefore testimony relating to the identity of the voice is competent, its probative value being a question of fact for the jury. (Bland v. State, 129 Tex.Cr. 553 [89 S.W.2d 996, 997].) [9] Voice is a competent means of identification and a person may be identified by such means alone. (State v. Karas, 43 Utah 506 [136 P. 788, 790].)
3. Alleged Errors in Instructions. Defendants maintain that the following instructions were erroneous: (1) "It is established that Milton Bryant, who was operating the cab, involved in the accident in question, was acting as agent for the defendant Henry Clark, and within the scope of his authority, at the time of the events out of which the incident occurred. Therefore, the acts and omissions of that agent were, in contemplation of law, the acts and omissions, respectively, of his principal, the defendant Henry Clark." (2) "You are therefore instructed that if you find the facts to be that the defendant, Henry Clark, doing business as Garden Cab Company and receiving calls for cabs at the *948 main office of that company and dispatching cabs of characteristic colors and bearing the words clearly printed thereon, 'Garden Cab Company,' so conducted himself that third persons, members of the general public, including plaintiff, were reasonably led to believe that the cabs were the cabs of the Garden Cab Company, and that the drivers were the employees of the Garden Cab Company, and if you further find that the plaintiff so believed and if you find that the plaintiff became a passenger for hire in a cab of which the Garden Cab Company was the registered owner, in reliance on such belief, then and in that event you are instructed that the defendants herein are liable."
[10] The first instruction was erroneous and prejudicial since, by instructing the jury that it was established that Bryant was operating the cab in question, the court withdrew the issue of agency from the jury and this was one of the questions which they were required to decide. Plaintiff maintains that the instruction was consistent with the undisputed testimony that Bryant was employed as a cab driver by defendant Clark on the night in question and that he worked from 6 p. m. until 6 a. m. the following day as a cab driver in one of the cabs of defendant Clark. However, the evidence is in conflict as to whether Bryant operated the cab in which plaintiff was a passenger. Bryant denied he was operating the cab, denied he had ever carried plaintiff as a passenger, denied he had a sailor riding with him and denied he had assaulted plaintiff. Whether Bryant (1) was the driver of the cab involved in the incident which is the subject of this action, (2) was acting as agent for the defendant Clark and (3) within the scope of his employment were questions for the jury to decide. The instruction (1) that it was established that Bryant was operating the cab, (2) that he was acting as agent for defendant Henry Clark and (3) within the scope of his authority at the time of the events out of which the incident occurred took those issues from their consideration. [11] Instructions which assume facts that are controverted in the case constitute reversible error. (Scandalis v. Jenny, 132 Cal.App. 307, 314 [22 P.2d 545]; Cahoon v. Marshall, 25 Cal. 197, 202.) Instructions that assume as facts matters which are in issue and as to which there is a conflict in evidence are erroneous. (Gibson v. Kennedy Extension Gold Mining Co., 172 Cal. 294, 304 [156 P. 56]; Clarke v. Volpa Brothers, 51 Cal.App.2d 173, 179 [124 P.2d 377].) *949
[12] Plaintiff maintains that any error in the instruction is cured by the succeeding instructions since in viewing them together it is clear that the determination of who committed the assault was left to the jury as well as the status of the person committing the assault and whether or not plaintiff was a passenger for hire in one of the cabs owned by defendant Clark. These instructions read as follows: (A) "You cannot guess or speculate as to the identity of the cab driver or the identity of the cab involved in this incident, and the burden is on the plaintiff to establish by a preponderance of the evidence that the driver and the cab involved were at the time of the alleged assault in the course of the operation of the taxicab business of Henry Clark, doing business as Garden Cab Company." (B) "You are instructed that you cannot guess or speculate as to how, in what manner or by whom the plaintiff was assaulted, but must be guided in your determination by the evidence before you and the mere fact that the plaintiff received some injuries if any that you may find were sustained in an assault is in itself no evidence that the assault was committed by an employee of Henry Clark, doing business as the Garden Cab Company." (C) "If in these instructions, any rule, direction or idea be stated in varying ways, no emphasis thereon is intended by me, and none must be inferred by you. For that reason, you are not to single out any certain sentence, or any individual point or instruction, and ignore the others, but you are to consider all the instructions and as a whole, and to regard each in the light of all the others."
The instructions (A), (B) and (C) do not cure the error. While, as contended by plaintiff, instructions must be considered in their entirety, each in connection with all the others (Shapiro v. Equitable Life Assur. Soc., 76 Cal.App.2d 75, 95, 96 [172 P.2d 725]), instructions (A) and (B) are in direct conflict with instruction (1). If the jury followed the one they could not then follow the other.
[13] Defendants contend that the second instruction objected to is wholly misleading and they particularly complain of the closing sentence which in effect tells the jury that if one defendant is liable, both defendants are liable. The instruction is not misleading insofar as defendant Clark is concerned when read with those immediately preceding it, to which there is no objection on the part of defendants, since in those instructions the court instructed the jury on the law of ostensible agency and the liability of a principal for the wrongful acts of an ostensible agent. However, since defendant *950 Colonial Insurance Company alleged and submitted proof of defenses which were not available to defendant Clark, the instruction should have been restricted to him and the inclusion therein of both defendants was error. The erroneous instructions require a reversal of the judgment.
4. Liability of defendant Colonial Insurance Company. Defendant insurance company contends that even though it be determined that defendant Clark is liable, it is free from liability both under the ordinance pursuant to which its policy was issued and under the policy itself which, it maintains, is limited. In view of the fact that this case will no doubt be retried, it is proper that this issue be decided.
Section 121 of the ordinance in question reads as follows: "The policy of insurance required before a taxicab operator's license can be issued shall insure the public against any loss or damage that may result to any person or property from the operation of any taxicab used by the taxicab operator in his business as such ..." [14] The provisions of the ordinance become a part of the insurance policy to the same extent as though the ordinance were incorporated in the policy. (Malachowski v. Varro, 76 Cal.App. 207, 213 [244 P. 936].) [15] The contention of the insurance company that the ordinance has reference only to injuries resulting from traffic accidents is fallacious. While it may be true that the most common loss or damage resulting from the operation of a taxicab is that occasioned by traffic accidents, the ordinance specifically requires insurance against any loss or damage that may result from the operation of any taxicab. That the damage in question resulted from the operation of a taxicab is too patent to be susceptible to argument. [16] Plaintiff was a passenger for hire and did not cease to be one when he was dragged out of the cab by the driver.
The insurance company maintains that its policy is limited to negligent and accidental injuries and that injuries which are incurred after the passenger has alighted as well as injuries caused by riots are specifically excluded. Since the evidence shows that the only reason plaintiff had alighted was because the driver had forcibly taken him out of the cab, and this obviously for the convenience of the driver, this contention is not worthy of serious consideration.
[17] The theory advanced by defendant insurance company that the assault and battery by the joint actions of the driver and the sailor constituted a riot is both novel and quixotic. It is not persuasive. The insurance company contends: *951 "In this state, a riot is defined to include any joint action by two or more persons, without authority of law, using 'force or violence' " and cites Penal Code, section 404. That section reads as follows: "Any use of force or violence, disturbing the public peace, or any threat to use such force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law, is a riot." It is not surprising, as stated by the insurance company, that "no exact precedent as to the term 'riot' with reference to an analogous factual situation has been found." To hold that an assault and battery by two persons in a lonely spot where there were no buildings nor even a stray passerby could possibly be such a use of force and violence disturbing the public peace as would constitute a riot would be bordering on the fantastic.
Judgment reversed.
Moore, P. J., and McComb, J., concurred.
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862 So.2d 446 (2003)
Marolyn W. BRYANT, Plaintiff-Appellee,
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION and Robertnique W. Williams, Defendants-Appellants.
No. 37,926-CA.
Court of Appeal of Louisiana, Second Circuit.
December 10, 2003.
Nelson, Zentner, Sartor & Snellings by Thomas G. Zentner, Jr., Monroe, for Appellants.
Street & Street by C. Daniel Street, Monroe, for Appellee.
Before BROWN, CARAWAY, and MOORE, JJ.
BROWN, C.J.
Plaintiff, Marolyn W. Bryant, owned a 1990 Ford Mustang with insurance coverage purchased from Direct General Insurance Company ("DGIC"). The policy excluded from coverage her 17-year-old son, Justin Bryant, who was a resident of her household. On October 26, 2002, Justin was driving the Mustang on Highway 167 in Jonesboro, Louisiana, when he was hit by defendant, Robertnique Williams, who ran a red light. Ms. Williams was insured by defendant-appellant, United Services Automobile Association ("USAA").
Plaintiff filed a petition for damages, alleging that the sole and legal cause of the accident was Ms. Williams' negligence, that the value of her vehicle was $5,000, and that it was rendered a total loss. Defendants answered plaintiff's petition by alleging that La. R.S. 32:866, the "no pay/no play" law, precluded payment because plaintiff's son was expressly excluded from plaintiff's insurance policy issued by DGIC. Thereafter, the trial judge granted plaintiff's motion for summary judgment, holding that defendants cannot deny coverage on the basis of the "no pay, no play" law, as plaintiff's vehicle was insured for purposes of La. R.S. 32:866. We affirm.
Discussion
A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, *447 show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B).
The interpretation of a statute is a question of law that may be decided by summary judgment. In reviewing questions of law, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Cohort Energy Co. v. Caddo-Bossier Parishes Port Commission, 37,449 (La.App.2d Cir.08/20/03), 852 So.2d 1174.
La. R.S. 32:866, the so-called "no pay, no play" provision, provides in pertinent part:
There shall be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security. La. R.S. 32:866(A)(1). (Emphasis added).
The "no pay, no play" provision is clear and unambiguous in delineating when the bar to the first $10,000 of bodily injury or property damage occurs. Marolyn Bryant, as owner of the automobile involved in the motor vehicle accident, would be barred from recovering the first $10,000 of property damage if she failed to own or maintain compulsory motor vehicle liability security. As evidenced by the record, plaintiff had a motor vehicle liability policy, issued by DGIC, in full force and effect at the time of the accident. Defendants, however, argue that at the time of the accident the vehicle owned by Ms. Bryant was in effect "uninsured" because it was being operated by Justin, a driver specifically excluded from her policy.
In A.K. Durnin Chrysler-Plymouth, Inc. v. Jones, 01-0810 (La.App. 1st Cir.05/10/02), 818 So.2d 867, the First Circuit held that an exclusion of a spouse as an insured under an owner's automobile liability policy does not prevent an owner from recovering the first $10,000 of property damage to that owner's vehicle when damaged in an accident in which the excluded spouse was driving the vehicle. In other words, since the owner was permitted by statute to exclude his spouse from coverage, the "no pay, no play" statute was inapplicable.
However, in Lantier v. State Farm Mutual Automobile Insurance Company, 02-0301 (La.App. 3d Cir.10/02/02), 827 So.2d 597, writ denied, 02-2628 (La.12/13/02), 831 So.2d 991, the Third Circuit held that a vehicle being driven by a person who was listed as an excluded driver under the vehicle owner's insurance policy was an uninsured vehicle for the purposes of La. R.S. 32:866, and thus, the vehicle owner was barred from recovering the first $10,000 of property damage from the insurer of the negligent motorist.
In obtaining a motor vehicle liability policy, La. R.S. 32:861 and La. R.S. 32:900 specifically allow an insured to exclude a child who is a resident of the same household as the named insured. The fact that plaintiff specifically excluded her son from her policy does not change the fact that she obtained a liability policy in conformity with La. R.S. 32:900, nor does it alter her compliance with the compulsory motor vehicle liability security law.
We feel that the A.K. Durnin decision is the more accurate resolution of the issue presented. Therefore, since plaintiff did in fact maintain an automobile insurance policy on the vehicle at the time of this accident she is entitled to recover the *448 value of the vehicle without any deduction under the "no pay/no play" law.
Conclusion
For the foregoing reasons, we affirm the judgment of the trial court; all costs of this appeal are to be borne by appellants, United Services Automobile Association and Robertnique W. Williams.
AFFIRMED.
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Opinion issued August 3, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00260-CR
———————————
SAMMIE CASTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Case No. 1319352
OPINION
A jury convicted appellant, Sammie Caston, of the first-degree felony offense
of continuous sexual abuse of a child and assessed his punishment at confinement
for life.1 In two issues, appellant contends that (1) Code of Criminal Procedure
article 38.37, section 2(b), which permits the introduction of evidence of a
defendant’s extraneous bad acts involving children other than the complainant in the
charged case, violates due process and is unconstitutional, and (2) the State failed to
present sufficient evidence that he was at least seventeen years old at the time of the
charged offense.
We affirm.
Background
A. Factual Background
L.J. first met appellant when she was twelve or thirteen and appellant was
around fifteen, and they started dating. They drifted apart, and L.J. had four children
with another man, including the complainant T.H., who was born in 2003. L.J. and
appellant reconnected in 2010, and they started dating again. Appellant moved in
with L.J. and her children, and they lived in two different apartments during the time
they were dating—the first on North Houston Rosslyn Road and the second on West
Sunforest. L.J. testified that they moved to the West Sunforest address in December
2010. The apartment on West Sunforest had two bedrooms: L.J.’s children shared
the master bedroom, and L.J. and appellant shared the smaller bedroom. The
1
See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2016).
2
apartment had one bathroom, which had entrances from the hall and the master
bedroom.
On the evening of March 6, 2011, L.J. was sitting at her computer while one
of her sons and T.H., who was eight years old at the time, were asleep in their
bedroom. Appellant announced that he was going to use the restroom. When he had
not returned to the living room after about forty-five minutes, L.J. began to feel as
though something was not right and she got up to investigate. Standing in the
hallway, L.J. could see the shadow of feet moving from the children’s bedroom into
the bathroom. L.J. knocked on the bathroom door and called appellant’s name, but
he did not answer. L.J. knelt down and looked under the bathroom door, and she
could see appellant’s slippers sitting perfectly still in front of the toilet. L.J. started
banging on the door, and when appellant finally answered, he was sitting on the
toilet. L.J. questioned him about why he did not answer when she called his name
and told him that she had seen him walking from the children’s bedroom into the
bathroom. Appellant told L.J. that he had been in the bedroom because T.H. had
had a bad dream. L.J. did not believe appellant, but she decided to wait and talk to
T.H. before she accused him of anything.
The next morning, L.J. drove T.H. and her son to school. Her son got out of
the car and headed into the building, but when T.H. started to climb out, L.J. asked
her to stay inside. L.J. drove around the corner, parked her car, and told T.H. that
3
she felt uncomfortable about some things that had happened the previous night. L.J.
asked T.H. if appellant had ever touched her in an inappropriate way, and T.H.
started crying and said that appellant had been inappropriately touching her. T.H.
told L.J. that appellant had taken her into the closet of the master bedroom, undressed
her, and touched her vagina with his fingers and his mouth. T.H. also said that
appellant had told her that “he would have to wait until she [got] a little bit older
because she was too tight.”
L.J. contacted the police that day, and she also took T.H. to be examined at
Texas Children’s Hospital. The trial court admitted a copy of T.H.’s medical
records. These records reflected that appellant lived with L.J. and T.H., that he was
born in 1977, and that he was L.J.’s “live-in boyfriend of 6 months.” T.H. reported
to medical personnel that on the night before, appellant had “touched her private
with his hand and tried to get on top of her.” She also reported that appellant had
“forced her to perform oral sex on him and tried to put his private in her private on
multiple occasions[,] and it ha[d] been going on since he moved in with [her]
mother.”
T.H. was thirteen years old at the time of appellant’s trial. T.H. testified that
appellant abused her on more than one occasion, and she described three specific
instances. She testified that, on one occasion, appellant woke her up, took her into
her closet, and started touching her vagina with his fingers. Appellant told her that
4
she “was too tight down there, so he [had] to wait until [she got] older.” On another
occasion, T.H. was in her mother’s bedroom looking for a phone charger when she
found a picture of a woman performing oral sex on a man. When appellant came
into the room, T.H. asked him what the people in the picture were doing, and he said,
“I’ll show you.” Appellant then forced T.H. to perform oral sex on him. T.H. also
testified that when her family was living in a different apartment, appellant came
into the bedroom where she was sleeping with two of her siblings and attempted to
have anal intercourse with her. T.H. could not provide specific dates for when each
of these acts occurred, nor could she state how much time passed between each act,
other than to say that they occurred on different days and they started when appellant
moved in with her family.
B. Admission of Extraneous Sexual Offense
Pursuant to Code of Criminal Procedure article 38.37, section 2(b), the State
sought to introduce evidence during the guilt-innocence phase that appellant had also
sexually abused his daughter, S.C., who was twelve years old at the time of
appellant’s trial. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b) (West Supp.
2016). Article 38.37, section 2(b) provides that, in trials for certain offenses
including continuous sexual abuse of a child, notwithstanding Rule of Evidence 404,
evidence that the defendant has committed a separate sexual offense against a child
other than the complainant in the charged case may be admitted “for any bearing the
5
evidence has on relevant matters, including the character of the defendant and acts
performed in conformity with the character of the defendant.” Id. Defense counsel
objected to any evidence admitted under this statute, arguing that the statute violated
due process and due course of law guarantees and that any testimony concerning an
extraneous offense against S.C. also violated Rule of Evidence 403.
As required by the statute, the trial court held a hearing to determine whether
the evidence likely to be admitted at trial concerning this separate offense against
S.C. would be adequate to support a jury finding that the defendant committed the
separate offense beyond a reasonable doubt. See id. art. 38.37, § 2-a. The trial court
heard testimony from S.C. and her mother, N.M., and made a finding on the record
that testimony concerning appellant’s alleged abuse of S.C. was admissible under
article 38.37, section 2.
Before the jury, N.M. testified that she started dating appellant in 1997 or
1998 and they had two children together, including twelve-year-old S.C. She stated
that appellant was born on June 13, 1977, and that he was around twenty-five years
old when S.C. was born in 2003. N.M. testified that appellant’s defense counsel
contacted her in 2013—two years after appellant was arrested for abusing T.H.—
and asked if S.C. would testify as a witness in support of appellant. N.M. discussed
this with S.C., who informed her that she could not testify in appellant’s favor
because he “had raped her, too.”
6
S.C. testified that appellant touched her inappropriately on more than one
occasion and that the abuse occurred when she was between the ages of seven and
ten. S.C. testified that, late at night, when her mother and younger brother were
asleep in another bed in the room, appellant would climb in bed with her and touch
her vagina, both over and under her clothes. She remembered that appellant did this
on four occasions over different periods of time. S.C. stated that appellant abused
her on other occasions, but she could not remember all the times that it happened.
She did not tell anyone about what appellant had done to her until her mother asked
her if she wanted to testify in favor of appellant in the charged case.
Ultimately, the jury found appellant guilty of committing continuous sexual
abuse of T.H., and it assessed his punishment at confinement for life. This appeal
followed.
Sufficiency of Evidence
In his second issue, appellant contends that the State failed to present
sufficient evidence that he was at least seventeen years old at the time of the charged
offense, as required by statute.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
7
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Morgan v.
State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016). The jurors are the exclusive
judges of the facts and the weight to be given to the testimony. Bartlett v. State, 270
S.W.3d 147, 150 (Tex. Crim. App. 2008). We may not re-evaluate the weight and
credibility of the evidence or substitute our judgment for that of the fact finder.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost
complete deference to the jury’s credibility determinations. See Lancon v. State, 253
S.W.3d 699, 705 (Tex. Crim. App. 2008).
Circumstantial evidence is as probative as direct evidence in establishing
guilt, and circumstantial evidence alone can be sufficient to establish guilt. Sorrells
v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007)). “Each fact need not point directly and
independently to the guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.” Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. Continuous Sexual Abuse of Child
To establish that appellant committed the offense of continuous sexual abuse
of a child, the State was required to prove that appellant, during a period of time
thirty or more days in duration, committed at least two acts of sexual abuse against
T.H., a child younger than fourteen years of age, while he was at least seventeen
8
years of age at the time of each of the acts. See TEX. PENAL CODE ANN. § 21.02(b)
(West Supp. 2016). An “act of sexual abuse” is defined as including an act that
constitutes the offense of aggravated sexual assault and an act that constitutes the
offense of indecency with a child. See id. § 21.02(c)(2), (4). Acts that constitute the
offense of aggravated sexual assault include intentionally or knowingly causing the
penetration of the anus or sexual organ of a child by any means and intentionally or
knowingly causing the penetration of a child’s mouth by the actor’s sexual organ.
See id. § 22.021(a)(1)(B)(i)–(ii) (West Supp. 2016). A person commits the offense
of indecency with a child if the person engages in sexual contact with the child,
which is defined as including “any touching . . . of the anus, breast, or any part of
the genitals of a child” if committed with the intent to arouse or gratify the sexual
desire of any person. See id. § 21.11(a), (c)(1) (West 2011).
On appeal, appellant challenges the sufficiency of the evidence with regard to
one element of the offense: whether he was at least seventeen years of age at the
time of each of the acts of sexual abuse committed against T.H.
N.M., who had two children with appellant, including twelve-year-old S.C.,
testified that she met and started dating appellant in 1997 or 1998 and that they were
together for seven or eight years. She also testified that appellant’s birthdate was
June 13, 1977. She agreed with the prosecutor that their daughter S.C. was born in
2003 and that appellant would have been around twenty-five at that time.
9
L.J. testified that she first met appellant when they were teenagers, and she
estimated that she was thirteen and appellant was fifteen when they met. She stated
that they were in a relationship when they were teenagers, but they drifted apart and
it was not “until [their] adulthood life that [they] met back up.” L.J. testified that
appellant moved in with her when they began dating again sometime in 2010, that
they first lived in an apartment on North Houston Rosslyn Road, and that they moved
into a different apartment on West Sunforest in December 2010. She stated they
were living on West Sunforest when T.H. made her outcry in March 2011.
The trial court admitted T.H.’s hospital records from Texas Children’s
Hospital. These records, made on March 7, 2011, reflected that T.H.’s birthdate was
January 7, 2003. The records also reflected that appellant lived in her household,
that he was T.H.’s “[m]other’s live-in boyfriend of 6 months,” and that his birthdate
was September 12, 1977.2 T.H. reported to the examining physician that the sexual
abuse had “been going on since [appellant] moved in with [T.H.’s] mother.” At trial,
T.H. did not provide specific dates concerning when the abuse occurred. However,
she testified that appellant abused her more than once, that she was eight years old
when he abused her, and that acts of abuse had occurred in two different apartments.
2
Although the records contains conflicting evidence concerning appellant’s
birthdate, with N.M. testifying that appellant’s birthday was June 13 and T.H.’s
hospital record reflecting that appellant’s birthday was September 12, there was no
conflicting evidence concerning appellant’s birth year of 1977.
10
The State presented evidence that appellant was born in 1977 and that he
abused T.H. in 2010 and 2011, when he was approximately thirty-three years old.
We therefore conclude that a rational jury could have concluded that the State
proved, beyond a reasonable doubt, that appellant was at least seventeen years old
each time he committed an act of sexual abuse against T.H. See Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Morgan, 501 S.W.3d at 89; see also TEX. PENAL CODE
ANN. § 21.02(b)(2). We hold that the State presented sufficient evidence to support
appellant’s conviction for continuous sexual abuse of a child.
We overrule appellant’s second issue.
Constitutionality of Article 38.37, Section 2(b)
In his first issue, appellant contends that Code of Criminal Procedure article
38.37, section 2(b) is unconstitutional because it permits, in trials of certain sexual
offenses, the admission of evidence that the defendant has committed separate
extraneous offenses against children other than the complainant of the charged case
for purposes including the defendant’s character and acts performed in conformity
with that character. Specifically, he argues that section 2(b) violates the due process
clause of the United States Constitution.3 He also argues that the evidence admitted
3
Appellant also argues that section 2(b) violates the due course of law clause of the
Texas Constitution, and Code of Criminal Procedure article 1.04, which statutorily
codifies the due course of law clause. See TEX. CONST. art. I, § 19 (“No citizen of
this State shall be deprived of . . . liberty . . . except by the due course of the law of
the land.”); TEX. CODE CRIM. PROC. ANN. art. 1.04 (West 2005) (providing same).
11
under this section at trial should have been excluded under Rule of Evidence 403 as
more prejudicial than probative.
A. Whether Section 2(b) Violates Due Process Guarantees
In determining the constitutionality of a statute, we presume that the statute is
valid and that the Legislature did not act unreasonably or arbitrarily in enacting it.
Harris v. State, 475 S.W.3d 395, 399 (Tex. App.—Houston [14th Dist.] 2015, pet.
ref’d). The appellant bears the burden of establishing that the statute is
unconstitutional. Id.
The due process clause requires the State to prove every element of a charged
crime beyond a reasonable doubt. Id. (citing Byrd v. State, 336 S.W.3d 242, 246
(Tex. Crim. App. 2011)); Belcher v. State, 474 S.W.3d 840, 843 (Tex. App.—Tyler
2015, no pet.). Generally, the State must try an accused only for the charged offense
and may not try the accused for a collateral crime or for being a criminal generally.
Harris, 475 S.W.3d at 399; see also TEX. R. EVID. 404(b)(1) (“Evidence of a crime,
wrong, or other act is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the character.”).
“The essential guarantee of the Due Process Clause is that the government may not
Appellant does not, however, provide any separate argument for why section 2(b)
violates these particular state provisions, in addition to the federal due process
clause, and he states that for the purposes of his appellate brief, he “consider[s] the
scope of these protections to be the same.” We therefore analyze only whether
section 2(b) violates the federal due process clause.
12
imprison or otherwise physically restrain a person except in accordance with fair
procedures.” Harris, 475 S.W.3d at 399. “To establish a due process violation, it is
the appellant’s burden to show that the challenged statute or rule violates those
‘fundamental conceptions of justice which lie at the base of our civil and political
institutions and which define the community’s sense of fair play and decency.’”
Belcher, 474 S.W.3d at 844 (quoting Dowling v. United States, 493 U.S. 342, 353,
110 S. Ct. 668, 674 (1990)).
Code of Criminal Procedure article 38.37, section 1, applicable in cases in
which the defendant is charged with continuous sexual abuse of a child, provides
that, notwithstanding Rule of Evidence 404, evidence that the defendant has
committed other crimes, wrongs, or acts against the child who is the victim of the
charged offense shall be admitted for its bearing on relevant matters including (1) the
state of mind of the defendant and the child and (2) the previous and subsequent
relationship between the defendant and the child. TEX. CODE CRIM. PROC. ANN. art.
38.37, § 1(b). In 2013, the Texas Legislature amended article 38.37 to add sections
2 and 2-a. Section 2 provides that in trials for certain sexual offenses, including
continuous sexual abuse of a child:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and
subject to Section 2-a, evidence that the defendant has committed a
separate offense described by Subsection (a)(1) or (2) [including an
offense of indecency with a child] may be admitted in the trial of an
alleged offense described by Subsection (a)(1) or (2) [including a trial
for continuous sexual abuse] for any bearing the evidence has on
13
relevant matters, including the character of the defendant and acts
performed in conformity with the character of the defendant.
Id. art 38.37, § 2(b); see also Belcher, 474 S.W.3d at 844 (noting that section 2(b)
allows admission of evidence that defendant has committed certain sexual offenses
against children who are not complainants of charged offense). Section 2-a provides
a procedural safeguard and requires:
Before evidence described by Section 2 may be introduced, the trial
judge must:
(1) determine that the evidence likely to be admitted at trial will be
adequate to support a finding by the jury that the defendant
committed the separate offense beyond a reasonable doubt; and
(2) conduct a hearing out of the presence of the jury for that purpose.
TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-a. The State must give notice of its
intent to introduce article 38.37 evidence in its case in chief not later than the thirtieth
day before trial. Id. § 3.
The Court of Criminal Appeals has not addressed the constitutionality of
section 2(b). However, several of the intermediate courts of appeals, including this
Court, have addressed constitutional challenges to this statute and have uniformly
found that section 2(b) is constitutional. See, e.g., Buxton v. State, No. 01-15-00857-
CR, 2017 WL 2872490, at *14–17 (Tex. App.—Houston [1st Dist.] July 6, 2017, no
pet. h.); Bezerra v. State, 485 S.W.3d 133, 139–40 (Tex. App.—Amarillo 2016, pet.
ref’d); Robisheaux v. State, 483 S.W.3d 205, 213 (Tex. App.—Austin 2016, pet.
ref’d); Harris, 475 S.W.3d at 403; Belcher, 474 S.W.3d at 847; see also Baez v.
14
State, 486 S.W.3d 592, 599–600 (Tex. App.—San Antonio 2015, pet. ref’d) (holding
that section 2(b) does not violate ex post facto provision of United States
Constitution); Alvarez v. State, 491 S.W.3d 362, 367–70 (Tex. App.—Houston [1st
Dist.] 2016, pet. ref’d) (holding that defendant failed to preserve due process
challenge to section 2(b), but noting that all Texas cases “addressing the
constitutionality of Article 38.37 have held that it is constitutional”).
Appellant argues that he has a substantive due process right to a trial free from
admission of the character propensity evidence that section 2(b) specifically permits.
See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b) (providing that evidence of
separate sexual offense may be admitted “for any bearing the evidence has on
relevant matters, including the character of the defendant and acts performed in
conformity with the character of the defendant”). In determining whether section
2(b) violates due process, our sister courts have considered analogous provisions in
the Federal Rules of Evidence. See Harris, 475 S.W.3d at 401 (noting that, in
enacting section 2(b), Texas Legislature recognized that statute would “bring the
Texas Rules of Evidence closer to the Federal Rules of Evidence, specifically
Federal Rule 413(a), which allows evidence of previous sexual assault cases to be
admitted at trial”). Federal Rule of Evidence 413, for example, provides that “[i]n a
criminal case in which a defendant is accused of sexual assault, the court may admit
evidence that the defendant committed any other sexual assault” and that “[t]he
15
evidence may be considered on any matter to which it is relevant.” FED. R. EVID.
413(a); see also FED. R. EVID. 414(a) (“In a criminal case in which a defendant is
accused of child molestation, the court may admit evidence that the defendant
committed any other child molestation. The evidence may be considered on any
matter to which it is relevant.”); United States v. Foley, 740 F.3d 1079, 1086 (7th
Cir. 2014) (“Evidence that tends to show that a criminal defendant has a propensity
to commit crimes ordinarily is excluded from trial, but Rule 413 makes an exception
where past sexual offenses are introduced in sexual assault cases.”).
Federal courts addressing the constitutionality of Rules 413 and 414 have
upheld the rules and determined that the rules do not violate due process guarantees.
In United States v. Enjady, the Tenth Circuit, considering arguments similar to those
that appellant makes here—specifically, that the longstanding historical practice of
excluding character propensity evidence elevates that exclusion to a due process
right—noted “[t]hat the practice is ancient does not mean it is embodied in the
Constitution” and that “[m]any procedural practices—including evidentiary rules—
that have long existed have been changed without being held unconstitutional.” 134
F.3d 1427, 1432 (10th Cir. 1998). The Enjady court held that when it considered
Rule 413 in conjunction with the safeguards of Rule 403, which provides for the
exclusion of evidence that is more prejudicial than probative, Rule 413 was “not
unconstitutional on its face as a violation of the Due Process Clause.” Id. at 1433;
16
see also United States v. LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001) (“We conclude
that there is nothing fundamentally unfair about the allowance of propensity
evidence under Rule 414. As long as the protections of Rule 403 remain in place to
ensure that potentially devastating evidence of little probative value will not reach
the jury, the right to a fair trial remains adequately safeguarded.”). In United States
v. Mound, the Eighth Circuit held that Rule 413 is constitutional and stated that is
“within Congress’s power to create exceptions to the longstanding practice of
excluding prior-bad-acts evidence.” 149 F.3d 799, 801 (8th Cir. 1998).
In addressing the constitutionality of section 2(b) in Belcher, the Tyler Court
of Appeals noted that child sexual abuse cases present unique evidentiary concerns,
in that “the prosecution typically must rely on the largely uncorroborated testimony
of the child victim” and therefore “the child’s credibility becomes the focal issue.”
474 S.W.3d at 845. The Fourteenth Court has stated that Section 2(b) evidence is,
“by definition, propensity or character evidence” and that the statute was enacted to
“give prosecutors additional resources to prosecute sex crimes committed against
children,” noting that “[c]hildren often are targeted for these crimes, in part because
they tend to make poor witnesses.” Harris, 475 S.W.3d at 402 (quoting Senate
Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83rd Leg., R.S. (2013)).
The Court of Criminal Appeals has also recognized the unique nature of these
types of cases, stating that “[s]exual assault cases are frequently ‘he said, she said’
17
trials in which the jury must reach a unanimous verdict based solely upon two
diametrically different versions of an event, unaided by any physical, scientific, or
other corroborative evidence.” Hammer v. State, 296 S.W.3d 555, 561–62 (Tex.
Crim. App. 2009); see also Jenkins v. State, 993 S.W.2d 133, 136 (Tex. App.—Tyler
1999, pet. ref’d) (stating, in case challenging constitutionality of article 38.37,
section 1, that “[t]he special circumstances surrounding the sexual assault of a child
victim outweigh normal concerns associated with evidence of extraneous acts”).
In determining that section 2(b) does not violate the due process clause, courts
have emphasized that the procedural safeguards present in the statute itself, as well
as the protections of Rule 403, are adequate to ensure that a defendant receives a fair
trial. Section 2-a requires that, before evidence may be introduced pursuant to
section 2(b), the trial court must hold a hearing outside the presence of the jury and
determine that the evidence likely to be admitted at trial will be adequate to support
a jury finding that the defendant committed the separate offense beyond a reasonable
doubt. TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-a; see also Buxton, 2017 WL
2872490, at *16 n.4 (noting that Federal Rules 413 and 414, which have been
repeatedly held constitutional, do not contain this procedural safeguard). At the
hearing, defense counsel has the right to cross-examine any witness. See Harris,
475 S.W.3d at 402. The State must give the defendant notice of its intent to introduce
article 38.37 evidence not later than the thirtieth day before the defendant’s trial.
18
TEX. CODE CRIM. PROC. ANN. art. 38.37, § 3. Furthermore, section 2(b) is still
subject to the balancing of probative value and prejudicial effect under Rule 403;
thus, the trial court may exclude section 2(b) evidence if it determines, for example,
that the probative value of the evidence is substantially outweighed by the danger of
unfair prejudice. See Belcher, 474 S.W.3d at 847; see also LeMay, 260 F.3d at 1026
(holding that as long as protections of Rule 403 remain in place, right to fair trial
remains adequately safeguarded even though Rule 414 allows admission of character
propensity evidence).
As our sister court noted in Harris, section 2(b) does not lessen a defendant’s
presumption of innocence, and it does not alter the State’s burden of proof “because
the State is still required to prove every element of the charged offense beyond a
reasonable doubt.” 475 S.W.3d at 402; see also Baez, 486 S.W.3d at 600 (noting, in
context of analysis that section 2(b) is not unconstitutional ex post facto law, that
section 2(b) “enlarges the scope of the child’s admissible testimony, but leaves
untouched the amount or degree of proof required for conviction”); Dominguez v.
State, 467 S.W.3d 521, 526 (Tex. App.—San Antonio 2015, pet. ref’d) (stating that
section 2(b) “neither changes the State’s burden of proof to support a conviction for
sexual assault of child nor lessens the amount of evidence required to sustain a
conviction”).
19
We therefore reaffirm this Court’s holding in Buxton that section 2(b) does
not violate the due process clause and is constitutional. See 2017 WL 2872490, at
*17; Bezerra, 485 S.W.3d at 140; Robisheaux, 483 S.W.3d at 213; Harris, 475
S.W.3d at 403; Belcher, 474 S.W.3d at 847.
B. Rule 403
As noted above, evidence admitted pursuant to section 2(b) is still subject to
a Rule 403 analysis. See Belcher, 474 S.W.3d at 847. Rule 403 provides that a trial
court may exclude otherwise relevant evidence if the probative value of that
evidence is substantially outweighed by a danger of unfair prejudice, confusion of
the issues, the misleading of the jury, undue delay, or the needless presentation of
cumulative evidence. TEX. R. EVID. 403. When conducting a Rule 403 analysis, the
trial court must balance:
(1) the inherent probative force of the proffered item of evidence along
with (2) the proponent’s need for that evidence against (3) any tendency
of the evidence to suggest decision on an improper basis, (4) any
tendency of the evidence to confuse or distract the jury from the main
issues, (5) any tendency of the evidence to be given undue weight by a
jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will
consume an inordinate amount of time or merely repeat evidence
already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). Rule 403
favors the admission of relevant evidence, and there is a presumption that relevant
evidence will be more probative than prejudicial. Bezerra, 485 S.W.3d at 140
20
(quoting Booker v. State, 103 S.W.3d 521, 533 (Tex. App.—Fort Worth 2003, pet.
ref’d) (op. on reh’g)); see also Hammer, 296 S.W.3d at 568 (stating that Rule 403
“envisions exclusion of evidence only when there is a ‘clear disparity between the
degree of prejudice of the offered evidence and its probative value’”). A trial court’s
decision not to exclude evidence under Rule 403 is entitled to deference. See Wilson
v. State, 473 S.W.3d 889, 899 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). We
therefore review a trial court’s ruling under Rule 403 for an abuse of discretion.
Pawlak v. State, 420 S.W.3d 807, 810 (Tex. Crim. App. 2013).
After a hearing outside the presence of the jury, the trial court admitted
testimony from N.M. that, after she asked her and appellant’s daughter, S.C.,
whether she wanted to testify in his favor in this case, S.C. disclosed that she could
not testify for appellant because he “had raped her, too.” S.C. then testified that she
remembered four occasions in which appellant climbed into her bed at night while
her mother and brother were asleep in another bed in the room and touched her
vagina, both over and under her clothes.
Appellant argues that S.C.’s testimony “was not especially probative of any
element of the charged offense” of abusing T.H., nor was it probative of his
character. However, evidence that a defendant has sexually abused another child is
relevant to whether the defendant sexually abused the child-complainant in the
charged case. See Robisheaux, 483 S.W.3d at 220–21; Gaytan v. State, 331 S.W.3d
21
218, 228 (Tex. App.—Austin 2011, pet. ref’d) (holding that evidence that defendant
had committed extraneous sexual offenses against two other children was
“straightforward and directly relevant to the only issue in the case, namely whether
[the defendant] abused [the complainant]”). This Court has held that “[b]ecause the
evidence of prior sexual abuse of children ‘was especially probative of [the
defendant’s] propensity to sexually assault children,’ the Rule 403 balancing test
normally will not favor the exclusion of evidence of the defendant’s prior sexual
assaults of children.” Alvarez, 491 S.W.3d at 371 (quoting Belcher, 474 S.W.3d at
848). Thus, evidence that appellant sexually abused S.C. is relevant to whether he
sexually abused T.H.
In addition, appellant’s primary defensive theory at trial was that T.H. had
fabricated the allegations of abuse, perhaps at L.J.’s direction, and appellant’s
defense counsel argued that it was unlikely the abuse occurred as T.H. described it,
given the presence of other individuals either in the same room as appellant and T.H.
or in a room nearby. However, the evidence that appellant also abused S.C. when
other people were present in the room rebuts appellant’s defensive theory. See
Distefano v. State, — S.W.3d —, No. 14-14-00375-CR, 2016 WL 514232, at *3
(Tex. App.—Houston [14th Dist.] Feb. 9, 2016, pet. ref’d) (holding that trial court
reasonably could have concluded that “inherent probative force” of extraneous
offense evidence was “considerable” because testimony tended to contradict
22
defendant’s defensive theory that incident with complainant “was a
‘misunderstanding’ or ‘mistake’”).
Furthermore, no medical or physical evidence corroborated T.H.’s testimony,
which defense counsel pointed out during closing argument. And although L.J. saw
the shadow of footsteps moving from the children’s bedroom to the bathroom and
appellant gave her an unconvincing explanation for why he was in the children’s
bedroom, the only witness to the acts of abuse against T.H. was T.H. herself.
Without S.C.’s testimony concerning similar acts that appellant committed against
her in similar circumstances, “the State’s case would have basically come down to”
T.H.’s word against appellant’s. See Robisheaux, 483 S.W.3d at 220. Thus, T.H.’s
credibility “was clearly the focal issue in the case.” See Belcher, 474 S.W.3d at 848
(noting, in holding that admission of extraneous offense evidence did not violate
Rule 403, that child-complainant was only eyewitness to offense, no physical
evidence supported her allegations, and child’s mother initially doubted allegations).
We conclude that S.C.’s testimony was relevant, the testimony had considerable
probative force, and the State had great need of the evidence.
The evidence that appellant sexually abused another child in addition to the
complainant in the charged offense was “clearly prejudicial” to his case, but the
question in a Rule 403 analysis is whether the evidence was unfairly prejudicial. See
Bradshaw v. State, 466 S.W.3d 875, 883 (Tex. App.—Texarkana 2015, pet. ref’d)
23
(noting that Rule 403 does not allow exclusion of otherwise relevant evidence when
evidence is merely prejudicial); see also Belcher, 474 S.W.3d at 848 (stating, “The
extraneous offense evidence was highly prejudicial, principally because it was
especially probative of [the defendant’s] propensity to sexually assault children,”
and noting that extraneous offense evidence was “more repugnant and inflammatory
than the offense alleged against” named complainant, but still holding that trial court
did not violate Rule 403 by admitting evidence). Here, S.C.’s testimony “discussed
actions that were no more serious than the allegations forming the basis for the
indictment.” See Robisheaux, 483 S.W.3d at 221. Moreover, appellant “does not
identify any particular facts” about S.C.’s testimony that make it “uniquely or
unfairly prejudicial.” See Alvarez, 491 S.W.3d at 371. Thus, although S.C.’s
testimony was prejudicial to appellant, he has not demonstrated that it was unfairly
prejudicial. See Pawlak, 420 S.W.3d at 811 (“[T]he plain language of Rule 403 does
not allow a trial court to exclude otherwise relevant evidence when that evidence is
merely prejudicial.”).
S.C.’s testimony “was not confusing or technical in nature,” and it was
relevant to the central issue in the case—whether appellant sexually abused T.H. See
Robisheaux, 483 S.W.3d at 220–21; see also Distefano, 2016 WL 514232, at *4
(holding that trial court reasonably could have concluded that extraneous offense
testimony “did not have a tendency to suggest decision on an improper basis or to
24
confuse or distract the jury from the main issues in the case because the evidence
relates directly to an element of the charged offense—that [the defendant] intended
to induce [the complainant] to engage in sexual conduct”). Additionally, when S.C.
started testifying concerning the acts of abuse committed against her, the trial court
gave the jury a limiting instruction that reminded the jury that appellant was on trial
“solely on the charge contained in the indictment” and that it could not consider
evidence of similar extraneous acts unless it found beyond a reasonable doubt that
appellant committed those extraneous acts. The trial court included a substantively
identical instruction in the jury charge. We therefore conclude that S.C.’s testimony
did not have a tendency to distract the jury from the main issue in the case or to be
given undue weight by the jury.
Finally, the jury heard two days’ worth of testimony in appellant’s trial. Seven
witnesses testified, and the reporter’s record contains approximately 300 pages of
testimony. N.M.’s testimony took up a total of twenty-three pages in the reporter’s
record, and S.C.’s testimony took up a total of fifty-four pages. Thus, developing
the extraneous offense evidence took up approximately one-fourth of the trial. Both
parties addressed N.M.’s and S.C.’s testimony during closing arguments; however,
the focus remained on L.J.’s and T.H.’s testimony. We therefore conclude that the
State did not spend “an inordinate amount of time” developing S.C.’s testimony, and
it did not emphasize that testimony over T.H.’s testimony concerning the charged
25
offense. See Gigliobianco, 210 S.W.3d at 641–42 (considering, in conducting Rule
403 analysis, likelihood of whether presentation of challenged evidence will
consume inordinate amount of time or merely repeat evidence already admitted).
Considering all of the relevant factors, we conclude that the trial court
reasonably could have determined that the prejudicial effect of S.C.’s testimony did
not substantially outweigh its probative value. We therefore hold that the trial court
did not abuse its discretion in admitting S.C.’s testimony concerning the extraneous
acts of sexual abuse that appellant committed against her.
We overrule appellant’s first issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Massengale.
Publish. TEX. R. APP. P. 47.2(b).
26
| {
"pile_set_name": "FreeLaw"
} |
Filed 7/28/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of ASHLYNE and
VIKASH KUMAR.
ASHLYNE KUMAR,
Appellant,
A145181
v.
VIKASH KUMAR, (San Mateo County
Super. Ct. No. FAM0124046)
Respondent.
In this marital dissolution proceeding, an immigrant spouse seeks to enforce her
contractual right to support based on the affidavit of support which her American spouse
was required to submit to the federal government in connection with his petition to
sponsor her for an immigration visa. As required by the terms of the affidavit of support,
her American spouse promised to support her at an income of at least 125 percent of the
federal poverty line for 10 years.
The issues raised in this appeal appear to be matters of first impression in
California.1 We hold that an immigrant spouse has standing to enforce the support
obligation created by an I–864 affidavit in state court. We further hold that an immigrant
spouse bringing such a claim has no duty to mitigate damages. Because the trial court’s
ruling in this matter conflicts with our holdings, we reverse. We remand to the trial court
to consider the immigrant spouse’s contract claim in accordance with this decision.
1
We granted the application of National Immigrant Women’s Advocacy Project to
file a brief in support of Ashlyne as amicus curiae.
1
FACTUAL AND PROCEDURAL BACKGROUND
Vikash Kumar was born in Fiji and is now a United States citizen. Ashlyne
Kumar is a citizen of Fiji. On September 22, 2012, Vikash, then 27 years old, and
Ashlyne, then 25, married in Fiji in an arranged marriage.2
Vikash filed a form I–130 immigration visa petition for alien relative on behalf of
Ashlyne, and the petition was approved on December 1, 2012. In connection with
bringing his new wife to the United States, Vikash signed a form I–864 affidavit of
support (I–864 affidavit) and submitted it to the federal government in April 2013. The
purpose of an I–864 affidavit is “to ensure that an immigrant does not become a public
charge.” (Younis v. Farooqi (D.Md. 2009) 597 F.Supp.2d 552, 557, fn. 5.) A form I–864
affiant is usually referred to as a “sponsor.”
Under the heading “Part 8. Sponsor’s Contract,” the I–864 affidavit signed by
Vikash gave the following warning: “Please note that, by signing this Form I–864, you
agree to assume certain specific obligations under the Immigration and Nationality Act
and other Federal laws.” On the same page, the affidavit explained that, by signing the
affidavit, the sponsor agreed to “[p]rovide the intending immigrant any support necessary
to maintain him or her at an income that is at least 125 percent of the Federal Poverty
Guidelines for his or her household size . . . .” The affidavit further stated, “If you do not
provide sufficient support to the person who becomes a permanent resident based on the
Form I–864 that you signed, that person may sue you for this support.”
Ashlyne entered the United States in July 2013, and lived with Vikash and his
family in Daly City. According to Ashlyne, Vikash began abusing her almost
immediately.3 He would not speak to her except to say that he did not want to be with
2
For clarity and brevity, we refer to the parties by first name only. No disrespect
is intended.
3
The facts of this paragraph are taken from Ashlyne’s request for a domestic
violence restraining order filed in the dissolution proceeding, which was granted. In
addition, Vikash and Ashlyne stipulated to a three-year restraining order protecting
Ashlyne and restraining Vikash, which was filed on July 18, 2014.
2
her and that he wanted her to leave and to go back to Fiji. In December 2013, Vikash and
his family “tricked” Ashlyne into going to Fiji with Vikash. After they arrived in Fiji,
Vikash abandoned her there. Ashlyne also discovered that the page with her legal
permanent resident stamp had been torn out of her passport.
Ashlyn obtained temporary travel documents from the United States Embassy in
Fiji, and returned to the United States on December 29, 2013.
On January 14, 2014, Vikash filed a petition for annulment and, in the alternative,
dissolution of marriage. In March 2014, Ashlyne filed a response to Vikash’s petition.
She asked the court to deny Vikash’s request for an annulment and grant a dissolution of
marriage. She did not ask for enforcement of the I–864 affidavit at that time. In April
2014, Ashlyne filed a financial statement, in which she indicated she received no salary
or benefits, and she “applied for TANF, SSI, or GA/GR” (i.e., Temporary Assistance for
Needy Families, Supplemental Security Income, or general assistance/general relief,
respectively).
On May 7, 2014, the trial court held a hearing on spousal support. At the start of
the hearing, counsel for Ashlyne informed the court that the parties had agreed to
temporary spousal support for Ashlyne of $675 per month, but Ashlyne disagreed with
Vikash’s request for a “seek work” order and a “Gavron warning” that she was expected
to become self-supporting.4
Ashlyne’s counsel objected to an order that Ashlyne seek work on the ground that
she did not have her current residency card because Vikash had stolen it and “she has no
status currently.” Her counsel also stated that Ashlyne was on general assistance and
living in a shelter. Vikash’s counsel argued that Ashlyne had a duty to become self-
supporting, noting, “This was her choice to come here and stay here.”
In response, Ashlyne’s counsel raised the I–864 affidavit. She told the court that
by signing the I–864 affidavit, Vikash “vow[ed] to support [Ashlyne] for 10 years or 40
4
See In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712 (Gavron); In re
Marriage of Schmir (2005) 134 Cal.App.4th 43, 55 [“[A] ‘Gavron warning’ is a fair
warning to the supported spouse he or she is expected to become self-supporting.”].)
3
quarters” and “swore under oath to support her.” Vikash’s counsel took the position
“[t]he affidavit of support is irrelevant in this court.”
At the close of the hearing, the trial court ordered temporary spousal support of
$675 per month as agreed to by the parties. The court also gave a Gavron warning,
explaining it was appropriate because “it has been a short-term marriage.” However, the
court did not issue a seek-work order because “there are some issues she needs to
overcome before she can legally seek work in this country.” Instead, the court ordered
Ashlyne to make reasonable and good faith efforts “to get the necessary paperwork for
her to be able to work in this country if she is intending on remaining here.”
On September 3, 2014, Vikash filed a request for an order terminating spousal
support and dissolving the marriage. Vikash asserted that Ashlyne had made no efforts to
become self-supporting, and he urged the court to impute to her income from a full-time,
minimum wage job.
Ashlyne filed a responsive declaration to Vikash’s request. She stated that she did
not have a work permit because Vikash stole her green card and she was still waiting for
replacement papers. Ashlyne reported that when she tried to apply for jobs, she was
asked for proof of residency, and that after Vikash abandoned her, she was on cash aid
and food stamps until she started receiving spousal support. Ashlyne attached the I–864
affidavit to her response, and asked the court to continue support “because [Vikash]
swore to the US Government he would take care of me for 10 years or 40 working
quarters . . . .”
Subsequently, Ashlyne filed an amended memorandum of points and authorities in
opposition to Vikash’s request to terminate spousal support.5 In this brief, Ashlyne asked
the court to enforce the specific support requirements of the I–864 affidavit, requesting an
order that Vikash “pay support at $1,196.15 per month.” Ashlyne explained that the
poverty guideline for a one-person household for 2014 was $11,670 per year, and she
5
According to the register of actions, Ashlyne’s original memorandum of points
and authority was filed on October 16, 2014. The original memorandum is not part of the
appellate record.
4
claimed Vikash was obligated to support her at $14,354.10 per year or $1,196.175 per
month.
Ashlyne argued that an I–864 affidavit is a binding contract, and the support
obligation of the I–864 affidavit was in addition to any right to spousal support based on
state law. She maintained that divorce did not terminate the support obligation, and the
short length of the marriage did not matter. Ashlyne further argued that requiring her to
bring a separate contract action to enforce the obligation would be contrary to judicial
economy. Therefore, she urged the court to order Vikash to pay support “as per his
obligation under the I–864 affidavit of support, to the amount of $1,196.175 per month.”
On March 18, 2015, the trial court heard argument on Vikash’s request to
terminate temporary spousal support and Ashlyne’s request to enforce the support
requirements of the I–864 affidavit. Ashlyne’s counsel reported that Ashlyne was
working up to 15 hours a week at a Blimpies, making $9 per hour. She was also
attending school, working toward her GED. The trial court terminated temporary spousal
support effective that day.
Ashlyne’s counsel asked the court to address the I–864 affidavit. The court
responded, “I find for the purposes of spousal support under California law she should be
working full time making minimum wage. And so I’m not going to order him to pay her
support because I find she’s not working up to her full potential that she should be based
on her ability and need.” Counsel asked whether the trial court was denying Ashlyne’s
request to enforce the I–864 affidavit. The court responded, “Yes, I’m denying your
request because I find the respondent is not using best efforts to find work. . . .” The
court stated it would enforce the I–864 affidavit if the government sought enforcement
and also told Ashlyne, “File a federal case.”
The same day, the trial court entered a judgment restoring the parties to single
status and terminating spousal support. Ashlyne timely appealed.
DISCUSSION
A. Standard of Review
5
On appeal, Ashlyne contends the trial court erred in ruling on her contract claim
for enforcement of the I–864 affidavit by incorrectly finding that her failure to mitigate
damages excused Vikash from his contractual obligations. Whether the trial court denied
Ashlyne’s enforcement claim on the ground she failed to mitigate damages or because it
believed she had no right to enforce the contract in state court, the issues presented are
questions of law on undisputed facts, which we review de novo. (Department of Health
Care Services v. Office of Administrative Hearings (2016) 6 Cal.App.5th 120, 141.)
We reject Vikash’s argument that the applicable standard of review is abuse of
discretion. Vikash argues we should review whether the trial court abused its discretion
in terminating temporary spousal support under the considerations set forth in the Family
Code. Ashlyne, however, is not challenging the trial court’s determination that she is not
entitled to additional spousal support under California’s statutory scheme. Her appellate
claim is solely that the trial court erred “in denying enforcement of a contract formed by
an I–864 Affidavit requiring financial support.” Whether Ashlyne could enforce the I–
864 affidavit in state court and whether she had duty to mitigate are questions of law.
B. An I–864 Affidavit is a Contract Enforceable by the Sponsored Immigrant
An I–864 affidavit is a legally enforceable contract between the sponsor and the
sponsored immigrant. (Shumye v. Felleke (N.D.Cal. 2008) 555 F.Supp.2d 1020, 1023
(Shumye).) “By signing a Form I–864 the ‘sponsor agrees to provide support to maintain
the sponsored alien at an annual income that is not less than 125 percent of the Federal
poverty line during the period in which the affidavit is enforceable.’ (8 U.S.C.
§ 1183a(1)(A).) Federal courts have consistently found that a Form I–864 constitutes a
legally binding and enforceable contract between sponsor and a sponsored immigrant.”
(Id. at p. 1024.)
A sponsor’s obligations under an I–864 affidavit “terminate[] only if one of five
conditions is met: (1) the sponsor dies, (2) the sponsored immigrant dies, (3) the
sponsored immigrant becomes a U.S. citizen, (4) the sponsored immigrant permanently
departs the U.S., or (5) the sponsored immigrant is credited with 40 qualifying quarters of
work. (See 8 U.S.C. § 1183a(a)(2).) Divorce is not a condition under which the
6
sponsor’s obligations under Form I–864 can be terminated.” (Shumye, supra, 555
F.Supp.2d at p. 1024.)
Under federal immigration law, an I–864 affidavit must be “legally enforceable
against the sponsor by the sponsored alien,” and the sponsor must agree “to submit to the
jurisdiction of any Federal or State court for the purpose of actions” of enforcement. (8
U.S.C. § 1183a, subd. (a)(1)(B) & (C).) Federal regulation further provides, “The
intending immigrants and any Federal, state, or local agency or private entity that
provides a means-tested public benefit to an intending immigrant are third party
beneficiaries of the contract between the sponsor and the other individual or individuals
on whose income the sponsor relies and may bring an action to enforce the contract in the
same manner as third party beneficiaries of other contracts.” (8 C.F.R. § 213a.2, subd.
(c)(2)(i)(C)(2).)
The statute and regulation are clear. A sponsored immigrant has independent
standing to enforce the obligations of an I–864 affidavit against her sponsor, and may
bring such an enforcement claim in state (or federal) court. Federal and out-of-state
courts agree with this proposition. (Love v. Love (Pa.Super.Ct. 2011) 33 A.3d 1268, 1273
[contractual obligation of the sponsor’s I–864 affidavit “is enforceable by Wife”]; In re
Marriage of Kamali and Alizadeh (Tex.Ct.App. 2011) 356 S.W.3d 544, 546–547
[enforcing sponsoring husband’s I–864 affidavit in state divorce case]; In re Marriage of
Sandhu (Kan.Ct.App. 2009) 207 P.3d 1067, 1071 [recognizing a sponsored immigrant
has independent standing to enforce an I–864 affidavit]; Naik v. Naik
(N.J.Super.Ct.App.Div. 2008) 944 A.2d 713, 717 [an I–864 affidavit is enforceable by
the sponsored spouse in state court]; Davis v. United States (6th Cir. 2007) 499 F.3d 590,
595 [state court enforcement of an I–864 affidavit by the sponsored immigrant was
“explicitly permitted under the statute”]; (Moody v. Sorokina (N.Y.App.Div. 2007) 40
A.D.3d 14, 18 [“The cases that have addressed the enforceability of the Form I–864
affidavit of support by the sponsored immigrant have found . . . that the sponsored
immigrant ‘has independent standing to enforce the sponsor’s obligation’ in any federal
or state court.’ ”].)
7
Vikash does not dispute that an I–864 affidavit is a legally binding contract
enforceable by Ashlyne. Instead, he argues the trial court acted within its discretion in
terminating the temporary spousal support order under California’s statutory scheme for
providing spousal support. But this is not Ashlyne’s contention. She does not claim she
is entitled to additional spousal support as a matter of state law. She contends that she
has a contract claim for support based on the obligations of the I–864 affidavit, which the
trial court erred in not considering.
Vikash suggests that Ashlyne’s contract claim is procedurally improper, asserting
Ashlyne “has not brought an action to enforce her rights as a third-party beneficiary in
any court of competent jurisdiction,” and she “did not join the Department of Homeland
Security to the state court dissolution action.” Vikash’s undeveloped arguments lack
merit. He offers no authority that a state court lacks jurisdiction over Ashlyne’s contract
claim. Nor does he explain why the Department of Homeland Security must be joined as
a party to a sponsored immigrant’s contract claim based on an I–864 affidavit. As we
have seen, by signing the I–864 affidavit, Vikash agreed to submit to state court
jurisdiction. (8 U.S.C. § 1183a, subd. (a)(1)(C).) And state courts regularly exercise
jurisdiction over contract claims involving I–864 affidavits brought by the sponsored
immigrant alone. (See Love v. Love, supra, 33 A.3d 1268 [Pennsylvania]; In re Marriage
of Kamali and Alizadeh, supra, 356 S.W.3d 544 [Texas]; In re Marriage of Sandhu,
supra, 207 P.3d 1067, 1071 [Kansas]; Naik v. Naik, supra, 944 A.2d 713, 717 [New
Jersey]; Davis v. United States, supra, 499 F.3d 590, 592 [recognizing propriety of
enforcement of I–864 affidavit in Ohio state court]; Moody v. Sorokina, supra, 40 A.D.3d
14 [New York].)
Vikash argues the I–864 affidavit “is not enforceable in an action brought under
state law to enforce support because the Federal Pre-emption Doctrine is not applicable to
state support law.” This argument misses the mark because Ashlyne does not claim that
the field of state support law is completely preempted by the I–864 affidavit. Rather, she
correctly recognizes, “ ‘[t]he right of support conferred by federal law exists apart from
8
whatever rights [a sponsored immigrant] might or might not have under [state] divorce
law.’ ” (Erler v. Erler (9th Cir. 2016) 824 F.3d 1173, 1177, italics added.)
Vikash urges us to consider the analysis of four out-of-state cases, but three of the
cases support Ashlyne’s position that she may enforce the I–864 affidavit in the current
dissolution proceeding. Barnett v. Barnett (Alaska 2010) 238 P.3d 594, Love v. Love,
supra, 33 A.3d 1268, and Iannuzzelli v. Lovett (Fla.Dist.Ct.App. 2008) 981 So.2d 557, all
involve immigrant spouses who sought to enforce I–864 affidavits in state divorce
proceedings. In each case, the state court exercised jurisdiction over the immigrant
spouse’s contract claim based on an I–864 affidavit.6
The fourth case Vikash relies on is In re Marriage of Khan (2014) 182 Wash.App.
795. In that case, the wife sought to enforce her husband’s I–864 affidavit in their
divorce proceeding, arguing husband’s “I–864 support obligation was a basis for a
maintenance award.” (Id. at p. 798.) The trial court tried to fashion a compromise
support order, the end result of which seemingly failed to comport with either state law or
the terms of the affidavit.7 The wife appealed. On appeal, the parties agreed that the
6
In Barnett v. Barnett, supra, 238 P.3d 594, the trial court entertained the
immigrant spouse’s contract claim, but found that she was not entitled to support under
the terms of the I–864 affidavit. The Alaska Supreme Court affirmed, holding that the
trial court did not err in interpreting 8 United States Code section 1183a. (Id. at pp. 597–
599.) In Love v. Love, supra, 33 A.3d 1268, the Pennsylvania appellate court held the
trial court erred in refusing to consider the I–864 affidavit. The court concluded, “[W]e
reject the trial court’s conclusion that Wife was precluded from enforcing the affidavit of
support during the support proceedings and its attendant holding that Wife is required to
initiate a separate civil action based upon the Affidavit seeking either compensatory
damages or specific performance.” (Id. at p. 1275.) In Iannuzzelli v. Lovett, supra, 981
So.2d 557, the Florida state trial court ruled that the I–864 affidavit was an enforceable
contract, but it determined the wife was not entitled to a monetary award under the terms
of the affidavit. (Id. at 559.) On appeal, the wife acceded to the trial court’s factual
finding. (Id. at p. 561.)
7
“The trial court concluded that under state law maintenance was not appropriate
for several reasons. Nevertheless, it awarded [the wife] maintenance of $2,000 per month
through June 2013, three months from the date of the dissolution decree. The trial court
based its maintenance award on a perceived conflict between [the husband’s] I–864
obligation under federal law and Washington dissolution law. It concluded that [the
9
husband owed the wife an ongoing support obligation under the I–864 affidavit. (Id. at p.
801.) The only question was “whether that obligation must be enforced through a
maintenance award in the dissolution proceeding.” (Ibid.) The Washington appellate
court concluded that “a maintenance order need not include enforcement of a person’s I–
864 obligation.” The court offered three reasons for its conclusion, the first of which was
that there was “no ‘conflict’ between federal law regarding I–864 obligations and
Washington dissolution law because they are independent of each other.” (Ibid.)8 The
court’s other two reasons for its conclusion were that state statute governed the award of
maintenance, and that “the beneficiary of an I–864 obligation will not be left without
remedy if that obligation is not included in a maintenance award” because she or he can
bring a separate contract action. (Id. at pp. 802–803.) The Khan court left unresolved the
question whether a Washington state trial court in divorce proceedings could exercise
jurisdiction over a sponsored immigrant’s contract claim under an I–864 affidavit. (Id. at
p. 803, fn. 3 [“Although we hold that a trial court is not required to include the I–864
obligation in a maintenance award, we need not address whether a trial court in the
exercise of its discretion could incorporate the I–864 obligation into a maintenance
award.”].)
In re Marriage of Khan does not help Vikash, either. It does not stand for the
proposition that enforcement of an I–864 affidavit preempts state law. To the contrary,
the Khan court held that a maintenance award ordered pursuant to Washington state law
cannot be based solely on the non-statutory factor of the affidavit. (In re Marriage of
wife’s] I–864 rights preempted state law and limited its ability to impute income to [the
wife] based on her earning capacity and education, and stated that in awarding
maintenance it was balancing federal and state law.” (In re Marriage of Khan, supra,
182 Wash.App. at p. 798.)
8
The appellate court, thus, implicitly rejected the trial court’s determination that
enforcing the I–864 affidavit involved preemption of state law.
10
Khan, supra, 182 Wash.App. at p. 802.)9 Nor did the Khan court hold that a state court
lacks jurisdiction over a sponsored immigrant’s contract claim based on an I–864
affidavit.
Finally, in response to the argument of amicus curiae that a sponsored immigrant
must be permitted to enforce an I–864 affidavit in family law proceedings, Vikash takes
the position that an I–864 affidavit simply is not enforceable in a dissolution action. He
argues, “The place for enforcement is in a civil trial court where the sponsored spouse or
governmental agency seeking reimbursement brings a cause of action to enforce the I–
864 against the signing sponsor, thereby fulfilling its purpose of making the government
whole, not to create a right of support.” This argument is unavailing. First, there is no
separate “family court” jurisdiction. “In practice, the superior court exercising
jurisdiction under the Family Code is known as the ‘family court’ (or ‘family law court’).
But there is no separate ‘family court’ per se. Rather, ‘family court’ refers to the
activities of superior court judicial officers handling litigation arising under the Family
Code. The ‘family court’ is ‘not a separate court with special jurisdiction, but is instead
the superior court performing one of its general duties.’ ” (Hogoboom & King, Cal.
Practice Guide: Family Law (The Rutter Group 2016) ¶3:3.10, p. 3-3.) There is no
reason a superior court hearing a divorce case cannot exercise jurisdiction over an
immigrant spouse’s contract claim based on an I–864 affidavit. Second, there is no
authority for Vikash’s argument that an I–864 affidavit does not “create a right of
support.” Based on our discussion of the law above, the affidavit obviously does create a
contractual right to minimum support owed by the sponsor to the sponsored immigrant.
In sum, an I–864 affidavit is an enforceable contract, and a sponsored immigrant
has standing to bring an action to enforce it in state court. To the extent the trial court
denied Ashlyne’s contract claim on the ground she lacked standing to enforce the I–864
affidavit, this was incorrect.
9
Once again, we observe that Ashlyne does not argue she was entitled to support
based on state law. As a result, we see no inherent conflict between our decision and the
result in In re Marriage of Khan.
11
C. A Sponsored Immigrant Seeking to Enforce an I–864 Affidavit Has No Duty to
Mitigate Damages
When Ashlyne’s counsel asked whether her contract claim under the I–864
affidavit was being denied, the trial court responded, “Yes, I’m denying your request
because I find the respondent is not using best efforts to find work.”
On appeal, Ashlyne urges us to follow the Seventh Circuit Court of Appeals,
which held that a sponsored immigrant seeking to enforce the support obligation created
by an I–864 affidavit has no duty to mitigate damages. (Liu v. Mund (7th Cir. 2012) 686
F.3d 418, 420, 422–423 (Liu).) In Liu, the sponsored immigrant Liu and her husband
Mund divorced, and Liu brought an action in federal district court for support based on
Mund’s I–864 affidavit. The only issue on appeal was whether Liu had a duty to mitigate
damages. (Id. at p. 420.)
The Seventh Circuit began its analysis by considering the purpose of the I–864
affidavit. “The Immigration and Nationality Act forbids admission to the United States
of any alien who ‘is likely at any time to become a public charge.’ (8 U.S.C.
§ 1182(a)(4)(A); see also id., § 1601(2)(A), (5).) This provision is implemented by
requiring a person who sponsors an alien for admission to ‘execute an affidavit of
support.’ (8 C.F.R. § 213a.2(a), (b); see also 8 U.S.C. § 1182(a)(4)(C)(ii).) The affidavit,
the contents of which are specified in 8 U.S.C. § 1183a, is in the form of a contract
between the sponsor and the United States (8 C.F.R. § 213a.2(d)) called Form I–864.
Public providers of benefits to indigents are designated as third-party beneficiaries of the
affidavit-contract and are expressly authorized by the Act to sue a sponsor who defaults
on his support obligation. (8 U.S.C. § 1183a(a)(1)(B); see also § 1183a(b)(1)(A).)” (Liu,
supra, 686 F.3d at p. 420.)
“[T]he obligation is to support the sponsored alien at 125 percent of the poverty
income level; the affidavit must include this requirement. (8 U.S.C. § 1183a(a)(1)(A).)
The affidavit also, however, specifies several excusing conditions, such as the sponsor’s
death or the alien’s being employed for 40 quarters (also specified as an excusing
condition in the statute (8 U.S.C. § 1183a(a)(3)(A)). But the list of excusing conditions
12
does not mention the alien’s failing to seek work or otherwise failing to mitigate his or
her damages.” (Liu, supra, 686 F.3d at p. 420.)
The court reasoned: “[T]he stated statutory goal, remember, is to prevent the
admission to the United States of any alien who ‘is likely at any time to become a public
charge.’ [Citations.] The direct path to that goal would involve imposing on the sponsor
a duty of support with no excusing conditions. Some such conditions are specified; but
why should the judiciary add to them—specifically why should it make failure to
mitigate a further excusing condition? The only beneficiary of the duty would be the
sponsor—and it is not for his benefit that the duty of support was imposed; it was
imposed for the benefit of federal and state taxpayers and of the donors to organizations
that provide charity for the poor. And Mund can’t argue that Form I–864 confused him,
for there is no reference in it to a duty of the sponsored immigrant (Liu) to mitigate the
damages caused her by the sponsor’s (Mund’s) breach of his duty of support.” (Liu,
supra, 686 F.3d at p. 422.)
The court determined that “[t]he absence of such a duty serves the statutory
objective in a second way: it tends to make prospective sponsors more cautious about
sponsoring immigrants. The sponsor is the guarantor of the sponsored immigrant’s
having enough (though just barely enough) income to avoid becoming a public charge.
The more extensive—the less qualified—the guaranty, the less likely is an irresponsible
immigrant to obtain sponsorship. Liu and Mund had an awful marriage. Had he known
that by bringing her to the United States he would be assuming a virtually unconditional
obligation to support her indefinitely even if they later divorced, he might not have
signed the affidavit . . . .” (Liu, supra, 686 F.3d at p. 422.) Further, the court observed
that a sponsored immigrant would have a strong incentive to seek employment even
without a court-imposed duty to mitigate, because the support obligation of 125 percent
of the federal poverty line is a “meager guarantee.” (Ibid.)
The court concluded: “In sum, we can’t see much benefit to imposing a duty to
mitigate on a sponsored immigrant. The cost, besides the sponsor’s diminished incentive
to screen the alien for a bad work ethic, would be the increased complication of enforcing
13
the duty of support by giving the sponsor a defense—and not even a defense likely to
prevail. If Liu doesn’t want to work, forcing her to make job applications is unlikely to
land her a job.” (Liu, supra, 686 F.3d at p. 422–423; see also Zhu v. Deng (N.C.Ct.App.
2016) 794 S.E.2d 808, 812–813 [sponsored immigrant “has no affirmative duty to
mitigate her damages under” the I–864 affidavit].)
We find Liu persuasive, and hold that an immigrant spouse seeking to enforce the
support obligation of an I–864 affidavit has no duty to seek employment to mitigate
damages.10 Accordingly, we conclude it was error to deny Ashlyne’s contract claim on
the ground she had failed to use best efforts to mitigate damages.
DISPOSITION
The judgment is reversed. The case is remanded for the trial court to consider
Ashlyne’s contract claim based on the I–864 affidavit in accordance with our decision.
We express no opinion on the merits of Ashlyne’s contract claim. Ashlyne shall recover
her costs on appeal.
10
We recognize there are cases that assume there is a duty to mitigate. But in
those cases, it does not appear that the issue whether the support obligation of an I–864
affidavit imposes a duty to mitigate upon the sponsored immigrant was squarely raised.
(E.g. Younis v. Farooqi, supra, 597 F.Supp.2d at p. 556 [“Assuming the plaintiff has an
obligation to mitigate her damages by seeking employment, she need not apply for every
available job in order to mitigate her losses; she need only make reasonable efforts.”];
Love v. Love, supra, 33 A.3d at p. 1278 [finding the sponsor-husband failed to raise the
affirmative defense of failure to mitigate, the court observed, “Although the Affidavit
does not create a duty for Wife to mitigate her damages associated with Husband’s
breach, we acknowledge Wife’s common law duty to mitigate.”].)
14
_________________________
Miller, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
A145181, Kumar v. Kumar
15
Trial Court: Superior Court of San Mateo County
Trial Judge: Hon. Don Franchi
Attorneys for Appellant J. Neel Chatterjee
Edwin Steussy
Orrick Herrington & Sutcliffe LLP
Erin C. Smith
Jennafer D. Wagner
Shuray Ghorishi
Family Violence Appellate Project
Protima Pandey
Bay Area Legal Aid
Attorneys for Respondent Margaret Sharon Tillinghast
Attorneys for Amicus Curiae David Ginsberg
National Immigrant Women’s Harsh Parikh
Advocacy Project Judy Choi
in support of appellant
A145181, Kumar v. Kumar
16
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964 F.2d 1124
Richard M. STROTT, Petitioner/Appellant,v.Edward J. DERWINSKI, Secretary of Veterans Affairs,Respondent/Appellee.
No. 91-7047.
United States Court of Appeals,Federal Circuit.
May 13, 1992.
Frank A. Conte, Frank A. Conte, P.C., Washington, Pa., argued, for petitioner/appellant.
Catherine A. Christman, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for respondent/appellee. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Mary Mitchelson, Asst. Director and Scott E. Ray, Atty. Also on the brief was Jean York, Dept. of Veterans Affairs, of counsel.
Before ARCHER, PLAGER, and RADER, Circuit Judges.
PLAGER, Circuit Judge.
1
Richard M. Strott (Petitioner) appeals from the January 10, 1991 Order of the Court of Veterans Appeals (Veterans Court) 1 Vet.App. 114. The Veterans Court dismissed Petitioner's appeal because a valid Notice of Disagreement (NOD) had not been filed after November 18, 1988, the threshold date for jurisdiction. This court affirms.
BACKGROUND
2
Petitioner served in the United States Army on active duty from July 1959 to July 1962 and from September 1963 to February 1978. On February 6, 1985, he filed a claim for disability benefits for paranoid schizophrenia, which he alleged was service-related. The tortuous Veterans Administration (VA) procedures which petitioner then encountered do not do credit to a government agency whose mission it is to protect the interests of veterans. Regrettably, that is not a ground upon which recovery can be premised.
3
Petitioner's initial claim was rejected in a rating action of September 26, 1985. Petitioner's representative promptly filed a NOD on October 18, 1985. Further negative rating actions ensued on December 3, 1985 and December 30, 1985. A Statement of the Case was prepared on June 2, 1986, and was sent to petitioner. On July 14, 1986, his representative (petitioner's father) filed a Form 1-9 to perfect his appeal. Yet another rating action occurred on January 27, 1987, and a Supplemental Statement of the Case was then issued.
4
Meanwhile, the Veterans Administration persisted in classifying petitioner as competent despite the fact that the State of Pennsylvania had adjudged him incompetent and had appointed his father as his legal representative. Confusion within the VA resulted in further delay of petitioner's appeal--on July 11, 1988, the Board belatedly sent the case back to the Regional Office for "additional development" on the related issues of petitioner's competency and the proper identity of petitioner's representative. The Board opined that if petitioner was indeed sane for VA purposes, then he should have signed the forms himself, and his only authorized representative would be the Disabled American Veterans organization.
5
The Regional Office pondered these instructions, and finally sent a letter to petitioner on January 30, 1989. However, that letter apparently caused some confusion with petitioner's lawyer--he promptly responded and enclosed a second Form 1-9 signed by the father. On February 24, 1989, the Regional Office wrote to clarify that the Form 1-9 must be signed by the petitioner himself, regardless of the State of Pennsylvania's opinion of his mental condition. On February 28, 1989, the third Form 1-9 was submitted, this time bearing petitioner's own signature, which the VA found to be acceptable. At that point, the appeal which had been initiated almost three and one half years earlier was finally perfected to the satisfaction of the VA.
6
Petitioner's third 1-9 Form indicated a desire for a personal hearing at the Regional Office, and accordingly a hearing was held on June 5, 1989. This procedure resulted in yet another denial of benefits, dated July 17, 1989. The Board of Veterans Appeals in Washington did not issue its opinion until April 4, 1990; that opinion recounted the evidence in the case and rehashed the record from the June 5, 1989 personal hearing. When petitioner sought to appeal this decision to the Veterans Court, his appeal was dismissed for lack of jurisdiction. Petitioner now appeals that decision of the Veterans Court.
DISCUSSION
I.
7
The Veteran's Judicial Review Act of 1988 (Act), 38 U.S.C. §§ 7251 et seq. (West 1991)1, defines the limits of our appellate role in reviewing judgments of the Veterans Court. Pursuant to 38 U.S.C. § 7292(d)(1), we review to the extent presented and necessary to a decision "the validity of a statute or a regulation, or the interpretation of a constitutional or statutory provision or regulation," Livingston v. Derwinski, 959 F.2d 224, 225 (Fed.Cir.1992), under a de novo standard. Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed.Cir.1991). Further, we may set aside any regulations or regulatory interpretations which are procedurally defective or otherwise arbitrary. Id. Since disposition of the appeal turns on interpretation of statutory and regulatory provisions, we accordingly exercise jurisdiction in this case.
8
Congress created the Veterans Court in part to provide judicial review of veteran's benefits decisions. Prior to the Act, there existed a statutory bar to such judicial review. 38 U.S.C. § 211(a) (1988)2; Whitt v. Derwinski, 1 Vet.App. 40, 41 (Court of Veteran's Appeals 1990). However, Congress chose to limit the jurisdiction of the Veterans Court to cases in which a NOD had been filed on or after November 18, 1988. 38 U.S.C. § 7251 Note. See Prenzler v. Derwinski, 928 F.2d at 393-94. In so doing, Congress implicitly adopted the definition of a NOD already in place in 38 U.S.C. § 4005 (1988 & Supp.1989)3 and 38 C.F.R. § 19.118 (1991). Whitt v. Derwinski, 1 Vet.App. at 42. The regulations define a NOD as follows:
9
A written communication from a claimant or the representative expressing dissatisfaction or disagreement with an adjudicative determination of an agency of original jurisdiction (the Department of Veteran Affairs Regional Office, medical center, or clinic which notified the claimant of the action taken) will constitute a Notice of Disagreement....
10
38 C.F.R. § 19.118 (emphasis added). This court has further clarified that "[t]he agency of original jurisdiction is the VA agency which adjudicated the claim before an appeal to the Board. In other words, the agency of original jurisdiction is the agency which denied the original claim." Prenzler v. Derwinski, 928 F.2d at 394 (emphasis added).
11
If the NOD of October 18, 1985 is the most current NOD in petitioner's file, then the Veterans Court clearly was correct in deciding that it did not have jurisdiction to hear petitioner's appeal. The petitioner argued that the October 18, 1985 NOD could not be a valid NOD since it had been signed by the petitioner's father, and that the third Form 1-9 must be the NOD because it is the first document of record actually signed by the petitioner himself. Petitioner's argument was to be expected, given the VA's own protracted confusion on the issue of valid signatures. However, the Veterans Court correctly noted that a NOD need not be submitted by the petitioner himself, and that an effective NOD was the necessary predicate for the Statement of the Case, which issued on June 6, 1986.
12
Petitioner further argued before the Veterans Court that the third Form 1-9 (February 28, 1989) could also serve as a jurisdiction-creating NOD. The Veterans Court correctly rejected this contention; assuming arguendo that a Form 1-9 could so serve, in this case it would not qualify as a valid NOD because it had not been filed within 1 year of the last adjudicative determination of record (January 27, 1987). And, since a NOD must be filed within one year from the date of mailing of notification of the initial review and determination, 38 C.F.R. § 19.129(a), no jurisdiction-creating NOD could possibly exist (i.e. the latest date of a valid NOD would be January 27, 1988--nearly ten months before the statutory date of November 18, 1988).
II.
13
During oral argument, petitioner sought to introduce a letter dated September 7, 1989. Although petitioner improperly sought to present this court with evidence which was not in the record before the Veteran's Court, Fed.R.App.P. 16, we have considered the letter for the limited purpose of determining whether the Veteran's Court order should be vacated and the case remanded for further development of the record. That letter expressed disagreement with the June 5, 1989 hearing held in the Regional Office. If such a hearing and the subsequent decision of July 17, 1989 qualify as an "adjudicative determination of an agency of original jurisdiction," then it would be a jurisdiction-creating NOD. However, we hold that the June 5, 1989 hearing is part of the appellate process and as such, could not provide grounds for a jurisdiction-creating NOD.
14
A Veteran's appeal4 of a benefits determination proceeds by the following course: (1) The Veteran (or other representative, as described in 38 C.F.R. § 19.128), must file a NOD within one year of date of mailing of the unfavorable rating determination. 38 C.F.R. § 19.129(a). The Regional Board then prepares a Statement of the Case, as described in 38 C.F.R. § 19.120. The Veteran or his representative has sixty days from the date of mailing of the statement of the case or the remainder of the year dating from the mailing of notification of the unfavorable rating determination (whichever is later) to file a VA Form 1-9 to perfect the appeal. 38 C.F.R. § 19.129(b). The text of Form 1-9 informs the Veteran that he has the "right to request a personal hearing" and that "a personal hearing is not necessary nor is a decision made at the time of a hearing." If the Veteran desires a hearing, he turns his attention to box 9A, in which he indicates whether he wishes to be present at the hearing. If he does, he may then specify the place of that hearing; "Field Office" or "Board of Veterans Appeals Washington D.C.". It is clear from the regulations that this hearing is part of the appellate process, even when it occurs before personnel in the field office. 38 C.F.R. §§ 19.157(b) and 19.160(c).
15
Petitioner's appeal thus presents this court with the following legal question: Is a Form 1-9 hearing before personnel in the field office an action from which a petitioner may file a NOD, and thus obtain jurisdiction before the Veterans Court? When the above-described appeal process is considered in light of Prenzler v. Derwinski, 928 F.2d at 394, the answer is clearly negative. Since the field office is acting in an appellate role, it is no longer the "agency of original jurisdiction." Accordingly, any written disagreement with that decision is not a valid NOD, 38 U.S.C. § 7105 and 38 C.F.R. § 19.118, and therefore cannot function as the statutory basis for Veterans Court jurisdiction. To the extent that Whitt v. Derwinski suggests otherwise, 1 Vet.App. at 47, it is overruled.
CONCLUSION
16
Because the Court of Veterans Appeals cannot entertain cases with NODs filed before November 18, 1988, it correctly dismissed Mr. Strott's appeal. The Veterans Court order is
17
AFFIRMED.
1
Section 7251 et seq. are redesignations of 38 U.S.C. § 4051 et seq. (1988 & Supp.1989). Department of Veterans Affairs Health-Care Personnel Act of 1991, Pub.L. 102-40, 105 Stat. 187, 238-39
2
Repealed by Pub.L. 102-83, 105 Stat. 378; see 38 U.S.C. § 511 and note thereafter
3
Section 4005 (1988 & Supp.1989) was amended and renumbered as 38 U.S.C. § 7105, Pub.L. 102-40, 105 Stat. 238, 239
4
See generally 38 C.F.R. § 19.117
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Cite as 2017 Ark. 80
SUPREME COURT OF ARKANSAS
No. CV-16-23
CITY OF BENTON Opinion Delivered March 9, 2017
APPELLANT/CROSS-APPELLEE
APPEAL FROM THE SALINE
V. COUNTY CIRCUIT COURT
[NO. 63CV-14-351]
LARRY TEETER, DONNA A. HONORABLE GARY M. ARNOLD,
TEETER, AMY E. TEETER THOMAS, JUDGE
AND KEVIN R. TEETER
APPELLEES/CROSS-APPELLANTS REVERSED ON DIRECT APPEAL;
AFFIRMED ON CROSS-APPEAL.
KAREN R. BAKER, Associate Justice
This appeal stems from a condemnation action in Saline County, Arkansas. The
appellant, City of Benton (hereinafter “the City”), appeals from the Saline County circuit
court’s order awarding attorney’s fees to the appellees, Larry D. Teeter, Donna A. Teeter,
Amy E. Teeter Thomas, and Kevin R. Teeter. The Teeters cross-appeals the circuit court’s
order denying their request for payment of expert-witness fees.
In 2014, pursuant to Ark. Code Ann. §§ 18-15-201 and 18-15-301 et seq., the City
filed a condemnation action seeking to take property by eminent domain for the purpose of
widening Alcoa Road in Benton, Arkansas. The circuit court entered an ex parte order of
possession and directed the City to deposit funds in the court’s registry in order to work on
the property. The City deposited $130,800 into the court’s registry. The parties were not
able to agree on an amount of just compensation, and the matter was tried before a jury. On
Cite as 2017 Ark. 80
August 21, 2015, the jury awarded the Teeters $300,000.1
Subsequent to the jury trials, the Teeters timely filed motions for assessment of expert-
witness fees and attorney’s fees asserting that Ark. Code Ann. §§ 18-15-301 et seq.,
specifically Ark. Code Ann. § 18-15-307, mandated an award of fees. The City timely
responded and asserted that “costs” in Ark. Code Ann. § 18-15-307 did not include expert-
witness fees and further asserted that the statute did not specifically provide for attorney’s fees,
and therefore those fees were not recoverable. The circuit court held a hearing on the fees
issue, and on October 6, 2015, the circuit court entered an order ordering the City to pay
$11,431.38 in attorney’s fees to the Teeters. The circuit court denied the Teeters’ request
for $7,991.49 in expert witness fees.
From the circuit court’s award of attorney’s fees, the City appealed to the Court of
Appeals and the Teeters cross-appealed. On June 23, 2016, we accepted certification of this
appeal pursuant to Arkansas Supreme Court Rule 1-2(d) (2016).
We find merit in the City’s argument on direct appeal and on cross-appeal.
Accordingly, for the reasons stated in City of Benton v. Alcoa Storage, 2017 Ark. 78, ___S.W.3d
___, handed down this same date, we reverse on direct appeal and affirm on cross-appeal.
Reversed on direct appeal; affirmed on cross-appeal.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. I dissent for the reasons stated in
the companion case, City of Benton v. Alcoa Storage, Inc., 2017 Ark. 78, ___ S.W.3d ___,
1
The amount of compensation is not an issue in the direct appeal or the cross-appeal.
2
Cite as 2017 Ark. 80
handed down this same date.
Jensen Young & Houston, PLLC, by: Brent Houston, for appellant.
Eichenbaum Liles, P.A., by: Christopher O. Parker, for appellees.
3
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170 Conn. 220 (1976)
DORIS MCCROREY,
ADMINISTRATRIX (ESTATE OF MAGGIE CHAMBERS)
v.
GEORGE S. HEILPERN
Supreme Court of Connecticut.
Argued December 9, 1975.
Decision released February 10, 1976.
HOUSE, C. J., LOISELLE, BOGDANSKI, LONGO and BARBER, JS.
Donald W. O'Brien, for the appellant (defendant).
Joseph P. Kenny, for the appellee (plaintiff).
PER CURIAM.
The plaintiff administratrix brought this action to recover damages for personal injuries allegedly sustained by the plaintiff's decedent result of an alleged defect in housing premises owned by the defendant. The jury returned a plaintiff's verdict, and from the judgment the defendant has appealed, assigning error in the trial court's denial of his motions to set aside the verdict and for judgment notwithstanding the verdict, in its rulings on evidence, and in its charge.
The plaintiff's decedent was a tenant in an apartment building owned by the defendant. On February 8, 1970, the decedent fell to the floor of the hallway outside the kitchen door of her apartment and sustained serious injuries. The defendant landlord was in possession and control of that hallway. Although the evidence in this case was conflicting on almost all points, the plaintiff did present evidence from which the jury could have reasonably *221 concluded that there was a hole, large enough to catch the heel of a woman's shoe, located in the floor of the hallway, and that the decedent's fall was caused by the heel of her shoe "catching" or "going down" into that hole.
"It is a familiar rule that the landlord is under a duty to use reasonable care to keep those parts of his building which are under his control in a reasonably safe condition and that if he fails in that duty and has actual or constructive notice of the defect in time to remedy it an injured plaintiff who is himself in the exercise of due care can recover." Morris v. King Cole Stores, Inc., 132 Conn. 489, 492, 45 A.2d 710; see, e.g., Pollack v. Gampel, 163 Conn. 462, 468, 313 A.2d 73; Kirby v. Zlotnick, 160 Conn. 341, 344, 278 A.2d 822; Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824. In the present case, at the conclusion of the evidence, the defendant moved for a directed verdict on the ground that there was no evidence from which the jury could have reasonably found that the defendant had either actual or constructive notice of any claimed defect. The defendant later moved to set aside the verdict and for judgment notwithstanding the verdict on that same basis.
There was no evidence that the defendant had actual notice of the hole prior to the decedent's fall. In order to charge the defendant with notice of the defect, it was incumbent upon the plaintiff to introduce evidence from which it would have been reasonable for the jury to find that the specific defect had existed for a sufficient length of time for the defendant, in the exercise of reasonable care, to have discovered it in time to have it remedied. See, e.g., Morris v. King Cole Stores, Inc., supra.
*222 The evidence in this case, considered in a light most favorable to the plaintiff, furnished no reasonable basis for the jury's conclusion, as indicated by their verdict, that the hole had existed for a sufficient length of time to charge the defendant with notice of it. The present case is distinguishable from those in which the condition of something is of such a permanent character that testimony concerning its condition after an event would in itself permit the reasonable inference that the condition was the same at the time of the event. See Johnson v. Palomba Co., 114 Conn. 108, 114, 157 A. 902, and cases cited therein. Those cases generally involve testimony concerning the structural makeup or design characteristics of an object or structure. Id. The only evidence with respect to the alleged hole concerned its diameter and its distance from the decedent's door. For all that appears, the hole could have come into being only a moment prior to the time of the decedent's fall. Any determination that it had existed for a sufficient length of time for the defendant to have discovered it would have been purely speculative. See Bernstein v. Grand Union Co., 148 Conn. 726, 728, 169 A.2d 267. The court should have set aside the verdict. New Britain Trust Co. v. New York, N.H. & H.R. Co., 145 Conn. 390, 393, 143 A.2d 438.
There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendant notwithstanding the verdict.
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Case: 14-50700 Document: 00513344559 Page: 1 Date Filed: 01/15/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50700
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 15, 2016
HAROLD L. RYALS,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
EL PASO COUNTY; DETECTIVE EDUARDO GUTIERREZ,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:13-CV-288
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Harold L. Ryals, Texas prisoner # 1940539, challenges the district court’s
dismissal of his 42 U.S.C. § 1983 complaint. Ryals raises the following
arguments on appeal: that the district court erred by dismissing his due
process and equal protection claims; that Texas law regarding sex offender
registration is preempted by federal law; that his obligation to register as a sex
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-50700 Document: 00513344559 Page: 2 Date Filed: 01/15/2016
No. 14-50700
offender expired in March 2013; and that the district court erred in handling
his discovery requests and motion for appointment of counsel.
We review the grant of a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) de novo. Lampton v. Diaz, 639 F.3d 223, 225 (5th Cir.
2011). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (internal quotation marks and
citation omitted). This court also reviews a district court’s summary judgment
dismissal de novo and its findings of fact for clear error. See Stauffer v.
Gearhart, 741 F.3d 574, 581 (5th Cir. 2014); FED. R. CIV. P. 52(a). A district
court may grant summary judgment under Federal Rule of Civil Procedure 56
if the record demonstrates “that there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a); Stauffer, 741 F.3d at 581. “A genuine issue of material fact exists
if the record, taken as a whole, could lead a rational trier of fact to find for the
non-moving party.” Harris v. Serpas, 745 F.3d 767, 771 (5th Cir.) (internal
quotation marks and citation omitted), cert. denied, 135 S. Ct. 137 (2014). In
reviewing both a motion to dismiss under Rule 12(b)(6) and a motion for
summary judgment, we will construe the facts in the light most favorable to
the plaintiff and draw all reasonable inferences in the plaintiff’s favor. Kitchen
v. Dallas Cty., Tex., 759 F.3d 468, 476 (5th Cir. 2014); Leal v. McHugh, 731
F.3d 405, 413 (5th Cir. 2013).
To the extent that Ryals challenges the district court’s summary
judgment dismissal of his due process claim, he fails to identify any error in
the district court’s reasoning, nor does he meaningfully challenge the district
court’s reasoning. Issues not addressed in a brief are abandoned. Raj v.
Louisiana State University, 714 F.3d 322, 327 (5th Cir. 2013). Similarly, mere
2
Case: 14-50700 Document: 00513344559 Page: 3 Date Filed: 01/15/2016
No. 14-50700
recitations of law and “abrupt assertions” of wrongdoing do not present issues
for appeal. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987). Thus, he has waived any challenge to the district court’s
summary judgment dismissal of his due process claim. See United States v.
Green, 964 F.2d 365, 371 (5th Cir. 1992). Similarly, to the extent he challenges
the district court’s dismissal of his equal protection claim for failure to state a
claim, he fails to identify any error in the district court’s analysis. Ryals’s
challenge consists entirely of unsupported legal conclusions and citations to
various sources without any explanation of the sources cited. Thus, he has also
abandoned any challenge to the dismissal of his equal protection claim. See
Brinkmann, 813 F.2d at 748; Green, 964 F.2d at 371.
Next, Ryals’s argument that federal law preempts Texas’s Sex Offender
Registration Program (TSORP) is also unavailing. The district court
determined that no such preemption applied. In his brief, Ryals cites to no
authority that supports his argument. To the extent that Ryals briefs the issue
at all, he fails to identify any error in the district court’s analysis or show that
he is entitled to relief on the issue, and he has thus abandoned the issue. See
Brinkmann, 813 F.2d at 748.
Ryals also challenges the district court’s determination that his sex
offender registration obligation ended in October 2013, and he maintains that
his obligation actually expired in March 2013. Ryals’s argument, however, is
not supported by the record. Under the Texas Sex Offender Registration
Program, for individuals not required to register for the duration of their lives,
the obligation to register “ends on the 10th anniversary of the date on which
the person is released from a penal institution or discharges community
supervision . . . whichever date is later.” TEX. CODE CRIM. PROC. ANN. art.
62.101(b) (emphasis added). Whether or not Ryals was released from prison
3
Case: 14-50700 Document: 00513344559 Page: 4 Date Filed: 01/15/2016
No. 14-50700
in March 2003, as he claims, the evidence is uncontroverted that Ryals
discharged his community supervision in October 2003 upon reaching majority
age. Ryals has shown no error.
Finally, Ryals challenges the district court’s rulings on several discovery
matters, as well as the district court’s denial of his motion for appointed
counsel. Having reviewed the challenged rulings and Ryals’s arguments
thereon, we conclude that Ryals has failed to identify how the district court’s
discovery rulings were “arbitrary or clearly unreasonable.” See Wiwa v. Royal
Dutch Petroleum Co., 392 F.3d 812, 817 (5th Cir. 2004). Likewise, with respect
to Ryals’s motion for appointed counsel, because Ryals failed to show
exceptional circumstances, the district court’s denial of the motion was not an
abuse of discretion. See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007);
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
AFFIRMED.
4
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2015 IL App (5th) 140069
NOTICE
Opinion filed April 7, 2015. NO. 5-14-0069
Modified upon denial of
rehearing September 24, 2015.
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
SINCLAIR OIL CORPORATION, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 08-MR-602
)
ALLIANZ UNDERWRITERS INSURANCE )
COMPANY, f/k/a Allianz Underwriters, Inc., ) Honorable
) Donald M. Flack,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court, with opinion.
Justices Chapman and Schwarm concurred in the judgment and opinion.
OPINION
¶1 The defendant, Allianz Underwriters Insurance Company, formerly known as
Allianz Underwriters, Inc. (Allianz), appeals, pursuant to Illinois Supreme Court Rule
304(a) (eff. Feb. 26, 2010), the January 8, 2013, order of the circuit court of Madison
County which granted a partial summary judgment in favor of the plaintiff, Sinclair Oil
Corporation (Sinclair). In said order, the circuit court made a determination that Allianz
breached its duty to defend Sinclair with respect to multiple underlying lawsuits and
claims arising out of alleged environmental contamination of soil and groundwater in
Hartford, as well as cleanup activities and alleged exposure to benzene-containing
1
products as a result of such alleged contamination (the underlying lawsuits). We restate
the issues necessary to resolve this appeal as follows: (1) whether an umbrella insurance
policy issued by Allianz contained a "drop down" provision that required Allianz to
defend Sinclair upon exhaustion of an underlying primary policy issued by the Home
Indemnity Company (the Home policy); (2) whether the underlying policy contained
aggregate limits of $500,000 for bodily injury and property damage; and (3) whether the
information Sinclair provided to Allianz regarding payments under the Home policy and
the nature of the claims set forth in the underlying lawsuits was sufficient to trigger
Allianz's "drop down" duty to defend as a matter of law. For the following reasons, we
affirm in part, reverse in part, and remand for further proceedings not inconsistent with
this opinion.
¶2 FACTS
¶3 1. Undisputed Factual Background
¶4 A review of the record on appeal reveals the following facts, which are not in
dispute. Sinclair owned and operated an oil pipeline near Hartford between 1979 and
1990. During 1981 and 1982, there are four instances on record where the pipeline
leaked or spilled. Sinclair ceased operation of the pipeline in 1984, but some petroleum
remained dormant in the pipeline. When Sinclair evacuated the pipeline in 1990, Sinclair
discovered that more petroleum had leaked from the pipeline during its dormant stage. 1
1
The parties agree that Sinclair's five discrete polluting events contributed to, at
most, a tiny fraction of the contamination in the Hartford area when compared to the
2
¶5 Contamination in and around Hartford prompted multiple lawsuits filed in
Madison County, beginning in 2003, which named Sinclair along with several other
entities associated with pipelines and refineries in the area as defendants (the underlying
lawsuits). The underlying lawsuits include claims for property damage 2 and personal
injury, 3 as well as regulatory matters relating to administrative orders issued by the
United States Environmental Protection Agency and the Illinois Environmental
Protection Agency (EPA) for remediation of the contamination.
¶6 The Allianz insurance policy at issue in this case is a commercial general liability
umbrella policy with policy number AUL 5100556 (the Allianz policy), which was
effective from July 31, 1981, to July 31, 1982. According to the schedule of underlying
contributions of other entities that owned and operated the large oil refineries around
Sinclair's pipeline.
2
Sparks v. Premcor, No. 03-L-1053 (hereinafter Sparks); Abert v. Alberta Energy,
No. 04-L-354 (hereinafter Abert); Bedwell v. Premcor, No. 04-L-342 (hereinafter
Bedwell); Village of Hartford v. Premcor, No. 08-L-637 (hereinafter Village of Hartford);
Hopkins v. Premcor, No. 03-L-1053; and State of Illinois v. Premcor, No. 03-CH-459
(third-party complaint for contribution).
3
Wright v. Apex Oil, No. 05-L-1210; Vostry v. Apex Oil, No. 07-L-1;
Brzostowski v. Atlantic Richfield, No. 07-L-340; Schulte v. Apex Oil, No. 07-L-629;
Jones v. A&E, No. 07-L-323; Smith v. Sinclair, No. 08-L-681; Peters v. Amoco, No. 09-
L-56 (hereinafter Peters); and Johns v. Amoco, No. 09-L-136.
3
insurance appended to the Allianz policy, the primary commercial general liability policy
underlying the Allianz policy was issued by Home and was effective July 31, 1981, to
July 31, 1984. It is the interplay between the Allianz policy, the Home policy, and the
underlying lawsuits that is at issue on appeal.
¶7 2. The Pleadings
¶8 Sinclair initially filed a complaint for a declaratory judgment against Allianz in the
circuit court of Madison County in 2008. However, the operative complaint for purposes
of this appeal is the third amended complaint, filed September 20, 2011. The third
amended complaint sets forth the details of each of the underlying lawsuits. With regard
to the regulatory matters, the complaint alleges that Sinclair entered into an agreement,
dated April 2004, to share the costs of remediating the contamination in and around
Hartford with the other entities that had operated in the area. According to the complaint,
between November 2005 and December 2006, Sinclair made payments pursuant to the
agreement "in excess of $3,696,000." In addition, the complaint alleges that, as of the
date of the complaint, Sinclair has "paid over $3 million" defending itself in the
underlying actions.
¶9 The complaint requests, inter alia, a declaratory judgment that Allianz has a duty
to defend Sinclair with respect to the underlying actions, and that Allianz breached that
duty by failing to defend Sinclair under a reservation of rights or seek a declaratory
judgment with regard to coverage. Further, the complaint seeks a declaration by the
circuit court that, because Allianz breached its duty to defend Sinclair with respect to the
underlying actions, Allianz is estopped from asserting any defenses to coverage, and, as
4
such, is required to indemnify Sinclair for all sums that Sinclair has or will become
legally obligated to pay as a result of the underlying actions. Alternatively, the complaint
seeks a declaration that Allianz is legally obligated to indemnify Sinclair irrespective of
its duty to defend.
¶ 10 Allianz filed a counterclaim for a declaratory judgment that it had no duty to
defend or indemnify Sinclair with regard to the underlying lawsuits, asserting that its
policy contains no such duty. In addition, Allianz asserted several defenses to coverage,
including inadequate notice, failure to make a "definite claim," horizontal exhaustion, and
a pollution exclusion. On October 4, 2011, Sinclair filed a motion for partial summary
judgment, seeking a declaration that Allianz has a duty to defend Sinclair in the
underlying actions and that Allianz breached that duty, resulting in its being estopped
from asserting any defenses to coverage. In reviewing the supporting documentation
appended to the motion for partial summary judgment, we begin by noting that both the
Allianz policy and the Home policy are attached to the motion. 4 We will set forth the
relevant language of each policy in detail below as it becomes necessary to analyze the
issues on appeal.
4
Sinclair's copies of the Allianz and Home policies differ slightly from Allianz's
copies of these policies. However, the provisions that must be interpreted in order to
resolve this appeal are identical in each party's copy, and there is no dispute as to the
wording of these provisions.
5
¶ 11 3. The Wyoming Lawsuits
¶ 12 Our recitation of the facts that can be determined from a review of the remaining
attachments to Sinclair's motion will be presented in order to place those facts in a
chronological perspective, rather than as they were presented to the circuit court. The
affidavit of David Stice, a corporate attorney for Sinclair since 1991, with the exception
of three years beginning in July of 1999, was presented to provide proof that Allianz was
aware that the Home policy had been exhausted by prior settlements Home paid on behalf
of Sinclair for the same policy that is at issue in the case at bar. In the affidavit, Mr. Stice
avers that there were several lawsuits filed against Sinclair and others in the 1990s
concerning "claims of bodily injury and/or property damage allegedly resulting from
prior operations at Sinclair's Wyoming refinery (the Wyoming lawsuits)." 5 According to
Stice's affidavit, one of the Wyoming lawsuits 6 alleged both personal injury and property
damage from exposure to materials from Sinclair's Wyoming refinery, while the other
Wyoming lawsuits alleged property damage only. Through correspondence and phone
calls, Allianz was kept apprised of developments in the Wyoming lawsuits and was
5
Albertson v. Dow Chemical Co., No. 65212 (hereinafter Albertson); People of the
State of Wyoming v. Little America Refining Co., No. 62325 (hereinafter People of
Wyoming); KN Energy, Inc. v. Sinclair Oil Corp., No. 93-CV-0080-B (hereinafter KN
Energy); and United States v. Sinclair Oil Corp., No. C89-0153 (hereinafter U.S. v.
Sinclair).
6
Albertson, No. 65212.
6
invited to participate in settlement discussions, but declined. Stice's affidavit sets forth
the details of Sinclair's settlement of each of the Wyoming lawsuits 7 and states that legal
defense costs and fees for the Wyoming lawsuits exceeded $5 million.
¶ 13 The record contains intermittent correspondence between Sinclair and Allianz
regarding the Wyoming lawsuits. In letters from Allianz to Sinclair dated March 28,
1991, August 13, 1991, and August 29, 1991, Allianz admitted that the Wyoming
lawsuits implicated three Allianz policies, including the Allianz policy at issue in this
case, effective July 31, 1981, to July 31, 1982. In these letters, Allianz states its position
with regard to the Wyoming lawsuits, that the Allianz policy at issue is an excess policy,
requiring exhaustion of all underlying policy limits, and that, in any case, the Allianz
policy at issue contains a pollution exclusion. On March 23, 1992, Allianz sent Sinclair a
letter opting not to participate in a declaratory judgment action Sinclair was preparing to
commence against other insurance companies that had issued commercial liability
policies to Sinclair that were potentially implicated by the Wyoming lawsuits.
¶ 14 On April 17, 1996, Sinclair sent a letter to Allianz enclosing "a copy of page 3 of
the Settlement Agreement" between Home and Sinclair resolving coverage of the
Wyoming lawsuits, "confirm[ing] that Home paid $3.5 million in total to Sinclair and the
7
According to Stice, Sinclair settled Albertson for $5.25 million and settled KN
Energy for $1 million, plus certain benefits valued at $1.25 million. Sinclair settled
People of Wyoming and U.S. v. Sinclair by agreeing to perform corrective action near the
Wyoming refinery and spent approximately $6 million performing said corrective action.
7
allocation by policy of the $3.5 million." According to the enclosed excerpt from that
settlement agreement, Home and Sinclair agreed to allocate $500,000 of the settlement to
the underlying Home policy at issue for the 1981-1982 policy period. All of the
$500,000 was allocated to claims for property damage. The settlement agreement
specifically shows that none of the $500,000 was allocated to claims for bodily injury.
¶ 15 The record contains a copy of the full settlement agreement entered into by Home
and Sinclair in order to resolve coverage disputes over the Wyoming lawsuits. However,
there is no indication as to whether or when the full settlement agreement was provided
to Allianz. The "Settlement Agreement" states that Sinclair "owns and operates" a
refinery in or near Evansville, Wyoming, and that disagreements have arisen between
Sinclair and Home as to the application, if any, of the Home policy to insurance claims
"arising out of alleged pollution or contamination at and emanating from the Refinery."
The "Settlement Agreement" states that "demands have been made on Sinclair by ***
government regulatory agencies *** as well as individuals and non-governmental entities
*** in connection with alleged contamination of soil, groundwater and air at and
emanating from the Refinery." However, the "Settlement Agreement" does not delineate
whether all of the claims were for property damage or if any of them were for bodily
injury.
¶ 16 In a largely redacted letter dated August 9, 1996, from Sinclair to Allianz, counsel
for Sinclair states as follows:
"[W]e have provided you with specific evidence from the Settlement Agreement
between Home and Sinclair demonstrating that the property damage limits were
8
paid by Home for the 7/31/81-82 policy year. Accordingly, exhaustion of the
Home policy underlying Allianz has occurred. You indicate that you need
additional information concerning 'the nature of the claims that have been paid,
and how settlement sums have been allocated to the various policy years…' We
do not understand what additional information you are requesting because the
information you are requesting has already been provided to you. We are glad to
entertain a more specific request. For example, during a meeting on January 5,
1996, in which your representatives *** were present, the nature of the claims and
how settlement sums have been allocated to various policy years were discussed in
specific detail. After the meeting, [your representatives] requested additional
information from Sinclair which was provided to them in a letter dated January 11,
1996. Relevant portions of the Settlement Agreement between the primary carrier,
Home Insurance Company and Sinclair Oil we [sic] provided in the January 11,
1996[,] letter and the April 17, 1996[,] letter also references the actions being
settled and how the payments by Home are being allocated.
With respect to damages, we have also previously provided you with a full
breakdown. At this point, we do not understand what additional information you
require. If you can be more specific, please let me know. In the January 5,
1996[,] meeting and in subsequent letters we communicated to Allianz
representatives the following dollar/damages information with extensive backup:
Defense costs………………………$3,656,100
Litigation Liability…………………$10,449,000
9
Future and past cleanup costs……...$14,761,272"
Footnotes in the letter contain further breakdown of Sinclair's projected liability in the
Wyoming lawsuits. According to the footnotes, Sinclair paid $5,250,000 "as settlement
in the toxic tort case of Albertson." The other figures are noted to be projections of
defense, settlement, and remediation costs in the remaining Wyoming lawsuits.
¶ 17 Other than the statements contained in the above-mentioned letters, the record
contains no affidavit or other evidence indicating what information was provided to
Allianz or any other specific details of the Wyoming lawsuits. In addition, the record
contains no evidence showing a breakdown of payments made by Sinclair with respect to
bodily injury versus property damage claims stemming from the Wyoming lawsuits. In a
partially redacted letter dated October 29, 1996, from Allianz to Sinclair, counsel for
Allianz stated, "Allianz does not necessarily agree with your analysis that the limits
underlying the Allianz policy for the 1981-1982 term have been exhausted. We also do
not necessarily agree with Home's position that their defense obligation has been relieved
by their settlement."
¶ 18 4. The Underlying Lawsuits
¶ 19 We next set forth the evidence presented in Sinclair's motion for partial summary
judgment which references the nature and status of the claims arising from the underlying
lawsuits that were instituted as a result of the Hartford contamination. First, Sinclair
attached the affidavit of its attorney, Joseph G. Nassif, who averred that Sinclair has
provided "many updates" to Allianz regarding negotiations with other responsible parties
and the EPA and "requested that Allianz pay the costs of Sinclair's participation." Mr.
10
Nassif also attested to Sinclair's legal fees of "over 3 million" in the underlying lawsuits
and provided an evidentiary foundation for numerous letters and emails between the
parties that were also attached to the motion. Finally, Mr. Nassif's affidavit directed the
circuit court to a website that corroborated the fact that the underlying primary carrier,
Home, was liquidated in 2003 and is insolvent. An order of liquidation for Home dated
June 11, 2003, is also contained in the record.
¶ 20 A review of the correspondence attached to the motion for partial summary
judgment reveals that much of the communications contained therein are redacted.
However, what follows are details that can be gleaned from these communications. On
December 2, 2005, Sinclair sent a letter to AON Natural Resources Risk Services (AON)
which provided information in relation to its pipeline leaks in Hartford. According to the
letter, the EPA ordered many of the other entities affiliated with the contamination to take
emergency response actions which commenced "as early as the Fall of 2003." Sinclair
was added as a participant in the cleanup as of November 18, 2005. At the time of the
letter, it appears there were two property damage lawsuits on file naming Sinclair as a
defendant, one which was styled as a class action and one that was filed by a group of
individuals, but not in class action form. However, from the letter itself, one is not able
to discern to which specific lawsuits the letter is referring.
¶ 21 On January 11, 2006, AON, on behalf of Sinclair, sent out a "Notice of
Loss/Claim" to approximately 30 insurance companies, including Home and Allianz,
11
listing five of the underlying lawsuits 8 and stating that "these claims give rise to coverage
under one or more of the insurance policies on the attached list" and purporting to be
"notice in accordance with the notice terms of each policy." The letter states that a
compact disc is enclosed containing copies of the complaints in Sparks, Bedwell, and
Abert, as well as the EPA administrative order and a document explaining the status of
the litigation in Village of Hartford. According to the letter, a review of these documents
shows that Sinclair has been named as a defendant in lawsuits by owners of property in
Hartford who allege Sinclair contributed to cause a toxic plume which allegedly consists
of an estimated four million gallons of petroleum and/or petroleum byproducts which lie
beneath their property, and that said plume has caused property damage and bodily injury
to persons living in Hartford.
¶ 22 The remaining correspondence between the parties that is contained in the record
took place between 2008 and 2010, between the time this action for declaratory judgment
and the motion for partial summary judgment were filed. On November 12, 2008,
Sinclair stated in a letter to Allianz that "[b]ased on the potential monetary exposure
facing Sinclair and the money expended thus far, Allianz *** should step in and provide
Sinclair the coverage afforded under the excess polic[y] identified in the enclosed
complaint." On March 17, 2009, Sinclair stated in a letter that Allianz's umbrella
coverage is triggered because the underlying Home policy was exhausted through
8
Sparks, Bedwell, Abert, Village of Hartford, and EPA lawsuits; see footnote 2 for
full names and case numbers.
12
payment of the policy limits, and enclosed a copy of the "Settlement Agreement"
between Home and Sinclair in the Wyoming lawsuits. The letter states, "To date, no
carrier has paid any amounts to or on behalf of Sinclair in connection with the underlying
actions."
¶ 23 A March 25, 2009, letter from Sinclair to Allianz attaches the complaint in the
Peters case and states that the complaint concerns the plaintiff's alleged workplace
exposure to benzene. The letter states, "On behalf of Sinclair, we request defense and
indemnification in the Peters case." A May 13, 2009, largely redacted email from
Sinclair states, "We will provide what we believe to be consistent with our client's
demand for coverage." On June 10, 2009, Sinclair provided Allianz with a report on
settlement discussions with the Village of Hartford "[i]n our continuing effort to keep
your clients informed of, and seek their participation in, settlement discussions with the
underlying claimants."
¶ 24 On November 11, 2009, Sinclair states, "We continue to request Allianz' *** full
participation in defense and indemnification in the Wright case and, therefore, ask that
you advise us as soon as possible of your client's position towards potential settlement."
On May 7, 2010, Sinclair stated in a letter to Allianz, "It is particularly egregious that
Allianz continues to refuse to pay Sinclair's defense costs, despite the fact that Sinclair
has provided Allianz with clear evidence demonstrating that all coverage underlying the
policy has been exhausted." (Emphasis in original.) On August 18, 2010, Sinclair asked,
"[G]iven all the information we have provided to Allianz about the underlying actions as
well as documents establishing Allianz' insurance obligations, what is Allianz' basis for
13
not defending?"
¶ 25 5. Proceedings and Orders of the Circuit Court and on Appeal
¶ 26 After full briefing by the parties, oral argument on Sinclair's motion for partial
summary judgment was held in the circuit court, the Honorable Barbara J. Crowder
presiding, on July 31, 2012. During argument, counsel for Sinclair represented to Judge
Crowder that both the property damage and bodily injury aggregate limits of the Home
policy were exhausted by virtue of the Wyoming lawsuits. According to Sinclair's
counsel, the property damage limits were paid by Home and the bodily injury limits were
paid by Sinclair. Counsel for Allianz indicated that Sinclair sought coverage for the
underlying lawsuits from Home up to the point of its insolvency in 2003. Judge Crowder
took the motion under advisement, and on January 8, 2013, entered a detailed order that,
inter alia, partially granted Sinclair's motion for summary judgment, as further detailed
below.
¶ 27 First, Judge Crowder found that Allianz had a duty to defend Sinclair in the
underlying actions pursuant to a "drop down" provision in its policy once the Home
policy limits were exhausted so long as the claims bring the underlying actions within the
coverage of the policy, and that the "claims listed" by Sinclair were for bodily injury and
property and fall within the definition of "occurrence" found in the Home policy. Judge
Crowder defined the second issue as "whether Sinclair established that the underlying
Home [p]olicy was exhausted, or at least that it advised Allianz that Sinclair thought the
Home policy was exhausted." Judge Crowder then found that the aggregate limits of the
Home policy were $500,000 for each type of liability, reasoning that "these limits are
14
clearly stated on the Schedule of Coverage and on the Certificate of Insurance for the
Home policy."
¶ 28 With regard to exhaustion, Judge Crowder determined that the payment by Home
pursuant to the settlement of the Wyoming lawsuits exhausted the property damage limits
of the underlying Home policy. Judge Crowder then recognized Sinclair's claim during
oral argument that it made payments in settlement of the Wyoming lawsuits that
exhausted the bodily injury limits of the policy. According to Judge Crowder, "[e]ven if
there was a question concerning the exhaustion of the bodily injury limits, Sinclair's
alerting Allianz to the possibility of exhaustion advised Allianz of the need to take action
or to be prepared to fulfill its duty for claims covering the 1981-82 policy period."
¶ 29 As to the duty to defend, Judge Crowder found that when Sinclair first provided
Allianz notice of the underlying lawsuits in January 2006, Allianz was required to offer a
defense, make a reservation of rights, or file a declaratory judgment. Because it took
none of these actions, Judge Crowder determined that, "[a]t a minimum," Allianz is liable
to pay Sinclair's defense costs and reasonable attorney fees in the underlying actions after
the date Sinclair provided notice in January 2006. Judge Crowder declined to grant a
request for fees incurred prior to that date "at this time." Finally, although Judge
Crowder found that Allianz "inexorably" breached its duty to defend, she stated that she
was not convinced that the law requires Allianz to be estopped from raising coverage
15
defenses, and reserved ruling on that issue pending further briefing by the parties. 9
Judge Crowder ordered Allianz to pay Sinclair's past legal fees and defense costs for all
of the underlying actions incurred after January 11, 2006, and to reimburse Sinclair's
ongoing legal fees and defense costs on a timely basis for those underlying actions that
have not yet been resolved.
¶ 30 On February 8, 2013, Allianz filed a motion to reconsider the circuit court's order.
The circuit court, the Honorable Donald Flack presiding, entered an order on July 19,
2013, denying the motion to reconsider. On January 24, 2014, the parties filed a joint
motion for a finding, pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010),
that there is no just reason for delaying either enforcement or appeal of the January 8,
2013, order granting, in part, Sinclair's motion for a partial summary judgment. The
parties also requested a stay of the proceedings pending the outcome of the appeal. Judge
Flack granted that motion on January 24, 2014, and Allianz filed a timely notice of
appeal on February 18, 2014.
¶ 31 On April 7, 2015, this court issued its original opinion resolving the issues on
appeal. On April 30, 2015, Allianz filed a petition for rehearing. After full briefing by
both parties regarding the issues raised in the petition for rehearing, we now issue this
9
It is important to note that this court declines to deliver an advisory opinion as to
this issue, as it was reserved by the circuit court, and therefore not within the scope of our
review. See People v. Dunmore, 2013 IL App (1st) 121170, ¶ 12 (appellate court will not
render an advisory opinion (citing People v. Campa, 217 Ill. 2d 243, 269 (2005))).
16
modified opinion upon denial of rehearing.
¶ 32 ANALYSIS
¶ 33 1. Standard of Review
¶ 34 Because this is an appeal from an order granting, in part, a motion for partial
summary judgment, our standard of review is de novo. Outboard Marine Corp. v.
Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). A circuit court should only
grant a motion for summary judgment when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. Id. Summary judgment
is a drastic remedy and should only be granted when the movant's right to the judgment is
clear and free from doubt. Id. Summary judgment is not appropriate in situations where
a reasonable person could draw different inferences from the facts contained within the
record. Id. With these standards for our review in mind, we move to the first issue
presented by this appeal.
¶ 35 2. Allianz Policy Language Regarding "Drop Down"
¶ 36 The first issue on appeal is whether the Allianz umbrella policy contained a "drop
down" provision which requires it to defend Sinclair in the event the underlying Home
policy is exhausted. 10 Before turning to the policy language at issue, it is important to
note the basic principles we use in interpreting an insurance policy. First, in construing
an insurance policy, it is the job of this court to ascertain the intent of the parties.
10
Allianz conceded this issue at oral argument. However, because the issue was
fully briefed, we will set forth our analysis for the sake of clarity.
17
Outboard Marine Corp., 154 Ill. 2d at 108. In order to determine the meaning of the
language of the policy and the intent of the parties, we must read the insurance policy as a
whole, while giving consideration to the type of risk involved, the subject matter that is
insured, and the purposes of the insurance contract. Id. If the language of the policy is
unambiguous, we must give the language its plain and ordinary meaning. Id. It is only if
the words in the policy are susceptible to more than one reasonable interpretation that we
will find the language to be ambiguous and construe them in favor of the insured. Id. at
108-09.
¶ 37 The provisions of the Allianz umbrella policy that must be construed in order to
determine whether Allianz had a "drop down" duty to defend Sinclair upon exhaustion of
the limits of the underlying Home policy are as follows. The Allianz umbrella policy,
under the heading "Insuring Agreements," section I, entitled "Coverage," states that "[t]he
Company hereby agrees, subject to the limitations, terms and conditions hereinafter
mentioned, to indemnify the Insured for all sums which the Insured shall be obligated to
pay by the reason of the liability *** for damages on account of: A. Personal Injuries; B.
Property Damage; C. Advertising Liability." In section II, entitled "Limits of
Liability−Retained Limit," the Allianz policy provides as follows:
"In the event of *** exhaustion of the aggregate limits of liability
applicable to the underlying insurance (listed in the Schedule of Underlying
Insurance hereof) by reasons of losses paid thereunder, this policy shall, subject to
the terms and conditions of the underlying insurance,
***
18
(b) in the event of exhaustion continue in force as underlying
insurance."
¶ 38 In addition, an amendatory endorsement to the policy, entitled "ASSISTANCE
AND COOPERATION," states:
"EXCEPT AS PROVIDED IN INSURING AGREEMENT II WITH RESPECT TO
THE EXHAUSTION OF THE AGGREGATE LIMITS OF UNDERLYING
POLICIES LISTED IN THE SCHEDULE OF UNDERLYING INSURANCE, THE
COMPANY WILL NOT BE CALLED UPON TO ASSUME THE
SETTLEMENT OR DEFENSE OF ANY CLAIM ***." (Emphasis added.)
¶ 39 Allianz argues that because the "Coverage" provision only contains a promise to
indemnify Sinclair, no duty to defend Sinclair exists in any instance. We agree with the
circuit court that this position is untenable. We must look at the terms of the policy as a
whole, and the plain language of the above-quoted policy provision states that if the
primary insurance in the underlying schedule is exhausted by reasons of payment of
losses, the Allianz policy will, "subject to the terms and conditions of the underlying
insurance, *** continue in force as underlying insurance." The parties do not dispute that
the Home policy was the only comprehensive general liability insurance in the schedule
attached to the Allianz policy, and they do not dispute that the terms of the Home policy
contained a duty to defend. Accordingly, the circuit court was correct in its
determination that there is a drop down provision in the Allianz policy which required
Allianz to defend Sinclair in the event of exhaustion of the aggregate limits of the Home
policy.
19
¶ 40 3. Aggregate Limits of Underlying Home Policy
¶ 41 Having determined that the Allianz policy required Allianz to defend Sinclair with
respect to the underlying lawsuits in the event of exhaustion of the aggregate limits of the
Home policy, we turn to the parties' disagreement on the meaning of the policy schedule
and terms defining aggregate limits. While the circuit court agreed with Sinclair's
position that the aggregate limit for all claims was $500,000, Allianz argues that the
Home policy contains aggregate limits for bodily injury and property damage resulting
from certain types of occurrences, and that the underlying lawsuits do not fall into the
category of claims that contain aggregate limits. For a determination of this issue, we
examine the underlying Home policy.
¶ 42 In examining the underlying Home policy, we must first set forth a description of
the page of the policy entitled "SCHEDULE." A preamble paragraph to a chart
purporting to show "Coverages" and "Limits of Liability" for "Each occurrence" and
"Aggregate," as well as "Description of Hazards," states that "[t]he insurance afforded is
only with respect to such of the following Coverages as are indicated by specific
premium charge or charges. The limit of the company's liability against each such
coverage shall be as stated herein, subject to all the terms of this policy having reference
thereto." (Emphasis added.) The chart provides that, with respect to "Coverage A-
Bodily Injury Liability," the "Limits of Liability" for "each occurrence" is "$500,000,"
and for "aggregate" is "$500,000." With respect to "Coverage B- Property Damage
Liability," the chart also provides that the "Limits of Liability" for "each occurrence" is
"$500,000," and "aggregate" is "$500,000." The "Description of Hazards" showing a
20
premium paid include "Premises-Operations" and "Innkeepers." However, the schedule
notes that "Independent Contractors" and "Completed Operations-Products" are included
in the premium.
¶ 43 Having set forth in detail the information contained within the "Schedule," we
move to the terms of the policy that have "reference thereto." These terms are set forth in
the policy as follows, with our emphasis added as to language that is critical to our
analysis of the issue of the aggregate limits:
"III. LIMITS OF LIABILITY
Regardless of the number of (1) insureds under this policy, (2) persons or
organizations who sustain bodily injury or property damage, or (3) claims made or
suits brought on account of bodily injury or property damage, the company's
liability is limited as follows:
Coverage A- The total liability of the company for all damages, including
damages for care and loss of services, because of bodily injury sustained by one or
more persons as a result of any one occurrence shall not exceed the limits of
liability stated in the schedule as applicable to 'each occurrence.'
Subject to the above provision respecting 'each occurrence,' the total
liability of the company for all damages because of (1) all bodily injury included
within the completed operations hazard and (2) all bodily injury included within
the products hazard shall not exceed the limit of bodily injury liability stated in the
schedule as 'aggregate.'
21
Coverage B- The total liability of the company for all damages because of
all property damage sustained by one or more persons or organizations as the
result of any one occurrence shall not exceed the limit of property damage liability
stated in the schedule as applicable to 'each occurrence.'
Subject to the above provision respecting 'each occurrence,' the total
liability of the company for all damages because of all property damage to which
this coverage applies and described in any of the numbered subparagraphs below
shall not exceed the limit of property damage liability stated in the schedule as
'aggregate.'
(1) all property damage arising out of premises or operations rated on a
remuneration basis or contractor's equipment rated on a receipts basis,
including property damage for which liability is assumed under any incidental
contract relating to such premises or operations, but excluding property
damage included in subparagraph (2) below;
(2) all property damage arising out of and occurring in the course of
operations performed for the named insured by independent contractors and
general supervision thereof by the named insured, including any such property
damage for which liability is assumed under the incidental contract relating to
such operations, but this subparagraph (2) does not include property damage
arising out of maintenance or repairs at premises owned by or rented to the
named insured or structural alterations at such premises which do not involve
changing the size of or moving buildings or other structures;
22
(3) all property damage included within the products hazard and all
property damage included within the completed operations hazard.
Such aggregate limit shall apply separately to the property damage described in
subparagraphs (1), (2) and (3) above, and under subparagraphs (1) and (2),
separately with respect to each project away from premises owned by or rented to
the named insured.
Coverages A and B- For the purpose of determining the limit of the
company's liability, all bodily injury and property damage arising out of
continuous or repeated exposure to substantially the same general conditions shall
be considered as arising out of one occurrence." (Emphasis added.)
¶ 44 Our reading of the above-quoted language from the Home policy leads us to
conclude that in order to determine how a "per occurrence" limit is identified, as well as
which claims have an "aggregate" limit as stated in the schedule, one must turn to the
explanation of those terms which is contained within the policy itself. The schedule itself
contains this caveat, directing the reader to "the terms of the policy which make reference
thereto." Turning to the terms of the policy, it is clear that the language making reference
to the schedule is intended to set forth the circumstances under which the "per
occurrence" limit applies and the circumstances under which the "aggregate" limit
applies. It is also clear that while the "per occurrence" limit is subject to the same
definition for bodily injury and property damage, the language setting forth the
circumstances under which the "aggregate" limit applies contains substantially different
language. From this differing language, we invariably conclude that only certain types of
23
claims are subject to an aggregate limit under the policy, and that there is a distinction
made between the types of bodily injury claims and the types of property damage claims
that are subject to an aggregate limit. Accordingly, Sinclair is incorrect in its position
that all claims are subject to a $500,000 aggregate limit, and we must further examine the
policy language to determine which types of claims are subject to such a limit.
¶ 45 Under the terms of the Home policy which specify the types of claims that have an
aggregate limit, we first turn to the terms explaining the types of claims for bodily injury,
under "Coverage A," that have aggregate limits. The language explaining the limits of
liability for "Coverage A," which is bodily injury, states that liability for bodily injury
included within the "completed operations hazard" and "products hazard" is not to exceed
the limits set forth in the schedule as "aggregate." "Completed operations hazard" and
"products hazard" have meanings that are specified in the definitions section of the
policy. In contrast, the language explaining the limits of liability for "Coverage B,"
which is property damage, states that "all damages because of all property damage to
which this coverage applies and described in any of the numbered subparagraphs below
shall not exceed the limit of property damage liability stated in the schedule as
'aggregate,' " and that the aggregate limit "shall apply separately to the property damage
described in subparagraphs (1), (2) and (3) above, and under subparagraphs (1) and (2),
separately with respect to each project away from premises owned by or rented to the
named insured."
¶ 46 From a comparison of the provisions governing "aggregate" limits with respect to
bodily injury and property damage, we conclude that the only claims for bodily injury
24
that are subject to an "aggregate" limit are claims arising under the "completed operations
hazard" and "products hazard," as defined in the policy. All other claims for bodily
injury are subject to the "per occurrence" limit. In contrast, it is difficult to ascertain
from the policy language whether all property damage claims are subject to an
"aggregate" limit, with some types of property damage claims having a separate
"aggregate" limit, as enumerated in the subparagraphs, or whether only those types of
property damages claims that are enumerated in the subparagraphs are subject to an
aggregate limit. In either case, in order to determine which "aggregate" limit applies to a
particular claim for property damage, one must determine the type of occurrence from
which the claim for property damages arises.
¶ 47 Based on the foregoing, potential aggregate limits for property damage under the
Home policy can be broken down as follows: (1) property damage arising out of premises
or operations rated on a remuneration basis or contractor's equipment rated on a receipts
basis, with a separate aggregate limit for such damage with respect to each project taking
place away from the insured's premises; (2) property damage occurring in the course of
operations performed by independent contractors, subject to some specified limitations,
with a separate aggregate limit for such damage with respect to each project taking place
away from the insured's premises; and (3) property damage included within the products
hazard and completed operation hazard. We find the policy language ambiguous with
regard to whether all other property damage has an aggregate limit. Nevertheless, the
circuit court erred in its determination that the underlying Home policy contained
aggregate limits of $500,000 for all claims. Instead, the only construction of the Home
25
policy that accounts for all of the policy language and construes the policy as a whole
(see Outboard Marine Corp., 154 Ill. 2d at 108-09) requires a determination of whether
any particular claim is subject to an aggregate limit according to the analysis set forth
above, and as summarized in the following table:
Bodily Bodily Injury arising Bodily Injury arising All other Bodily
Injury: from "Completed from "Products Hazard" Injury claims
Operations Hazard" $500,000 Aggregate subject to "Per
$500,000 Aggregate Limit Occurrence"
Limit Limit Only
Property "Property damage "Property damage Property All other
Damage: arising out of occurring in the course Damage arising Property
premises or of operations performed from Damage
operations rated on a by independent "Completed Ambiguous as
remuneration basis contractors" subject to Operations to Whether
or contractor's limitations specified in Hazard" and $500,000
equipment rated on a subparagraph (2) of "Products Aggregate
receipts basis" section III "Limits of Hazard" Limit Applies
$500,000 Aggregate Liability" $500,000
Limit with a separate $500,000 Aggregate Aggregate Limit
$500,000 Aggregate Limit with a separate
Limit for each $500,000 Aggregate
project taking place Limit for each project
away from insured's taking place away from
premises insured's premises
¶ 48 4. Duty to Defend of Umbrella Carrier Under "Drop Down"
¶ 49 Having made the foregoing analysis of the aggregate limits under the Home
policy, we must decide whether the information Sinclair provided to Allianz regarding
payments under the Home policy, as well as the nature of the claims set forth in the
underlying lawsuits, was sufficient to trigger an excess carrier's "drop down" duty to
defend as a matter of law. In Illinois, the duty to defend is much broader than the duty to
indemnify. Outboard Marine Corp., 154 Ill. 2d at 125. Our courts have held that in
26
order to determine whether an insurer's duty to defend has arisen, the court must compare
the allegations of the underlying complaint to the policy language. Id. If the court
determines, after construing the allegations of the complaint liberally in favor of the
insured, that the allegations fall within, or potentially within, the policy's coverage, the
insurer has a duty to defend the insured against the underlying complaint. Id. As such,
this court has stated as follows:
"When a complaint against an insured alleges facts that bring the action within or
potentially within the scope of insurance policy coverage, the insurer taking the
position that the complaint is not covered by the policy must defend the suit under
a reservation of rights or seek a declaratory judgment that there is no coverage."
Korte Construction Co. v. American States Insurance, 322 Ill. App. 3d 451, 457
(2001) (citing State Farm Fire & Casualty Co. v. Martin, 186 Ill. 2d 367, 371
(1999)).
¶ 50 In addition to the foregoing, this court has held that if an insured tenders to an
insurer the defense of a cause that meets the above-quoted "four corners of the
complaint" rule, and the insurer refuses to participate in the litigation, instead waiting for
the insured to institute litigation against the insurer to determine the insurer's rights and
duties, the insurer is estopped from raising noncoverage as a defense in that litigation. Id.
at 458. However, it is important to note that these rules and standards have been set forth
in cases involving a primary insurer, in which the policy at issue contains a "first dollar"
27
duty to defend. 11 Accordingly, the test that has been set forth by our courts regarding the
duty to defend assumes that the only prerequisite to the duty to defend is "coverage."
Pursuant to this test, we find that Allianz's arguments related to whether a limitation or
exclusion in its policy applies to bar coverage of the underlying lawsuits, including its
arguments regarding timeliness of notice, horizontal exhaustion, the pollution exclusion,
and whether Sinclair made a "definite claim," are the types of coverage questions of
which, if the "drop down" duty to defend were triggered, Allianz was required to seek a
judicial determination. As such, these arguments are irrelevant to our disposition of this
appeal. However, in a case such as this, where the issue concerns an umbrella carrier,
and the duty to defend under the policy is only triggered by the exhaustion of an
underlying policy pursuant to a "drop down" provision, we find that an additional
threshold standard concerning exhaustion should be required before the umbrella insurer
comes under a legal obligation to defend under a reservation of rights or to file a
declaratory judgment action.
¶ 51 In determining an appropriate threshold standard for triggering an umbrella
carrier's duty, under a "drop down" provision, to defend its insured under a reservation of
rights or to file an action for a declaratory judgment, we seek to balance Illinois public
11
Although the policy at issue in Korte had an "other insurance" clause that stated
that " '[t]his insurance is excess over: [a]ny other insurance provided to you on a primary
basis,' " the policy in Korte was not an "umbrella policy," but was a primary policy
containing a first line duty to defend. Korte, 322 Ill. App. 3d at 454.
28
policy, which places the burden on the insurer to have coverage defenses adjudicated,
with the expectations of the parties to an umbrella insurance contract such as the one at
issue here. In so doing, our focus is on the information that must be provided to the
umbrella carrier concerning the exhaustion of the underlying policy limits. We find our
supreme court's decision in Cincinnati Cos. v. West American Insurance Co., 183 Ill. 2d
317 (1998), to be instructive. In that case, the court was called upon to consider whether
an insurer had a duty to defend its insured without a specific request for a defense. Id. at
323-24. The supreme court held that "where the insured has not knowingly decided
against an insurer's involvement, the insurer's duty to defend is triggered by actual notice
of the underlying suit, regardless of the level of the insured's sophistication." Id. at 329.
The court further defined "actual notice" as "notice sufficient to permit the insurer to
locate and defend the lawsuit" (internal quotation marks omitted), in that "the insurer
must know both that a cause of action has been filed and that the complaint falls within or
potentially within the scope of the coverage of one of its policies." Id. at 329-30.
¶ 52 We find that a similar standard is appropriate in order to impose a duty on an
umbrella carrier to defend the insured upon exhaustion of the underlying limits under a
"drop down" provision. Accordingly, we hold that, in order to trigger such a duty to
defend, the umbrella carrier must have "actual notice" of the potential exhaustion of the
aggregate limits of the underlying insurance policy. We find that "actual notice" is notice
sufficient to allow the insurer to make a preliminary determination that the limits of the
underlying insurance policy have potentially been exhausted as to the claim or claims for
which the insured is seeking coverage. The umbrella insurer is entitled to more than an
29
insured's allegation of exhaustion. At a minimum, the insurer must be in possession of
some evidence of actual payments, made by the underlying insurance company or the
insured, that potentially meet or exceed the aggregate limits of the underlying policy that
is applicable to the claim for which the insured is seeking coverage. 12 Once the umbrella
carrier is in possession of such evidence of payments made, the burden is on the insurer
to resolve any potential issues regarding exhaustion. At that point in time, if the
complaint comes within the potential coverage of the excess policy, the umbrella insurer
has a duty to defend the insured. Accordingly, if the umbrella carrier wishes to litigate
the issue of underlying exhaustion or assert any other defense to coverage, it must defend
the insured under a reservation of rights or seek a declaratory judgment. See Korte, 322
Ill. App. 3d at 457 (citing Martin, 186 Ill. 2d at 371).
¶ 53 Having determined the appropriate standard to be employed in this case, we turn
to the record to determine whether summary judgment in favor of Sinclair regarding
Allianz's duty to defend is appropriate at this stage of the proceedings. We note at the
outset that because we have found that the underlying Home policy contains aggregate
12
It is important to emphasize that payments by the insured that exceed the
underlying policy limits are also to be considered exhaustion. To require the payments to
be made out of the primary insurer's coffers would preclude excess coverage under an
umbrella policy when the primary insurer has become insolvent or has wrongfully
withheld payment. See Emhart Industries, Inc. v. Home Insurance Co., 515 F. Supp. 2d
228, 244 (D.R.I. 2007).
30
limits for specific types of claims, and that we must differentiate the types of claims
containing aggregate limits as between bodily injury and property damage, we must
separate our analysis of Allianz's duty to defend accordingly. As such, we will first
determine whether there is evidence in the record to determine, as a matter of law, that
Allianz had some evidence of payments, either by Home or by Sinclair, of the aggregate
limits of the bodily injury coverage of the Home policy so as to trigger Allianz's duty to
defend upon notice of the underlying lawsuits containing claims of bodily injury. 13
Then, we will conduct the same analysis as to the underlying lawsuits containing claims
for property damage.
¶ 54 Having carefully considered the record, it is clear that there is insufficient
evidence, at this stage in the proceedings, to determine whether Allianz had possession of
some evidence of payments, either by Sinclair or by Home, of the $500,000 aggregate
limits of the policy for claims of bodily injury. As set forth above, bodily injury claims
only have an aggregate limit if they are included in the "completed operations hazard" or
"products hazard," as those terms are elsewhere defined in the policy. The parties have
not briefed the issue of whether the bodily injury claims arising from the Wyoming
lawsuits fit within these definitions such that they would even have an aggregate limit. In
13
If it is determined that Allianz did have the duty to defend, there must also be
evidence in the record to determine when the duty was triggered and when it received
"actual notice" of each lawsuit in order to determine those defense costs for which
Allianz is liable.
31
addition, it is clear that the Home settlement covering the Wyoming lawsuits was
allocated to property damage claims only. Further, although there is evidence that
Sinclair made substantial payments of its own to settle the Wyoming lawsuits, there is no
evidence of which payments were made for claims of bodily injury and whether Allianz
was provided evidence of any such payments. Accordingly, there are genuine issues of
material fact that must be resolved in order to determine whether the Wyoming lawsuits
exhausted bodily injury limits contained within the underlying Home policy.
¶ 55 Assuming that there was proof in the record that payments made for bodily injury
claims arising from the Wyoming lawsuits concerned the "completed operations hazard"
or "products hazard," in order for Allianz to have a duty to defend bodily injury claims
out of the underlying lawsuits in Hartford, the oil spill leaks would have to also have
arisen from the "completed operations hazard" or "products hazard." Otherwise, under
the terms of the Home policy, bodily injury claims are subject only to a "per occurrence"
limit. Again, the parties have not briefed the issue of whether the bodily injury claims
arising from the underlying lawsuit fell within these definitions such that they were
subject to an aggregate limit. The only way in which there can be a finding that Allianz
breached its duty to defend Sinclair with regard to the bodily injury claims is if Sinclair
can prove that the bodily injury claims arising from the Wyoming lawsuits and the
underlying lawsuits were subject to an aggregate limit under the Home policy, and that
Allianz had possession of some evidence of payments made by either Sinclair or Home of
32
$500,000 or more. 14 There is insufficient evidence in the record to make these findings at
this time.
¶ 56 The facts in the record are much different with regard to the claims for property
damage. Under our interpretation of the underlying Home policy, the issue of whether all
property damage claims are subject to the $500,000 aggregate limit requires the
resolution of an ambiguity in the underlying Home policy language. What is clear is that
some property damage claims have separate aggregate limits, as set forth above. The
parties do not dispute that Home made a $500,000 payment in settlement of its coverage
dispute with Sinclair over the Wyoming lawsuits, and specifically allocated that entire
amount to claims of property damage. The record shows that Sinclair sent Allianz some
evidence of this payment in the form of the settlement agreement in 1996, claiming that
14
We note that there is evidence in the record that Sinclair has expended over $3
million to defend the underlying lawsuits. Under the standards set forth in this opinion,
Allianz would be required to defend Sinclair once it had possession of some evidence that
Sinclair's payments on bodily injury claims exceeded the $500,000 "per occurrence limit"
of the underlying policy. However, it is unclear from the record as to what part of
Sinclair's payments have been for bodily injury claims, whether said payments exceed
$500,000, and if so, whether Allianz had some evidence of said payments in its
possession prior to filing its counterclaim for a declaratory judgment. If all of these
conditions were met, a breach of the duty to defend would have occurred within a
reasonable time after the information came into Allianz's possession.
33
the underlying limits had been exhausted. Allianz does not dispute that it was in
possession of this information. Accordingly, when Allianz received "actual notice" of the
underlying lawsuits, which included claims for property damage, the questions that
needed to be answered in order to ascertain exhaustion were whether the underlying
lawsuits fell within one of the categories of claims listed in the Home policy as having a
separate aggregate limit, and, if not, whether the Home policy language should be
interpreted to provide for an aggregate limit for all other property damage claims. We
find that this amounts to evidence of payments that potentially exhausted the underlying
insurance. We find that when there is an ambiguity in the underlying policy regarding
categories of aggregate limits, the burden is on the insurer to resolve that ambiguity, as
the umbrella carrier is in the best position to resolve the ambiguity in the underlying
policy prior to issuing an umbrella policy dependent on exhaustion of the underlying
aggregates. If the ambiguity as to the aggregate limits remains, as in the case at bar, once
an issue of exhaustion is raised by evidence of payments of the aggregate amount, the
burden is on the insurer to defend under a reservation of rights or filing a declaratory
judgment action.
¶ 57 Here, despite having possession of evidence of payments of $500,000 for property
damage, Allianz did nothing to resolve any issues remaining regarding exhaustion of the
underlying policy limits. Allianz did not seek information to enable it to determine
which category of claims the Wyoming lawsuits and the Hartford lawsuits would be
considered as under the Home policy, and it did not seek a judicial determination of the
ambiguity regarding property damage aggregates in the Home policy. Accordingly, we
34
find that Allianz breached its duty to defend Sinclair with regard to the property damage
claims arising out of the underlying lawsuits. 15 Thus, the circuit court was correct in
finding that Allianz was liable for defense costs from the time it received actual notice of
the lawsuits in 2006, but only those defense costs related to the claims for property
damage.
¶ 58 CONCLUSION
¶ 59 In conclusion, and for the foregoing reasons, we find that the circuit court erred
when it found adequate evidence in the record to prove, as a matter of law, that Allianz
breached its duty to defend Sinclair on any claims for bodily injury arising from the
underlying lawsuits. However, for the reasons stated herein, we affirm the circuit court's
determination that Allianz breached its duty to defend Sinclair with respect to the
property damage claims, and as such, is liable for defense costs Sinclair has incurred
defending the property damage claims from the time it gave Allianz notice of said claims
in 2006. Accordingly, we affirm in part, reverse in part, and remand for further
proceedings not inconsistent with this opinion, in which the circuit court, inter alia,
determines the amount of attorney fees attributable to the property damage claims in the
15
The circuit court reserved ruling on whether Allianz would be estopped from
asserting policy defenses to coverage by virtue of its breach of the duty to defend. As set
forth in footnote 9, we decline to set forth an advisory opinion on this issue. See People
v. Dunmore, 2013 IL App (1st) 121170, ¶ 12 (appellate court will not render an advisory
opinion (citing People v. Campa, 217 Ill. 2d 243, 269 (2005))).
35
underlying actions, and makes a determination, after further development of the record
based on the analysis set forth above, regarding Allianz's duty to defend Sinclair with
regard to the bodily injury claims.
¶ 60 Affirmed in part and reversed in part; cause remanded.
36
2015 IL App (5th) 140069
NO. 5-14-0069
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
SINCLAIR OIL CORPORATION, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 08-MR-602
)
ALLIANZ UNDERWRITERS INSURANCE )
COMPANY, f/k/a Allianz Underwriters, Inc., ) Honorable
) Donald M. Flack,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
Opinion Filed: April 7, 2015
Modified Upon Denial of Rehearing: September 24, 2015
______________________________________________________________________________
Justices: Honorable James R. Moore, J.
Honorable Melissa A. Chapman, J., and
Honorable S. Gene Schwarm, J.,
Concur
______________________________________________________________________________
Attorneys Kristi S. Nolley, David M. Alt, BatesCarey LLP, 191 North Wacker
for Drive, Suite 2400, Chicago, IL 60606; Daniel L. Bradley, DeFranco
Appellant & Bradley, P.C., 141 Market Place, Suite 104, Fairview Heights, IL 62208
______________________________________________________________________________
Attorneys Bernard Y. Ysursa, Cook, Ysursa, Bartholomew, Brauer & Shevlin, Ltd.,
for 12 West Lincoln Street, Belleville, IL 62220; Joseph G. Nassif, Ron
Appellee Hobbs, Husch Blackwell LLP, 190 Carondelet Plaza, Suite 600,
St. Louis, MO 63105
______________________________________________________________________________
| {
"pile_set_name": "FreeLaw"
} |
92 F.3d 51
1996 Copr.L.Dec. P 27,551, 39 U.S.P.Q.2d 1768
Jimmy MERCHANT and Herman Santiago,Plaintiffs-Appellees-Cross-Appellants,v.Morris LEVY, Big Seven Music Corp. and Roulette Records,Inc., Defendants-Appellants-Cross-Appellees,andWindswept Pacific Entertainment Co.,Intervenor-Defendant-Appellant-Cross-Appellee.
Nos. 1322, 1653, 1768, Dockets 95-7763L, 95-7765CON, 95-7767XAP.
United States Court of Appeals,Second Circuit.
Argued May 2, 1996.Decided Aug. 7, 1996.
James B. Sheinbaum, New York City, Scott L. Baker, New York City (Leon B. Borstein, Borstein, Sheinbaum & Lurie, New York City; Alan L. Shulman, Silverman & Shulman, New York City, on the briefs), for defendants-appellants-cross-appellees, Morris Levy, Big Seven Music Corp., Roulette Records, Inc., and intervenor-defendant-appellant-cross-appellee Windswept Pacific Entertainment Co.
Robert W. Cinque, New York City (James P. Cinque, Cinque & Cinque, New York City, on the brief), for plaintiffs-appellees-cross-appellants.
Before: NEWMAN, Chief Judge, FEINBERG and OAKES, Circuit Judges.
JON O. NEWMAN, Chief Judge.
1
This appeal concerns the appropriate time period in which those claiming to be co-authors of a work whose copyright is registered to another person may sue to establish their co-ownership rights. Defendants-appellants-cross-appellees Morris Levy, Big Seven Music Corp., and Roulette Records, Inc. (the "Levy Defendants") and intervenor-defendant-appellant-cross-appellee Windswept Pacific Entertainment Co. ("Windswept") (collectively, the "Defendants") appeal from the judgment of the District Court for the Southern District of New York (Naomi Reice Buchwald, Chief Magistrate Judge) entered on June 28, 1995. After a trial on the issue of liability was held in part before a jury and in part before the Court, the Court declared plaintiffs-appellees-cross-appellants Jimmy Merchant and Herman Santiago ("Plaintiffs") co-authors with Frankie Lymon of the well-known musical composition Why Do Fools Fall in Love ("Fools "), and co-owners of the copyright therein. Merchant v. Lymon, 828 F.Supp. 1048 (S.D.N.Y.1993). The Court awarded Plaintiffs an undivided one-half interest in the copyright of Fools and monetary damages that accrued within three years of the filing of the lawsuit. We agree with Defendants that Plaintiffs' claim seeking a declaration of co-ownership rights based on their co-authorship of Fools is time-barred by the three-year statute of limitations, and we therefore reverse the judgment of the District Court.
Background
2
Plaintiffs Merchant and Santiago are two of the original members of the singing group "The Teenagers," which was formed in 1955. Plaintiffs testified that in 1955 they jointly wrote the initial version of the song Fools. Frankie Lymon made a number of changes to the song when he subsequently joined the group, which then became known as "Frankie Lymon and The Teenagers." The jury found that Merchant, Santiago, and Lymon were co-authors of Fools. At the time, Lymon was 12 years old and Plaintiffs were each 15.
3
In 1956 the Teenagers recorded Fools for Gee Records, then owned and operated by George Goldner, now deceased. Plaintiffs testified that they relied upon Goldner to handle the formalities of copyrighting the song, and that Goldner informed them that only two of the three authors could be listed on the copyright. Subsequently, Goldner filed the Fools copyright with the Copyright Office in 1956, listing himself and Lymon as sole co-authors. The Levy Defendants maintain that Goldner was properly listed as an author because he was personally involved in writing and arranging Fools. The Levy Defendants also contend that Goldner was a co-author of Fools under the "work for hire" doctrine because, during the Fools recording session, a saxophone solo composed by a studio musician was incorporated into the song. The jury, however, found that Goldner was not an author of Fools.
4
Sometime in the 1950s Lymon agreed to let Goldner exploit Lymon's interest in the song. In 1968 Lymon died, survived by his wife Emira Lymon.
5
In 1964 defendant Morris Levy purchased Goldner's interest in several music companies, including the music publishing company that held the copyright for Fools. In a letter to the Copyright Office dated June 24, 1965, Goldner stated that Levy, rather than Goldner, had co-authored Fools with Lymon. The copyright registration was amended to reflect this statement and, thereafter, the copyright was held by Levy's company, Big Seven Music.1
6
Although Fools became a hit and continues to be popular today (Diana Ross has recorded a popular version), Plaintiffs have never received any royalties from their claimed co-authorship of Fools.
7
Plaintiffs reached the age of majority in 1961. They testified that on several occasions in the 1960s they contacted Goldner, and then Levy, to inquire about royalty payments, but to no avail. The jury found that Goldner and Levy deliberately concealed from Plaintiffs the accrual of royalties. The jury also found, however, that the only period during which Plaintiffs did not know, and could not have known with the exercise of reasonable diligence, that royalties to which they were entitled had accrued lasted from 1955 to 1961, while Plaintiffs were underage.
8
Plaintiffs also testified that they were afraid of Levy and that this fear made them reluctant to press their claims. Santiago testified that Levy threatened him in 1969, and Merchant testified that Levy threatened to kill him when, in 1977, he inquired about royalties. Plaintiffs assert that Levy was closely affiliated with organized crime and connected to a number of violent incidents. Levy was convicted in the late 1980s on federal extortion charges and sentenced to ten years in prison. The jury found that Levy threatened Plaintiffs with physical force and that Plaintiffs reasonably refrained from commencing suit because of the threats during a period that began in 1969 and lasted until December 24, 1984.2
9
Beginning in the late 1970s, Plaintiffs took various steps in pursuit of their claim, including hiring an attorney and investigator to look into the status of the copyright. Plaintiffs did not take formal legal action, however, until 1987.
A. Procedural History
10
Plaintiffs brought the instant Complaint against the Levy Defendants and Emira Lymon on October 7, 1987.3 Plaintiffs asked for a declaration that they were co-owners with Lymon of the copyright to Fools and for an accounting of royalties. Plaintiffs also alleged copyright infringement, Sherman Act and Lanham Act violations, unfair competition, fraud and misappropriation, and negligence and breach of fiduciary duty. Before trial the District Court (Vincent L. Broderick, Judge) dismissed all claims against Emira Lymon, but allowed the action to proceed against the Levy Defendants.
11
By agreement of the parties, trial was held in part before a jury and in part before now-Chief Magistrate Judge Buchwald. The jury's findings, as already noted, focused on the issues of authorship, fraudulent concealment, and duress. The parties agreed that, based on the jury's findings, the Court would make final rulings on whether Plaintiffs were entitled to an ownership interest in the Fools copyright, and would decide issues relating to the statute of limitations, equitable estoppel, and laches. The Court was also to decide, as fact-finder, whether Plaintiffs were entitled to judgment on their copyright infringement, Lanham Act, and common law unfair competition claims.4
12
After the jury's verdict, the Levy Defendants argued in post-trial motions that they were entitled to a new trial on the co-authorship issue, and to judgment as a matter of law (a) that the doctrines of laches and equitable estoppel barred Plaintiffs' claims and (b) that Plaintiffs were not victims of duress.
13
The Court denied the Levy Defendants' motion for a new trial on the co-authorship issue, ruling that the jury's findings were well-supported. Merchant, 828 F.Supp. at 1058. The Court then granted judgment in favor of the Levy Defendants on the claims of copyright infringement, Lanham Act violations, and unfair competition. Id. at 1058-60.
14
The Court granted Plaintiffs' basic request for a declaration of copyright co-ownership, rejecting the three defenses advanced by the Levy Defendants, all based on the long delay in Plaintiffs' assertion of their claim.
15
1. Duress and Statute of Limitations. The Court interpreted the three-year statute of limitations, applicable to civil copyright actions, 17 U.S.C. § 507(b), as limiting Plaintiffs' recovery to damages accruing within three years of the filing of the suit, rather than as an absolute bar to Plaintiffs' cause of action. Merchant, 828 F.Supp. at 1056. The important question for the Court then became whether the statute of limitations had been tolled for any period before the filing of the suit, thereby allowing Plaintiffs to recover damages that accrued even prior to three years before the suit. Id.
16
The Court held that in order to toll a statute of limitations, "the duress experienced by the injured party must have been operating at the time the original cause of action arose and must be continuous." Id. at 1061. The Court then found that from 1961, the time the cause of action arose (after Plaintiffs' majority), until at least 1969, the time of the alleged threat to Santiago, there was no evidence of duress, and therefore Plaintiffs were not entitled to a toll of the statute of limitations. Id. at 1061-62. The Court also overturned the jury's finding that Plaintiffs' fear reasonably lasted from 1969 until December 1984. The Court did not identify a specific date beyond which Plaintiffs' fear reasonably could not last, but indicated that any coercive effects dissipated in the late 1970s and early 1980s, when Plaintiffs were publicly acknowledging that Levy had "bilked" them out of their royalties. Id. Since the claim of duress was not available to toll the statute of limitations, the Court concluded that Plaintiffs were limited to damages that had accrued within three years of the suit. Id. at 1063.
17
2. Laches. Responding to the Levy Defendants' laches defense, the Court, relying on equity's "clean hands" principle, refused to allow the Levy Defendants to profit from their "untoward actions" by asserting laches. Id. at 1064.
18
3. Equitable Estoppel. As to equitable estoppel, which requires proof that a defendant was misled into justifiably believing that a plaintiff would not pursue its claims against the defendant, the Court determined that the Levy Defendants offered no evidence that Plaintiffs acted in a manner that justified a belief on the part of the Levy Defendants that their copyright was free from challenge. Id.
B. Subsequent Proceedings
19
The Court subsequently amended its opinion to modify the liability of Windswept, which had intervened after acquiring the rights to Fools that Levy had acquired from Lymon. The Court ruled that Windswept was liable only for damages accruing since February 25, 1990, three years before its intervention. Merchant v. Lymon, 848 F.Supp. 29 (S.D.N.Y.1994).
20
In the final judgment entered on June 26, 1995, the Court awarded Plaintiffs an undivided one-half interest in the copyright to Fools.5 The Court also ordered the Levy Defendants and Windswept to pay money damages to Plaintiffs.
21
On this appeal Defendants challenge the District Court's subject matter jurisdiction, and also argue that the District Court erred in not dismissing the action for a declaration of copyright co-ownership as barred by the statute of limitations or laches. Defendants additionally contend that Plaintiffs failed to establish that they are joint authors of Fools. Plaintiffs cross-appeal, arguing that the Court should have applied the tolling doctrine of equitable estoppel to allow Plaintiffs to recover damages accruing from 1969 to 1984, the period during which the jury had found that Plaintiffs were subject to duress.
Discussion
I. Subject Matter Jurisdiction
22
Defendants challenge the Court's subject matter jurisdiction, contending that the Complaint failed to allege a federal cause of action. Specifically, Defendants contend that (1) a claim for a declaration of co-ownership rights to a copyright is not a federal cause of action, and (2) Plaintiffs' other allegations based on federal law failed to state a proper claim. We reject both contentions.
23
Federal courts have exclusive original jurisdiction over actions arising under the federal copyright laws. See 28 U.S.C. § 1338(a). As Judge Friendly has explained, an action "arises under" the copyright laws "if the complaint is for a remedy expressly granted by the [Copyright] Act, ... or asserts a claim requiring construction of the Act ... or, at the very least and perhaps more doubtfully, presents a case where a distinctive policy of the Act requires that federal principles control the disposition of the claim." T.B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir.1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1534, 14 L.Ed.2d 435 (1965). Plaintiffs' action seeking to establish their rights to copyright co-ownership because of their status as co-authors of a joint work falls well within these jurisdictional boundaries.
24
The Copyright Act provides that "[c]opyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co[-]owners of copyright in the work." 17 U.S.C. § 201(a).6 Unlike a case where a dispute as to copyright ownership arises under an agreement between the parties, resolution of which depends on state contract law, see, e.g., Keith v. Scruggs, 507 F.Supp. 968, 971 (S.D.N.Y.1981), copyright ownership by reason of one's status as a co-author of a joint work arises directly from the terms of the Copyright Act itself. Because disposition of this case "involves the application and interpretation of the copyright ownership provisions ... federal jurisdiction ... [is] proper." Goodman v. Lee, 815 F.2d 1030, 1031-32 (5th Cir.1987); see Lieberman v. Estate of Chayefsky, 535 F.Supp. 90, 91 (S.D.N.Y.1982); see also 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, § 12.01[A] at 12-13 (1994) ("Nimmer ") ("better view" that "in an action for a declaratory judgment to establish the plaintiff as the defendant's co-author and for an accounting based thereon, ... federal jurisdiction is exclusively") (footnotes omitted)).
25
Defendants agree with Judge Friendly's formulation of the scope of federal jurisdiction, but contend that since neither "author," "joint author," nor "joint work" are defined in the Copyright Act of 1909, the resolution of Plaintiffs' claim does not depend on a construction of the copyright laws.7 This argument is without merit. Defendants are under the mistaken impression that courts "construe" only those terms already defined in a statute. Windswept raises the additional contention that only the factual determination of whether Plaintiffs participated in composing the song is at issue in this case, and therefore construction of the copyright statute is not required. We disagree. Defendants offer a number of arguments as to why Plaintiffs' contribution to the song is legally insufficient to make them joint authors (such as whether Plaintiffs' contribution was sufficiently original), and why Goldner's contribution sufficed to make him a joint author (for example, based on the "work for hire" doctrine, 17 U.S.C. § 201(b)). The resolution of these arguments involves construing the Act. See, e.g., Childress v. Taylor, 945 F.2d 500, 505-09 (2d Cir.1991).
26
Since the District Court's subject matter jurisdiction over Plaintiffs' claim for a declaration of copyright co-ownership is sufficient to confer jurisdiction over the entirety of Plaintiffs' Complaint, there is no need to consider Defendants' jurisdictional attack on Plaintiffs' other claims. Nevertheless, to the extent that Defendants are contending that other claims were not properly pleaded as federal claims, we note that as a general rule "the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction." Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946).
II. Statute of Limitations
27
We come finally to the dispositive issue. Plaintiffs filed the instant suit in 1987, primarily seeking a declaration of their copyright ownership rights and an accounting of profits. Civil actions under the Copyright Act are subject to a three-year statute of limitations. 17 U.S.C. § 507(b). Defendants argue that since Plaintiffs did not institute suit for a declaration of copyright co-ownership within three years of the accrual of their claim, they are now time-barred.
28
A cause of action accrues when a plaintiff knows or has reason to know of the injury upon which the claim is premised. Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir.1992), cert. denied, 508 U.S. 906, 113 S.Ct. 2331, 124 L.Ed.2d 243 (1993). The jury found that Plaintiffs were charged with knowledge of their claim as of 1961, the year they attained the age of majority. Thus, Plaintiffs' claim accrued in 1961, but they did not initiate suit until 26 years later. Though Plaintiffs contend on appeal that the statute was tolled, the basis for such tolling, duress, did not arise until 1969, ending in 1984. By 1969, however, the three-year statute of limitations had long since expired.
29
The District Court nevertheless awarded Plaintiffs a declaration of co-ownership rights and damages for a time period beginning three years before the commencement of their suit. The Court relied on our decision in Stone, supra. That decision, however, which was based on "highly idiosyncratic facts," 3 Nimmer, supra, § 12.05 at 12-108 n. 2.2, does not insulate all civil actions under the copyright law from the general three-year statute of limitations. Rather, Stone stands for the narrow proposition that, in certain situations, the statute of limitations will not be applied to defeat the copyright co-ownership claim of an author's relative accruing more than three years before the lawsuit where uncertainty surrounded the relative's status as a member of the author's family. Instead, if the relative prevails on the merits and if the equities permit, the Court will grant the relative a declaration of copyright co-ownership, but permit damages only for the period starting three years prior to the suit. See Stone, 970 F.2d at 1051.
30
Unlike Stone, where the copyright co-ownership claim was based on plaintiff's uncertain status as an heir, no similar uncertainty exists as to co-ownership rights based on co-authorship. A co-author knows that he or she jointly created a work from the moment of its creation. Accordingly, the concerns motivating our decision in Stone are not present here. We hold that plaintiffs claiming to be co-authors are time-barred three years after accrual of their claim from seeking a declaration of copyright co-ownership rights and any remedies that would flow from such a declaration. See Zuill v. Shanahan, 80 F.3d 1366, 1369 (9th Cir.1996). Our conclusion promotes the principles of repose integral to a properly functioning copyright market.8 Plaintiffs' suit is therefore barred by the statute of limitations, and we need not discuss the other issues advanced by the parties. The judgment of the District Court is reversed, and the case is remanded with directions to dismiss the complaint.
1
Plaintiffs state that defendant Roulette Records, Inc., another company owned by Levy, participated in wrongfully withholding from Plaintiffs their interest in the copyright
2
On that date Plaintiffs' former attorney filed a letter with the Copyright Office challenging the registration of another song allegedly written by Plaintiffs that Goldner had transferred to Levy's name
3
Broadcast Music, Inc. was also initially included as a defendant
4
The other law claims had been previously dismissed for various reasons, and are not at issue on this appeal
5
Although Plaintiffs contended that they were each entitled to a one-third share of the Fools copyright, the Court determined that only the one-half share of the copyright owned by the Levy Defendants at the commencement of the action was available as a joint remedy for Plaintiffs, since Emira Lymon previously had been dismissed from the suit
6
Plaintiffs' right to co-ownership of the Fools copyright is technically determined by reference to the Copyright Act of 1909, Pub.L. No. 60-349, ch. 320, 35 Stat. 1075 (1909), rather than the Copyright Act of 1976, Pub.L. No. 94-553, 90 Stat. 2541 (1976) (codified at 17 U.S.C. § 101 et seq. (1994)), since Fools was created and copyrighted before the 1976 Act went into effect, see Roth v. Pritikin, 710 F.2d 934, 938 (2d Cir.), cert. denied, 464 U.S. 961, 104 S.Ct. 394, 78 L.Ed.2d 337 (1983). However, because there is no material difference between the two Acts for the purposes of our analysis or result, for ease of reference we cite to the present Act, unless otherwise specifically noted
7
Although the Copyright Act of 1976 also does not define either "author" or "joint author," it contains a definition of "joint work." 17 U.S.C. § 101
8
We note that Plaintiffs' cause of action is not based on copyright infringement, a point Plaintiffs do not contest on appeal. Our holding here does not disturb our previous rulings that a copyright owner's suit for infringement is timely if instituted within three years of each infringing act for which relief is sought, but recovery is barred for any infringing acts occurring more than three years prior to suit. See, e.g., Stone, 970 F.2d at 1049-50 (citing Mount v. Book-of-the-Month Club, Inc., 555 F.2d 1108, 1110-11 (2d Cir.1977))
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Matter of Julian S. (Patricia L.) (2014 NY Slip Op 06831)
Matter of Julian S. (Patricia L.)
2014 NY Slip Op 06831
Decided on October 8, 2014
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on October 8, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial DepartmentPETER B. SKELOS, J.P.
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE, JJ.
2012-09362
2013-02450
2013-05010
(Docket Nos. V-2642-09, V-2648-09, N-555-10, N-556-10, V-561-10, V-562-10)
[*1]In the Matter of Julian S. (Anonymous). Administration for Children's Services, petitioner- respondent;
andPatricia L. (Anonymous), appellant; Glen M. (Anonymous), nonparty-respondent. (Proceeding No. 1)In the Matter of Lisa M. (Anonymous). Administration for Children's Services, petitioner- respondent;Patricia L. (Anonymous), appellant; Glen M. (Anonymous), nonparty-respondent. (Proceeding No. 2)In the Matter of Glen M. (Anonymous), respondent,Patricia L. (Anonymous), appellant. (Proceeding Nos. 3, 4)In the Matter of Patricia L. (Anonymous), appellant, vHavier S. (Anonymous), respondent. (Proceeding No. 5)In the Matter of Patricial L. (Anonymous), appellant. vAndre B. (Anonymous), respondent. (Proceeding No. 6) Jill M. Zuccardy, New York, N.Y. for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo, Elizabeth I. Freedman, and Hanh H. Le of counsel), for petitioner-respondent in Proceeding Nos. 1 and 2.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Amy Hausknecht of counsel), attorney for the children.
DECISION & ORDER
In four related neglect proceedings pursuant to Family Court Act article 10 and four related custody proceedings pursuant to Family Court Act article 6, the maternal grandmother appeals from (1) an order of the Family Court, Richmond County (Wolff, J.), dated November 9, [*2]2011, which granted the maternal grandfather's motion to award him temporary custody of the subject children, (2) so much of an order of disposition of the same court dated April 2, 2012, as continued the children's placement with the New York City Administration for Children's Services and awarded residential custody to the maternal grandfather, and (3) so much of an order of the same court dated April 8, 2013, as, after a hearing, granted the maternal grandfather's petition for an award of permanent custody of the subject children, with only supervised visitation to the maternal grandmother, and denied the maternal grandmother's separate petition for an award of permanent custody of the subject children.
ORDERED that the appeal from the order dated November 9, 2011, is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the appeal from so much of the order of disposition dated April 2, 2012, as continued the children's placement with the New York City Administration for Children's Services and awarded residential custody to the maternal grandfather is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the order dated April 8, 2013, is affirmed insofar as appealed from, without costs or disbursements.
The maternal grandmother's appeal from the order dated November 9, 2011, must be dismissed as academic. The issues raised by the maternal grandmother regarding the award of temporary custody to the maternal grandfather are academic inasmuch as the temporary custody award is no longer in effect, and any alleged defect in the award of temporary custody does not render defective the order awarding sole permanent custody to the maternal grandfather, which was based upon a full and fair hearing (see Matter of Chamas v Carino, 119 AD3d 564; Haggerty v Haggerty, 78 AD3d 998; Matter of Miller v Shaw, 51 AD3d 927; Cucinello v Cucinello, 234 AD2d 365, 366).
Further, the maternal grandmother's appeal from so much of the order of disposition dated April 2, 2012, as continued the children's placement with the New York City Administration for Children's Services and awarded residential custody to the maternal grandfather must be dismissed as academic because the order of disposition has been superseded by a subsequent order awarding permanent custody to the maternal grandfather (see Matter of Anthony O., 22 AD3d 670; Matter of Marie L., 276 AD2d 698; Matter of Commissioner of Social Servs. [Bloneva F.]., 255 AD2d 317).
The Family Court's determination that an award of permanent custody to the maternal grandfather was in the best interests of the children is supported by a sound and substantial basis in the record, and we discern no basis to disturb it (see Matter of K.F.T. v D.P.G., 54 AD3d 1044).
The maternal grandmother's remaining contentions are without merit.
SKELOS, J.P., ROMAN, HINDS-RADIX and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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482 So.2d 1124 (1986)
Cary L. HILL
v.
CONSUMER NATIONAL BANK.
No. 55282.
Supreme Court of Mississippi.
January 22, 1986.
*1125 John Arthur Eaves, Eaves & Eaves, Jackson, for appellant.
Arthur D. Currie, Jackson, for appellee.
Before WALKER, P.J. and ROBERTSON and SULLIVAN, JJ.
ROBERTSON, Justice, for the Court:
I.
This appeal provides an object lesson regarding what showing is and what is not sufficient to avoid summary judgment in a suit on a promissory note where the maker asserts an affirmative defense.
Under our law one who signs a note is personally obligated unless it affirmatively appears that he signs on behalf of another. Where on the face of the note one appears individually liable, he nevertheless may have a defense if he signed the note in blank and the payee/holder failed to honor an agreement to complete the note to show the signatory's representative capacity. In the face of the payee/holder's motion for summary judgment, however, this affirmative defense must be established via verified affidavits based upon personal knowledge or other equally reliable evidence. Failing such a response in this form, the payee/holder is entitled to summary judgment and the maker's defense is gone with the wind.
II.
On March 29, 1982, Cary L. Hill executed an interest bearing promissory note in the *1126 principal sum of $17,600.00 and delivered same to Consumer National Bank (hereinafter "Bank"), a national banking association domiciled and doing business in Hinds County, Mississippi. Hill was the Defendant below and is the Appellant here. The Bank was the Plaintiff below and is the Appellee here. The note was payable ninety-one (91) days from date of its making and bore interest at the rate of seventeen percent (17%) per annum. Without dispute, Hill failed to pay the note when due. On December 1, 1982, the Bank brought suit on the note by filing its complaint in the Circuit Court of Hinds County, Mississippi, demanding judgment of and against Hill in the aggregate amount of principal, accrued interest and reasonable attorneys fees.
On September 8, 1983, the Bank invoked Rule 56, Miss.R.Civ.P., and sought summary entry of judgment in its favor. Attached to the Bank's motion was the affidavit of its president, John H. White, Jr., which, in pertinent part, stated:
The promissory note[[1]] dated March 29, 1982, in the amount of $17,600.00, *1127 bearing interest at the rate of 17% per annum from date, which note is attached as Exhibit "A" to the Declaration and is the note sued upon, was executed by said Defendant [Hill] in payment of a previous note executed by Defendant. Said previous note was dated October 29, 1981, and was in the sum of $17,600.00. As of August 22, 1983, the total amount due on said note is $17,542.68 principal and $4,183.35 interest, for a total sum of $21,726.03. The interest is accruing at the rate of $8.17 per day.
Although numerous demands were made on said Defendant to pay said note, he has failed and refused to pay the same, and it was necessary to turn this note over to an attorney to collect the same.
On October 10, 1983, the Circuit Court entered its order sustaining the motion for summary judgment. The aggregate judgment entered against Hill, including attorneys fees, is in the amount of $28,968.04.[2] Immediately thereafter Hill filed what in effect was a motion for a rehearing or reconsideration of the summary judgment and on November 1, 1983, that motion was overruled and denied.
III.
Hill first complains of the absence of a final judgment from which this appeal may be taken. The record reflects an order of the circuit court entered October 10, 1983, which provides, in pertinent part, that:
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiff's [Bank's] Motion for Summary Judgment in the amount of $28,968.04 is hereby sustained, ... .
Despite other extraneous wording contained in this order, it is enough of a judgment to be a judgment. When the circuit court overruled Hill's motion for rehearing on November 1, 1983, the Bank's judgment became final and thus appealable by Hill. Of more practical concern to Hill no doubt is that the judgment is also sufficient to undergird auxiliary enforcement process via execution, garnishment or the like, process to which, in the absence of supersedeas, we understand the Bank has resorted.
IV.
The March 29, 1982 promissory note appears to be a valid and subsisting obligation of Cary L. Hill. Certainly no defense is apparent on the face of the note. Hill argues that the note was given to pay another note held by the Bank which had been made by C & H Distributors, Inc., a Mississippi corporation in which Hill had an interest. Hill urges that he made and executed the note in question in a representative capacity on behalf of C & H Distributors, Inc. and therefore should have no individual liability.
An answer prima facie sufficient may be found in Miss. Code Ann. § 75-3-403(2)(a) (1972) which provides:
An authorized representative who signs his own name to an instrument is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity; ... .
This statute is plain and simple and there is no reason to think it to mean anything other than just what it says. Barden & Robeson Corp. v. Ferrusi, 384 N.Y.S.2d 596, 52 A.D.2d 1061; 19 UCC Reps. 1170 (1976); Reitman, Weisblatt, Schlichting, Rice, Cooper: 6 Banking Law: Checks, Drafts and Notes § 114.04. See also UCC § 3-403 Official Comment 2 and 3. In a similar context Marine Midland Bank v. Dimarzo, 395 N.Y.S.2d 791, 57 A.D.2d 733 (1977), holds:
Inasmuch as the only signature appearing on the promissory note is that of defendant and the note neither names any party represented by defendant nor *1128 demonstrates that defendant signed it in a representative capacity, his unambiguous status as maker of the note necessitates the conclusion that he would be the obligor and, therefore, the appropriate party from whom to seek payment. (Uniform Commercial Code, §§ 3-401[1], 3-403[2], [3], 3-413; see also Ranhand v. Sinowitz, 26 N.Y.2d 232, 235, 309 N.Y.S.2d 323, 324, 257 N.E.2d 877, 879; Star Dairy, Inc. v. Roberts, 37 A.D.2d 1038, 1039, 326 N.Y.S.2d 85, 86).
395 N.Y.S.2d at 792.
One may search the instrument here at issue long and carefully and find no indication that Hill signed in a representative capacity nor the name of the person or corporation represented.
By way of defense Hill argues that the note form was executed in blank by him pursuant to an understanding that he was signing in a corporate capacity as president of C & H Distributors, Inc. In the case of an instrument incomplete at the time it is signed, and which is subsequently completed by the holder, the holder may enforce it as though it had been completed prior to signing, provided that the instrument has been "completed in accordance with authority given... ." Miss. Code Ann. § 75-3-115(1) (1972); Davis v. Commonwealth, 399 S.W.2d 711, 712-13, 3 UCC Reps. 363 (Ky.App. 1965). If there had been an agreement such as Hill claims and the Bank violated it, Hill might well have a defense, at least insofar as he has been sued by the Bank which is not a holder in due course. Miss. Code Ann. § 75-3-407 (1972).
The problem Hill encounters here is that he has not presented his defense in a form cognizable in opposition to a motion for summary judgment. The Bank supported its motion for summary judgment with a straightforward affidavit of and from its president, that the note was executed by Hill, was held by the Bank, was not paid when due and had not been paid as of the date of the affidavit. The affidavit with the note attached also afforded the means of computing the amount due and payable on any given day. The affidavit established prima facie the Bank's entitlement to judgment.
Faced with such a showing, a party such as Hill opposing such a motion for summary judgment must be diligent in demonstrating to the Court that there is a genuine issue of material fact and that the movant is not entitled to judgment as a matter of law. See, e.g., Bourn v. Tomlinson Interest, Inc., 456 So.2d 747, 749 (Miss. 1984); Brown v. Credit Center, Inc., 444 So.2d 358, 364 (Miss. 1983). Rule 56(e), Miss.R.Civ.P., provides, in pertinent part, that:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
A party opposing summary judgment may not rely merely upon the unsworn, unadmitted allegations of his pleadings. He must support his denials or the facts constituting his affirmative defenses by facts sworn to on personal knowledge in depositions, answers to interrogatories or affidavits, or through such other appropriate form as stipulations of fact or admissions procured under Rule 36, Miss.R.Civ.P. The unsworn allegations of an answer will hardly ever be sufficient. Smith v. First Federal Savings & Loan Association, 460 So.2d 786, 792 (Miss. 1984); Brown v. Credit Center, Inc., 444 So.2d 358, 364 (Miss. 1983). Such an approach is necessary in order that Rule 56 may fulfill its purpose to separate the real from the pretended and to reserve for consumption of precious judicial resources only those cases where there be genuine issues of material fact.
In the case at bar, Cary L. Hill relies upon his answer of June 20, 1983, and his amended answer filed October 5, 1983. To be sure, these answers do allege that Hill *1129 signed the note in blank pursuant to an understanding that it was a corporate note. This defense, however, is not set forth in the form required by Rule 56(e) and by our cases. These pleadings are merely signed by counsel for Cary L. Hill without verification or indication of personal knowledge. On the other hand, the motion for summary judgment is supported by an affidavit adequate under Rule 56(e). Taking the facts set forth in that affidavit as true which we must do in light of the absence of a sworn denial or sworn affirmative defense from Hill summary judgment was proper. The judgment entered in the amount of $28,968.04 in favor of Bank and against Hill is affirmed.
AFFIRMED
PATTERSON, C.J.; WALKER and ROY NOBLE LEE, P.J., and HAWKINS, DAN M. LEE, PRATHER, SULLIVAN and ANDERSON, JJ., concur.
NOTES
[1] The note in pertinent part reads as follows:
COMBINATION NOTE AND DISCLOSURE STATEMENT
CONSUMER NATIONAL BANK ____ NEW NOTE
JACKSON, MISSISSIPPI X RENEWED NOTE
DATE OF NOTE BORROWER NUMBER NOTE NUMBER DATE DUE
3-29-82 891-2495 6-28-82
BORROWER NAME AND ADDRESS
Cary L. Hill, Sr.
P.O. Box 5295
Touscaloosa, AL 35405
$17,600.00
AMOUNT OF NOTE
91 days after date, the undersigned (jointly and severally, if more than
one) hereinafter called Maker, promises to pay CONSUMER NATIONAL BANK,
Jackson, Mississippi, or order
Seventeen thousand six hundred and 00/100[*******] DOLLARS
with interest thereon at the rate of 17 percent per annum from date until
paid.
* * * * *
/s/ Cary L. Hill
* * * * *
CREDIT LIFE: This insurance is not required in connection with this loan.
The cost of credit life insurance for the term of credit is $88.00.
I DESIRE TO OBTAIN THE LIFE INSURANCE COVERAGE.
DATE _____________________________
(Maker's Signature)
I DO NOT DESIRE TO OBTAIN THE LIFE INSURANCE COVERAGE.
DATE 3-28-82 /s/ Cary L. Hill
(Maker's Signature)
* * * * *
By executing this combination Note and Disclosure Statement, the undersigned
acknowledge receipt of a completely filled in copy hereof prior to
execution.
/s/ Cary L. Hill
As will be explained below, Hill has argued that when he delivered the note form to the Bank, the only blanks that had been filled in were the three blanks where his personal signature appears.
[2] No issue is tendered on this appeal regarding the correctness of the amount owing to the Bank under the note.
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11 Cal.App.3d 1200 (1970)
90 Cal. Rptr. 365
GEORGE R. SCHOCH, Petitioner,
v.
THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; JEANNINE F. SCHOCH MARKS, Real Party in Interest.
Docket No. 28134.
Court of Appeals of California, First District, Division One.
October 15, 1970.
*1202 COUNSEL
Ring, Turner & Ring and A.J. Ginocchio for Petitioner.
No appearance for Respondent.
James G. Maguire for Real Party in Interest.
OPINION
SIMS, J.
By petition for a writ of mandate, petitioner, a non-resident, prays that this court command respondent court to enter an order quashing the service on him in the State of Colorado of summons in an action in which his resident ex-wife seeks to establish a Nevada decree of divorce and to modify, by doubling, the amount provided in that decree for the support of the party's two minor children who have been and are in her custody.
From the petition and the answer filed thereto it appears that the ex-wife, as real party in interest, contended and contends, and the trial court, in denying petitioner's motion to quash the service of summons, impliedly found, that the petitioner's obligation to support his two children, which existed by virtue of the parties joint residence in California at the time the Nevada divorce decree was secured, supports a finding that petitioner was a resident of this state at the time the cause of action asserted in the current pending action arose, and, therefore, establishes jurisdiction under the law as it existed prior to July 1, 1970. (See former Code Civ. Proc., § 417.[1]) *1203 (1a) It is concluded that the incorporation of the obligation of child support in the Nevada decree, and the subsequent performance under that decree up to the time of the alleged change of circumstances precludes reliance upon any obligation to support which antedated petitioner's removal of his residence from California. The peremptory writ must issue.
From the record it appears that the petitioner, who is in the Air Force, claims to have always been a domiciliary of Pennsylvania. It is admitted that he was residing with his wife and children in Sacramento, California, before the Nevada divorce was secured by his wife in 1963 and that he did not give up his residence in California until 1966, three years after the divorce. The wife established residence in Nevada solely for the purpose of securing the divorce, but thereafter she returnd to California and continued to reside in this state with the children. She has remarried and moved to Contra Costa County where the pending action was filed. Petitioner was residing in Colorado at the time the present California action was commenced, October 27, 1969, and when he was served, November 13, 1969. Jurisdiction under section 417 is asserted because he resided in this state at the time the cause of action for divorce arose in 1963. (See Soule v. Soule (1961) 193 Cal. App.2d 443, 445-446 [14 Cal. Rptr. 417].)
The emphasis on the cause of action for divorce is a red herring which directs attention from the true criteria upon which this case must rest. The present complaint prays for the following relief: "1. That the decree rendered in the Second Judicial District Court of the State of Nevada, in and for the County of Washoe be established as a foreign judgment in Superior Court, County of Contra Costa, California; [¶] 2. That the child support of each of the minor children be modified by increasing the amounts payable for each children [sic] to ONE HUNDRED FIFTY AND NO/HUNDREDTHS ($150.00) DOLLARS; ..." On February 1, 1963 the parties had agreed that the wife should have custody of the children subject to the husband's right of reasonable visitation, and that the husband would pay $75 per month for each child a boy then 8 years old and a girl then 5 years old. This agreement was incorporated in and approved by the Nevada decree dated March 25, 1963.
*1204 The question is not whether the court has power in rem to establish the Nevada decree in this state, but whether the California court in 1969 had been granted jurisdiction to render a personal judgment against the petitioner upon a cause of action, which, insofar as it is predicated upon a default in the father's obligation to support or a change of circumstances, could only have arisen after the petitioner had left the state. (Cf. Sharove v. Middleman (1956) 146 Cal. App.2d 199, 203 [303 P.2d 900].)
In Owens v. Superior Court (1952) 52 Cal.2d 822 [345 P.2d 921, 78 A.L.R.2d 388], the court upheld the application of subdivision (b) of section 417 to a cause of action to recover damages for injuries suffered from being bitten by the defendant's dog at a time when the defendant was a resident of this state, although he became a permanent resident of Arizona before the action was commenced, and personal service was effected in Arizona. (52 Cal.2d 822, 830-832. See also Arko v. Starsevich (1965) 237 Cal. App.2d 84, 85 [46 Cal. Rptr. 596]; Miller v. Superior Court (1961) 195 Cal. App.2d 779, 787 [16 Cal. Rptr. 36]; and Soule v. Soule, supra, 193 Cal. App.2d 443, 445-446.) The court noted, however: "Subdivision (b) of section 417 requires more than past domicile in the state. There must have been domicile here at the time the cause of action arose." (Id., at p. 829.)
(2) An order for the payment of child support, like an order for the payment of alimony, saddles the father with a financial obligation of a personal nature which, if valid, can be enforced in any state where the defendant may be located. "This being so, the defendant is entitled to insist that such a judgment be predicated upon personal service within the state which seeks to impose such obligation. To hold otherwise would be to violate the fundamental requirement of due process, and to give an unwarranted, extraterritorial effect to the judicial process of the issuing state." (Perry v. Perry (1953) 119 Cal. App.2d 461, 464 [259 P.2d 953]. See also Hartford v. Superior Court (1956) 47 Cal.2d 447, 454 [304 P.2d 1]; Amparan v. Superior Court (1966) 246 Cal. App.2d 41, 44 [54 Cal. Rptr. 501]; Josephson v. Superior Court (1963) 219 Cal. App.2d 354, 360-361 [33 Cal. Rptr. 196]; Turner v. Superior Court (1963) 218 Cal. App.2d 468, 472 [32 Cal. Rptr. 717]; and Sharove v. Middleman, supra, 146 Cal. App.2d 199, 202.)
If the original action had been filed in this state, and both father and mother had voluntarily appeared, the court (as presumably does the Nevada court) would have retained personal jurisdiction over the parties to modify the provisions for support upon such notice as would satisfy due process of law. (See Dolgoff v. Dolgoff (1947) 81 Cal. App.2d 146, 151 [183 P.2d 380]; and Civ. Code, § 4700 [former § 139].) The same jurisdiction *1205 would ensue from an action establishing a foreign decree in which personal jurisdiction over the defendant has been obtained. (See Leverett v. Superior Court (1963) 222 Cal. App.2d 126, 133-134 [34 Cal. Rptr. 784].) Here, however, there has never been personal jurisdiction over the father in this state.
(1b) If the action be considered as one for support, and the Nevada decree be disregarded, no cause of action arose until some three years after the father left this state. This is not a case where the father has deserted and created a cause of action for nonsupport at that time so that it can be said that the cause of action arose contemporaneously with the abandonment of the California residence. (See Comment (1960) 12 Stan.L.Rev. 848, 854.) (3) The general obligation of support arises at the time of the child's birth and follows the father and the child as the former establishes the child's residence. The obligation follows the father after he is deprived of the child's custody when such order is accompanied by an enforceable provision for support. No authority is cited for the proposition that any state through which the peregrinations of military life (or modern business life) have led the family may subsequently subject a nonresident father, not found within that state, to personal jurisdiction for a future failure to support. The Uniform Reciprocal Enforcement of Support Act (see Code Civ. Proc., §§ 1650-1693; and Elkind v. Byck (1968) 68 Cal.2d 453, 459-460 [67 Cal. Rptr. 404, 439 P.2d 316]) is predicated upon the following premise, "With the increasing mobility of the American population the problem of interstate enforcement of duties of support became acute. A deserting husband was beyond the reach of process in the state where he had abandoned his family and the family had no means to follow him." (9C Uniform Laws Annotated, at p. 3.)
(1c) Moreover, if the cause of action for support be viewed as a continuing one, it was, insofar as it accrued prior to the Nevada decree, merged in the agreement and that decree. The effect of the Nevada decree on the measure of the obligation to support which was set forth in the agreement of the parties and incorporated in that decree is delineated in the decision of this court in Solley v. Solley (1964) 227 Cal. App.2d 522 [38 Cal. Rptr. 802]. There, as in this case, the parties while residing in this state entered into a child custody and property settlement agreement which provided for the support of their children by the father; thereafter, the mother at the father's suggestion established residence in Nevada for the purpose of securing a Nevada divorce; the father appeared in the action through his attorney; and the decree approved and incorporated the agreement of the parties, and included it as an exhibit. Some five and one-half years later the mother brought an action in this state on the agreement. Apparently the father was personally served in this state. The lower court gave judgment *1206 for the mother for the difference between the amounts called for by the agreement and the amounts which the father had paid. This court upheld the father's contention that the agreement was merged in and extinguished by the decree.
This court said, "Since defendant [the father] appeared and participated in the Nevada action, the judgment and decree of that court being regular on its face must be accorded full faith and credit in this state. [Citations.] As between the parties the Nevada decree `is res judicata not only of their status with relation to each other but also of all issues that were litigated or that could have been litigated therein. [Citations.]' (Rediker v. Rediker (1950) 35 Cal.2d 796, 801 ...) Since Nevada obtained in personam jurisdiction over defendant husband, he became legally subject to a personal judgment against him for child support. [Citations.]" (227 Cal. App.2d at pp. 526-527.)
In response to the mother's contention that the Nevada court had no jurisdiction to provide for the support of the children because they were not physically present in Nevada, the court examined Nevada and California law (id., pp. 528-530) and stated, "We therefore conclude that the Nevada court had jurisdiction in the case before us to provide for the custody and support of the minor children of the parties even though such children were never domiciled, resident or present in Nevada." (Id., p. 530.)
The court then, in the absence of controlling Nevada precedent, applied California law in arriving at the following conclusion: "The Nevada court had jurisdiction to make an award of child support; it had the power to do so by infusing into its order the provisions of the agreement between the parties; and its ratification and approval of such agreement as set forth above resulted in a merger of the agreement into the decree, thereby extinguishing the agreement, dissolving any right of action thereon, and requiring plaintiff to invoke her remedies on the decree. The findings and conclusions to the contrary made by the court below cannot be sustained." (Id., p. 531.)[2]
*1207 Since the Nevada decree was res judicata as to all issues that were or that could have been litigated therein, any preexisting cause of action for support that was not already merged in the agreement was similarly merged in the Nevada judgment. Any right to support arising from nonperformance of the Nevada judgment, or from circumstances giving rise to a right to modified and increased support can in no sense antedate the Nevada decree.
This is not to negate that "the California court, in view of the present residence of [the children] in this state, would have the legitimate power, under proper circumstances, to pass on [the children's] right, through the mother, to secure support from [the] father if there was need for it." (Mattos v. Correia (1969) 274 Cal. App.2d 413, 419 [79 Cal. Rptr. 229]. See also Elkind v. Bynck, supra, 68 Cal.2d 453, 457-458; Dixon v. Dixon (1932) 216 Cal. 440, 442 [14 P.2d 497]; Warren v. Superior Court (1955) 132 Cal. App.2d 392, 394 [282 P.2d 207]; Starr v. Starr (1953) 121 Cal. App.2d 633, 635-636 [263 P.2d 675]; and Oravec v. Superior Court (1953) 115 Cal. App.2d 581, 582 [252 P.2d 364].)
(4) The general principle is expressed in Worthley v. Worthley (1955) 44 Cal.2d 465 [283 P.2d 19], as follows: "Accordingly, we hold that foreign-created alimony and support obligations are enforceable in this state. In an action to enforce a modifiable support obligation, either party may tender and litigate any plea for modification that could be presented to the courts of the state where the alimony or support decree was originally rendered." (44 Cal.2d at p. 474. See also Engle v. Superior Court (1956) 140 Cal. App.2d 71, 75-82 [294 P.2d 1026].) In order to exercise jurisdiction over that subject matter, however, the court must secure personal jurisdiction over the defendant.
*1208 (1d) Under the law of this state as it existed at the time the defendant was served, it was necessary that the cause of action arise while the petitioner was a resident of this state. The record shows he faithfully performed all of his obligations during his residence within this state and for three years thereafter. If the child, through the mother, has a new claim against the petitioner it does not fall within the former statute.[3]
Let a peremptory writ of mandate issue commanding the respondent court to quash the service of summons upon petitioner.
Molinari, P.J., and Elkington, J., concurred.
NOTES
[1] Section 417 of the Code of Civil Procedure, as amended in 1957 (Stats. 1957, ch. 1674, § 1, p. 3052), and effective until June 30, 1970, provided: "Where jurisdiction is acquired over a person who is outside of this State by publication of summons in accordance with Sections 412 and 413, the court shall have the power to render a personal judgment against such person only if he was personally served a copy of the summons and complaint, and was a resident of this State (a) at the time of the commencement of the action, or (b) at the time that the cause of action arose, or (c) at the time of service."
Section 417 was repealed, operative July 1, 1970 (Stats. 1969, ch. 1610, § 21, p. 3373). The Legislature has expressed its intent to give the courts the broadest jurisdictional powers permitted by principles of constitutional law. Section 410.10 (Stats. 1969, ch. 1610, § 3, p. 3363), operative July 1, 1970, now provides: "A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." It may be argued that the power to exercise personal jurisdiction over a nonresident individual may extend to a nonresident father who has left his child domiciled in this state under a modifiable support agreement which was entered into in this state. No opinion is expressed on this point because the statute in existence at the time of service of summons in this case did not purport to reach so far. (Cf. Owens v. Superior Court (1959) 52 Cal.2d 822, 833 [345 P.2d 921, 78 A.L.R.2d 388].)
[2] The doctrine of merger, of course, does not preclude the court from looking behind the Nevada judgment for the purpose of ascertaining, insofar as is material in these proceedings, that the nature of the original cause of action, which the real party in interest seeks to modify, was for the support of petitioner's children. (See 29 Cal. Jur.2d, Judgments, § 255, p. 220.) The cases which disregard merger go no further. In Imlay v. Carpentier (1859) 14 Cal. 173, the court ruled that it was not necessary to bring an independent equitable action to set aside a judgment which had been obtained on a debt which had been listed in insolvency proceedings after commencement of suit but before judgment, and which was subsequently discharged. The court held that merger did not prevent showing that the judgment represented the discharged debt. It ruled, however, that the judgment debtor had an adequate remedy at law by motion to set aside the judgment and a subsequent execution and levy. No question of jurisdiction was involved. Nor was any such question involved in Smith v. Broderick (1895) 107 Cal. 644 [40 P. 1033] in which the court ruled, "The foregoing provision of the constitution [limiting the power of a municipality to incur an indebtedness] cannot be evaded by a consent on the part of the officers of the municipality that a judgment may be entered against the municipality upon an open demand which constitutes no liability against the city." (107 Cal. at p. 650.) The other cases involve the issue as to whether the obligation in question was one which by law was excepted from the operation of a discharge in insolvency or bankruptcy. (See Woehrle v. Canclini (1910) 158 Cal. 107, 108 [109 P. 888]; Carit v. Williams (1887) 74 Cal. 183, 187 [15 P. 751]; California Bank v. Clay (1962) 207 Cal. App.2d 25, 27 [24 Cal. Rptr. 185]; and Fitzgerald v. Herzer (1947) 78 Cal. App.2d 127, 128-129 [177 P.2d 364].) The policy expressed in these cases is satisfied by recognizing that the obligations imposed by the Nevada decree are in the nature of child support which may be modified. It does not go so far as to give the courts of this state power to render a judgment in personam which they could not render even in the absence of the Nevada decree.
[3] No opinion is expressed as to whether under the new law (Code Civ. Proc., § 410.10), the facts that a child resided in this state at the time of the dissolution of the family and continues to so reside, and that an agreement was entered into within this state which provided for the support of the child, would furnish such minimum contacts with this state that the maintenance of suit for a future failure to support, either under the terms of the agreement or under changed circumstances, against a nonresident father who is personally served outside of the state would not offend traditional notions of fair play and substantial justice. (See International Shoe Co. v. Washington (1945) 326 U.S. 310, 316 [90 L.Ed. 95, 101, 66 S.Ct. 154, 161 A.L.R. 1057]; 1969 Judicial Council Report to the Governor and the Legislature, pp. 69-84; Am. Law. Inst., Rest.2d, Proposed Official Draft (1967) Conflict of Laws, §§ 27-39, particularly §§ 36, subd. (2), 37 and 39; Gorfinkel & Lavine, California Long-Arm Jurisdiction (1970) 21 Hastings L.J., 1163, cf. pp. 1173-1178 with pp. 1214-1216; Ehrenziveig & Mills, Personal Service Outside the State (1953) 41 Cal.L.Rev. 383, 392.)
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EARL WASHINGTON, JR.,
Plaintiff-Appellee,
v.
CURTIS REESE WILMORE,
Defendant-Appellant,
and
KENNETH H. BURAKER; CHARLES No. 04-1818
JONES; HARLAN LEE HART; GERALD
YANCEY; GARY L. CLOSE; DENNY M.
SLANE; TERRY SCHRUM; LUTHER COX;
DENNY A. ZEETS; TOWN OF
CULPEPER, VIRGINIA; FAUQUIER
COUNTY, VIRGINIA; MARY L. JONES,
Defendants.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CA-02-106-3)
Argued: December 1, 2004
Decided: April 28, 2005
Before WILKINS, Chief Judge, and MOTZ
and SHEDD, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkins wrote the opin-
ion, in which Judge Motz joined. Judge Shedd wrote a concurring
opinion.
2 WASHINGTON v. WILMORE
COUNSEL
ARGUED: William Gray Broaddus, MCGUIREWOODS, L.L.P.,
Richmond, Virginia, for Appellant. Peter J. Neufeld, COCHRAN,
NEUFELD & SCHECK, L.L.P., New York, New York, for Appellee.
ON BRIEF: Brian E. Pumphrey, MCGUIREWOODS, L.L.P., Rich-
mond, Virginia, for Appellant. Deborah L. Cornwall, COCHRAN,
NEUFELD & SCHECK, L.L.P., New York, New York; Robert T.
Hall, HALL, SICKELS, FREI & KATTENBURG, P.C., Reston, Vir-
ginia, for Appellee.
OPINION
WILKINS, Chief Judge:
Earl Washington, Jr. brought this action against Curtis Wilmore1
and others, alleging various constitutional violations in connection
with his conviction and death sentence for the rape and murder of
Rebecca Lynn Williams. See 42 U.S.C.A. § 1983 (West 2003). The
district court dismissed or granted summary judgment to all defen-
dants on all claims except for Washington’s claim that Wilmore fabri-
cated evidence. As to that claim, the district court denied qualified
immunity. Because we conclude that Washington has alleged the vio-
lation of a clearly established constitutional right, we affirm.
I.
A.
Williams was raped and murdered in her Culpeper, Virginia apart-
ment on June 4, 1982. Her assailant stabbed her 38 times and left her
for dead, with her two young children in the apartment. Before she
died, Williams stated that she was attacked by a black man with a
beard.
1
Wilmore is deceased, and this appeal is being pursued by Wilmore’s
estate. We use the name "Wilmore" to designate both Wilmore and his
estate.
WASHINGTON v. WILMORE 3
Almost one year later, in the early morning hours of May 21, 1983,
Washington was arrested in Fauquier County, Virginia, for breaking
into the apartment of an elderly neighbor and beating her with a chair.
He also stole a gun from the victim, which he subsequently used to
shoot his brother in a dispute over a woman.
After his arrest, Washington was questioned by Fauquier County
Sheriff’s deputies Terry Schrum and Denny Zeets. Washington con-
fessed to several crimes during the course of the interrogation, includ-
ing the rape and murder of Williams. Schrum and Zeets notified
Culpeper law enforcement authorities of the situation.
On the morning of May 22, Wilmore—an agent of the Virginia
State Police who had been involved in the Williams investigation
from the outset—and Culpeper police officer Harlan Lee Hart pro-
ceeded to Fauquier County to interview Washington. They met with
Washington at approximately 10:00 a.m., informed him of his rights
with respect to custodial interrogation,2 and questioned him for
approximately one hour. Following this, Wilmore produced a written
statement by asking Washington essentially the same questions and
writing out, by hand, the questions and Washington’s answers. This
statement was subsequently typed by an assistant.
Two days later, Wilmore wrote a police report regarding the inter-
rogation of Washington. In the report, Wilmore stated that Washing-
ton "gave pertinent information about the crime that no one knew
with the exception of himself." J.A. 448. Wilmore’s report did not
specify what this information was, however.
During his testimony at Washington’s trial for the rape and murder
of Williams, Wilmore gave the following pertinent testimony regard-
ing his initial questioning of Washington:
I asked him what occurred at this point and he said I made
her undress and why did you make her undress . . . I wanted
to make love to her . . . did she want to make love with you
. . . no, I was holding a knife on her. Did you have sex with
2
See Miranda v. Arizona, 384 U.S. 436, 479 (1966).
4 WASHINGTON v. WILMORE
her? One time. Did you stick her with a knife? I stabbed her
once or twice before I left the apartment. I asked him at this
point, when you left the apartment, did you take anything
from it, anything at all? No. Did you leave anything in the
apartment? My shirt. At this point I asked Lt. Hart to go to
his car, since we had a shirt we had been working with, and
to secure it. He brought the shirt in, in a grocery type bag,
and I took the shirt out and held it in front of Mr. Washing-
ton and asked him if it was his shirt. He said yes, it was his.
I asked him how did he know that it was his and he contin-
ued, that was the shirt I had on that day. I then asked him
what makes it different or what makes it outstanding. He
said, there’s a patch on the pocket . . . had been ripped off.
Id. at 475 (emphasis added). Later in his testimony, Wilmore read to
the jury the written statement of the interrogation of Washington. In
part, that statement read:
Hart: Did you leave any of your clothing in the apart-
ment?
Washington: My shirt.
Hart: The shirt that has been shown you, is it the one
you left in the apartment?
Washington: Yes, sir.
Wilmore: How do you know it is yours?
Washington: That is the shirt I wore.
Hart: What makes it stand out?
Washington: A patch had been removed from the top of
the pocket.
Id. at 495 (internal quotation marks omitted). The fact that the perpe-
trator of the rape and murder had left a shirt in the apartment had not
been revealed to the public.
WASHINGTON v. WILMORE 5
Washington was convicted and sentenced to death. All appeals and
collateral review proceedings in state and federal court were denied.
In late 1993, however, DNA testing indicated that semen recovered
from Williams contained a genetic marker not possessed by her, her
husband, or Washington. This evidence was submitted to the gover-
nor of Virginia, who issued a conditional pardon commuting Wash-
ington’s death sentence to "life imprisonment with the right of
parole." Id. at 527. The governor declined Washington’s request for
an absolute pardon, stating that "a review of the trial evidence, includ-
ing [Washington’s confession,] reveals that he had knowledge of evi-
dence relating to the crime which it can be argued only the perpetrator
would have known." Id. at 526.
Additional DNA testing conducted in 2000 conclusively excluded
Washington as a contributor of the semen found at the crime scene.
Based on these results, in October 2000 the governor granted Wash-
ington an "Absolute Pardon" for the rape and murder. Id. at 530. The
governor explained that "a jury afforded the benefit of the DNA evi-
dence and analysis available to me would have reached a different
conclusion regarding the guilt of Earl Washington." Id.
B.
In May 1993, Wilmore and Hart met with Assistant Attorney Gen-
eral John H. McLees, Jr. and told him that "they had been troubled
for years that Washington’s sentence was based only on his own con-
fession without any corroborating physical evidence . . . especially
because of Washington’s limited mental abilities." Id. at 523. Wil-
more contacted McLees in October, and the two discussed the case
"at some length." Id. In a subsequent memorandum (the McLees
memorandum), McLees recorded that
[Wilmore] told me that he felt very uneasy about how the
record reflects Washington’s confession was obtained, par-
ticularly with respect to the incriminating shirt found at the
scene which Washington identified as his. Specifically, Wil-
more said that he felt like either he or Hart must have men-
tioned the shirt to Washington before Washington said he
left the shirt at the scene, and that his testimony in the
6 WASHINGTON v. WILMORE
record did not accurately reflect that the shirt had been first
mentioned by the police.
Id. McLees called Wilmore the next day to ask whether Wilmore
"may have been trying to tell me that he knew his testimony was not
accurate or had omitted material facts." Id.
Wilmore told me he felt like he must have asked Washing-
ton something about the shirt, and that the transcript just did
not read right. It did not "go down" exactly as he said in the
statement. Wilmore said that he or Hart must have men-
tioned it.—"did you leave your shirt?" He could not say with
100% certainty that he remembered saying that to Washing-
ton, but he thinks that’s the way it went down.
Id.
Wilmore further related an encounter he had with a psychiatrist
during the trial, when both had been excluded from the courtroom.
When Wilmore told the psychiatrist that he was troubled by the case,
the psychiatrist responded that Wilmore "should not worry about it."
Id. at 524.
Wilmore said he then "went in and gave [Washington] both
barrels." When I asked Wilmore specifically whether he felt
at the time of the trial that his testimony was inaccurate, he
said absolutely not. He did, however, agree that he had
intended his testimony to be a mere general summary of the
conversation with Washington, rather than a verbatim
account of it. He said that, had he been asked specifically by
defense counsel at the time of trial whether he had men-
tioned the shirt first or whether Washington had, he would
have said that he mentioned the shirt first.
Id.
C.
Washington filed this action in September 2002, alleging, as is rel-
WASHINGTON v. WILMORE 7
evant here, that (1) his confession to the rape and murder of Williams
was false and had been coerced by Wilmore, Hart, Schrum, and Zeets;
(2) the officers had failed to disclose exculpatory information, includ-
ing the fact that the confession was fabricated; and (3) the officers had
failed to investigate other information that would have exonerated
Washington.3
In February 2004, the district court granted summary judgment to
the officers on claims (2) and (3) on the basis of qualified immunity.
See Washington v. Buraker (Washington I), 322 F. Supp. 2d 692, 699-
702 (W.D. Va. 2004). With respect to claim (1), the court concluded
that the allegations of the complaint stated constitutional claims for
coercion of a confession and fabrication of evidence. See id. at 697-
98. The court therefore allowed Washington to conduct discovery "on
the limited issue of whether [the officers] had actual knowledge of
Washington’s innocence at the time of Washington’s interrogation."
Id. at 698.
Following discovery, the district court granted summary judgment
to the officers on Washington’s claim that his confession was
coerced. See Washington v. Buraker (Washington II), 322 F. Supp. 2d
702, 712-15 (W.D. Va. 2004). The court also granted summary judg-
ment to Hart on the fabrication claim,4 concluding that Washington
had failed to proffer any evidence that Hart had represented that
Washington possessed nonpublic information about the murder. See
id. at 712. The court denied summary judgment as to Wilmore, how-
ever, reasoning that Washington had proffered evidence from which
a reasonable juror could conclude that Wilmore possessed nonpublic
information about the crime and falsely represented that Washington
had volunteered that information during interrogation. See id. The
court further concluded that these facts, if proved, would establish a
constitutional violation because "there is a reasonable likelihood Wil-
more’s testimony regarding Washington[’s] confession that he had
left his shirt at the Williams murder scene could have affected the
judgment of the jury." Id.
3
This claim also named Town of Culpeper police officer Kenneth
Buraker.
4
Washington withdrew the fabrication claim against Zeets and Schrum.
8 WASHINGTON v. WILMORE
II.
Wilmore first argues that the district court lacked subject matter
jurisdiction to consider Washington’s claims because success on those
claims would necessarily imply the invalidity of his convictions,
thereby violating the Rooker-Feldman doctrine. See Dist. of Columbia
Ct. App. v. Feldman, 460 U.S. 462, 482-86 (1983); Rooker v. Fid.
Trust Co., 263 U.S. 413, 415-16 (1923).5 We disagree.
The Rooker-Feldman doctrine bars "cases brought by state-court
losers complaining of injuries caused by state-court judgments ren-
dered before the district court proceedings commenced and inviting
district court review and rejection of those judgments." Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. 1517, 1521-22 (2005);
see Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994) ("[A] party
losing in state court is barred from seeking what in substance would
be appellate review of the state judgment in a United States district
court, based on the losing party’s claim that the state judgment itself
violates the loser’s federal rights."); Am. Reliable Ins. Co. v. Stillwell,
336 F.3d 311, 316 (4th Cir. 2003). The doctrine preserves federalism
by ensuring respect for the finality of state court judgments, and it
preserves the separation of powers by ensuring that federal district
courts exercise only original jurisdiction and that review of state court
judgments is conducted only by the United States Supreme Court, as
Congress has instructed. See Brown & Root, Inc. v. Breckenridge, 211
F.3d 194, 198-99 (4th Cir. 2000). Thus, while the Rooker-Feldman
doctrine may bear some resemblance to the rules of res judicata, the
doctrine is distinct from, and should not be confused with, those rules.
See Moore v. City of Asheville, 396 F.3d 385, 391 (4th Cir. 2005)
(describing res judicata and Rooker-Feldman as "separate, but closely
related doctrines"); accord Exxon Mobil, 125 S. Ct. at 1527 (explain-
5
Although Wilmore raised this issue before the district court, the court
has thus far not ruled on it. Nevertheless, because the issue is a jurisdic-
tional one, see Plyler v. Moore, 129 F.3d 728, 731 & n.6 (4th Cir. 1997),
it is properly before us at this time, see Brickwood Contractors, Inc. v.
Datanet Eng’g, Inc., 369 F.3d 385, 390 (4th Cir. 2004) (en banc)
("[Q]uestions of subject-matter jurisdiction may be raised at any point
during the proceedings and may (or, more precisely, must) be raised sua
sponte by the court.").
WASHINGTON v. WILMORE 9
ing that the continuing validity, after entry of judgment in state court,
of a properly filed, concurrent federal action depends not on the
Rooker-Feldman doctrine but on state preclusion law).
The Rooker-Feldman doctrine bars lower federal courts from con-
sidering not only issues raised and decided in the state courts, but also
issues that are "inextricably intertwined" with the issues that were
before the state court. Feldman, 460 U.S. at 486; see Plyler v. Moore,
129 F.3d 728, 731 (4th Cir. 1997). "The ‘inextricably intertwined’
prong of the doctrine bars a claim that was not actually decided by
the state court but where success on the federal claim depends upon
a determination that the state court wrongly decided the issues before
it." Brown & Root, 211 F.3d at 198 (internal quotation marks omit-
ted); see Exxon Mobil, 125 S. Ct. at 1527 (explaining, in context of
concurrent state and federal litigation, that question for Rooker-
Feldman purposes is not simply whether issue has been litigated in
state court but whether the federal plaintiff seeks to "undo" an unfa-
vorable state court judgment).
Applying these principles to this case, we conclude that the
Rooker-Feldman doctrine does not bar Washington’s claim.6 As noted
6
The parties dispute whether Washington’s absolute pardon avoids any
impact the Rooker-Feldman doctrine might otherwise have. Compare
Jordahl v. Democratic Party of Va., 122 F.3d 192, 202 (4th Cir. 1997)
(noting that the Rooker-Feldman inquiry does not depend on "whether
the state court judgment is presently subject to reversal or modification"),
with Burrell v. Virginia, 395 F.3d 508, 511-12 (4th Cir. 2005) (stating
that plaintiff’s § 1983 claim was not barred by Rooker-Feldman because
his conviction had been dismissed, and thus the § 1983 claim did not
allege that the state judgment violated his rights). To the extent that this
remains an issue after the recent decision of the Supreme Court in Exxon
Mobil, we conclude that the absolute pardon issued by the governor of
Virginia removes any bar to this proceeding that the Rooker-Feldman
doctrine would otherwise impose. See Black’s Law Dictionary 1113 (6th
ed. 1990) (An absolute pardon "reaches both the punishment prescribed
for the offense and the guilt of the offender. It obliterates in legal con-
templation the offense itself.").
Apparently in light of Washington’s argument regarding the status of
his conviction, Wilmore argues for the first time in his reply brief that
10 WASHINGTON v. WILMORE
above, Washington claims that Wilmore falsely reported to the prose-
cutor that Washington possessed nonpublic information about the
crime. It is clear that no issue regarding Wilmore’s truthfulness on
this point was raised at trial. Although Washington’s counsel did
probe certain aspects of Wilmore’s account of Washington’s confes-
sion, he did not question Wilmore regarding the shirt.
We also conclude that Wilmore’s truthfulness on this point was not
inextricably intertwined with the issues presented to the state court
during Washington’s criminal trial. The question we must ask in mak-
ing this determination is whether a federal court finding that Wilmore
was untruthful regarding Washington’s independent knowledge of the
shirt would have the effect of undoing Washington’s criminal convic-
tion for the murder of Rebecca Williams. It would not. Washington
challenges not his conviction but rather one aspect of the means by
which that conviction was achieved. Cf. Jordahl v. Democratic Party
of Va., 122 F.3d 192, 202 (4th Cir. 1997) (distinguishing between "ac-
tions seeking review of the state court decisions themselves and those
cases challenging the constitutionality of the process by which the
state court decisions resulted"). Put differently, Washington’s claim
of injury rests not on the state court judgment itself, but rather on the
alleged violation of his constitutional rights by Wilmore.
Additionally, we note that there is simply no mechanism by which
Washington could have obtained from the state court a resolution of
the question of Wilmore’s truthfulness regarding Washington’s inde-
pendent knowledge about the shirt. A criminal jury decides the ques-
tion of a defendant’s guilt or innocence; it does not make
Washington’s claim must be dismissed pursuant to Heck v. Humphrey,
512 U.S. 477, 486-87 (1994) (holding that a § 1983 plaintiff cannot bring
an action for damages based on an allegedly unconstitutional conviction
unless the conviction "has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal court’s issuance
of a writ of habeas corpus"). This argument comes too late. See United
States v. Brower, 336 F.3d 274, 277 n.2 (4th Cir.) (stating that arguments
not made in the opening brief are waived), cert. denied, 540 U.S. 936
(2003).
WASHINGTON v. WILMORE 11
particularized findings regarding the credibility of individual wit-
nesses generally or with respect to a specific item of testimony.
III.
Having concluded that we have subject matter jurisdiction, we turn
to the merits of Wilmore’s appeal.
A.
Government officials performing discretionary functions are enti-
tled to qualified immunity from liability for civil damages to the
extent that "their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In consider-
ing an appeal from the rejection of a qualified immunity defense, our
first task is to determine "whether a constitutional right would have
been violated on the facts alleged." Saucier v. Katz, 533 U.S. 194, 200
(2001). If so, we must then proceed to consider whether the right
asserted was clearly established at the time of the alleged violation.
See id. In answering this latter question, the relevant inquiry is
whether "it would be clear to an objectively reasonable officer that his
conduct violated [the] right." Brown v. Gilmore, 278 F.3d 362, 367
(4th Cir. 2002); see Malley v. Briggs, 475 U.S. 335, 341 (1986)
(explaining that qualified immunity protects "all but the plainly
incompetent or those who knowingly violate the law").
Our jurisdiction to review an order denying summary judgment on
the basis of qualified immunity rests on 28 U.S.C.A. § 1291 (West
1993), which allows us to consider appeals from "final decisions" of
the district court. To the extent that the denial of qualified immunity
rests on a question of law, the decision is "final" pursuant to the col-
lateral order doctrine of Cohen v. Beneficial Industrial Loan Corp.,
337 U.S. 541, 546-47 (1949). See Behrens v. Pelletier, 516 U.S. 299,
306 (1996). And, such a denial is subject to de novo review. See Bur-
rell v. Virginia, 395 F.3d 508, 512 (4th Cir. 2005).
Our appellate jurisdiction does not extend, however, to questions
of "evidence sufficiency," such as whether the plaintiff has offered
12 WASHINGTON v. WILMORE
sufficient evidence to create a genuine question of material fact. John-
son v. Jones, 515 U.S. 304, 313 (1995) (internal quotation marks
omitted). The question of whether the evidence is sufficient to create
a genuine issue of material fact is closely related to the factual issues
that must be decided at trial. See id. at 314. Hence, questions of evi-
dence sufficiency fail the "separability" prong of the Cohen analysis.
See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (stating
that in order to be appealable under Cohen, a collateral order must,
inter alia, "resolve an important issue completely separate from the
merits" (emphasis added)); see also Behrens, 516 U.S. at 313 ("[I]f
what is at issue in the sufficiency determination [on review of a denial
of qualified immunity] is nothing more than whether the evidence
could support a finding that particular conduct occurred, the question
decided is not truly ‘separable’ from the plaintiff’s claim, and hence
there is no ‘final decision’ under Cohen . . . ."). In other words, we
may review an official’s contention that the facts alleged do not state
a violation of clearly established law; we may not review the offi-
cial’s claim that the appellee failed to create a genuine issue of mate-
rial fact with respect to whether the acts occurred as alleged. See
generally Winfield v. Bass, 106 F.3d 525, 529-30 (4th Cir. 1997) (en
banc) (discussing this distinction).
B.
With the above principles in mind, we turn to the question of
whether the facts alleged by Washington amount to the violation of
a constitutional right. The right alleged by Washington, defined at the
appropriate level of generality, is "the right not to be deprived of lib-
erty as a result of the fabrication of evidence by a government officer
acting in an investigating capacity." Zahrey v. Coffey, 221 F.3d 342,
349 (2d Cir. 2000). The alleged "fabricated evidence" here is Wil-
more’s false claim that Washington possessed nonpublic knowledge
about the crime, i.e., that the perpetrator left a shirt at the crime scene.
Wilmore disputes this statement of the asserted constitutional vio-
lation, maintaining that Washington’s claim is really nothing more
than a clever rephrasing of an assertion that Wilmore violated Brady
v. Maryland, 373 U.S. 83, 87 (1963), by failing to disclose exculpa-
tory evidence. According to Wilmore, Washington’s claim is simply
that Wilmore failed to disclose an exculpatory fact—that Washing-
WASHINGTON v. WILMORE 13
ton’s "knowledge" of the shirt was the product of leading questions—
even though he was never asked whether he used leading questions,
and even though Washington concedes that the use of leading ques-
tions does not violate a suspect’s constitutional rights. Cf. Mann v.
Thalacker, 246 F.3d 1092, 1100 (8th Cir. 2001) (rejecting claim that
confession was coerced "simply because [the suspect] was interro-
gated on little sleep by an officer who used some leading questions
and sometimes prodded [the suspect] to be more forthcoming"). We
cannot accept this characterization of the constitutional right. What
Washington challenges here is not the failure to disclose exculpatory
evidence, but rather the creation of false evidence. Cf. Gauger v.
Hendle, 349 F.3d 354, 360 (7th Cir. 2003) (holding that false police
report did not violate Brady because "[t]he problem was not that evi-
dence useful to [the criminal defendant] was being concealed; the
problem was that the detectives were giving false evidence").
Having identified the right at stake, we next must decide whether
the facts, viewed in the light most favorable to Washington, establish
a violation of that right. Demonstration of a violation of Washington’s
constitutional right requires, in this context, proof that Wilmore fabri-
cated evidence and that the fabrication resulted in a deprivation of
Washington’s liberty. See Zahrey, 221 F.3d at 349.
In concluding that the facts alleged by Washington amounted to the
violation of a constitutional right, the district court looked primarily
to the May 24, 1983 police report, in which Wilmore stated that
Washington "gave pertinent information about the crime that no one
knew with the exception of himself." J.A. 448. Given Washington’s
admitted fabrication of several details about the crime, including the
fact that he was driven to the apartment complex by a friend named
Billy, we agree with the district court that it is "unclear" whether Wil-
more’s statement refers to Washington’s knowledge of the shirt.
Washington II, 322 F. Supp. 2d at 710. We are, however, bound to
accept the determination of the district court that the proper interpre-
tation of Wilmore’s statement is subject to dispute. Accordingly, we
accept for purposes of this appeal that Wilmore falsely stated in his
police report, referring to the shirt, "that Washington, when interro-
gated, divulged non-public information about the Williams murder."
Id.
14 WASHINGTON v. WILMORE
We now turn to the causation prong, which requires us to deter-
mine whether the facts alleged by Washington demonstrate that the
loss of liberty—i.e., Washington’s conviction for the murder of
Rebecca Williams and subsequent incarceration—resulted from Wil-
more’s fabrication of evidence. Wilmore’s only argument on this
point is that he cannot be held liable for his testimony at trial, an
indisputable proposition, see Briscoe v. LaHue, 460 U.S. 325, 345-46
(1983). The proper inquiry, however, is whether Washington’s con-
viction was a reasonably foreseeable result of Wilmore’s initial act of
fabrication—the police report. See Monroe v. Pape, 365 U.S. 167,
187 (1961) (recognizing applicability to § 1983 claims of the rule of
tort liability "that makes a man responsible for the natural conse-
quences of his actions"), overruled on other grounds, Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 695-701 (1978); Jones v. City of Chi-
cago, 856 F.2d 985, 994 (7th Cir. 1988) ("[A] prosecutor’s decision
to charge, a grand jury’s decision to indict, a prosecutor’s decision not
to drop charges but to proceed to trial—none of these decisions will
shield a police officer who deliberately supplied misleading informa-
tion that influenced the decision.").
It appears that little or no discovery has been conducted on the
question of causation. See Washington I, 322 F. Supp. 2d at 698
(observing, in response to Washington’s statement that he had not had
an opportunity to take depositions, that "[t]he court has given Plaintiff
ample time to conduct discovery in the sixteen months since this case
has been filed"; directing Washington to conduct discovery "on the
limited issue of whether officers Wilmore, Hart, Zeets and Schrum
had actual knowledge of Washington’s innocence at the time of
Washington’s interrogation"). In particular, Washington has not
deposed the attorney who prosecuted the case, so we do not know
whether Wilmore’s false statement in the police report influenced the
decision to bring charges against Washington and the manner in
which the prosecution was conducted. We do know, however, that in
his opening statement the prosecutor told jurors that Washington "told
[Wilmore and Hart] a number of different things that could only have
been known by somebody who actually had committed the offense."
J.A. 468. And, we know that Washington’s seemingly independent
knowledge of details of the crime has been important throughout the
history of this case. See Washington v. Murray, 4 F.3d 1285, 1292
(4th Cir. 1993) (concluding that Washington was not prejudiced by
WASHINGTON v. WILMORE 15
trial counsel’s ineffectiveness because "Washington had supplied
without prompting details of the crime that were corroborated by evi-
dence taken from the scene and by the observations of those investi-
gating the Williams’ apartment"); J.A. 526 (order of Lawrence
Douglas Wilder, Governor of Virginia, granting a conditional pardon)
(stating that even with newly discovered DNA evidence, "a review of
the trial evidence, including the confessions of Earl Washington, Jr.
reveals that he had knowledge of evidence relating to the crime which
it can be argued only the perpetrator would have known").
In light of Wilmore’s failure to challenge causation on appeal and
the presently limited nature of the record, we think this is not a proper
basis for reversal of the denial of qualified immunity by the district
court. We therefore conclude that the facts stated by Washington
allege the violation of his constitutional right not to be deprived of
liberty as a result of the fabrication of evidence by an investigating
officer. Moreover, this right was clearly established in 1983, when the
events relevant to this litigation took place. See Miller v. Pate, 386
U.S. 1, 7 (1967) ("[T]he Fourteenth Amendment cannot tolerate a
state criminal conviction obtained by the knowing use of false evi-
dence."). Accordingly, we affirm the denial of qualified immunity.
IV.
For the reasons set forth above, we affirm the judgment of the dis-
trict court.
AFFIRMED
SHEDD, Circuit Judge, concurring:
I agree with the majority that the Rooker-Feldman doctrine does
not bar our subject-matter jurisdiction in this case. I would add, how-
ever, that a district court, when presented with this issue, should con-
sider it in the first instance. See Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 583 (1999) ("Article III generally requires a federal court
to satisfy itself of its jurisdiction over the subject matter before it con-
siders the merits of a case.").
16 WASHINGTON v. WILMORE
I also agree that under our very limited standard of review, we
must affirm the district court’s denial of qualified immunity to Wil-
more. As a result, on remand Washington’s case against Wilmore will
proceed on one very narrow claim: specifically, Washington’s claim
that Wilmore deliberately fabricated "evidence" by making the "un-
clear" statement in the May 24, 1983, police report that Washington
"gave pertinent information about the crime [i.e., the shirt] that no one
knew with the exception of himself."1 This claim, although extremely
serious, is but one of many extraordinary allegations on which Wash-
ington premised this case, virtually all of which have been rejected
(subject to future appellate review) as factually unsupported by the
district court.
For example, in his Amended Complaint, Washington stated that
his "ordeal was not a tragic mistake, but the result of a concerted
effort by law enforcement officers . . . to convict him for [the Wil-
liams rape and murder] despite the total absence of credible evidence
against him." Washington asserted that among their alleged misdeeds,
these officers, who "knew or should have known" that he was inno-
cent of the Williams rape and murder, used coercive tactics and "se-
cured false and fabricated confessions from him, feeding him
sufficient details about the crime until he ‘got it right.’" Moreover,
Washington asserted that although the officers "knew the confessions
were bogus, they nevertheless arrested, charged, and tried [him] for
capital murder, all the while suppressing or ignoring exculpatory evi-
dence, concealing exculpatory evidence from him, failing to explore
other obvious leads, and deliberately choosing not to test forensic evi-
dence that would have exonerated him." Washington also asserted
that he is mentally retarded and that the officers "knew or should have
known that [he] was cognitively impaired and highly susceptible to
police coercion."
Contrary to these allegations, the district court found that "[t]here
is no evidence on the record tending to show that [the officers] knew
that Washington was actually innocent of the Williams murder when
1
See Washington v. Buraker, 322 F. Supp.2d 702, 717 (W.D. Va.
2004) ("The only remaining claims in this action are Washington’s fabri-
cation claim against Wilmore and Washington’s state law defamation
claim against defendant Gary L. Close").
WASHINGTON v. WILMORE 17
he was interrogated following his arrest on May 21, 1983." Washing-
ton, 322 F. Supp.2d at 708. The district court similarly found that
"[t]here is no evidence that the officers intentionally took advantage
of Washington’s mental state at the time of the interrogation to solicit
a false confession," id., or that they "knew that Washington was men-
tally retarded at the time of the interrogations," id. at 713. The district
court also found that "[e]ven assuming that [the officers] asked Wash-
ington leading questions, the record supports the conclusion that
Washington answered those questions, and confessed to the Williams
murder;" the district court thus concluded that "[t]he confession itself
was not a fabrication." Id. at 712. Consequently, the district court held
that "there is no evidence on the record to support Washington’s coer-
cion claim against [the officers]." Id. at 715.
The First Circuit has aptly stated that "if any concept is fundamen-
tal to our American system of justice, it is that those charged with
upholding the law are prohibited from deliberately fabricating evi-
dence and framing individuals for crimes they did not commit.
Actions taken in contravention of this prohibition necessarily violate
due process (indeed, we are unsure what due process entails if not
protection against deliberate framing under color of official sanc-
tion)." Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir. 2004) (citation
omitted).2 By our decision today, we have expressed no opinion on
whether any law enforcement officer — including Wilmore — vio-
lated this constitutional precept in regard to the criminal case against
Washington.3 We have merely held, based on the record before us and
in light of our limited standard of review, that we cannot reverse the
district court’s denial of qualified immunity to Wilmore.
2
Unquestionably, the circumstances of Washington’s conviction and
eventual pardon are extraordinary and warrant public scrutiny. See Vir-
ginia Dept. of State Police v. Washington Post, 386 F.3d 567, 574 (4th
Cir. 2004), cert. denied, 2005 Westlaw 218466 (U.S. Mar. 28, 2005)
(noting the public’s obvious interest in how the justice system operated
in the criminal case against Washington). However, the issue in this liti-
gation is not simply whether the justice system failed Washington, but
instead whether any such failure is the result of deliberate or reckless
misconduct by law enforcement.
3
Likewise, we have expressed no opinion whether the district court
correctly dismissed Washington’s other claims, which are not now before
us.
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658 F.2d 613
Lewis W. CASPE and Bernice W. Caspe, Appellees,v.AAACON AUTO TRANSPORT, INC., Appellant.
No. 80-1604.
United States Court of Appeals,Eighth Circuit.
Submitted April 13, 1981.Decided Sept. 10, 1981.
1
Ralph J. Zola, New York City, for appellant; Jack L. Cohen, Forest Hills, N. Y., argued, on the brief.
2
Davis, Hockenberg, Wine, Brown & Koehn, Jonathan C. Wilson, argued, and Jill S. Rolek, Des Moines, Iowa, for appellees.
3
Before LAY, Chief Judge, ROSS, Circuit Judge, and VAN PELT,* Senior District Judge.
4
VAN PELT, Senior District Judge.
5
This action was commenced by plaintiffs under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11),1 when Aaacon Auto Transport, Inc. failed to deliver their car2 from Palm Springs, California, to Des Moines, Iowa. The trial court found in favor of the plaintiffs and their car insurance company which was an intervenor in the action. Although defendant lists eleven issues on appeal, some of them appear to be inapplicable3 and others were never briefed and we consider them to be waived or abandoned.4 We believe that the following is a fair statement of the issues before us: Whether the district court erred in awarding (a) an amount in excess of $50 for lost personal property; (b) accountants' fees for reconstructing lost business records; and (c) attorneys' fees as a result of defendant's vexatious conduct.
6
The facts of this case are very simple. Mr. and Mrs. Caspe own a home both in Des Moines, Iowa, and in Rancho Mirage, California (which the parties have referred to as Palm Springs because that is the mailing address). Lewis Caspe contracted with Aaacon to pick up their 1975 Cadillac in Des Moines on December 28, 1974 and deliver it to Palm Springs where they spent the remainder of the winter. When they were ready to return to Des Moines, Mr. Caspe again contacted Aaacon about transporting the car and entered into a contract whereby Aaacon would pick up the 1975 Cadillac in Palm Springs on April 1, and deliver it on approximately April 4, 1975, to Des Moines.
7
The bill of lading signed by Mr. Caspe contained a clause stating:
8
Unless a greater value is declared thereon above and additional tariff paid, shipper agrees that the declared value of all personal property in the vehicle is under fifty dollars and hereby releases carrier from all obligations for loss or damage thereto in excess of fifty dollars. In no event shall personal property exceed a designated value of $250.00.
9
The freight bill given to Caspe incorporated the terms of the bill of lading.
10
The car was never delivered as scheduled. It was found almost three months later abandoned, presumably by the driver hired by Aaacon, in the Atlanta, Georgia, airport parking lot. Mr. Caspe had testified an Aaacon representative had told him he could fill the trunk with anything he pleased and he had done so. When the car was recovered, the trunk contained a few of the Caspe's possessions, but the majority were missing including cameras, clothing, sporting equipment and gift items. Also missing was a briefcase containing certain commodities records which Mr. Caspe had placed in the interior of the car with the driver's permission. The car was ultimately sold by the Caspe's auto insurance company to the highest salvage bidder.
11
After several months of unsuccessful attempts to recover damages from Aaacon, Aaacon advised the Caspes that the extent of its liability was limited to $50. The Caspes filed suit in state district court in March of 1976. Defendant had the suit removed in April to federal court. The case was not tried until November of 1979, approximately three and one-half years after suit was filed. This was in large part due to Aaacon's constant resistance and footdragging, including failure to comply with an order requiring production of documents and answers to interrogatories. The actual trial to the court, not including preliminary matters in chambers, took less than four hours to complete. The district court found that the limitation of liability clause in Aaacon's bill of lading was invalid because it failed to comply with the applicable tariff and Interstate Commerce Commission (ICC) order, and awarded plaintiffs $6,667.16 for their lost personal property, $1,050.00 for accounting fees to reconstruct the lost records, and attorneys fees.
12
Turning first to appellant's contention that its liability for personal property was limited to $50.00, we believe that the district court was correct in finding that the limitation clause was void for failure to fully comply with the tariff and ICC order. The tariff states in part:
13
(b) The bill of lading and shipping order and/or receipt issued for any shipment accepted for transportation at the released rates established and maintained under the authority of this order shall have printed in bold-face type on the face thereof, a statement reading substantially as follows:
14
"Unless a greater value is declared hereon, the shipper hereby agrees and declares that the value of the baggage, personal effects and sporting equipment described herein is released to a value not exceeding $50 per shipment."
15
(c) The released value must be entered on the shipping order and bill of lading and/or receipt in the following form:
16
"The agreed or declared value of the property is hereby specifically stated by the shipper to be not exceeding $ per shipment."
17
The released rates order contained the same provisions.
18
It seems obvious that the purpose of putting a limitation clause in bold-face type is to make it stand out and attract the reader's attention. It seems equally obvious that putting the entire agreement in densely packed bold-face type, such as Aaacon did, with the limitation clause buried in the middle of the agreement, does not achieve that purpose. Additionally, Aaacon's agreement provided no space for the shipper to declare the value of the property, as is contemplated by the tariff and order, and which would be a further means of attracting the shipper's attention by causing him to focus on the value of the shipment. We have no difficulty in finding the district court correctly decided that Aaacon's limitation of liability did not meet the required standards and was invalid under 49 U.S.C. § 20(11).
19
Turning to the issue of accountants' fees, the district court awarded the fees for reconstructing lost commodities records without any explanation of the basis for doing so. After discussing the invalidity of the limitation of liability clause, the district court simply stated:
20
Defendant is liable to plaintiffs for the loss of personal property in the amount of $6,667.16 and is liable to plaintiff Lewis Caspe in the additional amount of $1,050.00 for reconstructing the lost records.
21
In a supplemental brief requested by this court at oral argument, because neither party had briefed this issue, Aaacon has argued that the accountants' fees constitute special damages which are not recoverable. It contends that reconstruction
22
was not the necessary result of said loss. If the records had been copied beforehand, the reconstruction would not have been required.
23
Appellees in their supplemental brief contend that the fees represent actual damages, and that even if they are special damages they are still recoverable.
24
In general, actual damages are allowed when they are foreseeable and special damages are allowed only if actual notice was given the carrier of the possibility of injury. Reed v. Aaacon Auto Transport, Inc., 637 F.2d 1302 (10th Cir. 1981); Hector Martinez & Co. v. Southern Pacific Transportation Co., 606 F.2d 106, 108-09 (5th Cir. 1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2962, 64 L.Ed.2d 838 (1980). The Tenth Circuit Court of Appeals considered the question of actual, special and consequential damages in Reed, supra. That case involved a similar situation where Aaacon's driver failed to deliver a car and it was found some time later at a sportscar dealership. However, the car was in such deplorable condition that the engine was ruined and restoration was impossible. The lower court had awarded special and consequential damages consisting of compensation to Reed for the loss of use of his automobile, and the reimbursement of monies expended in locating and ultimately disposing of the car. This was in spite of the fact that Aaacon's freight bill-order form stated that "Aaacon is not responsible for car rentals or any other special damages, including nonuse of the vehicle." The lower court found that this was an invalid attempt to limit liability, and the Court of Appeals agreed.5 It concluded thatReed's expenses, including storage fees, damage estimate fees, and transactional costs associated with the ultimate disposition of the automobile, were the natural and probable consequence of the damage done to the automobile, and need not be classified as "special damages."
25
Reed, supra, at 1306.
26
We have been unable to find a single case dealing with accounting fees as a measure of damages, whether actual or special. Although the harm suffered here was not as foreseeable as the necessity of renting a car upon failure of delivery or costs to determine salvagability upon recovery, and the question is a close one, we believe that the accounting fees under the facts of this case constituted actual damages which may be recovered by plaintiffs.
27
Our conclusion is based upon these factors and closely follows Reed, supra. The Carmack Amendment provides that a shipper is entitled to recover his full actual loss. See Kaiser Aluminum Chemical v. Illinois Central Gulf Railroad Co., 615 F.2d 470, 474 (8th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 249, 66 L.Ed.2d 116 (1981). A carrier may only limit its liability by establishing a rate schedule dependent upon value. The district court here correctly found that Aaacon's attempt to limit its liability was invalid; thus any actual damages are recoverable. The court in Martinez, supra, at 110 concluded that:
28
The general rule does not require the plaintiff to show that the actual harm suffered was the most foreseeable of possible harms. He need only demonstrate that his harm was not so remote as to make it unforeseeable to a reasonable man at the time of contracting.
29
We believe that it is foreseeable that a businessman, such as Mr. Caspe, spending four months away from his home and primary business location, would have financial records with him the same as the clothes and sporting equipment which were lost. This is particularly true where income tax time was approaching and reconstruction was necessary in order to prepare a tax return. We do not have before us the question of whether on a one day trip or trip of shorter duration the need for the same records would always be foreseeable.
30
Although there has been some discussion that the bill of lading and freight bill stated that luggage was to be placed in the trunk only, and that the briefcase was placed inside the car but not in the trunk, we do not believe this is fatal to plaintiffs' recovery. There is no explanation on either form as to the reason for placing luggage in the trunk only.6 An Aaacon representative told Mr. Caspe that he could fill the trunk with anything he liked, but to leave the inside of the car free for the driver's luggage and any passengers. Thus, the purpose of putting luggage in the trunk only does not appear to be to limit liability with regard to such luggage. In addition, even if the briefcase and records had been placed in the trunk as requested, they still would have been stolen along with everything else. Thus, this argument has little merit.
31
We conclude under the facts of this case, that the harm for which the district court allowed a recovery was not so unforeseeable as to make damages for the loss unrecoverable.
32
Finally, there is the question of attorneys' fees. It must be recalled that plaintiffs' attorneys dealt unsuccessfully with Aaacon several months before filing suit, and then the case itself took approximately three and one-half years to reach trial. We have reviewed the record submitted to us on appeal, and agree with the district court's conclusion that defendant's conduct was "most vexatious."7 Under Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 254-59, 95 S.Ct. 1612, 1620-22, 44 L.Ed.2d 141 (1975) the court had the inherent power to award attorneys fees in such a case. Miller v. Aaacon Auto Transport, Inc., 447 F.Supp. 1201, 1207 (S.D.Fla.1978). Because appellant has failed to provide us with the actual court order awarding the fees, and we have seen at least four different numerical amounts8 in documents provided to this court, we consider that appellant is merely questioning whether attorneys fees can be awarded, not the amount so awarded. However, by all indications, the district court did not abuse its discretion in that regard.9
33
The judgment and order of the district court is affirmed in all respects.
*
Robert Van Pelt, Senior District Judge, District of Nebraska, sitting by designation
1
The Carmack Amendment, 49 U.S.C. § 20(11), provides in pertinent part:
Any common carrier * * * subject to the provisions of this chapter receiving property for transportation from * * * one State * * * to * * * another * * * shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line * * * such property may pass * * * and no * * * limitation of any character whatsoever shall exempt such common carrier * * * from the liability imposed; and any such common carrier * * * shall be liable * * * for the full actual loss, damage, or injury to such property caused by it or by any such common carrier * * * to which such property may be delivered * * * notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, or in any contract, rule, regulation, or * * * tariff * * * and any such limitation * * * is declared to be unlawful and void * * * (however) nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under the existing law * * * Provided, however, That the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or recovery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply * * * to property * * * received for transportation concerning which the carrier shall have been or shall be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released, and shall not, so far as relates to values, be held to be a violation of section 10 of this title; and any tariff schedule which may be filed with the commission pursuant to such order shall contain specific reference thereto and may establish rates varying with the value so declared and agreed upon.
2
The car was actually owned by HICO Employees Profit Sharing Trust and leased to National Sheet Metal Company whose president is Lewis Caspe. The car was apparently used by the Caspes the same as if it were their own and for the purposes of this opinion is referred to as their car
3
Aaacon appealed an award of interest on the judgment. Appellees informed us at oral argument that no interest was awarded. Appellant's statement of issues further mentions an appeal of towing charges, but we find no order pertaining to such and it was never further argued in the brief. An issue pertaining to whether the court erred in awarding the Caspe's auto insurer, who was a third party intervenor, the difference between the value of the car at the time it was stolen and the amount they were able to sell the car for after its recovery was settled prior to oral argument
4
Aaacon failed to brief the issues as to whether the district court erred in denying its motion for new trial and in denying its motion for summary judgment. Based on the grounds of the motions made before the trial court, even if the issues had been argued and briefed, the result herein would have been unchanged as they had no merit
5
Clause 3 is an invalid attempt to limit liability. The Carmack Amendment, 49 U.S.C. § 20(11), expressly states that "any limitation of liability or limitation of the amount of recovery ... in any contract ... without respect to the manner or form in which it is sought to be made is declared to be unlawful and void." An exception is provided with respect to
"property ... received for transportation concerning which the carrier shall have been or shall be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released."
49 U.S.C. § 20(11). The exception is clearly inapplicable in this case; Aaacon does not establish or maintain rates for its automobile transport services that are dependent upon the automobile values declared in writing by its customers. The district court properly ignored the invalid exculpatory clause in determining whether special or consequential damages were contemplated by the parties.
Reed, supra, at 1306.
6
We further note that neither the tariff nor the released rates order dealing with the limitation of liability for baggage, etc. requires luggage to be placed in the trunk, referring instead to
rates, for the transportation of baggage, personal effects and sporting equipment, not exceeding 500 pounds in weight, in interstate or foreign commerce when placed in and accompanying a used automobile being transported in driveaway service with casual drivers ....
(emphasis added).
7
As mentioned earlier, appellant failed to comply with a court order to produce certain documents and to answer interrogatories. Instead, it filed a motion for partial summary judgment, requesting that the court rule on it with all due speed. A second order was necessary. Over one year after discovery was closed, Aaacon scheduled two depositions on the same day in different regions of the country. It refused to give local counsel any authority to stipulate to anything at the pretrial conference, and did not provide a witness list or exhibit list, and indicated no witnesses or exhibits would be offered at trial. As a result, a magistrate entered an order prohibiting Aaacon from having any witnesses at the trial, although they were allowed to introduce exhibits. In addition, there were numerous motions and requests for continuances which prolonged the proceedings. As stated in plaintiffs' Combined Application for Continuance of Oral Depositions and Protective Order:
The amount in controversy is less than ten thousand dollars; and were these average Plaintiffs this action would have died long ago through the exhaustion of Plaintiff's resources and will.
Undoubtedly, this is precisely what Aaacon was hoping would happen.
8
It was stated in appellant's brief at 28 that the court concluded $4,133 of plaintiffs' legal fees was attributable to vexatious conduct, and at page 30 that the trial court granted $3,970. Appellee's brief at 19 indicates that $4,100 was the amount found by the lower court to be attributable to vexatious conduct. Finally, there is reference in a later order awarding plaintiffs further attorneys' fees with regard to a post-trial motion made by defendants (Aaacon does not appeal that award here) and reprimanding Aaacon's local counsel in which the court itself refers to the earlier award as $3,980
9
The amount requested for attorneys fees was $11,175.10, which is more than the total amount involved in this case. We have no doubt that the lengthy proceedings involved over four years could indeed generate a bill of this size. Aaacon hardly has to worry about its legal bills, since it is owned by Ralph Zola, the head of Zola and Zola, a law firm who presented the appeal in this court and who was primary counsel in the lower court. If unfair tactics have been or are used by Aaacon, then persons like Caspe are necessary to establish principles needed to insure that justice ultimately prevails
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Case: 08-61129 Document: 00511144403 Page: 1 Date Filed: 06/16/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 16, 2010
No. 08-61129
Lyle W. Cayce
Clerk
RAIMEE MARMILLION,
Plaintiff - Appellant
v.
AMERICAN INTERNATIONAL INSURANCE COMPANY; AIG
MARKETING INC; WILLIS NORTH AMERICA INC; WILLIS OF
LOUISIANA INC,
Defendants - Appellees
Consolidated with
No. 09-60228
RAIMEE MARMILLION,
Plaintiff - Appellee
v.
WILLIS NORTH AMERICA INC; WILLIS OF LOUISIANA INC;
AMERICAN INTERNATIONAL INSURANCE COMPANY; AIG
MARKETING INC,
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Mississippi
No. 1:07-cv-1132
Case: 08-61129 Document: 00511144403 Page: 2 Date Filed: 06/16/2010
No. 08-61129
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Raimee Marmillion, a victim of Hurricane Katrina, filed suit against
American International Insurance Company (“AIG”), AIG Marketing, Inc., Willis
North America Inc., and Willis of Louisiana, Inc. (“Willis”) after AIG allegedly
refused to honor the insurance policy on her damaged beach house. Although
the case proceeded to trial, the district court granted the defendants’ motions for
judgment as a matter of law. The defendants, as the prevailing parties, moved
for costs. The district court denied their costs in substantial part. The parties’
appeals are before the court.
I.
Willis procured four insurance policies through AIG for Marmillion in
October 2003. The policies included two homeowner’s insurance policies—one
for Marmillion’s beach house in Mississippi and one for Marmillion’s house in
Metairie, Louisiana; an excess liability policy; and an automobile policy. The
premium for all four policies was billed under a single account and payable in
four installments. AIG agreed to directly bill Marmillion for each premium
payment.
In late 2003 and continuing into 2004, Marmillion contacted Willis several
times about changing her billing address. Marmillion’s living situation changed
frequently during that time. Despite Marmillion’s requests, her billing address
never changed before AIG sent the bill for the next premium installment. She
regularly failed to receive billing statements from AIG and regularly failed to
make timely premium payments. AIG issued Marmillion at least eight notices
*
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.
2
Case: 08-61129 Document: 00511144403 Page: 3 Date Filed: 06/16/2010
No. 08-61129
of cancellation and, on at least one occasion, temporarily cancelled her policies.
Despite these problems, Marmillion was able to arrange with Willis and AIG to
pay an amount to keep all four polices in force.
The policies renewed in October 2004, and Marmillion continued to
experience billing problems. For instance, Marmillion did not receive a bill in
September or November 2004. Both times, AIG sent Marmillion a notice of
cancellation. Upon receipt of the notice, Marmillion contacted Willis and asked
that it send her the bill so she could avoid cancellation. Willis faxed the bills and
the premiums were paid before the policies cancelled.
Because AIG continued to send the bills to the wrong address, Marmillion
again contacted Willis in November 2004 and asked that her billing address be
changed to her home in Arkansas. She also asked Willis to cancel her
automobile policy. A Willis employee sent AIG an e-mail in November 2004
asking AIG to change Marmillion’s “insured address” to the Arkansas address
and to cancel her automobile policy. An AIG employee interpreted the e-mail as
a request to change the mailing address, not a request to change the mailing and
billing addresses. AIG changed her mailing address and cancelled the
automobile policy, but her billing address remained the same. In mid-January
2005, Marmillion again requested that her billing address be changed.
AIG sent Marmillion her third bill for the 2004–2005 policy year on
January 21, 2005. However, because the bill was not sent to her Arkansas
address, Marmillion did not receive it. AIG sent a reminder notice, but again,
not to the Arkansas address. Having not received the bill or the reminder notice,
Marmillion did not pay her bill.
On March 21, 2005, AIG mailed cancellation notices to Marmillion at the
Arkansas address for the beach house policy and the Metairie policy for non-
payment of premium. The notices stated the amounts due and when the policies
would be cancelled. Marmillion received the notices of cancellation before the
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No. 08-61129
policies were cancelled, but did not ask Willis to send her the third bill or pay the
amount owed. At the time of cancellation, both policies had accrued excess
premiums. The premium credits were refunded to Marmillion on May 4, 2005,
but the check was sent to the wrong address.
In June, Marmillion contacted Willis about her account. A Willis employee
informed her that the policies had been cancelled, and Marmillion told the
employee that she did not believe her. According to Marmillion’s testimony, the
employee told Marmillion that she would contact AIG and that Marmillion did
not need to make a payment and that she had a credit coming.
In August 2005, Marmillion contacted Willis’s corporate office in New York
and spoke to Sandra Bravo. According to Marmillion, Bravo informed
Marmillion that she was going to help Marmillion “take care of this” and asked
Marmillion to tell her exactly what Marmillion needed covered. That day,
Marmillion wrote a check to AIG for $7,576.80 but did not send it.
In a letter dated August 18, 2005, a Willis employee informed Marmillion
that the beach house policy had been cancelled effective April 6, 2005, and that
Willis would make no attempt to have the policy reinstated or replaced absent
receipt of a written request from Marmillion. Marmillion never contacted Willis
to seek reinstatement or replacement of her policy.
Hurricane Katrina struck on August 29, 2005, and damaged the beach
house. On September 15, 2005, Marmillion overnighted the check drafted in
August, and Willis assisted Marmillion in filing her claim on the beach house
policy. Her claim was later denied by AIG on the basis that AIG cancelled her
policy before the claim arose.
After AIG denied her claim, Marmillion filed suit. The case proceeded to
trial. But, at the close of Marmillion’s case in chief, the district court granted
AIG’s motion for judgment as a matter of law on one of Marmillion’s theories of
breach of contract and dismissed AIG Marketing, Inc. The district court also
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No. 08-61129
granted Willis’s motion for judgment as a matter of law on one of Marmillion’s
theories of negligence and dismissed Willis North America, Inc. At the close of
the case, the district court granted judgment as a matter of law on Marmillion’s
remaining claims.
As the prevailing parties, the defendants filed bills of costs. Marmillion
objected, and the district court substantially denied the requested costs. This
appeal ensued.
We will consider first whether judgment as a matter of law was properly
granted on Marmillion’s breach of contract and negligence claims. We will then
consider whether the district court abused its discretion in substantially denying
the defendants’ costs.
II.
We review de novo whether a district court properly granted judgment as
a matter of law, applying the same legal standard as the district courts. Brown
v. Bryan County, OK, 219 F.3d 450, 456 (5th Cir. 2000). “If a party has been
fully heard on an issue during a jury trial and the court finds that a reasonable
jury would not have a legally sufficient evidentiary basis to find for the party on
the issue,” a district court may resolve an issue against the party and grant a
motion for judgment as a matter of law on a claim or defense. F ED. R. C IV. P.
50(a). “In evaluating such a motion, the court must consider all of the evidence
in the light most favorable to the nonmovant, drawing all factual inferences in
favor of the non-moving party, and leaving credibility determinations, the
weighing of evidence, and the drawing of legitimate inferences from the facts to
the jury.” U.S. Commodity Futures Trading Comm’n v. Dizona, 594 F.3d 408,
413 (5th Cir. 2010) (citation omitted).
On appeal, Marmillion argues that the district court erred in granting the
defendants’ motions for judgment as a matter of law because she produced
legally sufficient evidence that would allow a reasonable jury to find in her favor
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No. 08-61129
on her breach of contract and negligence claims. Under the above standard, we
will review the sufficiency of the evidence produced.
A.
Marmillion asserts that AIG breached the insurance agreement by
wrongfully cancelling the beach house policy for failure to render the third
premium payment. According to Marmillion, no payment was due because her
premium credit exceeded the amount owed and AIG had a duty to apply the
credit to her outstanding balance. The question on appeal is whether
Marmillion produced legally sufficient evidence demonstrating that before the
beach house policy cancelled, Marmillion had a premium credit that exceeded
the amount owed on the policy.
Marmillion argues that a reasonably prudent jury could find that
Marmillion had a premium credit of $856.80 and that the third premium
payment was $344.80. To support her argument that she had a premium credit
of $856.80, Marmillion relies on two stipulations. The first stipulation stated
that a premium credit of $439.60 resulted from the cancellation of the Metairie
policy. The Metairie policy cancelled on April 1, 2005. The second stipulation
stated that a credit of $417.20 resulted from the cancellation of the beach house
policy. The beach house policy cancelled on April 6, 2005. Considering this
evidence in the light most favorable to Marmillion, on April 6, 2005, before the
beach house policy cancelled, Marmillion had a premium credit of $439.60. She
did not have a credit of $856.80 until the beach house policy cancelled.
We must now ask whether Marmillion produced sufficient evidence
demonstrating that she owed less than $439.61 on the beach house policy.
Marmillion claims that she owed $344.80. To support this position, she relies on
three documents—the notices of cancellation for the Metairie and beach house
policies and the January 21, 2005 bill. These documents show that on January
21, 2005, Marmillion owed a minimum of $1,470.80 for the four policies on the
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No. 08-61129
account (the automobile policy, the personal excess liability policy, and the two
homeowners policies). Specifically, she owed $248.80 on the personal excess
liability policy, $724.40 on the beach house policy, and $497.60 on the Metairie
policy. The installment schedule listed $344.80 as the amount due for the third
installment, the amount paid as “-$1,126.00,” and an outstanding balance of
$1,470.80. The current amount due for all policies on the account was $1,470.80.
On March 21, 2005, AIG sent Marmillion notice that it planned to cancel the
Metairie policy for non-payment of premium on April 1, 2005, and the beach
house policy on April 6, 2005. At that time, Marmillion owed $378.80 on the
Metairie policy and $724.40 on the beach house policy.
Marmillion argues that a genuine issue of material fact exists as to the
amount she owed on the beach house policy because the January 21, 2005 bill
stated that the amount due for the third installment was $344.80 but also stated
that $1,470.80 was the current amount due for all policies and that she
specifically owed $724.40 on the beach house policy. At trial, Marmillion offered
no explanation or evidence as to why she owed $344.80 on the beach house
policy, as opposed to $724.40. Absent testimony or additional evidence
explaining why $344.80 was the amount owed or the reason for the apparent
discrepancy, the document, standing alone, would not provide a jury a legally
sufficient evidentiary basis to find that Marmillion owed less than $439.61 on
the beach house policy. See Coats v. Pierre, 890 F.2d 728, 732 n.1 (5th Cir.
1989). Under Mississippi law, the plaintiff has the burden of proving the right
to recover for the breach of an insurance agreement. See Broussard v. State
Farm Fire & Cas. Co., 523 F.3d 618, 625 (5th Cir. 2008) (citation omitted).
“[T]his basic burden never shifts from the plaintiff.” Id. The district court did
not err in granting AIG judgment as a matter of law on this theory of breach of
contract.
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B.
Marmillion also argues that AIG breached the insurance agreement by
failing to send billing statements to Marmillion’s proper address. AIG moved for
judgment on this theory arguing that even if it breached the agreement by
failing to mail the billing statements to the correct address, the breach was not
material and did not excuse Marmillion’s duty to pay the premium. The district
court agreed and held that any breach by AIG was not material. The issue on
appeal is whether AIG materially breached the insurance agreement.
Under Mississippi law, “[a] breach is material if (1) a party fails to perform
a substantial part of the contract or one or more of its essential terms or
conditions, (2) the breach substantially defeats the contract’s purpose, or (3) the
breach is such that upon a reasonable construction of the contract, it is shown
that the parties considered the breach as vital to the existence of the contract.”
Lauderdale County Sch. Dist. v. Enter. Consol. Sch. Dist., 24 F.3d 671, 686 (5th
Cir. 1994) (citing UHS-Qualicare v. Gulf Coast Cmty. Hosp., 525 So. 2d 746, 756
(Miss. 1987)). Ordinarily, materiality is a question of fact for the jury to decide.
Hensley v. E.R. Carpenter Co., Inc., 633 F.2d 1106, 1110 (5th Cir. 1980); Sanford
v. Federated Guar. Ins. Co., 522 So. 2d 214, 217 (Miss. 1988).
On appeal, Marmillion argues that questions of fact exist, but she fails to
identify how those facts support a finding of material breach. She does not argue
or attempt to show that AIG’s duty to send bills to the correct address was a
substantial part of the agreement or an essential term or condition. Nor does
she argue that the breach substantially defeated the contract’s purpose or that
mailing the bills to the correct address was vital to the existence of the contract.
But, even if argued, the evidence presented at trial fails to support such
conclusions.
Before the policy cancelled, AIG notified Marmillion that she owed $724.40
on the beach house policy and that the policy would be cancelled for non-
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No. 08-61129
payment. She received with either that notice of cancellation, or with a previous
notice, instructions advising her as to how to avoid cancellation. She admitted
receipt of the notice and instruction sheet at trial. Both the notice of
cancellation and the January 21, 2005 bill stated that Marmillion owed $724.40
on the beach house policy. Marmillion knew the amount owed, what to do to
cure the delinquency, and the consequences of failing to do so. Marmillion failed
to present legally sufficient evidence demonstrating that receiving the bill at the
correct address (the Arkansas address) was an essential term of the agreement.
During the policy period at issue, AIG never fulfilled its obligation to bill
Marmillion at the correct address. Despite this failure, Marmillion paid the first
and second premium, after she received the notice of cancellation. AIG received
its payment and Marmillion’s coverage continued. The failure to bill Marmillion
at the correct address did not substantially defeat the contract’s purpose.
Finally, the insurance agreement cannot be reasonably construed to show
that the parties considered sending the bills to the correct address vital to the
existence of the agreement. For these reasons, we affirm the district court’s
judgment as a matter of law on Marmillion’s breach of contract claims.1
C.
At trial, Marmillion argued that Willis was negligent for two independent
reasons. Her first theory of negligence was predicated on Willis’s failure to act
on her requests to ensure that AIG corrected her billing address. At the close of
Marmillion’s case, the district court granted Willis judgment as a matter of law
on this theory of negligence, reasoning that if AIG’s failure to bill Marmillion at
the correct address was not a material breach, then the failure of Willis to
1
Because Marmillion failed to produce legally sufficient evidence on her breach of
contract claims, we need not consider whether the district court erred in granting AIG’s
motion for judgment as a matter of law on the alternative ground of acquiescence or erred in
granting AIG’s motion for summary judgment on Marmillion’s bad faith claim.
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No. 08-61129
ensure that AIG had the proper billing address could not have caused
Marmillion harm.
Marmillion’s only argument on appeal is that if AIG’s breach was material,
the court should also reverse the district court’s judgment as a matter of law in
favor of Willis. Because Marmillion failed to produce sufficient evidence of
materiality, we affirm the district court’s judgment on this issue.
D.
Marmillion’s second theory of negligence is predicated on Willis’s alleged
failure to reinstate or replace the beach house policy. After the close of the
evidence, the district court granted Willis judgment as a matter of law finding
that Marmillion failed to prove breach and causation. On review, “we may
affirm the district court’s decision on any ground supported by the record.”
Phillips ex rel. Phillips v. Monroe County, Miss., 311 F.3d 369, 376 (5th Cir.
2002).
To prevail on this theory of negligence, Marmillion must establish that
Willis had a duty to reinstate or replace the beach house policy, Willis breached
that duty, and the breach proximately caused her damages. See Lovett v.
Bradford, 676 So. 2d 893, 896 (Miss. 1996). Mississippi law recognizes an
insurance broker’s “duty to his principal to procure insurance policies with
reasonable diligence and good faith.” Id.; see also First United Bank of
Poplarville v. Reid, 612 So. 2d 1131, 1137 (Miss. 1992) (holding that an
insurance broker “has a duty to use that degree of diligence and care with regard
to securing insurance which a reasonably prudent person would exercise in the
transaction of that person’s own business of a like nature”). A broker who has
agreed to procure insurance will be liable for any damages that result from the
broker’s failure to procure the requested insurance. Pittman v. Home Indem.
Co., 411 So. 2d 87, 89 (Miss. 1982). The question before the court is whether
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No. 08-61129
Marmillion produced sufficient evidence that Willis agreed to reinstate or
replace the beach house policy. We hold that she did not.
Marmillion testified as follows. In June 2005, Marmillion contacted Willis
on several occasions to discuss her AIG account. Cathy Guilfo, a Willis employee
in the local office, informed Marmillion that her policies had been cancelled and
that she had no insurance coverage. Guilfo then told Marmillion that she did
not need to make a payment and that she had a credit on her account.
Marmillion told Guilfo that she did not believe the polices had been cancelled.
Guilfo told Marmillion she would contact AIG, but the record is void as to why
Guilfo was going to contact AIG.
On August 15, 2005, after Guilfo failed to return Marmillion’s telephone
calls, Marmillion contacted Sandra Bravo, a Willis corporate executive in New
York. She contacted Bravo because she wanted to find out the status of her
policies. Marmillion understood that Bravo did not handle customer calls but
would try to help. Marmillion described to Bravo the poor service she received
from Willis. Specifically, she told Bravo about her attempts to get someone to
change her address, send her invoices, help her understand where her payments
were allocated, and let her know that her billing address had been corrected.
She also told Bravo that there were some policies she might want to cancel.
Because of her problems with Willis, Marmillion told Bravo that she had gotten
insurance quotes and had discussed transferring her policies to another
insurance broker. Marmillion further testified that Bravo told her that Willis
did not want to lose her business, she did not have to obtain another policy, and
that Bravo would “assist [her] in making sure everything was covered and
everything was taken care of.” According to Marmillion, Bravo asked
Marmillion what she needed to make sure Marmillion had coverage on after they
got off the phone. Marmillion listed the policies she believed she was currently
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No. 08-61129
paying for, including the beach house policy. Bravo told Marmillion that she
would take care of it and that someone would get in touch with her.
Sandi Davis, another Willis employee, sent Marmillion a letter dated three
days later explaining that the automobile and excess liability polices were in full
force and effect but that the beach house policy, the Metairie policy, and another
automobile policy had been cancelled. The letter further stated that the
cancelled policies would remain terminated and that Willis would make no
attempt to replace the policies without an express written request. Marmillion
did not contact Willis again until after the hurricane.
Even considering the evidence in the light most favorable to Marmillion,
there is no evidence that Marmillion ever asked a Willis employee to reinstate
or replace the beach house policy. When specifically asked by her attorney as to
whether she wanted Willis to reinstate the policy, Marmillion evaded answering
the question. There is no evidence that Sandra Bravo, or any other Willis
employee, ever agreed to reinstate or replace the policy. Further, there is no
evidence that Bravo knew that the policy needed to be reinstated or replaced
during her conversation with Marmillion, and thus could not have agreed to
reinstate or replace the policy. Although Marmillion testified that Bravo asked
her “what do I need to do to make sure you have coverage on today when we
hang up” and said she would take care of it, without any other evidence, these
statements do not indicate that Bravo agreed to have the policy reinstated or
replaced. There is insufficient evidence in the record for a reasonable jury to
conclude that Willis agreed to reinstate or replace the beach house policy.
Accordingly, we affirm the district court’s judgment as a matter of law on this
theory of negligence.2
2
Because judgment as a matter of law was properly granted on each of Marmillion’s
claims, we need not consider whether the district court erred in finding that Marmillion could
not recover her rebuilding costs.
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No. 08-61129
III.
As the prevailing parties, AIG, AIG Marketing, Inc., Willis North America
Inc., and Willis submitted bills of costs. Specifically, the AIG defendants sought
$30,468.92 in costs for transcripts, service of summons and subpoenas, and
copying. The Willis defendants sought $32,239.37 in costs for fees of the clerk,
transcripts, witnesses, and copying. Marmillion objected, and the district court
reduced the AIG defendants’ recoverable costs to $415.40 and the Willis
defendants’ award to $1,920.04. The defendants appeal those deductions.
Generally, a prevailing party should be allowed costs. F ED. R. C IV. P.
54(d)(1). The taxable costs include clerk fees; “[f]ees for printed or electronically
recorded transcripts necessarily obtained for use in the case; . . . [f]ees and
disbursements for printing and witnesses; . . . [and] [f]ees for exemplification and
the costs of making copies of any materials where the copies are necessarily
obtained for use in the case[.]” 28 U.S.C. § 1920; see Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437, 441 (1987).
The district court is allotted broad discretion in taxing costs and may order
each party to bear its own costs. Alberti v. Klevenhagen, 46 F.3d 1347, 1358 (5th
Cir. 1995); Hall v. State Farm Fire & Cas. Co., 937 F.2d 210, 216 (5th Cir. 1991).
There is, however, a strong presumption “that the prevailing party is prima facie
entitled to costs and it is incumbent on the losing party to overcome that
presumption since denial of costs is in the nature of a penalty.” Walters v.
Roadway Express, Inc., 557 F.2d 521, 526 (5th Cir. 1977) (citation and marks
omitted). We review a district court’s award of costs for an abuse of discretion
and will reverse only upon a clear showing of an abuse of that discretion. Migis
v. Pearle Vision, Inc., 135 F.3d 1041, 1049 (5th Cir. 1998). “A district court
abuses its discretion when its ruling is based on an erroneous view of the law or
a clearly erroneous assessment of the evidence.” Nunez v. Allstate Ins. Co., 604
F.3d 840, 844 (5th Cir. 2010) (citation omitted); Hinojosa v. Butler, 547 F.3d
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285, 292 (5th Cir. 2008) (citation omitted). Under the above standard, we review
the district court’s award of costs.
A.
The defendants complain that the district court abused its discretion by
failing to award costs for the eighteen depositions taken during discovery. Costs
related to the taking of depositions are allowed under § 1920(2) and (4) “if the
materials were necessarily obtained for use in the case.” Stearns Airport Equip.
Co., Inc. v. FMC Corp., 170 F.3d 518, 536 (5th Cir. 1999). “[A] deposition need
not be introduced into evidence at trial in order to be ‘necessarily obtained for
use in the case.’” Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991). A
deposition is necessarily obtained for use in the case “[i]f, at the time the
deposition was taken, a deposition could reasonably be expected to be used for
trial preparation, rather than merely for discovery.” Id. A district court’s
factual determination of whether a deposition was necessarily obtained for use
in the case is afforded great latitude. Id. at 285-86.
Before the district court, the AIG defendants argued that fourteen of the
eighteen depositions taken during discovery were necessarily obtained for use
in the case because Willis and Marmillion noticed the depositions and AIG
obtained copies of those deposition transcripts to evaluate Marmillion’s and
Willis’s trial strategies and to prepare its own defense. The AIG defendants
further argued that because Marmillion designated twelve of the depositions in
the pretrial order, the AIG defendants needed those deposition transcripts to
review Marmillion’s designated testimony for objections and counter-
designations. The AIG defendants specifically argued that Olie Jolstad’s
deposition was necessary to AIG’s case because AIG used it to support AIG’s
Daubert challenge and as a result, Marmillion stipulated that Jolstad would not
provide testimony against AIG at trial. Jolstad was Marmillion’s property
damage expert.
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No. 08-61129
Like the AIG defendants, the Willis defendants argued that twelve of the
video deposition transcripts were necessarily obtained for use in the case
because Marmillion designated each of the individuals as witnesses she would
call to testify by deposition. They also argued that they had a reasonable
expectation that four other deposition transcripts might be used at trial because
Marmillion and AIG identified those individuals as possible live witnesses at
trial. They concluded their argument by stating that they had a reasonable
expectation that the depositions of each of the witnesses listed in their bill of
costs would be used at trial as well as for trial preparation.
The district court denied the defendants all of their depositions costs
finding that the defendants failed to demonstrate that the transcripts and videos
of each of the eighteen depositions taken by the parties were reasonably
necessary at the time they were taken. The district court also noted that it was
unclear whether the depositions were taken for discovery purposes or trial
preparation. We have never required a prevailing party to demonstrate that a
particular deposition was reasonably necessary at the time it was taken for a
party to recover the costs of the deposition transcript. Again, the pertinent
question is whether the transcript was necessarily obtained for use in the case.
It appears undisputed that the majority of these depositions were taken at
Marmillion’s behest, were designated by Marmillion for use during trial, and
were actually used at trial or in support of the parties’ pretrial motions. The
defendants had a reasonable expectation that at least some of the transcripts
would be used for trial preparation. The district court’s denial of all deposition
costs was an abuse of discretion. We vacate the district court’s denial of costs
for printed and electronically recorded transcripts and remand for further
consideration under the appropriate standard.
15
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No. 08-61129
B.
The defendants also argue that the district court abused its discretion in
denying the costs for daily trial transcripts. The district court found that real
time reporting and daily transcripts were not necessary because 1) there were
other attorneys at trial who could have taken notes and 2) the trial was not so
complicated as to necessitate the use of real time reporting and daily transcripts.
The court specifically found that daily transcripts and real time reporting were
merely a convenience to the parties.
In Studiengesellschaft Kohle mbH v. Eastman Kodak Co., this court held
that “[t]o award the cost of daily transcripts, the court must find that they were
not obtained primarily for the convenience of the parties but were necessarily
obtained for use in this case.” 713 F.2d 128, 133 (5th Cir. 1983) (quotations and
citation omitted). “Necessity” is a factual finding. Id. To demonstrate that the
district court’s finding on the issue of necessity was clearly erroneous, the
defendants point to the following evidence: 1) Marmillion agreed to split the cost
of the daily transcripts; 2) the defendants used the transcripts to argue their
motions for directed verdict; and 3) the defendants submitted portions of the
transcripts to the district court to rebut Marmillion’s assertions that she had
created an issue of fact. Although the above evidence would support a finding
by the district court that the transcripts were necessarily obtained for use in this
case, the evidence does not compel such a finding. Further, the cited evidence
does not dispel the district court’s finding that the transcripts were obtained
primarily for the convenience of the parties. We affirm the district court’s denial
of daily transcript costs.
C.
The defendants also appeal the district court’s partial denial of copying
costs. Before the district court, the AIG defendants sought $1,014.42 for copies
of documents that were obtained for use in the case. Finding that the AIG
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No. 08-61129
defendants did not provide any explanation concerning $599.02 worth of copies,
other than noting that they were “photocopies for trial,” the district court limited
the AIG defendants’ award of copying costs to $415.40.
On appeal, the AIG defendants argue that the facts clearly show that the
AIG defendants provided a thorough explanation of their copying expenses. In
response to Marmillion’s objections, the AIG defendants, in an attachment, listed
the number of pages copied, the cost of each copy, and the purpose of each copy.
For instance, on November 3, 2008, the AIG defendants spent $6.80 to copy 68
pages to make a copy of the AIG trial exhibits for the court and a copy to be used
by AIG at trial. It seems reasonably clear that the district court did not consider
the exhibit submitted by AIG detailing the copying costs. Accordingly, we vacate
the partial denial of copying costs and instruct the district court to consider the
AIG defendants’ exhibit detailing their copying costs when assessing whether
the costs were necessarily obtained for use in the case.
The Willis defendants also complain of the partial denial of their copying
costs. The district court granted the Willis defendants $485.10 of the $1,776.50
they requested. As to the denied costs, the district court found
[t]he other copying costs claimed by Willis appear to concern the
copying of videos (presumably video depositions), the scanning of
documents produced in discovery, the copying of every pleading filed
in the case, and the placement of barcodes on exhibits so that
certain technology could be used in order to publish exhibits to the
jury. The Court finds that these remaining “copying” expenses are
not recoverable, since Willis has not demonstrated that these
expenses were necessary for trial preparation rather than the
convenience of its attorneys.
To support their position that the district court abused its discretion by not
allowing the Willis defendants to recover the full amount of their copying costs,
the Willis defendants merely state that they “made electronic copies of all
exhibits and video depositions for use at trial and used numerous electronic
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No. 08-61129
copies of exhibits at trial to question witnesses and publish those exhibits to the
jury at the same time” and the use of the electronic copies was not merely for the
convenience of counsel. The Willis defendants’ argument is insufficient to
establish that the district court abused its discretion. Accordingly, we affirm the
district court’s partial denial of Willis’s copying costs.
D.
The AIG defendants also sought $158.18 in subpoena costs they incurred
for service of a deposition subpoena on a witness. The district court found that
the AIG defendants had not demonstrated that the subpoena costs were
recoverable as a necessary expense in trial preparation.
The AIG defendants cite a Fifth Circuit opinion for the proposition that
private service of process fees are recoverable under Section 1920. Gaddis v.
United States, 381 F.3d 444, 456 (5th Cir. 2004). In Gaddis, this court noted
that the Ninth Circuit had interpreted “[f]ees of the clerk and marshal” in
Section 1920 to include the fees of private process servers to support this court’s
holding that the court may interpret the meaning of Section 1920. Id. This
court did not, however, adopt the Ninth Circuit’s interpretation. Id.
In Cypress-Fairbanks Independent School District v. Michael, this court
held that absent exceptional circumstances, the costs of a private process server
are not recoverable under Section 1920. 118 F.3d 245, 257 (5th Cir. 1997).
Because the AIG defendants did not argue and have not demonstrated that
exceptional circumstances exist to warrant such an award, we affirm the district
court’s denial of the private process server fees.
IV.
For these reasons, we affirm the district court’s judgment as matter of law
against Marmillion. We, however, vacate the district court’s awards of costs and
remand for further consideration consistent with this opinion.
18
| {
"pile_set_name": "FreeLaw"
} |
199 F.3d 1111 (9th Cir. 2000)
Charles Wetzel, Plaintiff-Appellant,v.Lou Ehlers Cadillac Group Long Term Disability Insurance Program; Reliance Standard Life Insurance Company, Defendants-Appellees.
No. 97-56437
United States Court of Appeals, Ninth Circuit
January 13, 2000
Before: Hug, Jr., Chief Judge.
ORDER
1
Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-3179
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jose Malagon-Soto
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Springfield
____________
Submitted: April 18, 2014
Filed: August 22, 2014
____________
Before RILEY, Chief Judge, BENTON and KELLY, Circuit Judges.
____________
KELLY, Circuit Judge.
Jose Malagon-Soto pled guilty to illegal reentry by a previously removed alien,
under 8 U.S.C. § 1326(a) and (b)(1). At sentencing, the district court determined that
Malagon-Soto qualified for a 16-level enhancement in his offense level pursuant to
United States Sentencing Guidelines Manual (USSG) § 2L1.2(b)(1)(A)(ii), due to a
prior conviction for second degree manslaughter in Kentucky. After applying the
enhancement, the district court1 calculated a guideline range of 41–51 months and
sentenced him to 36 months in prison. Malagon-Soto appeals his sentence and, more
specifically, the application of § 2L1.2(b)(1)(A)(ii) in determining his guidelines
range. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
On August 24, 1999, Malagon-Soto was convicted of second degree
manslaughter in Kentucky, after killing another driver in a head-on collision while
driving under the influence of alcohol. After serving his sentence, Malagon-Soto was
deported to Mexico in April 2008. In January 2013, Malagon-Soto pled guilty to
illegally reentering the United States. At sentencing, Malagon-Soto objected to the
sentencing guideline calculation in his Presentence Investigation Report (PSR), which
included a 16-level enhancement pursuant to USSG § 2L1.2(b)(1)(A)(ii), due to his
1999 conviction for manslaughter. The district court overruled his objection, applied
the enhancement, and determined his sentencing range to be 41–51 months. The
district court then granted a downward variance, sentencing Malagon-Soto to 36
months in prison. Malagon-Soto appeals the applicability of the enhancement.
II. Discussion
Malagon-Soto argues that the district court erred in applying the 16-level
enhancement because his 1999 manslaughter conviction does not qualify as a “crime
of violence” under the sentencing guidelines. “Improperly calculating a guideline
range is a significant procedural error.” United States v. Godsey, 690 F.3d 906, 909
(8th Cir. 2012) (citation omitted). “We review the district court’s construction and
1
The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.
-2-
application of the guidelines de novo and its factual findings for clear error.” Id.
(quotation omitted).
Sentencing Guideline § 2L1.2(b)(1)(A)(ii) allows for a 16-level enhancement
if the defendant has a prior conviction for a crime of violence. The guidelines define
“crime of violence” as:
[A]ny of the following offenses under federal, state, or local law:
Murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses (including where consent to the conduct is not given or is not
legally valid, such as where consent to the conduct is involuntary,
incompetent, or coerced), statutory rape, sexual abuse of a minor,
robbery, arson, extortion, extortionate extension of credit, burglary of a
dwelling, or any other offense under federal, state, or local law that has
as an element the use, attempted use, or threatened use of physical force
against the person of another.
USSG § 2L1.2 cmt. n.1(B)(iii). Thus, there are two categories of crimes of violence
under this provision: (1) the enumerated offenses, and (2) those meeting the catchall
provision for “any other offense under federal, state, or local law that has as an
element the use, attempted use, or threatened use of physical force against the person
of another.” Id.
“This court employs a categorical approach to determine whether a prior
offense qualifies as [an enumerated offense] under the guidelines.” United States v.
Medina-Valencia, 538 F.3d 831, 833 (8th Cir. 2008); see also Shepard v. United
States, 544 U.S. 13 (2005); Taylor v. United States, 495 U.S. 575 (1990). We look
“to the ‘statutory definition of the prior offense,’ not the underlying facts of the crime,
to determine whether the statute proscribes the generic elements of [the offense].”
Medina-Valencia, 538 F.3d at 833 (quoting Taylor, 544 U.S. at 602). In applying the
categorical approach, we have not yet had occasion to determine the elements of the
generic federal offense of manslaughter; however, we have said that the generic
-3-
federal offense of manslaughter requires at least a mens rea of recklessness. United
States v. Roblero-Ramirez, 716 F.3d 1122, 1126–27 (8th Cir. 2013).
On appeal, Malagon-Soto does not dispute that he committed an enumerated
crime—manslaughter. He also does not attempt to discuss the categorical approach
or argue the elements of his manslaughter conviction fail to meet the elements of the
generic federal offense of manslaughter. He did not raise such arguments in the
district court either. In fact, Malagon-Soto concedes in his brief on appeal “that
manslaughter is a ‘listed’ prior conviction and would seem to require a mechanical
application of” USSG § 2L1.2 cmt. n.1(B)(ii). Instead, Malagon-Soto argues that
even the enumerated offenses in § 2L1.2 must include a “use of force” element, an
element that necessarily requires the intent to use force against another person. Thus,
he asserts, the 16-level enhancement does not apply because his 1999 manslaughter
conviction did not include as an element the “use of force.”
To support his argument, Malagon-Soto points to Leocal v. Aschcroft, 543 U.S.
1 (2004), and United States v. Torres-Villalobos, 487 F.3d 607 (8th Cir. 2007), which
interpreted the phrase “crime of violence” as defined in 18 U.S.C. § 16. In Leocal,
the Court determined that a “crime of violence,” under § 16,2 required “the use of
physical force against the person or property of another (or the risk of having to use
such force in committing a crime) . . . .” Leocal, 543 U.S. at 11. The intent necessary
to use force against another (e.g., the act of pushing) is distinguishable from the mere
application of force (e.g., stumbling or falling into another), and thus the use of force
required for a crime of violence, under § 16, includes some level of intent to use
force against another that is greater than mere negligence and more specific than “the
possibility that harm will result from a person’s conduct . . . .” Id. 543 U.S. at 10.
2
Leocal was specifically interpreting the meaning of an “aggravated felony” in
8 U.S.C. § 1101(a)(43), which includes “a crime of violence . . . as defined in section
16 of Title 18 . . . .” See Leocal, 543 U.S. at 5.
-4-
In Torres-Villalobos, we considered whether the crime of second degree
manslaughter, as defined in Minnesota, fit the § 16 definition of use of force as
interpreted by Leocal. In doing so, we found a difference between the intent required
to constitute a use of force and the intent required for the underlying crime. We held
that “second-degree manslaughter [does not] involve a risk that the perpetrator will
intentionally use physical force in the course of committing the offense.”
Torres-Villalobos, 487 F.3d at 616–17. “A perpetrator’s knowing disregard of a
serious risk of injury, as required by the Minnesota manslaughter statute, is different
from a robber or burglar ignoring the risk that he may resort to the intentional use of
force in committing the offense.” Id. at 617. Thus, we distinguished between the
intent required to commit the crime of manslaughter—recklessness—and the more
specific intent required for that crime to involve a “use of force.”
Malagon-Soto argues that it would be inconsistent to hold that a crime of
violence as defined in 18 U.S.C. § 16 requires a “use of force” while holding that a
crime of violence under USSG § 2L1.2(b)(1)(A)(ii) does not. He suggests the
meaning of a crime of violence should be consistent across these applications and that
the “tenor of . . . § 2L1.2(b)(1)(A)[(ii)] is that a ‘crime of violence’ is an offense that
involves the active or attempted intentional use or employment of physical force in
the accomplishment of the offense (the same standard that forms the basis of Leocal
and Torres-Villalobos).” Thus, Malagon-Soto argues that to harmonize the
definitions and the caselaw, we should read into the enumerated crimes in
§ 2L1.2(b)(1)(A)(ii) a requirement of use of force with its attendant (and more
specific) mens rea.
This argument is foreclosed by our precedent. In United States v. Paz, 622
F.3d 890 (8th Cir. 2010), this court addressed whether a use of force was required for
the enumerated offenses in § 2L1.2(b)(1)(A)(ii). We specifically held that:
“[E]numerated offenses are always classified as ‘crimes of violence,’ regardless of
whether the prior offense expressly has an element the use, attempted use, or
-5-
threatened use of physical force against the person of another.” Paz, 622 F.3d at 892
(citing USSG app. C, amendment 658 (2003)). “Because enumerated offenses are
crimes of violence regardless of whether force was used, the catch-all definition of
a ‘crime of violence’ in the commentary to U.S.S.G. § 2L1.2 is irrelevant.” Id. Thus,
even if we might agree in principle that the definition of “crime of violence” in 18
U.S.C. § 16, as interpreted in Leocal to require a use of force, is inconsistent with
another definition of a “crime of violence” in § 2L1.2, any such inconsistency is not
a problem of interpretation but rather one of drafting. Consequently, the district court
did not err in applying the 16-level enhancement.
III. Conclusion
For the reasons stated above, the district court is affirmed.
______________________________
-6-
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NO. 5-06-0140
N O T IC E
Decision filed 04/09/07. The text of
IN THE
this dec ision m ay b e changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
P e t i ti o n for Re hea ring or the
disposition of the same.
FIFTH DISTRICT
_________________________________________________________________________
THOM AS COY, D.O., ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Washington County.
)
v. ) No. 05-L-2
)
WASHINGTON COUNTY HOSPITAL )
DISTRICT, d/b/a Washington County )
Hospital, )
)
Defendant-Appellee )
)
(The Southern Illinoisan, Intervening ) Honorable
Petitioner-Appellant, and Nashville News, ) Richard Brown,
Intervening Petitioner). ) Judge, presiding.
_________________________________________________________________________
PRESIDING JUSTICE WELCH delivered the opinion of the court:
Intervenor-appellant The Southern Illinoisan, a daily newspaper headquartered in
Carbondale with readership across a broad swath of southern Illinois, appeals the February
21, 2006, order of the circuit court of Washington County denying The Southern Illinoisan's
request that the court unseal, with respect to the names of patients contained therein, the
court's order of February 18, 2005, in the above-captioned case. For the reasons that follow,
we affirm the circuit court's February 21, 2006, order.
On June 28, 2004, defendant-appellee Washington County Hospital District, a
publicly owned hospital, suspended the medical privileges of plaintiff-appellee Dr. Thomas
Coy, who was at the time a hospital employee. The hospital cited "several" recent cases of
substandard medical care and stated that a suspension was necessary to reduce the likelihood
of immediate injury to patients. On January 21, 2005, Dr. Coy sued the hospital. Dr. Coy
1
alleged procedural deficiencies in his suspension, sought the enforcement of a related
settlement agreement, and requested various other forms of relief not directly relevant to this
appeal. Journalists for the Nashville News, a weekly newspaper in Washington County, and
The Southern Illinoisan reported on matters concerning the hospital and Dr. Coy.
On February 18, 2005, presumably pursuant to settlement negotiations, counsel for
Dr. Coy forwarded to the hospital an agreed order, which counsel requested that the hospital
submit to the court. On the same date, the hospital delivered to the court a letter requesting
that the court file the accompanying agreed order under seal. For reasons that neither Dr.
Coy nor the hospital has been able to explain adequately, the agreed order contained, inter
alia, the names of the seven nonparty patients to whom Dr. Coy had allegedly provided
substandard care. The order did not contain any other information about the patients and did
not reference the patients' medical records, conditions, or diagnoses. The court complied
with the hospital's request, entering, under seal, the February 18, 2005, order that is the
subject of the present appeal.
Subsequently, reporters from the Nashville News and The Southern Illinoisan who
had been covering the case visited the office of the Washington County circuit clerk and
inspected the court file in the case, finding, inter alia, the sealed order. In an effort to seek
access to the sealed order, the Nashville News and The Southern Illinoisan filed a petition
to intervene in the lawsuit. A hearing on the petition was held on June 21, 2005. The
petition to intervene was granted on July 22, 2005, and on August 11, 2005, the intervenors
filed a motion for access to the sealed order. The hospital filed a response to the motion for
access, to which the intervenors in turn replied. On August 15, 2005, Dr. Coy moved to
amend the sealed order to prohibit the disclosure of the nonparty patient names contained
therein but to unseal the remainder of the settlement agreement.
Eventually, on October 4, 2005, the circuit court granted Dr. Coy's motion to amend
2
the sealed order, thereby unsealing the order but for the names of the seven nonparty patients.
The intervenors moved the court to vacate or, alternatively, to reconsider its decision, and
oral argument was held. On February 21, 2006, the court entered an order denying the
request of the intervenors to unseal the order with regard to the names of the patients. In
support of its decision to deny the request to unseal, the trial court relied upon Tomczak v.
Ingalls Memorial Hospital, 359 Ill. App. 3d 448 (2005). The trial court ruled that granting
the request to unseal would violate the federal Health Insurance Portability and
Accountability Act of 1996 (hereinafter HIPAA) (42 U.S.C. §1320d-2 (2000)) and that the
court was required to "comply with the HIPAA regulations when issuing orders."
Accordingly, the trial court ruled that the "the names of the patients are protected from
discovery" and that the court was required to deny the request to unseal the names. We note
that, while the circuit court based its decision partially on its belief that HIPAA required that
the order remained sealed with respect to the patients' names, it also exercised its discretion
in finding that "there is good reason to seal the names of the patients." The Southern
Illinoisan filed a timely notice of appeal and now contends the trial court erred in denying
the request to unseal.
We begin our analysis by observing that under the common law, judicial records and
documents are presumptively open to the public. Skolnick v. Altheimer & Gray, 191 Ill. 2d
214, 230 (2000). The common law right of access to court records has been deemed by the
Illinois Supreme Court to be "essential to the proper functioning of a democracy" because
"citizens rely on information about our judicial system in order to form an educated and
knowledgeable opinion of its functioning." Skolnick, 191 Ill. 2d at 230. Moreover, the
availability of court files for public scrutiny is essential to the public's right to monitor the
functioning of the court system to ensure quality, honesty, and respect for our legal system.
Skolnick, 191 Ill. 2d at 230.
3
The presumptive right of public access to judicial records attaches to court orders and
opinions. A.P. v. M.E.E., 354 Ill. App. 3d 989, 997 (2004). Orders of a court are public
documents and should not be kept under seal. A.P., 354 Ill. App. 3d at 997. Orders and
opinions are not the property of litigants; rather, they belong to the public, which underwrites
the judicial system that produces them. A.P., 354 Ill. App. 3d at 997. When a settlement
agreement is filed with a court, the presumptive right of public access to judicial records
attaches to that agreement. In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1074 (1992).
The way to avoid the attachment of the presumption with regard to a settlement agreement
is simple: the parties to a case "are free to make whatever contractual arrangements they wish
as part of their settlement agreement and keep it to themselves by simply not making it part
of the court record." (Emphasis in original.) In re Marriage of Johnson, 232 Ill. App. 3d at
1076 (Steigmann, J., specially concurring).
That said, the presumption of public access to court records and documents, although
very strong, is not absolute. To overcome the presumption of access, the moving party bears
the burden of establishing both that there is a compelling interest for restricting access and
that the resulting restriction furthering that interest is tailored as narrowly as possible.
Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 231-32 (2000). An order denying a motion
to unseal a court file or document is reviewed for an abuse of discretion. A.P. v. M.E.E., 354
Ill. App. 3d 989, 994 (2004).
Against the above backdrop, we turn to the present case. With regard to the ruling of
the trial court in this case, we agree with The Southern Illinoisan that the trial court erred as
a matter of law in concluding that the court would violate HIPAA by unsealing its order. We
begin by noting that Tomczak v. Ingalls Memorial Hospital, 359 Ill. App. 3d 448 (2005), the
case upon which the trial court relied, did not involve the disclosure of names. That issue
was not before the Tomczak court, and only two or three sentences of the court's nine-page
4
opinion discuss the issue of the identity of the nonparty patients involved. Accordingly, the
applicability of Tomczak to the present case is questionable at best. More importantly,
although the judge in the present case wrote that based upon Tomczak he was persuaded that
circuit court orders "must comply with HIPAA regulations," the Tomczak court never reached
that question. To the contrary, the Tomczak court found HIPAA to be inapplicable because
in that case the information sought–triage time, treatment time, and triage acuity designation
for certain nonparty patients–was not " 'protected health information' " as defined by
regulations promulgated pursuant to HIPAA. Tomczak, 359 Ill. App. 3d at 456 (quoting 45
C.F.R. §164.512(e)(1) (2002)). The court did not address whether it was a "covered entity"
for HIPAA purposes. Put simply, Tomczak is inapposite to the present case and does not
stand for the proposition that circuit court orders must comply with HIPAA.
Nor is a court a "covered entity" for HIPAA purposes. The applicability section of
HIPAA provides, in pertinent part, that any standard adopted thereunder applies only to
health plans, health care clearinghouses, and health care providers which transmit "any health
information in electronic form in connection with a transaction" referred to elsewhere in
HIPAA. 42 U.S.C. §1320d-1(a)(3) (2000). The application of HIPAA's privacy rule is
likewise limited to health plans, health care clearinghouses, and qualified health care
providers, each of which is defined as a "covered entity." 45 C.F.R. §§160.102(a), 160.103
(2002). Accordingly, the plain language of HIPAA demonstrates that the judiciary, which
is not a health plan, a health care clearinghouse, or a qualified health care provider, is not
subject to HIPAA's privacy rule. Courts and administrative agencies in a number of
jurisdictions have agreed that only the small class of "covered entities" defined in HIPAA
is subject to HIPAA's privacy rule. See, e.g., United States v. Mathis, 377 F. Supp. 2d 640,
645 (M.D. Tenn. 2005); Beard v. City of Chicago, No. 03 C 3527 (unpublished memorandum
opinion and order) (N.D. Ill. Jan. 10, 2005); 2004 Tex. Att'y Gen. Ord. 681, available at
5
http://www.oag.state.tx.us/opinions/ord/ord-681.pdf; 2004 Ky. Att'y Gen. Ord. 143, available
at http://w ww .ag.ky.gov /NR /rdon lyr e s/ EB A D 7 EC 8 -8 1 18 -4 F E8 -A 4 A 5-
5BD85DAD6B6F/0/04ORD143.doc. Moreover, in comments published in the Federal
Register, the Assistant Secretary for Planning and Evaluation of the Department of Health
and Human Services stated that there are no known situations "in which a covered entity
would also be a judicial or administrative tribunal" and that the privacy rule "does not
regulate the behavior of law enforcement officials or the courts." Standards for Privacy of
Individually Identifiable Health Information, 65 Fed. Reg. 82462, 82524, 82680 (Dec. 28,
2000). In fact, there is a good reason a court is not a covered entity–because given its nature
as a vehicle for the settlement of disputes, rather than as an entity that generates, stores,
transmits, or analyzes medical data, a court could not be in possession of covered medical
information to disclose unless that information had been provided, for whatever reason, by
parties that already had access to that information. Because a court is not a covered entity
for HIPAA purposes and HIPAA does not prevent the unsealing of the court order in this
case, the trial court erred as a matter of law in ruling that it did.
Nevertheless, we may affirm the decision of the circuit court on any basis appearing
in the record (Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 387 (1983)),
and we do so here. We believe that the parties who seek to keep the order sealed–the hospital
and Dr. Coy–have overcome the strong presumption in favor of public access to court
documents, records, and orders by establishing both that there is a compelling interest why
access should be restricted and that the resulting restriction furthering that interest is tailored
as narrowly as possible. See Skolnick, 191 Ill. 2d at 231-32.
In the case at bar, the circuit court found a compelling interest why public access to
the names of the nonparty patients should be restricted, in the form of a broad public policy
in favor of a medical patient's right to privacy. In balancing this compelling interest against
6
the public's right of access, the circuit court came down on the side of protecting a patient's
privacy. The circuit court narrowly tailored its restriction on the right of public access by
omitting from the agreed order only the names of the seven nonparty patients and allowing
public access to the rest of the document. We should alter the terms of a protective order
only if no reasonable person could adopt the view taken by the circuit court. Skolnick, 191
Ill. 2d at 224. The view taken by the circuit court is reasonable and we will not disturb it.
Illinois has a strong and broad public policy in favor of protecting the privacy rights
of individuals with respect to their medical information. This public policy is articulated and
reflected in numerous Illinois statutes. See Petrillo v. Syntex Laboratories, Inc., 148 Ill. App.
3d 581, 587 (1986) (public policy is found in a state's constitution and statutes). Illinois law
recognizes an individual's right to privacy and confidentiality in health care and medical
records in the Medical Patient Rights Act (410 ILCS 50/3(d) (West 2004)) and the Hospital
Licensing Act (210 ILCS 85/6.17(d) (West 2004)), an evidentiary privilege regarding
communications between physician and patient (735 ILCS 5/8-802 (West 2004)), and an
exemption to a Freedom of Information Act request where the request seeks patient records
(5 ILCS 140/7 (West 2004)). While none of these statutes applies directly to the case at bar,
an act can be against public policy even though it is not specifically prohibited by a state's
statutes, for a finding of public policy can often be inferred from those statutes. Petrillo, 148
Ill. App. 3d at 587. Public policy should forbid conduct that tends to harm an established and
beneficial interest of society, the existence of which is necessary for the good of the public,
even though that conduct is not expressly prohibited by a state's statute. Petrillo, 148 Ill.
App. 3d at 587.
The importance of a patient's right to privacy in his or her medical information has
also been recognized in numerous judicial opinions. See Parkson v. Central DuPage
Hospital, 105 Ill. App. 3d 850, 853-54 (1982) (a hospital is mandated to assert the physician-
7
patient privilege to ensure that the patients' records will be protected in accordance with the
intention of the statute); Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 588
(1986) (an ex parte conference between defense counsel and a plaintiff's treating physician
jeopardizes the sanctity of the physician-patient relationship and, therefore, is prohibited as
being against public policy); Reagan v. Searcy, 323 Ill. App. 3d 393, 398 (2001) (the medical
records of nonparties are protected by the physician-patient privilege).
Individuals have a right to and an expectation of privacy related to their medical
information, and this right and expectation of privacy is reflected in our public policy. This
right to privacy is a compelling interest that must be balanced against the public's right of
access to judicial records and documents. In re Marriage of Johnson, 232 Ill. App. 3d 1068,
1072 (1992). The circuit court properly balanced these two competing interests and, by
narrowly tailoring its restriction on public access by omitting only the names of the nonparty
patients, served both interests.
While it is true that the parties could have avoided the attachment of the presumption
in favor of public access with regard to the settlement agreement by simply not making it a
part of the court record or they could have omitted the names of the seven nonparty patients
therefrom, the seven nonparty patients should not be penalized for the mistakes of the parties.
The seven nonparty patients are not parties to this litigation and have not in any way
consented to the disclosure of the fact that they sought medical treatment from Dr. Coy or
that their information was used in a peer review of Dr. Coy by the hospital. They had no say
in the settlement agreement and no opportunity to protect their identities from disclosure.
The parties to this litigation did attempt to protect the identities of the patients by asking that
the settlement agreement be sealed. The circuit court obliged. That the parties could have
done a better job of protecting the privacy interests of the nonparty patients does not abrogate
those privacy interests. The circuit court acted to protect those privacy interests by narrowly
8
restricting the public's access to the names contained in the settlement agreement. It did not
abuse its discretion in so doing. We uphold the circuit court's order restricting access to the
names of the seven nonparty patients. We do so not to protect the interests of the hospital
or Dr. Coy, but to protect the interests of those unrepresented patients, who may even be
unaware of the controversy surrounding them.
While it may be argued that there is no expectation of privacy with respect only to the
name of a patient, we do not agree. Whether or not that information is technically privileged
under the statute (735 ILCS 5/8-802 (West 2004); see House v. SwedishAmerican Hospital,
206 Ill. App. 3d 437, 439 (1990)), a patient may still have an expectation that the fact that
he or she visited with or was treated by a physician will remain private. For example, if the
physician is an abortionist, an oncologist, an HIV/AIDS specialist, or a mental health
professional, to name only a few, an individual may want to keep private the fact that he or
she visited with or was treated by that physician. In such a case, revealing the name of a
patient may also reveal sensitive medical information about that patient.
Finally, we do not see how the revealing of the names of the seven nonparty patients
will advance the public good or further the rationale behind allowing public access to judicial
records. The rest of the settlement agreement has been unsealed by the circuit court and is
open to public access. Protecting the identities of the nonparty patients will not impair the
public's ability to " 'monitor the functioning of our courts, thereby insuring quality, honesty[,]
and respect for our legal system.' " Skolnick, 191 Ill. 2d at 230 (quoting In re Continental
Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984)). Accordingly, the circuit
court properly determined that the public's right of access to the identities of the nonparty
patients did not outweigh the compelling interest, as reflected in our public policy, of the
privacy rights of those individuals regarding their medical treatment by Dr. Coy. The circuit
court tailored its restriction on public access as narrowly as possible. We therefore affirm
9
the decision of the circuit court.
Affirmed.
WEXSTTEN 1 , J., concurs.
JUSTICE SPOMER, dissenting:
I respectfully dissent. I agree with my colleagues that a court is not a covered entity
for HIPAA purposes, that HIPAA does not prevent the unsealing of the court order in this
case, and that the trial court erred as a matter of law in ruling that it did. I cannot agree,
however, that in addition to its reliance on HIPAA, the circuit court "exercised its discretion
in finding that 'there is good reason to seal the names of the patients' " (slip op. at 3) or that
the court "found a compelling interest why public access to the names of the nonparty
patients should be restricted, in the form of a broad public policy in favor of a medical
patient's right to privacy" (slip op. at 6). The quotation lifted by the majority from the circuit
court's order–"there is good reason to seal the names of the patients"–is followed in the order
only by a discussion of HIPAA. In fact, the order never mentions public policy or any reason
other than HIPAA to keep the order sealed. Likewise, during the November 18, 2005,
hearing that preceded the court's order, Judge Brown engaged the parties in an extensive
discussion of HIPAA and its applicability to the case at bar, and he even pronounced from
the bench, in language mirrored almost precisely in the written order, that he found "that
there is a good reason to seal the names of these patients to comply with these–with these
HIPA [sic] rules." It is clear from the record that the court's order was based entirely upon
1
Justice Hopkins participated in oral argument. Justice Wexstten was later substituted
on this panel and has read the briefs and listened to the audiotape of oral argument.
10
the court's misapprehension of the applicability of HIPAA and was in no part based upon
public policy. Accordingly, I cannot agree with the majority that the circuit court based its
decision only "partially" (slip op. at 3) on HIPAA, nor can I subscribe to the fiction that in
affirming on the basis of public policy, this court is reviewing an exercise of the circuit
court's discretion.
Furthermore, even if the circuit court had advanced public policy as an alternative
ground for keeping the names of the patients under seal, I would still not agree that the circuit
court did not abuse its discretion in so doing, because I do not believe that the parties who
seek to keep the order sealed–the hospital and Dr. Coy–have overcome the strong
presumption in favor of public access to court documents, records, and orders by establishing
both that there is a compelling interest why access should be restricted and that the resulting
restriction furthering that interest is tailored as narrowly as possible. See Skolnick v.
Altheimer & Gray, 191 Ill. 2d 214, 231-32 (2000).
As explained in the majority disposition and elaborated upon below, the posture of
this case is essentially as follows. Presumably pursuant to settlement negotiations, the
hospital and Dr. Coy worked out a resolution of their dispute. Counsel for Dr. Coy
apparently memorialized that resolution in a settlement agreement that included within it the
names of the seven nonparty patients to whom Dr. Coy had allegedly provided substandard
care but did not reference the patients' medical records, conditions, or diagnoses. Counsel
for Dr. Coy and counsel for the hospital, for reasons unknown, chose to file with the court
the settlement agreement itself, rather than a pleading seeking a dismissal and referencing
the settlement agreement, and they requested that the agreement be filed under seal. Without
a hearing, the court complied. During the June 21, 2005, hearing on the petition to intervene
filed by the Nashville News and The Southern Illinoisan, counsel for the petitioners
repeatedly questioned why the order needed to be sealed and repeatedly wondered why
11
sensitive information would be included in the agreed order, rather than in separate
docum ents referenced by the order but not filed with the court. Neither counsel for the
plaintiff nor counsel for the hospital provided an explanation for the inclusion of the so-
called sensitive information (i.e., the names of the patients) they sought to protect. Likewise,
when, on August 15, 2005, Dr. Coy moved to amend the sealed order to prohibit the
disclosure of the nonparty patient names contained therein but to unseal the remainder of the
agreement, Dr. Coy still did not indicate why nonparty patient names had been included in
the order in the first place. Accordingly, despite multiple opportunities throughout this case
to do so, neither the hospital nor Dr. Coy has been able to explain adequately why the
agreement itself, containing the names of Dr. Coy's alleged victims, needed to be filed with
the court. At oral argument before this court, counsel for the hospital conceded that it was
not necessary to include the names in the agreed order, indicated that had it been his decision
to make, the names would not have been included, and suggested that it was his
understanding that the names were included to aid "enforcement of the order." He did not
explain how including the names in the actual order, rather than in a document referenced
by the order, would advance that enforcement, if enforcement were to become necessary.
Accordingly, once the circuit court's errant HIPAA analysis is discarded, the pivotal
question for this court becomes whether the intentional, unexplained, and unnecessary
inclusion in a court filing of the names of–but not any medical information about–seven
nonparty patients establishes a "compelling interest" sufficient to overcome the strong
presumption in favor of open public access to court files and therefore to justify sealing that
filing from public view.
My colleagues believe that such a compelling interest exists because "Illinois has a
strong and broad public policy in favor of protecting the privacy rights of individuals with
respect to their medical information" (slip op. at 7), and they cite a number of statutes and
12
cases supporting that position. I agree that, with respect to "medical information," as a
general rule such a public policy exists and is supported by the statutes and cases cited. The
problem for the majority is that in this case no "medical information" is involved: only the
names of the patients–not their medical records, their conditions, or their diagnoses.
The majority holds that although the mere name of a patient is not protected by the
physician-patient privilege codified at section 8-802 of the Code of Civil Procedure (735
ILCS 5/8-802 (West 2004)), "a patient may still have an expectation that the fact that he or
she visited with or was treated by a physician will remain private." Slip op. at 9. As a result
of this expectation, according to the majority, the mere name of a patient becomes "medical
information" subject to protection. I find the expectation of privacy pronounced by the
majority to be a highly speculative one, unsupported by existing public policy, case law, or
even the facts of this case. Indeed, the majority cites no cases wherein this purported
expectation has even been found to exist, let alone found to convert the mere name of a
patient into "medical information" representing a "compelling interest" that outweighs the
strong presumption in favor of open public access to court files that is the law in Illinois.
Furthermore, to buttress its proposition that this judicially crafted expectation of privacy is
sufficient to trump our presumptively open court system–and that accordingly the names of
the nonparty patients in this case should remain sealed–the majority cites the example of
patients who have visited abortionists, oncologists, HIV/AIDS specialists, or mental health
professionals. These examples are in no way relevant to the case at bar, which involves the
treatment of patients at a publicly owned county hospital that treats a wide variety of patients
suffering from a wide variety of ailments, major and minor.
In fact, long-standing precedent in this state holds, very clearly, that the disclosure of
a patient's name does not violate the physician-patient privilege. See, e.g., House v.
SwedishAmerican Hospital, 206 Ill. App. 3d 437, 445 (1990); Davis v. Hinde, 141 Ill. App.
13
3d 664, 666 (1986); Geisberger v. Willuhn, 72 Ill. App. 3d 435, 438 (1979). That is because
the name of a patient generally has no relation to the ailment or treatment received and
therefore is not privileged information. House, 206 Ill. App. 3d at 445; Geisberger, 72 Ill.
App. 3d at 437. That is certainly true in the case at bar, where the order contains only the
names of patients treated at a publicly owned county hospital and does not reference the
patients' medical records, conditions, or diagnoses or provide any other information that
could lead one to ascertain those conditions or diagnoses.
Accordingly, I do not believe the expectation of privacy created by the majority
establishes a "compelling interest" sufficient to overcome our state's strong presumption in
favor of open public access to court files. As the statutes cited by the majority demonstrate,
the General Assembly has had ample opportunity to shape the law of this state to reflect the
state's public policy with regard to medical information. To date, the General Assembly has
not even recognized the expectation of privacy crafted by the majority, let alone elevated it
to a status sufficient to overcome the presumption of open public access to court files, and
I believe it is unwise and improper for this court to take it upon itself to do so.
It is not only possible, but indeed common practice, to protect the names of nonparties
in cases such as this without sacrificing the openness of our judicial system. As Justice
Steigmann observed more than a decade ago in his special concurrence in In re Marriage of
Johnson, 232 Ill. App. 3d 1068, 1076 (1992), the way to avoid this situation with regard to
a settlement agreement is simple: the parties to a case "are free to make whatever contractual
arrangements they wish as part of their settlement agreement and keep it to themselves by
simply not making it part of the court record" (emphasis in original). As explained above,
should the parties fail to do so, I do not believe it is proper for this court to rectify that failure
by sealing otherwise public records, particularly where other remedies are available to
nonparties aggrieved by that failure. As the majority in In re Marriage of Johnson held,
14
"[T]he parties' desire and agreement that the court records were to be sealed falls far short
of outweighing the public's right of access to the files." In re Marriage of Johnson, 232 Ill.
App. 3d at 1075. That is because courts cannot honor the request of parties to seal records
simply because the parties desire to do so "without seriously undermining the tradition of an
open judicial system." In re Marriage of Johnson, 232 Ill. App. 3d at 1075. Likewise, the
mere fact that a person "may suffer embarrassment or damage to his reputation" as a result
of information contained within a document filed with the court "does not justify sealing the
court file." Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 234 (2000).
Although not addressed by the majority, the hospital and Dr. Coy advance in their
brief on appeal alternative grounds to affirm the errant decision of the circuit court. The
hospital and Dr. Coy do not directly analogize any of the statutes they cite, or even their
broad public policy arguments, to the actual facts of this case, which, as detailed above,
involve the intentional, unexplained, and unnecessary inclusion in a court filing that is
presumptively public of the names of–but not any medical information about–seven nonparty
patients. Accordingly, although the statutes referenced by the hospital and Dr. Coy and the
policy arguments derived therefrom involve privacy with regard to medical records in
general, the strained arguments the hospital and Dr. Coy make fail to connect these statutes
to this case in any persuasive manner.
For example, the hospital and Dr. Coy cite both the Medical Patient Rights Act (410
ILCS 50/0.01 et seq. (West 2004)) and the Hospital Licensing Act (210 ILCS 85/1 et seq.
(West 2004)) as authorities supporting a generalized public policy argument that the names
of the patients should remain sealed. However, by its own language, section 3(d) of the
Medical Patient Rights Act is limited to the disclosure of medical information by a
"physician, health care provider, health services corporation[,] and insurance company." 410
ILCS 50/3(d) (West 2004). Likewise, section 6.17 of the Hospital Licensing Act pertains
15
only to the release of medical information by the hospital's medical staff and its agents and
employees. 210 ILCS 85/6.17 (West 2004). Moreover, although the hospital and Dr. Coy
are correct in asserting that patient records are exempt from requests under the Freedom of
Information Act (5 ILCS 140/7(1)(b)(i) (West 2004)), that fact is irrelevant to the present
case. In sum, the situations contemplated by these statutes are so divorced from the facts of
the present case that the policy arguments the hospital and Dr. Coy attempt to glean from
these statutes and affix to the present case are unconvincing.
Equally unconvincing is the contention that under the medical studies statute (735
ILCS 5/8-2101 et seq. (West 2004)), the names of the patients must remain sealed. The
purpose of the medical studies statute is to advance the quality of health care by ensuring that
members of the medical profession effectively engage in a peer-review process. Ardisana
v. Northwest Community Hospital, Inc., 342 Ill. App. 3d 741, 746 (2003). The medical
studies statute protects against "disclosure of the mechanisms of the peer-review process,
including information gathering and deliberation leading to the ultimate decision rendered
by a hospital peer-review committee." (Emphasis added.) Chicago Trust Co. v. Cook County
Hospital, 298 Ill. App. 3d 396, 402 (1998). Accordingly, documents generated specifically
for the use of a peer-review committee receive protection under the medical studies statute.
Chicago Trust Co., 298 Ill. App. 3d at 402. Significantly, the medical studies statute is found
in the "Evidence" article of the Code of Civil Procedure and is intended to govern the
discoverability and admissibility of information in pending litigation. 735 ILCS 5/8-2102
(West 2004). The burden of establishing a discovery privilege under the medical studies
statute is on the party seeking to invoke it. Ardisana v. Northwest Community Hospital, Inc.,
342 Ill. App. 3d 741, 746 (2003). No privilege exists with regard to information or
documents that might have been relied upon in the peer-review process but were generated
prior to the process. Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 403
16
(1998).
Consequently, there are several problems with the arguments advanced by the hospital
and Dr. Coy under the medical studies statute. First, as noted above, the medical studies
statute is found in the "Evidence" article of the Code of Civil Procedure and is intended to
govern the discoverability and admissibility of information in pending litigation; no section
of the medical studies statute even comes close to addressing a scenario such as that in the
present case where the issue is the intentional, unexplained, and unnecessary inclusion in a
court filing that is presumptively public of the names of–but not any medical information
about–seven nonparty patients. Second, as noted above, the medical studies statute protects
against the disclosure of the mechanisms of the peer-review process, including information
gathering and deliberation leading to the ultimate decision rendered by a hospital peer-review
committee (see Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 402
(1998)), and it does not protect against information or documents that might have been relied
upon in the peer-review process but were generated prior to the process. Chicago Trust Co.,
298 Ill. App. 3d at 403. Accordingly, even if the medical studies statute could somehow be
interpreted to apply to the factual situation in this case, the medical studies statute would
provide no authority for withholding the names of the nonparty patients, because those names
have nothing to do with the mechanisms of the peer-review process and clearly were
generated prior to the process. Third, although the hospital and Dr. Coy posit that unsealing
the court order "will destroy individuals' right to, and expectation of, privacy related to
medical treatment" and "will make all patients reticent to share personal information with
their doctors for fear their names would end up in the morning paper," I cannot agree. Given
that in this case it was counsel who put the patients in the position of having their names
divulged, not anyone in the medical community itself, this policy argument is unpersuasive.
I simply do not believe the filing of the patients' names in a court document in this case will
17
"chill" the peer-review process in general, because the facts of this case are, hopefully,
unlikely to repeat themselves. The hospital and Dr. Coy have not met their burden of
establishing that a privilege exists in this case under the medical studies statute, and I believe
it would be unwise and improper for this court to create that privilege under the medical
studies statute on the basis of the public policy arguments advanced by the hospital and Dr.
Coy.
The majority's newly minted, judicially crafted public policy holding to the contrary
notwithstanding, the hospital and Dr. Coy have failed to demonstrate a compelling interest
justifying the trial court's decision to keep its order sealed. Accordingly, the hospital and Dr.
Coy have failed to overcome the strong presumption in favor of public access to court
documents, records, and orders. For the foregoing reasons, I would reverse the circuit court's
February 21, 2006, order and remand with directions to unseal the entire February 18, 2005,
order. Because my colleagues choose to do otherwise, I respectfully dissent.
18
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-963V
Filed: April 2, 2015
Unpublished
*********************************
ANDREA THOMPSON, *
*
Petitioner, *
v. *
* Attorney Fees and Costs; Stipulation
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
*********************************
Francisco Gonzalez, Esq., Law Office of Frank Gonzalez, Great Neck, NJ for petitioner.
Ann Martin, Esq., U.S. Department of Justice, Washington, DC for respondent.
DECISION ON ATTORNEY FEES AND COSTS1
Vowell, Chief Special Master:
On October 8, 2014, Andrea Thompson filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq,2 [the
“Vaccine Act” or “Program”]. On March 13, 2015, I issued a decision awarding
compensation to petitioner based on respondent’s proffer to which petitioner agreed.
On April 2, 2015, the parties filed a Stipulation of Facts Concerning Attorneys’
Fees and Costs. According to the stipulation, the parties agree upon an award of
$21,097.00 in attorneys’ fees and costs. In accordance with General Order #9,
petitioner’s counsel represents that petitioner incurred no out-of-pocket expenses.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post this decision 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 note (2006)). In accordance with Vaccine Rule 18(b), petitioners have 14 days to identify
and move to redact medical or other information, the disclosure of which would constitute an unwarranted
invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will
redact such material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2006).
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42
U.S.C. § 300 aa-15(e). I find the proposed amount to be reasonable.
Accordingly, I award the total $21,097.003 as a lump sum in the form of a
check jointly payable to petitioner and petitioner’s counsel Francisco Gonzalez.
The clerk of the court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
3
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including
costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924
F.2d 1029 (Fed. Cir.1991).
4Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
See Vaccine Rule 11(a).
2
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[NOT FOR PUBLICATIONNOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1184
LANCE HULLUM,
Plaintiff, Appellant,
v.
MICHAEL T. MALONEY, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Selya, Boudin and Lynch,
Circuit Judges.
Lance Hullum on brief pro se.
Thomas F. Reilly, Attorney General, and Susanne G. Levsen,
Assistant Attorney General, Criminal Bureau, on brief for
appellees.
September 16, 1999
Per Curiam. Petitioner Lance Hullum appeals from the
dismissal of his habeas petition filed under 28 U.S.C. 2254.
The district court, applying the one-year limitations period
introduced by the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), see 28 U.S.C. 2244(d), concluded that the
petition was time-barred, see Hullum v. Maloney, 14 F. Supp. 2d
164 (D. Mass. 1998) (adopting report of the magistrate-judge).
It thereafter granted a certificate of appealability (COA). We
affirm but on different grounds.
Petitioner, who seeks to challenge a 1990
Massachusetts conviction, filed the instant pro se petition on
February 12, 1998 (or possibly some days earlier). Even with
the grace period included, see, e.g., Gaskins v. Duval,
F.3d , 1999 WL 447129 (1st Cir. July 7, 1999), and even with
the period during which state remedies were being pursued
excluded, see 28 U.S.C. 2244(d)(2), his petition was late.
Respondent filed a motion to dismiss on this basis. By way of
opposition, petitioner explained as follows: that he had been
confined since 1994 in the "department disciplinary unit" (DDU)
at MCI-Cedar Junction; that the main prison library did not
"start sending" a copy of AEDPA to DDU inmates until "late
1997" and that he did not learn thereof until early 1998; that
he otherwise lacked access to "almost all important
information" regarding the Act, as well as to updated legal
materials or any form of legal assistance; and that he would
have filed a timely petition had he known of the one-year
requirement. For these reasons, he sought to invoke the
statutory provision that tolls the running of the limitations
period until
the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of
the United States is removed, if the
applicant was prevented from filing by
such State action.
28 U.S.C. 2244(d)(1)(B). Petitioner's factual assertions
have not been contested.
The district court construed these allegations as
setting forth a predicate claim of denial of the right of
access to the courts, in violation of Lewis v. Casey, 518 U.S.
343 (1996), and Bounds v. Smith, 430 U.S. 817 (1977). It then
concluded that no viable such claim had been presented, such
that 2244(d)(1)(B) was inapplicable. The court emphasized
two factors in this regard. It found that petitioner had not
"diligently pursued his federal claims," noting in particular
that two extended periods of time had elapsed (of nearly 29 and
13 months, respectively) when no state court proceeding was
pending. See 14 F. Supp. 2d at 166. And it determined that
any deficiencies in the library system had not "prevented"
petitioner from pursuing those claims. In this regard, it
noted, inter alia, that the federal claims were identical to
those raised earlier in state court, and that petitioner had
initiated or pursued other court actions during the relevant
period. See id. at 166-67.
This structure of analysis raises questions. First,
if petitioner's improbable allegations are accepted as true and
we assume that he had no reasonable means of learning of the
limitations period in timely fashion, was he thereby
"prevented" from filing his petition within the meaning of
2244(d)(1)(B)? Cf. Lewis, 518 U.S. at 351 (explaining that a
right-of-access claim might be established by showing "that a
complaint ... was dismissed for failure to satisfy some
technical requirement which, because of deficiencies in the
prison's legal assistance facilities, [the inmate] could not
have known"); Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir.
1999) ("[i]n the right circumstances, a delay in receiving
information might call for equitable tolling--such as if the
prison did not obtain copies of AEDPA for months and months").
Second, must a petitioner act with "due diligence" in order to
invoke 2244(d)(1)(B) (as suggested in Miller v. Marr, 141
F.3d 976, 978 (10th Cir.), cert. denied, 119 S. Ct. 210 (1998)),
or alternatively to state a claim under Lewis (as suggested by
the district court)? Cf. Miller v. New Jersey State Dep't of
Corrections, 145 F.3d 616, 618-19 (3d Cir. 1998) (requiring
diligence in order to invoke equitable tolling); 28 U.S.C.
2244(d)(1)(D) (setting forth explicit diligence requirement).
Resolving these questions is not necessary here
because petitioner's three substantive claims prove to be
frivolous. His central claim is that a provision in his plea
agreement--that he receive treatment as a sexual offender at
Bridgewater State Hospital--was never honored, thereby
rendering his guilty plea invalid. See, e.g., Santobello v.
United States, 404 U.S. 257 (1971). Petitioner states that all
pertinent facts "appear on the face of the plea hearing
transcript." Brief at 27. Yet that transcript, a copy of
which he has supplied to this court, makes it clear that this
claim fails for at least three reasons. First, the stipulation
in question provided--not that petitioner would receive such
treatment--but that the court would so recommend. Second, the
court subsequently did just that. Most important, this
stipulation was not part of the plea agreement, but was reached
only after the plea had been accepted. The fact that
petitioner apparently ended up not receiving treatment thus
provides no basis for challenging his plea.
Petitioner also complains that he is innocent of the
crimes and that his trial attorney should have engaged a DNA
expert. Yet the scattered findings on which he relies from
certain serology reports are of no consequence, particularly in
light of the factual proffer articulated by the government (and
accepted by petitioner) at the change-of-plea hearing. These
claims, even apart from the procedural hurdles they face, see,
e.g., United States v. Broce, 488 U.S. 563, 569-74 (1989),
prove utterly baseless.
We therefore choose to affirm on the basis that the
petition is substantively meritless. To the extent that the
grant of the COA might be thought to confine our review to the
limitations issue, we would add the following. A right-of-
access challenge requires a showing that a "nonfrivolous" legal
claim has been frustrated or impeded. Lewis, 518 U.S. at 353.
Petitioner, having failed to present a nonfrivolous claim,
cannot make such a showing. For that reason, 2244(d)(1)(B)
is inapplicable, which in turn means that his petition was also
properly dismissed on limitations grounds.
Affirmed.
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667 F.Supp.2d 809 (2009)
THE MAJESTIC STAR CASINO, LLC, Plaintiff,
v.
TRUSTMARK INSURANCE COMPANY and RMTS, LLC, Defendants.
No. 07 C 2474.
United States District Court, N.D. Illinois, Eastern Division.
October 8, 2009.
Opinion Granting Reconsideration November 17, 2009.
*811 John David Burke, Douglas A. Henning, Joan Grace Ritchey, Michael C. Steele, Ice Miller, Chicago, IL, for Plaintiff.
William A. Chittenden, III, Julie Freund Wall, Chittenden, Murday & Novotny, LLC, Chicago, IL, Thomas A. Croft, King & Croft LLP, Atlanta, GA, for Defendants.
MEMORANDUM OPINION AND ORDER
ROBERT W. GETTLEMAN, District Judge.
The Majestic Star Casino, LLC ("Majestic") has brought a five count second amended complaint against Trustmark Insurance Company ("Trustmark") arising from a Trustmark policy for "stop loss" insurance coverage for Majestic employee benefit plans. Majestic asserts claims for declaratory judgment (Count I); breach of contract (Count II); unfair claims practices under Nevada Revised Statutes § 686A.310 (Count III); bad faith (Count IV); and breach of fiduciary duty (Count V). Majestic also asserts Counts I, II, and IV against RMTS LLC ("RMTS"). Trustmark subsequently filed a four count counterclaim. The parties have filed cross motions for partial summary judgment under Fed.R.Civ.P. 56.[1] For the reasons explained below, the motions are granted in part and denied in part.
FACTS[2]
Majestic operates hotels and casinos in Las Vegas, Nevada, Tunica, Mississippi, Blackhawk, Colorado, and Gary, Indiana. As part of its employee benefits packages, Majestic sponsors self-funded health benefits plans for qualifying employees and their dependents. The plans are administered by Majestic's third party administrator, Benefit Administrative Systems ("BAS").
In early January 2004, BAS received an "Illustrative Quote" (the "Quote") from RMTS, a New York Limited Liability Company, outlining several specific and aggregate stop loss coverage options with either Trustmark, an Illinois insurance company, Gerber Life Insurance Company, or New York Life Insurance Company. The Quote outlines details for three different options for both specific and aggregate coverage plans. It also provides several special conditions for each plan that include specific separate retention levels for three named Majestic employees. The Quote further lists five so-called assumptions, stating in relevant part: "This quote assumes the following: ... 2. A minimum *812 of 80% of all eligible employees and families are covered under the proposed plan." There is no other language relating to this 80% participation rate.
Some time after receiving the Quote, Majestic completed an application (the "2004 Application") with Trustmark for aggregate and specific stop loss insurance coverage. The 2004 Application states: "This Application must be accepted and approved by the Company [Trustmark] prior to any Contract being in effect," and then solicits various information from the applicant. Page two of the application form includes a space for the applicant to enter the number of "[t]otal eligible employees" immediately followed by a space for the "[e]stimated initial enrollment." In its submitted 2004 Application, Majestic left the first of these two spaces blank and entered the number "1965" in the second space.
The stop loss policies were underwritten as of January 1, 2004 (the "2004 Contract"), and the applications were accepted as complete.[3] The 2004 Contract generally provides for reimbursement of eligible healthcare benefit claims paid by the plan in excess of $100,000 per year, per participant, with various exclusions and limitations, including higher deductibles for specific named employees. It includes a provision that expressly defines the "Entire Contract":
The entire Contract between the Company and the Policyholder will consist of this Contract, the Application (including the proposal and Disclosure Statement and any other information submitted by the Policyholder required for underwriting approval), letters of understanding, any continuance requests, approved amendments, the Policyholder's Plan Document which is on file with the Company, and the Trustmark Stop Loss Administrator Application.
The 2004 Contract was renewed for a term of one year (the "2005 Contract") effective January 1, 2005. The application for renewal (the "2005 Application"), like its predecessor, includes a space for number of eligible employees that Majestic left blank upon submission to Trustmark. The renewal contract (the "2005 Contract"), however, did not include a provision defining the "Entire Contract" or separately acknowledge the assumption that 80% of eligible employees are enrolled in the plan.
In early 2006, RMTS reviewed Majestic's public filings with the Securities and Exchange Commission and found that the number of employees listed in the filings did not correspond with the number Majestic reported to defendants as being enrolled in its health benefits plan. After reviewing the filings, Trustmark initiated an audit of Majestic on June 15, 2006, and stopped paying any pending 2005 stop loss claims until the audit was complete. Some of these claims have yet to be paid.
After approximately eight months, in early 2007, Trustmark suspended the audit because Majestic represented that it did not have information regarding the number of employees eligible to participate in the health benefit plans and the number of employees actually participating in the plans "as of" January 1, 2004, and January 1, 2005. Thereafter, Majestic filed the instant suit seeking reimbursement for $958,732.66 in claims that Trustmark denied under the stop loss contracts. Trustmark has filed a four count counterclaim alleging rescission based on intentional misrepresentation (Claim I), negligent misrepresentation (Claim II), breach of contract *813 (Claim III), and declaratory relief (Claim IV).
DISCUSSION
I. Legal Standard
Both parties have filed cross-motions for summary judgment under Fed.R.Civ.P. 56. Summary judgment is appropriate if the evidence demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Vision Church v. Village of Long Grove, 468 F.3d 975, 988 (7th Cir.2006). The burden is on the moving party to identify portions of the pleadings, answers to interrogatories, and affidavits which demonstrate an absence of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (1986). The burden then shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(c). When reviewing a summary judgment motion, the court must read the facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court's role "is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.1994).
II. Participation Rate
In support of its counterclaims Trustmark alleges that Majestic supplied false information about its participation percentage to Trustmark upon which Trustmark justifiably relied. Trustmark's claims are based on its assertions that Majestic knew that, (a) the policy assumed an 80% participation requirement, (b) the course of dealings between BAS and RMTS established the requirement as part of the contract, and (c) industry standards demanded such a requirement. Specifically, Trustmark argues that both the 2004 and 2005 stop loss policies are void because Majestic intentionally and negligently misrepresented that it had met the underlying 80% participation requirement that was a condition precedent to providing insurance coverage.
Majestic has moved for summary judgment on all four of Trustmark's counterclaims. Majestic contends that the 80% participation language in the 2004 stop loss Quote was merely an assumption, rather than a requirement. Majestic also argues that it never supplied any information about its participation percentage to Trustmark, including when BAS signed the Quote from RMTS, or later when Majestic signed the application it submitted to Trustmark. Majestic further argues that even if there was a required participation rate, Trustmark waived this requirement when it underwrote and issued stop loss coverage without requiring disclosure of this information by Majestic.
Because the 2004 contract specifically incorporates the Quote as part of the entire contract, the assumption that 80% of eligible employees will participate in the health plan is part of the contract. Nonetheless, the parties dispute whether this assumption was waived, because Trustmark apparently disregarded Majestic's omission of the number of eligible employees when underwriting the contract. While Trustmark attempted to solicit this information from Majestic in the 2004 and 2005 applications, and in a follow-up e-mail correspondence, it ultimately failed to do so. Nonetheless, Trustmark went ahead and issued stop loss policies to Majestic in 2004 and 2005, and accepted monthly premiums from Majestic. Majestic correspondingly relied on Trustmark for coverage. *814 Whether Trustmark actually relied on the "assumption" of an 80% participation rate is hotly contested.
In any event, Trustmark has failed to show that Majestic was guilty of misrepresentation in failing to obtain or communicate the number of eligible employees to Trustmark. Under Nevada law,[4] negligent misrepresentation is defined as:
One who, in the course of his business, profession or employment, or in any other action in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
Barmettler v. Reno Air, Inc., 114 Nev. 441, 956 P.2d 1382, 1387 (1998).
Simply leaving the space for "total eligible employees" blank does not constitute a false statement or any type of misrepresentation. The application form clearly and conspicuously failed to provide this information, and Trustmark chose to ignore the omission.
Further, Trustmark has failed to produce any evidence showing that Majestic's participation rate was in fact below 80%. Trustmark cites the difference between the employee numbers entered in the applications with the numbers reported to the SEC, but as Majestic is quick to point out, the SEC numbers reflect the total number of Majestic employees rather than the number of eligible employees. Trustmark blames Majestic for not keeping accurate records and failing to provide accurate employee data for its failure to support its claims with evidence. But this issue is not relevant to Trustmark's claims based on alleged negligent misrepresentation.
Accordingly, Majestic's motion for summary judgment as to Trustmark's counterclaims of intentional and negligent misrepresentation (Claims I and II) is granted. Because of the numerous factual disputes related to the 80% participation requirement (especially whether Trustmark waived the 80% requirement), however, Majestic's motion for summary judgment as to Trustmark's counterclaims for breach of contract and rescission (Claims III and IV) is denied.
Pending Claims
Majestic asserts that Trustmark is acting outside of the parameters of the underlying stop loss contracts and withholding claims pending the outcome of the on-going audit.[5] It cites the language in the contract describing the rights of Trustmark in the event of an audit, and notes that absence of a provision allowing the withholding of claims pending an on-going or stalled audit. Trustmark does not contest that the contract does not allow it to withhold claims pending an audit. It argues instead that it has been withholding funds pending resolution of the percentage participation issues in this case. Because the participation rate issues are unresolved and the breach of contract counterclaim is still pending, resolution of the pending claims is deferred.
III. COBRA Notice
Two Majestic employees took approved leaves of absence during the course of their employment, and then went on to *815 incur excess health care expenses for which Majestic sought stop loss reimbursement under the 2005 Policy.[6]
Trustmark denied payment on these claims on the ground that when the claimants took leaves of absence from work, the first day of leave was a COBRA qualifying event, and Majestic was obligated to provide COBRA election notices to the employees within federal deadlines. Majestic acknowledges that it did not send COBRA notices within 30 days of the first day of the employees' leave, but argues that no notice was required because the employees did not experience a qualifying event. Majestic argues that its health care plans specifically provide a 90-day extension of group health coverage for employees on an approved leave of absence, and the running of COBRA is not triggered until the 91st day.
COBRA stands for Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. § 1161, and regulates continuation of coverage for employees of, among other things, self-funded ERISA employee benefit plans. Under COBRA an employee has the option to elect continuation of health coverage during a period that begins when she would otherwise lose coverage under her employer's group health plan. 29 U.S.C. §§ 1161, 1165.
As this court summarized in Fenner v. Favorite Brand Int'l Inc., 25 F.Supp.2d 870, 873 (N.D.Ill.1998):
COBRA requires the plan sponsor of each group health plan to provide each qualified beneficiary, who would lose coverage under the plan as a result of a qualifying event, an option to continue coverage under the plan. 29 U.S.C. § 1161. Upon occurrence of a qualifying event, "the employer of an employee under a plan must notify the administrator... within 30 days ... of the date of the qualifying event[.]" 29 U.S.C. § 1161(a)(2). The administrator then must notify, within 14 days of receiving the notification from the employer, any qualified beneficiary of his COBRA rights. 29 U.S.C. § 1161(a)(4)(A) & (c). Any administrator who fails to meet this notification requirement "may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure ..., and the court may in its discretion order such other relief as it deems proper." 29 U.S.C. § 1132(c)(1).
For COBRA to be triggered, there must be a qualifying eventone of six listed possibilitieswhich, but for the continuation of coverage under COBRA, *816 "would result in the loss of coverage of a qualified beneficiary." 29 U.S.C. § 1163. "[T]ermination ... or reduction of hours of the covered employee's employment" is among the six possible events listed in the statute. Id. "Loss of coverage" means "to cease to be covered under the same terms and conditions as in effect immediately before the qualifying event." Collins v. Strategic Health Care Management Serv., Inc., 1992 WL 92099, at *5 (N.D.Ill., 1992). A loss of coverage can occur at any time following the qualifying event and before the end of the eighteen month maximum coverage period. Fenner, 25 F.Supp.2d at 873. Notably, "it is the terms of the plan that matter in defining the appropriate `trigger' [of the loss of coverage]." Id. (quoting Gaskell v. Harvard Coop. Soc'y, 3 F.3d 495, 501 (1st Cir.1993)).
Majestic's health plans state in relevant part:
If you are absent from work due to an occupation/non-occupational disability, you may continue coverage for ninety (90) days, following the date of the leave, if you pay any required contributions toward the cost of coverage. Coverage under this provision runs concurrently with coverage continued under COBRA.
The stop loss contacts at issue provide in relevant part that:
Losses under the Plan shall not include, and the Company [Trustmark] shall not be liable for, any of the following: ... [T]his Contract shall exclude any amounts Paid for Covered Persons ... who do not receive a valid COBRA extension offer within the 30 days immediately following a COBRA qualifying event ....
In Fenner, this court held that if the same medical coverage continues automatically after termination, no qualifying event occurs. 25 F.Supp.2d at 873 (citing Mansfield v. Chicago Park Dist. Group Plan, 997 F.Supp. 1053 (N.D.Ill.1998)). But, if the health plan requires the employee to take any action to continue her coverage, and absent this action the employee's coverage would lapse, then the qualifying event is termination of the employment and the employer must give the employee a COBRA notice. Id. at 874 (citing Mansfield, 997 F.Supp. at 1053).
Majestic argues that Fenner and Mansfield are distinguishable. While the employee in Fenner was terminated and the employee in Mansfield retired, the employees here went on approved leaves of absence. This distinction, however, is of no moment. An approved leave of absence is within the six possible qualifying events listed under 29 U.S.C. § 1163 because it is a reduction in hours. Therefore, the holdings in Fenner and Mansfield apply here.
Majestic further argues that its health plan language reflects the company's intent to extend full coverage to employees for the first 90 days of an approved leave, and that any other interpretation would render the leave provision meaningless. While Majestic may have had every intention of extending normal health care coverage to its employees on approved leave, the language of its health plans fails to do this. The relevant provision states that an employee may continue coverage if she takes affirmative steps (paying any required contributions). Thus, continued coverage is conditional, not automatic, and if an employee does not elect to extend coverage and pay the required contributions, normal coverage will end following the date of the leave. Although Majestic's corporate director for compensation and benefits, Sally Ramirez ("Ramirez"), stated in an affidavit that employees utilizing continuation of coverage "did not have to do anything new in order to continue coverage," it is the terms of the plan that control here, not Majestic's interpretation or implementation of the plan. Majestic and *817 Trustmark entered into the stop loss agreement based on the language of Majestic's health plan. Majestic cannot avoid the delayed COBRA notice exclusion from the stop loss policy by not following its health plan's express terms.[7]
Moreover, the final sentence in the leave provision is consistent with this reading and further clarifies that the first day of leave, not the 91st day, was the triggering COBRA event. The final sentence states, "Coverage under this provision runs concurrently with coverage continued under COBRA." Use of the word "concurrently" confirms that the 18-month window for COBRA coverage begins when the leave of absence starts, not when it ends, even though the loss of coverage may not occur immediately after the beginning of the leave. Majestic argues that this last sentence, albeit poorly and, it asserts, incorrectly drafted, renders the leave provision ambiguous given the underlying intent of continuous coverage, and it urges the court to read out the word "concurrent."
The record developed during discovery provides only conflicting testimony on this point that is not particularly helpful in resolving this issue. Barbara Qualls ("Qualls") of BAS, who was Majestic's COBRA administrator at the relevant time, testified that COBRA began to run on the first day of a leave of absence under Majestic's plan, whereas Ramirez stated that it began to run on the 91st day after commencement of leave. Majestic argues that this conflict in interpretation lends weight to its contention that the provision is ambiguous. The court disagrees.
Majestic's argument is based on the flawed logic that the underlying intent of the provision trumps the plain meaning of the actual language used. If the language were ambiguous on its face, the court would explore the intent of the parties. That Majestic and Ramirez are somehow confused about the plain meaning of the language, however, does not render it ambiguous. Absent an ambiguity, the plain language of the plan controls. Therefore, under the leave of absence provision of Majestic's health plan, the qualifying event for purposes of COBRA was the first day of leave, and the COBRA notice clock began to run on that day. Accordingly, since Majestic failed to send COBRA notices until after the 91st day of leave, it was in breach of the delayed COBRA notice exclusion of the stop loss contract. Consequently, Trustmark's motion for partial summary judgment on the limited issue of liability under the COBRA exclusion is granted and Majestic's motion is denied.
IV. Dismissal of RMTS as a party to this suit
Majestic has included RMTS as a defendant in Count I (declaratory relief), Count II (breach of contract), and Count IV (bad faith). RMTS argues that it should be "dismissed" from this action because it was not a party to the stop loss contracts.[8] Majestic counters that RMTS is a proper defendant because it is a party to the contract, or alternatively, because it was engaged in a joint venture with Trustmark.
The stop loss contract defines "the Parties to this Contract" as simply: "the Policyholder [Majestic] and the Company [Trustmark]." RMTS is not listed as a *818 party to the contract, nor mentioned anywhere else in the body of the contract. Nonetheless, Majestic argues that RMTS is a properly named defendant because it extended stop loss coverage to Majestic five months before Trustmark approved or issued the underlying policy. Majestic argues that for those interim five months RMTS was the insurer and potentially liable for the entire contract if Trustmark refused to approve the policy. Although it is true that Trustmark was not immediately bound to the policy terms offered in the Quote upon Majestic's acceptance, Majestic's reasoning ignores the clear language of the Quote:
Subject to final approval by the New York based underwriting department of RMTS Associates LLC, RMTS, is pleased to offer your client Specific and Aggregate stop loss coverage with either Trustmark Insurance Company or Gerber Life Insurance Company under the following terms and conditions, ...
Thus, RMTS appeared to be expressly acting as an agent on behalf of a principalone of the two identified insurance companiesthat would provide stop loss coverage as of January 1, 2004. RMTS does not appear to have committed to writing the insurance itself; it committed only to approve and procure insurance to cover the entire period. Even if Trustmark had hypothetically declined to ultimately issue the policy, RMTS's underwriter testified that RMTS would have placed the policy with another insurance carrier, and that there had never been a case where a policy was left without a carrier. Therefore, Majestic has failed to establish that the uncontested facts demonstrate that RMTS issued any insurance coverage to Majestic.
In support of its joint venture theory of liability, Majestic relies on Nevada law on joint ventures to support its argument. But Nevada law is inapplicable here. Although the stop loss contracts are governed by the laws of the state of Nevada, RMTS is not a party to the contracts, and the contracts' choice of law provisions do not apply to Majestic's claims against RMTS. Instead, since jurisdiction here is based on diversity, the court must apply the choice-of-law rules of Illinois, the forum state. Smurfit Newsprint Corp. v. Southeast Paper Mfg. Co., 368 F.3d 944, 949 (7th Cir.2004).
"Ordinarily, Illinois follows the Restatement (Second) of Conflict of Laws (1971) in making choice-of-law decisions." Morris B. Chapman and Assocs v. Kitzman, 193 Ill.2d 560, 568, 251 Ill.Dec. 141, 739 N.E.2d 1263 (2000) (using Restatement (Second) Conflict of Laws §§ 6 and 221). Under § 221 of the Restatement, the court applies the law of the forum that has the most significant relationship to the parties and the occurrence. According to the Restatement, the following factors may be considered according to their importance with respect to the issue before the court:
(a) the place where the relationship between the parties was centered, provided that the receipt of the enrichment was substantially related to the relationship;
(b) the place where the benefit or enrichment was done;
(c) the place where the act conferring the benefit or enrichment was done;
(d) the domicile, residence, nationality, place of incorporation and place of business of the parties; and
(e) the place where the physical thing, such as the land or chattel, which was substantially related to the enrichment, was situated at the time of the enrichment.
It is uncontested that RMTS is a New York LLC, its members are all citizens of New York, and its principal office is in New York City. Similarly uncontested are the facts that Trustmark is an Illinois corporation *819 with its principal offices in Lake Forest, Illinois.
In both New York and Illinois, the core definition of a joint venture is an association of two or more persons to carry out a single business enterprise for profit. Kaufman v. Torkan, 51 A.D.3d 977, 979, 859 N.Y.S.2d 253 (N.Y.A.D.2d Dept., 2008); Barton v. Evanston Hosp., 159 Ill.App.3d 970, 973, 111 Ill.Dec. 819, 513 N.E.2d 65 (Ill.App.Ct. 1st Dist.1987). In New York, the elements of a joint venture are "an agreement manifesting the intent of the parties to be associated as joint venturers, a contribution by the coventurers to the joint undertaking (i.e., a combination of property, financial resources, effort, skill or knowledge), some degree of joint proprietorship and control over the enterprise; and a provision for the sharing of profits and losses." Kaufman, 51 A.D.3d at 979, 859 N.Y.S.2d 253. In Illinois, the elements of a joint venture are: (1) a community of interest in the purpose of the joint venture; (2) a right to direct and govern the policy and the conduct of other joint venturers; (3) the right to joint control of the property used in the joint venture; and (4) a sharing in both profits and losses. Barton v. Evanston Hosp., 159 Ill.App.3d 970, 974, 111 Ill.Dec. 819, 513 N.E.2d 65 (1987) (noting that mutual control is possibly the most important factor).
Needless to say, a joint venture analysis under either states' law is factually intensive. In the instant case, the parties have failed to provide the court with all of the facts necessary to complete this analysis, and many of the facts that have been supplied are contested. Because there are questions of material fact regarding the type of relationship that existed between RMTS and Trustmark relating to the stop loss policies, resolution of this matter on a motion for summary judgment is inappropriate. Consequently, Trustmark's motion for summary judgment on this issue is denied.
V. Claims for Which Issues of Material Fact Preclude Summary Judgment
There are genuine issues of material fact that preclude summary judgment on four issues raised by Trustmark and one claim advanced by Majestic. First, Trustmark argues that claims totaling $812,842.33 are ineligible for reimbursement because Majestic did not pay the claims within the designated benefit period. Although the stop loss policy defines numerous terms relevant to the timing of Majestic's payment of certain claims, including the word "paid," the policy does not supply a definition of the word "issue"as in to "issue" a checknor do the parties agree to a definition. Trustmark appears to contend that the checks are "issued" on the date they were printed. Majestic contends the checks were "issued" on the date they were mailed to recipients. The record is unclear which, if either, definition should be applied. Without an agreed definition, it is impossible to ascertain the timeliness of payments using the data submitted, because the outcome hinges on the "date of issue" of numerous checks. Further, it is a question of fact whether Trustmark waived this specific argument because it waited four years to raise it as a justification for not paying the claims. Therefore, summary judgment as to these claims is denied.
Second, Trustmark argues that claims totaling $75,506.62 are ineligible for reimbursement because Majestic paid these claims more than 365 days after the services were incurred. Because resolution of this issue depends on the definition of the word "issue," summary judgment as to these claims is also denied.
Third, Trustmark argues that claims totaling $37,838.04 are ineligible for reimbursement *820 because they were submitted to Trustmark more than 90 days after the benefit period. Majestic disputes the veracity of the dates indicated on certain submission forms accompanying the pertinent claims. It contends that these dates have been altered or forged so that the true submission dates are unclear. Because the contested submission dates are material here, summary judgment is also denied as to this issue.
Fourth, Trustmark argues that two Majestic stop loss claims totaling $49,903.83 exceed the reasonable and customary charge limits set out in the policy. Trustmark's argument relies on a comparison of Majestic's claims with data from the Health Insurance Association of America database, a source that provides data on charges made by medical providers by service and geographic area, and CorVel, a third party vendor. Majestic disputes the facts underlying this issue and contests the admissibility of the evidence upon which Trustmark relies. Because resolution of this issue requires findings of contested material fact, summary judgment is denied.
Finally, Majestic has moved for summary judgment on claims totaling $101,622.68 related to beneficiary James Gordon ("Gordon"). The parties dispute the reasons why Trustmark denied these claims, but the briefs and supporting exhibits are abbreviated and conflicting. Because the issue is so poorly briefed by both parties and there appear to be genuine issues of material fact, the court denies Majestic's motion for summary judgment on the Gordon claims.
VI. Subrogated and Miscalculated Claims
Trustmark argues that a claim for $12,641.26 (relating to plan beneficiary Ramona Boyer) should be excluded in the total amount disputed because Majestic has recovered these funds from a third-party via subrogation. It also argues that a claim for $5,905.08 (relating to plan beneficiary Keila Parker) should be excluded from recovery because of a mathematical error in computing the amount of requested reimbursement. Majestic offers no arguments or facts to contest these assertions. Therefore, summary judgment is granted in favor of Trustmark as to these limited claims.
VII. Fiduciary Duty
Trustmark seeks summary judgment on Count V of the complaint, arguing that breach of fiduciary duty is not a cause of action under Nevada law. Under Nevada law, "an insurer's duty to its policyholder is `akin' to a fiduciary relationship," but this does not create a new cause of action. Evantson Ins. Co. v. Robb Techs., 2006 WL 1891134, *3 (D.Nev. July 7, 2006) (dismissing a policyholder's claim against an insurer for breach of fiduciary duty for failure to state a claim). Because Nevada law does not recognize a claim based on a breach of fiduciary duty between Trustmark and Majestic, Count V fails to state a claim upon which relief can be granted. Therefore, Trustmark's motion for summary judgment on Count V is granted.
VIII. Parker Claim
Majestic argues that Trustmark's denial of $22,466.08 from a claim it made in 2005 for plan beneficiary Keila Parker ("Parker") is invalid. Majestic states that the claim was denied because Parker was given a private rather than a shared room during treatment for her condition. Trustmark denies that this was the reason the Parker claim was denied, and instead points to three spreadsheets attached to an affidavit accompanying its brief in opposition to the instant motions. Aside from being an irritating way to present an argument *821 (by relying on exhibits, without explaining the significance of the exhibits in its brief), if Trustmark's "argument" is understood correctly, it implies that various portions of the Parker claim were denied because they were not paid within the benefit period, there was a mathematical error somewhere in the claim, and because COBRA was not offered in a timely manner. The court has addressed and resolved these underlying legal issues elsewhere in this opinion. The outstanding factual issues that are material to this claim, specifically the amount of corresponding money, is left to the finder of fact. Therefore, Majestic's motion for summary judgment on the Parker claim is denied.
CONCLUSION
For the reasons stated above, Majestic's motion for summary judgment is granted as to Claims I and II of Trustmark's counterclaim (alleging intentional and negligent misrepresentation) and denied as to Claims III and IV (alleging breach of contract and rescission). Resolution of the issue of pending claims is deferred. Trustmark's motion for summary judgment on the limited issue of liability under the COBRA exclusion is granted and Majestic's motion on this issue is denied. Trustmark's motion for summary judgment as to RMTS's liability for Counts I, II and IV is denied. Trustmark's motion for summary judgment on claims that Majestic allegedly, (a) did not pay within the designated benefit period, (b) paid more than 365 days after services were incurred, and (c) submitted to Trustmark more than 90 days after the benefit period is denied. Similarly, Trustmark's motion for summary judgment on two claims that allegedly exceed the reasonable and customary charge limits of the policy is denied. Majestic's motion for summary judgment on the James Gordon claim is denied. Trustmark's motion for summary judgment on Count V (breach of fiduciary duty), the claim for $12,641.26 in subrogated funds related to plan beneficiary Ramona Boyer, and the claim for $5,905.08 related to plan beneficiary Keila Parker is granted. Majestic's motion for summary judgment on the remainder of the Keila Parker claim is denied.
This matter is set for a report on status October 20, 2009, at 9:00 a.m.
MEMORANDUM OPINION AND ORDER
Plaintiff Majestic Star Casino, LLC ("Majestic") filed a five-count amended complaint against defendants Trustmark Insurance Company ("Trustmark") and RMTS, LLC ("RMTS") alleging claims arising from a Trustmark policy for "stop loss" insurance for Majestic employee benefit plans. Trustmark subsequently filed a four-count counterclaim. The parties filed cross-motions for partial summary judgment, and on October 8, 2009, the court issued a memorandum opinion and order (the "October 8 Order") in which it denied summary judgment on Trustmark's claims that plaintiff, (1) failed to pay $285,251.36 within the benefit period designated in the stop loss policy, and (2) failed to pay different claims totaling $75,506.62 within 365 days from the last dates of service as required by the contracts.[1] Trustmark has moved for reconsideration of the October 8 Order. The motion is granted.
Generally, "[t]his Court's opinions are not intended as mere first drafts, subject to revision and reconsideration at a *822 litigant's pleasure." Quaker Alloy Casting Co. v. Gulfco Industries, Inc., 123 F.R.D. 282, 288 (N.D.Ill.1998). Such motions are appropriate only to correct manifest errors of law or fact. Oto v. Metropolitan Life Insurance Co., 224 F.3d 601, 606 (7th Cir. 2002).[2]
Central to the court's October 8 Order was the finding that a definition of the word "issue" was essential for ascertaining the timeliness of various payments Majestic made to cover employee health claims. Moreover, the court found that whether Trustmark waived these claims because it waited four years to raise the timeliness of payment as justification for not paying the claims raised a contested issue of fact. In the instant motion, Trustmark argues that the court's October 8 Order misinterpreted several key facts that, when properly considered, would counsel granting partial summary judgment in its favor on two separate groups of claims.
Late Paid Claims
Under the stop loss contracts, for a claim to be eligible for reimbursement Majestic must have "paid" the claim under its health plan within the designated benefit period. There is no dispute that claims under the 2004 contract were to be paid during the 2004 calendar year, and claims under the 2005 contract were to be paid during the 2005 calendar year. The parties also agree that the "paid date" is defined as the date a "check, draft or electronic fund transfer is [h]onored." The exception is when a payment is honored within 30 days of being "issued," in which case the "paid date" is the "issue date."
Trustmark argued in its original motion for partial summary judgment that Majestic paid claims totaling $285,251.36 outside of the designated benefit periods. Majestic countered, and the court agreed in its October 8 Order, that these late paid claims could not be resolved on summary judgment due to the lack of an agreed definition for the word "issue" under the contract, and because whether Trustmark had waived these arguments presented a contested issue of fact. Trustmark argues in the instant motion that notwithstanding the parties' dispute about the meaning of "issue date"which affects only $48,553.72 of claims paid in January of 2004 and 2005there are undisputed facts supporting a finding of summary judgment in Trustmark's favor for the remainder of the claims totaling $236,697.64.
Trustmark draws the court's attention to an exhibit compiling checks listed on Majestic's bank records for January 1, 2004, through December 31, 2006. It argues that checks clearing more than 30 days after the end of the calendar year were issued on the date they were honored, rather than the date they were sent. Therefore, any checks that cleared Majestic's bank account after January 30 of the year following the end the applicable stop loss contract were "paid" on the date the checks were honored. Trustmark also contends that there are numerous checks that have never cleared Majestic's bank account, and claims filed based on these checks are ineligible for stop loss coverage.
Majestic agrees that the disputed definition of "issue date" is relevant only to the $48,553.72 of claims paid in the first 30 days of 2004 and 2005. It also does not dispute that claims totaling $236,697.64 were not paid within the benefit periods of the stop loss contracts. Instead, Majestic contends that Trustmark is estopped from denying these claims because it waived the *823 payment requirements it now seeks to enforce. Specifically, Majestic argues that Trustmark waived the stop loss policies' payment requirements because it selectively enforced these requirements in an effort to save money. Majestic claims that Trustmark knew that Majestic's third party benefits administrator, Benefit Administrative Systems ("BAS"), was not paying underlying claims until it received advanced funding from Trustmark, and chose to remain silent in contravention of the advanced funding provisions of the stop loss contracts. Majestic thus contends that Trustmark delayed the processing of numerous stop loss claims, which resulted in long delays in BAS releasing Majestic's funds to health care providers.
In the October 8 Order, the court denied summary judgment on the late paid claims in part because it found that there was a question of fact whether Trustmark waived its argument because it waited four years to raise it as a justification for not paying the claims. On reconsideration, the court grants partial summary judgment in favor of Trustmark on this issue because Majestic has failed to establish that there are remaining genuine issues of material fact.
Majestic's first argument is that Trustmark is estopped from enforcing the payment requirement provisions in the contracts. Under Nevada law, which applies to the instant claim, the elements of estoppel are:
(1) the party to be estopped must be apprised of the true facts; (2) he must intend that his conduct shall be acted upon or must so act that the party asserting estoppel has the right to believe it was so intended; (3) the party asserting estoppel must be ignorant of the true state of facts; (4) he must have relied to his detriment on the conduct of the party to be estopped.
NGA # 2 Ltd. Liab. Co. v. Rains, 113 Nev. 1151, 1160, 946 P.2d 163 (Nev.1997).
Majestic does not cite these elements in its argument, nor does it provide facts to support an estoppel theory. Instead, Majestic points to an email exchange in which RMTS and BAS discuss expediting advance funding for a particularly large claim in order to secure provider discounts for Majestic.[3] Based on this single email correspondence regarding claims for a single beneficiary, Majestic asserts that Trustmark is estopped from enforcing the policy because it generally knew that BAS was not releasing monies for claims until first receiving advance funding and chose to not enforce the stop loss policies.
Needless to say, this email exchange is woefully inadequate to support a viable theory of estoppel. It only goes to show that in one instance Trustmark attempted to rush advance funding to help Majestic secure a provider discount. The emails do not establish a general course of dealing whereby Trustmark invariably ignored the payment requirements of the stop loss policies and Majestic came to rely to its detriment on these frequent exceptions.
Majestic has also failed to support its theory of waiver sufficiently. Under Nevada law, waiver is "the intentional relinquishment *824 of a known right." Thompson v. City of N. Las Vegas, 108 Nev. 435, 439, 833 P.2d 1132 (Nev.1992). To be effective, "a waiver must occur with full knowledge of all material facts." Id. Majestic points to the same email exchange discussed above to support a finding that Trustmark knowingly relinquished its legal right to require Majestic to pay claims within the stop loss policies' benefits periods. However, contrary to Majestic's assertions, there is nothing in the emails to suggest that Trustmark knew that BAS was not releasing payments before receiving advance funding from Trustmark for the specific claim being discussed, or any claims generally.
Majestic also contends that factual issues of waiver are raised as to Trustmark's knowledge of the untimely payments because Trustmark conducted a six month long audit of Majestic's stop loss claims. While Majestic has provided an affidavit acknowledging that an audit was conducteda fact that is not in dispute nothing in the affidavit, or anything else submitted by Majestic suggests that Trustmark learned about the late paid claims during the course of the audit and chose to ignore them. In fact, according to Trustmark, Majestic did not produce its bank records until January 29, 2009, in response to a discovery request in the instant case. Majestic has not refuted this assertion.
Because there is no dispute that Majestic failed to pay $236,697.64 of claims within the benefit periods of the stop loss contracts, and Majestic has not provided facts supporting its theories of estoppel and waiver, the court grants Trustmark's motion for partial summary judgment as to $236,697.64 of the late paid claims.
Claims Paid More Than 365 Days After Services Were Incurred
Trustmark's second argument concerns the $75,506.62 in claims paid more than one year after the medical expenses were incurred. The stop loss contracts contain a clause specifically excluding claims submitted or paid by Majestic more than 365 days after medical services were incurred. Trustmark argues that the "issue date" question is not material to the $75,506.62 relating to Plan beneficiary Maria Cruz, and that Majestic admits that this sum was paid more than 365 days after the expenses were incurred. Majestic offers no argument in response.
In reviewing the record, it becomes clear that the court's ruling on this issue resulted from the poorly drafted papers submitted in conjunction with the parties' motions for partial summary judgment, which failed to elucidate the underlying issue. In fact, the parties do not dispute that Majestic paid $75,506.62 in claims after the one year deadline, and Majestic did not raise a waiver argument as to these claims. Moreover, Majestic has not offered any new argument on these claims in response to the instant motion. Accordingly, Trustmark's motion to reconsider on this limited issue is granted, and the summary judgment is entered in its favor on the claims paid more than 365 days after medical services were incurred.
CONCLUSION
Based on review of parties' submissions in relation to Trustmark's motion to reconsider the October 8 Order, the court finds that there are no disputed, material facts concerning, (1) late paid claims where definition of the word "issue" is not disputed, and (2) claims paid more than one year after medical expenses were incurred. Having reassessed the applicable facts and exercising its discretion to reconsider its previous decision, the court determines that it should have granted partial summary judgment on this record. The court therefore grants Trustmark's motion for *825 reconsideration and grants Trustmark's motion for partial summary judgment for $236,697.64 in late paid claims and $75,506.62 in claims paid more than one year after the medical expenses were incurred.
NOTES
[1] Trustmark and RMTS have jointly filed a motion for partial summary judgment and a response to Majestic's motion for partial summary judgment. For the sake of simplicity, the court will refer to these joint filings and their accompanying arguments as Trustmark's.
[2] Unless noted otherwise, the following facts, taken from the parties L.R. 56.1 statements and exhibits attached thereto, are not in dispute.
[3] Whether RMTS acted as underwriter in its own capacity or as agent for Trustmark is unclear from the documents submitted by the parties, and in any event, is contested.
[4] The parties agree that the stop loss contracts are governed by Nevada state law.
[5] The parties dispute the amount at issue here. Majestic states that $438,168.83 in claims are being withheld, whereas Trustmark says that the withheld claims total less than $146,000.
[6] It is not entirely clear whether there were two or three employees who took approved leaves of absence. Majestic claims that only two employeesTena Daley and O'Keith Parker (the father of daughter Keila Parker) took leave, whereas Trustmark includes at least one other employee: Stephen Bauer and/or James Gordon. The court's confusion is due to an inconsistency in Trustmark's briefs, affidavits, and supporting exhibits.
According to Majestic, Stephen Bauer did not take a leave because he was able to arrange an alternate work schedule to maintain his full-time employment status. Tena Daley took a medical leave of absence from March 19, 2005, to June 18, 2005, when she terminated her employment. BAS sent her a COBRA election notice on July 2, 2005, and she elected COBRA on July 11, 2005. O'Keith Parker took an approved leave of absence on June 29, 2005, but was back to work full time less than two months later. Because he returned to work before the 91st day of his leave, Majestic argues that COBRA was not implicated.
In addition, the parties dispute the dollar amount Trustmark denied in relation to these claims due to untimely COBRA notices. According to Majestic $208,223.80 in claims were denied, whereas Trustmark states that claims totaling $345,255.93 were excluded from stop loss coverage. These factual issues cannot and need not be decided at this time.
[7] Indeed, RMTS put BAS on notice in 2004 that under the terms of the stop loss policy and the language of the Majestic leave provision, it considered giving COBRA notification on the 91st day of a leave of absence to be untimely.
[8] Rather than seeking "dismissal" in the sense of a Rule 12(b) motion, defendants have brought this argument as part of their motion for partial summary judgment, and it will be treated as such by the court.
[1] As with the October 8 Order, for the sake of simplicity and consistency, the court will refer to Trustmark and RMTS's joint filing and their accompanying arguments as Trustmark's.
[2] See also, Gettleman, "How to Tell a Judge He Screwed Up," ABA Litigation Magazine, Vol. 32, No. 4 (Summer 2006), p. 49.
[3] Under the Advanced Funding provisions of the stop loss contracts, Trustmark agreed to provide advance funding for eligible claims exceeding $10,000. Majestic did not have to first pay these claims before seeking stop loss reimbursement from Trustmark, but the policy makes clear, as discussed above, that notwithstanding a request for advance funding, Majestic still had to pay the medical provider within the benefit period. The provision states that, "No provision herein shall be deemed to alter the definition of Pay, Paid, or Payment ... nor will it change any payment requirement ... including but not limited to the denial of ... Losses not paid by Policyholder within the Benefit Period."
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721 N.W.2d 484 (2006)
WELIN v. PRYZYNSKI.
No. 2004AP2386.
Supreme Court of Wisconsin.
August 30, 2006.
Petition for review granted.
Unpublished court of appeals decision summarily reversed; matter remanded to the circuit court.
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10 B.R. 579 (1981)
In re HILLCREST FOODS, INC., Pure 1, Inc., WJM Co., and Mendelson Farms, Inc., Debtors.
HILLCREST FOODS, INC., Pure 1, Inc., WJM Co., and Mendelson Farms, Inc., Plaintiffs,
v.
Theodore T. BRIGGS, as he is Superintendent of the Department of Business Regulation for the Bureau of Insurance of the State of Maine, Defendant.
Bankruptcy Nos. 281-00098 to 00101, Adv. No. 281-0040.
United States Bankruptcy Court, D. Maine.
April 2, 1981.
Gerald Gillerman, Widett, Slater & Goldman, Boston, Mass., Gerald S. Cope, Portland, Me., for debtors.
Peter B. Bickerman, William C. Nugent, Asst. Attys. Gen., Augusta, Me., for defendant.
ORDER REINSTATING SELF-INSURERS STATUS OF DEBTORS
FREDERICK A. JOHNSON, Bankruptcy Judge.
This matter, after notice, came on for a preliminary hearing on March 25, 1981. Counsel for both parties were present. After hearing evidence from William Bott, financial consultant to the Debtors, and Robert Flynn, consultant to the Debtors in respect to Workers' Compensation insurance, and after hearing the arguments of counsel, the Court finds that the Department of Business Regulation, Bureau of Insurance of the State of Maine, by Theodore T. Briggs, Superintendent, addressed a letter to Hillcrest Foods, Inc. purporting to summarily suspend the Debtors' status as a self-insurer under the Workers' Compensation law. The letter contained the following language:
Under authority of Title 39 M.R.S.A., Section 23(2), I hereby suspend indefinitely the authority of Hillcrest Foods, Inc. to self-insure workers' compensation benefits in this state, for the reason that the filing of a petition for voluntary bankruptcy by Hillcrest Foods, Inc. constitutes failure to satisfactorily establish solvency and financial ability to pay the compensation and benefits required under the Workers' Compensation Act . . . This suspension is effective immediately upon your receipt of the notice. . . .
From the evidence presented at the preliminary hearing, including the letter, which was admitted as an Exhibit, the Court concludes that the summary suspension of the Debtors' status as a self-insurer *580 under the Workers' Compensation Act may be a violation of Section 525 of the Bankruptcy Code [11 U.S.C. § 525] which prohibits a governmental unit from discriminating against a debtor solely because a debtor is or has been a debtor under the Bankruptcy Code.[1] It is, therefore,
ORDERED and ADJUDGED
that the summary suspension of the Debtors' status as a self-insurer under the Workers' Compensation Act is void and of no effect and the Debtors are hereby restored to their status as self-insurers under Maine's Workers' Compensation Act pending a full hearing upon the Debtors' complaint which seeks permanent restoration of their status as self-insurers.
NOTES
[1] Section 525 [11 U.S.C. § 525] reads in part as follows:
[A] governmental unit may not deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, . . . a person that is or has been a debtor under this title . . . solely because such bankrupt or debtor is or has been a debtor under this title . . ., has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title. . . .
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415 So.2d 1280 (1982)
John Morgan BARNES, Appellant,
v.
STATE of Florida, Appellee.
No. 81-1571.
District Court of Appeal of Florida, Second District.
May 12, 1982.
Rehearing Denied July 1, 1982.
*1281 Fred S. Pflaum, Sarasota, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
CAMPBELL, Judge.
Appellant, John Morgan Barnes, was convicted of false imprisonment, sexual battery and aggravated battery. Though he alleges numerous errors in his jury trial, only one merits discussion. The trial court excluded the testimony of John A. LaBreche, who testified that after appellant was arrested for the assault, he, Mr. LaBreche, had seen other unidentified persons who, in his opinion, fit the description of the assailant as described to him by the investigating officer, who had been furnished the description by the victim. Appellant argues the exclusion of that opinion evidence was error. We affirm the trial court.
The evidence presented to the jury was overwhelming that the sexual battery was committed by an unknown assailant upon the victim exactly in the manner described by her. The critical issue before the jury was whether appellant was that unknown assailant. The witness, Mr. LaBreche, was initially arrested for the assault after the victim picked his photograph from a photograph line-up as the one who looked most like her assailant. When he established an alibi, the victim then identified appellant as her assailant from another photograph line-up.
The investigation of the assault centered around a bowling alley where appellant and Mr. LaBreche were members of different teams in the same league and where they had bowled the night of the assault. The victim described her assailant as wearing blue jeans and a yellow bowling shirt which had black and white stripes on the shoulders with lettering over the pocket beginning with the letters "J" and "O" and perhaps an "H." Mr. LaBreche testified for the state that on the night of the assault appellant was wearing blue jeans and the yellow bowling shirt with black stripes on the shoulders as worn by the five members of appellant's team. Of those five members, only one, the appellant, was named John.
Detective Steube testified that during his investigation he determined that on the night of the assault forty-two men had bowled there and of that number only appellant, John LaBreche and one other were named John. All of the foregoing facts pertaining to the investigation and the initial arrest of Mr. LaBreche were admitted into evidence for the jury's consideration.
We do not disagree with the principles of law cited in Judge Grimes' dissent. We do feel that there must be a more substantial connection between unidentified third persons and the crime than Mr. LaBreche's opinion derived from a physical comparison based on a double hearsay description. In each of the cases cited by Judge Grimes, there were other distinctive connections between the crime and the other person fitting the description.
Appellant's proffer of Mr. LaBreche's testimony which was excluded by the trial judge was as follows:
*1282 DIRECT EXAMINATION
BY MR. PFLAUM:
Q Mr. LaBreche, you have been previously sworn; you are still under oath.
A Yes, sir.
Q You were arrested approximately December the 20th, is that correct?
A The nineteenth.
Q The description that was given to you of the assailant of Debra Richert was of a blond haired man, with sandy colored hair to the mid-ear and short sideburns and a mustache, is that correct?
A Yes, sir.
Q Wearing a yellow bowling shirt with black and white stripes?
A Yes, sir.
Q And driving a white pick-up truck?
A White Chevrolet.
Q The following week after you were arrested, did you have the occasion to come into contact with someone who fit that description?
A Two weeks after that, after the Wednesday night rape, I was leaving the bowling alley about ten after nine with my wife, and we were parked directly in front of the building, facing the building, and I observed a white pick-up truck with a utility box in the back, with some lettering on the side, pull up to the right of me, some paces away, and I had started my vehicle, and I turned on my headlights and the person walked directly in front of my headlights, and I kind of followed him as he approached the opening to the door, where there was light.
This man was six-foot tall, blond hair, mustache, and had a yellow bowling shirt on, with black lettering.
Q Did it have stripes on the collar?
A Yes, sir. And why I observed that is because I was arrested for it and that I knew there were three Johns involved at that bowling alley and in that league.
I was talking to my wife about it and I got the tag number of the vehicle, I believe, and after that night I had spotted another General Motors white pick-up truck with a utility box, with a blond, with sideburns and the mustache and whole business, three consecutive times within two weeks, and I also took the license plate number of those vehicles.
Q Did you have your eye out for a person fitting that description?
A Yes, sir.
Q That was because you were arrested on this very same charge?
A Yes, sir.
MR. PFLAUM: I have no further questions.
MR. HOWES: I have some cross-examination.
CROSS-EXAMINATION
BY MR. HOWES:
Q Who did you report this information to that you had?
A At first, I didn't really report it to nobody. I have kind of an office in the office I'm a sales representative for Texaco. I made notes of the license plate and put them on some cards, my personal cards, on the back, and I observed the time and place at which I saw the people.
And later on, I believe it was about I forget where I was. I believe that I had run into Officer Steube and I told him abou (sic) it.
And I also believe that I encountered Fred at one point when they took a deposition from me, and I don't know when that was, but I had mentioned it at that point about the white pick-up truck.
Q Did you mention it in your deposition?
MR. PFLAUM: No, he didn't.
MR. HOWES: Excuse me, I want the witness to answer.
THE WITNESS: I don't remember.
Q (BY MR. HOWES) You don't remember whether you did?
A I don't remember if I was even asked. I know that I thought it was important, and I might have said something after the during after your taking the deposition.
Q That was just to Mr. Pflaum, is that correct?
*1283 A You were there, I believe.
Q But you didn't tell me that, though, right?
A I don't know if you were still in the room or not.
Q Let me ask you this: This description that you say you got, who did you get that from?
A Detective Steube.
Q Did you see whether or not there was a name on the front of the shirt when you saw this person?
A No; I just as he walked by the car, I could see the shirt, and I said to my wife, "That's a yellow bowling shirt, a blond hair there's the black letters."
No, I did not see any name.
We think there are several significant reasons why the testimony was properly excluded. Immediately after finding help, the victim described her assailant and the white Ford pickup truck he was driving. She was familiar with that model truck and positively and repeatedly identified it as a Ford. Mr. LaBreche first testified that he saw an unidentified individual driving a Chevrolet truck. Next, he testified that he saw someone on another occasion fitting the hearsay description driving a General Motors white pickup truck. Mr. LaBreche testified that in all he saw vehicles on three occasions and each time he took the license numbers of the different vehicles. He did not proffer the license numbers, nor was it clear from the testimony whether Mr. LaBreche, prior to the proffer at trial, reported this information to anyone. As the Florida Supreme Court said in Lawrence v. State, 45 Fla. 42, 44, 34 So. 87, 88 (1903):
The question, to what extent one charged with a crime may defend by showing some third person to be the guilty party, has often been before the courts, and is discussed in the following cases: Banks v. State, 72 Ala. 522; Levison v. State, 54 Ala. 520; State v. Beaudet, 53 Conn. 536, 4 Atl. 237, 55 Am.Rep. 155; State v. Hawley, 63 Conn. 47, 27 Atl. 417; Commonwealth v. Abbott, 130 Mass. 472; State v. Davis, 77 N.C. 483; State v. Gee, 92 N.C. 756; State v. Lambert, 93 N.C. 618; Ex parte Gilstrap, 14 Tex. App. 240; Murphy v. State, 36 Tex.Cr.R. 24, 35 S.W. 174; Crookham v. State, 5 W. Va. 510. None of them authorizes an accused to defend by raising so vague a suspicion of guilt in another as is attempted here, and the court below committed no error in excluding such testimony.
Mr. LaBreche's testimony was simply an offer of opinion testimony by a lay witness. In Roberson v. State, 40 Fla. 509, 522, 24 So. 474, 478 (1898), the court said that "[t]he opinion of a witness as to the identity of a person seen by him is admissible in all cases where the witness has a previous personal acquaintance with or knowledge of such person, and bases his opinion upon such acquaintance or knowledge." In the case here, Mr. LaBreche's description of the unidentified third persons depended entirely on what the victim told an investigating officer, who in turn told the witness. As such it was based totally on hearsay. In Henderson v. State, 94 Fla. 318, 332, 113 So. 689, 694 (1927), the court held:
Testimony as to identity is in the nature of opinion evidence. Provided he bases his testimony on his own knowledge and not on information furnished by another, the opinion, belief, judgment, or impression of an ordinary (non-expert) witness as to the identity of a person or an object is admissible in evidence.
Section 90.701, Florida Statutes (1979), allows opinions of lay witnesses only when based upon what the witness has "perceived." Other jurisdictions have also held that the type of hearsay testimony proffered here was properly excluded. In People v. Turner, 91 Ill. App.2d 436, 235 N.E.2d 317 (1968), the court had for consideration the identification of an assailant which was based upon an artist's sketch and a "wanted" bulletin. In rejecting the identification testimony, the court said:
Further, where a witness has no personal knowledge of the facts but his knowledge is derived entirely from information given by another, his testimony is incompetent and inadmissible as hearsay. People v. Grizzle, 381 Ill. 278, 44 N.E.2d 917, 920 (1942).
*1284 In the case at bar, the sketch drawn by the police artist is his written out-of-court belief as to the likeness of the assailant. Further, it is not his belief based on what he had observed but his belief based on what he had been told by the prosecutrix. .. .
... .
... It was error to permit the officer to testify that Turner matched the complainant's description of her assailant. That was testimony that only she could give. Allowing him to testify that the defendant looked like the sketch amounted to allowing him to state a conclusion based upon the initial conclusion of a third party. It also violated the rule against hearsay evidence.
Id. 235 N.E.2d at 320, 321.
AFFIRMED.
OTT, J., concurs.
GRIMES, A.C.J., dissents with opinion.
GRIMES, Acting Chief Judge, dissenting.
Under the peculiar facts of this case, I am convinced that the court committed reversible error in refusing to allow Mr. LaBreche to testify that he has seen another man who fit the description given by the victim of the crimes of which appellant was accused.
When the guilt of a third person is inconsistent with the guilt of a defendant, the defendant may always present evidence that the third person committed the crime in order to show that he did not do so. Lindsay v. State, 69 Fla. 641, 68 So. 932 (1915); 1 C. Torcia, Wharton's Criminal Evidence § 195 (13th ed. 1972); 1 J. Wigmore, Evidence § 139 (3d ed. 1940). However, in order to be admissible, the evidence must closely link the third person to the commission of the crime. 1 C. Torcia, supra. The question that must be considered here, then, is whether Mr. LaBreche's testimony concerning the third person was closely enough tied to the crime with respect to time, place and accuracy of description to be relevant to the question of whether appellant or someone else committed the assault on Miss Richert.
As Wigmore notes, rulings on whether evidence of mistaken identity is relevant are rare. 1 J. Wigmore, supra, § 142, at 579 n. 5. However, three recent cases deal with the issue and are helpful to a determination of the relevance of Mr. LaBreche's testimony. In United States v. Armstrong, 621 F.2d 951 (9th Cir.1980), the defendant was charged with robbing the American National Bank in Sacramento, California. At his trial, the defense attempted to introduce evidence that another person who matched the description of the robber had used $3,000 in bait bills taken from the bank to purchase a car the day after the robbery occurred. The district court excluded the evidence as irrelevant. However, on appeal, the Ninth Circuit reversed, stating:
We hold it was error to exclude as irrelevant testimony that another man, matching the description of the American National Bank robber, had used bait money taken in that robbery to purchase a car. Fundamental standards of relevancy, subject to the discretion of the court to exclude cumulative evidence and to insure orderly presentation of a case, require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged.
621 F.2d at 953.
The second pertinent case is United States v. Robinson, 544 F.2d 110 (2d Cir.1976), cert. denied, 434 U.S. 1050, 98 S.Ct. 901, 54 L.Ed.2d 803 (1978). There, the defendant was also charged with committing a bank robbery, and the government produced a bank surveillance photograph which it contended showed him to be one of the robbers. However, the defense attempted to introduce testimony that the individual in the picture also resembled one Eli Turner who was suspected by local police officials of committing two armed robberies in the area. The trial court excluded this evidence, but on appeal, the court said:
Robinson claims that the exclusion of the ... testimony was error. We agree.
*1285 The central issue in this case was one of identification. The government maintained that the third man in the bank was Robinson, and Robinson claimed that it was not... .
It was entirely proper for Robinson to disprove the government's contention by proving that the third man was someone else. 1 J. Wigmore, Evidence § 34 (3d ed. 1940) [hereinafter cited as Wigmore]; 2 Wigmore § 413. If it was, then obviously Robinson was innocent. Evidence to the effect that the third man in the bank resembled an individual suspected of two armed robberies that occurred in the Bridgeport area within six days prior to the bank robbery was clearly probative of the issue Robinson sought to prove, namely, that the third man was someone else.
544 F.2d at 112-13 (footnotes omitted).
The final case is Siemon v. Stoughton, ___ Conn. ___, 440 A.2d 210 (1981). In that case, the defendant was found guilty of a sexual assault on a sixteen year old girl who testified that while playing with her brother and sister on property in her neighborhood, a naked man appeared and assaulted her. At the trial, defense counsel failed to introduce evidence that less than one year before the assault, an incident had occurred in the same town where a nude man had approached a woman who was outside on her property and had fled only after the woman's brother started to yell. Some time after his conviction, the defendant filed a petition for habeas corpus seeking a new trial on the grounds that his counsel acted incompetently in not presenting the testimony concerning the other incident with a nude man. In the course of granting the petition for habeas corpus and ordering a new trial, the court said:
We conclude that this testimony would have been admissible. A defendant may give evidence concerning a third party's involvement with the crime, as long as there is some evidence which directly connects the third party with the crime. State v. Giguere, ___ Conn. ___, ___, 439 A.2d 1040 (42 Conn.L.J., No. 51, pp. 19, 21) (1981); State v. Marshall, 166 Conn. 593, 601, 353 A.2d 756 (1974); State v. Perelli [125 Conn. 321, 5 A.2d 705], supra; annot., 121 A.L.R. 1357, 1362. It is not, however, enough to show that another had a motive to commit the crime. State v. Perelli, supra, 125 Conn. 328, 5 A.2d 705. Here, there was more than mere evidence of a motive on the part of a third party. There was testimony to show that a white, nude man with black hair, a beard and without a Spanish accent was on the scene of the crime some months earlier. The description matched the composite drawing of the assailant. Moreover, the plaintiff does not have black hair and there was testimony that he did not have a beard on the date of the crime. The victim testified that her assailant did not have an accent. The habeas court found that the plaintiff had a Spanish accent. The unusual fact of encountering a nude man in the same area on three occasions was enough to connect the nude man to the crime with sufficient directness to render the evidence admissible.
___ Conn. at ___, 440 A.2d at 214.
While the factual situations in these three cases vary from each other and from the present case, they are sufficiently analogous to demonstrate that the court here erred in excluding Mr. LaBreche's testimony concerning the third person. LaBreche's evidence was more than a general statement of having seen someone who matched the description of the criminal. The police obviously felt that the crime had been committed by someone who frequented the bowling alley. Appellant presented a witness who had good reason to be conscious of the crime and the description of the perpetrator because he, himself, had once been identified as the assailant. He was prepared to tell the jury that he had seen another person at the bowling alley only two weeks following the crime who matched the assailant's description, who was wearing a bowling shirt like the one worn by the assailant, and who was driving a truck of the same type and color as described by the victim. Appellant was entitled to have the jury hear this evidence.
The cases cited in the majority opinion are not relevant. All but Lawrence v. *1286 State deal with testimony sought to be introduced by the prosecution, not with the question of when a defendant is entitled to introduce evidence that a third person committed the crime. In Lawrence the "vague" testimony which the defendant was precluded from introducing concerned only the motive that another person may have had to commit the crime rather than evidence directed toward identifying a third party as the culprit. Detective Steube originally noted on his report that the victim had told him that the truck driven by her assailant was "possibly" a Ford truck. Be that as it may, the discrepancy over the make of the vehicles would go to the weight of the evidence rather than its admissibility. The majority's point about double hearsay might be valid if it were not for the fact that Mr. LaBreche had personal knowledge of the assailant's description because the victim first identified him as that person.
Because the wrongfully excluded testimony went to the issue of identity and because identity was the major issue in the case, the error was clearly prejudicial to appellant. Accordingly, I would reverse and remand for a new trial.
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No. 110,219
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Protest Appeal of
RAKESTRAW BROTHERS, L.L.C.,
for Tax Year 2011 in Kingman County, Kansas.
SYLLABUS BY THE COURT
1.
Administrative agencies are created by statute, so they have only the powers
granted by statute. An agency may create a jurisdictional requirement only if the
legislature has specifically authorized it to do so. Mere authority to adopt rules does not
authorize the agency to adopt jurisdictional rules; the authority to set jurisdictional limits
must come from express statutory language.
2.
Neither K.S.A. 2011 Supp. 74-2433f(e) nor K.S.A. 2011 Supp. 74-2437 give the
Court of Tax Appeals the authority to adopt regulations that would set jurisdictional
requirements for parties appearing before it.
3.
The Kansas Legislature has provided in K.S.A. 2011 Supp. 74-2433f(f) that a
taxpayer may appear through a tax representative or agent in the small-claims division of
the Court of Tax Appeals. Accordingly, when a tax representative signs a form entry of
appearance to begin the taxpayer's appeal in the small-claims division, that form, when
timely filed, provides the Court of Tax Appeals subject-matter jurisdiction to hear the
appeal even if the representative is neither an attorney nor the taxpayer's officer or
employee.
Appeal from Court of Tax Appeals. Opinion filed October 17, 2014. Reversed and remanded.
Patrick B. Hughes and Bradley A. Stout, of Adams Jones Law Firm, P.A., of Wichita, for
appellant Rakestraw Brothers, L.L.C.
S. Eric Steinle and Carole K. DeWald, of Martindell, Swearer, Shaffer, Ridenour, LLP, of
Hutchinson, for appellee Kingman County, Kansas.
Before POWELL, P.J., LEBEN and ARNOLD-BURGER, JJ.
LEBEN, J.: When Rakestraw Brothers, LLC, wanted to appeal the tax valuation of
its oil lease by Kingman County, it hired Kenton Hupp, a petroleum engineer, to handle
the appeal. Hupp filed a notice of appeal on Rakestraw Brothers' behalf with the small-
claims division of the Court of Tax Appeals.
The Court of Tax Appeals dismissed the appeal for lack of jurisdiction, concluding
that the notice of appeal had to be signed either by a member or officer of Rakestraw
Brothers or by a licensed attorney. But the Kansas Legislature has specifically provided
that "[a] party . . . may be represented by a . . . tax representative or agent" in the small-
claims division. K.S.A. 2011 Supp. 74-2433f(f). We therefore conclude that the Court of
Tax Appeals was wrong to dismiss the appeal for lack of jurisdiction, and we remand for
a hearing on the merits of the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Rakestraw Brothers hired Hupp to handle the appeal of Kingman County's
valuation of its oil lease for the 2011 tax year. Hupp is a licensed petroleum engineer who
does consulting work, including work related to the valuation of oil leases. Aside from
consulting with Rakestraw Brothers about the valuation of its oil lease, he was not
employed by Rakestraw Brothers.
2
Hupp signed a notice of appeal on a form provided by the Court of Tax Appeals.
He signed as the taxpayer's representative and attached a "Declaration of Representative,"
stating that he would serve as Rakestraw Brothers' representative during the appeal. Hupp
paid the $150 filing fee and sent a letter to the small-claims division indicating that he
was representing Rakestraw Brothers in the appeal.
The small-claims division conducted a hearing on the appeal, and it upheld
Kingman County's valuation.
An attorney, Bradley Stout, then filed an appeal of the small-claims ruling to the
regular division of the Court of Tax Appeals. But Kingman County filed a motion to
dismiss the case for lack of jurisdiction based on a recent Court of Tax Appeals ruling in
a similar case. The Court of Tax Appeals granted the motion, concluding that only a
taxpayer or its attorney may sign a notice of appeal. Since Hupp was neither an attorney
nor the taxpayer (as a member or even an employee), the Court of Tax Appeals ruled that
the notice of appeal had to be disregarded. As a result, it concluded, no timely appeal had
been filed in the small-claims division, and it had no subject-matter jurisdiction to hear
the appeal.
Rakestraw Brothers filed a motion to reconsider, but the Court of Tax Appeals
denied that motion. Rakestraw Brothers then appealed to this court.
Before analyzing whether the Court of Tax Appeals was wrong in its legal
conclusion, we add a note regarding the statutes and regulations cited in this opinion. We
are citing to the 2011 statutes and regulations that were in place when Rakestraw
Brothers filed its appeal to the small-claims division in March 2012. Those statutes and
regulations were the ones that determined jurisdiction at that time, and the Court of Tax
Appeals relied upon them in its decision.
3
We recognize that the 2014 Kansas Legislature has made changes to the statutes
governing the Court of Tax Appeals. In fact, even the name of that tribunal has been
changed—reverting back to its former name, the Board of Tax Appeals. See L. 2014, ch.
141. Neither party has filed anything with our court suggesting that these legislative
changes should have any impact on whether the Court of Tax Appeals was correct to
dismiss Rakestraw Brothers' appeal. We have not considered those legislative changes
and accordingly express no opinion on what impact, if any, they may have on remand.
ANALYSIS
In our view, the result in this case is driven by the language of K.S.A. 2011 Supp.
74-2433f, in which the Kansas Legislature provided for expedited hearings in designated
cases through a small-claims division of the Court of Tax Appeals. Kingman County
makes no argument that Rakestraw Brothers' appeal was in any way inappropriate for
small-claims treatment. See K.S.A. 2011 Supp. 74-2433f(c).
For a small-claims appeal, the legislature provided in K.S.A. 2011 Supp. 74-2433f
that the appeal begins with the filing of a notice of appeal and that the taxpayer may
appear through any of several parties, including an attorney, a certified public accountant
or appraiser, or a tax representative or agent:
"(e) A taxpayer shall commence a proceeding in the small claims and expedited
hearings division by filing a notice of appeal in the form prescribed by the rules of the
state court of tax appeals which shall state the nature of the taxpayer’s claim. . . .
"(f) The hearing in the small claims and expedited hearings division shall be
informal. The hearing officer may hear any testimony and receive any evidence the
hearing officer deems necessary or desirable for a just determination of the case. A
hearing officer shall have the authority to administer oaths in all matters before the
4
hearing officer. All testimony shall be given under oath. A party may appear personally
or may be represented by an attorney, a certified public accountant, a certified general
appraiser, a tax representative or agent, a member of the taxpayer's immediate family or
an authorized employee of the taxpayer. A county or unified government may be
represented by the county appraiser, designee of the county appraiser, county attorney or
counselor or other representatives so designated. No transcript of the proceedings shall be
kept." (Emphasis added.) K.S.A. 2011 Supp. 74-2433f .
Thus, in a section specifically governing the small-claims division, the legislature has
said that a taxpayer "may be represented by . . . a tax representative or agent."
Kingman County suggests in its brief that there's no proof in the record that Hupp,
a petroleum engineer, was a tax representative or agent. But the Court of Tax Appeals
didn't question whether Hupp was a tax representative—a managing partner of Rakestraw
Brothers had signed the Court of Tax Appeals form for "Declaration of Representative"
stating that Hupp was its representative, and Hupp had said in a letter submitted with the
appeal notice that he was a licensed petroleum engineer with "28 years of Kansas Ad
Valorem Tax preparation experience," including testimony before counties and the Court
of Tax Appeals. Hupp was Rakestraw Brothers' "tax representative or agent" for purposes
of K.S.A. 2011 Supp. 74-2433f.
So we have an action properly filed in the small-claims division by the tax
representative or agent of the taxpayer, and the legislature has specifically authorized
such a person to appear for the taxpayer in the small-claims division. What, then, could
be the problem?
Based on the Court of Tax Appeals' ruling, Kingman County suggests four reasons
that the notice of appeal Hupp filed wasn't valid and thus didn't give the Court of Tax
Appeals jurisdiction over the appeal. First, Kingman County argues that since K.S.A.
2011 Supp. 79-2005(g) provides that "the protesting taxpayer may, if aggrieved . . . ,
5
appeal" a county's tax assessment, only the taxpayer (or its attorney) may file the notice
of appeal. Second, Kingman County argues that a Court of Tax Appeals regulation,
K.A.R. 94-5-4(b) (2011 Supp.), provides that a notice of appeal be "signed by the party
or the party's attorney," leaving no option to use a non-attorney agent. Third, Kingman
County argues that K.S.A. 2011 Supp. 74-2433f(f) applies only to hearings, not to the
filing of the notice of a taxpayer's appeal. Fourth, Kingman County argues that signing
the notice of appeal to the small-claims division would constitute the unauthorized
practice of law if done by a representative who was not licensed to practice law in
Kansas. Based on our understanding of K.S.A. 2011 Supp. 74-2433f, we do not find any
of these arguments persuasive.
Let's begin with K.S.A. 2011 Supp. 79-2005(g). That statute does provide that an
aggrieved "taxpayer" can appeal, and K.S.A. 2011 Supp. 79-2433f(e) provides that "[a]
taxpayer" may commence a small-claims appeal. But neither statute provides that only
the taxpayer can file the appeal form. Kingman County and the Court of Tax Appeals
agree that an attorney could file the appeal on behalf of Rakestraw Brothers. These
statutes don't explicitly address who may prepare a taxpayer's appeal form and should not
be read to prohibit anyone but the taxpayer from preparing or filing the notice of appeal.
Hupp did not purport to file his own appeal—he signed as Rakestraw Brothers'
representative.
Kingman County next cites to K.A.R. 94-5-4(b) (2011 Supp.), which provides that
notices of appeal be "signed by the party or the party's attorney." But that regulation
cannot deprive the Court of Tax Appeals of jurisdiction to hear an appeal: An
administrative agency does not define its own jurisdiction—the legislature does by
statute.
Administrative agencies are created by statute, so they have only the powers
granted by statute. See Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs.,
6
290 Kan. 446, Syl. ¶ 1, 228 P.3d 403 (2008). Agency rules must be within the agency's
statutory authority, Ruddick v. Boeing Co., 263 Kan. 494, 499, 949 P.2d 1132 (1997), so
an agency may create a jurisdictional requirement only if the legislature has specifically
authorized it to do so. See Chelf v. State, 46 Kan. App. 2d 522, 525-33, 263 P.3d 852
(2011). Mere authority to adopt rules does not authorize the agency to adopt jurisdictional
rules; there must be express statutory language that the agency has the authority to set
jurisdictional limits. See Union Pacific R. Co. v. Locomotive Engineers, 558 U.S. 67, 83-
84, 130 S. Ct. 584, 175 L. Ed. 2d 428 (2009); Hernandez v. Holder, 738 F.3d 1099, 1102
(9th Cir. 2013); Hoogerheide v. I.R.S., 637 F.3d 634, 636-37 (6th Cir. 2011); Chelf, 46
Kan. App. 2d at 532-33.
K.A.R. 94-5-4(b) (2011 Supp.) was adopted under the authority of K.S.A. 2011
Supp. 74-2437, which lets the Court of Tax Appeals adopt rules "relating to the
performance of its duties and particularly with reference to procedure before it on
hearings and appeals." K.S.A. 2011 Supp. 74-2437(c). Nothing in that statutory grant of
authority suggests that the Court of Tax Appeals may adopt regulations that limit its
jurisdiction.
K.S.A. 2011 Supp. 74-2433f(e) does provide that taxpayers begin their small-
claims appeal "by filing a notice of appeal in the form prescribed by the rules of the state
court of tax appeals . . . ." But nothing in that statute clearly expresses a legislative
authorization that the Court of Tax Appeals rules for the form of the notice shall be
jurisdictional.
The upshot is that the Court of Tax Appeals had no authority to adopt a regulation
purporting to deprive it of jurisdiction if an appeal form was unsigned or signed by the
wrong party.
7
That result should not be surprising. Even courts within the judicial branch don't
define their own jurisdiction, so court rules do not create jurisdictional requirements. See
Adams v. St. Francis Regional Med. Center, 264 Kan. 144, 151, 955 P.2d 1169 (1998).
And even the outright failure to sign a paper filed in court—even including a notice of
appeal—doesn't deprive a court of jurisdiction. Instead, Rule 11 of the Federal Rules of
Civil Procedure and its Kansas counterpart, K.S.A. 2011 Supp. 60-211, both provide for
striking an unsigned paper only if the failure to sign it is not corrected after being brought
to the party's attention. See Fed. R. Civ. P. 11(a); K.S.A. 2011 Supp. 60-211(a). Thus, the
United States Supreme Court has held that the failure to sign a notice of appeal does not
deprive a federal court of jurisdiction over that appeal. Becker v. Montgomery, 532 U.S.
757, 760, 763-68, 121 S. Ct. 1801, 149 L. Ed. 2d 983 (2001).
Kingman County's next argument is a claim that K.S.A. 2011 Supp. 74-2433f(f),
which authorizes an appearance by a "tax representative or agent," only applies at the
small-claims hearing and not to the filing of the appeal notice. Kingman County contends
that the filing of the appeal is governed solely by K.S.A. 2011 Supp. 74-2433f(e), which
makes no reference to a "tax representative or agent."
There are several problems with this argument.
First, K.S.A. 2011 Supp. 74-2433f(e) is ambiguous about who may file the appeal.
It references only "[a] taxpayer," yet everyone agrees that the parties who may prepare
and file the appeal form include at least attorneys in addition to the taxpayer. Given that
ambiguity, it makes sense to consider subsection (e) along with subsection (f), which
clearly allows a "tax representative or agent," among others, to appear for the taxpayer at
the hearing. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906,
918, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013). An attorney is, after all, simply
one type of agent, so it makes sense to use the list of permissible agents provided by the
legislature in subsection (f) when determining which agents may file the notice of appeal
8
on the taxpayer's behalf. By contrast, it would make no sense to say that a corporation
must hire an attorney for the sole purpose of signing the appeal form but then may be
represented by a non-attorney at the small-claims hearing. Construing the statute in that
manner would defeat the obvious purpose of the small-claims process—to allow for a
less cumbersome, more informal, and less expensive initial appeal. None of these
considerations support Kingman County's argument.
Second, Kingman County relies upon K.A.R. 94-5-4(b) (2011 Supp.) for the
requirement that only the taxpayer or its attorney may sign the appeal form. That
regulation is ultimately the source of the claimed requirement that only an attorney or the
taxpayer may sign the appeal form since K.S.A. 2011 Supp. 74-2433f(e) doesn't mention
attorneys. But we have already explained that the Court of Tax Appeals has no authority
to use this regulation to define its jurisdiction.
Third, K.A.R. 94-5-4(b) (2011 Supp.) by its own terms does not set forth a
jurisdictional requirement. Immediately after the sentence that requires the form to be
"signed by the party or the party's attorney," the regulation goes on to say that "[i]f a
pleading is filed with insufficient information or is otherwise deficient, the pleading may
be rejected by the court or may be accepted by the court, with supplementation by the
parties required by the court." (Emphasis added.) A provision giving the body discretion
whether to accept a form that is deficient in some way is not a jurisdictional provision.
And to the extent the Court of Tax Appeals had discretion in this case, we hold it was an
abuse of discretion to dismiss the appeal without first giving Rakestraw Brothers an
attempt to correct the error, just as a court in the judicial branch would be required to do.
See K.S.A. 2011 Supp. 60-211(a).
Kingman County suggests a final problem—that filling out or signing the notice of
appeal constitutes practicing law, which only an attorney may do. There are two answers
to this argument. First, filling out the appeal notice did not constitute the practice of law.
9
Second, even if it were the practice of law, that would not present a jurisdictional hurdle
for the reason we just noted: Even in a court, the party would be given another
opportunity to have the paper properly signed before it would be stricken. There's
certainly no reason that a stricter rule should be applied in an administrative proceeding
unless the legislature has created one—and here, the legislature has provided that the
hearing in the small-claims division "shall be informal." K.S.A. 2011 Supp. 74-2433f(f).
There's no statutory hint that a taxpayer should be thrown out over some technical
pleading requirement.
Let's first consider whether filling out the appeal form provided by the Court of
Tax Appeals constitutes the practice of law. There is nothing in the form that requires
legal training: The taxpayer advises that it wants a hearing, provides contact information,
and states what it claims the proper value of the property is. Law school doesn't train
students to appraise real property, let alone oil and gas interests. Nor does law school
teach a person how to sign his or her name, also required on the form.
The Colorado Court of Appeals found that filling out a similar tax-appeal form did
not constitute the practice of law in BQP Industries v. State Bd. of Equalization, 694 P.2d
337, 341-42 (Colo. App. 1984). In that case, the non-attorney presidents of 10
corporations had filed appeal forms to a state tax-appeal agency using an agency form
that asked for several items of information. In fact, it asked for more than the Court of
Tax Appeals form in our case did; the Colorado form asked for the facts and law on
which the appeal was based and a list of witnesses and exhibits. The Colorado court
found that filling out the form did not constitute the unauthorized practice of law: "The
completion of this form does not require any knowledge and skill beyond that possessed
by the ordinary, intelligent taxpayer." 694 P.2d at 342. Filling out the Kansas appeal form
did not constitute the practice of law.
10
Our conclusion that Hupp did not practice law by filing the small-claims appeal
form is underscored by the nature of administrative proceedings, in which non-attorneys
often handle even some complicated proceedings. Administrative agencies are created by
statute, not by the common law, so there's no common-law prohibition on a corporation
or other artificial entity appearing through a non-attorney. In some complicated
administrative-agency proceedings, like patent registrations, for example, non-attorneys
may become registered agents to represent other parties. See 37 C.F.R. §§ 11.6(b), 11.7
(2013). The Kansas Administrative Procedure Act provides that parties may participate in
hearings "in person or, if the party is a corporation or other artificial person, by a duly
authorized representative." K.S.A. 77-515(a). Had the legislature wanted to limit the
ability to represent artificial entities in administrative proceedings only to attorneys, it
could have done so by substituting "attorney" for "representative."
But what if merely filling out the notice of appeal form were considered practicing
law? Even then, the Court of Tax Appeals would not be barred from considering the
appeal. To understand why, let's consider what happens when a notice of appeal is filed
in a court, where the rules against non-lawyers acting on behalf of corporate entities are
stricter.
There is a common-law rule under which corporations and other artificial entities
must be represented by an attorney in court. See In re Arnold, 274 Kan. 761, 770, 56 P.3d
259 (2002); cf. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, Syl. ¶¶ 3-4, 14 P.3d
1149 (2000) (recognizing that legislature had changed the common-law rule by statute to
allow corporations to appear in court in small-claims cases by a full-time employee or
officer). But even if Hupp, a non-attorney, had filed the notice of appeal in a court, that
doesn't mean the notice of appeal would be treated as a nullity and disregarded altogether.
Instead, many courts now take the position that the pleading filed by a non-attorney
should not be deemed a nullity (in an appeal, depriving the court of jurisdiction because a
proper appeal wasn't timely filed) unless the party knew that its action was improper. See
11
In re IFC Credit Corp., 663 F.3d 315, 320-21 (7th Cir. 2011) (concluding that there was
no jurisdictional defect when corporation's president, rather than attorney, signed the
initial pleading); Downtown Disposal Serv. v. City of Chicago, 2012 IL. 112040, ¶¶ 17-
38, 979 N.E.2d 50 (2012) (same).
That's the approach the Kansas Supreme Court took in Benson v. City of DeSoto,
212 Kan. 415, 422, 510 P.2d 1281 (1973). In that case, the trial court had dismissed a
city's appeal because it had been signed by three city council members who were not
attorneys. The court found that the dismissal was "overly technical" and concluded that
the filing should not be declared a nullity. 212 Kan. at 421-22. Kansas law is thus in
agreement with the other courts cited above that have concluded that a filing made by a
non-attorney should not be considered a nullity for jurisdictional purposes in a court
proceeding.
Here, though, the filing by non-attorney Hupp came in an administrative-agency
proceeding, not a court proceeding. Despite its name when it ruled in this case, the Court
of Tax Appeals was an administrative agency in the Executive Branch. See In re Protests
of Oakhill Land Co., 46 Kan. App. 2d 1105, 1113-14, 269 P.3d 876 (2012). Surely if an
appeal in court would not be thrown out solely because a non-lawyer signed the notice of
appeal, an appeal before an administrative agency, where less formal rules apply, should
not be, either.
We recognize that K.S.A. 77-515(c) provides that a state agency "may require a
corporation or other artificial person to participate by counsel." But that is a general
provision broadly applicable through the Kansas Administrative Procedure Act, while
K.S.A. 2011 Supp. 74-2433f is a specific statute governing small-claims appeals in the
Court of Tax Appeals. In the event of a conflict between a general statute and a more
specific one, the specific statute controls. See In re Adoption of H.C.H., 297 Kan. 819,
12
833, 304 P.3d 1271 (2013). A fair reading of K.S.A. 2011 Supp. 74-2433f(e) and (f),
taken together, is that certified public accountants and other tax representatives or agents
may both file the notice of appeal and appear for the taxpayer at the small-claims hearing.
The general statutory authority in K.S.A. 77-515(c) cannot override that legislative
directive.
We conclude there was nothing improper about Hupp's filing. When the legislature
provides that "[a] party may appear personally or may be represented by an attorney [or
by] . . . a tax representative or agent," K.S.A. 2011 Supp. 74-2433f(f), it surely has not
excluded non-attorneys from representing taxpayers in the small-claims division. The
decision of the Court of Tax Appeals dismissing the appeal of Rakestraw Brothers is
reversed, and the case is remanded for a hearing on the merits of that appeal.
13
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98 F.3d 1338
Walkerv.American Honda Motor Co.
NO. 96-20013
United States Court of Appeals,Fifth Circuit.
Sept 10, 1996
Appeal From: S.D.Tex., No. H-94-CV-2168
1
AFFIRMED.
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603 F.Supp. 1388 (1985)
Charles CAMPBELL, Plaintiff,
v.
Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
Civ. A. No. 84-0273.
United States District Court, M.D. Pennsylvania.
March 12, 1985.
*1389 Daniel Stern, New Bloomfield, Pa., for plaintiff.
Harry A. Nagle, Asst. U.S. Atty., Lewisburg, Pa., for defendant.
MEMORANDUM
HERMAN, District Judge.
Before this court is a motion for attorney fees and costs by plaintiff and his counsel for the counsel's services in pursuing plaintiff's social security disability action. Because we believe that neither party has adequately addressed or briefed the statutory bases for plaintiff's motion, we will set forth the applicable legal standards and apply them to this action.
*1390 I. APPLICABLE LAW
A. Social Security Act
Two statutory methods, which are not mutually exclusive, exist by which the attorney of a successful social security disability claimant can obtain compensation. Under the first method, when a claimant receives a favorable determination, counsel may obtain a fee not in excess of twenty-five percent of the total past-due benefits. 42 U.S.C. § 406. Subsection (a) authorizes the Secretary to certify the twenty-five percent maximum of past due benefits as fees for the counsel who successfully represents the claimant before the agency. Similarly, subsection (b) authorizes the court to make such a fee award for the attorney who successfully represents the claimant before the court.
In applying subsections (a) and (b), a question that has divided the courts is whether a district court can include an award of services performed before the Secretary in the court's award of attorney fees. The Fourth and First Circuits have held that the Secretary alone is empowered to make fee awards for services performed before the agency. Morris v. Social Security Administration, 689 F.2d 495 (4th Cir.1982); Gardner v. Menendez, 373 F.2d 488 (1st Cir.1967). The Sixth Circuit, however, has rejected this view. "[T]he Sixth Circuit, in Webb v. Richardson, 472 F.2d 529, 536 (6th Cir.1972) has held that `[t]he tribunal making [an attorney fees] award can consider all services performed by the attorney from the time the claim was filed with the Social Security Administration' until the claim is resolved and the award is made." Kemp v. Schweiker, 587 F.Supp. 778, 780 (W.D.Pa.1984). The United States District Court for the Western District of Pennsylvania has adopted the Sixth Circuit's construction as being easy to apply, promoting economy of effórt, and carrying out Congress' intent to limit contingency fee awards. Id.[1]
We concur with the Kemp court in finding that we are empowered to award counsel fees for services performed before the agency, in addition to those services performed before the court, as long as the total fee does not exceed twenty-five percent of the past-due benefits. Nevertheless, we will award such fees only when it is our judgment that results in the payment of back benefits. If the claimant succeeds at the agency level, either on initial application or upon remand by the district court, the claimant's counsel should look to the agency first for his fee award for his services performed before the Secretary. See Davis v. Secretary of Health, Education & Welfare, 320 F.Supp. 1293, 1296 (N.D. Miss.1970) (district court may award fees for services performed before it in addition to fees for administrative representation but counsel should apply to the Secretary first).
B. Equal Access to Justice Act
The second statutory provision that justifies an award of attorney fees is the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (Supp.1984).[2] Under the EAJA, a prevailing claimant may recover attorney fees from the Government if the Secretary's position was not substantially justified and no special circumstances make an award unjust. Tressler v. Heckler, 748 F.2d 146, 148-149 (3d Cir.1984).[3] Section *1391 406's provisions do not preclude an award of counsel fees under the EAJA. Watkins v. Harris, 566 F.Supp. 493 (E.D.Pa.1983); Smith v. Secretary of Health and Human Services No. 83-0182, slip op. at 3 (M.D.Pa. April 17, 1984).
II. ANALYSIS
Having reviewed the two pertinent statutory authorizations enabling the court to grant attorney fees and expenses, we turn to plaintiff's application for attorney's fees and expenses. Plaintiff filed his application pursuant to the EAJA, 28 U.S.C. § 2412, seeking to recover $3,172.50 in attorney fees for 42.3 hours[4] of services performed before the Secretary and this court.[5] Moreover, plaintiff's counsel asks that the balance, if any, of his fee application that is not granted by the court be approved by us to be paid from the twenty-five percent of the benefits withheld by the Secretary.
Plaintiff's fee motion is clumsily framed, which makes it difficult for us to review. Although plaintiff does not articulate his position, it is our opinion that plaintiff seeks to pay his counsel first from fees paid by the Government under the EAJA. The balance that is not awarded under the EAJA, if any, plaintiff then seeks to have paid from the past-due benefits withheld by the Secretary pursuant to 42 U.S.C. § 406(b). In response, the Secretary claims that plaintiff is not a prevailing party and that fees incurred for services performed before the agency are not compensable under the EAJA. The Secretary has failed to offer any comments regarding plaintiff's alternate request for fees paid from the past-due benefits fund.
Turning first to the claim for attorney fees pursuant to the EAJA, we reiterate that fees cannot be awarded under the EAJA for services performed before the Secretary. Miller v. United States of America, 753 F.2d 270, 275 n. 3 (3d Cir. 1985). From counsel's statement of hours expended, we find that counsel expended 16.9 hours in services before us. The Secretary has not contested the reasonableness of these hours and we do not find the amount to be unreasonable.
As to the Secretary's claim that plaintiff has not prevailed, we find no merit to this defense. Our prior order clearly directed that plaintiff was entitled to disability benefits from April 14, 1982. The only aspect of the case that was remanded to the Secretary was to determine if the disability had existed even earlier. Under the applicable standards, plaintiff was the prevailing party. Brown v. Secretary of Health & Human Services of The United States, 747 F.2d 878 (3d Cir.1984).
We observe that the Secretary has not argued that its position was substantially justified, which is its burden of proof. Dougherty v. Lehman, 711 F.2d 555 (3d Cir.1983). Additionally, as our prior memorandum indicates, the Secretary would be unable to justify its position in light of the overwhelming evidence in plaintiff's favor.
Finally, plaintiff's counsel seeks to be reimbursed at a rate of $75.00 per hour. Again, the Secretary has not contested the reasonableness of this hourly rate. In light of the experience of plaintiff's counsel and of the affidavits presented by counsel in support of his requested fee, we find the suggested hourly rate to be reasonable. See Cunningham v. City of McKeesport, 753 F.2d 262 (3d Cir.1985) (uncontradicted hourly rate that is within normal billing rate should not be decreased).
Thus, pursuant to the EAJA, we find that plaintiff's counsel is entitled to be reimbursed for the 16.9 hours he expended before this court at a rate of $75.00 per hour for a total of $1,267.50.
We now address plaintiff's request for attorney fees pursuant to 42 U.S.C. § 406(b). As noted above, we believe the better view of the law to be that we are *1392 able to award attorney fees for services performed before the Secretary, in addition to those services performed before the court, in accordance with § 406. See Webb, 472 F.2d at 536; Kemp, 587 F.Supp. at 780. Nevertheless, in appropriate circumstances, we will retain the discretion to refer the issue of attorney fees to the Secretary for her consideration because she may be better suited to determine the quality of representation and the reasonableness of a fee request.
In the present case, we believe we are capable to make a fee award for the services counsel performed both before the Secretary and us. However, because counsel has already been compensated for his services before us under the EAJA, we do not find a further award for district court services to be justified.
As to counsel's activities before the Secretary, counsel seeks reimbursement for 25.4 hours, at $75.00 per hour, in addition to $250.00 for an expert fee. First, the plain wording of the statute permits the entry of a judgment for a reasonable fee for representation. We see no provision for an additional award of costs or expenses and, thus, we will not award them.
From our review of counsel's time claims, we find the hours expended in preparation and activity before the agency to be reasonable. Having already found counsel's hourly rate to be reasonable, we will award a fee of $1,905.00 (25.4 hours × $75.00 per hour). This award is conditional upon its not exceeding twenty-five percent of plaintiff's past-due benefits.
An appropriate order will be entered.
NOTES
[1] Regardless of whether the district court can grant fees for services performed before the Secretary, at no point can the court and the Secretary collectively award attorney fees in excess of twenty-five percent of the claimant's past-due benefits. Morris, 689 F.2d at 497; Webb, 472 F.2d at 536; Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir.), cert. denied, 400 U.S. 830, 91 S.Ct. 60, 27 L.Ed.2d 60 (1970); Kemp, 587 F.Supp. at 781.
[2] While the EAJA expired on October 1, 1984, the Act remains a valid conduit for fee petitions since the Act continues to apply "through final disposition of any action commenced before the date of repeal." Pub.L., 98-481, Section 204(c).
[3] Work performed by counsel at the administrative level in a social security disability action, however, is not compensable under the EAJA. Miller v. United States, 753 F.2d 270, 275 n.3 (3d Cir.1985); Watkins v. Harris, 566 F.Supp. 493, 497 (E.D.Pa.1983).
[4] Of the 42.3 hours, 16.9 hours represented the time expended before this court.
[5] Plaintiff also seeks recovery for $250 in expert fees for a vocational specialist who testified at the administrative hearing.
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18‐1768
United States v. Greenberg
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 16th day of May, two thousand
nineteen.
PRESENT: DENNIS JACOBS,
PIERRE N. LEVAL,
Circuit Judges,
JESSE M. FURMAN,*
District Judge.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ 18‐1768
*Judge Jesse M. Furman, of the United States District Court for the Southern
District of New York, sitting by designation.
1
DAVID GREENBERG,
Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
FOR APPELLANT: Clinton W. Calhoun, III, Calhoun &
Lawrence, LLP, White Plains, NY.
FOR APPELLEE: Ilan Graff, Assistant United States
Attorney (Michael Gerber, Won S.
Shin, Assistant United States
Attorneys, of counsel), for Geoffrey
S. Berman, United States Attorney
for the Southern District of New
York, New York, NY.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Karas, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court be
AFFIRMED.
David Greenberg appeals from a judgment of the United States District
Court for the Southern District of New York (Karas, J.) sentencing him principally
to 180 months’ imprisonment after Greenberg pleaded guilty to one count of
conspiracy to distribute narcotics in violation of 21 U.S.C. § 846. On appeal,
Greenberg argues that he was entitled to relief from the applicable mandatory
minimum sentence pursuant to the “safety valve” provisions of 18 U.S.C.
§ 3553(f) and United States Sentencing Guidelines § 5C1.2, and that his sentence
was procedurally and substantively unreasonable. We assume the parties’
familiarity with the underlying facts, the procedural history, and the issues
presented for review.
In early 2013, Greenberg was surveilled by New York state police during
their investigation of drug trafficking in the Bronx. Investigators saw Greenberg
2
make about twenty visits to a suspected “stash house” in Newburgh, New York,
emerging each time with at least one paper bag. Greenberg was arrested in June
2013 after investigators observed him handing a paper bag to an individual in a
car who was arrested shortly thereafter and found to be in possession of more
than 100 grams of cocaine. After posting bail, Greenberg remained at liberty
until October 2013, during which time he cooperated with the government by,
inter alia, recording conversations and participating in controlled narcotics
purchases at the direction of the Federal Bureau of Investigation.
In September 2013, Greenberg pleaded guilty (pursuant to a cooperation
agreement) to conspiracy to traffic more than five kilograms of cocaine, more than
one kilogram of heroin, and quantities of marijuana, MDMA, oxycodone, and
PCP between 1995 and 2013. The cooperation agreement required that
Greenberg “truthfully and completely disclose all information with respect to the
activities of himself and others concerning all matters about which [the
government] inquire[d] of him,” and “commit no further crimes whatsoever.”
In October 2013, in large part due to Greenberg’s cooperation, the
government unsealed an indictment charging fourteen defendants, each of whom
was convicted. Shortly thereafter, the government learned that Greenberg
violated his cooperation agreement by, inter alia, failing to disclose to law
enforcement a stash house where narcotics, firearms, and ammunition were
stored; and instructing another investigative target, John Zgrodec, to dispose of
Greenberg’s firearm after his arrest. Greenberg confessed his misconduct and
was remanded to custody in October 2013. He subsequently informed the
government that Zgrodec kept a “duffel bag with guns” at the stash house.
The offense of Greenberg’s conviction carries a ten‐year mandatory
minimum sentence. Prior to sentencing, Greenberg’s counsel advised the
government that he considered Greenberg potentially eligible for relief from the
mandatory minimum sentence pursuant to the “safety valve” provisions of 18
U.S.C. § 3553(f) and United States Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”) § 5C1.2. The government responded that Greenberg’s possession
of a firearm as part of the offense conduct disqualified him from safety valve
relief. Nevertheless, Greenberg participated in a “safety valve proffer” during
3
which he informed the government that the duffel bag at the stash house
contained an assault rifle, and that Greenberg also kept a handgun‐‐which he
claims was inoperable‐‐at the stash house.
At sentencing, the district court determined that Greenberg was ineligible
for safety valve relief because he possessed a firearm in connection with the
offense of conviction. The court imposed a sentence principally of 180 months’
imprisonment.
On appeal, Greenberg argues that the district court erred in denying safety
valve relief, because: (A) it incorrectly adopted a per se rule that constructive
possession of a firearm in a drug stash house qualifies as possession “in
connection with” a narcotics conspiracy; and (B) there was no proof or finding
that the firearm at issue was possessed “in connection with” Greenberg’s offense
of conviction. He additionally argues that his sentence was procedurally and
substantively unreasonable.
We review the sentencing court’s factual findings for clear error, but we
review the court’s interpretation of the safety valve provisions de novo. United
States v. Ortiz, 136 F.3d 882, 883 (2d Cir. 1997). Review for procedural and
substantive reasonableness is akin to a “deferential abuse‐of‐discretion
standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (in banc)
(quoting Gall v. United States, 552 U.S. 38, 41 (2007)). However, “[a] sentencing
court’s legal application of the Guidelines is reviewed de novo.” United States
v. Desnoyers, 708 F.3d 378, 385 (2d Cir. 2013).
1. The safety valve provisions set forth in 18 U.S.C. § 3553(f) and
U.S.S.G. § 5C1.2 instruct a district court to sentence without regard to an
applicable statutory mandatory minimum if the defendant establishes that:
(i) the defendant has no more than one criminal‐history point; (ii) the
defendant did not use violence or credible threats of violence or
possess a firearm or other dangerous weapon in connection with the
offense; (iii) no one was killed or seriously hurt as a result of the
offense; (iv) the defendant was not an organizer, leader, manager, or
4
supervisor in the offense and was not engaged in a continuing
criminal enterprise; and (v) not later than the time of the sentencing
hearing, the defendant has truthfully provided to the Government all
information and evidence the defendant has concerning the offense
[or offenses that were part of the same course of conduct or of a
common scheme or plan].
Ortiz, 136 F.3d at 883 (internal quotation marks and alterations omitted); U.S.S.G.
§ 5C1.2; 18 U.S.C. § 3553(f). The burden is on the defendant to prove entitlement
to safety‐valve relief by a preponderance of the evidence. See United States v.
Jimenez, 451 F.3d 97, 102 (2d Cir. 2006).
For a firearm to be used “in connection with the offense” under § 5C1.2,
thereby precluding safety valve relief, the firearm “at least must facilitate, or have
the potential of facilitating, the drug trafficking offense.” United States v.
DeJesus, 219 F.3d 117, 122 (2d Cir. 2000) (quoting Smith v. United States, 508 U.S.
223, 238 (1993)). For purposes of the safety valve, possession includes
“constructive possession, at least where the defendant keeps the weapon under
his personal dominion and control.” United States v. Herrera, 446 F.3d 283, 287
(2d Cir. 2006).
The district court found Greenberg ineligible for safety valve relief because
he admittedly had constructive possession of the rifle at the stash house, which
(as the court emphasized) was “ground zero of the drug operation” and where
Greenberg had access to the rifle. Greenberg argues that the district court thus
adopted a per se rule that a firearm possessed at a stash house is possessed “in
connection with” a drug offense. Such a categorical rule would be inconsistent
with the principle that “the firearm must have some purpose or effect with
respect to the drug trafficking crime; its presence or involvement cannot be the
result of accident or coincidence.” See DeJesus, 219 F.3d at 122 (quoting Smith,
508 U.S. at 238). We reject the argument. The district court did not adopt such a
rule. To the contrary, the court indicated at sentencing that the analysis might
have been different if the rifle had been stored in a less accessible place, such as
the attic or garage of the stash house.
5
In any event, the court’s factual finding that Greenberg’s account of the
firearms was inconsistent and lacked credibility was not clearly erroneous.
Greenberg argued that his possession of the rifle was unconnected to the narcotics
conspiracy because the rifle was merely stored in the stash house by Zgrodec and
was not there for the purpose of furthering the drug business. However, the
district court expressly declined to credit Greenberg’s factual claims, finding that
they were undermined by his inconsistent representations regarding the firearms
in the stash house. As the district court observed, Greenberg gave “a number of
different versions about how many guns were in the bag,” “whether [a] handgun
was at the stash house . . . or just the rifle,” and “when he disposed of the
handgun.” Accordingly, we see no clear error in the district court’s finding that
Greenberg’s factual claims were insufficient to show entitlement to safety valve
relief.
2. “A district court commits procedural error where it fails to calculate
(or improperly calculates) the Sentencing Guidelines range, treats the Sentencing
Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, selects
a sentence based on clearly erroneous facts, or fails adequately to explain the
chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012)
(citing Gall, 552 U.S. at 51).
Greenberg argues that his sentence was procedurally unreasonable because
the district court erroneously denied him safety valve relief, and accordingly
denied him a two‐level offense level reduction under U.S.S.G. § 2D1.1(b)(18).
Because the district court did not err in finding that Greenberg failed to establish
his entitlement to safety valve relief, the district court did not commit procedural
error by declining to grant a two‐level reduction pursuant to § 2D1.1(b)(18).
3. “In examining the substantive reasonableness of a sentence, we
review the length of the sentence imposed to determine whether it cannot be
located within the range of permissible decisions.” United States v. Matta, 777
F.3d 116, 124 (2d Cir. 2015) (internal quotation marks omitted). We will “set
aside a district court’s substantive determination only in exceptional cases.”
Cavera, 550 F.3d at 190 (emphasis omitted).
6
Greenberg argues that the principal motivating factor for his 180‐month
sentence was his breach of the cooperation agreement, and that this factor was
insufficient to justify his sentence, which was far higher than it would have been
had he complied with the cooperation agreement. To support the notion that his
sentence was greater than necessary, Greenberg cites his substantial assistance to
the government, the fact that his crimes did not involve violence, and his
rehabilitation while incarcerated.
The transcript of Greenberg’s sentencing hearing demonstrates that the
district court fully considered the relevant sentencing factors in imposing
Greenberg’s sentence. The court discussed, inter alia: the seriousness of
Greenberg’s narcotics conspiracy and his prior criminal history; the nonviolent
nature of his conduct; the substantial cooperation he provided the government;
the failure to comply with his cooperation agreement and the importance of
protecting the integrity of the cooperation process; and letters submitted to the
court attesting to his character. The district court clearly gave thoughtful
consideration to the relevant sentencing factors when concluding that a
below‐Guidelines sentence of 180 months was appropriate, and we will not
“substitute our own judgment for the district court’s on the question of what is
sufficient to meet the § 3553(a) considerations.” Cavera, 550 F.3d at 189.
We have considered Greenberg’s remaining arguments and conclude they
are without merit. Accordingly, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
7
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 26, 2010
MIKE SETTLE v. DAVID MILLS, WARDEN
Direct Appeal from the Criminal Court for Morgan County
No. 2010-CR-51 E. Eugene Eblen, Judge
No. E2010-00945-CCA-R3-HC - Filed December 17, 2010
The pro se petitioner, Mike Settle, appeals the summary dismissal of his petition for writ of
habeas corpus relief. On appeal, he argues that he received ineffective assistance of counsel
and that his sentences were imposed in violation of the Interstate Compact on Detainers.
After careful review, we affirm the summary dismissal of the petition for writ of habeas
corpus relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J ERRY L. S MITH
and N ORMA M CG EE O GLE, JJ., joined.
Mike Settle, Wartburg, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; and
Russell Johnson, District Attorney General, for the appellee, State of Tennessee.
OPINION
The petitioner contends, on appeal, that his convictions from the Madison County
Circuit Court on January 5, 2001, for especially aggravated kidnapping, felony escape,
aggravated robbery, and two counts of aggravated assault should be overturned because he
was not tried within one hundred-eighty days. The petitioner was serving a sentence when
he was charged with the underlying offenses after assaulting and escaping from a corrections
officer, taking a hostage, and leading police on a high-speed chase. While the underlying
offenses were pending in Madison County, the petitioner was moved from state custody to
federal custody so he could be prosecuted on a federal charge. The petitioner’s return to state
custody was delayed, but the record reflects that he entered guilty pleas to the Madison
County charges within one hundred-eighty days of his return to state custody.
Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas
corpus relief. Tennessee Code Annotated section 29-21-101 et seq. codifies the applicable
procedures for seeking a writ. While there is no statutory time limit in which to file for
habeas corpus relief, Tennessee law provides very narrow grounds upon which such relief
may be granted. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A habeas corpus petition
may be used only to contest void judgments which are facially invalid because (1) the
convicting court was without jurisdiction or authority to sentence a petitioner; or (2) a
petitioner’s sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).
On appeal, the petitioner contends that his judgments from Madison County are void
because he received ineffective assistance of counsel. However, it is well settled that this
issue is not a proper basis for habeas corpus relief. Lutrell v. State, 644 S.W.2d 408, 409-10
(Tenn. Crim. App. 1982).
Next, the petitioner argues that his judgments should be overturned based on the anti-
shuttling provision of the Interstate Compact on Detainers. Tennessee Code Annotated
section 40-31-101 codifies the Interstate Compact on Detainers. The purpose of the compact
is to ensure the “expeditious and orderly disposition” of charges pending against a prisoner
in multiple jurisdictions. T.C.A. § 40-31-101, Article I. Pursuant to the Compact, if the
prisoner has made a request for a final disposition of the pending indictment, he should be
tried within one hundred-eighty days after his delivery to the appropriate court where charges
are pending.
The State argues that, when the petitioner entered his plea, he waived any claim of a
void judgment pursuant to the Interstate Compact on Detainers. This court has previously
concluded that a violation of the Interstate Compact on Detainers was waived by the
petitioner’s guilty plea. The general rule has long been firmly established that a plea of guilty,
understandingly and voluntarily entered on the advice of counsel, constitutes an admission
of all facts alleged and a waiver of all non-jurisdictional and procedural defects and
constitutional infirmities, if any, in any prior stage of the proceeding. Terrance Lowdermilk
v. State, No. E2007-00872-CCA-R3-HC, 2008 Tenn. Crim. App. LEXIS 14, **8-9 (Tenn.
Crim. App. Jan. 10, 2008) (citing Lawrence v. Mullins, 224 Tenn. 9, 449 S.W.2d 224, 229
(Tenn. 1969)). Therefore, the petitioner is not entitled to relief on this issue.
The record is clear that the petitioner was charged with the Madison County crimes
in 1999, and that they did not reach a final disposition until 2001. However, the record does
not reflect that the petitioner requested a final disposition of the charges that was ignored.
The record does reflect that the State filed a motion on June 14, 2000, to return the petitioner
for disposition of the charges. The docket entries from Madison County included in the
record reflect that the petitioner was still in federal custody on August 22, 2000. He was
-2-
returned for disposition sometime after August 22, 2000, and his cases were disposed with
his entry of guilty pleas on January 12, 2001, less than one hundred-eighty days after he was
returned to the custody of the court.
Conclusion
Based on the foregoing and the record as a whole, we affirm the summary dismissal
from the habeas corpus court.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
-3-
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431 F.Supp. 906 (1977)
In re ASBESTOS AND ASBESTOS INSULATION MATERIAL PRODUCTS LIABILITY LITIGATION.
No. 269.
Judicial Panel on Multidistrict Litigation.
April 7, 1977.
*907 Before JOHN MINOR WISDOM, Chairman, and EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, III, STANLEY A. WEIGEL and ANDREW A. CAFFREY, Judges of the Panel.
OPINION AND ORDER
PER CURIAM.
This litigation consists of 103 actions pending in nineteen districts. The distribution of these actions is as follows:
Northern District of Ohio 23
Southern District of Texas 20
District of Connecticut 16
Eastern District of Texas 12
District of South Carolina 7
District of New Jersey 6
Southern District of Florida 4
Eastern District of Illinois 2
Eastern District of Michigan 2
District of Montana 2
Eastern District of Tennessee 1
Western District of Pennsylvania 1
Eastern District of Pennsylvania 1
Eastern District of Missouri 1
Eastern District of Louisiana 1
District of Rhode Island 1
Southern District of Indiana 1
District of Maryland 1
Southern District of West Virginia 1
The 103 actions have been brought by workers who were exposed to asbestos dust in the course of their employment, or by persons associated with those workers, either as co-workers or as members of the family. Many diverse types of vocational exposure are involved in these actions.[1] Plaintiffs in most of the actions are or were workers at plants which produce asbestos *908 products (the factory worker actions), or tradesmen who work with a variety of asbestos products (the tradesman actions). A majority of the tradesmen are installers of insulation products containing asbestos. Ninety-four of the actions are tradesman actions and nine of the actions are factory worker actions.
Six of the actions were brought as class actions on behalf of employees at three different plants that manufacture or once manufactured asbestos products. Three of the actions in the Eastern District of Texas were brought as class actions on behalf of employees at a PPG Industries plant in Tyler, Texas. Class certification has been denied in these three actions. The other three purported class actions are pending in the District of New Jersey, see note 1, supra. Two are brought on behalf of employees of Raybestos Manhattan, Inc. at a now defunct plant in Passaic, New Jersey. The other action is brought on behalf of employees at a Johns-Manville, Inc. plant in Manville, New Jersey. Class certification is still pending in the New Jersey actions.
There are a total of 80 defendants in the 103 actions. The majority of the defendants are manufacturers or distributors of various asbestos products. Johns-Manville is a defendant in 91 of the actions.[2] Seven other defendant corporations are named in more than 50 actions, seven others are named in more than 30 actions, and ten others are named in ten or more actions.
The complaints in the actions generally allege that the defendants wrongfully caused the plaintiffs to be exposed to asbestos dust and asbestos fibers over a period of time, as a result of which the plaintiffs have contracted or are in danger of contracting asbestosis, mesothelioma, or other disorders. Alleged liability is based on the principles of strict liability, negligence, and/or breach of warranties of merchantability and/or fitness. It is also alleged that the defendants knew or should have known of the dangers to persons exposed to asbestos products,[3] but that defendants failed to
Actions
District Involved Type of Vocational Exposure
3 One purported class action on behalf of employees
of Johns-Manville plant in Manville, N.J.; two individual
actions brought by workers at that plant
1 Truck driver who delivered products produced at a
Johns-Manville plant
---------------------------------------------------------------------------------------------------
D. South Carolina 7 Individual insulation workers
---------------------------------------------------------------------------------------------------
S.D. Florida 4 Individual insulation installers
---------------------------------------------------------------------------------------------------
E.D. Louisiana 1 Worker in plant manufacturing asbestos floor tile
---------------------------------------------------------------------------------------------------
E.D. Pennsylvania 1 Salesman of insulation products for Johns-Manville
---------------------------------------------------------------------------------------------------
W.D. Pennsylvania 1 Employee of distributor of insulation products
---------------------------------------------------------------------------------------------------
E.D. Michigan 1 Employee of distributor of insulation products
1 Individual insulation worker
---------------------------------------------------------------------------------------------------
E.D. Missouri 1 Individual insulation worker
---------------------------------------------------------------------------------------------------
E.D. Tennessee 1 Individual insulation worker
---------------------------------------------------------------------------------------------------
E.D. Illinois 2 Individual insulation workers
---------------------------------------------------------------------------------------------------
D. Montana 2 Individual insulation workers
---------------------------------------------------------------------------------------------------
D. Rhode Island 1 Individual insulation worker
---------------------------------------------------------------------------------------------------
D. Maryland 1 Individual insulation worker
---------------------------------------------------------------------------------------------------
S.D. Indiana 1 Individual insulation worker
---------------------------------------------------------------------------------------------------
S.D. West Virginia 1 Individual insulation worker
---------------------------------------------------------------------------------------------------
warn the plaintiffs of these dangers; failed to provide adequate precautions, safety devices, or wearing apparel to prevent exposure; and/or failed to establish reasonable standards for exposure.
Pursuant to 28 U.S.C. § 1407(c)(i) and Rule 8, R.P.J.P.M.L., 65 F.R.D. 253, 258-59 (1975), the Panel issued an order to show cause why all these actions should not be transferred to a single district for coordinated or consolidated pretrial proceedings.[4] All except one[5] of the 55 respondents to the Panel's order to show cause oppose transfer in this litigation. The primary arguments presented by the parties in opposition to transfer are the following:
(1) Many of the actions have been pending for several years and are well advanced in discovery. In several actions a discovery cutoff date or a trial date has been set. Transfer would merely delay the progress of discovery or the trial of those actions.
(2) In several districts, arrangements for voluntarily sharing the common aspects of discovery have been made among the parties to the actions pending within those districts. Transfer would cause unnecessary additional expenses which can be avoided by voluntary coordination of efforts among the parties.
(3) There is a lack of commonality among the parties in these actions.
(a) There is considerable variation in named defendants from action to action. No defendant or category of defendants is a party to all actions. Defendants include manufacturers of asbestos products, distributors of asbestos products, insurance companies, doctors, suppliers of raw asbestos fibers, trade associations, trade unions, and the United States of America.
(b) The plaintiffs are not a homogeneous group. They include insulation workers involved in the installation or removal of insulation products, workers in factories manufacturing asbestos products, co-workers, members of workers' families, and persons living in the proximity of asbestos manufacturing facilities.
(4) Although a common thread among these actions is exposure to some type of asbestos or asbestos product, the circumstances of exposure are predominantly individual to each action. The variables include the following:
(a) type of vocational exposure (e. g. miner, transporter, factory worker, or tradesman);
(b) products to which exposed;
(c) conditions of exposure;
(d) duration and intensity of exposure;
(e) safety precautions taken by the worker;
(f) medical, personal, employment, and family history of the worker over the long periods of exposure involved (up to 50 years).
Regarding the factory workers and tradesmen, the two basic types of vocational exposure involved, the exposure of factory workers was to 100% raw asbestos, while the exposure of tradesmen was to products which generally contain about 15% asbestos.
(5) The question of causation is an individual issue. Several different types of disorders are alleged, including asbestosis, lung cancer, peritoneal mesothelioma, mesothelioma of the lining of the stomach or gastric organs, cancer of the esophagus, cancer of the colon, and cancer of the rectum. The question of whether particular disorders may be attributable to exposure to a particular type of asbestos is a matter of dispute among medical authorities. Causation of an individual's disability by asbestos *910 exposure will necessarily be related to the individual factors of length, intensity, and type of vocational exposure, and to the physical characteristics of the person. A considerable amount of technical medical evidence such as diagnoses, x-rays and tissue microscopies will be involved in each action. This evidence is of an individual nature.
Significant differences in causation will exist between the factory worker actions and the tradesman actions. Medical and scientific knowledge concerning the two types of exposure is different. The tradesmen will have been exposed to a wider variety of asbestos products, and will need to prove which products caused their disabilities.
(6) The liability of each defendant in each action is predominantly an individual question. The variables will include the defendants' knowledge at a particular time of the health risks involved in exposure to asbestos, the adequacy of any product testing by the defendant manufacturers, the sufficiency of any warnings or directions for use of products, and the issue of assumption of risk by the plaintiffs. Other variables will include the materials used, the method of manufacture, and the period of production.
(7) Although a common aspect among these actions is the state of medical and scientific knowledge at a particular time regarding the health hazards posed by exposure to asbestos, this knowledge can be readily discerned from literature which is easily available in most medical libraries. The common need for this literature is therefore not a significant justification for transfer.
(8) Local issues will predominate in the discovery process. The medical, personnel, and product use records of each individual will be found locally. Liability in these actions will be based on state substantive law. As a result, transfer would not promote the parties' and witnesses' convenience regarding discovery.
(9) There is not a significant possibility of inconsistent or overlapping class action determinations since any certifiable class could include only those persons who were exposed to asbestos in a specific plant or in the service of a particular employer. The classes alleged to date are properly restricted, and do not overlap in any respect.
Although we recognize the existence of some common questions of fact among these actions, we find that transfer under Section 1407 would not necessarily serve the convenience of the parties and witnesses or promote the just and efficient conduct of the litigation. Accordingly, the order to show cause is vacated.
The virtually unanimous opposition of the parties to transfer, though a very persuasive factor in our decision to deny transfer in this litigation, is not by itself determinative of the question of transfer under Section 1407. In an appropriate situation, the Panel has the power to order transfer in multidistrict litigation even if all parties are opposed to transfer.
We are, however, persuaded by the parties' arguments in this particular litigation. On the basis of the record before us, the only questions of fact common to all actions relate to the state of scientific and medical knowledge at different points in time concerning the risks of exposure to asbestos. The pertinent literature on this subject is readily available. See generally Borel v. Fibreboard Paper Products Corp., supra note 3, 493 F.2d at 1083-86. Many factual questions unique to each action or to a group of actions already pending in a single district clearly predominate, and therefore transfer is unwarranted. See In re Fotomat Franchisee Litigation, 394 F.Supp. 798, 799 (Jud.Pan.Mult.Lit.1975). Furthermore, many of these actions already are well advanced. Some of the actions have been pending for up to four years, and trial dates or discovery cutoff dates have been set in several actions. Under these circumstances, transfer would not further the purposes of Section 1407. See In re Braniff Airways, Inc. Employment Practices Litigation, 411 F.Supp. 798, 800 (Jud.Pan.Mult.Lit.1976).
IT IS THEREFORE ORDERED that the order to show cause regarding the actions *911 listed on the following Schedule A be, and the same hereby is, vacated.
SCHEDULE A
Northern District of Ohio
Evelyn Roderman, etc. v. Combustion Civil Action No.
Engineering, Inc., et al. C72-390
Betty Sedlock, etc. v. Combustion Civil Action No.
Engineering, Inc., et al. C72-395
Rose Ann Ricci, etc. v. Combustion Civil Action No.
Engineering, Inc., et al. C72-507
Mary C. Kearns, etc. v. Combustion Civil Action No.
Engineering, Inc., et al. C73-70
Mary Muntean, etc. v. Combustion Civil Action No.
Engineering, Inc., et al. C73-199
Elmer J. Measor v. Combustion Engineering, Civil Action No.
Inc., et al. C73-238
John P. Burke v. Combustion Engineering, Civil Action No.
Inc., et al. C73-239
James E. McLaughlin v. Combustion Civil Action No.
Engineering, Inc., et al. C74-923
James P. McGinnis v. Combustion Civil Action No.
Engineering, Inc., et al. C74-1077
Nellie V. Breedlove, etc. v. Combustion Civil Action No.
Engineering, Inc., et al. C74-1130
Mary Rita McNeeley, etc. v. Combustion Civil Action No.
Engineering, Inc., et al. C75-74
Reba Darlene Chaddock, etc. v. Civil Action No.
Combustion Engineering, Inc., et al. C75-102
Elbert H. Steele v. Combustion Engineering, Civil Action No.
Inc., et al. C75-359
Harry T. McLaughlin v. Combustion Civil Action No.
Engineering, Inc., et al. C75-377
Robert J. Harter v. Combustion Engineering, Civil Action No.
Inc., et al. C75-452
Kenneth J. Murphy v. Combustion Civil Action No.
Engineering, Inc., et al. C75-453
Roy E. Mellott v. Johns-Manville Civil Action No.
Products Corp., et al. C75-1058
Wilfred R. Baumgartner v. Combustion Civil Action No.
Engineering, Inc., et al. C75-1057
Jesse Ellender Starnes, etc. v. Combustion Civil Action No.
Engineering, Inc., et al. C76-46
John McKimmie v. Combustion Engineering, Civil Action No.
Inc., et al. C76-180
Frank R. Allore v. Combustion Engineering, Civil Action No.
et al. C76-447
Billy Joe Starnes v. Combustion Civil Action No.
Engineering, et al. C76-882
Earl Jackson Grice v. Combustion Civil Action No.
Engineering, et al. C76-883
Southern District of Texas
Claude A. Dunn v. Johns-Manville Civil Action No.
International Corp., et al. 73-H-1072
William D. Luker, Sr., et al. v. Civil Action No.
Johns-Manville International Corp., 75-H-342
et al.
Olga Ann Strickland, et al. v. Johns-Manville Civil Action No.
International Corp., et al. 75-H-492
F. W. Farrar v. Standard Asbestos Civil Action No.
Manf. & Insulating Co., et al. 75-H-862
E. A. Kyburz, Jr. v. Standard Asbestos Civil Action No.
Manf. & Insulating Co., et al. 75-H-863
R. L. Dickey v. Standard Asbestos Civil Action No.
Manf. & Insulating Co., et al. 75-H-864
F. Wesberry v. Standard Asbestos Civil Action No.
Manf. & Insulating Co., et al. 75-H-865
E. B. Byerly v. Standard Asbestos Civil Action No.
Manf. & Insulating Co., et al. 75-H-866
V. P. Viator v. Standard Asbestos Civil Action No.
Manf. & Insulating Co., et al. 75-H-867
A. J. Gaspard v. Standard Asbestos Civil Action No.
Manf. & Insulating Co., et al. 75-H-868
J. B. Freeman v. Standard Asbestos Civil Action No.
Manf. & Insulating Co., et al. 75-H-869
A. J. Burke, Jr. v. Standard Asbestos Civil Action No.
Manf. & Insulating Co., et al. 75-H-870
S. Trahan v. Standard Asbestos Civil Action No.
Manf. & Insulating Co., et al. 75-H-905
H. J. Plitt v. Standard Asbestos Civil Action No.
Manf. & Insulating Co., et al. 75-H-906
H. P. Kirchner v. Standard Asbestos Civil Action No.
Manf. & Insulating Co., et al. 75-H-1634
J. F. Holton v. Standard Asbestos Civil Action No.
Manf. & Insulating Co., et al. 75-H-1635
James J. Rosenquest v. Standard Civil Action No.
Asbestos Manf. & Insulating Co., 76-H-115
et al.
John R. Wesberry v. Standard Asbestos Civil Action No.
Manf. & Insulating Co., et 76-H-116
al.
Clarence Simpson v. Owens Corning Civil Action No.
Fibreglas, et al. 76-H-1499
Ruby Stancil, et al. v. Southern Civil Action No.
Asbestos Co., et al. 74-H-1069
District of Connecticut
Sammie L. Gray, etc. v. General Civil Action No.
Dynamics Corp., et al. H75-327
Nicholas J. Gencarelle v. Johns-Manville Civil Action No.
Corp., et al. H76-53
Robert N. Ward v. Johns-Manville Civil Action No.
Corp., et al. H76-54
Allen D. Eleazer v. Johns-Manville Civil Action No.
Corp., et al. H76-55
Albert J. Demers v. Johns-Manville Civil Action No.
Corp., et al. H76-56
Harry E. Sjostrom v. Johns-Manville Civil Action No.
Corp., et al. H76-57
Edward C. Duzant v. Johns-Manville Civil Action No.
Corp., et al. H76-58
Charles C. Keeler v. Johns-Manville Civil Action No.
Corp., et al. H76-59
Henrietta C. Brown, etc. v. Johns-Manville Civil Action No.
Corp., et al. H76-60
Bennie L. Glover v. Johns-Manville Civil Action No.
Corp., et al. H76-61
Kim A. Brown v. General Dynamics Civil Action No.
Corp., et al. H76-325
Vivian L. Ridenour, etc. v. Johns-Manville Civil Action No.
Corp., et al. H76-326
Frederick Paul v. Johns-Manville Civil Action No.
Corp., et al. H76-332
*912
Omar Allvord v. Johns-Manville Civil Action No.
Corp., et al. H76-333
Edwin W. C. King v. Johns-Manville Civil Action No.
Corp., et al. H76-337
George W. Poole v. Johns-Manville Civil Action No.
Corp., et al. H76-338
Eastern District of Texas
Elizabeth Matthews, et al. v. Fibreboard Civil Action No.
Paper Products Corp. B073-309-CA
Herman Yandle, et al. v. PPG Industries, Civil Action No.
Inc., et al. TY-74-3-CA
Lester Kay v. PPG Industries, Inc., Civil Action No.
et al. TY-74-13-CA
Corney Jeane v. Fibreboard Corp., Civil Action No.
et al. B-74-337-CA
William B. McNeece, Jr., et al. v. Civil Action No.
United States of America TY-75-22-CA
Howard W. Boyd v. Owens-Corning Civil Action No.
Fibreglas Corp., et al. S-75-58-CA
Sam Dolce v. Fibreboard Paper Civil Action No.
Corp., et al. B-75-191-CA
Edward J. Palermo v. Fibreboard Civil Action No.
Paper Products Corp., et al. B-75-192-CA
Claude J. Talbot v. Fibreboard Paper Civil Action No.
Products Corp., et al. B-75-391-CA
Preston A. Vice v. Fibreboard Corp., Civil Action No.
et al. B-76-115-CA
A. E. Condray v. Fibreboard Corp., Civil Action No.
et al. B-76-108-CA
Clifton C. Corkran v. Fibreboard Civil Action No.
Corp., et al. B-76-128-CA
District of South Carolina
Donald Brown Clarry v. Combustion Civil Action No.
Engineering, et al. 76-1162
Wayne B. Duncan v. Combustion Civil Action No.
Engineering, et al. 76-1249
Margaret F. Taylor v. Combustion Civil Action No.
Engineering, et al. 76-1247
Sara M. Taylor v. Combustion Engineering, Civil Action No.
et al. 76-1241
Robert W. Quattelbaum v. Combustion Civil Action No.
Engineering, et al. 76-1239
Bobby R. Taylor v. Combustion Engineering, Civil Action No.
et al. 76-1210
Harold Lee Taylor v. Combustion Civil Action No.
Engineering, et al. 76-1208
District of New Jersey
Charlie Lee Austin, et al. v. Bell Civil Action No.
Asbestos Mines Co., et al. 75-754
Catherine Mesaros, etc. v. Johns-Manville Civil Action No.
Corp., et al. 75-1049
Lonzo Murray, et al. v. Bell's Asbestos, Civil Action No.
et al. 75-1475
Lillian Cicero, etc. v. Johns-Manville Civil Action No.
Products Corp., et al. 76-1488
Jennie Consalvo, etc. v. Johns-Manville Civil Action No.
Products Corp. 75-1641
John Argeskie, et al. v. Johns-Manville Civil Action No.
Products Corp., et al. 76-735
Southern District of Florida
Evellio Lopez, et al. v. Armstrong Civil Action No.
Cork Co., et al. 75-1365-Civ-JLK
Charles Bender v. Armstrong Cork Civil Action No.
Co., et al. 75-2578-Civ-JLK
Moses Joyner v. Armstrong Cork Civil Action No.
Co., et al. 75-2581-Civ-JLK
Ruth Strange Hutson, etc. v. Armstrong Civil Action No.
Cork Co., et al. 76-53-Civ-JLK
Eastern District of Illinois
Emma Ryder, etc. v. Johns-Manville Civil Action No.
Products Corp. 763110
Hattie Phelps, etc. v. Combustion Civil Action No.
Engineering Inc., et al. 764012
Eastern District of Michigan
Thelma E. Carr, etc. v. Combustion Civil Action No.
Engineering Inc., et al. 75-72332
Wayne Johnson v. Johns-Manville Civil Action No.
Products Corp. 670876
District of Montana
Raymond Burownes v. Johns-Manville Civil Action No.
Products Corp. CV-76-0060-BLG
Norman Nicholas v. Johns-Manville Civil Action No.
Products Corp. CV-76-91-BLG
Eastern District of Tennessee
Jakie R. Starnes, et al. v. Combustion Civil Action No.
Engineering, Inc., et al. 75-122
Western District of Pennsylvania
Richard Giese, et al. v. Raybestos Civil Action No.
Manhatten, Inc. 75-1385
Eastern District of Pennsylvania
Richard J. Pastor, etc. v. Johns-Manville Civil Action No.
Corp., et al. 75-3282
Eastern District of Missouri
Joseph Tretter v. Johns-Manville Civil Action No.
Corp., et al. 76-86C(1)
Eastern District of Louisiana
Clifton W. Jones, Sr. v. W. R. Goodwin, Civil Action No.
etc., et al. 75-2165 Sec. G
District of Rhode Island
Doris A. Graham, etc. v. Johns-Manville Civil Action No.
Corp., et al. 76-0090
Southern District of Indiana
Elizabeth J. Hallinan, etc. v. Combustion Civil Action No.
Engineering, Inc., et al. EV75-25-C
District of Maryland
Gordon C. Muylert, etc. v. Atlas Civil Action No.
Asbestos Corp. N76-1339
Southern District of West Virginia
Fannie Wilks, etc. v. Combustion Civil Action No.
Engineering, Inc., et al. 75-0023-H
NOTES
[1] The specific type of vocational exposure alleged in each action or group of actions is as follows:
Actions
District Involved Type of Vocational Exposure
S.D. Texas 19 Individual tradesmeninsulation workers using a
variety of asbestos products over the course of up to
40 years
1 Weaver in textile mill producing fabrics from asbestos
fibers
----------------------------------------------------------------------------------------------------
E.D. Texas 9 Individual tradesmeninsulation workers using a
variety of insulation products over the course of up
to 50 years
3 Employees at PPG Plant in Tyler, Texas producing
asbestos products
---------------------------------------------------------------------------------------------------------
N.D. Ohio 23 Individual tradesmenmechanics exposed to asbestos
and asbestos insulation materials over periods of
up to 40 years.
----------------------------------------------------------------------------------------------------------
D. Connecticut 16 Employees working as or with pipelaggers in boat
construction and repair yard of General Dynamics
Corp.
----------------------------------------------------------------------------------------------------------
D. New Jersey 2 Purported class actions on behalf of 2500 workers
at a now defunct Raybestos-Manhattan plant in
Passaic, N.J., which manufactured asbestos products
[2] In addition, Johns-Manville reports that it is a defendant in 73 state court actions arising from exposure to asbestos.
[3] A discussion of the state of medical and scientific knowledge relating to the risks associated with exposure to asbestos in an occupational context may be found in Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1083-86 (5th Cir. 1973).
[4] Since the Panel hearing on this matter, the Panel has been advised that additional actions involving asbestos have been filed.
[5] That party, Defense Apparel, Inc., a defendant in two actions, merely withdrew a previously-expressed opposition to transfer; it did not present any arguments in favor of transfer.
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Affirmed and Opinion filed June 6, 2002
Affirmed and Opinion filed June 6, 2002.
In The
Fourteenth Court of Appeals
____________
NO. 14-01-01221-CR
____________
CHARLES ALBERT JACKSON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On
Appeal from the 23rd District Court
Brazoria County, Texas
Trial
Court Cause No. 35,170
M E M O R A N D U M O
P I N I O N
Appellant entered a plea of guilty to the offense of injury
to a child. The trial court placed
appellant on deferred adjudication probation.
On April 3, 2001, the State filed a motion to adjudicate guilt. Following a hearing, the trial court granted
the State=s motion and adjudicated appellant
guilty. On September 14, 2001, the trial
court sentenced appellant to confinement for six years in the Institutional
Division of the Texas Department of Criminal Justice. Appellant filed a pro se notice of appeal.
Appellant=s appointed counsel filed a brief in which he concludes that
the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by
presenting a professional evaluation of the record demonstrating why there are
no arguable grounds to be advanced. See
High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).
A copy of counsel=s brief was delivered to
appellant. Appellant was advised of the
right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503,
510 (Tex. Crim. App. 1991). As of this
date, no pro se response has been filed.
We have carefully reviewed the record and counsel=s brief and agree that the appeal is
wholly frivolous and without merit.
Further, we find no reversible error in the record. A discussion of the brief would add nothing
to the jurisprudence of the state.
Accordingly, the judgment of the trial court is affirmed.
PER CURIAM
Judgment rendered and Opinion
filed June 6, 2002.
Panel consists of Justices Hudson,
Fowler, and Edelman.
Do not publish C Tex. R. App. P. 47.3(b).
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900 F.2d 423
134 L.R.R.M. (BNA) 2012, 114 Lab.Cas. P 12,043
STRATHMORE PAPER COMPANY, Plaintiff, Appellant,v.UNITED PAPERWORKERS INTERNATIONAL UNION, AFL-CIO and UnitedPaperworkers International Union, Local 197,Defendants, Appellees.
No. 89-1584.
United States Court of Appeals,First Circuit.
Heard Dec. 6, 1989.Decided April 3, 1990.
Richard D. Hayes with whom Jo-Ann W. Davis, Springfield, Mass., was on brief, for plaintiff, appellant.
J. William Gagne, Jr. with whom Harry B. Elliott, Jr., Hartford, Conn., was on brief, for defendants, appellees.
Before TORRUELLA and SELYA, Circuit Judges, and COFFIN, Senior Circuit Judge.
TORRUELLA, Circuit Judge.
1
On appeal this Court has been requested to review the refusal of the United States District Court for the District of Massachusetts to vacate a labor arbitration award rendered in favor of defendant Union. The issue presented by this appeal, the scope of an arbitrator's authority, continues to reappear before us, see Georgia Pacific Corp. v. Local 27, 864 F.2d 940 (1st Cir.1988); Warren v. United Paperworkers Int'l Union, 845 F.2d 3 (1st Cir.1988); International Bhd. of Electrical Workers v. WNEV-TV, 778 F.2d 46 (1st Cir.1985), notwithstanding the narrow scope of our appellate authority.
2
Appellant Strathmore Paper Co. ("Employer/Company") challenges the district court's decision on the ground that the arbitrator exceeded the scope of his authority by rendering an opinion which was not based on the collective bargaining agreement ("contract" or "agreement"). 29 U.S.C. Sec. 185. The facts in this case are undisputed and are as follows.
FACTS
3
In December of 1982, a dispute arose between an employee and the Company concerning the Company's use of a dump truck. The employee, a member of the Union, objected to the Company's assignment of a millwright to drive the dump truck. As a result of the dispute the employee filed a grievance pursuant to the agreement.
4
In March of 1983, the Company's employee relations manager agreed to conciliate the matter with the employee, and wrote on the grievance form, "unless the classified truckdriver is on another 'on the road' assignment the Company will use him for any pickups outside the Company." This response satisfied the Union and the matter was not pursued any further. After this conciliation, two successive labor agreements were negotiated. Although other side agreements were incorporated into the collective bargaining agreement, the 1983 settlement was not.
5
In January of 1987, the subject of controversy settled in March of 1983, arose again between the same parties and a grievance was again filed. The Union claimed that the union member was entitled to operate the dump truck and that the Company had violated the contract by not assigning him to drive the truck, pursuant to the 1983 settlement. This time no agreement was reached and the grievance proceeded to arbitration. At issue was both whether the grievance was arbitrable and whether the 1983 settlement was binding.
6
The arbitrator found that the second grievance filed in January 1987, was arbitrable under the terms of the agreement, and held for the Union. The arbitrator based his award on the conclusion that there existed a long term Employer's recognition of the driver's entitlement to drive the truck.
7
Not content with the arbitrator's decision, the Employer filed a complaint with the district court seeking to vacate it. In January 1989, the United States magistrate issued his Report and Recommendation which determined that although the dispute was arbitrable the arbitrator had exceeded his powers under the agreement and recommended that the Court vacate the arbitrator's decision. The Union objected to this conclusion and the district court sustained this objection and declined to vacate the arbitration decision.
DISCUSSION
8
It is beyond cavil that in reviewing the decision of an arbitrator, our role is limited. United Paperworkers v. Misco Inc., 484 U.S. 29, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). Our review must be guided by the precedent established in the Steelworkers trilogy1 and its progeny. Thus, the Supreme Court has consistently recognized that "[a]s long as the arbitrator's award 'draws its essence from the collective bargaining agreement,' and is not merely 'his own brand of industrial justice,' the award is legitimate." Misco, 484 U.S. at 36, 108 S.Ct. at 370 (quoting United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 at 596, 80 S.Ct. 1358 at 1360, 4 L.Ed.2d 1424). In Misco the Court added that in interpreting the language of the contract to identify the authority to arbitrate and the propriety of this determination, the arbitrator must have, at the very least, arguably construed or applied the contract. Misco, 484 U.S. at 38, 108 S.Ct. at 371.2
9
Our review in the instant case hinges upon the resolution of three issues. We will first examine the scope and standard of our review. Second, we will analyze the language of the contract and the extent of the arbitrator's authority. Finally, we will determine whether the arbitrator acted within the scope of his authority.
I. STANDARD OF REVIEW
10
The Supreme Court in discussing the restraint required in judicial review of arbitration decisions has made its position clear.
11
The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract....
12
The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. United Steelworkers v. American Mfg. Co., 363 U.S. 564, 567-568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960).
13
The reasons for the insulation of arbitral decisions from judicial review are grounded in various factors: labor management relations; the preference for private settlement of labor disputes without the intervention of government; and the greater institutional competence of arbitrators in interpreting collective-bargaining agreements, all in furtherance of the national labor policy of peaceful resolution of labor disputes in accord with the parties' objectives. See Schneider Moving & Storage Co. v. Robbins, 466 U.S. 364, 371-372, 104 S.Ct. 1844, 1848-1849, 80 L.Ed.2d 366 (1984); Misco, 484 U.S. at 37, 108 S.Ct. at 370; AT & T Technologies Inc. v. Communications Workers, 475 U.S. 643, 649-650, 106 S.Ct. 1415, 1418-1419, 89 L.Ed.2d 648 (1986).
14
This limited standard of review has led to the presumption that any doubt concerning the scope of arbitrable issues "require[s] that the matter be decided by an arbitrator in the first instance". As such "this result is in keeping with the 'strong presumption favoring arbitrability.' " International Bhd. of Electrical Workers v. WNEV-TV, 778 F.2d at 48. After all, an arbitrator:
15
... is not a public tribunal imposed upon the parties by a superior authority which the parties are obliged to accept. He has no general charter to administer justice for a community which transcends the parties. He is rather part of a system of self-government created by and confined to the parties. He serves their pleasure only to administer the rule of law established by their collective agreement. See Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv.L.Rev. 999, 1016 (1955): United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. at 581 [80 S.Ct. at 1352]; Alexander v. Gardner-Denver Co., 415 U.S. 36, 53 n. 16 [94 S.Ct. 1011, 1022 n. 16, 39 L.Ed.2d 147] (1974).
16
Having established the limited scope of our review the next task of a court asked to compel arbitration or to determine its propriety, is to determine whether the parties agreed to arbitrate that dispute.
II. THE LANGUAGE OF THE CONTRACT
17
The extent of an arbitrator's authority lies within the language of the contract. An arbitrator does not have unfettered discretion, and may not impose a remedy which directly contradicts the express language of the agreement. Nor can he or she interpret a clause or provision when its language is clear, unequivocal and unambiguous. Georgia Pacific Corp. v. Local 27, 864 F.2d at 945.
18
The dispute and the subsequent arbitration at issue in the present appeal arose out of a grievance filed by the employee and the Union under Section 3 of the contract. In pertinent part, the clause reads as follows:
19
Should differences arise between the Company and the Union and its members employed by the Company as to the meaning and application of this Agreement, or should any local trouble of any kind arise in the plant, there shall be no suspension of operation on account of such differences.... (emphasis added).
20
After providing for a series of steps to be followed, the contract states:
21
[The] authority of the arbitrator shall be limited to construing and interpreting rights of the parties under terms of the Agreement. The arbitrator has no power to amend, delete, or add to its terms.
22
In the instant case, the arbitrator was presented with a question of job classification. Consequently, since job classification is a matter not specifically discussed by the agreement, this Court must initially determine whether the instant dispute is arbitrable, albeit that it is "a local trouble of any kind" arising in the plant as per the language of the agreement. Our task requires that we examine the arbitration clause itself.
A. The Arbitration Clause
23
The Supreme Court has determined that a presumption of arbitrability exists when a contract contains an arbitration clause. AT & T Technologies Inc. v. Communications Workers, 475 U.S. at 650, 106 S.Ct. at 1419. In AT & T, the Supreme Court, in a framework analogous to this case, addressed the effect of a broad clause in a labor agreement. The Court held that this presumption is
24
particularly applicable where the clause is as broad as the one employed in this case, which provides for arbitration of "any differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder ..."
25
AT & T Technologies Inc. v. Communications Workers, 475 U.S. at 650, 106 S.Ct. at 1419.
26
The court continued, again on point with the instant case, by stating that:
27
"[i]n such cases, 'in the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.' " Id. (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. at 584-585 [80 S.Ct. at 1354].
28
The agreement before us does not expressly exclude the arbitration of job classifications. Furthermore, it is not hard to imagine that since job duties and responsibilities have been consistently recognized as core issues in collective bargaining, the parties could have foreseen the possibility of a dispute arising on this subject, and that it would reach arbitration.
29
Moreover, it is not unreasonable to conclude that the union, in view of the broad scope of the arbitration clause, could have assumed that any dispute or conflict in that area was in fact arbitrable. It appears this is precisely the purpose of the arbitrability presumption.
30
At this point, at least with reference to the arbitrator's authority to arbitrate the dispute in question, we need go no further. We cannot allow any party to an agreement to feel that they can have it both ways. Thus, this court agrees with the magistrate and the district court that the arbitrator had authority to act.
31
III. THE BOUNDARIES OF THE ARBITRATOR'S AUTHORITY
32
We now turn to the question of whether the arbitrator stayed within the bounds of his authority. The relevance of this analysis becomes apparent when we consider that the principle of deference inevitably gives way, as recognized by the Supreme Court in Enterprise Wheel, to the greater principle that an award that does not draw its essence from the agreement is not entitled to judicial enforcement. As such we must determine whether it was proper to use the 1983 settlement agreement, whether the arbitrator is entitled to consider past practices and/or the "law of the shop," and whether the settlement agreement can actually be considered as past practice3 or the "law of the shop."
33
There is no doubt that the Supreme Court has instructed that arbitrators cannot ignore the plain language of the labor agreement. See Misco, 484 U.S. at 37, 108 S.Ct. at 370. To this effect appellant correctly argues that the contract does not provide an arbitrator with the authority to read into the contract prior settlements. On the contrary, there is specific language in the contract which precludes an arbitrator from deferring to settlements unless they have been expressly incorporated or certain conditions are met. S.D. Warren Co. v. United Paperworkers, 845 F.2d 3 (1st Cir.1988) and Georgia Pacific Corp. v. Local 27, 864 F.2d 940 (1st Cir.1988).
34
In Warren, we found that the language of the contract was unambiguous and in rendering his award the arbitrator had specifically ignored its plain language. The contract in that case provided predetermined remedies, there was no ambiguity and there was no basis for an arbitrator to "fill an empty space" with his expertise. Instead, the arbitrator altered the contract and substituted for it his own "brand of industrial justice".
35
By contrast, in the case at bar, the contract does not contain job classifications; thus it is ambiguous as to the arbitrator's authority to resolve job classifications disputes. In fact, given the broad arbitration clause, and hence the arbitrability of the dispute, and the fact that there were no remedies for the grievance filed, we are led to the belief that the language of the agreement here is substantially more open, or ambiguous than the language at issue in Warren. See Crafts Precision Industries, Inc. v. Lodge No. 1836 of District 38, 889 F.2d 1184 (1st Cir.1989). Moreover, the award in the instant case was not a substitution as in the Warren case. In this case, the parties did not agree contrary to the arbitrator's final award. We find that the arbitrator's intervention was proper.
A. The 1983 settlement agreement
36
Appellants contend that the contract unambiguously states that it shall supersede all previous written agreements unless expressly incorporated into the contract. They aver that the situation at bar must be seen in light of the Georgia Pacific case particularly where it states that: "[i]f the language of an agreement is clear and unequivocal, an arbitrator cannot give it a meaning other than that expressed by the agreement." Georgia Pacific Corp. v. Local 27, 864 F.2d at 944. Thus, they argue that by using the prior settlement in submitting its award, the arbitrator was acting patently in excess of his arbitral authority.
37
Appellant stopped short in reading Georgia Pacific. In that same case, this Court went on to find that:"[t]o be binding, a trade custom or usage must be so well known, uniform, long established and generally acquiesced to in so as to induce the belief that the parties contracted with reference to it, nothing in the contract to their contrary. Georgia Pacific, 864 F.2d at 946 (quoting Dahly Tool Co. v. Vermont Tap & Die Co., 742 F.2d 311, 314 (7th Cir.1984)).
38
This statement would allow the arbitrator, as alleged by the appellees, to consider past practices and/or trade custom. Moreover, it has been held that a contract may be found to incorporate past practice even though not mentioned. International Bhd. of Electrical Workers v. WNEV-TV, New England, 778 F.2d at 48 (1st Cir.1985). (Industrial common law--the practices of the industry and the shop, is equally a part of the collective bargaining agreement although not expressed in it. Id. (quoting Warrior & Gulf, ante, 363 U.S. at 576, 80 S.Ct. at 1349-50)).
39
Appellants seek to avoid these principles by averring that the facts fail to support a finding of a "past practice". Whether or not the 1983 settlement agreement established a "past practice" as described in Georgia Pacific, we agree with the district court that the arbitrator was entitled at least to factor the agreement into his decision interpreting the contract.
40
Although the contract does not explicitly incorporate or refer to the settlement agreement, it also evidences no intent to exclude the contents of the agreement as a basis for an arbitrator's exercise of his discretion. We therefore see no reason why the arbitrator should be prevented from considering the agreement as some evidence "that there were certain distinct duties assigned millwrights and truck drivers," District Court Opinion at 5. In addition, we note that the agreement was not the only evidence considered by the arbitrator; his decision also points to the absence of any change since the 1983 agreement in the company's use of its trucks.
41
In Electrical Workers, we provided that "... [i]n the absence of any express provision excluding a particular grievance from arbitration ... only the most forceful evidence of a purpose to exclude the claim can prevail." International Bhd. of Electrical Workers v. WNEV-TV, 778 F.2d at 49. Although, the 1983 settlement was expressly excluded, as we have stated before, this does not necessarily means the content of the settlement is not grievable. Thus, since we do not find a forceful purpose to exclude the specific contents of the settlement agreement or the claim, we see no reason why the arbitrator should be prevented from considering the agreement as some evidence of recognized assigned duties.
CONCLUSION
42
There is no doubt in our minds, in view of our discussion, that the arbitrator's determination and his authority were derived from the essence of the contract. Finally, we find proper to conclude as the Supreme Court did in Misco, that "as long as the arbitrator is construing or applying the contract and acting within the scope of his authority," even when the court is convinced he committed serious error, it cannot overturn his decision.
43
When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency. Enterprise Wheel & Car Corp., 363 U.S. at 597 [80 S.Ct. at 1361]. See Centralab Inc. v. Local 816, 827 F.2d 1210 (8th Cir.1987); Misco, 484 U.S. 29 [108 S.Ct. 364].
44
All said, and in light of the limited review standard, we agree with the district court and affirm its conclusion.
45
Affirmed.
1
United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Co., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)
2
More recently, this Circuit in Berklee College of Music v. Berklee Chapter of the Massachusetts Federation of Teachers, Local 4412, AFL-CIO, 858 F.2d 31 (1st Cir.1988) has held and added that an arbitration award is sustainable when a "plausible argument" can be made favoring the arbitrator's interpretation of the Contract
3
We have previously stated that by "past practice" is meant in labor relations jargon, that customs and usage of the shop have established certain acquired rights or conditions of employment. This is a provision that may be incorporated into specific contractual language. See Harold S. Roberts, Roberts' Dictionary of Industrial Relations (quoted at Intern. Broth. of Electrical Workers v. WNEV-TV, 778 F.2d at 47 n. 1)
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230 S.W.3d 661 (2007)
Delores SHERMAN, Appellant,
v.
GOLD KIST, INC., Respondent.
No. ED 88804.
Missouri Court of Appeals, Eastern District, Division One.
August 21, 2007.
Ryan S. Shaughnessy, St. Louis, MO, pro se.
Jane Cohen, St. Louis, MO, for respondent.
Before: CLIFFORD H. AHRENS, P.J., MARY K. HOFF, J., and NANNETTE A. BAKER, J.
Prior report: 2006 WL 4556538.
ORDER
PER CURIAM.
Delores Sherman d/b/a Deeco Food Services ("Plaintiff') appeals a judgment from the Circuit Court of St. Louis County dismissing all of her claims against Gold Kist, Inc. ("Respondent") upon a finding that her claims are time-barred by the applicable statutes of limitations.
In Plaintiff's only point on appeal, Plaintiff asserts that the trial court erred in granting Respondent's motion to dismiss for failure to state a claim. Plaintiff contends that the trial court should have calculated the statute of limitations from the date her commissions accrued and not the date the relationship between the parties terminated. We have reviewed the briefs of the parties and the record on appeal and find the claim of error to be without merit.
No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.
We affirm the judgment pursuant to Rule 84.16(b).
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738 F.2d 428
Brownv.Nationwide Ins. Co.
83-1545
United States Court of Appeals,Fourth Circuit.
6/14/84
1
D.S.C.
AFFIRMED
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************* * *
KEITH SAUNDERS, *
* No. 15-233V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: February 29, 2016
*
SECRETARY OF HEALTH * Attorneys’ fees and costs; award
AND HUMAN SERVICES, * in the amount to which
* respondent does not object.
Respondent. *
****************** ** *
Carol L. Gallagher, Carol L. Gallagher, Esquire, LLC., Linwood, NJ, for
petitioner;
Jennifer L. Reynaud, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION ON FEES AND COSTS 1
On February 22, 2016, petitioner filed a stipulation of fact for attorneys’ fees
and costs. Previously, petitioner informally submitted a draft application for
attorneys’ fees and costs to respondent for review. In informal discussions,
respondent raised objections to certain aspects of petitioner's application. Based on
these discussions, petitioner amended his application to request $21,000.00, an
amount to which respondent does not object. The Court awards this amount.
On March 6, 2012, Keith Saunders filed a petition for compensation alleging
that the influenza (“flu”) vaccine administered on September 16, 2013, caused him
to suffer chronic inflammatory demyelinating polyneuropathy (“CIDP”). As of the
date of this decision, the parties had reached a tentative agreement in this case.
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
Once petitioner actually receives compensation, he shall be entitled to an award of
attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e).
Petitioner seeks a total of $21,000.00, in attorneys’ fees and costs for his
counsel. At the time petitioner filed his petition on March 6, 2015, petitioner was
represented by attorney Thomas P. Gallagher. On May 21, 2015, the Court granted
petitioner's motion for substitution of counsel naming Ms. Gallagher as his
attorney of record. Additionally, petitioner filed a statement of costs in compliance
with General Order No. 9, stating that he did not incur any litigation expenses
while pursuing this claim. Respondent has no objection to the amount requested
for attorneys’ fees and costs.
After reviewing the request, the Court awards the following:
a. A lump sum of $8,000.00, in the form of a check made payable to
petitioner and petitioner’s attorney, Thomas P. Gallagher, for
attorneys’ fees and other litigation costs available under 42 U.S.C. §
300aa-15(e).
b. A lump sum of $13,000.00, in the form of a check made payable to
petitioner and petitioner’s attorney, Carol L. Gallagher, of Carol L.
Gallagher, Esquire, LLC., for attorneys’ fees and other litigation
costs available under 42 U.S.C. § 300aa-15(e).
The Court thanks the parties for their cooperative efforts in resolving this
matter. The Clerk shall enter judgment accordingly.
Any questions may be directed to my law clerk, Shannon Proctor, at (202)
357-6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6000
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OSCAR OMAR LOBO-LOPEZ, a/k/a Joker,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:08-cr-00194-TSE-1; 1:13-cv-01221-TSE)
Submitted: June 11, 2015 Decided: June 25, 2015
Before SHEDD, DIAZ, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Oscar Omar Lobo-Lopez, Appellant Pro Se. Patricia T. Giles,
Morris Rudolph Parker, Jr., Assistant United States Attorneys,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Oscar Omar Lobo-Lopez seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2255 (2012) motion. The
order is not appealable unless a circuit justice or judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B)
(2012). A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012). When the district court denies
relief on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists would find that the
district court’s assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the motion states a debatable
claim of the denial of a constitutional right. Slack, 529 U.S.
at 484-85.
We have independently reviewed the record and conclude that
Lobo-Lopez has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal. We
dispense with oral argument because the facts and legal
2
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
3
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136 Ariz. 280 (1983)
665 P.2d 1002
TUCSON AIRPORT AUTHORITY, an Arizona non-profit corporation, Plaintiff/Appellant/Cross Appellee,
v.
Albert FREILICH, Albert Freilich, as Trustee of Testamentary Trust of Hannah Freilich, deceased, Defendant/Appellee/Cross Appellant.
No. 16114-PR.
Supreme Court of Arizona, En Banc.
May 24, 1983.
Rehearing Denied July 6, 1983.
*281 Bilby, Shoenhair, Warnock & Dolph by James F. Morrow, Tucson, for plaintiff/appellant/cross appellee.
Stubbs & Townsdin by Robert C. Stubbs, G. Lawrence Schubart, Tucson, for defendant/appellee/cross appellant.
FELDMAN, Justice.
Appellant/Cross-Appellee, Tucson Airport Authority (TAA) petitioned this court to review the decision of the court of appeals in Tucson Airport Authority v. Freilich, 135 Ariz. 285, 665 P.2d 1007 (App. 1982). We have jurisdiction and accept review pursuant to Ariz. Const. art. 6, § 5(3), and Ariz.R.Civ.App.P. 23, 17A A.R.S.
Appellee/Cross-Appellant Freilich (Freilich) owned 158.18 acres of unimproved desert land which was located next to Ryan Field in Pima County Arizona. TAA sought to purchase the property from Freilich but when the parties could not agree on a price, TAA filed a condemnation action. A summons was issued on December 20, 1979. On May 13, 1980, an order of immediate possession was entered allowing TAA to take possession of .47 acres of the land for a radar installation and access road.
The case was tried to the court, sitting without a jury. The trial judge made findings of fact and conclusions of law. The trial court found that the value of the 158.18 acres taken was $3,500 per acre and accordingly awarded Freilich $553,630. In computing interest to be awarded, the trial court found that the taking of the .47 acres constituted an effective possession of the entire parcel. In accordance with A.R.S. § 12-1123(B), the trial court therefore included interest on the entire award at the legal rate of 10%, to run from May 13, 1980, the date of possession of the .47 acre parcel, to the date of judgment. The court also awarded interest after judgment at 10%. In a minute entry order dated April 23, 1981, the trial court stated the following with respect to the rate of interest:
The Court cannot award a higher interest rate than a statutory rate of ten percent (10%) per annum, however, if the Court could award a higher rate of interest THE COURT FINDS that a reasonable rate of interest is twelve percent (12%) per annum.
TAA appealed from the portion of the judgment designating the taking of the .47 acres as an effective possession of the entire parcel. The court of appeals agreed with TAA that the record did not support this finding and held further that the condemnor was required to pay prejudgment interest on only that portion of the final award attributable to the property of which the condemnor had taken possession before judgment. We affirm the court of appeals' resolution of this issue.
In his cross-appeal, Freilich argued that irrespective of the possession issue, just compensation required the payment of interest on the entire award from the date on which the summons was issued. He also claimed that the condemning authority should be liable for payment of interest on the entire award because of its alleged failure to make a reasonable settlement offer. The court of appeals ruled against Freilich *282 on each of the contentions, and we also agree with its resolution of these issues.
Freilich's last contention was that the trial court erred in awarding 10% statutory interest rather than setting a reasonable rate based upon the evidence he had introduced regarding economic factors. There was evidence introduced at trial that given economic conditions which prevailed during the relevant period, 12% would have been a reasonable rate. On this issue, the court of appeals held that once the trial court found 12% to be a reasonable rate and the legal rate of 10% to be "unreasonable," the judge had the power to fix the rate in excess of the statute and erred in not doing so. The court of appeals therefore directed that Freilich be paid interest at 12% on $1,614.16 (the portion of the award representing the value of the .47 acres of land covered by the order of immediate possession) from the date of the order of immediate possession to the date of the entry of judgment. The court also held that Freilich be paid 12% interest on the entire award after judgment. We cannot agree with the court of appeals' resolution of the interest rate issue.
The Arizona Constitution, art. 2, § 17, provides in part:
No private property shall be taken or damaged for public or private use without just compensation having first been made....
The fifth amendment to the United States Constitution also guarantees the payment of just compensation and this guarantee is applicable to the states through the fourteenth amendment. Chicago, Burlington, & Quincy R.R. v. Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 586, 41 L.Ed. 979 (1897).
"Just compensation" in eminent domain cases consists of "the full equivalent of the value of [the property] ... paid contemporaneously with the taking." Phelps v. United States, 274 U.S. 341, 344, 47 S.Ct. 611, 612, 71 L.Ed. 1083 (1927). When the taking precedes the payment of compensation, an extra amount must be added to compensate the owner for the delay in payment. The United States Supreme Court explained this principle in Seaboard Air Line Railway Co. v. United States, 261 U.S. 299, 306, 43 S.Ct. 354, 356, 67 L.Ed. 664 (1923):
Where the United States condemns and takes possession of land before ascertaining or paying compensation, the owner is not limited to the value of the property at the time of the taking; he is entitled to such addition as will produce the full equivalent of that value paid contemporaneously with the taking.
The delay between taking and payment results in a loss of use of the money owed to the condemnee at the moment of the taking. The condemnee must be compensated for this loss and "[i]nterest at a proper rate is a good measure by which to ascertain the amount to be so added." Id. Thus, the payment of interest on a condemnation award is designed to satisfy the constitutional requirement of just compensation by putting the owner "in as good a position pecuniarily as he would have occupied if his property had not been taken." United States v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 279-80, 87 L.Ed. 336 (1943).
Since the payment of interest is a part of just compensation, the determination of the proper rate of interest is a judicial function. Seaboard Air Line Railway Co. v. United States, supra; In the Matter of South Bronx Neighborhood Development Plan, 110 Misc.2d 571, 571, 442 N.Y.S.2d 869, 869 (1981); Troy Urban Renewal Agency v. Union National Bank of Troy, 90 Misc.2d 240, 241-42, 394 N.Y.S.2d 131, 133 (1977). It has been generally recognized, however, that where the legislature has designated the rate of interest by statute, such rate can be applied to a claim for just compensation as long as the rate is reasonable and judicially acceptable. See Miller v. United States, 620 F.2d 812, 837, 223 Ct.Cl. 352 (Ct.Cl. 1980); County of Nassau v. Eveandra Enterprises, 42 N.Y.2d 849, 850-51, 366 N.E.2d 287, 288, 397 N.Y.S.2d 627, 628 (1977); Troy Urban Renewal Agency, 90 Misc.2d at 242, 394 N.Y.S.2d at 133; 3 J. Sackman, Nichols' The Law of Eminent Domain § 8.63[3] (rev. 3d ed. 1981).
A.R.S. § 12-1123(B) provides that in condemnation cases the property owner is entitled to interest from the date on which the *283 government takes possession and has provided for such interest at a rate equal to "legal interest." The legal rate of interest is 10% per annum. A.R.S. § 44-1201(A).[1]
In the case at bench, the trial court applied this statutory rate to the judgment. The court of appeals held this was error because the trial court had found a rate of 12% to be reasonable and the legal rate to be "unreasonable." Once it found the legal rate to be constitutionally unacceptable, the court of appeals concluded, the trial court was obliged to apply the higher rate.
Initially, we disagree with the court of appeals' statement that the trial court found the legal rate "unreasonable." There is no finding of fact which reaches this conclusion. Further, we do not believe that a finding that 12% is "a reasonable rate" is necessarily a finding that 10% is an unreasonable rate. The term "reasonable" necessarily implies some range of findings that would be acceptable; because a particular figure is within that range does not mean that another, fairly close figure, is not. Admittedly, the fact that the trial judge singled out 12% is an indication that he concluded from the evidence that for the relevant time period 12% was the prevailing economic rate. This conclusion, however, does not necessarily indicate that the trial judge found the legal rate unreasonable.
Freilich argues that by finding the rate of 12% to be reasonable, the trial court had set this as the proper economic rate for the relevant time period and therefore, that rate should have been applied instead of the rate specified in the statute. Relying on several federal cases, Freilich contends that the rate set by statute would be a floor but not a ceiling on the rate of interest and the constitutional principle of just compensation would require the payment of interest at a rate above that specified in the statute whenever the trier of fact found the economic rate exceeded the statutory rate. See United States v. Blankinship, 543 F.2d 1272 (9th Cir.1976); Miller v. United States, supra.
After a review of the federal decisions, we find such a case-by-case determination of the rate of interest unsatisfactory and reject Freilich's argument for several reasons.
First, the federal cases cited by Freilich found that given recent economic conditions and high interest rates, application of a 6% statutory rate would violate the constitutional requirement of just compensation. Given those same considerations, we might have the same trouble in upholding a trial court determination that a 6% interest rate for the years 1979-1982 was constitutionally sound. However, 6% is not the legal rate applicable to this case. In response to changing economic conditions, the legislature amended Arizona's interest statute, increasing the legal rate from 6% to 10%, effective December 14, 1979.
Second, we are concerned about the question of uniform treatment of condemnees which we believe is relevant both to the objectives of the legislature in setting a statutory rate and the constitution in requiring the payment of just compensation. Even under the federal view, there is "a strong judicial policy in favor of the establishment of a uniform rate of interest applicable to condemnation cases in order to avoid discrimination among litigants." Miller v. United States, 620 F.2d at 838. We acknowledge that there is no uniformity with regard to substantive condemnation awards. Awards for adjoining parcels taken at the same time and for the same project may differ substantially because the cases are tried in different courtrooms, with different experts and decided by different finders of fact. However, it is also a basic tenet of condemnation law that every parcel of land is unique. To some extent at least, this is so and justifies varying awards for property. The same principle does not apply to money; in theory, every dollar bill is the same and is worth as much as every other. Interest is compensation for the use of money. Since money, unlike property, has neither unique characteristics nor different *284 value, the compensation for its use should not vary from case to case.
Third, although in Seaboard, supra, the Supreme Court formulated the concept that interest must be paid even though the statute authorizing the taking neither required nor permitted the payment, the Court did not indicate that the rate set by the legislature should be ignored. Quite to the contrary, it held that the trial court had acted properly in applying the legal rate of interest established by the legislature of the state in which the condemned land was located. The Court stated that this method was "a palpably fair and reasonable method of performing the indispensable condition to the exercise of the right of eminent domain, namely of making `just compensation' for the land as it stands, at the time of the taking." Id. 261 U.S. at 306, 43 S.Ct. at 356.
Finally, the determination of a precise "reasonable" rate of interest on a case-by-case approach is no easy matter. In addition to the time and expense involved in receiving evidence from economic experts hired by each party, there is no assurance that judges or jurors will be more successful than the legislature in determining the correct, reasonable rate. Compare, for example, the diverging theories adopted by the Ninth Circuit in Blankinship, supra, and in United States v. 429.59 Acres of Land, 612 F.2d 459 (9th Cir.1980); compare those formulations to the economic views of the New York Court in Matter of South Bronx, supra, and the Court of Claims in Miller v. United States, supra. If each trial court were obligated to receive evidence, determine and apply its own version of the reasonable economic rate, the results in each case would differ depending upon the evidence put forward by each party and the conclusions of each individual trier of fact. Conflicting determinations would all have to be affirmed if supported by sufficient evidence. Some appellate courts have themselves determined a reasonable rate to be applied by trial courts for all cases. These determinations are based upon judicial notice of statistics from various sources. See Miller v. United States, supra. This is a procedure we are not disposed to follow.
For all these reasons, we decline to follow the approach of the federal courts with respect to the issue of interest. In view of the recent legislative revision of the interest rate, we believe that the rate set by the legislature should be presumed reasonable and applied to all condemnation awards, unless the condemnee establishes by competent evidence that the application of that rate would violate the guarantee of just compensation. The condemnee could prove, for example, that the disparity between the statutory rate and the prevailing economic rate was so great that the former must be considered unreasonable and not judicially acceptable.
Turning to the facts of the instant case, the evidence presented at trial fell far short of establishing that the rate of 10% was unreasonable. There was no evidence of the real rate of return (i.e., differential between interest and inflation rate), returns from different types of investments, bond yields, tax considerations and other matters which a prudent investor would take into consideration. Mere proof that one could have earned 15% to 18% on insured certificates of deposit for part of the relevant time period is not sufficient to establish that a prudent person investing in an appropriate portfolio of bonds or other obligations comparable to that of the condemnor, United States v. Blankinship, 543 F.2d at 1276, would have obtained a return so far in excess of the statutory rate that the latter must be considered so unreasonable as to be constitutionally infirm.
Accordingly, the trial court properly applied the statutory rate of interest. The opinion of the court of appeals is approved except as modified by this decision. The case is remanded with directions to the trial court to enter an amended judgment consistent with this opinion.
HOLOHAN, C.J., GORDON, V.C.J., and HAYS and CAMERON, JJ., concur.
NOTES
[1] Interest on any loan, indebtedness, judgment or other obligation shall be at the rate of ten per cent per annum, unless a different rate is contracted for in writing, in which event any rate of interest may be agreed to.
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Filed 10/1/19 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE B292164
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. SA096190)
v. ORDER MODIFYING OPINION
AND DENYING REHEARING
JULIO NZOLAMESO
[NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on September 17,
2019, be modified as follows:
On page 7, replace the last paragraph beginning with
“Birchfield therefore prohibits,” with the following paragraph:
Birchfield therefore prohibits a court from finding implied
consent where an arrestee’s only choice is to consent to a
warrantless blood test or be prosecuted for refusing to do so. Any
consent obtained by law enforcement cannot be deemed valid
where the only choice is consent to the blood test or be punished
criminally. Here, however, that was not Nzolameso’s only choice.
Under California’s former implied consent law, Nzolameso was
given a choice of tests to choose from. He was subject to criminal
penalties only if he refused both the blood and breath test.
Under Birchfield, the state of California was not insisting on only
the more intrusive alternative of a blood test. Instead, it offered
motorists suspected of drunk driving a less intrusive alternative:
a breath test. And, even though the implied consent statute
required Nzolameso to submit to only blood or breath testing on
penalty of criminal penalty, the officers here also gave Nzolameso
the option of a urine test, which he subsequently requested.1
Nzolameso was not required to take the blood test or face
criminal prosecution; he was required only to choose between
alternative tests. Only refusing all tests would have exposed him
to criminal penalties under the law. As the First District stated
in People v. Gutierrez (2018) 27 Cal.App.5th 1155, review granted
January 2, 2019, S252532 (Gutierrez), just because “the state
cannot compel a warrantless blood test does not mean that it
cannot offer one as an alternative to the breath test that it clearly
1 The former implied consent law stated that a motorist is
deemed to have consented to a urine test on suspicion of driving
under the influence of alcohol only if blood or breath testing is
unavailable. (Veh. Code, § 23612, former subds. (a)(1)(A) &
(d)(2).)) Thus, under the law, Nzolameso would have faced
criminal penalties for refusing a urine test only if blood and
breath testing were unavailable. Whether Nzolameso would have
faced criminal penalties under the facts of this case if he had
refused blood and breath, but submitted to urine testing, is
immaterial because he gave actual consent to the blood and urine
tests.
2
can compel.” (Id. at p. 1161.)2 Hence, Birchfield does not
prohibit a finding of implied consent under California’s former
law under these circumstances.
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
____________________________________________________________
BIGELOW, P. J. GRIMES, J. STRATTON, J.
2 Review was granted in Gutierrez on whether law
enforcement violates the Fourth Amendment by taking a
warrantless blood sample from an unconscious defendant, or can
the defendant be deemed to have given implied consent under
California’s implied consent law?
3
Filed 9/17/19 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B292164
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA096190)
v.
JULIO NZOLAMESO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark A. Young, Judge. Affirmed.
Aaron J. Schechter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Stephanie C. Brenan and Jonathan M. Krauss,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
INTRODUCTION
Police arrested appellant Julio Nzolameso for alleged
drunk driving after he drove his car into a crowd of people and
seriously injured four pedestrians. The arresting officers
admonished Nzolameso that he was required to submit to either
blood, urine, or breath testing and that refusal to submit to any
testing at all would result in civil and criminal penalties.
Nzolameso chose the blood test, which revealed a blood alcohol
level above the legal limit.
Nzolameso moved to suppress the results of the blood test
on the grounds that the blood testing was a warrantless search in
violation of the Fourth Amendment. He also argued that his
consent to the blood test was invalid because it was given under
threat of criminal prosecution. The court denied the motion.
On appeal, Nzolameso relies on Birchfield v. North Dakota
(2016) 579 U.S. ___, [136 S.Ct. 2160] (Birchfield) in support of his
argument that his consent was illegal per se because it was given
under threat of criminal prosecution. Because we disagree with
Nzolameso’s broad interpretation of Birchfield and agree
Nzolameso’s consent was freely and voluntarily given, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On a night in June 2017, Nzolameso drove his car into a
crowd of pedestrians who were socializing in the parking lot of a
club. After hitting several pedestrians, Nzolameso exited the
parking lot, made a right-hand turn into heavy traffic, and
crashed into a parked car. Nzolameso was immediately detained
by Los Angeles Police Department Officers Ernest Fields and
Samuel Kim, who transported Nzolameso to a hospital to ensure
he was not injured. At the hospital, Officer Fields conducted field
sobriety tests, which Nzolameso failed.
2
Officer Fields then placed Nzolameso under arrest and
advised him of California’s implied consent law as follows:
“You must submit to a blood test, urine test, breath
test, or urine and breath test, per California Vehicle Code
23612. Failure to submit to or failure to complete required
chemical testing will result in a fine, mandatory
imprisonment if convicted of 23152 or 23153, and the
suspension of your privilege to operate a motor vehicle for
one year.
“[¶] . . . [¶]
“Breath test violation 23614 C.V.C. If you choose the
breath test, the breath testing equipment does not retain
any sample of the breath and no breath sample will be
available after the first test, which could be analyzed later
by any other person or yourself.
“Because no breath sample is retained, . . . you have
the opportunity to provide a blood sample that will be
retained at no cost to you. There will be something
retained that may be subsequently analyzed for the alcohol
content of your blood. And if you choose the blood or urine,
your sample may be tested by either party in any criminal
prosecution.”
Nzolameso informed Officers Fields and Kim that he
wanted a blood test. He also asked for a urine test. At no point
did he withdraw his consent to either test. His urine and blood
were taken by the nursing staff as the officers looked on. The
nursing staff also took Nzolameso’s consent to the blood test to
satisfy its own ethical obligations. He was given a cup for the
urine test and shown the toilet. He asked for water, which he
received, and discussed the timing of the testing with the nursing
3
staff, ultimately telling the nurses exactly when he was ready to
give urine and blood. Nzolameso’s blood alcohol concentration
was measured at 0.05 percent. Using retrograde extrapolation,
the People’s criminalist estimated Nzolameso’s blood alcohol
concentration was between 0.05 and 0.16 at the time of the
collision.
Nzolameso was charged via information with six counts:
driving under the influence (DUI) of alcohol causing great bodily
injury within 10 years of two other DUI offenses (Veh. Code,
§§ 23153, subd. (a) & 23566, subd. (b); count 1); DUI with a
0.08 percent blood alcohol content causing great bodily injury
within 10 years of two other DUI offenses (Veh. Code, §§ 23153,
subd. (b) & 23566, subd. (b); count 2); driving when privilege
suspended or revoked for being a habitual offender (Veh. Code,
§ 14601.3, subd. (d)(2); count 3); driving when privilege
suspended or revoked for driving under the influence conviction
(Veh. Code, § 14601.2, subd. (a); count 4); driving a vehicle not
equipped with an ignition interlock device when privilege
restricted (Veh. Code, § 23247, subd. (e); count 5); and hit and
run driving resulting in injury to another person (Veh. Code,
§ 20001, subd. (b)(1); count 6). Count 5 was later dismissed
pursuant to Penal Code section 995.
Nzolameso moved to suppress the blood test. At the
hearing on the motion at which Officers Fields and Kim testified,
Nzolameso stipulated that he was lawfully arrested and had been
properly advised of the implied consent law, and that he had
consented to a blood test. Nzolameso’s sole argument was that
the police were required to obtain a warrant to draw his blood.
Relying on Birchfield, Nzolameso argued he did not freely and
voluntarily consent to the blood draw because he faced criminal
4
penalties if he refused. The trial court determined Nzolameso did
not face any criminal prosecution for failing to comply with
California’s implied consent law. The trial court also found, after
looking “at all of the factors” and “under the totality of the
circumstances,” that Nzolameso freely and voluntarily consented
to the blood draw. The court denied the motion.
Nzolameso pled nolo contendere to count 2, admitted he
caused great bodily injury to two victims, and admitted he
suffered two prior DUI convictions. The court sentenced
Nzolameso to 10 years in prison, consisting of four years on
count 2, plus three years on each of the great bodily injury
enhancement allegations.
Nzolameso timely appealed.
DISCUSSION
Nzolameso’s sole argument on appeal is that the trial court
erred in denying his motion to suppress the blood test because
the Fourth Amendment required law enforcement to obtain a
warrant before taking a sample of his blood. Nzolameso argues
California’s former implied consent law, which was amended
after his conviction, made his failure to submit to a blood draw
subject to mandatory imprisonment upon a DUI conviction and
therefore invalidated his consent. We agree there can be no
implied consent to a warrantless blood draw upon threat of
criminal penalty, but disagree with Nzolameso’s contention that
Birchfield mandates that we invalidate his actual consent.
A. The Warrant Requirement
The first issue in Birchfield was whether the Fourth
Amendment permits warrantless blood alcohol chemical testing
incident to an arrest for drunk driving. (Birchfield, supra,
136 S.Ct. at pp. 2166–2167.) The Birchfield court considered
5
three consolidated cases: two involving a North Dakota law
requiring drunk drivers to submit to warrantless blood tests or
face misdemeanor prosecution for refusing the test; and one in
Minnesota which requires a breath test and threatens criminal
prosecution upon refusal to consent. (Id. at p. 2170.) As the
Court noted, “success for all three petitioners depends on the
proposition that the criminal law ordinarily may not compel a
motorist to submit to the taking of a blood sample or to a breath
test unless a warrant authorizing such testing is issued by a
magistrate.” (Id. at p. 2172.)
The Court began with a recap of its jurisprudence—that
taking a blood sample or administering a breath test is a search
governed by the Fourth Amendment and that a search warrant
must be secured unless an exception to the warrant requirement
applies. (Birchfield, supra, 136 S.Ct. at p. 2173.) The Court held
that a breath test comes within the categorical search-incident-
to-arrest exception to the warrant requirement. It held that, as
in all cases involving reasonable searches incident to arrest, a
warrant is not needed. (Id. at p. 2185.) Thus, the Minnesota
arrestee who refused the warrantless breath test was out of luck.
(Id. at p. 2186.)
As to blood tests, however, the Court held a warrant is
required. (Birchfield, supra, 136 S.Ct. at pp. 2184, 2186.) In
reaching “a different conclusion with respect to blood tests,” the
Court found that “[b]lood tests are significantly more intrusive,
and their reasonableness must be judged in light of the
availability of the less invasive alternative of a breath test.”
(Id. at p. 2184.) The Court found no satisfactory justification for
demanding the more intrusive alternative without a warrant.
(Ibid.) Thus, the North Dakota arrestee who refused a
6
warrantless blood test had his conviction for refusing the test
reversed. (Id. at p. 2186.)
B. The Consent Exception to the Warrant Requirement
Having found that blood tests require a warrant, the next
step was to determine whether any exception to the warrant
requirement applied. A defendant’s free and voluntary consent to
a blood draw constitutes an exception to the Fourth Amendment
search warrant requirement. (People v. Elder (2017)
11 Cal.App.5th 123, 131.) It is well established that a search is
reasonable when the subject consents and that sometimes
consent to a search need not be express but may be fairly inferred
from context. (Birchfield, supra, 136 S.Ct. at p. 2185.) As to the
remaining arrestee in Birchfield who had actually agreed to take
the blood test, the state court had found implied consent only
based on the erroneous assumption that the state could compel
both blood and breath tests. The Court found that motorists
cannot be deemed to have consented to blood tests on pain of
committing a criminal offense. (Id. at p. 2186.) The finding of
implied consent, then, was erroneous. Because actual consent
had not been adjudicated, the Court remanded the consent issue
so the state court could evaluate the voluntariness of the actual
consent under the totality of the circumstances test set out in
Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227, 249–250.
(Birchfield, at p. 2186.)
Birchfield therefore prohibits a court from finding implied
consent where an arrestee’s only choice is to consent to a
warrantless blood test or be prosecuted for refusing to do so. Any
consent obtained by law enforcement cannot be deemed valid
where the only choice is consent to the blood test or be punished
criminally. Here, however, that was not Nzolameso’s only choice.
7
Under California’s former implied consent law, Nzolameso was
given a choice of tests to choose from. He was subject to criminal
penalties only if he refused all options (breath, blood, urine).
Under Birchfield, the state of California was not insisting on only
the more intrusive alternative of a blood test. Instead, it offered
Nzolameso an array of less intrusive alternatives. He was not
required to take the blood test or face criminal prosecution; he
was required only to choose between alternative tests. Only
refusing all tests would have exposed him to criminal penalties
under the law. As the First District stated in People v. Gutierrez
(2018) 27 Cal.App.5th 1155, review granted January 2, 2019,
S252532 (Gutierrez), just because “the state cannot compel a
warrantless blood test does not mean that it cannot offer one as
an alternative to the breath test that it clearly can compel.”
(Id. at p. 1161.)3 Hence, Birchfield does not prohibit a finding of
implied consent under California’s former law under these
circumstances.
Here, however, we need not rest our affirmance only on the
former implied consent law. The trial court held a hearing on the
issue of actual consent and found consent to be voluntary. The
voluntariness of a consent is to be determined in the first
instance by the trier of fact. On appeal all presumptions favor
the proper exercise of that power and the trial court’s findings—
whether express or implied—must be upheld if supported by
substantial evidence. (People v. James (1977) 19 Cal.3d 99, 107.)
3 Review was granted in Gutierrez on whether law
enforcement violates the Fourth Amendment by taking a
warrantless blood sample from an unconscious defendant, or can
the defendant be deemed to have given implied consent under
California’s implied consent law?
8
As set out above, both arresting officers testified to the
circumstances under which Nzolameso gave his consent to the
blood test. There was no testimony at all from Nzolameso,
including no testimony that he only gave actual consent because
of the threat of criminal prosecution. The court used the totality
of the circumstances test and found, after looking at all factors,
that Nzolameso freely and voluntarily consented to the blood test,
despite the admonition he was given. Substantial evidence
supports the trial court’s findings.
Nzolameso does not challenge the factual bases of the trial
court’s findings except to insist that actual consent can never be
found where the defendant faces the threat of criminal
prosecution if he refuses. There is simply no language in
Birchfield suggesting that an implied consent law with criminal
penalties attached eviscerates the possibility of finding actual
consent. If that were the case, the third arrestee in Birchfield
would not have been accorded a remand on the issue of actual
consent.
C. The Recent Amendment of The Implied Consent Law
Nzolameso also argues that the Legislature’s decision to
amend California’s implied consent law in response to the
Birchfield decision “strongly indicates” that Nzolameso could not
have freely and voluntary consented to the warrantless blood
draw based on the former law, which was in effect at the time of
his arrest. We are not convinced.
Assembly Bill No. 2717 (Assem. Bill 2717) amended
California’s implied consent laws by clarifying that criminal
penalties do not attach to a suspected drunk driver’s refusal to
submit to a blood test. In pertinent part, Vehicle Code
section 23612 stated that drivers were deemed to have given
9
consent to chemical testing of their blood or breath; and that
failure to submit to such chemical testing would result in both
civil and criminal penalties upon conviction of drunk driving.
(Veh. Code, § 23612, subd. (a)(1)(A) & former subd. (a)(1)(D).)
Former law also stated that the person lawfully arrested for
drunk driving shall be advised that he or she has the choice of
submitting to blood or breath testing. (Veh. Code, § 23612,
subd. (a)(2)(A).)
Current law states that drivers are deemed to have given
consent to chemical testing of their blood or breath; that failure
to submit to the required breath testing will result in civil and
criminal penalties; and that failure to submit to both breath or
blood testing will result in civil penalties only. (Veh. Code,
§ 23612, subds. (a)(1)(A) & (D).) The provision stating a person
lawfully arrested for drunk driving shall be advised that he or
she has the choice of submitting to blood or breath testing
remains the same. (Veh. Code, § 23612, subd. (a)(2)(A).)
Nowhere in the summaries of analysis of Assem. Bill 2717
does the Legislature express concern that the former implied
consent laws were unconstitutional. Rather, the legislative
history reveals that Assem. Bill 2717 was intended to comply,
comport, or be in conformity with Birchfield by clarifying that no
criminal penalty will attach to a driver’s refusal to submit to a
blood test only. (Legis. Counsel’s Dig., Assem. Bill No. 2717
(2018 Reg. Sess.); Sen. Rules Com., Off. of Sen. Floor Analyses,
3d reading analysis of Assem. Bill No. 2717 (2017–2018 Reg.
Sess.).)
Nevertheless, even if the Legislature were concerned that
the former implied consent laws ran afoul of the Fourth
Amendment, our analysis would not change because, as discussed
10
above, Nzolameso gave actual consent to the blood draw. Again,
Birchfield does not render invalid a suspect’s actual consent to a
warrantless blood draw.4
Here Officer Fields informed Nzolameso that he could
choose a breath or blood test. He was told that no sample would
be retained from a breath test; accordingly, he could provide a
blood test in order to retain a sample for testing should he be
criminally prosecuted. The only consequence Nzolameso would
have faced had he chosen a breath test instead of a blood test was
the loss of evidence that may or may not have benefitted him in a
prosecution. Birchfield made clear that its holding barring
warrantless blood tests on pain of criminal penalty should not be
read to “cast doubt” on the constitutionality of “implied-consent
laws that impose civil penalties and evidentiary consequences on
motorists who refuse to comply” with blood tests. (Birchfield,
supra, 136 S.Ct. at p. 2187.)
At the time of his arrest, Nzolameso faced no threat of
criminal penalties for refusing a blood test only. That he chose a
blood instead of a breath test does not render the warrantless
blood draw in his case unconstitutional.
4 Not only does Nzolameso ask us to construe Birchfield as
eviscerating the possibility of actual consent, he is essentially
asking us to analyze his case as if the implied consent law as
applied to him involved only a blood test. Not only would this be
error, it would lead to an absurd result. Under Nzolameso’s
reasoning, a driver could actually consent to the blood test
instead of the breath test and then successfully move to suppress
the results to avoid criminal prosecution entirely.
11
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
12
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NUMBER 13-01-467-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
____________________________________________________________________
IN RE: JAN RISIEN (F/K/A McBRIDE)
____________________________________________________________________
On petition for writ of mandamus
____________________________________________________________________
O P I N I O N
Before Chief Justice Valdez and Justices Yanez and Castillo
Opinion Per Curiam
Relator, Jan Risien (f/k/a McBride), has filed a notice of nonsuit in this cause. In the notice, relator states that she no
longer desires to prosecute her petition for writ of mandamus.
The Court, having considered the documents on file and relator's notice of nonsuit, is of the opinion that relator's petition
for writ of mandamus should be dismissed. Accordingly, relator's petition for writ of mandamus is DISMISSED.
PER CURIAM
Do not publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed this
the 16th day of August, 2001 .
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483 F.3d 1339
Lisa S. RAPP, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 2006-3172.
United States Court of Appeals, Federal Circuit.
April 18, 2007.
Lisa S. Rapp, of Pensacola, Florida, pro se.
Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; and Kathryn A. Bleecker, Assistant Director.
Before NEWMAN, Circuit Judge, ARCHER, Senior Circuit Judge, and PROST, Circuit Judge.
Opinion for the court filed by Circuit Judge, PROST. Opinion dissenting-in-part filed by Circuit Judge NEWMAN.
PROST, Circuit Judge.
1
Petitioner Lisa S. Rapp appeals a decision by the Merit Systems Protection Board ("MSPB" or "Board") affirming an Office of Personnel Management ("OPM") decision terminating her disability annuity. Rapp v. Office of Pers. Mgmt., No. AT844E050056-I-1, 101 M.S.P.R. 132 (M.S.P.B. Dec. 27, 2005). In light of the fact that there is an insufficient basis upon which to determine whether the Board committed procedural error, we vacate the Board's decision and remand for proceedings to determine whether appointment of counsel for Ms. Rapp is warranted.
I. BACKGROUND
2
Ms. Rapp was previously employed as a GS-12 Computer Specialist with the Department of the Navy. During her employment, Ms. Rapp developed severe mental health problems and was unable to meet the requirements of her position. Accordingly, in February 1997, OPM approved her disability retirement based on a medical diagnosis of major depression and anxiety.
3
To continue receiving her disability retirement annuity, Ms. Rapp was subject to annual medical evaluations to certify that she was still mentally disabled. See 5 U.S.C. § 8454 (1986). On March 17, 2004, OPM informed Ms. Rapp that the latest medical report that she submitted was not adequate to complete her annual medical review, and requested additional information. However, rather than providing information supporting her claim, Ms. Rapp submitted a statement from her psychiatrist, Dr. Douglas Fraser, indicating that Ms. Rapp's depression was controllable with medication and that he saw "no signs of psychiatric impairment." Accordingly, OPM held that the information Ms. Rapp submitted failed to establish her continued entitlement to the annuity.
4
Ms. Rapp appealed to the Board and provided additional testimony from a psychologist, Dr. Sandra Adams, indicating that Ms. Rapp still suffered from a major depressive disorder. Although the administrative judge characterized hers as a "troublesome case insofar as the appellant's psychiatrist and psychologist disagree regarding her mental status," Rapp v. Office of Pers. Mgmt., No. AT844E050056-I-1, slip op. at 3 (M.S.P.B. May 27, 2005), the judge found Dr. Fraser's opinion to be more persuasive and concluded that Ms. Rapp had not met her burden of establishing entitlement to continued disability retirement benefits. This decision became final when the full Board denied review of the administrative judge's decision. This appeal followed.
II. DISCUSSION
5
A decision of the MSPB must be affirmed unless it is (1) arbitrary, capricious, an abuse of discretion, 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) (2000); Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140 (Fed.Cir. 1986).
6
On appeal, Ms. Rapp states that she still has continuing health problems, that the Board failed to provide her with the legal information that she needed in order to adequately represent herself, and that OPM misled her about providing information, told her not to send additional documents, and provided a confusing acknowledgment letter. Additionally, Ms. Rapp alleges she was "incompetent and unable to represent [herself] due to illness and medications during the MSPB process." (Petr.'s Br. at 27.) In fact, on September 11, 2006, Ms. Rapp filed a motion asking for legal assistance on this appeal, and included a letter dated August 31, 2006, from a clinical psychologist, Dr. Pashia Groom, stating her evaluation of Ms. Rapp's mental and physical health.
7
On appeal, this court has no authority to review the facts of whether Ms. Rapp is entitled to a disability annuity. Our review is limited to whether there was "a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some error `going to the heart of the administrative determination.'" Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 780-81, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985). We review only Ms. Rapp's arguments concerning procedural rights in light of her having represented, on appeal, that she was not competent to understand the legal requirements and respond to the objections raised by OPM and the administrative judge, and in light of her request for appointment of counsel.
8
Although Ms. Rapp requests appointment of counsel to assist her before this court, we feel that questions regarding her eligibility for appointment of counsel are more appropriately resolved by the Board, in the first instance, in situations such as this case. Moreover, Ms. Rapp's request raises the issue of whether she was ever competent to represent herself before OPM and the Board, which is also appropriately resolved by the Board in the first instance.
9
This court's standard for mental incompetence is an inability to handle one's personal affairs because of either physical or mental disease or injury. An applicant may be "one having some minimal capacity to manage his own affairs, and not needing to be committed. The claimant is not required to have been a raving lunatic continuously." French v. Office of Pers. Mgmt., 810 F.2d 1118, 1120 (Fed.Cir.1987).
10
In French, we previously considered the appointment of counsel for an individual already determined to be incompetent. There, we remanded to the MSPB to formulate procedures to ensure the presence of a competent conservator or attorney in "an apparently nonfrivolous claim of past incompetence by one presently incompetent." Id. Unlike French, however, there has been no determination that Ms. Rapp was ever incompetent. At best, Ms. Rapp was determined to have been previously, but not presently, mentally disabled. Notably, however, mental disability and mental incompetence are not the same thing. See McLaughlin v. Office of Pers. Mgmt., 353 F.3d 1363, 1367 (Fed.Cir.2004) ("A person mentally incompetent ... may not be, ultimately, determined disabled. Moreover, disability ... does not require mental incompetence."). Accordingly, French provides us with little guidance in this case.1
11
The MSPB, however, has vacated initial decisions and remanded appeals for new adjudications when an appellant was unrepresented in the lower proceeding and there were indications below that the appellant was suffering from a psychiatric disorder that was likely to have affected his or her ability to adequately represent him or herself. Connelly v. U.S. Postal Serv., 35 M.S.P.R. 614, 617 (1987); Bergstein v. U.S. Postal Serv., 27 M.S.P.R. 56, 59-60 (1985). However, in the proceedings before the agency or the Board, the appellants in these cases either explicitly stated a belief that they could not adequately represent themselves, or acted in a manner that indicated they may be unable to adequately represent themselves.
12
Here, although Ms. Rapp alleges she raised the issue of her competency before the Board, the record does not reflect whether or not the Board considered the issue. As such, the record is insufficient for us to determine whether or not procedural error was committed when Ms. Rapp was allowed or required to represent herself before the Board. In light of the unusual circumstances of this case, we vacate the Board's decision and remand to the Board for further proceedings to determine, in the first instance and consistent with its own procedures, whether Ms. Rapp was competent to represent herself in the proceedings before the OPM and the Board and, if she was not, to reevaluate her claim once she has acquired or been appointed adequate legal counsel.2,3
COSTS
13
No costs.
VACATED AND REMANDED
Notes:
1
The dissent seems to overlook this fact and implies that this court instructed the MSPB to assist a claimant whenever he or she fails to establish his or her incompetencySee Dissent at 1343-1344. This, however, is not what the court did in French. To the contrary, as discussed above, Mr. French had already been determined to be incompetent, not merely mentally disabled. The only issue was whether Mr. French should be required to establish or allowed to attempt to show his own incompetency for the previous years, without the assistance of counsel. French, 810 F.2d at 1119. The case did not turn on his assertion of previous incompetence, or on his failure to establish such incompetence. Instead, the case turned on the fact that Mr. French was undisputedly incompetent at the time of the hearing. In light of this undisputed incompetence, the court held that Mr. French "alone should not be charged with the task of establishing" his past incompetency. Id. at 1120. As such, the implication that any claimant that asserts mental incompetence is automatically entitled to a remand and appointment of counsel is not supported by the court's holding in French.
The dissent also overstates the holding in the remand from French when stating that "the Board ... held that when the basis of the employee claim is mental illness, an adverse decision should not be rendered until the Board has assured itself that `circumstances conducive to fair adjudication' were obtained." Dissent at 1344-1345. The Board, however, does not appear to have applied such a far-reaching principle. To the contrary, the Board merely directed the Regional Office not to enter an adverse order against Mr. French, who had already been found incompetent at that time, until he found counsel. French v. Office of Pers. Mgmt., 37 M.S.P.R. 496, 499 (1988). If necessary, the Board also authorized the Regional Office to dismiss the case without prejudice to reinstitution of the action "under circumstances conducive to fair adjudication." Id. The Board's directive did not extend to other cases or prohibit rendering adverse decisions against other employees alleging mental illness.
2
The dissent states that these proceedings would be "redundant" because Ms. Rapp "has already failed in representing herself at such a hearing." Dissent at 1343. We disagree, as the record does not reflect that a determination of Ms. Rapp's competency has ever been made. Furthermore, to the extent the hearing to which the dissent refers is the previous MSPB hearing in which Ms. Rapp unsuccessfully attempted to recertify her mental disability, the dissent assumes that Ms. Rapp was ultimately unsuccessful because she was incompetent and not because, as her doctor stated, she was no longer mentally disabled. Such an assumption is unsupported by the record
3
The dissent also provides no basis for its assertion that "the burden should reside with OPM to show that a person who OPM had previously found to be mentally disabled is no longer so." Dissent at 1343. As this court has held before, "the MSPB has the authority to impose on the applicant ... the burden of proving his disability."Lindahl v. Office of Pers. Mgmt., 776 F.2d 276, 280 (Fed.Cir. 1985). Nothing in our case law indicates that this does not extend to persons asserting a mental disability under 5 U.S.C. § 8337(a). In fact, French, the case the dissent relies upon so heavily, makes clear that even a person currently incompetent has the burden of establishing his or her past incompetence. 810 F.2d at 1119.
14
PAULINE NEWMAN, Circuit Judge, dissenting in part.
15
This case illustrates the difficulties confronting pro se appellants who had, and may still have, a mental disability. I agree that further proceedings are warranted, and write separately with respect to the nature of the proceedings.
16
Ms. Rapp, who had been found by OPM to be mentally disabled and was receiving an annuity on that ground, had already established that she was mentally disabled until the period of current review. I agree with the court that it is necessary to determine whether Ms. Rapp is capable of conducting her own legal proceedings, when she says she is not. My concern is that the purpose for which my colleagues remand to the Board, for a hearing whereby she must prove that she is not capable of representing herself, is redundant at this stage, for she has already failed in representing herself at such a hearing. Ms. Rapp is being asked to demonstrate, acting pro se, that she cannot adequately act pro se. In such circumstances, for persons who have previously been found to be mentally disabled, when that person states that she needs help with the requirements of establishing disability, then (1) the Board's procedures established in French v. Office of Pers. Mgmt., discussed post, should be invoked to obtain legal assistance; and (2) the burden should reside with OPM to show that a person who OPM had previously found to be mentally disabled is nonetheless capable of representing herself despite her contrary representation.1
17
* On this appeal, OPM stresses that the Federal Circuit has no authority to review the facts of whether Ms. Rapp is mentally disabled. That is of course correct. We do not review the substance of her past or present disability; the only issue is whether she received the requisite procedural safeguards, that is, whether there was "a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some error `going to the heart of the administrative determination.'" Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 780-81, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985); 5 U.S.C. § 7703(c). Thus in connection with the mental disability claim in French v. Office of Pers. Mgmt., 810 F.2d 1118 (Fed.Cir. 1987), this court instructed the Board to assist the claimant, stating,
18
We agree that French failed to establish his incompetence from 1968 to the present. However, we disagree that he alone should be charged with the task of establishing his case.
19
Id. at 1120. The Board then developed procedures, see French v. Office of Pers. Mgmt., 37 M.S.P.R. 496, 499 n. 4 (M.S.P.B. 1988) ("We are mindful of the court's instruction that special procedures are appropriate in cases of this nature"), and rulemaking followed, see Federal Employees' Retirement System-Disability Retirement, 55 Fed. Reg. 6596, 6597 (1990) (final rule) ("a recent court case, French v. OPM, has resulted in both OPM and the Merit Systems Protection Board taking a more active role in ensuring that such individuals have adequate legal representation before a final decision can be made in their cases").
20
The Federal Circuit has reiterated its concern that the case of mentally disabled employees should be adequately presented when employment-related issues arise. See Harris v. Dep't of Veterans Affairs, 142 F.3d 1463 (Fed.Cir.1998):
21
In French, this court and the Board recognized that a person's mental incompetence may affect his ability to pursue and secure his rights under the law. When the Board is on notice of a person's likely incapacity in connection with a disability retirement application, it must enforce the rules it established in French for such cases.
22
Id. at 1471. The court in Harris stressed that persons "of likely mental incapacity" should not be disadvantaged in the annuity process by that incapacity, stating that
23
we require the Board to follow its own French procedures in determining whether the [agency] breached its duty to assist [the claimant]. In so doing, we implement [the regulations] in a manner which draws the Board, the [agency], and OPM in a cooperative undertaking to assure that persons of likely mental incapacity will not suffer an impairment of their rights on account of their incapacity.
24
Id. at 1472.
25
In the posture of Ms. Rapp's case, she had previously been found by OPM to be mentally disabled, and she requests assistance in complying with the legal requirements for continuation of her disability annuity. Indeed, the requirements that OPM found she did not meet include technical requirements of personnel regulation and legal practice, such as the need to include in the physicians' reports a discussion of "specific job duties," and the need to include medical evidence of her "medical status, treatment/response to treatment, and prognosis." She apparently was not told that she was required to establish that she is mentally disabled for not only the position she previously held, but also any other position that she is qualified for at the same grade or pay level.
26
On appeal to this court, Ms. Rapp states that the Board did not provide her with the legal criteria that she needed in order to meet its requirements, and that the OPM procedures were confusing and misleading. She writes: "I was incompetent and unable to represent myself due to [these] strong debilitating medications with many side effects that directly related to my disabling condition." My colleagues, seeming to prejudge their remand, refer to her "numerous submissions," and OPM also argues the merits of whether her submissions show mental disability. Thus OPM proposes that Ms. Rapp is not entitled to legal assistance based on mental disability because she has tried, albeit unsuccessfully, to meet the requirements of showing mental disability, while Ms. Rapp states that she was not capable of presenting a better case because of her mental disability.
27
When parties are not in equitable balance, the law looks to the placement of the evidentiary burdens. Thus the Board in French held that when the basis of the employee claim is mental illness, an adverse decision should not be rendered until the Board has assured itself that "circumstances conducive to fair adjudication" were obtained. 37 M.S.P.R. at 499. It is appropriate to remand for application of the Board's French-derived guidelines, thereby to implement her request for assistance.
28
The majority's reliance on McLaughlin v. Office of Pers. Mgmt., 353 F.3d 1363 (Fed.Cir.2004), is inapt, for McLaughlin supports the application of French principles to the question of a former federal employee's mental competence to represent himself. Id. at 1368. McLaughlin was decided on the standard of whether the Board's determination was supported by substantial evidence, this court stating, "[a] person mentally incompetent for purposes of the [statutory filing deadline] waiver may not be, ultimately, determined disabled." Id. at 1367. Yet McLaughlin held that the substantial evidence standard was appropriate in reviewing whether a former federal employee who was not found to be mentally incompetent should be excused from a statutory filing deadline. Id. at 1369. Meeting a filing deadline may not require the same mental competence as satisfying several complex legal criteria.
29
My suggestion is a simple one: when OPM has already found a person to be mentally disabled and that person states she is unable to represent herself in the substantive legal process, the burden shifts to OPM to come forward with evidence to show that such a person can nevertheless represent herself. The ultimate burden may indeed remain with the employee, but a prior adjudication of mental disability is properly deemed a prima facie case of mental disability, at least for purposes of providing assistance as in French and ensuing cases.
30
On the facts and procedural posture of this case, a hearing on the threshold question of need for assistance is superfluous, and merely a further delay in resolving the substance of her appeal.
31
Thus I must, respectfully, dissent from the court's procedure whereby, instead of requiring reasonable assistance in determining whether she is still mentally disabled, the court holds that Ms. Rapp must first prove that she is mentally disabled in order to receive assistance in showing that she is mentally disabled.
Notes:
1
The majority opinion has in its footnotes 1-3 inaptly characterized both this position and the leading case in this field,French v. OPM. This court in French did not restrict its ruling to persons already adjudicated as mentally disabled; had Mr. French been in that position, he would not have had to appeal OPM's decision that he was not disabled. Contrary to the majority's statement, my concern is directed only to persons who, like Ms. Rapp, have already been found by OPM to be mentally disabled. I do not propose that anybody at all can simply state that they are not able to represent themselves; they must have already been found to be mentally disabled. Ms. Rapp was so found in 1997, and every year since. Whether she is now cured is of course at issue, but no adjudicatory body has so found and her medical reports are in conflict. Although my colleagues argue that this dissent "overstate[s]" the holding in French, the Board in French actually prohibited the rendering of a decision adverse to Mr. French until he had adequate counsel; this holding speaks for itself, and is not overstated.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-88,232-02
EX PARTE WARMINSKI BRONER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W-024510-02-D-WR IN THE 320TH DISTRICT COURT
FROM POTTER COUNTY
Per curiam.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual
assault and sentenced to imprisonment for life.
Applicant alleges that his parole was denied by the Board of Pardons and Paroles before his
parole was revoked and that he did not received written statements of the parole board’s reasons for
revoking his parole. Applicant has alleged facts that, if true, might entitle him to relief. Ex Parte
Carmona, 185 S.W.3d 492 (Tex. Crim. App. 2006); Ex parte Williams, 738 S.W.2d 257 (Tex. Crim.
App. 1987). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez,
2
334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings
of fact.
The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d), in
that it may order the Texas Board of Pardons and Paroles and/or the Texas Department of Criminal
Justice, Institutional Division to file an affidavit listing Applicant’s sentence begin date, the dates
upon which Applicant was released to any period of parole or mandatory supervision, and the dates
of the issuance of any revocation warrants leading to the revocation of such parole or mandatory
supervision. The affidavit should also state whether Applicant was afforded a parole revocation
hearing, and if not, why not. The affidavit should also state the parole board’s reasons for revoking
Applicant’s parole and whether or not Applicant received written notice of the reasons for
revocation.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If
Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an
attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.
The trial court shall make findings as to whether Applicant received a parole revocation
hearing prior to the denial of his parole, and if not, why not. The trial court shall also make findings
as to the reasons for revocation and whether Applicant received written notice of the reasons for
revocation. The trial court shall also make any other findings of fact and conclusions of law that it
deems relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or
3
deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall
be forwarded to this Court within 120 days of the date of this order. Any extensions of time must
be requested by the trial court and shall be obtained from this Court.
Filed: July 25, 2018
Do not publish
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139 Ill. App.3d 397 (1985)
487 N.E.2d 798
PATRICIA L. BIRCH, Ex'x of the Estate of Charles P. Birch, Deceased, Plaintiff-Appellant,
v.
THE TOWNSHIP OF DRUMMER et al., Defendants-Appellees.
No. 4-85-0204.
Illinois Appellate Court Fourth District.
Opinion filed December 31, 1985.
*398 *399 Michael R. Cornyn, of Allen & Korkowski & Associates, of Rantoul, for appellant.
Hurshal C. Tummelson, of Phebus, Tummelson, Bryan & Knox, of Urbana, for appellees.
Judgment affirmed.
PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:
The plaintiff, Patricia L. Birch, brought this negligence action as executrix of the estate of Charles Birch against the township of Drummer and its highway commissioner, Robert Bell. The plaintiff alleged the defendants had been negligent in failing to warn the decedent of a dangerous condition of their roadway, but a jury returned a verdict in the defendants' favor. On appeal, the plaintiff contends: (1) The jury's verdict is not supported by the evidence; (2) the trial *400 court erred in instructing the jury under section 11-601(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-601(a)); (3) the trial court erred in admitting an inventory of township road signs; and (4) juror misconduct requires reversal.
This case involves an almost head-on collision between automobiles driven by Charles Birch and George Kath. Birch died as a result of injuries received in the accident. The accident occurred on Road 550 North near its intersection with Road 200 East in Ford County. At trial, Kath testified he had driven from Bloomington to Paxton along Road 550 North in the morning of August 21, 1980. At about 8 p.m., he was returning to Bloomington along the same route. Traffic was light, the road was dry, and the weather was clear. Kath did not need his headlights. He was driving at 50 to 55 miles per hour. Kath saw a car heading directly at him just seconds before his car collided with it. He estimated the distance between the cars to be 150 to 200 feet at that point. Kath recalled driving up a slight hill just before the collision. When he saw the other car, Kath applied his brakes and steered right so that his right tires were off the road. Kath recalled seeing an intersection when he stepped on the brake. He did not remember seeing any signs along the road warning of the intersection. Kath also did not recall a jog in the road, nor was he expecting one. Kath could not estimate the speed of the other car, nor could he tell whether it had slowed prior to the accident.
Vail Moore, a civil engineer, prepared a plan and profile of the collision site. He testified the crest of a hill was 50 feet west of the intersection, which was about nine inches lower. Road 550 North was 19 feet wide except for 60 to 65 feet around the intersection, where it was slightly wider. The center of Road 550 North moved nine feet to the south over a distance of 125 feet. This "jog" in the road centered on the intersection. Over the 125 feet, there was a change in elevation of about three feet.
Deputy Sheriff Thomas Duffy was the first officer to arrive at the accident scene. Duffy saw Kath's car sitting in a ditch about two to three feet from the edge of the road. The decedent's car was in the eastbound lane facing west. Duffy determined the point of impact to be in the westbound lane. Duffy also noticed 35- to 40-foot skid marks from the decedent's car, which had been heading east. Kath's car, which had been heading west, left about 20-foot skid marks. In Duffy's opinion, both drivers were in their proper lane of travel before they began to brake. Duffy did not make an accident report because another officer had been dispatched to do so. Duffy stated he made no notes of his investigation and filed no report concerning it. *401 Duffy also identified photographs taken by a newspaper reporter of the scene that evening.
Defendant Bell testified he had authority to request new road signs to be installed. Bell testified there were standard intersection signs 750 feet from each side of the intersection. Nothing about those signs would indicate anything other than a straight-through intersection. The eastbound driver would also see a hill sign before he came to the hill. Bell testified a sign warning of the jog would cost about $40. Bell believed 55 miles per hour was a safe speed to travel through the intersection. He, however, admitted a test had been performed which showed 45 miles per hour was the safe speed. He also stated the eastbound driver would not see the jog in the road until he was 50 to 60 feet from it.
John Baerwald, a doctor of philosophy with specialization in civil and traffic engineering, testified as an expert witness for the plaintiff. Baerwald testified stopping sight distance refers to the distance necessary for a driver to see a six-inch object on the pavement ahead of him and be able to stop before hitting it. On Road 550 North, Baerwald testified the stopping sight distance was 200 feet. According to standards adopted in Illinois, the safe speed for such a distance is 30 miles per hour. For a speed of 55 miles per hour, the safe stopping sight distance is 425 feet.
In Baerwald's opinion, Road 550 North was inadequately signed as of the time of the crash. First, an advisory speed limit of 30 miles per hour should have been posted around the intersection. Also, the intersection sign posted would not have indicated the offset in the road and would have misled motorists. Finally, Chevron signs on each side of the intersection should have been posted to direct the motorist to move to the right.
Baerwald testified the jog in the intersection in close proximity to the crest of the hill created a possibly dangerous situation. He was of the opinion that the inadequate signing had contributed to the crash. Baerwald testified that drivers have a reaction time between 1 and 2 1/2 seconds. He also testified a car travels about 73 feet per second at 50 miles per hour.
The plaintiff testified her husband drove regularly from Ludlow to Bloomington and back again for about one year. He normally drove on Route 9, but she knew Route 9 had been closed prior to her husband's death. She did not know how many times her husband had driven on Road 550 North.
Deputy Sheriff Andrew Miller had investigated the accident and had prepared an accident report. Prior to becoming a deputy sheriff, *402 Miller had been an assistant superintendent of highways for Ford County for 12 years. Miller testified the area near the collision was generally hilly. He knew of no prior accidents near that intersection. Miller measured skid marks from the westbound vehicle, which were 36 feet long. He looked for but did not see any skid marks from the eastbound vehicle. On cross-examination, he testified that a photograph taken of the accident scene showed what appeared to be skid marks made by the eastbound vehicle. Those marks came across the road, rather than going straight down the road. Miller was of the opinion that both vehicles were out of their lanes of traffic at the point of impact. The point of impact was four feet from the edge of the road in the westbound lane, but part of the westbound car would have also been over the center line.
Charles Danner, a civil engineer, testified as an expert witness on the defendant's behalf. Danner had also prepared a plan and profile of the accident site. Danner testified a car could see an oncoming vehicle from about 360 feet away. The first thing visible would be everything on a standard automobile above the driver's eyes, which are normally three feet nine inches above the ground. Danner calculated the stopping sight distance to be 250 feet on Road 550 North. He testified the recommended speed for that distance is between 35 and 45 miles per hour. For 55 miles per hour, a stopping sight distance of 400 feet is recommended. Danner testified that if the jog was a contributing factor to the accident at all, "it would be a very, very minor one."
John Mitchell, a civil engineer, was superintendent of highways for Ford County. Mitchell had never heard of any accidents at that intersection. Mitchell testified he relied on the Manual on Uniform Traffic Control Devices for Streets and Highways issued by the State's Department of Transportation. The manual stated warning signs should be kept at a minimum because too many signs breed disrespect for the signs. The manual also stated a special sign should not be used when a standard one will serve the purpose. Mitchell testified the special sign recommended by Baerwald for the intersection would not have been appropriate because it indicated a sharp turn in the intersection, whereas Road 550 North was a gentle curve through the intersection. Mitchell testified the standard crossroad sign would be appropriate. The manual also indicated intersection signs were permissive or advisory rather than mandatory.
Mitchell testified Road 550 North was a township road used primarily for local traffic. In 1973, the road had a traffic count of 150 cars per day, and in 1980, it was 175 cars per day. Mitchell testified *403 Route 9 had been closed during most of the summer of 1980. In Mitchell's opinion, the existing signs were adequate for the conditions at the intersection. Mitchell also testified he had hired independent engineers to do a study of township roads in Ford County prior to August 21, 1980. Mitchell produced a report and identified it as being prepared by Jerry Lacey and Associates, identified as to defendant's exhibit No. 6 and dated May 23, 1980. Mitchell testified that as he read the report, it indicated the signs at the intersection were the correct ones.
On cross-examination, Mitchell testified the survey did not involve measuring stopping sight distances and that no plans or profiles were done on the roads to determine whether speed limits were adequate. Mitchell also testified that after the accident a reverse curve sign and a 45-miles per hour plate were installed. He testified these signs were put up because the road commissioner had received pressure from several residents of the community who thought something should be done. He testified that he had performed a test to determine the proper speed limit around the curve, and the test showed that 45 miles per hour was proper.
Bell testified that in his opinion the existing signs were adequate for the conditions at the intersection. He had seen those signs just after the accident and testified that although they were slightly faded they were visible to the drivers. Bell testified that after the accident, the signs had been changed because several people had traveled that road and had asked them to "guide them around the corner a little bit safer." He testified there had never been any accidents at the intersection prior to this one.
1 The plaintiff maintains the jury's verdict is not supported by the evidence. She contends the trial court should have entered judgment n.o.v. or, in the alternative, granted a new trial. The standards relating to judgments n.o.v. and to new trials differ slightly. Verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in an aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) On a motion for a new trial, a court will weigh the evidence, set aside the verdict and order a new trial if the verdict is contrary to the manifest weight of the evidence. Mizowek v. De Franco (1976), 64 Ill.2d 303, 356 N.E.2d 32.
The plaintiff asserts the defendants were negligent in not posting an advisory speed limit, in misleading motorists by use of the standard *404 intersection sign, and in failing to warn motorists of the jog in the road. The plaintiff's theory of the case is that each driver was originally in his proper lane of travel. Neither was familiar with the road, and both would have assumed from the intersection sign that the road was straight. Due to the crest of the hill, neither driver could see the jog in the road. When they first saw each other, each would have assumed the other was in the wrong lane. Both of them applied their brakes, but the decedent either lost control of his car or intentionally swerved left in an attempt to avoid the collision.
Had the jury accepted the plaintiff's theory, it did not follow that the defendants were necessarily liable. The court instructed the jury that neither a local public entity nor a public employee is liable for the failure to provide traffic warning signs unless such signs were necessary to warn of a condition which endangered the safe movement of traffic and which was not reasonably apparent to or anticipated by a person in the exercise of due care. (Ill. Rev. Stat. 1979, ch. 85, par. 3-104(b).) From the evidence, the jury could have decided that either or both drivers had not been exercising due care prior to the accident. The jury may simply have concluded the roadway conditions posed no hidden danger to drivers exercising due care.
Much of the plaintiff's case was directed at the failure to post an advisory speed limit. She contends both drivers could have traveled 55 miles per hour because no limit was posted. The plaintiff asserts 55 miles per hour was an unsafe speed because of an inadequate stopping sight distance. The hill limited the available stopping sight distance. It should have been apparent to both drivers. Furthermore, the jury was instructed under section 11-601(a) of the Illinois Vehicle Code, which provides:
"No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway *405 in compliance with legal requirements and the duty of all persons to use due care." Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-601(a).
2 The plaintiff contends the trial court erred in instructing the jury under section 11-601(a) because no evidence indicated the decedent had been speeding. The statute, however, does not address driving over the maximum limit; rather, it imposes a duty on drivers to decrease their speed even when driving under the maximum limit. A person can be driving under the speed limit and still be driving too fast for conditions. (Figarelli v. Ihde (1976), 39 Ill. App.3d 1023, 351 N.E.2d 624.) The evidence of the hill, the intersection, the skid marks from both vehicles, and Kath's testimony concerning his own speed provided support for the instruction.
3 The plaintiff contends the lack of notice of the jog caused the accident. She argues the standard intersection sign misled the drivers. Kath, however, testified he never noticed any sign, and there was no evidence showing that the decedent relied on the sign. From the evidence, the jury could have concluded that the decedent should have been familiar with Road 550 North. Danner testified the two drivers should have been able to see each other when they were 360 feet apart. The jury could have concluded the jog posed no danger to drivers who had properly reduced their speed when approaching the hill and intersection. Additionally, Kath, who had traveled through the majority of the jog before the collision, was able to control his car and move to the right. The decedent, on the other hand, had just reached the start of the jog when the collision occurred. He moved left while the jog itself went right. Finally, Danner was of the opinion that the jog had probably not contributed to the accident.
4, 5 We find ample support for the jury's verdict. Mitchell testified the existing signs were adequate for the road conditions. The plaintiff now asserts Mitchell was not an expert but she never questioned his qualifications at trial. Although Mitchell had not specialized in traffic engineering, he was a civil engineer with years of experience as superintendent of highways. The plaintiff asserts Mitchell's admission that a 45-miles per hour advisory speed limit sign and a reverse curve sign were later posted discredited his other testimony. A post-occurrence change is generally not probative of prior negligence because later carefulness does not necessarily imply prior negligence. (Lundy v. Whiting Corp. (1981), 93 Ill. App.3d 244, 417 N.E.2d 154.) The plaintiff argues that while the post-occurrence change was not evidence of prior negligence, it did serve to impeach Mitchell's testimony concerning the adequacy of the existing *406 signs. Mitchell, however, never testified the new signs were installed because the earlier ones were inadequate. The new signs were posted to appease members of the community who wanted the intersection made "a little bit safer."
6 Besides Mitchell's opinion, there was testimony that the existing signs complied with the State regulations. Mitchell, Bell, and Miller testified no other accidents had ever occurred at that intersection. Evidence of the absence of prior accidents is relevant to show that a condition was in fact not hazardous. (Gallick v. Novotney (1984), 124 Ill. App.3d 756, 464 N.E.2d 846.) After carefully reviewing the evidence, we find the trial court properly denied the plaintiff's motions for judgment n.o.v. and for a new trial.
The plaintiff argues the trial court erred in admitting into evidence an inventory of township road signs prepared prior to the accident. Mitchell testified he had hired John Lacey and Associates to perform a safety survey of all county roads. According to Mitchell, the purpose of the survey was to review all traffic signs within the county and determine where additional signs were needed. A map of Drummer Township, showing the location of all traffic signs and indicating which needed to be relocated, replaced or added, was admitted into evidence. The exhibit indicated the signs near the accident site needed to be replaced, but none needed to be added.
The plaintiff maintains the defendants were able to present evidence through the exhibit and Mitchell's testimony that an independent engineering firm had found the existing traffic signs to be adequate for the road conditions. She asserts the exhibit was inadmissible as hearsay. The defendants contend the exhibit was a business record. Supreme Court Rule 236(a) provides a record of an act or other transaction shall be admissible as evidence of the act or transaction if made in the regular course of business and if it was the regular course of business to make such a memorandum of the act or transaction. All other circumstances concerning the making of the record affect the weight of the evidence but not its admissibility. (87 Ill.2d R. 236(a).) The rationale for the rule rests on the notion that in carrying on the proper transaction of business, such records are useless unless accurate. The motive to follow a routine of accuracy, therefore, is great, while the motive to falsify is nonexistent. The records can be either those of a party or of a third person. The modern trend necessarily tends to be more liberal in the admission of business records as business becomes more complex. Cleary & Graham, Handbook of Illinois Evidence sec. 803.10, at 567 (4th ed. 1984).
*407 7 The business-record exception to the hearsay rule depends upon a routine of accuracy. A record made in response to an act which has never previously occurred, however, may still qualify so long as it was made in the regular course of business. (Cleary & Graham, Handbook of Illinois Evidence sec. 803.10, at 573-74 (4th ed. 1984); Newark Electronics Corp. v. City of Chicago (1970), 130 Ill. App.2d 1021, 264 N.E.2d 868.) Mitchell testified he had hired the engineering firm specifically to perform the safety study. The firm prepared a report for each township and a series for the county as a whole. The plaintiff also notes the exhibit indicates the Lacey firm's opinion, but Rule 236(a) does not bar the admission of business records because they contain opinions. That fact constitutes one of the other circumstances which may only affect the weight of the evidence. People ex rel. Schacht v. Main Insurance Co. (1984), 122 Ill. App.3d 826, 462 N.E.2d 670.
8 The plaintiff complains because Mitchell was not associated with the business which prepared the exhibit. The engineering firm, however, prepared the record in question at Mitchell's direction for use in the county's business. A witness may produce business records for admission into evidence even if he is not the original entrant. Anyone familiar with the business and procedure may testify as to the records. (Thomas v. Police Board (1980), 90 Ill. App.3d 1101, 414 N.E.2d 11; Central Steel & Wire Co. v. Coating Research Corp. (1977), 53 Ill. App.3d 943, 369 N.E.2d 140.) We see no difference between this particular report and an audit or inventory report prepared at the request of one business organization by another. The report was useless unless accurate. We also note the report had been prepared approximately three months prior to the accident. Thus, the motive to falsify was nonexistent.
9 The plaintiff complains because she could not question Lacey as to his qualifications. She points out the trial court's refusal to allow the defendants to call Lacey as a witness because he had not been disclosed as an expert prior to trial. The plaintiff argues the defendant succeeded in getting Lacey's testimony into evidence through the "back door." Although Lacey had not been disclosed as a witness, the report, which identified Lacey's firm, had been disclosed. Nothing prevented the plaintiff from calling Lacey as a witness to question him about his qualifications. The plaintiff also notes Mitchell testified the study did not address speed limits or measure stopping sight distance. These matters simply went to the weight accorded the evidence.
At the hearing on the post-trial motion, the trial court stated:
*408 "It is always difficult to know why a jury does what they do. After a jury calendar is over, the jury is discharged, I always try to talk to some of the jurors who are on some of the cases and find out why they did what they did. I talked to a juror here who made an interesting comment that, `Well, we all though the Plaintiff should have had something but not anywhere near what the Plaintiff's lawyer was asking for.'
* * *
Ultimately, apparently what the verdict went off on was the fact that You will recall we came to the conclusion of the evidence one evening and we sent the jury home for the night and we had a jury instruction conference, and the next morning we had closing arguments and instructions and deliberations. At least that's my recollection of how the trial broke off that evening. At any rate, that evening two of the jurors went out to the scene and inspected the curve and came back and persuaded the other ten jurors there was nothing dangerous about that intersection. Apparently that's what the verdict went off on, the inspection, which was not in evidence, by two of the jurors who were persuading the other ten jurors that it was not a dangerous intersection.
It's troublesome that two jurors would go do that. I did not admonish the jurors not to go to the scene. I am always a little hesitant to admonish jurors not to do something * * *. And, in fact, the juror I talked to said, `Oh, yeah! If you told us not to go out there, then all twelve of us would have gone because the other ten of us were kicking ourselves for not having the foresight to go out there and look at the scene.'"
Initially, we wish to state that we do not approve of the trial court's practice of talking with jurors about the case before ruling on the post-trial motion. We also note that while the trial court never directed the jurors not to visit the accident scene, the court did instruct the jury to consider only evidence which had been presented in court.
10, 11 Generally, a jury's verdict cannot be impeached by the testimony of the jurors. A juror, however, can testify as to whether extraneous, prejudicial information was brought to the jury's attention or whether an outside influence was improperly brought to bear upon any juror. (People v. Holmes (1978), 69 Ill.2d 507, 372 N.E.2d 656.) Not every instance in which extraneous or unauthorized information reaches the jury results in reversible error. Only when the losing party suffers prejudice is reversal required. (People v. Palmer *409 (1984), 125 Ill. App.3d 703, 466 N.E.2d 640.) On the other hand, the losing party need not prove actual prejudice. That party need only show that the unauthorized information relates directly to an issue in the case and may have improperly influenced the verdict. (Frede v. Downs (1981), 101 Ill. App.3d 812, 428 N.E.2d 1035; Heaver v. Ward (1979), 68 Ill. App.3d 236, 386 N.E.2d 134.) The burden is then placed on the prevailing party to demonstrate that "no injury or prejudice resulted." 68 Ill. App.3d 236, 242, 386 N.E.2d 134, 139.
In Brown v. Johnson (1978), 60 Ill. App.3d 76, 378 N.E.2d 757, the trial court refused to consider a juror's affidavit which stated one or more of the other jurors had gone to the spot from which a defense witness claimed to have viewed the accident. The appellate court remanded the cause to the trial court for an evidentiary hearing to determine whether the jury had in fact considered extraneous, prejudicial information. On remand, the trial court found no evidence of any juror misconduct, but the appellate court reversed this finding. (Brown v. Johnson (1981), 92 Ill. App.3d 1095, 416 N.E.2d 799.) The court decided the evidence indicated one of the jurors had visited the accident site and viewed the scene from the vantage point of a key witness. The court held the physical characteristics of the scene were vital to the jury's understanding of the events which had transpired, and the parties had presented conflicting evidence on the issue. Moreover, the plaintiff alleged the accident scene had materially and substantially changed between the date of the occurrence and the trial. Under these circumstances, the court held any unsupervised visit was presumptively prejudicial.
12 Unlike Brown, the plaintiff here does not allege the intersection had changed since the accident. Both parties presented their own plan and profile of the intersection and a number of photographs of the accident scene. A verdict in a civil case ordinarily need not be set aside because the jurors made an unauthorized visit to the scene of an accident where the visit disclosed nothing about the location not accurately depicted by photographs, maps, diagrams, or the like lawfully admitted into evidence. (Annot., 11 A.L.R.3d 918, 945 (1967).) When maps and photographs lawfully admitted into evidence correctly depict the area, the prevailing party has met his burden of proving the lack of prejudice. (Newton v. Minneapolis Street Ry. Co. (1932), 186 Minn. 439, 243 N.E.2d 684.) We recognize that, unlike most accident cases, the physical characteristics of the accident scene were crucial to the outcome of the case. The parties, however, did not dispute these characteristics. They disagreed only on the conclusions to be drawn from the evidence.
*410 13 More importantly, we find the plaintiff failed to preserve the issue for review. In all of the previous cases cited, the record contained evidence by way of affidavits or testimony from jurors proving the misconduct had in fact occurred. In the present case, we have only the trial judge's statement relating what a juror had told him. The allowance of a new trial cannot be based upon the trial court's own extrajudicial investigation.
"The rights of litigants in a court of record cannot be left to the mercy of private remarks in the judge's ear." Loucks v. Pierce (1950), 341 Ill. App. 253, 256, 93 N.E.2d 372, 374.
The plaintiff asserts making a more complete record would have been difficult and futile. She contends the trial court already had the information concerning the misconduct and still denied the motion. The court had only an unsworn account from a single juror. The plaintiff contends she had no way of getting the court to disclose the name of that juror. The plaintiff, however, never even asked the judge. Moreover, she certainly knew the names of all the jurors. The plaintiff notes she requested directions from the trial court when she amended her motion for a new trial. The court properly refused this request. A trial judge is not in a position to advise a party on how to proceed with the litigation. The plaintiff still could have obtained affidavits from the jurors or asked leave to present testimony. The court informed counsel of the juror's remarks on January 4. The plaintiff amended her post-trial motion on January 16. The motion was denied on March 1. Throughout this time, the plaintiff failed to present any evidence to substantiate the juror's remarks. By failing to present competent evidence of juror misconduct, the plaintiff waived the issue.
For these reasons, the judgment of the trial court is affirmed.
Affirmed.
GREEN and TRAPP, JJ., concur.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0113n.06
Filed: February 11, 2005
No. 04-5134
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NEVER TELL FARM, LLC, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
v. ) EASTERN DISTRICT OF KENTUCKY
)
AIRDRIE STUD, INC., and )
BLOOMING HILLS FARM, INC., )
)
Defendants-Appellees. )
Before: GILMAN and SUTTON, Circuit Judges; and McKEAGUE, District Judge.*
McKEAGUE, District Judge. This action arises out of the sale of a thoroughbred horse.
At the time of the sale, the horse was owned by a syndicate, consisting of 40 fractional interests, or
shares. The owner of one of the shares objected to the sale, but its exercise of its “first right to
purchase” under the Syndicate Agreement was deemed untimely and rejected by the Syndicate
Manager. In a complaint for specific performance and damages, the aggrieved shareholder alleged
that the Syndicate Manager violated the terms of the Syndicate Agreement. The district court
dismissed the complaint for failure to state a claim upon which relief can be granted. This appeal
followed. For the reasons that follow, we reverse and remand.
________________________
* The Honorable David W. McKeague, United States District Judge for the Western District of Michigan,
sitting by designation.
I. FACTUAL AND PROCEDURAL BACKGROUND1
In September 2003, the stallion “YOU AND I,” retired from active training and racing, was
owned by a syndicate, consisting of 40 fractional interests, or shares, each share representing a 2½
percent co-ownership interest. Management of the syndicate was governed by a Syndicate
Agreement. JA 14-24. Among other things, the Syndicate Agreement defined the rights and
obligations of the co-owners, provided for breeding the stallion, and designated a Syndicate
Manager to supervise and manage the breeding and to keep the books and records of account for the
syndicate co-owners. The Syndicate Manager was appellee Airdrie Stud, Inc. (“Airdrie”), which
kept and managed YOU AND I near Midway, Kentucky.
On September 22, 2003, Brereton C. Jones, President of Airdrie and a syndicate member,
received an offer from appellee Blooming Hills Farm, Inc. (“Blooming Hills”), of Clements,
California, to purchase YOU AND I for the sum of $500,000, subject to certain express conditions.
JA 28. In particular, the offer was contingent upon Blooming Hills securing sufficient control of
YOU AND I to move the stallion to California – through purchase of sufficient shares to confer such
control, or otherwise through agreement of the syndicate members. While this “controlling interest”
condition has not been otherwise defined, the parties appear to understand and agree that it required
Blooming Hills to acquire at least 35 of the 40 syndicate shares. In addition, the offer promised the
sum of $50,000 to Airdrie, as well as lifetime breeding rights to Brereton Jones and two other
persons.
1
The fact summary is drawn from the allegations of plaintiff-appellant Never Tell Farm’s complaint and
exhibits attached thereto, which matters are accepted as true for purposes of evaluating the facial validity of the
complaint.
2
Immediately after receipt of the offer, on September 23, 2003, Jones issued a memorandum
to all syndicate members, advising that Airdrie, as Syndicate Manager, had received an offer to
purchase YOU AND I, in his entirety or a controlling interest, at $12,500 per share. JA 25. The
memorandum advised that Jones believed the offer to be fair and would elect to sell his shares, and
requested co-owners to “vote” whether or not they wished to sell their shares upon the offered terms
as soon as possible.
The following day, appellant Never Tell Farm, LLC (“Never Tell”), owner of one share,
requested a copy of Blooming Hills’ offer. JA 26. Airdrie faxed the copy to Never Tell on
September 25, 2003. JA 27-28. By memorandum dated September 29, 2003, Airdrie advised Never
Tell that 39 of 40 shareholders had voted to sell their shares. JA 29. Airdrie further advised that it
expected to receive wire payment from Blooming Hills the next day and asked Never Tell to indicate
as soon as possible whether it also intended to sell its share. Id. Never Tell responded on October
1, 2003, asking Airdrie to immediately transmit the notice required under § 4.1 of the Syndicate
Agreement to permit exercise of Never Tell’s first right to purchase. JA 30.
At this point, according to the allegations of Never Tell’s complaint, negotiations between
Never Tell and Airdrie ensued. Complaint ¶¶ 13-14; JA 8-9. Airdrie allegedly acknowledged that
Never Tell retained a first right to purchase that had to be honored before YOU AND I could be sold
to Blooming Hills. The negotiations are said to have involved the possibility that Never Tell would
be paid a sum of money and receive a lifetime breeding right in exchange for declining to exercise
its first right to purchase. When the negotiations broke down, Never Tell expressly exercised its first
right to purchase by letter dated October 8, 2003. JA 31. Airdrie responded on October 14, 2003,
informing Never Tell that it had failed to timely assert the right and that YOU AND I had been
3
shipped to Blooming Hills in accordance with the terms of the Syndicate Agreement. JA 33.
Never Tell then commenced this action for specific performance of the Syndicate
Agreement, so as to allow it to acquire the other 39 shares in YOU AND I. Airdrie and Blooming
Hills moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6), contending Never Tell’s own
complaint makes it clear that the terms of the Syndicate Agreement were complied with.
At the heart of the dispute is § 4.1 of the Syndicate Agreement:
IV. TRANSFERS OF FRACTIONAL INTERESTS
4.1 First Right to Purchase. Fractional interests may be assigned and
transferred, subject to the terms and conditions of this Agreement; provided,
however, that the remaining co-owners shall have the first right to purchase any
fractional interest or interests which any co-owner may at any time desire to sell,
except for any sales at public auction as provided for in paragraph 4.5 below. Any
co-owner who receives an acceptable offer shall notify the Syndicate Manager, in
writing, stating the amount of the offer, the name and address of the proposed
purchaser and the terms and conditions thereof. The Syndicate Manager, as agent
for the remaining co-owners, shall have fifteen (15) days immediately thereafter to
accept or reject the offer. Upon receipt of such notice, the Syndicate Manager or his
designated representative shall immediately notify the remaining co-owners of such
offer, and any co-owner who desires to purchase the offered fractional interest or
interests upon such terms and conditions shall so notify the Syndicate Manager, in
writing, within ten (10) days of the mailing of the notice by the Syndicate Manager.
If more than one co-owner desires to accept such offer, then the Syndicate Manager
shall determine the purchase thereof by lot. If the first right to purchase herein
granted is not exercised, the co-owner desiring to sell the fractional interest or
interests may then sell the same to the person originally making the offer upon the
terms stated, subject to the provisions of this Agreement. All such transfers must be
completed within sixty (60) days of the date on which the offer is approved by the
Syndicate.
JA 19 (emphasis added). Both sides contend that this provision is unambiguous and should be
enforced in accordance with its plain meaning. The dispute boils down to the question whether and
when Airdrie, as Syndicate Manager, received notice that a co-owner had received an “acceptable
offer” to purchase that co-owner’s fractional interest or interests.
4
Never Tell insists that the September 22, 2003 Blooming Hills offer, contingent upon
Blooming Hills securing a controlling interest in YOU AND I, was not then acceptable by any co-
owner or by Airdrie as agent for the co-owners, because the assent of the owners of at least 35 shares
was a condition precedent to acceptance. Hence, Never Tell argues, the September 23, 2003
memorandum could not have been the Syndicate Manager’s notice of an acceptable offer and could
not trigger the running of its 10-day period for exercise of its first right to purchase. Rather, notice
that the offer had become “acceptable” is said not to have been given until September 29, 2003,
when Airdrie advised Never Tell that 39 of 40 shareholders had voted to accept Blooming Hills’
offer. Because Never Tell undisputedly asserted its first right to purchase within 10 days thereafter,
on October 8, 2003, it maintains that it timely and effectively asserted the right.
Airdrie and Blooming Hills point out that the September 23, 2003 memorandum included
co-owner Brereton Jones’s statement that “I shall elect to sell my own shares and believe this to be
a fair offer.” JA 25. This was sufficient, they contend, to give Never Tell notice that an
“acceptable” offer had been received by a co-owner. Because Never Tell did not exercise its first
right to purchase within 10 days thereafter, it is said to have effectively waived its right to preempt
the sale to Blooming Hills.
The district court agreed with Airdrie and Blooming Hills and dismissed Never Tell’s
complaint. The district court concluded that “the only notice Never Tell was entitled to receive was
the notice of an offer to purchase.” JA 40. To require the Syndicate Manager, the court reasoned,
to issue a second notice after polling the other co-owners regarding their desire to sell, would be
to improperly read a term into the parties’ unambiguous agreement.
5
II. ANALYSIS
A. Standard of Review
Whether the district court properly dismissed Never Tell’s complaint pursuant to Rule
12(b)(6) is a question of law subject to de novo review. Arrow v. Federal Reserve Bank of St. Louis,
358 F.3d 392, 393 (6th Cir. 2004). Pursuant to Rule 12(b)(6), a complaint may be dismissed if it
fails to state a claim upon which relief can be granted. The reviewing court must construe the
complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations as
true, and determine whether it appears beyond doubt that the plaintiff can prove no set of facts in
support of its allegations that would entitle it to relief. Id. Exhibits attached to the complaint,
treated as part of the complaint “for all purposes,” Fed. R. Civ. P. 10(c), are also to be read in the
light most favorable to the plaintiff. Yet, the reviewing court is not obliged to accept alleged legal
conclusions as true, nor is it required to draw unwarranted factual inferences in the plaintiff’s favor.
Perry v. American Tobacco Co., 324 F.3d 845, 848 (6th Cir. 2003).
B. “Acceptable Offer” Requirement
The Syndicate Agreement, a copy of which is attached to Never Tell’s complaint, expressly
provides that “[t]his Agreement, as well as all instruments pertaining to any right or interest created
hereunder, shall be governed by and construed under the laws of the Commonwealth of Kentucky.”
JA 21. Under Kentucky law, a written instrument free of ambiguity will be enforced strictly
according to its terms. The reviewing court must interpret unambiguous contract terms by assigning
language its ordinary meaning without resort to extrinsic evidence. Frear v. P.T.A. Industries, Inc.,
103 S.W.3d 99, 106 (Ky. 2003). If, on the other hand, an ambiguity exists, “the court will gather,
if possible, the intention of the parties from the contract as a whole, and in doing so will consider
6
the subject matter of the contract, the situation of the parties and the conditions under which the
contract was written, by evaluating extrinsic evidence as to the parties’ intentions.” Id. (footnotes
omitted). A contract provision will be deemed ambiguous only if it is susceptible to two or more
reasonable, but inconsistent interpretations. Id. at n.12.
In dismissing Never Tell’s complaint for failure to state a valid claim, the district court
necessarily concluded that the relevant terms of the Syndicate Agreement are not ambiguous. This
conclusion is understandable, considering each party’s respective insistence that § 4.1 is clear and
unambiguous. Yet, despite the seeming clarity of the § 4.1 language, the present controversy
undeniably stems from two fundamentally different views of the meaning of “acceptable offer,” as
applied to the Blooming Hills offer. If, upon viewing § 4.1 in the light most favorable to Never Tell,
its proffered construction of “acceptable offer” is not shown to be patently unreasonable, then the
term cannot be deemed unambiguous, and dismissal of Never Tell’s claim based on the pleadings,
i.e., without giving the parties opportunity to demonstrate their intentions through extrinsic evidence,
is inappropriate.
The Syndicate Agreement does not define “acceptable offer” or, in particular, “acceptable.”
Kentucky courts often refer to dictionary definitions in order to determine the ordinary meaning of
undefined contract terms. See Commonwealth of Kentucky v. Whitworth, 74 S.W.3d 695, 700 (Ky.
2002); United States Fire Ins. Co. v. Kentucky Truck Sales, Inc., 786 F.2d 736, 739 (6th Cir. 1986);
Ayers v. C & D General Contractors, 237 F.Supp.2d 764, 770 (W.D. Ky. 2002). “Acceptable” is
defined primarily as meaning “capable or worthy of being accepted.” Merriam-Webster Online
Dictionary, available at http://www.m-w.com/cgi-bin/dictionary?acceptable. This definition
highlights precisely the difference between the parties’ instant positions.
7
Never Tell essentially contends that an offer is “acceptable” within the meaning of § 4.1 only
if it is capable of being accepted. Never Tell therefore argues that because the Blooming Hills offer,
as conditioned, was not capable of being accepted by Brereton Jones or Airdrie when it was received
on September 22, 2003, for lack of assent of at least 35 co-owners, it was not an “acceptable offer”
at that time. It follows then, Never Tell argues, that the September 23, 2003 memorandum could
not possibly constitute notice of receipt of an acceptable offer necessary to trigger the 10-day period
for exercise of its first right to purchase.
Airdrie and Blooming Hills, on the other hand, maintain that an offer is acceptable if it is
worthy of being accepted. They insist that because co-owner Jones, on behalf of Syndicate Manager
Airdrie, received an offer from Blooming Hills that was, in his opinion, worthy of being accepted,
he had received an “acceptable offer.” Accordingly, the September 23, 2003 memorandum, advising
the syndicate members that co-owner Jones deemed the offer worthy of acceptance, is said to
constitute the required notice of an acceptable offer.
In our opinion, neither construction of “acceptable offer” is unreasonable; both are plausible
readings of the § 4.1 language. Further, we recognize that most offers that syndicate members
receive from third parties are likely to be “acceptable” in both senses of the word. Yet, as applied
to the Blooming Hills offer, the two constructions are plainly inconsistent. That is, on September
23, 2003, when Jones, on behalf of Syndicate Manager Airdrie, gave notice of Blooming Hills’ offer
to the other co-owners, he gave notice of an offer that was at once worthy of acceptance, but not
capable of acceptance. Whether the offer was “acceptable,” therefore, within the contemplation of
§ 4.1, depends on which of the two reasonable, but different constructions is actually consistent with
the parties’ intentions. In the context of this dispute, it thus appears that “acceptable offer,” a term
8
of seemingly clear and definite meaning, is actually possessed of latent ambiguity.
The district court side-stepped the question, focusing instead on whether Never Tell received
sufficient notice of Blooming Hills’ offer to enable it to exercise its first right to purchase. The
district court held “the only notice Never Tell was entitled to receive was the notice of an offer to
purchase.” JA 40. The court went on to reason that “no reasonably prudent person could conclude
that Plaintiff did not receive sufficient notice.” Id.
In effect, the district court’s ruling could be viewed as reading the adjective “acceptable”
right out of § 4.1, such that notice of receipt by a co-owner of any offer, whether acceptable or not,
would be deemed sufficient to trigger other co-owners’ 10-day period for exercise of their first right
to purchase. Such a construction, deleting or ignoring the word “acceptable,” is at odds with the
court’s duty under Kentucky law to construe the agreement as a whole, “giving effect to all parts and
every word in it if possible.” City of Louisa v. Newland, 705 S.W.2d 916, 919 (Ky. 1986); Cantrell
Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 384-85 (Ky. App. 2002).
Alternatively, the district court’s ruling could be viewed as an implicit endorsement of
Airdrie’s and Blooming Hills’ proffered construction of the term “acceptable offer” as more
reasonable than Never Tell’s. Yet, irrespective of which construction may be more reasonable, the
point is that such an assessment cannot be made on the present record at the pleading stage.
Having identified the latent ambiguity in § 4.1 and finding that Never Tell’s construction is
not implausible or unreasonable, we conclude that Never Tell is entitled under Kentucky law to the
opportunity to substantiate its construction of § 4.1 through resort to extrinsic evidence. The district
9
court erred by denying Never Tell this opportunity.2
III. CONCLUSION
Viewing the complaint and attached exhibits in the light most favorable to Never Tell and
affording Never Tell the benefit of all reasonable inferences that may be drawn from the facts
alleged, we cannot rule as a matter of law that Never Tell can prove no set of facts consistent with
the allegations that would entitle it to relief. In granting the motion to dismiss, the district court
erred. We therefore REVERSE the order of dismissal and REMAND the matter for further
proceedings not inconsistent with this opinion.
2
Insofar as the district court’s ruling implies endorsement not only of appellees’ construction of
“acceptable offer,” but also of their position that Airdrie provided conforming notice thereof to the other co-owners,
we note in passing that the form of the September 23, 2003 memorandum lends precious little support to appellees’
position. See JA 25. The memorandum includes no mention of the first right to purchase, does not solicit a response
in terms of any co-owner’s wish to exercise such right, and does not prescribe a 10-day period for response.
Instead, directly contrary to appellees’ present position, the memorandum appears, on its face, to be designed as a
ballot, to ascertain whether Blooming Hills’ offer would be rendered capable of acceptance through the expressed
assent of the owners of at least 35 of the 40 shares. We recognize that § 4.1 does not prescribe the form of the
Syndicate Manager’s notice to the other co-owners. Still, the apparent incongruence between Airdrie’s present
position and the nature of its own September 23, 2003 memorandum underscores the need to clarify the parties’
intentions through resort to extrinsic evidence, as permitted under Kentucky law.
10
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