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825 F.2d 1381
28 Wage & Hour Cas. (BN 382, 107 Lab.Cas. P 34,950
William E. BROCK III, Secretary of Labor, United StatesDepartment of Labor, Plaintiffs-Appellants,v.BIG BEAR MARKET NO. 3, a corporation; and John Mabee,individually, Defendants-Appellees.
No. 86-6538.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted June 4, 1987.Decided Aug. 24, 1987.
Lauriston H. Long, Washington, D.C., for plaintiffs-appellants.
James S. Munak, San Diego, Cal., for defendants-appellees.
Appeal from the United States District Court for the Southern District of California.
Before HUG and WIGGINS, Circuit Judges, and PRICE,* District Judge.
WIGGINS, Circuit Judge:
1
The Secretary of Labor sued Big Bear Market No. 3 and John Mabee, its Chief Executive Officer and principal stockholder, (collectively "Big Bear") for back pay, damages and injunctive relief under the Fair Labor Standards Act ("FLSA" or "the Act"), 29 U.S.C. Secs. 216(c), 217, for violating the Act's overtime, record-keeping, and child labor provisions, 29 U.S.C. Secs. 207, 211(c), 212(c), 215(a)(2), (4) & (5). After trial the district court awarded back pay and liquidated damages to Big Bear employees it found had worked overtime without compensation in violation of 29 U.S.C. Secs. 207, 215(a)(2). It denied prospective injunctive relief because no violations had occurred in the last three years. The Secretary appeals the district court's denial of an injunction. We reverse and remand.
FACTS AND PROCEEDINGS
2
Big Bear operates retail grocery stores in California. A Department of Labor Wage-Hour Compliance Officer investigated Big Bear in late 1982 to determine its compliance with provisions of the Act. As a result of the investigation, the Secretary sued Big Bear on August 31, 1983 for past and continuing FLSA violations. The Secretary had previously conducted investigations of Big Bear in the 1960's and 1970's, but offered no evidence at trial of violations for past misconduct.
3
The district court found that ten employees covered by the Act had worked unrecorded and uncompensated time ("off-the-clock"); that store managers and upper level managers knew employees worked off-the-clock; and that Big Bear acted willfully and in bad faith in violating the Act. It awarded back pay and liquidated damages to the ten employees. The court also found that minors had operated the power bailing machine at Big Bear Markets in violation of Hazardous Occupation Order No. 12, 29 C.F.R. Sec. 570.63 (1986). Finally, the court exercised its discretion not to grant prospective injunctive relief because the violations took place three years previously and the Secretary made no allegations at trial of subsequent violations.1
DISCUSSION
4
This court reviews a district court's denial of a prospective injunction for abuse of discretion or for application of an erroneous legal principle. SEC v. Goldfield Deep Mines Co., 758 F.2d 459, 465 (9th Cir.1985). The exercise of discretion is not unbridled, Dunlop v. Davis, 524 F.2d 1278, 1280 (5th Cir.1975), and in exercising its discretion the court must give "substantial weight to the fact that the Secretary seeks to vindicate a public, and not a private, right." Marshall v. Chala Enters., 645 F.2d 799, 804 (9th Cir.1981). An appeals court may reverse a district court under the abuse of discretion standard if it has a definite and firm conviction that the district court committed a clear error of judgment upon a weighing of relevant factors. See Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1985) (review of district court's imposition of discovery sanctions under abuse of discretion standard).
5
The purpose of issuing an injunction against future violations is to effectuate general compliance with national policy as expressed by Congress. Chala, 645 F.2d at 804 (citing Mitchell v. Pidcock, 299 F.2d 281, 287 (5th Cir.1962)). Congressional policy is to abolish substandard labor conditions by preventing recurrences of violations in the future. Marshall v. Van Matre, 634 F.2d 1115, 1117 (8th Cir.1980). Prospective injunctions are essential to effectuate that policy because the cost of noncompliance is placed on the employer. Donovan v. Sureway Cleaners, 656 F.2d 1368, 1375 (9th Cir.1981).
6
The district court based its denial of an injunction on the absence of allegations of continuing violations from the time of the conclusion of the government's investigation to the time of judgment three years later. A district court should, in considering whether to grant an injunction, look at evidence of current compliance, especially if compliance has continued for a long period of time. But current compliance alone, particularly when achieved by direct scrutiny of the government, is not sufficient ground for denying injunctive relief. Davis, 524 F.2d at 1281; see also Chala, 645 F.2d at 804 ("present compliance is only one of the factors relevant to the exercise of an informed judicial discretion to determine whether an injunction against future violations is appropriate") (quoting Wirtz v. Milton J. Wershow Co., 416 F.2d 1071, 1072 (9th Cir.1969)); Marshall v. Lane Processing, Inc., 606 F.2d 518, 519 (8th Cir.1979) (though employer in present compliance, presence of other factors support issuance of injunction), cert. denied, 447 U.S. 922, 100 S.Ct. 3013, 65 L.Ed.2d 1114 (1980).
7
In deciding whether to grant injunctive relief, a district court must weigh the finding of violations against factors that indicate a reasonable likelihood that the violations will not recur. A dependable, bona fide intent to comply, or good faith coupled with extraordinary efforts to prevent recurrence, are such appropriate factors. An employer's pattern of repetitive violations or a finding of bad faith are factors weighing heavily in favor of granting a prospective injunction. See, e.g., Davis, 524 F.2d at 1281 (denial of injunctive relief not proper when the employer violated the Act in bad faith, but had ceased his violations following their discovery by the compliance officer and had not resumed them by the time of trial, because the district court did not properly consider the previous conduct of the employer and the dependability of his promises for future compliance); Mitchell v. Hertzke, 234 F.2d 183, 187-88 (10th Cir.1956) (denial of injunctive relief was proper where proven violations were few, not made in bad faith, the employer had made extraordinary efforts to prevent recurrence, and no reasonable grounds existed for believing future violations would occur).
8
Big Bear argues that though the district court made no explicit findings about whether FLSA violations were continuing or were likely to resume in the future, such findings, basic to the Secretary's right to injunctive relief, were impliedly made by the court. It cites Wells Benz, Inc. v. United States, 333 F.2d 89 (9th Cir.1964), for the proposition that findings of fact will be implied to sustain a judgment. However, Wells Benz actually states that "whenever, from facts found, other facts may be inferred which will support the judgment, such inferences will be deemed to have been drawn. The findings of fact by a trial court must receive such a construction as will uphold, rather than defeat, its judgment." Id. at 92 (emphasis added). The district court made no findings of fact from which we can infer a likelihood of future compliance. It said only that no allegations of current noncompliance had been made by the government. On the other hand, the district court found many violations, and found they were willful and in bad faith. Moreover, the record shows no credible promises about future compliance.
CONCLUSION
9
The district court looked only to the lack of evidence of continuing violations to justify denial of an injunction. It did not consider that compliance came only after an investigation and court proceedings were instituted, and that the violations were made in bad faith. It made no findings as to whether the employer had instituted procedures to ensure compliance in the future, nor findings about whether the employer made credible promises about future compliance. The court's denial of prospective relief solely on the basis of present compliance was improper.
10
We REVERSE and REMAND for reconsideration.
*
Honorable Edward Dean Price, United States District Judge, Eastern District of California, sitting by designation
1
The Secretary disputes that no allegations of subsequent violations were made. Because we find current compliance, standing alone, not enough to deny injunctive relief, we need not consider this question
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518 F.Supp.2d 197 (2007)
DIALYSIS CLINIC, INC., Plaintiff,
v.
Michael O. LEAVITT, Defendant.
Civil Action No. 05-604 (GK).
United States District Court, District of Columbia.
October 30, 2007.
*198 Jeffrey C. Clark, McGuire Woods LLP, Chicago, IL, Lauren E. Rosenblatt, McGuire Woods LLP, Baltimore, MD, for Plaintiff.
Charlotte A. Abel, Jonathan C. Brumer, United, States Attorney's Office, Washington, DC, for Defendant.
MEMORANDUM OPINION
GLADYS KESSLER, District Judge.
Plaintiff Dialysis Clinic, Inc. ("DCI") brings this action against Defendant Michael 0. Leavitt, Secretary of the U.S. Department of Health and Human Services ("HHS"),[1] pursuant to Title XVII of the Social Security Act, 42 U.S.C. §§ 1395 et seq. ("the Medicare Act"). DCI is a Tennessee non-profit corporation that owns and operates Medicare-certified end stage renal disease ("ESRD") facilities throughout the United States. Pursuant to Medicare's cost reimbursement program, DCI filed Medicare cost reports on behalf of a number of those ESRD facilities for periods ending September 30, 1994, September 30, 1995, and September 30, 1996 ("Relevant Periods"). DCI included in those cost reports bad debts that it was unable to collect from Medicare recipients for whom the facilities had provided ESRD treatment. The cost reports included $1,033,628 in bad debts relating to the provision of "separately billed items" to Medicare patients. AR 19.
DCI seeks judicial review of a final agency decision to deny reimbursement to those ESRD facilities for a portion of the deductible and coinsurance payments that they were unable to collect from Medicare patients. Specifically, DCI challenges the decision of the Administrator of the Centers for Medicare and Medicaid Services ("CMS") to deny reimbursement pursuant to 42 C.F.R. § 413.170(e) (" § 413.170(e)") for bad debts relating to the "separately billed items" category of services.
This matter is now before the Court, on the parties' cross-motions for summary judgment. Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, and for the reasons stated below, DCI's Motion for Summary Judgment *199 [Dkt. No. 15] is granted, and Defendant's Cross-Motion for Summary Judgment [Dkt. No. 18] is denied.
I. BACKGROUND AND PROCEDURAL HISTORY
A. Statutory and Regulatory Framework
Congress created the Medicare program in 1965 to pay for certain specified, or "covered," medical services provided to eligible elderly and disabled persons. See 42 U.S.C. §§ 1395 et seq. Under the program, health care providers are reimbursed for a portion of the costs that they incur treating Medicare beneficiaries pursuant to an extremely "complex statutory and regulatory regime." Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 404, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993). That regime is administered by the Centers for Medicare & Medicaid Services ("CMS" or "the agency") under the supervision of the Secretary of HHS ("the Secretary") and through a network of fiscal intermediaries, private entities with which the Secretary contracts to review and process Medicare claims in the first instance.
The Medicare Act provides for reimbursement of the "reasonable cost" of services furnished to Medicare beneficiaries. 42 U.S.C. § 1395x (v)(1)(A). "Congress authorized the Secretary of Health and Human Services (Secretary) to issue regulations defining reimbursable costs and otherwise giving content to the broad outlines of the Medicare statute. That authority encompasses the discretion to determine both the `reasonable cost' of services and the `items to be included' in the category of reimbursable services." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 506-07, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (citing 42 U.S.C. § 1395x(v)(1)(A)).
The Medicare program reimburses Medicare-certified ESRD facilities for two categories of items and services provided to program beneficiaries: (1) those items and services contained within the Medicare "composite rate," which is a pre-determined payment for dialysis treatment based on past reasonable costs for such treatment; and (2) separately billed items, which are "add-on" items and services outside of the composite rate. 42 U.S.C. § 1395rr(b)(7), (b)(11). The separately billed items, such as provision of the drug Epoietin, are paid on a charge or flat fee schedule, rather than a reasonable cost or reasonable cost-based prospective payment methodology. A deductible and coinsurance applies to both the composite rate services and the separately billed items.
If, after making reasonable collection efforts, a facility is unable to collect the deductible or coinsurance from the patient, that outstanding amount is treated as a Medicare bad debt. 42 C.F.R. § 413.80(b). Medicare bad debts are "amounts considered to be uncollectible from accounts and notes receivable that were created or acquired in providing services [to Medicare beneficiaries]." Id.
Pursuant to the authority granted by the Medicare statute, the Secretary, by regulation applicable during the Relevant Periods, permitted reimbursement for "allowable Medicare bad debts." 42 C.F.R. § 413.170(e) (1996). Specifically, the ESRD regulation in effect during the Relevant Periods provided, in pertinent part:
(1) HCFA [Health Care Financing Administration] will reimburse each facility its allowable Medicare bad debts, up to the facility's costs as determined under Medicare principles, in a single lump sum at the end of the facility's cost reporting period.
. . .
*200 (3) A facility must request reimbursement for uncollectible deductible and coinsurance amounts owed by beneficiaries by submitting an itemized list of all specific noncollections related to covered services.
42 C.F.R. § 413.170(e) (1996).[2] Defendant concedes that "covered services" includes both composite rate and separately billed items. Def.'s Cross-Mot. at 7.
The regulations also define "allowable bad debt." In a section titled "Criteria for allowable bad debt," the regulations provided that for a Medicare bad debt to be allowable, it must meet the following criteria:
(1) The debt must be related to covered services and derived from deductible and coinsurance amounts.
(2) The provider must be able to establish that reasonable collection efforts were made.
(3) The debt was actually uncollectible when claimed as worthless.
(4) Sound business judgment established that there was no likelihood of recovery at any time in the future.
42 C.F.R. § 413.80(e) (1996)[3] ("§ 413.80(e)"); AR 138; see also Provider Reimbursement Manual § 308. (reiterating those four criteria).[4]
B. Procedural History
DCI filed Medicare cost reports with the fiscal intermediary (Blue Cross and Blue Shield of Georgia) for the Relevant Periods seeking reimbursement for the bad debts of its ESRD facilities. The fiscal intermediary found that, pursuant to the Medicare Provider Reimbursement Manual ("PRM"),[5] ESRD facilities were only entitled to reimbursement for bad debts related to composite rate services, not to separately billed items. See AR 44 (citing Medicare Provider Reimbursement Manual § 2714.2(i)). Relying on the PRM, the fiscal intermediary denied DCI's request for reimbursement for the $1,033,628 of bad debts relating to separately billed items during the Relevant Periods.
*201 On September 18, 1996, DCI filed a request for appeal with the Provider Reimbursement Review Board (the "PRRB") on behalf of four of the facilities. DCI later added additional facilities to the appeal. On November 18, 2004, the PRRB issued a decision reversing the fiscal intermediary's denial of DCI's bad debts claims. Specifically, the PRRB held that
The regulation [42 C.F.R. § 413.170(e)] in effect during the cost report periods appealed is controlling over contrary manual provisions that do not have the force of law. Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). The regulation clearly provides reimbursement for bad debts relating to all covered ESRD items and services. It is, undisputed that the separately billed items in issue are covered under Medicare. Whether the covered services relate to Medicare's composite rate or to separately billed but nonetheless allowable services or items is irrelevant under the regulation. The Board concludes that the Providers' claimed bad debts are reimbursable.
Provider Reimbursement Review Board Decision, Nov. 18, 2004, AR 22.
On December 2, 2004, the fiscal intermediary requested that the CMS Administrator ("Administrator") review the PRRB's decision. In her ruling on January 13, 2005, the Administrator reversed the PRRB, stating that the relevant portions of the Code of Federal Regulations and the PRM provide that bad debts are reimbursable only to the extent they relate to services falling within the composite rate. AR 2-7.
In her decision, the Administrator relied upon (1) the 1997 amendment to § 413.170(e), whose preamble indicated that HHS's policy had always been to allow bad debt reimbursement only for covered services under the composite rate, AR 5-6; and (2) Section 2710.2 of the PRM, which states that "[r]eimbursable bad debts . . . relate to composite rate services and are not for separately billed items," AR 6. She found "that longstanding CMS policy does not allow for the payment of bad debts related to these services, such as the administration of [Epoietin]." Id. Accordingly, she found that "bad debts related to services which are separately [sic], such as the administration of [Epoietin], at issue in this case are not reimbursable as part of the Providers' Medicare bad debts." Id.
In this case, DCI appeals the Administrator's January 13, 2005 decision and asks the Court to reverse and remand for reinstatement of the PRRB's decision.
II. STANDARD OF REVIEW
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits or declarations, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. The parties agree that there are no disputed material facts and this case presents a pure question of law.
Title 42 U.S.C. § 1395oo(f) provides for judicial review of final Medicare provider reimbursement decisions under the terms of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. The APA commands reviewing courts to "hold unlawful and set aside" agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
In reviewing an agency's interpretation of its own regulations, the Court must defer to that interpretation as long *202 as it is reasonable. Shalala v. Guernsey Memorial Hosp., 514 U.S. 87, 115 S.Ct. 1232, 1236, 131 L.Ed.2d 106 (1995). The Court must "give substantial deference to an agency's interpretation of its own regulations." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 506-07, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (internal citations omitted). "An agency's interpretation of the meaning of its own regulations is entitled to deference `unless plainly erroneous or inconsistent with the regulation.'" Nat'l Ass'n of Home Builders v. Defenders of Wildlife, ___ U.S. ___, ___-___, 127 S.Ct. 2518, 2537-38, 168 L.Ed.2d 467, ___-___ (2007) (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)). The Court of Appeals for this Circuit has made clear that "in framing the scope of review, the court takes special note of the tremendous complexity of the Medicare statute. That complexity adds to the deference which is due to the Secretary's decision." Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225, 1229 (D.C.Cir.1994).
This deference, however, is not without limitation. Although the Court should not "disregard an agency's interpretation of its own regulation `unless an alternative reading is compelled by the regulation's plain language,"' PNC Fin, Servs. Group v. Comm'r, 503 F.3d 119, No. 06-1039, 2007 U.S.App. LEXIS 20182, at *32 (D.C.Cir. Aug. 24, 2007) (quoting Air Transp. Ass'n of Am., Inc. v. F.A.A., 291 F.3d 49, 53 (D.C.Cir.2002)), a court does not defer to the administrative construction of the regulation if that construction "is plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). Deference "is warranted only when the language of the regulation is ambiguous." Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000).
III. ANALYSIS
The dispositive question in this case is whether the Administrator's interpretation of the applicable regulations to deny reimbursement for bad debts relating to separately billed items is a reasonable construction of the regulatory language or is "plainly erroneous or inconsistent with the regulation." Auer, 519 U.S. at 461, 117 S.Ct. 905. The Court concludes that the Administrator's interpretation is inconsistent with the applicable regulations.
Section 413.170(e)(1) provides that HCFA (now CMS) will reimburse each facility its "allowable Medicare bad debts." 42 C.F.R. 413.170(e)(1) (1996). Section 413.80(e) plainly provides that "debt related to covered services and derived from deductible and coinsurance amounts" is allowable bad debt, provided it meets certain collection criteria not at issue in this case. 42 C.F.R. 413.80(e) (1996). To request reimbursement, a facility must "submit[] an itemized list of all specific noncollections related to covered services." 42 C.F.R. 413.170(e)(3) (1996) (emphasis added).
None of the regulations governing reimbursement for bad debts carve out any exception for separately billed items. To the contrary, §§ 413.170(e)(3) and 413.80(e) expressly encompass "covered services." Interpreting "covered services" to encompass only "composite rate services" would effectively amend the regulation, thereby circumventing the notice-and-comment procedures required by the APA. See 5 U.S.C. 553(b).[6] Reading *203 §§ 413.170(e) and 413.80(e) together, their plain language clearly provides that HCFA will reimburse facilities their bad debts relating to covered services, which includes separately billed items, up to the facilities' costs.
Defendant's arguments in support of the Administrator's interpretation of the regulations are unpersuasive. First, Defendant argues that the PRM, unchanged since 1983, clearly states that bad debts are reimbursable only where they "relate to Composite Rate services and are not for separately billed items." Def.'s Cross-Mot. at 13 (quoting PRM § 2714.2). The Administrator relied on this provision of the PRM in its reversal of the PRRB decision. AR 6.[7]
It is well-settled that the guidelines cannot "trump" the language of a regulation when the regulation is clear on its face. Christensen, 529 U.S. at 588, 120 S.Ct. 1655 (citing Auer, 519 U.S. at 461, 117 S.Ct. 905). To defer to the agency in the face of those regulations' unambiguous language "would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation." Id. In this case, the language of the regulations unambiguously provides for reimbursement of covered services. The Administrator's reliance on the. PRM to deny reimbursement for a certain class of covered services, i.e. separately billed items, was therefore improper under Christensen.
Second, Defendant argues that DCI ignores the discretion granted by the term "allowable" Medicare bad debts. Def.'s Cross-Mot. at 17-18 (emphasis in Defendant's Mem. of Law). It is Defendant that ignores the language of the regulations, however, not Plaintiff. As discussed above, 42 C.F.R. § 413.80(e) sets forth the criteria for allowable bad debt. Section 413.80(e) does not leave the definition of allowable bad debt to the Secretary's discretion.
Third, Defendant raises, for the first time in his Reply brief, a similar argument regarding the second clause of § 413.170(e)(1). Specifically, Defendant argues that the clause providing for reimbursement up to the facility's costs "as determined under Medicare principles" is ambiguous with respect to which precise "Medicare principles" were being referenced. Def.'s Reply at 6. Nor, Defendant argues, does the provision specify how the agency would measure the "facility's costs" under "Medicare principles." Id. at 7. Since agency interpretations of ambiguous regulations are granted deference, Defendant argues, the Court should defer to CMS's interpretation of those ambiguous provisions of § 413.170(e)(1).
The Medicare principle that Defendant would apply is the "anti-cross subsidization principle," i.e. that individuals not covered by Medicare should not have to bear the costs of services provided to Medicare patients. The regulations, in explaining the rationale for Medicare's reimbursement of bad debts, also reference the concern that unpaid portions of "covered services" not be subsidized by non-Medicare patients. See 42 C.F.R. § 413.80(d) (1996). Specifically, the regulations explain that
*204 Under Medicare, costs of covered services furnished to beneficiaries are not to be borne by individuals not covered by the Medicare program, and conversely, costs of services provided for other than beneficiaries are not to be borne by the Medicare program. . . . The failure of beneficiaries to pay the deductible and coinsurance amounts could result in the related costs of covered services being borne by other than Medicare beneficiaries. To assure that such covered service costs are not borne by others, the costs attributable to the deductible and coinsurance amounts that remain unpaid are added to the Medicare share of allowable costs.
42 C.F.R. § 413.80(d).
Defendant argues that "[b]ecause the available evidence suggests that ESRD outpatient facilities are receiving reimbursement [via other Medicare payment provisions] for separately-billed services which exceeds their costs and covers the lost revenue associated with their bad debts, there is no reason for the costs of these services to be shifted to non-Medicare persons. Accordingly, there is little statutory authority for bad debt reimbursement in this instance." Def.'s Reply at 16-17 (citing 42 U.S.C. 1395x(v)(1)(A)).
Defendant's argument "is forfeit because [he] did not raise it earlier." La. PSC v. FERC, 482 F.3d 510, 521. (D.C.Cir. 2007) (citing Grant v. U.S. Air Force, 197 F.3d 539, 542 n. 6 (D.C.Cir.1999) ("[O]ur caselaw makes clear that an argument first made in a reply comes too late.")). Moreover, and most significantly, it was not the basis for the Administrator's decision. The Court "may not supply a reasoned basis for the agency's action that the agency itself has not given.'" Dithiocarbamate Task Force v. E.P.A., 98 F.3d 1394, 1401 (D.C.Cir.1996) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). The Court may consider only the rationale an agency gives for its actions at the time they occur and not "post hoc rationalizations by . . . government agency counsel." Ace Motor Freight, Inc. v. I.C.C., 557 F.2d 859, 864 (D.C. Cir.1977).
Even if the Court were to consider Defendant's belated argument, however, it is unconvincing. Assuming, arguendo, that the anti-cross subsidization principle is a reasonable basis for treating composite rate services and separately billed items differently,[8] Defendant's argument simply cannot overcome the plain language of the regulation to justify denying all reimbursement for bad debts relating to separately billed items. As discussed above, §§ 413.170(e) and 413.80(e) are clear that *205 reimbursement will be provided for Medicare bad debts related to covered services.
Even if the Court interpreted the language Defendant cites "up to the facility's costs, as determined under Medicare principles" to leave to the Secretary's discretion what "Medicare principles" apply in determining the facility's costs, that interpretation merely permits the Secretary to set a limit on the amount of the facility's costs for separately billed items. The plain language of §§ 413.170(e) and 413.80(e) requires reimbursement for separately billed items up to that limit. Whether or not the Secretary may limit the reimbursement pursuant to § 413.170(e)(1), that Section clearly does not allow wholesale elimination of reimbursements for separately billed items, which is what the agency purports to have done in the PRM.
Finally, Defendant's construction of §§ 413.170(e)(1) and 413.80(e), permitting denial of all reimbursement for bad debts relating to separately billed items, renders the term "covered services" meaningless and turns it into nothing more than a synonym for "composite rate services." "It is `a cardinal principle of statutory construction' that `a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.'" TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (internal citation omitted). If the Secretary meant that allowable Medicare bad debts were to include only bad debts related to composite rate services, the regulation would not state that allowable Medicare bad debts include "debt . . . related to covered services." 42 C.F.R. 413.80(e) (1996). CMS's reading of §§ 413.170(e) and 413.80(e) to exclude bad debts relating to separately billed items conflicts directly with the language of those sections.
The regulations at issue in this case cannot bear the meaning that the Defendant assigns to them, i.e. that "covered services" does not mean "covered services," but rather only "composite rate services." Because the Administrator's interpretation of the regulations to allow for such an exception was inconsistent with the plain language of the regulation, it was improper under Seminole Rock, 325 U.S. at 414, 65 S.Ct. 1215.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs Motion for Summary Judgment [Dkt. No. 15] is granted, and Defendant's Cross-Motion for Summary Judgment [Dkt. No. 18] is denied.
An Order will issue with this Memorandum Opinion.
NOTES
[1] Michael O. Leavitt is sued in his official capacity.
[2] All citations herein refer to the Code of Federal Regulations provisions in effect at the time Plaintiffs appealed CMS's denial of their exception requests and filed this case. Section 413.170(e)(3) was amended on August 15, 1997. That section, which has been redesignated as 42 C.F.R. § 413.178(c), now states that "[a] facility must request payment for uncollectible deductible and coinsurance amounts owed by beneficiaries by submitting an itemized list that specifically enumerates all uncollectable amounts related to covered services under the composite rate." 42 C.F.R. § 413.178(c) (emphasis added).
Even though the agency has changed the governing regulation, the Court is required to review DCI's appeal based on the regulation applicable during the Relevant Periods, which in this case is § 413.170. See Nat'l Mining Ass'n v. Dep't of Labor, 292 F.3d 849 (D.C.Cir. 2002)
[3] Since the Relevant Periods, 42 C.F.R. § 413.80(e) has been redesignated as 42 C.F.R. § 413.89(e). 69 Fed.Reg. 48916 (Aug. 11, 2004, effective Oct. 1, 2004). The text of the redesignated regulation is identical to the original version.
[4] Defendant concedes that "[t]he appropriateness of DCI's efforts, if any, to collect the outstanding amounts from beneficiaries is not an issue in this litigation." Def.'s Cross-Mot. at 4 n. 6. Accordingly, only the first criterion that the debt be related to covered services and be derived from deductible and coinsurance amounts is at issue in this case.
[5] CMS (formerly HCFA) issues a Provider Reimbursement Manual that sets forth its interpretations of its Medicare and Medicaid rules and regulations. The PRM is not promulgated pursuant to notice and comment rulemaking procedures under the Administrative Procedure Act ("APA"), 5 U.S.C. § 553.
[6] As indicated above, § 413.170(e) was amended pursuant to notice-and-comment rulemaking on August 15, 1997. Since that amendment occurred after the Relevant Periods, however, the amended regulation does not apply to the reimbursements requested in this case.
[7] The Administrator cited to PRM Section 2710.2, which states that "[r]eimbursable bad debts . . . relate to composite rate services and are not for separately billed items." AR 6. It appears from the parties' submissions that they are referencing the same section cited by the Administrator, although they do not indicate whether CMS has redesignated Section 2710.2 as 2714.2.
[8] DCI argues that the anti-cross subsidization principle supports reimbursement for separately billed items. See Pl.'s Opp'n at 7-9. Our Court of Appeals has expressed a broader concern with § 413.170(as limit on reimbursement. In Kidney Ctr. v. Shalala, 133 F.3d 78, 87 (D.C.Cir.1998), the Court of Appeals, discussing § 413.170(e), concluded that "the Secretary has provided an incoherent justification for her decision to cap reimbursement for bad debts. The only statutory authorization the Secretary relied upon in the rulemaking record for her decision to cap reimbursement for bad debts is the prohibition of crosssubsidization in 42 U.S.C. § 1395x(v). . . . [W]e conclude that the Secretary's explanation for the cap upon bad debt reimbursement [i.e. the prohibition of cross subsidization] . . . is inconsistent with the prospective rate scheme of the [Medicare] statute." Because this Court finds that the Administrator's decision to deny reimbursement for all bad debts relating to separately billed items was unreasonable independent of the anti-cross subsidization principle, it does not reach the question of the validity of treating separately billed items differently on the basis of that principle.
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397 F.3d 488
Lawrence W. OLSON, Individually and as Trustee of the Lawrence W. Olson Charitable Remainder Trust Dated 11/01/92, Plaintiff-Appellant,v.WEXFORD CLEARING SERVICES CORP., Defendant-Appellee.
No. 03-1223.
United States Court of Appeals, Seventh Circuit.
Argued April 12, 2004.
Decided February 3, 2005.
Peter B. Shaeffer (argued), Chicago, IL, for Plaintiff-Appellant.
Robert P. Bramnik (argued), Duane Morris, Chicago, IL, for Defendant-Appellee.
Before WOOD, EVANS, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge.
1
Suspecting that something was fishy with his brokerage accounts, Lawrence Olson initiated arbitration proceedings before the National Association of Securities Dealers (NASD) against a number of entities, including Wexford Clearing Services Corporation, the firm responsible for clearing the trades placed by Olson's brokerage firm. Approximately four months after the arbitration panel dismissed Wexford from the proceedings, Olson filed a petition in federal court seeking to vacate the dismissal. The district court found that Olson was too late, given the three-month limitations period found in the Federal Arbitration Act (FAA), and dismissed his petition as untimely. We affirm.
2
* In July 1997, Olson transferred certain financial accounts to the brokerage firm of R.D. Kushnir & Co. Kushnir in turn had a clearinghouse agreement with Wexford, under which Wexford performed the ministerial tasks of processing, clearing, and reporting trades placed by Kushnir. Suspecting fraud or other unauthorized activity in his accounts, Olson filed a demand for arbitration before the NASD on July 29, 1998, naming Kushnir and Wexford, among others, in his Statement of Claim. On February 11, 1999, Wexford moved to dismiss Olson's claim against it on the ground that it was not involved in any of the alleged wrongdoing. More than a year later, the NASD informed the parties that a three-member panel had been appointed to hear the arbitration. Olson promptly petitioned the panel for permission to submit an Amended Statement of Claim. It granted his request, and on July 14, 2000, Olson filed the amended statement. Before that occurred, however, Kushnir was placed in receivership, which had the effect of terminating the arbitration with respect to it. On July 24, 2000, Wexford renewed its motion to dismiss the Amended Statement of Claim. Seven months later, on February 18, 2001, the chair of the arbitration panel granted that motion in a two-page decision announcing that Olson's claim against Wexford was dismissed in its entirety.
3
Unhappy with this result, Olson asked the panel to reconsider its decision. His reason was largely technical: the panel's disposition was rendered by the chair alone, and not the full three-member panel required by the NASD rules. Wexford did not oppose Olson's request, and the panel decided to rehear arguments on Wexford's motion to dismiss on April 15, 2002, a key date in our resolution of this appeal. On that day, the panel heard oral arguments on Wexford's motion and considered matters concerning the other parties to the arbitration. At the conclusion of Olson's and Wexford's arguments, the panel again found in favor of Wexford and issued a "Prehearing Conference Order" stating that Wexford "is hereby dismissed from this arbitration." This order was signed by the chair on behalf of the panel. A little over two months passed before Olson filed a "Motion for Consent to File Second Amended Statement of Claim," which Wexford opposed. On July 29, 2002, the arbitration panel issued a letter to Olson, stating that after "careful review," it was denying his request to amend his Statement of Claim for the second time.
4
Olson then turned to the federal court. On October 24, 2002, Olson filed this action to vacate the arbitral decision dismissing Wexford from the case. The district court properly invoked its diversity jurisdiction to consider the motion because Olson is a citizen of Illinois and Wexford is incorporated in Delaware with its principal place of business in New York. The amount in controversy exceeded $75,000. Olson urged the district court to grant him relief under the FAA, 9 U.S.C. § 10, on the theory that the arbitrators "were guilty of misconduct in refusing ... to hear evidence pertinent and material to the controversy." Id. at § 10(a)(3). Olson was aware that the FAA has a three-month limitations period within which challenges to arbitration awards must be filed. See 9 U.S.C. § 12. In his view, however, the clock began to tick on July 29, 2002, the date on which the panel denied his request to file a second amended Statement of Claim. If so, of course, his October 24 suit was timely.
5
Wexford countered that the relevant date for purposes of the limitations analysis was April 15, 2002, when the panel dismissed it as a party to the arbitration proceedings. Under Wexford's theory, Olson was too late because more than three months had passed since the panel made its final decision on April 15. Wexford moved for judgment on the pleadings and, in the alternative, for dismissal for failure to state a claim. The district court agreed with Wexford's analysis and dismissed Olson's petition as untimely.
II
6
In considering a motion for judgment on the pleadings under Rule 12(c) or a motion to dismiss for failure to state a claim under Rule 12(b)(6), we apply the same de novo standard of review. Forseth v. Vill. of Sussex, 199 F.3d 363, 368 n. 6 (7th Cir.2000). The FAA provides, in relevant part, that a party to an arbitration may ask the federal district court to vacate an award:
7
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
8
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
9
9 U.S.C. § 10(a)(3) and (a)(4). As we stated above, Olson relied on § 10(a)(3) in the district court, contending that the arbitrators failed to consider relevant evidence.
10
Any motion to vacate an award under § 10 of the FAA must be served "within three months after the award is filed or delivered." 9 U.S.C. § 12. See Lander Co., Inc. v. MMP Invs., Inc., 107 F.3d 476, 478 (7th Cir.1997); Int'l Union of Operating Eng'rs, Local No. 841 v. Murphy, 82 F.3d 185, 188 (7th Cir.1996); Chauffeurs, Teamsters, Warehousemen and Helpers, Local Union No. 135 v. Jefferson Trucking Co., Inc., 628 F.2d 1023, 1026 (7th Cir.1980). The plain language of § 12 does not provide for any exceptions to the three-month window and says nothing about tolling. See Fradella v. Petricca, 183 F.3d 17, 20 & n. 4 (1st Cir.1999) (applications to modify or clarify arbitral awards do not toll the limitations period under FAA § 12). It is undisputed that Olson did not serve notice of his motion to vacate on Wexford within three months of the panel's order of April 15, 2002 dismissing Wexford.
11
The question, however, is whether the statute began running on April 15, or whether it was triggered only when the panel denied Olson's request to file a second amended complaint on July 29. Our starting point in answering this question is NASD Rule 10330, which requires that an arbitration award include "a summary of the issues, ... the damages and other relief requested, the damages and other relief awarded, [and] a statement of any other issues resolved...." Rule 10330(e). The award is to be in writing and "signed by a majority of the arbitrators or in such manner as is required by applicable law." Rule 10330(a). Such awards may be entered as a judgment in any court of competent jurisdiction. Id. All awards issued by arbitrators "shall be deemed final and not subject to review or appeal." Rule 10330(b).
12
Olson argues that the April 15 dismissal of Wexford did not meet the NASD criteria for finality, because the following sentence appeared at the bottom of the Prehearing Conference Order: "This Order shall remain in effect unless amended by the Panel." This language, he asserts, supports the inference that the arbitrators did not consider the dismissal of Wexford to be their final award. The sentence on which Olson is relying, however, must be viewed in context. It is preceded by a section entitled "other rulings," which was addressed to the other parties remaining in the arbitration. NASD Rule 10330(e) explicitly permits an award to include "a statement of any other issues resolved." Taken as a whole, we read the sentence to which Olson draws our attention as one addressed to the parts of the case that were still alive. It is not clear whether the presence of claims against other parties to the arbitration affects the finality of Wexford's dismissal, see IDS Life Ins. Co. v. Royal Alliance Assoc., Inc., 266 F.3d 645, 650 (7th Cir.2001), but Olson has not relied on that theory to reject the April 15 date (not surprisingly, because it would also doom his attempt to characterize the July 29 order as "final"). Under the circumstances, he has forfeited that potential argument, which we reserve for another day.
13
In our view, the April 15 dismissal of Wexford complied with the basic requirements of an "award" under NASD Rule 10330(e). The arbitration panel stated that oral arguments were heard on Wexford's "fully briefed motion," that the panel found "in favor of Respondent Wexford," and that it was dismissing Wexford from the proceeding. It is worth recalling that April 15 was the second time Wexford's motion to dismiss had been set for argument. When the panel chair dismissed Wexford from the arbitration proceeding for the first time on February 18, 2001, he issued a comprehensive and reasoned decision explaining why Olson could not show that Wexford had engaged in any of the alleged wrongdoing. Prior to hearing arguments for the second time, the panel indicated to Olson that the problems identified in the February 18 decision had not adequately been addressed, and it invited him to with-draw his opposition to Wexford's motion. Olson declined to do so and proceeded with oral argument. Under the circumstances, it is not surprising that the panel did not issue a second opinion to accompany its April 15 decision.
14
In determining the finality of an arbitration award, we consider whether "the award itself, in the sense of judgment, order, bottom line, is incomplete in the sense of having left unresolved a portion of the parties' dispute." IDS Life Ins., 266 F.3d at 651. There is nothing incomplete about the order issued on April 15. The order unambiguously states that Wexford is "hereby Dismissed" from the arbitration proceeding and leaves nothing further for the arbitration panel to adjudicate between Olson and Wexford. The arbitrators thought that they were through with the case, see Smart v. Int'l Bhd. of Electrical Workers, Local 702, 315 F.3d 721, 725-26 (7th Cir.2002), and that their award was final. Paganis v. Blonstein, 3 F.3d 1067, 1070-71 (7th Cir.1993) (a dismissal must only make clear that plaintiffs are denied all relief; there are no other "magic words" required). Since the panel's handling of this matter complied with the general requirements of NASD Rule 10330(e), we conclude that the April 15 dismissal of Wexford was a final NASD award.
15
But, Olson argues, even if the April 15 award was sufficiently final to end the case, it had another flaw serious enough to affect the limitations period. NASD Rule 10330(a) requires all awards to be "signed by a majority of the arbitrators." Thus, according to Olson, the April 15 award could not have been a proper award under NASD rules because it was signed by the chair on behalf of the panel. While conceding that" `superficial technicalities' should not control whether a decision in arbitration is final or not," Olson nonetheless urges us to find in his favor on this basis because he believes that the signature requirement is substantively important. In Publicis Communication v. True North Communications, Inc., 206 F.3d 725 (7th Cir.2000), the parties to an arbitration disagreed over the interpretation of a rule requiring the chairman's signature on procedural matters. Noting that either party's interpretation was plausible, we focused on the more relevant issue: that the finality of an arbitration agreement "should be judged by substance and effect, not by superficial technicalities." Id. at 730. Following that general approach, we are unpersuaded that the arguable violation of the NASD rule here should have the drastic consequence of rendering the April 15 decision a nullity. As Wexford points out, the NASD rules do not prohibit the chair from signing an order on behalf of the panel. At the end of the day, this technicality offers no reason to disregard the unambiguous dismissal of Wexford on April 15.
16
Finally, we reject Olson's argument that the June 29 denial of his motion to amend started the three-month limitations clock for purposes of the FAA § 12. The FAA speaks in terms of "awards," and we have found no authority suggesting that a letter denying one party's motion to amend is properly characterized as an award. This letter did not comply with the requirements of an award under NASD Rule 10330. The best analogy is to a motion in federal court under Rule 60(b). The filing of a Rule 60(b) motion to reconsider outside the ten-day window after the judgment does not toll the time for filing an appeal, Fed. R. App. P. 4(a)(4)(A); Bell v. Eastman Kodak Co., 214 F.3d 798, 800 (7th Cir.2000). We see no reason why the same reasoning should not apply in the arbitration context, particularly given the FAA's underlying policy of expeditious dispute resolution. "[T]he purpose of the short periods prescribed in the federal and state arbitration statutes for moving courts to vacate an award is to accord the arbitration award finality in a timely fashion." Jefferson Trucking Co., Inc., 628 F.2d at 1027. This purpose would be severely undermined if the limitations period prescribed in the FAA § 12 were tolled every time a losing party filed the functional equivalent of a motion for reconsideration. See Fradella, 183 F.3d at 20.
17
A party who is uncertain about the finality or appealability of an arbitration award should err on the side of compliance with the FAA § 12, which is not onerous. The FAA authorizes a party to petition the district court if it believes that "a mutual, final, and definite award" was not made. 9 U.S.C. § 10(a)(4). Given the fact that all of Olson's arguments on appeal challenge the finality of the panel's April 15 award, we find it puzzling that he did not move the district court to vacate pursuant to § 10(a)(4). If Olson had proceeded pursuant to § 10(a)(4) within three months after he learned that Wexford was dismissed from the proceeding, he could quickly have brought to the attention of the district court his concern that the award in favor of Wexford might not be final. See Smart, 315 F.3d at 723-24; IDS Life Ins., 266 F.3d at 650-51; cf. Employers Ins. of Wausau v. El Banco De Seguros Del Estado, 357 F.3d 666, 670 (7th Cir.) (suggesting that no fixed deadline applies only when a party files a motion to remand for purposes of clarifying an ambiguous arbitration award), cert. denied, ___ U.S. ___, 125 S.Ct. 62, 160 L.Ed.2d 19 (2004).
18
Olson's decision to proceed under § 10(a)(3) did not alter the requirement that he had to act within three months after the award was "filed or delivered." 9 U.S.C. § 12. Since Olson has not alleged that the April 15 award was improperly filed or delivered, and the record would not support such an allegation, he had to file suit within three months of the April 15 award to preserve his arguments about the arbitrator's alleged misconduct. Papapetropoulous v. Milwaukee Transport Servs., Inc., 795 F.2d 591, 596 n. 8 (7th Cir.1986) (although plaintiff's complaint clearly alleged a violation of the FAA § 10, "this complaint is barred as he failed to file it within the three month statute of limitation time period contained in 9 U.S.C. § 12"). Olson's failure to act within the limitations period bars his action.
III
19
For these reasons, we AFFIRM the judgment of the district court.
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544 U.S. 1008
CAINv.UNITED STATES.
No. 04-9372.
Supreme Court of United States.
April 25, 2005.
1
C. A. 1st Cir. Certiorari denied.
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749 F.2d 38
Skruzny (Vincent V.)v.Freitas (Joseph), Gains (Charles), Rowland (John)NO. CA831723
United States Court of Appeals,ninth Circuit.
OCT 22, 1984
1
Appeal From: N.D.Cal.
2
AFFIRMED.
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849 F.2d 1469
Moodyv.Escovedo*
NO. 88-2416
United States Court of Appeals,Fifth Circuit.
JUN 09, 1988
1
Appeal From: S.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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Rivas v City of New York (2020 NY Slip Op 01293)
Rivas v City of New York
2020 NY Slip Op 01293
Decided on February 25, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 25, 2020
Friedman, J.P., Richter, Webber, Singh, JJ.
11116 157011/17
[*1] Ericka Rivas, et al., Plaintiffs-Appellants,
vThe City of New York, et al., Defendants-Respondents.
Law Office of Ryan S. Goldstein, PLLC, Bronx (Ryan Seth Goldstein of counsel), for appellants.
James E. Johnson, Corporation Counsel, New York (Barbara Graves-Poller of counsel), for respondents.
Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered February 13, 2019, which granted defendants' motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs.
Plaintiffs allege that they suffered personal injuries when they were attacked by a group of unknown assailants as they were visiting an outdoor pool owned and operated by the City defendants.
The complaint was properly dismissed. Although plaintiffs' allegations that defendants failed to provide adequate security personnel gave rise to a general duty of care, plaintiffs failed to plead sufficiently that defendants owed them a special duty of
care (see Valdez v City of New York, 18 NY3d 69, 75 [2011]; Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 451 [2011]; but see Caldwell v Village of Is. Park, 304 NY 268, 273-274 [1952]). Plaintiffs also failed to allege or provide the factual predicate for a special relationship under the special duty doctrine (see Cuffy v City of New York, 69 NY2d 255, 260 [1987]; Blackstock v Board of Educ. of the City of N.Y., 84 AD3d 524 [1st Dept 2011]).
We have considered plaintiffs' remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 25, 2020
CLERK
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24 Cal.2d 720 (1944)
W. R. GRACE & COMPANY (a Corporation) et al., Petitioners,
v.
CALIFORNIA EMPLOYMENT COMMISSION et al., Respondents; FRANK ABELLEIRA et al., Interveners and Respondents.
S. F. No. 16839.
Supreme Court of California. In Bank.
Aug. 18, 1944.
Brobeck, Phleger & Harrison and Gregory A. Harrison for Petitioners.
Earl Warren, Attorney General, Robert W. Kenny, Attorney General, John J. Dailey, Deputy Attorney General, Ralph R. Planteen, Maurice P. McCaffrey, Charles P. Scully, Forrest M. Hill, Glenn V. Walls, Gladstein, Grossman, Margolis & Sawyer, Ben Margolis, William Murrish, Gladstein, Grossman, Sawyer & Edises, Aubrey Grossman and Richard Gladstein for Respondents.
TRAYNOR, J.
The claimants for unemployment insurance benefits herein are longshoremen, members of Local 1-10 of the International Longshoremen's and Warehousemen's Union, District No. 1, who work under a collective bargaining agreement with the Waterfront Employers' Association, an employers' association with a membership substantially the same as that of the former Dock-Checkers Employers' Association. (See Matson Terminals, Inc., v. California Employment Commission, ante, p. 695 [151 P.2d 691].) According to the findings of the Employment Commission the Ship Clerks' Union, a local belonging to the same international as the longshoremen's union, became involved in a dispute with one of the employers, the American-Hawaiian Steamship Company, and on June 14, 1939, called a strike against that company and established picket lines at its dock in San Francisco. Relations were suspended between members of the union and members of the Dock-Checkers Employers' Association, and because of this suspension of relations, checkers and ship clerks failed to report for work on June 17, 1939. The employers concede that because they regarded the strike against the American-Hawaiian Steamship Company a violation of their agreement with the union, they refused to employ any dock-checkers or ship clerks at the San *725 Francisco Bay ports from June 17, 1939, until the termination of the strike on June 27, 1939.
On June 17th various gangs of longshoremen were dispatched by the hiring hall to docks operated by members of the employers' association. At the docks some of the longshoremen were told not to start work unless they would continue without checkers or ship clerks, while others were instructed by the employers or their agents to return to the hiring hall. Some gangs went to work aboard the ships but stopped when they reached that stage of the work where checkers were usually employed. The men worked who were dispatched to docks where union clerks and checkers were not customarily required. Dock checkers and ship clerks keep clerical records of the cargo for the employer, but do no physical work in the loading and discharging of vessels.
Approximately 5,000 longshoremen filed claims for unemployment benefits for the period from June 17, 1939, to June 27, 1939. The adjustment unit of the Division of Unemployment Insurance denied benefits on the ground that the claimants were disqualified under section 56 (a) of the Unemployment Insurance Act. (Stats. 1935, ch. 352, as amended; Deering's Gen. Laws, Act 8780d.) Payments, however, were erroneously made to a number of the claimants. Claimants appealed from the adverse ruling, and the referee after hearing reversed the initial determinations and awarded benefits. Upon the employers' appeal, the commission, with one member dissenting, affirmed the referee's decision upon the ground that claimants were not disqualified under section 56 (a) of the act since the absence of checkers and ship clerks from docks where they were formerly customarily employed was a deviation from the customary method of working and therefore constituted a violation by the employers of the requirement of the collective bargaining agreement that "present practices are to continue in effect." The commission held the claimants eligible to certify for the weeks of waiting period with respect to the unemployment involved, since they had not been previously unemployed long enough to render them eligible for benefits.
Most of the employers thereafter filed actions in the superior court to recover unemployment insurance contributions paid under protest. The employers also petitioned the District *726 Court of Appeal, First Appellate District, Division Two, for a writ of mandamus to compel the commission to vacate its decision and to correct its records by removing therefrom any charges against the employers for payments to claimants for the period from June 17 to June 27, 1939. The District Court of Appeal issued the writ and vacated the commission's decision. Thereafter, upon the petition of the commission and of claimants, who are interveners in the proceeding, this court granted a hearing. By stipulation the case was submitted on the record of the proceedings before the commission with the reservation of the right to try before the court the question whether the parties should have the right to try the case de novo but the question as to this right was not argued.
The commission and claimants contend that the employers are not entitled to the writ, on the ground that they have not exhausted their administrative remedies and can secure adequate relief under the provisions of section 41.1 of the Unemployment Insurance Act. (Deering's Gen. Laws, 1941 Supp., Act 8780d, 41.1; Stats. 1941, ch. 940, p. 2535, 2.) This contention is answered adversely in Matson Terminals, Inc., v. California Emp. Com., ante, p. 695 [151 P.2d 202].
Their contention that the writ should be denied because the charges to the employers' accounts involved in this proceeding are also the subject of the actions pending in the superior court is likewise without merit. [1] The writ of mandamus is not so exceptional in nature, as petitioners suggest, that it is never abated by the pendency of other litigation. Although it was originally a high prerogative writ to which the plea of another action pending was not available (George v. Beaty, 85 Cal.App. 525, 528 [260 P. 386]; Calaveras County v. Brockway, 30 Cal. 325, 337; United States Protective Ass'n v. Board of Police Commrs., 14 Cal.App. 249 [111 P. 755]; Gray v. Mullins, 15 Cal.App. 118 [113 P. 694]), it no longer depends upon prerogative power (Potomac Oil Co. v. Dye, 10 Cal.App. 534, 537 [102 P. 677]; Barnes v. Glide, 117 Cal. 1, 5-6 [48 P. 804, 59 Am.St.Rep. 153]; see 16 Cal.Jur. 763; Hart, An Introduction to Administrative Law, p. 439) and is by statute expressly subject to the rules of practice applicable to other actions when there are no provisions otherwise. (Code Civ. Proc., 1109, 1089; Taylor v. Burks, 6 Cal.App. 225, 228 [91 P. 814]; Jones v. Board of Police Commrs., 141 Cal. 96 [74 P. *727 696]; Barnes v. Glide, supra; see Scott v. Superior Court, 83 Cal.App. 25, 30 [256 P. 603]; People v. Board of Supervisors, 27 Cal. 655.) The provisions of the Code of Civil Procedure thus made applicable to mandamus proceedings include those allowing the defense of "another action pending between the same parties for the same cause." (Code Civ. Prov., 430, 433; Goytino v. McAleer, 4 Cal.App. 655, 659-660 [88 P. 991].) [2] The writ is therefore denied if a similar application between the same parties on the same matter is already pending before another court. (Goytino v. McAleer, supra; McMullen v. Glenn-Colusa Irr. Dist., 17 Cal.App.2d 696, 701-702 [62 P.2d 1083].) The pendency of another action, however, is no defense unless it is "between the same parties for the same cause." (Code Civ. Proc., 430 (3); Knapp v. Knapp, 15 Cal.2d 237, 243 [100 P.2d 759]; Schoonover v. Birnbaum, 150 Cal. 734, 736 [89 P. 1108]; Capuccio v. Caire, 189 Cal. 514, 528 [209 P. 367]; McCormick v. Gross, 135 Cal. 302 [67 P. 766]; O'Hara v. Grand Lodge I. O. G. T., 213 Cal. 131, 144 [2 P.2d 21]; see 1 Cal.Jur. 28- 29, 31.) [3] The superior court actions, which in the view of the commission and claimants abate the present proceedings, are suits to recover unemployment insurance contributions paid by the employers under protest, brought under authority of section 45.10 of the Unemployment Insurance Act. The parties are not the same, for some employers who are petitioners herein, and claimants who are intervenors herein, are not involved. Moreover, those actions challenge the propriety of other contributions in addition to those affected by the commission's decision in the present case, and the two causes of action are not the same. The present petition for a writ of mandamus is to test the validity of the commission's decision that claimants are entitled to the benefits of the Unemployment Insurance Act in the form of payments or credit for the weeks of waiting period, and is in effect an appeal to the courts from a determination under section 67 of the act. An action under section 45.10 is entirely different, simply determining the propriety of the employer's contributions to the fund. (Bodinson Mfg. Co. v. California Employment Com., 17 Cal.2d 321 [109 P.2d 935]; Matson Terminals, Inc., v. California Employment Commission, supra.) Section 67 allows any employer "whose reserve account may be affected by the payment of benefits to *728 any individual formerly in his employ" to become an interested party to the proceeding to determine the validity of the claimant's application for benefits. [4] No cause of action arises under section 45.10 in relation to those benefits unless they actually affect the amount of the employer's contribution and he pays the increased amount under protest. The employer's protest of the amount of the contribution assessed against him may be based upon various grounds having no relation to the validity of benefits paid, and in the present case it is not clear from the complaints in the superior court action that the plaintiffs therein are attempting in that action to challenge the legality of the commission's decision involved in this proceeding. [5] The fact that they may upon a trial seek to support their claims with identical proof is insufficient as a ground of abatement. (Hall v. Susskind, 109 Cal. 203 [41 P. 1012].)
[6] Claimants contend that the present proceeding is barred by the statute of limitations, and argue that it should have been commenced within the time prescribed for bringing an action under sections 45.10 or 41.1 to recover contributions alleged to have been illegally assessed against an employer. Actions brought under those sections, however, not only differ substantially from the proceedings for mandamus involved herein (Bodinson Mfg. Co. v. California Employment Com., supra; Matson Terminals, Inc., v. California Employment Com., supra) but the limitation periods prescribed in those statutes clearly were intended to apply only to actions brought thereunder. They are not made applicable by section 1109 of the Code of Civil Procedure, which specifies for mandamus proceedings only the limitation periods prescribed in part two of that code. (Code Civ Proc., 1109; Jones v. Board of Police Commrs., 141 Cal. 96 [74 P. 696]; Dillon v. Board of Pension Commrs., 18 Cal.2d 427 [116 P.2d 37, 136 A.L.R. 800].) No provision thereof that would bar the present proceeding has been cited. Section 343 of the Code of Civil Procedure, referring to actions not otherwise provided for in the preceding sections of the code, provides simply that such actions must be commenced within four years after accrual of the cause of action. [7] In the present case the commission's decision, though dated April 3, 1940, was not released until May 21, 1941, and the petition for rehearing was not *729 denied until July 19, 1941. The petition for the writ in the present action was filed in February, 1942. This period is well within any applicable statute of limitations, and no facts alleged indicate any laches on the part of petitioners. (See Scott v. Superior Court, 205 Cal. 525 [271 P. 906]; Hayman v. City of Los Angeles, 17 Cal.App.2d 674, 680-681 [62 P.2d 1047].)
The commission and claimants contend that the commission's decision that claimants are eligible to certify for the weeks of waiting period with respect to the unemployment involved, instead of for benefits, prevents application of the disqualification of section 56 (a) since that section refers only to eligibility for benefits. They point out that after the period of unemployment here involved the Unemployment Insurance Act was amended to provide specifically that during the waiting period the claimant must be eligible for benefits in virtually all respects (Deering's Gen. Laws, 1939 Supp., Act 8780d, 57 (d) (3); Stats. 1939, ch. 674, 13), and contend that this amendment should not be applied retroactively. The fact that the statute was thus amended, however, does not necessarily indicate that the law was different before the amendment. [8] Although courts ordinarily infer an intent to change the law from a material change in the language of a statute (People v. Weitzel, 201 Cal. 116, 118 [255 P. 792, 52 A.L.R. 811]; Loew's Inc. v. Byram, 11 Cal.2d 746 [82 P.2d 1]; see Crawford, Statutory Construction [1940], p. 618), the circumstances may indicate merely a legislative intent to clarify the law (Union League Club v. Johnson, 18 Cal.2d 275, 278-279 [115 P.2d 425]; Martin v. California Mut. B. & L. Ass'n, 18 Cal.2d 478, 484 [116 P.2d 71]; San Joaquin Ginning Co. v. McColgan, 20 Cal.2d 254, 263-264 [125 P.2d 36]); see 1 Sutherland, Statutory Construction, [3d ed., 1943] pp. 415, 416, 418). [9] In the present case the fact that claims were being filed in situations such as the present one is enough to warrant the inference that the Legislature intended simply to clarify the law (see Union League Club v. Johnson, supra; San Joaquin Ginning Co. v. McColgan, supra), since even before the amendment the eligibility requirements for the payment of benefits were properly applicable to the waiting period. (Matter of Munterfering, 256 App.Div. 151 [9 N.Y.S. 2d 830]; see Martin v. California Mut. B. & L. Ass'n, supra.) *730 The various disqualifications on eligibility for benefits imposed by the act then in effect clearly indicate that they were intended to apply as well to the waiting period. For example, the act provided that a claimant was not eligible for benefits unless he was physically able to work and available for work whenever called on by his employer and had registered as unemployed and for work (2 Deering's Gen. Laws 1937, Act 8780 (d), 51), and that he was not eligible for benefits for any week in which he had suitable employment (Ibid., 52). The waiting period commenced from the date of his registration (Ibid., 65), but if immediately thereafter he became physically unable to work or was unavailable for work or obtained suitable employment, he would not be entitled to credit for the weeks of waiting period. [10] Since the lapse of the waiting period is simply a prerequisite to the payment of benefits and not an independent privilege conferred by the act, the conditions for eligibility for benefits logically apply to the waiting period. (Matter of Munterfering, 256 App.Div. 151 [9 N.Y.S. 2d 830].) Thus, the disqualification imposed by section 56 if the claimant left his work because of a trade dispute also applied to the waiting period even before the statute specifically so provided. No question of retroactive interpretation of the amendment is therefore involved.
[11] The question of eligibility for credit for the weeks of waiting period as well as for the actual payment of benefits is properly raised in proceedings under section 67 of the act and the appeals allowed from the decisions therein, both under the former provision that the deputy shall determine whether or not the claim is valid and if valid the week with respect to which benefits shall commence (2 Deering's Gen. Laws, 1937, Act 8780d, 67), and under the present provision that the initial determination shall include a determination as to whether benefits are payable. (Stats. 1939, ch. 1085, 3; Deering's Gen. Laws, 1939, Act 8780d, 67.)
Petitioners contend that claimants left their work because of a trade dispute and are therefore disqualified under section 56 (a) of the act. (Stats. 1939, ch. 7, 4; Deering's Gen. Laws, 1939 Supp., Act 8780d, 56 (a).) It is their view that even though the checkers were locked out, their presence was not physically essential to performance of longshore work, and that the commission in determining whether claimants had left their work because of a trade dispute could not properly consider the question whether the checkers' absence created *731 a condition of work in violation of the longshoremen's collective bargaining agreement.
[12] It is not the function of the commission to evaluate the merits of a controversy between an employer and his employees; if a trade dispute exists and the employee leaves his work because of it, he may not receive benefits even though his employer is in the wrong. In some states the unemployment insurance acts specifically provide that workers shall not be ineligible for benefits if the labor dispute is caused by the failure or refusal of the employer to conform to the provisions of any agreement or contract between the employer and employee (2 C.C.H. Unemployment Insurance Service 6214-6215, par. 4034 [Ariz.]; Ibid., p. 7217, par. 4042 [Ark.]; 4 Ibid., p. 32,213, par. 4028 [N.H.]), but the disqualification imposed by section 56 (a) is not contingent upon the merits of the controversy nor was it intended that the commission should become an arbitrator of industrial disputes. The commission therefore exceeded its powers when it determined the merits of the dispute in the present case and awarded benefits or credit for the weeks of waiting period on the basis of that determination.
[13] The fact that the commission based its decision upon erroneous grounds, however, does not of itself warrant the issuance of the writ, if there was other legal justification for the decision. (Ward v. Flood, 48 Cal. 36, 46-47 [17 Am.Rep. 405]; Bank of Italy v. Johnson, 200 Cal. 1, 28-30 [251 P. 784].) In the present case the commission's findings of fact grouped claimants into three classifications: (1) those longshoremen who upon reporting at the docks were told by the employers or their agents not to begin work unless they were willing to continue without checkers; (2) those who stopped working when they reached that stage in their work where checkers are usually employed; and (3) those who were told by the employers to return to the hiring hall, either before or after they had begun work.
[14] Those longshoremen who stopped working when they reached that stage in their work where checkers were usually employed and those who were told by the employers not to commence work unless they were willing to continue without checkers or ship clerks are disqualified under the provisions of section 56 (a). (Matson Terminals, Inc., v. California Employment Commission, ante, p. 695 [151 P.2d 202]; *732 American-Hawaiian Steamship Co. v. California Employment Commission, ante, p. 716 [151 P.2d 213].) Although the commission states in its decision that it was customary for certain work to be done by checkers or clerks and that they were customarily employed at some of the docks, there was no finding that the longshoremen could not do their work without checkers, and the evidence before the commission indicated that they were not essential to the performance of the longshore work. The stoppage of work therefore could not be attributed to any physical inability to continue, and was equivalent to a leaving of work, whether the subsequent departure from the employer's premises was on the longshoremen's own volition or at the employer's direction. [15] The commission and claimants contend, however, that even if claimants left their work, they did not leave because of a trade dispute, but because of a condition of work resulting from a trade dispute, namely, the absence of the checkers or ship clerks. There is little question, however, that the absence of the checkers and ship clerks gave rise to a trade dispute between the employers and the longshoremen independent of the dispute existing between the employers and the ship clerks, for the uncontradicted evidence shows that the longshoremen contended that their collective bargaining agreement required the presence of the ship clerks, while the employers contended that the agreement was not violated by their absence and that even if it were, the longshoremen's remedy under that agreement lay in arbitration. It may be that a clear violation by an employer of a definite and unambiguous term of his contract would constitute the imposition of a more onerous condition of employment rather than a matter subject to a labor dispute. (See 3 C.C.H. Unemployment Insurance Service, par. 1980.155, par. 1980.02.) If, however, the alleged violation is of a general provision, as in the present case, and is denied by the employer, the disagreement gives rise to a labor dispute. Although the commission made the general findings that "no dispute existed between last employer and claimants herein," this finding is nullified by other findings, supported by uncontradicted evidence, indicating that the absence of checkers and ship clerks was the controlling factor in the longshoremen's refusal to work because they regarded it as a breach of the collective bargaining agreement. Since the finding that no dispute existed was coupled with the finding *733 that "none of the claimants herein are members of the Ship Clerks' Union," it was apparently intended to refer only to the original dispute between the ship clerks and the employers. Moreover, it was not essential to disqualification that a dispute exist directly between the longshoremen and the employers; if the former left their work because of the dispute between the employers and the ship clerks, they in effect made the latter dispute their own and are within the disqualification of section 56 (a). (Bodinson Mfg. Co. v. California Emp. Com., 17 Cal.2d 321 [109 P.2d 935].)
[16] The commission and claimants contend that in any event the award in the present case is justified by the provitions of section 58 (a) of the act imposing only a temporary disqualification upon a claimant who leaves his most recent work voluntarily and without good cause. They contend that if the claimants be held to have left their work voluntarily, they should be subject to no more severe penalty than that imposed by section 58 (a) since no formal strike was called by the longshoremen's union and no picket line was established by them, and since those who refused to work did so because of changed conditions of employment. The disqualification imposed by that section, however, is not applicable to a claimant subject to the disqualification imposed by section 56 (a). (See Bodinson Mfg. Co. v. California Emp. Com., supra.)
[17] Those claimants, however, in the third classification described above, who were told by their employers to return to the hiring hall either before or after the commencement of work, did not leave their work within the meaning of section 56 (a) unless they were told to return to the hiring hall because of their refusal to work without checkers. The commission's finding is uncertain in this regard. [18] It appears from the record of the proceedings before the commission that some of the claimants were never dispatched from the hiring hall, although there is evidence that during the period of the dispute between June 17th and June 27th orders for longshoremen were placed by the employers with the dispatcher at the hiring hall that were not filed. These claimants are not disqualified under section 56 (a) unless they refused to be dispatched, in response to the employers' request for longshoremen because they would not work without checkers. There should be a finding by the commission in answer to this question. Moreover, the commission did not *734 identify the claimants that were within the various classifications discussed earlier. The commission should therefore be required to take whatever additional evidence is necessary and to make determinations as to the individual claimants in accord with the views herein expressed. (See Bila v. Young, 20 Cal.2d 865, 870 [129 P.2d 364]; Helvering v. Rankin, 295 U.S. 123, 131 [55 S.Ct. 732, 79 L.Ed. 1343]; Federal Communications Com. v. Pottsville Broadcasting Co., 309 U.S. 134, 145 [60 S.Ct. 437, 84 L.Ed. 656]; Helvering v. Smith, 132 F.2d 965, 968.)
Let a peremptory writ of mandate issue ordering the commission to proceed as herein directed.
Gibson, C.J., Shenk, J., Curtis, J., and Edmonds, J., concurred.
CARTER, J.
I dissent upon the same grounds as set forth in my dissenting opinion in Matson Terminals, Inc., v. California Emp. Com., this day filed, ante, p. 711 [151 P.2d 211].
In this case, however, the initial determination by the adjustment unit was against the employees. On appeal the referee allowed benefits, and the allowance was affirmed by the commission. The unemployment occurred in June, 1939. At that time section 67 of the California Unemployment Insurance Act as amended in 1937 was in effect, and it provided that benefits were payable regardless of any appeal where there had been either an allowance of benefits by the adjustment unit followed by an affirmance by the referee or an allowance by a referee followed by an affirmance by the commission (Stats. 1937, p. 2059). Although the proceedings to determine the claim for benefits occurred after the 1939 amendment went into effect, there is nothing in that amendment to indicate that it is retroactive. The right to benefits regardless of appeal is a substantive right which should not be defeated by a subsequent change in the law at least unless such an intent clearly appears.
In my opinion the writ should be denied.
Schauer, J., concurred.
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78 Ariz. 419 (1955)
281 P.2d 125
James E. WALKER, Jerry I. Hill and Bruce Whitaker, Appellants,
v.
H.L. DUNHAM, Howard W. Gibbons, and J.H. McNeill, composing the Civil Service Board of the City of Phoenix, and LeRoy Brenneman, Secretary of the Civil Service Board of the City of Phoenix, Appellees.
No. 5828.
Supreme Court of Arizona.
April 12, 1955.
Croaff & Croaff, and W.T. Choisser, Phoenix, for appellants.
William C. Eliot, City Atty., and Fred F. Bockmon, Asst. City Atty., Phoenix, for appellees.
*420 WINDES, Justice.
Appellants, James E. Walker, Jerry I. Hill and Bruce Whitaker, were police officers of the city of Phoenix. On December 15, 1951, Walker and Hill received separation notices stating:
"* * * That you have violated the following provisions of Rule VIII of the Civil Service Rules of the City of Phoenix:
"Rule VIII(b) That you have been offensive in your conduct toward the public, and a ward of the City of Phoenix.
"Rule VIII(d) That you have violated a lawful and official regulation and failed to obey the lawful and reasonable direction given to you by your superior officer, which amounts to a serious breach of discipline and which may reasonably be expected to result in lower morale in the organization and to result in injury to the City and the public.
"Rule VIII(i) In that you have been guilty of conduct unbecoming an officer or employee of the City of Phoenix."
On the same day Whitaker received a suspension notice charging:
"* * * That you have violated the following provisions of Rule VIII of the Civil Service Rules of the City of Phoenix:
"Rule VIII(a) That you have been incompetent and inefficient in the performance of your duties.
"Rule VIII (d) That you have violated a lawful and official regulation and failed to obey the lawful and reasonable direction given you by your superior officer, which amounts to a serious breach of discipline and which may reasonably be expected to result in lower morale in the organization and to result in injury to the City and the public."
The aforesaid officers made written answer to the charges and appealed to the Civil Service Board of Phoenix. After hearing and the receipt of evidence concerning the charges, the board sustained the dismissal of officers Walker and Hill and the suspension of officer Whitaker. The officers brought the matter to the superior court of Maricopa County by writ of certiorari. Return was made by the civil service board of the record including a transcript of evidence. After hearing had thereon, the lower court rendered judgment affirming the action of the board. Appellants are here claiming the superior *421 court erred because (1) the civil service board was without jurisdiction to proceed with the hearing and (2) the evidence did not sustain the findings of the board that the officers were guilty of the charges set forth in the notices.
Rule VIII referred to in the aforementioned notices sets forth various causes upon which an officer may be removed or suspended, among which are the following:
"(a) That the employee is incompetent or inefficient in the performance of his duty.
"(b) That the employee has been offensive in his conduct toward his fellow employees, wards of the City, or the public.
"(d) That the employee has violated any lawful or official regulation or order or failed to obey any lawful and reasonable direction given him by his superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in lower morale in the organization or to result in loss, inconvenience, or injury to the City, or the public.
"(i) That the employee has been guilty of any conduct unbecoming an officer or employee of the City."
This rule also provides that the city manager shall sign an order which shall constitute the notice of separation and the "specific charges which shall be set forth clearly and with such particularity as will enable the employee to understand the charges made against him and to answer them."
It will appear that the notices herein charged the officers in the language of the rule and did not specifically set forth the facts which it was claimed constituted the violation of the rule. Appellants contend that the board cannot secure jurisdiction to proceed with the hearing by the filing of charges in this form. They urge that they cannot be put on trial in such manner. Their conduct in the proceedings refutes the possibility they are in any manner prejudiced by being tried without more specific charges. They without objection or request for more specific charges filed written answer denying the charges. Before any evidence was introduced, they were advised they were accused of beating a boy, one Manuel Mendez, on December 12, 1951. They proceeded with the hearing and reception of evidence on these charges without objection. Under these circumstances appellants waived the right to have the charges against them made more specific and the charges being in the language of the rule were sufficiently specific to give the board jurisdiction to proceed with the hearing. It is unnecessary to pass upon the power of the board to proceed with a hearing if upon request an employee was *422 denied the right to be furnished more specific charges.
There is no semblance of merit to the contention of the appellants that the evidence will not sustain the charges made. The court does not weigh the evidence on certiorari. The most it will do is review the same to determine whether there is any evidence to sustain the finding of the board. Gibbons v. Finley, 77 Ariz. 391, 272 P.2d 610. Several disinterested witnesses testified to observing officers Walker and Hill unmercifully beat and kick the prisoner, Manuel Mendez, who the evidence shows was intoxicated. The evidence will support the board in finding that the officers kicked the prisoner while down and went far beyond the use of force necessary to subdue him and were, therefore, guilty of offensive conduct towards a ward of the city or guilty of conduct unbecoming an officer.
There was evidence from which the board might well find that officer Whitaker, while not an active participant in the beating of the prisoner, stood by and made no attempt to interfere for his protection. This would warrant the suspension order under the charge of being incompetent and inefficient in the performance of his duties.
Judgment affirmed.
LA PRADE, C.J., and UDALL, PHELPS and STRUCKMEYER, JJ., concur.
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971 So.2d 880 (2007)
William C. HAUCK, Appellant,
v.
STATE of Florida, DEPARTMENT OF REVENUE, etc., Appellee.
No. 3D07-209.
District Court of Appeal of Florida, Third District.
November 21, 2007.
William C. Hauck, in proper person.
Jason R. Smith, Key West, for appellee.
Before GREEN, LAGOA, and SALTER, JJ.
SALTER, J.
William Hauck, pro se, appeals the circuit court's amended order on a supplemental petition for modification of child support filed by Appellee, the Florida Department of Revenue ("DOR"). The amended order required Hauck to pay child support and arrears accrued since 2004. We affirm in part and reverse in part.
Hauck raises three issues. First, he asserts that he was not provided with financial discovery by his child's mother. In this case, however, the record does not disclose proper service by Hauck of any request for financial disclosure or documents pursuant to the applicable rules of procedure.[1] As a result, no error has been shown on this point.
Second, Hauck argues that the trial court failed to compute the arrearage properly. Paragraph 8.a. of the amended order set the arrearage at $4,000, while paragraph 9.a.(2) of the same order and the income deduction order state that the *882 arrearage amount is $5,600. The DOR brief acknowledges that the amount is $4,000, and the amended order and income deduction order are hereby reversed to the extent they recited the higher amount. Hauck also claims that the amended order failed to credit payments shown by DOR's audit report, but the record below does not reveal any such error.[2]
Third, Hauck argues that the amended order is incorrect because it indicates that: (1) it was entered after a default on his part; and (2) Hauck was not present for the hearing on September 22, 2006. The court minutes are inconclusive on this point, and Hauck did not arrange for a transcript of the hearing to be filed. There is thus no indication from the existing record that Hauck's contentions are correct (although the DOR brief states that Hauck was present), and no demonstration that a different result would have occurred had the form order been completed in accordance with those contentions.
The amended order and income deduction order are affirmed in part and reversed in part. On remand, the arrearage amount is to be entered consistently at $4,000 based on paragraph 8.a. of the amended order and the DOR answer brief.
Affirmed in part and reversed in part.
NOTES
[1] The appendix to Hauck's brief includes an undated "Motions [sic] for Production of Documents," but there is no indication that the paper was filed with the circuit court or served on DOR. The same problem affects Hauck's undated "Answer to Supplemental Petition" in the appendix to his brief.
[2] The copies of money orders attached as an appendix to Hauck's brief are illegible, were not received into evidence below, and are not definitive proof of payment to DOR for payment of the support obligations. To the extent that Hauck believes that any money order was not properly credited, he should submit a clear copy of the money order to DOR with the case information in order to determine whether the original reached DOR for receipt and credit. Fla. Fam. L.R.P. 12.540. If not, Hauck may be able to seek recovery of the amount of any such errant money order from the issuer.
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538 U.S. 925
VOGTv.UNITED STATES.
No. 02-1166.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
2
C. A. 11th Cir. Certiorari denied. Reported below: 48 Fed. Appx. 740.
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178 Conn. 534 (1979)
STATE OF CONNECTICUT
v.
JOHN DE SANTIS
Supreme Court of Connecticut.
Argued May 4, 1979.
Decision released July 31, 1979.
COTTER, C. J., LOISELLE, BOGDANSKI, LONGO and PETERS, JS.
*536 Michael J. Daly III, for the appellant (defendant).
Walter H. Scanlon, chief assistant state's attorney, with whom, on the brief, was Francis M. McDonald, Jr., state's attorney, for the appellee (state).
LOISELLE, J.
The defendant John De Santis was charged in a two-count information with assault with intent to commit murder in violation of General Statutes § 53-12 (Rev. to 1969) and with having a dangerous weapon, a firearm, without a proper permit issued therefor, in a motor vehicle, in violation of General Statutes § 29-38 (Rev. to 1969).[1] He was found guilty of the lesser included offense of aggravated assault on the first count and guilty of the second count as charged. This appeal is taken from the judgment rendered on the verdict.
From the evidence presented, the jury could have found, in part, as follows: Samuel Fenn and the defendant John De Santis went to a friend's apartment in Waterbury late in the afternoon on May 16, 1971. While they were there, Anthony Caruso, the victim, along with three of his friends arrived at the apartment. Fenn became involved in an argument with Caruso and Caruso's friends. When Caruso and his friends were asked to leave, they did and went to the Porter Street Restaurant in Waterbury. The argument apparently concerned an alleged threat Fenn made to one of Caruso's friends which was aimed at Caruso among others. The alleged threat was, "If you guys want to bother me and make trouble for me, I'll blow all your heads off." At first, Fenn denied making the threat, but later conceded: "If I said anything like that, I apologize."
*537 After the argument at the Waterbury apartment, Fenn drove the defendant to his home where the defendant picked up a gun. Fenn then drove to the Porter Street Restaurant, parked outside and blew the horn. Caruso heard the horn, looked out the window and saw Fenn and the defendant parked in the street. Fenn, who was in the driver's seat, and the defendant, who was in the passenger's seat, motioned for him to come outside. Caruso came outside to the car, followed by three of his friends, two of whom had been with him at the Waterbury apartment. Caruso came over to the passenger's side of the car, where the defendant was seated. Fenn and Caruso, continuing their argument, traded some heated words.
Fenn testified that he thought he saw Caruso go for a gun, so he backed up the car and yelled to the defendant, "Shoot him, shoot him." In response, the defendant picked up the gun that he had concealed, pointed it through the car window and shot Caruso in the shoulder.
Following the shooting, Fenn and the defendant went to Fenn's apartment. From there Fenn's wife drove them to Larry Bellemare's house. The defendant, Fenn, Bellemare and his girl friend then left by car for Cape Cod. On their way, they got lost and ended up traveling to Cape Cod by way of Pittsfield, Massachusetts and Bennington, Vermont. Fenn testified that during the trip the defendant disassembled the gun and threw the parts in a lake near Pittsfield, Massachusetts.
While on Cape Cod, Fenn telephoned Lieutenant Angelo Santoro of the Waterbury police and told him that both he (Fenn) and the defendant were involved in the shooting of Caruso. Fenn and the *538 defendant left the Cape the next day, May 17, 1971, to return to Connecticut. Fenn dropped the defendant off in Hartford and continued on to Waterbury where he turned himself in to the police. Three or four days later Fenn brought the defendant to the police station.
At trial, the defendant claimed he was driving Fenn's car and that Fenn was in the passenger's seat. He testified that when they were parked outside the Porter Street Restaurant, he heard someone say, "shoot him," at which point he threw the car into reverse. He further testified that Fenn fired from inside the car as he, the defendant, backed the car up the street.[2]
On appeal, the defendant has raised five assignments of error, all of which are related to evidentiary rulings. The defendant first argues that the court erred in excluding his explanation of why he went to the scene of the shooting. He contends that the crime charged, that of assault with intent to murder, requires proof of a specific intent and that the court erred in excluding evidence that went toward negating specific intent. The actual testimony proffered did not relate directly to the defendant's intent, but was a hearsay revelation of specific prior misconduct on the part of the victim and his friends. Words which tend to prove circumstantially the declarant's feelings or state of mind are admissible. State v. Cronin, 64 Conn. 293, 305-306, 29 A. 536 (1894); McCormick, Evidence (2d Ed.) § 249. The defendant was allowed to testify as to his state of mind;[3] what was excluded was his testimony as to *539 rumors about prior acts of the victim. At the time, although defense counsel took exception to its exclusion, he never claimed that this testimony was admissible for any reason other than that "it goes to his reason for being at Porter Street that evening." See State v. Miller, 154 Conn. 622, 629, 228 A.2d 136 (1967). The testimony about prior acts of the victim in this case did not fit within any exception to the hearsay rule and thus was properly excluded. Even if it were determined that the court erred, it was harmless error as the jury did not find the defendant guilty of the crime charged, but of the lesser included offense of aggravated assault; State v. Whiteside, 148 Conn. 208, 217, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S. Ct. 52, 7 L. Ed. 2d 33 (1961); which does not require specific intent as a necessary element of that crime. State v. Bitting, 162 Conn. 1, 6, 291 A.2d 240 (1971).
The defendant next asserts that the court erred in striking his answer to a question asked by the prosecution. The testimony in issue centered on the confrontation at the Waterbury apartment. On cross-examination, the defendant stated that he was scared. When asked at what point he was scared, he responded that it was when Fenn told him that Caruso and his gang were involved in a recent murder. The court sustained the state's objection and struck the answer. Previously, the defendant had attempted to put in this evidence and the court had not allowed it. Had the defendant claimed self-defense as the reason for shooting at Caruso, his state of mind would have been relevant. It could very well have been affected by his knowledge that the victim had supposedly been involved recently in a murder. "When a defendant charged with murder asserts that he killed in self-defense, his state of *540 mindthe existence and reasonableness of apprehension of such violence by the deceased as to justify the defensive measures adoptedbecomes material." State v. Padula, 106 Conn. 454, 456, 138 A. 456 (1927). The evidence also would have been admissible to show who might be the aggressor. State v. Miranda, 176 Conn. 107, 405 A.2d 622 (1978). In this case, however, the defendant never claimed he acted in self-defense, but rather denied ever shooting at the victim. Whatever the violent character of the victim, it was irrelevant to the defendant's claim that he never shot at Caruso. State v. Townsend, 167 Conn. 539, 561, 356 A.2d 125 (1975).
The claim now raised by the defendant, that this evidence "would have explained the defendant's actions," was never made to the trial court. "If a defendant ... wishes to except to a ruling excluding evidence which was objected to only generally, he must avail himself of the provisions of the rule [Practice Book, 1978, § 288] and state his claim of admissibility.... Since the defendant failed to state the ground for his claim of admissibility, the ruling cannot be held to be reversible error." State v. Hawkins, 162 Conn. 514, 515-16, 294 A.2d 584 (1972); State v. Ferraro, 164 Conn. 103, 107, 318 A.2d 80 (1972); State v. Whiteside, supra, 217. The court was not in error in striking the testimony.
The defendant next contends that the court erred in refusing to permit the defense to cross-examine the state's witness, Fenn, on a point raised on direct examination. On direct examination Fenn testified that when he thought Caruso was going for a gun, he told the defendant to shoot Caruso. During cross-examination he repeated this testimony. He was *541 then asked if he knew that Caruso was carrying a gun. He replied, "He has been known to carry a gun." The defense counsel then asked, "How did you know that?" Fenn replied, "By a previous thing he was involved in about a year and a half ago." He was then asked, "Tell us about it." The state objected on the ground that this testimony was not relevant and the court sustained the objection. There was no claim on the part of the defense that any knowledge Fenn had was anything but a rumor. Further, the defense did elicit from Fenn that Caruso had been known to carry a gun. It is obvious that the defense's only purpose was to put before the jury the claim that Caruso somehow was involved in a murder which had occurred about a year and a half before the incident involving the defendant.
The colloquy between defense counsel and the court as to the admissibility of this testimony is lengthy and unclear. The defendant's main claim for the admissibility of Fenn's testimony was that it established that Fenn was aware of Caruso's propensity for violence. See State v. Padula, supra. At one point, defense counsel stated, "Here we have material information which clearly bears on the case. It is clearly relevant. The state of mind of somebody when he claims to have ordered somebody else to shoot somebody, the reason why he did it, why he knew about that person's reputation for violence, that person's habit of going armed or not armed, are all relevant to what he said and why he said it, and why this thing happened or didn't happen." This statement was made just prior to the court's ruling.
The testimony sought was not evidence of Caruso's violent character or of a violent trait of his but evidence of a specific act. This type of evidence is inadmissible. *542 State v. Martin, 170 Conn. 161, 365 A.2d 104 (1976). This court outlined the rationale for the rule that specific acts are inadmissible to prove a character trait in Richmond v. Norwich, 96 Conn. 582, 597, 115 A. 11 (1921). In State v. Martin, supra, the rule was reiterated, but this court noted that there was a distinction between direct examination eliciting evidence concerning a character trait and cross-examination on that trait once it was put into evidence by the opposing party. See also State v. Townsend, supra, 561; cf. State v. Miranda, supra. The court did not err in excluding this testimony.
The defendant's fourth claim is that the court erred in refusing to permit the defendant to explain why he fled the state after the shooting. The references to the transcript in both briefs reveal that there was an extended explanation given by the defendant, which was in some instances quite detailed. No useful purpose would be served in repeating all of this testimony. The specific ruling relates to the following: Fenn and the defendant had testified as to the events that occurred after the shootinghow they had gone to Cape Cod by way of Vermont. The defendant later testified on his own behalf that on the way back from Cape Cod he had stayed in Hartford while Fenn returned to Waterbury. The defendant was asked why he stayed in Hartford. He replied that he was afraid of a motorcycle club and that Fenn was going to "straighten everything out with the motorcycle club." The claimed error is the sustaining of the state's objection to the next question, "How was he going to do this?" The objection was that the answer would involve "the mental process of somebody else." This type of evidence is hearsay and thus is inadmissible. Wharton, Criminal Evidence (13th *543 Ed.) § 420. Defense counsel made no claim that it came within an exception to the hearsay rule. He merely asserted that the answer would explain the defendant's action. This testimony is inadmissible for a second reason: it is fundamental that a witness must base his evidence on personal knowledge; Gray v. Mossman, 91 Conn. 430, 437-38, 99 A. 1062 (1917); Daily v. Spann, 110 Conn. 312, 313, 147 A. 807 (1929); 2 Wigmore, Evidence (3d Ed.) § 657. It is obvious that whatever knowledge the defendant had was based on Fenn's knowledge of the situation and hence was hearsay. The court was not in error in excluding this evidence.
The defendant's final assignment of error is that the court erred in refusing the defense permission to recall Lieutenant Santoro to establish that Fenn had made a claim or statement to him during his investigation which was contrary to Fenn's testimony at trial. The defendant piggybacks a Brady rule violation; Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); onto this claim. The testimony in issue concerns a telephone call Fenn made to Lieutenant Santoro from Cape Cod the day after the shooting. It is difficult to consider this claimed error in that the excerpts of testimony in the defendant's brief appear to be connected and chronological while in fact they are not. The defendant indicates that one excerpt can be found at certain pages of the transcript, while actually there is a gap of over five hundred pages of testimony between the pages indicated in the brief and the location of the excerpt. The defendant included no narrative in his brief about any of the testimony that occurred between the cited excerpts to aid this court in its determination of the issue presented, and he did not indicate which excerpts preceded or followed *544 each other. Further, the issue is presented in such a way that it is unclear whether the defendant is claiming that the court erred in not allowing further cross-examination of Lieutenant Santoro to attack the credibility of Fenn, or whether he is contending that he was deprived of his due process rights because the prosecution did not reveal to him supposedly exculpatory information. The supposedly exculpatory evidence was a report concerning a statement Fenn made to the police.
Lieutenant Santoro first testified on a Thursday. During this testimony he stated that Fenn called him at about 2 p.m. on May 17, 1971. The defendant's counsel objected to Santoro testifying about any conversation between himself and Fenn. Santoro also testified that Fenn came into the police station that evening and again the defendant's counsel objected to any testimony about his conversation with Fenn. Both objections were sustained. During the course of Santoro's testimony, counsel for both the state and the defense referred to the fact that Santoro was refreshing his memory from notes. Thus, it is undisputable that defense counsel, at the very least, knew of the report and could have examined it after direct examination.
On the next Thursday, Santoro testified in rebuttal for the state concerning the credibility of the defendant's wife. On cross-examination, defense counsel asked for Santoro's notes. Defense counsel realized that he had them when the state's attorney stated, "I think we gave them to you." It is not clear when defense counsel received the notes. It was either immediately after Santoro had first testified a week earlier, as is customary, or sometime during the *545 intervening week. It is clear, however, that defense counsel had these notes prior to Santoro taking the stand the second time, a week later.
After two other witnesses for the state had testified, defendant's counsel moved to cross-examine Santoro on the basis that Santoro's notes recited the fact that Fenn had called him on May 17, and stated that "on the night in question, Freddie Caruso had a gun and pulled it on Porter Street." The claim was made that this statement was both exculpatory and contradicted Fenn's previous trial testimony that he did not see Caruso with a gun but "thought he was reaching for a gun." The nature of the colloquy between counsel and the court makes it clear that the court denied the motion on the basis that the defense had had ample opportunity for cross-examination on this issue on both occasions that Santoro testified because he had used the notes in question in his testimony. Further, defense counsel stated that he did not mind putting into evidence all of Santoro's testimony about the statement that Fenn made over the phone. No objection was made by the state and no offer was made to put the statement in as an exhibit or to read the statement into evidence.
"[C]ross-examination as to the contents of a document and questions at least relating to, if not actually involving, the contents of the document should not be permitted unless the writing is in evidence." Robinson v. Faulkner, 163 Conn. 365, 373, 306 A.2d 857 (1972); Shulman v. Shulman, 150 Conn. 651, 662, 193 A.2d 525 (1963). That aside, a trial court has wide discretion as to the scope of cross-examination. State v. Grasso, 172 Conn. 298, 303, *546 374 A.2d 239 (1977); State v. Palozie, 165 Conn. 288, 297, 334 A.2d 468 (1973). The transcript of Santoro's testimony, which was examined in its entirety by this court, indicates that defense counsel had ample opportunity to cross-examine Santoro "and it is this right which forms the core of the confrontation clause." State v. Burns, 173 Conn. 317, 324, 377 A.2d 1082 (1977); California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). This is especially true in view of the fact that the first time Santoro testified the defense objected to the state's attempt to offer the very evidence he now claims should have been allowed. It is apparent that the report was available at that time. It is also probable that defense counsel had it in his possession after the direct examination of the witness. Neff v. Neff, 96 Conn. 273, 278-79, 114 A. 126 (1921).
Further, even assuming arguendo that the ruling of the court was not within its discretion as discussed above, the exclusion of that facet of the evidence could not have affected the verdict. United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). It must be kept in mind that it is the issue of Fenn's credibility that is the crux of this claimed error. The defendant did not raise self-defense as an issue. Nowhere is it claimed that Fenn told the defendant that he thought Caruso was pulling a gun or in fact was pulling a gun. Nowhere is it claimed by the defendant that if Fenn had been allowed to testify that he had seen Caruso pulling a gun at the time, the verdict in this case would have been different. In view of the extensive cross-examination of Fenn, the testimony of other witnesses that the defendant shot Caruso, and the defendant's defense that Fenn was the one who shot Caruso, Santoro's testimony about the discrepancy *547 between the telephone conversation and Fenn's trial testimony would not have changed the result in this case.
The second prong of the defendant's claim is that, somehow, the refusal of the court to allow the cross-examination violated his right to due process as enunciated in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); and Giles v. Maryland, 386 U.S. 66, 87 S. Ct. 793, 17 L. Ed. 2d 737 (1967). Brady involved the discovery by the defense, after trial, of exculpatory information which had been known to the prosecution but unknown to the defense. In the present case, defense counsel had the notes during the trial. It is not clear when he received them, but he did have them at the time of the state's rebuttal. Whether the court would have extended the right of the defense to question Fenn on his conversation with Santoro after the state's rebuttal is unknown. See Clark v. George B. Wuestefeld Co., 132 Conn. 653, 658, 46 A.2d 841 (1946). It is in this context of uncertainty about whether the information could have been used that the issue is reviewed.
The defense did not specifically request this information as was done in Brady. It only asked for any exculpatory information. Santoro's report stated that Fenn had called and said that Caruso pulled a gun from his belt. In view of the fact that the defendant did not claim that he acted in self-defense this information was not so obviously exculpatory as to give notice to the prosecution that it should turn over the statement to the defense. Where there is a general request for exculpatory matter, and there is no obvious exculpatory character to information in the prosecution's possession, the issue is *548 decided as if no request was made. United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). The issue is whether the materiality of the information is such as to impose a duty upon the prosecution on its own accord to turn that information over to the defense. In Moore v. Illinois, 408 U.S. 786, 795, 92 S. Ct. 2562, 33 L. Ed. 2d 706 (1972), it was noted that there is "no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case." "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense." United States v. Agurs, supra, 109-110. The test for materiality is laid down in Agurs (pp. 112-13) as follows: "[I]f the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt."
Reviewing the entire record, it is indisputable that Santoro's statement that Fenn told him that Caruso pulled a gun, if put into evidence, in contrast to the testimony of Fenn that he thought Caruso was pulling a gun, would not have affected the jury verdict of guilty. The court was not in error in its ruling.
There is no error.
In this opinion the other judges concurred.
NOTES
[1] These alleged crimes were committed prior to the enactment of the present penal code. General Statutes §§ 53a-153a-212 (Rev. to 1979).
[2] Additional facts will be referred to where they are pertinent to a discussion of a specific claim of error.
[3] The defendant on cross-examination and redirect examination, moreover, testified as to why he went to Porter Street.
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46 F.3d 587
UNITED STATES of America, Plaintiff-Appellee,v.Cleo D. STEPHENS, Sr., Defendant-Appellant.
No. 94-1257.
United States Court of Appeals,Seventh Circuit.
Argued Nov. 3, 1994.Decided Jan. 25, 1995*.Rehearing Denied March 20, 1995.**
Michael A. Thill, Asst. U.S. Atty., Andrew B. Baker, Jr., Asst. U.S. Atty. (argued), Dyer, IN, for plaintiff-appellee.
J. Michael Katz, Katz, Brenman & Angel, Merrillville, IN (argued), for defendant-appellant.
Before COFFEY, PRATT,*** and FLAUM, Circuit Judges.
COFFEY, Circuit Judge.
1
Defendant Cleo D. Stephens, Sr. appeals his criminal conviction under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1962(d), and (c). On June 12, 1992, a grand jury returned a thirty-three count indictment against Stephens, a former police officer of Gary, Indiana, and seventeen other defendants who were participating in gambling activities, drug dealing, and bribery at a liquor establishment operated by Sidney Powell in Gary, Indiana. On July 14, 1993, a superseding indictment was filed against Stephens and the other defendants. Count I of the superseding indictment charged Stephens with conducting and participating, directly and indirectly, in a pattern of racketeering activity involving Sidney Powell's illegal gambling and liquor sales operation, a RICO conspiracy in violation of 18 U.S.C. Secs. 1962(c) and (d). The predicate acts upon which the RICO conspiracy charge was based included seventy-five acts of bribery between August 1989 and January 1991, in violation of Indiana Code Sec. 35-44-1-1. Count II charged Stephens with conspiring to distribute and possess with intent to distribute cocaine and heroin, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Count III charged Stephens with violating 18 U.S.C. Sec. 1955 by conducting an illegal gambling business, and aiding and abetting the business. Stephens entered a plea of not guilty to all three counts, and a jury trial commenced on October 12, 1993. On October 25, 1993, at the close of the government's case, Stephens moved for a judgment of acquittal. The district court granted this motion with respect to counts II and III, but submitted count I to the jury. On October 26, 1993, the jury found Stephens guilty of count I, for violating 18 U.S.C. Sec. 1962(d). On November 2, 1993, Stephens renewed his motion for acquittal of count I notwithstanding the verdict. The court denied his motion, and on January 21, 1994, sentenced Stephens to twenty-four months of imprisonment, to be followed by two years of supervised release, with a special assessment of $50.00. Stephens appeals. We AFFIRM.
I. BACKGROUND
2
Cleo Stephens, Sr. was a Gary, Indiana police officer until he retired from the department in October, 1991. In 1987, Stephens was named commander of the Traffic Division and, in January, 1988, he was promoted to the position of Deputy Inspector in which he supervised the Detective and Public Morals Bureau. The Public Morals Bureau investigated drug crimes, gambling, prostitution, and illegal liquor sales. In May, 1990, he was elevated to the position of Inspector, the third highest ranking officer in the Gary Police Department, and had increased supervisory responsibilities.
3
The charges against him resulted from his involvement in a gambling and liquor establishment known as "Sidney's" or "Sid's Corner," located in Gary, Indiana. This operation was owned by Sidney Powell, who began operating a restaurant at this location in 1969, and allowed illegal gambling, including card and dice games. Powell split the proceeds with those running the games, keeping sixty percent of the profits. In the late 1970s, Powell expanded his business and began to serve liquor without a license while continuing his gambling operation.
4
At Stephens' trial, Powell testified that while operating Sidney's, he frequently gave Gary, Indiana, police officers free alcoholic beverages and money. He stated that he was of the opinion that if he had not done this, he would have been arrested for the illegal activities on his premises. He testified that it was the custom for owners of after-hours establishments in Gary, Indiana to give either money or alcohol or both to law enforcement officers. Powell stated that during this period he had provided money to at least twenty-five to thirty police officers, and free alcoholic beverages to at least ten or twelve officers since opening Sidney's in 1969.
5
Stephens was associated with Sidney Powell on a business as well as social basis, having been friends for many years. Powell began purchasing his liquor from Madison Street Liquors, which was owned by Stephens' wife Barbara Stephens, and her sister-in-law. Officer Stephens told Powell that if he purchased his liquor from Madison Street Liquors, Stephens would provide him with a ten percent discount on his orders. Powell testified that from 1986 to 1990, he purchased his alcohol retail from Madison Street Liquors in amounts of approximately $1000.00 per week and that he had been operating his business since the 1970's without a liquor license. In 1990, he obtained his first liquor license, and began purchasing liquor from a wholesaler, but shortly thereafter, in January, 1991, the Federal Bureau of Investigations (FBI) confronted Powell regarding drug dealing and seized some $5000.00 which he was going to use to pay his wholesalers. Powell stated that after he "got broke" from the FBI seizing his money, he resumed purchasing liquor from Madison Street Liquors.
6
Although Madison Street Liquors was owned by Stephens' wife, Stephens also actively participated in its operation. Arlene Washington, who worked as a clerk at Madison Street Liquors from 1988 until 1993, testified that Stephens frequently closed the store in the evening and on occasion opened it for business in the morning. He also frequently emptied the cash register, counted the money at night, withdrew a sum, and left an amount sufficient for the next day's business. Stephens also assisted customers, including Powell, on a number of occasions.
7
Stephens' association with Powell's liquor establishment involved far more than simply making liquor sales to Powell at the ten percent discount. Stephens, in his capacity as Deputy Inspector and Inspector of the Gary, Indiana Police Department, engaged in discussions on numerous occasions with other police officers who were either investigating or preparing to raid Powell's liquor establishment for gambling activities, illegal liquor sales, and drug dealings. Sergeant Lawrence Wright of the Patrol Division testified that in 1986, he raided Powell's establishment a number of times because he was aware that Powell was selling liquor without a license. Some time during 1986, Sergeant Wright raided Sidney's and arrested Sidney Sledge for his participation in illegal activities at Sidney's. After this raid, Stephens suggested to Wright that he leave Powell and Sledge alone and further advised him that because of the frequency of the raids, his activities might be construed as harassment.
8
In February, 1987, Wright arrested Powell for selling liquor without a license. Approximately two or three weeks thereafter, Stephens had another chat with Wright and suggested that raiding Powell was not a high priority for the department and that in the future he should leave Powell's business alone. Wright disregarded Stephens' advice and raided Powell on two occasions thereafter.
9
William Hlas, who had been elevated to the position of Commander of the Public Morals Bureau (PMB), testified that on another occasion, in January, 1990, Inspector Stephens tried to dissuade him from taking action against Powell for his blatant disregard for the laws and ordinances of the State of Indiana and city of Gary. Hlas became aware of the fact that Powell was not cooperating with police officers who were investigating a homicide in the vicinity of Sidney's. Hlas stated that he advised Powell that if he did not cooperate, Hlas would be forced to raid his establishment because he knew Powell was operating without a license. The following day, not surprisingly, Stephens summoned Hlas into his office and told him that Sidney Powell was "not the enemy." While having this discussion with Hlas, in an attempt to make a point, Stephens held phone messages in his hand referring to drug trafficking, and stated that "[t]hese are your enemies, not Sidney. These are your enemy. The dope dealers are your enemy. You've got enough of them out there without being at Sidney's."
10
On September 12, 1990, Powell's son was arrested by Officers Earls, Bauswell, Branson, and House for illegal gambling and selling liquor without a permit at Sidney's. Inspector Stephens later directed these officers to report to his office to discuss Sidney Powell's operation. As strange as it may seem, Powell attended this meeting with the officers, at which time Stephens again stated that Powell was "not the enemy," but, rather, was an informant for the police department. Stephens instructed the officers to confine their activities to the street corner outside of Powell's establishment. Officer Earls stated that he understood this instruction to mean that he should cease and desist raiding Sidney's.
11
Sergeant Carmella Green, a supervisor assigned to the Public Morals Bureau, testified at trial that she also had been told by Stephens that Powell was "not the enemy." Sergeant Green testified that as a result of this direction, she did not feel free to raid Powell for any law violation within his establishment without seeking Stephens' prior approval.
12
In 1990, the FBI, relying on information it received, commenced an undercover operation to investigate allegations that Gary Police officers were soliciting payoffs for protection of gambling operations. During this investigation, the FBI discovered that Sidney Powell was involved in the payoff scheme and that he was also distributing cocaine. As part of the investigation, the FBI installed pen registers on Powell's phones at his liquor establishment, in his car phone, and in his home.1 At this time, the Bureau also obtained court authorization to install wiretaps on Powell's car and home phones. The pen registers recorded a total of eighty-nine telephone calls made from Powell's car and home phones to Madison Street Liquors between May, 1990 and January 17, 1991. The pen registers also recorded several calls made to Inspector Stephens' office at the police department. One of the phone calls, intercepted on the wiretap, was made on December 18, 1990, by Sidney Powell to Gwendolyn Campbell, a bartender at Sidney's. During this wiretapped conversation, Powell told Campbell that he spoke with Stephens regarding a robbery incident at Sidney's the previous night. Stephens related to Powell that he had heard that someone at Sidney's possessed drugs. Stephens warned Powell of an impending drug raid by stating that he was going to send the narcotics squad to Sidney's. In this recorded conversation, Powell described this to Campbell by stating:
13
"He say okay. He say well, I been gettin', uh, that there's a bag off a your place.... Okay. All right. So I said well, you know how that go Cleo. I say, uh ... he say no, not that you've got the bag. He said but maybe he got somebody with a bag up in there, but I been gettin' that ... there is a bag off in your place, and, well, I said well, I'll get through and check it out with a find ... he said but I'm gonna send the, I'm gonna send the narcotics squad down through there today."
14
The testimony has established that the term "bag," referred to in Powell's conversation, means drugs. In response to this warning by Stephens, Powell told Campbell that he was going to clear out all of the drug pushers from Sidney's. In reality, Stephens did send Officer Gordon to speak with Powell the next day, but Gordon did not raid Sidney's.
15
As a result of the FBI investigation, Stephens was indicted for RICO conspiracy violations, and a jury, after an eight day trial, found Stephens guilty of violating the Racketeer Influenced and Corrupt Organizations Act (RICO). 18 U.S.C. Sec. 1962(d).
II. ISSUES
16
Stephens raises two issues on appeal. Initially, he argues that the district court erred by failing to grant his motion for judgment of acquittal on count I because there was insufficient evidence to sustain his conviction. Secondly, Stephens contends that the district court erred by admitting in evidence the December 18, 1990 court authorized recorded telephone conversation between Sidney Powell and Gwendolyn Campbell because it is inadmissible under the co-conspirator exception to the hearsay rule, Rule 801(d)(2)(E) of the Federal Rules of Evidence.
III. DISCUSSION
SUFFICIENCY OF EVIDENCE
17
The standard of review for considering whether there is sufficient evidence to support a conviction is set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our inquiry is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id.; United States v. Howell, 37 F.3d 1197, 1201 (7th Cir.1994). Reversal of a conviction is warranted "only when the record is devoid of any evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." United States v. Gutierrez, 978 F.2d 1463, 1468-69 (7th Cir.1992); see United States v. Rosalez-Cortez, 19 F.3d 1210, 1215 (7th Cir.1994).
18
Stephens argues that the record is insufficient to establish that he was associated with Sidney Powell, or that he conspired with anyone to conduct or participate in the affairs of Powell's enterprise, or that he willfully agreed to commit acts of bribery. We disagree.
19
Stephens, in count I, was charged with violating 18 U.S.C. Sec. 1962 which provides that: "(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt," and "(d) [i]t shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section." The federal RICO charges under 18 U.S.C. Sec. 1962 against Inspector Stephens of the Gary, Indiana police department resulted from Stephens' violations of the Indiana bribery statute, Ind.Code Sec. 35-44-1-1, which provides that: "(a) A person who: ... (2) Being a public servant, solicits, accepts, or agrees to accept, either before or after he becomes appointed, elected, or qualified, any property, except property he is authorized by law to accept, with intent to control the performance of an act related to his employment or function as a public servant; ... commits bribery, a Class C Felony."
20
Proof of participation in a RICO conspiracy requires the following: " '[t]o be convicted of a conspiracy to violate RICO there must be proof that the individual, by his words or actions, objectively manifested an agreement to participate, directly or indirectly, in the affairs of an enterprise, through the commission of two or more predicate crimes.' " United States v. Balzano, 916 F.2d 1273, 1289 (7th Cir.1990) (quoting United States v. Neapolitan, 791 F.2d 489, 497 (7th Cir.), cert. denied, 479 U.S. 940, 107 S.Ct. 422, 93 L.Ed.2d 372 (1986)).
21
In order to convict a defendant for conspiracy under the RICO act, it must be established that the defendant was aware of the scope of the enterprise and intended to participate in it. In Balzano, this court stated:
22
To find a defendant guilty of conspiracy to violate RICO, the government must show that the defendant 'was aware of the essential nature and scope of the enterprise and intended to participate in it.' United States v. Bruun, 809 F.2d [397, 410 (7th Cir.1987) ]. While there is no need to prove that the defendant intended personally to perform the two predicate acts required for RICO liability, United States v. Neapolitan, 791 F.2d 489, 498 (7th Cir.), cert. denied, 479 U.S. 940, 107 S.Ct. 422, 93 L.Ed.2d 372 (1986), the government does have to show more than 'mere association with conspirators, knowledge of a conspiracy, and presence during conspiratorial discussions....' United States v. Percival, 756 F.2d 600, 610 (7th Cir.1985); see also United States v. Williams, 798 F.2d 1024, 1028 (7th Cir.1986). The government has to show that there was an agreement between the members of the conspiracy. Of course, direct evidence of that agreement need not be shown, 'an agreement can be inferred from the circumstances.' United States v. Neapolitan, 791 F.2d at 501.
23
Balzano, 916 F.2d at 1289 (quoting United States v. Muskovsky, 863 F.2d 1319, 1324 (7th Cir.1988)). There are "two aspects of the 1962(d) conspiracy that serve to limit the scope of the theory: (1) the nature of the agreement required and (2) the necessity of proving the existence of an enterprise." Neapolitan, 791 F.2d at 498.
24
Initially, we consider whether the government established the existence of an "enterprise" for purposes of RICO. "The term 'enterprise' is defined [in RICO] as including 'any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.' ... There is no restriction upon the associations embraced by the definition: an enterprise includes any union or group of individuals associated in fact. On its face, the definition appears to include both legitimate and illegitimate enterprises within its scope ..." Balzano, 916 F.2d at 1289-90, quoting United States v. Turkette, 452 U.S. 576, 580-81, 101 S.Ct. 2524, 2527-28, 69 L.Ed.2d 246 (1981).
25
Stephens was charged with being associated with and participating in an "enterprise" which consisted of the group of people who participated in the illegal activities at Sidney's. The evidence demonstrated that Sidney's is the "enterprise" for purposes of the RICO statute, as this was the venue for illegal liquor sales, gambling, and drug dealing. RICO's definition of an "enterprise" encompasses both legitimate and illegitimate businesses. Turkette, 452 U.S. at 580-81, 101 S.Ct. at 2527-28; Russello v. United States, 464 U.S. 16, 24, 104 S.Ct. 296, 301, 78 L.Ed.2d 17 (1983); United States v. Blackwood, 768 F.2d 131, 137 (7th Cir.1985).
26
Next, we turn to the question of whether Stephens agreed to participate, directly or indirectly, in the affairs of Sidney's (the enterprise), through the commission of two or more predicate crimes. Stephens argues that he did not participate in the affairs of Sidney's, nor did he have any agreement with Powell which involved any illegal conduct on his part. Specifically, Stephens contends that there is insufficient evidence to establish that he committed acts of bribery with Powell so that it would influence the exercise of his judgment as a police officer, thus providing a benefit to Powell.
27
This argument lacks support in the record. The evidence demonstrates that Stephens solicited Powell's business for Madison Street Liquors, his wife's liquor store, by offering him a ten percent discount on his purchases. Between 1986 and 1991, Powell purchased approximately $1000.00 of liquor per week from Madison Street Liquors. During this time-frame, Inspector Stephens stated to several police officers, who in the course of their duties as police officers in the Gary, Indiana Police Department were investigating Powell for known violations of Indiana criminal statutes, that Powell was "not the enemy," and further directed several officers to leave Powell alone, and to confine their law enforcement activities to the outside of Sidney's. Even if Stephens and Powell did not explicitly enter into an agreement, in a RICO conspiracy, "direct evidence of that agreement need not be shown, 'an agreement can be inferred from the circumstances.' " Balzano, 916 F.2d at 1289 (quoting Neapolitan, 791 F.2d at 501). "[W]hen the evidence establishes that the defendants committed during a time period 'several acts of racketeering in furtherance of the affairs of the enterprise, an inference of an agreement to do so may be drawn.' " United States v. Melton, 689 F.2d 679, 683 (7th Cir.1982) (quoting United States v. Elliott, 571 F.2d 880, 903 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978)). " 'Because conspiracies are carried out in secret, direct proof of agreement is rare.' " Balzano, 916 F.2d at 1284 (quoting United States v. Koenig, 856 F.2d 843, 854 (7th Cir.1988)). "Not only is the use of circumstantial evidence permissible, but circumstantial evidence may be the sole support for a conviction." Id. (internal quotations omitted).
28
In Balzano, we described the agreement that must be proven in a RICO conspiracy:
29
From a conceptual standpoint a conspiracy to violate RICO can be analyzed as composed of two agreements (in reality they would be encompassed by the same manifestations of the defendant): an agreement to conduct or participate in the affairs of an enterprise and an agreement to the commission of at least two predicate acts. Thus, a defendant who did not agree to the commission of crimes constituting a pattern of racketeering activity is not in violation of section 1962(d), even though he is somehow affiliated with a RICO enterprise, and neither is the defendant who agrees to the commission of two criminal acts but does not consent to the involvement of an enterprise. If either aspect of the agreement is lacking then there is insufficient evidence that the defendant embraced the objective of the alleged conspiracy. Thus, mere association with the enterprise would not constitute an actionable 1962(d) violation. In a RICO conspiracy, as in all conspiracies, agreement is essential.
30
Balzano, 916 F.2d at 1290 (citations omitted).
31
Based on our review of the record, we hold that there was more than sufficient evidence for a rational jury to find that Stephens, by his acts and deeds, entered into an agreement with Powell to conduct or participate in the affairs of Sidney's, and that there was an agreement between Powell and Stephens to commit some seventy-five acts of bribery as defined by the Indiana bribery statute.
32
Stephens directly and indirectly participated in the affairs of Sidney's. Stephens initiated the contact with Powell regarding selling liquor to Powell at a ten percent discount from Madison Street Liquors, which involved almost $1000.00 per week. At Stephens' trial, Powell, in response to the question "[d]id you go to Cleo [Stephens] or did Cleo come to you?," replied: "[w]ell, I didn't know that Cleo had a liquor store. He told me he had one, and he would give me a ten percent discount." Although this store was owned by Stephens' wife, Barbara, Stephens was directly involved in the operation of the liquor store, in that according to the testimony of Arlene Washington, a former clerk at Madison Street Liquors, Stephens would close the store at night, open it in the mornings, take the cash receipts at night, and leave a sufficient amount of money for opening the next day, and would on occasion wait on customers, including Sidney Powell.
33
Obviously these liquor sales to Powell benefitted both Stephens and his wife. The jury could reasonably infer that these purchases from Madison Street Liquors at a ten percent discount were made with the intent to control the exercise of Stephens' judgment as a law enforcement officer and formed the basis for the bribery charges against Stephens. The Indiana bribery statute provides that it is a felony for a public servant "to accept ... any property ... with intent to control the performance of an act related to his employment or function as a public servant." Ind.Code Sec. 35-44-1-1(a)(2). Powell testified that at the time he started purchasing his liquor from Stephens, he knew that Stephens was a police officer with the Gary, Indiana Police Department, and thus, he was aware that Stephens was in a position to make judgments concerning the enforcement of the laws in Gary, Indiana, as they related to his tavern.
34
Although Powell stated that he did not have any verbal or written agreement with Stephens, the jury could infer from Stephens' conduct that there was an agreement that Stephens would provide protection for Powell's illegal operation, in exchange for Powell purchasing his liquor from Madison Street Liquors at a ten percent discount. The record establishes that Powell did expect assistance or some benefit from Stephens in exchange for Powell purchasing liquor from his wife's store. The following is the testimony which Powell gave at Stephens' trial:
35
Q: Mr. Powell, did you have an expectation from Mr. Stephens that if you needed assistance, you could get it from him?
36
A: Well, knowing him in person, I assumed I could.
37
Q: How about your relationship of buying liquor from him?
38
A: Well, yeah, that too.
39
Q: So you expected something in return; is that right?
40
A: If I needed it.
41
Q: Did you get it?
42
A: Well, no more than what I purchased from him, but I never got nothing for him to do anything.
43
Q: Sending Perry Gordon down wasn't doing anything?
44
A: That's different. He ordered that, not me.
45
...
46
Q: Is that the type of activity that you expected in return?
47
A: Yes.
48
...
49
Q: Out of all the liquor stores in the city of Gary, why would you go to Cleo Stephens to buy your liquor?
50
A: Well, I knew him personally, and I figured he had authority to do something about that.
51
Stephens argues that Powell's only expectations were that he wanted someone with authority to provide legitimate assistance to Powell for keeping drug dealers away from his business. However, the evidence demonstrates otherwise. The record contains a number of instances where Stephens, a high ranking official in the police department, attempted to protect Powell's illegal liquor and gambling operation from police investigations and raids by police officers. Initially, in 1986, after Powell had started purchasing his liquor from Madison Street Liquors, Sergeant Wright of the Patrol Division, raided "Sidney's" because Powell was selling liquor without a license. At some point in 1986, Wright again raided Sidney's and arrested a person known as Sidney Sledge. After this arrest, Stephens advised Wright that he should leave Powell and Sledge alone.2 In February, 1987, Wright raided Sidney's and arrested Powell. After this arrest, Stephens reminded Wright about their previous discussion about Sidney's and told him that raiding Powell was not a high priority of the department, and that he should leave Powell alone. Wright testified that he understood this conversation to mean that he should leave Sidney's alone and not concern himself with the activities occurring inside of Sidney's.
52
Another police officer who had occasion to discuss Powell with Stephens was Sergeant Carmella Green, supervisor of the narcotics unit. The record reflects that at some point in 1989 or 1990, Inspector Stephens had told her that Powell was "not the enemy." She stated that this comment influenced her to the extent that she would not have raided Sidney's without checking first with Stephens.
53
In January, 1990, Inspector Stephens had a discussion with William Hlas, Commander of the Public Morals Bureau (PMB), after Hlas told Powell that he would raid him if he did not cooperate with a police investigation which was taking place in the vicinity of his establishment. Stephens summoned Hlas to his office and suggested to him, as he had done to other officers in the police department, that Powell was "not the enemy." Stephens stated, while referring to other drug dealers, "[t]hese are your enemy ... [y]ou've got enough of them out there without being at Sidney's."
54
In addition, Inspector Stephens had a meeting with Officers Bauswell, Branson, Earls, and House, of the PMB, concerning raids on Powell. Sidney Powell was also present at this meeting which took place in Stephens' office, after September 12, 1990, when officers in the PMB arrested Larry Powell, Sidney Powell's son, for illegal gambling and selling liquor without a license at Sidney's. Stephens advised those present at this meeting that Powell was "not the enemy," and that he was, in fact, an informant for the police department. Stephens instructed the officers to confine their activities to the street corner outside of Sidney's. Thus, it seems rather obvious that the officers were not to concern themselves with enforcing the law within, and thus should not enforce the laws of the state of Indiana as applicable to, Sidney's.
55
Corporal Derrick Earls testified that he did not consider this statement as a joke, and that he reported it to his supervisors, as well as the persons in the PMB. Earls further testified that he understood this statement to mean that he should stop raiding Sidney's. He said that after this meeting, until July, 1991, the time in which he was with the Public Morals Bureau, he had been involved in other arrests outside of Sidney's, but that the inside of Powell's establishment was out of bounds and never a target for a raid. Earls stated that Stephens' statements were a topic of frequent discussion among the police officers in the PMB, and that several officers were angry about them. Corporal John Jelks even posted a photograph of Powell on the bulletin board at the PMB, with the caption "He is not the enemy."3
56
In addition, in 1991, Officer Anthony Stanley of the Lake County Task Force, a division of the Gary Police Department, discussed with Stephens whether anything had been done about Sidney's. Inspector Stephens replied that Powell was not doing anything wrong.
57
All of these discussions demonstrate Stephens' intent to protect Powell's establishment from the enforcement of the Indiana statutes, i.e. gambling, illegal liquor sales, and drug sales. Stephens carried the title of Deputy Inspector and Inspector from 1988 through 1991, positions subordinate only to the Chief and Deputy Chief, and Officer David Wade testified that Stephens was responsible for overseeing the investigative services, supervising the detective division, auto division, juvenile division, and narcotic division (Public Morals Bureau). Because Stephens was responsible for supervising the PMB, which investigates drug crimes, illegal liquor sales, gambling, and prostitution, he was fully aware that Powell's business enterprise was frequently engaged in violations of the law. Officers Fazekas and Bauswell testified that between 1989 and 1991, the years in which they were assigned to the PMB, Sidney's was well known as a place for drug activity. Furthermore, the raids by Wright and Earls for illegal liquor sales and gambling prompted Stephens to direct several officers to leave Powell alone. This evidence also reflects upon Stephens' awareness of the illegal activities taking place at Sidney's. In spite of all this information, Stephens continued to have discussions with police officers and advised them not to raid Sidney's, and that Powell was "not the enemy."
58
Stephens argues that even if he said that Powell was "not the enemy," and that the officers should confine their law enforcement activities to the outside of Sidney's, this did not prevent officers from investigating Powell. However, it is obvious that Powell's discounted liquor purchases were intended to influence Stephens' judgment, as a high ranking police officer, causing him to instruct other officers that Powell was an informant of the department, and that they should look the other way with regard to the activities occurring inside of Sidney's. It is clear that Powell benefitted from Stephens' conduct of directing officers not to raid Sidney's, and advising them that he was "not the enemy," and to confine their activities to the outside of Sidney's. Under the Indiana bribery statute, "it is the soliciting or the receiving of money by an official to influence him with respect to his official duties that is the gravamen of the offense of bribery." United States v. Forszt, 655 F.2d 101, 103 (7th Cir.1981). "Whether the public servant was actually controlled or influenced is irrelevant, so long as the payment was accepted or solicited with the intent to control the public servant." Stuckey v. Indiana, 560 N.E.2d 88, 92 (Ind.Ct.App.1990) (emphasis in original).
59
The record demonstrates that Stephens solicited Powell's business, and that he objectively manifested an agreement with Powell to participate in his enterprise through selling him liquor at a ten percent discount, in exchange for Stephens attempting to discourage police officers from raiding his establishment. Based upon the overwhelming evidence of guilt, we hold that there was more than sufficient evidence to convict Stephens of violating 18 U.S.C. Sec. 1962(d) beyond a reasonable doubt.
60
THE RECORDED TELEPHONE CONVERSATION BETWEEN SIDNEY POWELL
AND GWENDOLYN CAMPBELL
61
Stephens argues that the district court erred in admitting evidence of the December 18, 1990 court authorized tape recorded telephone conversation between Sidney Powell and Gwendolyn Campbell, one of Powell's employees, and contends that statements made during the conversation were inadmissible under the co-conspirator exception to the hearsay rule, Rule 801(d)(2)(E) of the Federal Rules of Evidence.4 Specifically, Stephens claims that he was not involved in a conspiracy, and that the statements made in the conversation were not made in furtherance of the conspiracy. Relevant portions of the conversation in which Powell called Campbell from his car phone are as follows:
62
SP: (Sidney Powell): I'm talkin' to the chief ... did I tell you what the chief said? ...
63
SP: He say okay. He say well, I been gettin', uh, that there's a bag off a your place ...
64
SP: Okay. All right. So I said well, you know how that go Cleo. I say, uh ... he say no, not that you've got the bag. He said but maybe he got somebody with a bag up in there, but I been gettin' that ... there is a bag off in your place, and, well, I said well, I'll get through and check it out with a find ... he said but I'm gonna send the, I'm gonna send the narcotics squad down through there today. He said, uh, you keep your I said he got my car number, then he said what's the number of the place. I give him that. He said I'm gonna call you. He said but Perry Gordon and them gonna come through there. I told him I said now I gotta lotta problems. I said I got some jokers that stand out there on the corner from the projects, and I don't know'em, and I said when I attempt to, uh, uh, get on their backs about it, they try to burn the building down in the back ...
65
SP: So I made up my mind that all drug pushin' is out and now. That means ... everybody....
66
SP: 'cause Trice and all of 'em are gonna have to take it outta there.
67
GC (Gwendolyn Campbell): Yea, 'cause you said the man they comin' through there, uh.SP: They comin' through. They're comin' through, and today, not tomorrow, today.
68
GC: Um hum.
69
SP: So that, that ... in other words that means clean ... get your act cleaned up.
70
The trial court's evidentiary rulings are reviewed for abuse of discretion. Berry v. Deloney, 28 F.3d 604, 607 (7th Cir.1994). "An appellant challenging a trial court's evidentiary rulings has an onerous burden 'because a reviewing court gives special deference to the evidentiary rulings of the trial court.' " Id. (quoting Ross v. Black & Decker, Inc., 977 F.2d 1178, 1183 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1274, 122 L.Ed.2d 669 (1993)).
71
Under Rule 801(d)(2)(E), a statement made by a member of the conspiracy is admissible against other members of the conspiracy if made "during the course of and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). The government must prove "that (1) a conspiracy existed; (2) the defendant and declarant were members of the conspiracy; and (3) the offered statement was made during the course of and in furtherance of the conspiracy." United States v. Troop, 890 F.2d 1393, 1403 (7th Cir.1989). "A district court's factual determination as to the existence of these elements is only reversed if it was clearly erroneous." United States v. Schumpert, 958 F.2d 770, 773 (7th Cir.1992).
72
We have ruled that a conspiracy existed because Stephens and Sidney Powell had an agreement where Powell would purchase liquor from Stephens at a ten percent discount, and Stephens would attempt to and in fact did exercise his influence over members of the Gary Police Department to discourage them from raiding Powell's business establishment. Since Powell and Stephens were members of the conspiracy, and it is undisputed that the recorded conversation of December, 1990 took place during the course of the conspiracy, we need only decide whether the statements made during the telephone conversation were in furtherance of the conspiracy.
73
A statement may be found to be in furtherance of a conspiracy so long as "some reasonable basis exists for concluding that the statement furthered the conspiracy." United States v. Shoffner, 826 F.2d 619, 628 (7th Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 356, 98 L.Ed.2d 381 (1987) (citing United States v. Mackey, 571 F.2d 376, 383 (7th Cir.1978)). During the conversation, Powell told Campbell about a discussion he had with Stephens. Powell advised Campbell that Stephens had told Powell that he had heard that there was a "bag off a your place."5 Stephens also gave Powell advance notice that he was going to send the narcotics squad to Sidney's. In response to Powell's conversation with Stephens, and the advance warning that the narcotics squad was going to be sent to Sidney's, Powell told Campbell that he decided that all of the drug pushers were going to be cleared out of his business establishment, and that "Trice and all of 'em are gonna have to take it outta there." Powell said, while referring to the narcotics squad, "they're comin through, and today, not tomorrow, today ... in other words that means ... get your act cleaned up." The next day, Stephens sent Officer Gordon of the narcotics squad to Sid's Corner but Gordon did not raid Sidney's on this occasion.
74
Stephens' statements to Powell stating that he had heard that someone may be dealing drugs at Sidney's and that he was going to send the narcotics squad to Sidney's is obviously a warning that Sid's Corner was going to be raided. This is further evidenced by Powell's statement to Campbell that "in other words that means ... get your act cleaned up." Campbell testified that she was a bartender at Sidney's since 1989, and that she, at the direction of Powell, began selling packages of cocaine inside and outside of Sidney's. Obviously, during the same conversation, Powell's statement to Campbell during her employment at Sidney's to "get your act cleaned up" implied that she should get all of the drugs and drug dealers out of the premises in order that Sidney's might continue to operate, and thus not be shut down. Thus, Stephens' statements to Powell regarding sending the narcotics squad to Sidney's, as well as Powell's statements to Campbell, can only be interpreted as furthering the conspiracy to protect Powell's business, the "enterprise," by allowing Powell the opportunity to eliminate the drugs from his business before the police arrived. We thus hold that the district court's allowing the statements to be received in evidence was not clearly erroneous as they were made in furtherance of the conspiracy, and furthermore, the court did not abuse its discretion in allowing the contents of the telephone conversation also to be received in evidence.
IV. CONCLUSION
75
Cleo Stephens' judgment of conviction is hereby
76
AFFIRMED.
*
This opinion was originally released in typescript
**
Although Honorable George C. Pratt, of the Second Circuit, participated in the decision of this case, Judge Pratt retired from the bench on January 31, 1995, and took no part in the consideration of the petition for rehearing
***
The Honorable George C. Pratt, Circuit Judge for the United States Court of Appeals for the Second Circuit, is sitting by designation
1
A pen register is a device attached to a telephone which records all outgoing calls made from that particular phone
2
At the time of Stephens discussions with Wright, Stephens was a commander in the traffic division and was not Wright's immediate supervisor, although he was Wright's superior in the command structure of the police department
3
The photograph was taken of Powell sitting at a table gambling, with money in his hand
4
Rule 801 provides that "[a] statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy."
5
The testimony has established that "bag off a your place" refers to drugs on the premises for sale
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812 F.2d 1403
*Hamiltonv.Morris County, Tex.
86-2547
United States Court of Appeals,Fifth Circuit.
2/11/87
1
E.D.Tex.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 5th Cir.R. 34.2.
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781 F.2d 198
228 U.S.P.Q. 367
S.C. JOHNSON & SON, INC., Plaintiff-Appellee,v.CARTER-WALLACE, INC., Defendant-Appellant.S.C. JOHNSON & SON, INC., Plaintiff-Appellant,v.CARTER-WALLACE, INC., Defendant-Appellee.
Appeal Nos. 85-2191, 85-2287.
United States Court of Appeals,Federal Circuit.
Jan. 8, 1986.
Jerome G. Lee, Morgan, Finnegan, Pine, Foley & Lee, New York City, argued for defendant-appellant. With him on the brief was Stephen R. Lang, Breed, Abbott & Morgan, New York City. J. Robert Dailey, John F. Sweeney, William S. Feiler and Jay M. Brown, Morgan, Finnegan, Pine, Foley & Lee, New York City, of counsel.
Robert L. Baechtold, Fitzpatrick, Cella, Harper & Scinto, New York City, argued for plaintiff-appellee. With him on the brief were Henry J. Renk and Nicholas N. Kallas, of counsel.
Before FRIEDMAN, Circuit Judge, MILLER, Senior Circuit Judge, and NEWMAN, Circuit Judge.
PAULINE NEWMAN, Circuit Judge.
1
On this appeal and cross-appeal, the decision of the U.S. District Court for the Southern District of New York is affirmed on the issues of validity and willful infringement, and vacated and remanded on the issues of attorney fees and damages.
2
The background of this litigation and the issues at trial and here appealed are set out in the district court's extensive opinion, and are not repeated. S.C. Johnson & Son, Inc. v. Carter-Wallace, Inc., 225 USPQ 1022 (S.D.N.Y.1985).
I.
3
In Appeal No. 85-2191 appellant Carter-Wallace assigns error to, first, the district court's holding that claims 1, 3, 10, 13, and 16 of Monson U.S. Patent No. 3,541,581 are not invalid for obviousness in terms of 35 U.S.C. Sec. 103; second, the finding that Carter-Wallace infringed these claims and that the infringement was willful; and third, the ruling that the Monson patent is not unenforceable for inequitable conduct.
4
We have reviewed the entire record, and considered the arguments of both sides. We discern no error of law or fact by the district court on these issues, and affirm the decision of the district court on the basis of its published opinion.
5
The district court provides thorough explanation of its finding that Carter-Wallace's infringement was willful. As the district court stated, "Carter had no opinion on the question of infringement on which it could reasonably rely in good faith", and "did not fulfill its affirmative duty to exercise due care to determine whether or not it was infringing the Monson Patent". S.C. Johnson, 225 USPQ at 1043. See Underwater Devices, Inc. v. Morrison-Knudsen Co., Inc., 717 F.2d 1380, 1389, 219 USPQ 569, 576 (Fed.Cir.1983).
6
With respect to the asserted inequitable conduct in the Patent and Trademark Office, the district court had ruled that Carter-Wallace "unduly delayed raising the alleged incident of fraud" until after S.C. Johnson had closed its case, and had refused to allow Carter-Wallace to amend the Pretrial Order and to adduce evidence on this point. The court reaffirmed this position in its opinion denying Carter-Wallace's motion to vacate the judgment pursuant to Fed.R.Civ.P. 60(b). S.C. Johnson & Sons, Inc. v. Carter-Wallace, Inc., 225 USPQ 968 (S.D.N.Y.1985). We have carefully considered the matter, and discern no abuse of discretion in the district court's ruling.
II.
7
In Appeal No. 85-2287 appellant S.C. Johnson contends that in view of the determination that Carter-Wallace's infringement was willful, the district court erred in declining to award attorney fees to S.C. Johnson, and in declining to increase the damages for Carter-Wallace's infringement.
8
The award of attorney fees is authorized by 35 U.S.C. Sec. 285 in "exceptional cases". In Machinery Corp. of America v. Gullfiber AB, 774 F.2d 467, 471, 227 USPQ 368, 372 (Fed.Cir.1985), this court observed that the "[a]llowance of fees only in exceptional cases is based on the premise that courts should attempt to strike a balance between the interest of the patentee in protecting his statutory rights and the interest of the public in confining such rights to their legal limits". See also Rohm & Haas Co. v. Crystal Chemical Co., 736 F.2d 688, 692, 222 USPQ 97, 100 (Fed.Cir), cert. denied, --- U.S. ----, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984) (reviewing the legislative history of section 285).
9
S.C. Johnson points to the heavy weight of authority to the effect that a finding of willful infringement and "exceptional case" go hand in hand, and presses the view that it was an abuse of judicial discretion to deny attorney fees in these circumstances.
10
District courts have tended to award attorney fees when willful infringement has been proven, and this court has uniformly upheld such awards. In Power Lift, Inc. v. Lang Tools, Inc., 774 F.2d 478, 227 USPQ 435 (Fed.Cir.1985), this court affirmed the award of attorney fees based on a jury finding of willfulness. The trial court in that case stated that the defendants' conduct was such as to make it "grossly unfair" for the plaintiff "to sustain the expense of counsel". Id. at 482, 227 USPQ at 438. In Kori Corp. v. Wilco Marsh Buggies and Draglines, Inc., 761 F.2d 649, 656-57, 225 USPQ 985, 989-90 (Fed.Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 230, 88 L.Ed.2d 229 (1985), this court found no abuse of discretion in the district court's award of double damages pursuant to 35 U.S.C. Sec. 284 and attorney fees under section 285, upon affirming the district court's finding of willful infringement. See also Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 1547-48, 221 USPQ 1, 8-9 (Fed.Cir.1984) (willful infringement found; treble damages and attorney fees awarded); Leinoff v. Louis Milona & Sons, Inc., 726 F.2d 734, 742-43, 220 USPQ 845, 851 (Fed.Cir.1984) (willful infringement found; treble damages); Central Soya Co., Inc. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1577-78, 220 USPQ 490, 493 (Fed.Cir.1983) (willful infringement found; double damages and attorney fees); Underwater Devices, 717 F.2d at 1390, 219 USPQ at 577 (willful infringement; treble damages); Lam, Inc. v. Johns-Manville Corp., 718 F.2d 1056, 1068-69, 219 USPQ 670, 678 (Fed.Cir.1983) (willful infringement; treble damages and attorney fees).
11
When infringement was found not willful, the district court's denial of attorney fees or increased damages has not been disturbed. See American Original Corp. v. Jenkins Food Corp., 774 F.2d 459, 464-66, 227 USPQ 299, 302-03 (Fed.Cir.1985); King Instruments Corp. v. Otari Corp., 767 F.2d 853, 866-67, 225 USPQ 402, 411-12 (Fed.Cir.1985); Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 628, 225 USPQ 634, 644 (Fed.Cir.), cert. dismissed, --- U.S. ----, 106 S.Ct. 340, 88 L.Ed.2d 326 (1985). When a holding of willful infringement was reversed or vacated on appeal, this court also reversed or vacated awards of attorney fees or increased damages premised on such holding. See, e.g., State Industries, Inc. v. A.O. Smith Corp., 751 F.2d 1226, 1238, 224 USPQ 418, 426 (Fed.Cir.1985); Paper Converting Machine Co. v. Magna-Graphics Corp., 745 F.2d 11, 20, 223 USPQ 591, 597-98 (Fed.Cir.1984); Stickle v. Heublein, Inc., 716 F.2d 1550, 1564-65, 219 USPQ 377, 388 (Fed.Cir.1983).
12
Recently this court remanded a case to the district court for the purpose of reconsidering its denial of attorney fees and increased damages, in light of our holding on appeal that the court erred in failing to find that appellant's infringement was willful. CPG Products Corp. v. Pegasus Luggage, Inc., 776 F.2d 1007, 1015, 227 USPQ 497, 502 (Fed.Cir.1985). See also Standard Oil Co. v. American Cyanamid Co., 774 F.2d 448, 455, 227 USPQ 293, 298 (Fed.Cir.1985).
13
In the case at bar, the district court offered no explanation of its conclusion that this was not an "exceptional case" despite the finding of willful infringement. The court said only that awards of attorney fees "are to be made sparingly and not as a matter of course". S.C. Johnson, 225 USPQ at 1043. The district court intertwined its ruling on whether this was an "exceptional case", in terms of 35 U.S.C. Sec. 285, with its decision not to award attorney fees. The former is a factual finding, subject to appellate review on the clearly erroneous standard, Reactive Metals and Alloys Corp. v. ESM, Inc., 769 F.2d 1578, 1583, 226 USPQ 821, 824 (Fed.Cir.1985), and the latter is a matter of judicial discretion, as discussed infra.
14
The district court, at the end of a lengthy and well reasoned opinion, offered no findings, other than the compelling fact of willful infringement, on which we may base our review of the court's conclusion that this is not an exceptional case. In Reactive Metals, 769 F.2d at 1582, 226 USPQ at 824, we stated that it was incumbent on the trial court to articulate the basis for a finding of exceptional circumstances. See also Hughes v. Novi American, Inc., 724 F.2d 122, 124, 220 USPQ 707, 709 (Fed.Cir.1984); Stickle v. Heublein, Inc., 716 F.2d 1550, 1564-1565, 219 USPQ 377, 388 (Fed.Cir.1983). It is equally necessary for the trial court to explain why this is not an exceptional case in the face of its express finding of willful infringement.
15
Even an exceptional case does not require in all circumstances the award of attorney fees. Many factors could affect this result. The trial judge is in the best position to weigh considerations such as the closeness of the case, the tactics of counsel, the conduct of the parties, and any other factors that may contribute to a fair allocation of the burdens of litigation as between winner and loser.
16
The exercise of discretion, although granting a broad scope to the trial court, is not unrestrained. The court's choice of discretionary ruling should be in furtherance of the policies of the laws that are being enforced, as informed by the court's familiarity with the matter in litigation and the interest of justice. See Yarway Corp. v. Eur-Control USA, Inc., 775 F.2d 268, 277, 227 USPQ 352, 358 (Fed.Cir.1985); see also Rohm & Hass Co., supra. We are unable to provide appellate review to the court's exercise of discretion in this matter, absent some explanation of the court's reasoning. Fed.R.Civ.Proc. 52(a).
17
We vacate that portion of the judgment denying attorney fees on the basis that this is not an exceptional case under 35 U.S.C. Sec. 285, and remand to the district court for clarification.
18
The district court need not have found this case to be exceptional to have awarded increased damages under 35 U.S.C. Sec. 284 based on willful infringement. The measure of damages, as indeed the assessment of attorney fees, provides an opportunity for the trial court to balance equitable concerns as it determines whether and how to recompense the successful litigant. S.C. Johnson urges that the finding of willful infringement places this case in the category where most courts have granted increased damages, and that it was an abuse of judicial discretion not to have done so. See Kori Corp., supra. Although the discretionary authority of the trial court will not be lightly disturbed, in view of the finding of willful infringement we also vacate the decision refusing increased damages under 35 U.S.C. Sec. 284, and remand for clarification by the district court.
19
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 10, 2015
Elisabeth A. Shumaker
Clerk of Court
QUINTON LEE AMEY,
Petitioner - Appellant,
v. No. 14-5097
(D.C. No. 4:11-CV-00258-TCK-TLW)
ROBERT PATTON, Director, (N.D. Okla.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges.
Quinton Lee Amey was convicted in Oklahoma state court of feloniously
pointing a firearm and possessing a firearm after a former felony conviction. His
28 U.S.C. § 2254 habeas petition was denied by the district court. Proceeding pro se
and wanting to appeal from the denial, he requests a certificate of appealability
(COA) to appeal. We deny the request and dismiss this matter.
*
This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
BACKGROUND
Amey’s convictions arise out of a confrontation he had with Ninaree Furch
and her daughter, T.K. The trial was bifurcated. The jury first considered the charge
of feloniously pointing a firearm.
As to that charge, Furch and T.K. testified they were out walking one evening
in August 2008 when a man ran up and blocked their path forward. The man was
African-American, had braided hair, and was wearing “dark colored Dickies” pants
and green plaid boxers, but no shirt. R., Vol. II at 655. Furch was concerned
because she thought “he was on something.” Id. at 662.
When Furch turned away to seek help from “[t]wo white young men” she had
passed, id., Vol. II at 657, T.K. saw their assailant point a handgun “to the back of
[her mother’s] head” as he said, “I’ll blow your F’ing brains out,” id., Vol. I at 192,
195. Furch heard the comment and turned around. The man then began beating his
chest with the gun, saying he was a security guard and was there to “help [them]
rather than white people messing with [them].” Id. at 197.
Furch and T.K. eventually got passed him and called 911 from a nearby home.
They both testified to Amey being the man who had accosted them.
Police officer Brian Filby testified to having been dispatched to investigate the
911 call. He arrived in the area five minutes after the call and saw “a black male . . .
frantically waiving his arms trying to get [him] to stop to talk to him.” Id., Vol. II at
688. The man was “was very excited and loud, [acting] definitely like something was
-2-
wrong.” Id. at 689. He told Filby there was a “black male with braids and no shirt”
down the street with a gun. Id.
Filby “continued looking around in the area” and “finally found [Furch and
T.K.].” Id. at 690, 691. T.K. told Filby or another officer that the man who had
accosted her and her mother “was a black male, approximately five-seven, 200
pounds, and he had braids in his hair,” and he was wearing “blue or black Dickie
pants . . . [and] blue or green plaid boxers that you could see . . . hanging out the top
of his pants.” Id. at 693.1 Filby then went over to where two people were standing.
One of them “matched the [assailant’s] description really well other than he was
wear[ing] a shirt.” Id. at 694. Filby arrested that man, who was Amey. No gun was
found.
The jury convicted Amey, and the case proceeded to the second stage, where
the jury considered the charge of possessing a firearm after a former felony
conviction. According to Amey’s testimony he had no firearm in his possession
when he confronted Furch and T.K., and he approached Furch only after hearing her
“cussing loud[ly].” R., Vol. II at 772. On cross-examination, Amey admitted to four
prior felony convictions and being shirtless before approaching Furch and T.K.
1
On direct examination, Officer Filby testified T.K. gave him a description of
the assailant before continuing with his search for that man. See R., Vol. II at
692-94. But on cross-examination and redirect, Officer Filby stated he did not speak
with Furch and T.K. “before [ Amey] was arrested.” Id. at 704; see also id. at
700-01. Rather, “[t]here was another officer . . . talking with” Furch and T.K. Id. at
704.
-3-
The jury returned another guilty verdict and recommended incarceration for
thirty-five years on the pointing-a-firearm count and fifteen years on the illegal
possession count. The court accepted the jury’s recommendations and ordered the
sentences to be served consecutively. The Oklahoma Court of Criminal Appeals
(OCCA) summarily affirmed the convictions and sentence.
DISCUSSION
I. Standards of Review
The Antiterrorism and Effective Death Penalty Act (AEDPA) requires a COA
before a state prisoner may appeal from a denial of habeas relief. To be entitled to a
COA the applicant must demonstrate that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or conclude the issues deserve
further treatment. See 28 U.S.C. § 2253(c)(1)(A), (c)(2); Dulworth v. Jones,
496 F.3d 1133, 1137 (10th Cir. 2007).
Under AEDPA, if the state court adjudicated the merits of a claim, a federal
court may grant habeas relief only if the state court decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or
“was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” id..§ 2254(d)(2). With the “clearly
established” requirement as our guide, we must “look to the District Court’s
application of AEDPA to petitioner’s constitutional claims and ask whether that
-4-
resolution was debatable amongst jurists of reason.” Miller–El v. Cockrell, 537 U.S.
322, 336 (2003).
II. Sufficiency of the Evidence
On direct appeal, Amey claimed the evidence was insufficient to support his
convictions because the accounts Furch and T.K gave of their encounter with him
varied from the night of his arrest to the time of trial. For instance, when Amey was
arrested, T.K. told police she pushed him away from her mother, but at trial, T.K.
admitted she never touched Amey. And Furch told police Amey was armed with
“a .45 automatic,” but at trial she testified the gun was “a .32 or .38 revolver.”
R., Vol. II at 671, 662.
The OCCA concluded any rational trier of fact could have found the essential
elements of the crimes charged beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319 (1979). The district judge concluded the OCCA did not
unreasonably apply Jackson, explaining: “[al]though there were several
inconsistencies in T.K.’s and Furch[’s] trial testimony when compared to their prior
statements, the testimony regarding the possession of a gun and [Amey’s] actions
with the gun were consistent.” R., Vol. I at 274.
Not only do we agree, but we cannot discern any basis upon which jurists of
reason would see a reason for debating the propriety of the assessment. T.K.’s
testimony about Amey pointing a handgun at her mother, threatening to shoot her,
and beating his chest with the gun was not inconsistent with T.K.’s earlier statements
-5-
and was consistent with her mother’s testimony. The variations in their descriptions
of their encounter with Amey do not show the jury’s guilty verdicts were outside “the
bounds of reason,” Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (internal
quotation marks omitted). It is well within the ken of a jury to decide whether
witness testimony is reliable. Weighing inconsistent statements is part of that
process. The district judge’s rejection of Amey’s sufficiency argument is not
debatable.
III. The Confrontation Clause
A. Hearsay
Before the OCCA Amey also claimed the admission of the statement by the
“unidentified and excited African-American” concerning a gunman down the street
violated the Confrontation Clause. R., Vol. I at 64. The OCCA concluded the
statement was admissible as an excited utterance and did not violate the
Confrontation Clause because it was not testimonial. The district judge agreed,
stating “the statement squarely falls into the ‘ongoing emergency’ category of
nontestimonial hearsay statements.” Id. at 278.
Again we see no basis for considering this matter further; the correctness of
the analysis is not reasonably debatable. The Sixth Amendment’s Confrontation
Clause bars admission of a testimonial hearsay statement when the witness is
unavailable to testify at trial and the defendant had no prior opportunity to
cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
-6-
A hearsay statement is testimonial if made with “a primary purpose of creating an
out-of-court substitute for trial testimony.” Michigan v. Bryant, 131 S. Ct. 1143,
1155 (2011). But “[w]hen . . . the primary purpose of an interrogation is to respond
to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is
not within the scope of the Confrontation Clause.” Id.
Here, the witness told Filby a gunman was down the street, “not to provide a
solemn declaration for use at trial, but to bring an end to an ongoing threat,” Williams
v. Illinois, 132 S. Ct. 2221, 2243 (2012) (plurality opinion). The Confrontation
Clause is not implicated by such a non-testimonial statement. See Bryant, 131 S. Ct.
at 1155.
B. Impeachment
At trial, defense counsel sought to impeach Furch with evidence of her
conviction for feloniously pointing a firearm. The trial judge allowed counsel to
inquire whether Furch had ever been convicted of a felony, but would not permit
inquiry as to the specific felony.
On appeal to the OCCA, Amey argued revealing the nature of the prior
conviction was necessary because Furch’s “confusion about the type of gun she
claimed to see might be understandable for a person unfamiliar with guns, but
Furch[’s] criminal record reveals . . . she has more than a passing familiarity with
firearms.” R., Vol. I at 70. The OCCA decided the limitation on impeachment was
within the trial court’s discretion, and there was no Confrontation Clause violation.
-7-
The district judge also determined the impeachment limitation was reasonable
and did not violate Amey’s right of confrontation. Even with the limitation, he
noted, the jury not only learned Furch had a prior felony conviction but that she was
“pretty familiar with handguns,” id. at 282 (internal quotation marks omitted), and
knew “there’s a big difference between a revolver and an automatic,” id. at 282-83
(internal quotation marks omitted).
“[T]he Confrontation Clause guarantees an opportunity for effective
cross-examination, but not cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish.” United States v. DeChristopher,
695 F.3d 1082, 1096 (10th Cir. 2012) (internal quotation marks omitted). A violation
occurs only when “[a] reasonable jury might have received a significantly different
impression of [the witness’s] credibility had [the defendant’s] counsel been permitted
to pursue his proposed line of cross-examination.” Delaware v. Van Arsdall,
475 U.S. 673, 680 (1986).
The jury had the necessary information to weigh Furch’s credibility before
reaching a verdict. Despite not being permitted to inquire about the nature of her
felony conviction, Amey was still able to show the jury she was familiar with
firearms and to call into question her varying descriptions of the gun she saw.
Consequently, there was no Confrontation Clause violation, and thus, the district
judge properly found the OCCA’s decision on this point not unreasonable.
-8-
IV. Ineffective Assistance of Counsel
On direct appeal, Amey claimed his trial counsel was ineffective because she
failed to (1) investigate the facts underlying Furch’s felony conviction, which would
have revealed Furch pointed a gun at a security guard; (2) obtain mental-health
records regarding Furch; and (3) offer into evidence a videotaped interview showing
Amey was sober when arrested. The OCCA rejected Amey’s claims, and the district
judge determined the OCCA did not unreasonably apply Strickland v. Washington,
466 U.S. 668, 691 (1984) (requiring deficient performance and prejudice to prevail
on an ineffective-assistance claim). His determination is not debatable for at least
three reasons.
First, whether Amey claimed to be a security guard during his encounter with
Furch and T.K. is irrelevant to the charges for which he was on trial.2 Equally
irrelevant is the fact that the victim of Furch’s crime may have been a security guard.
Thus, the OCCA could have reasonably determined trial counsel’s failure to
investigate the circumstances underlying Furch’s conviction would not have been
prejudicial.
2
The elements of feloniously pointing a firearm are (1) willfully or without
lawful cause pointing a firearm at any person, (2) to threaten the person or with the
intent of “discharging the firearm or with any malice or for any purpose of injuring
. . . or for purposes of whimsy, humor or prank, or in anger or otherwise.” 21 Okla.
Stat. Ann. § 1289.16. Possessing a firearm after a former felony conviction requires
(1) possessing a firearm or having it under the person’s immediate control, (2) after a
felony conviction in any state or federal court. Id. § 1283(A).
-9-
Second, regarding counsel’s failure to obtain Furch’s mental-health records,
Amey fails to indicate how Furch’s testimony was affected by any mental health
issues. Indeed, he admits he “is speculating to a certain extent.” Appl. for COA at
13. Speculation is insufficient to obtain habeas relief on an ineffective assistance
claim. See Harrington v. Richter, 562 U.S. 86, 102 (2011) (explaining habeas relief
is available only “where there is no possibility fairminded jurists could disagree . . .
the state court’s decision conflicts with th[e] [Supreme] Court’s precedents”
(emphasis added)).
Third, Amey does not explain how his appearing to be sober when interviewed
by police would have had any effect on the jury’s verdict. Evidence of sobriety was
irrelevant to the charges against him, and he testified he had been “drinking that
night.” R., Vol. II at 783. In short, Amey has not shown how he was prejudiced by
counsel’s failure to offer the videotaped interview into evidence.
V. State Law Claims
Amey argued on direct appeal his convictions violated Oklahoma’s statutory
double-jeopardy proscription. See 21 Okla. Stat. Ann. § 11. Additionally, he sought
modification of his sentences from consecutive to concurrent. The OCCA denied
relief.
The district judge first noted Amey’s double-jeopardy argument was a state-
law issue not cognizable in federal habeas proceedings. See Estelle v. McGuire,
502 U.S. 62, 67-68 (1991). Next, the district judge observed challenges to a state
- 10 -
court’s sentencing decision are cognizable only if the sentence exceeds statutory
limits, see Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000), and Oklahoma
law authorizes consecutive sentences, see 22 Okla. Stat. Ann. § 976. Those bed rock
propositions are not subject to debate.
CONCLUSION
We deny Amey’s application for a COA and dismiss this matter.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
- 11 -
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Opinion issued December 15, 2005
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-04-01085-CV
____________
ESPILI MEHRIARK KAVIANI, INDIVIDUALLY AND D/B/A SUMMIT
INTERNATIONAL TRADING COMPANY, Appellant
V.
NATIONAL OIL-WELL, L.P., Appellee
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 2003-18635
MEMORANDUM OPINION
Appellant has filed an unopposed motion to dismiss his appeal. No opinion has
issued. Accordingly, the motion is granted, and the appeal is dismissed. Tex. R.
App. P. 42.1(a)(1).
All other pending motions in this appeal are overruled as moot. The Clerk is
directed to issue mandate within 10 days of the date of this opinion. Tex. R. App. P.
18.1.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
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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 January 3, 2005
Charles R. Fulbruge III
Clerk
No. 04-50376
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VALENTIN HIDALGO-PERALTA,
also known as Valentine Hidalgo-Peralta;
GADIEL HIDALGO-PERALTA,
Defendants-Appellants.
--------------------
Appeals from the United States District Court
for the Western District of Texas
USDC No. EP-03-CR-2025-4-DB
--------------------
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Court appointed counsel for Valentin Hidalgo-Peralta has
moved for leave to withdraw in accordance with Anders v.
California, 386 U.S. 738 (1967). Hidalgo-Peralta has received a
copy of counsel’s motion and brief but has not filed a response.
Our independent review of the record discloses one possible
nonfrivolous issue for appeal. Hidalgo-Peralta may have an
argument that Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004)
invalidates his sentence. However, Hidalgo-Peralta’s sentence
*
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. 04-50376
-2-
was based on the statutory minimum sentence, not the Federal
Sentencing Guidelines, and this court has held that Blakely does
not apply to the Federal Sentencing Guidelines. United States v.
Pineiro, 377 F.3d 464, 473 (5th Cir. 2004), petition for cert.
filed (July 14, 2004). Nonetheless, counsel could have raised a
potential Blakely issue to preserve it for Supreme Court review.
See McKnight v. General Motors Corp., 511 U.S. 659, 660 (1994).
Because our independent review of the record has revealed
this possible nonfrivolous issue for appeal, we deny counsel’s
motion to withdraw. By denying the motion to withdraw, Hidalgo-
Peralta has preserved the Blakely issue for further review. We
pretermit further briefing, however, in light of Pineiro, and
AFFIRM the judgment of the district court.
Accordingly, counsel’s motion for leave to withdraw is
DENIED, and the judgment of the district court is AFFIRMED.
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T.C. Summary Opinion 2008-131
UNITED STATES TAX COURT
DENIS M. AND YOLANDA DOYLE, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 17886-06S, 22135-07S. Filed October 14, 2008.
Denis M. and Yolanda Doyle, pro se se.
Marie E. Small, for respondent.
ARMEN, Special Trial Judge: These cases were heard pursuant
to the provisions of section 7463 of the Internal Revenue Code in
effect when the petitions were filed.1 Pursuant to section
7463(b), the decisions to be entered are not reviewable by any
1
Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for the
taxable years at issue, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
- 2 -
other court, and this opinion shall not be treated as precedent
for any other case.
Respondent determined deficiencies of $3,878 and $2,992 in
petitioners’ 2004 and 2005 Federal income taxes, respectively.
In his Answer to the amended petition for taxable year 2005,
respondent asserted a penalty under section 6662(a) of $598.
After concessions by the parties,2 the only issue remaining
for decision is whether petitioners are liable for tax on
interest income earned in petitioner Yolanda Doyle’s name.
Because petitioners did not meet their burden of proof as to
either taxable year, we hold for respondent.
Background
Some of the facts have been stipulated, and they are so
found. We incorporate by reference the parties’ stipulation of
facts for 2004 and accompanying exhibits. We also incorporate by
reference those facts deemed admitted under Rule 90(c) due to
petitioners’ failure to respond to respondent’s Requests for
Admission filed March 18, 2008.
2
Petitioners did not dispute their failure to report $616
of interest income in 2004 and thus it is deemed conceded. See
Rule 34(b)(4). At trial, respondent appeared to have conceded
that petitioners properly reported the taxable portion of pension
income received in 2005. Further, because petitioners did
disclose the Social Security income received for each year in
issue on their Federal income tax returns, the only issue that
remains with respect to the Social Security income is the proper
calculation of the taxable portions for each year in issue using
the formula provided by sec. 86.
- 3 -
At the time the petitions in these two related cases were
filed, petitioners Denis M. Doyle and Yolanda Doyle were
residents of New York.3
On June 12, 2006, respondent mailed petitioners a notice of
deficiency for taxable year 2004 determining that petitioners
failed to report $21,751 of interest income and $19,621 of Social
Security income.
On July 23, 2007, respondent mailed to petitioners a notice
of deficiency for taxable year 2005 determining that petitioners
failed to report $14,242 of interest income, $21,902 of Social
Security income, and $1,320 of pension income. In his Answer to
the amended petition filed in docket No. 22135-07S, respondent
asserted an accuracy-related penalty under section 6662(a) of
$598. At trial, the Court found that respondent had not
satisfied his burden of proof with respect to the imposition of
the accuracy-related penalty. See Rule 142(a). Accordingly, the
issue is no longer before us for decision.
Thus, the only remaining dispute in these cases is whether
petitioners are responsible for tax on interest credited in 2004
and 2005 to accounts held in petitioner’s name. Petitioner
argues that the interest income is not properly taxable to her
3
Petitioner Denis M. Doyle testified that the bank
accounts in question were under the control of his wife,
petitioner Yolanda Doyle. She also did the bulk of testifying at
trial. Therefore, references to petitioner in the singular refer
to petitioner Yolanda Doyle alone.
- 4 -
because the bulk of the money in the bank accounts generating the
interest income (bearing petitioner’s name and Social Security
number) actually belongs to petitioner’s relatives who live in
Ecuador and not to petitioner herself.
Discussion
Gross income is defined in the Internal Revenue Code as
being “all income from whatever source derived” unless otherwise
specifically excluded. Sec. 61. Interest income is specifically
included in gross income pursuant to section 61(a)(4).
It is well-settled that the tax liability for income from
property attaches to the owner of such property. See, e.g.,
Lucas v. Earl, 281 U.S. 111 (1930). Here, petitioner argues that
she is not the owner of all of the money in the bank accounts and
accordingly should not be taxed on the portion of interest
payments relating to the funds that do not belong to her. We are
not persuaded by petitioner, and she provided no corroborating
documents, witnesses, or evidentiary support for her testimony;
petitioners offered nothing by way of substantiation at any point
during the proceedings to support their contention that the bulk
of the money generating the interest and held in the bank
accounts bearing petitioner’s name and social security number
actually belongs to petitioner’s relatives.
Generally, the Commissioner’s determinations are presumed
correct, and the taxpayer bears the burden of proving those
- 5 -
determinations wrong. Rule 142(a); INDOPCO, Inc. v Commissioner,
503 U.S. 79, 84 (1992); Welch v. Helvering, 290 U.S. 111, 115
(1933). Under section 7491, the burden of proof may shift from
the taxpayer to the Commissioner if the taxpayer produces
credible evidence with respect to any factual issue relevant to
ascertaining the taxpayer’s tax liability. Sec. 7491(a)(1). In
these cases there is no such shift because petitioners neither
alleged that section 7491 was applicable nor established that
they fully complied with the requirements of section 7491(a)(2).
The burden of proof in both cases remained on petitioners, and
they did not meet it. See Wood Corp. v. Commissioner, 22 B.T.A.
1182, 1186 (1931) (requiring some evidentiary showing because
“[t]he adequate presentation of the pertinent facts is the burden
assumed by the petitioner * * * [and a] decision favorable to its
contentions can not rest on assumption or speculation”), affd. 63
F.2d 1023 (6th Cir. 1933); see also Tokarski v. Commissioner, 87
T.C. 74, 77 (1986); Quita v. Commissioner, T.C. Memo. 1988-309
(holding that taxpayers’ unsubstantiated claims of nominee status
did not serve to shield taxpayers from liability for tax due on
interest received). Petitioners provided us with no evidence,
save the testimony of petitioner herself, to counter respondent’s
determinations. She did not provide us with the names of the
relatives living in Ecuador to whom the money allegedly belongs,
the approximate dates on which the money might have been sent to
- 6 -
her for safekeeping, or even with information as to what she was
supposed to do with the money as time went on. Accordingly, we
are unable to find for petitioners.
We therefore sustain respondent’s determinations with
respect to the interest income received in petitioners’ 2004 and
2005 taxable years. To reflect our disposition of the disputed
issue,
Decision will be entered
under Rule 155.
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862 F.2d 869Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Simon BANKS; Lois Banks, Plaintiffs-Appellants,v.ROBERT E. AMMONS, P.A.; Robert--Ammons, individually;Community Realty Corporation; Carriage HillApartments; Chauncey Spruell; GraysonMcKee, Judge, Defendants-Appellees.
No. 87-2134.
United States Court of Appeals, Fourth Circuit.
Submitted: Sept. 30, 1988.
Decided: Nov. 18, 1988.Rehearing Denied Jan. 27, 1989.Rehearing In Banc Denied April 4, 1989.
Simon and Lois Banks, appellants pro se.
Evelyn Omega Cannon (Office of the Attorney General of Maryland), Robert E. Ammons, for appellees.
Before DONALD RUSSELL, JAMES DICKSON PHILLIPS and WILKINSON, Circuit Judges.
PER CURIAM:
1
Simon and Lois Banks appeal from the district court's order dismissing their complaint alleging claims under 28 U.S.C. Secs. 1343 and 1446; 42 U.S.C. Secs. 1981, 1982, 1983, 1985, 2000e-2, 3604, and 3612; and the Fifth and Fourteenth Amendments. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Banks v. Ammons, C/A No. 81-1914 (D.Md. May 11, 1987). 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.
2
AFFIRMED.
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493 F.2d 314
NORTHEAST THEATRE CORPORATION, Plaintiff-Appellee,v.William W. WETSMAN and Jack Zide, Defendants-Appellants.NORTHEAST THEATRE CORPORATION, Plaintiff-Appellee,v.L & L CONCESSION COMPANY, Defendant-Appellant.NORTHEAST THEATRE CORPORATION, Plaintiff-Appellee,v.TWILITE THEATRE COMPANY and W. Dean Gersell, Defendants-Appellants.
Nos. 72-1931, 72-1932 and 72-1933.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 1, 1973.Decided Feb. 27, 1974.
James M. Wienner and Frederick Steinhardt, Detroit, Mich., for appellants; Katcher, Feldman & Wienner, Detroit, Mich. on briefs for William M. Wetsman and Jack Zide.
Walter Shapero, Shapero, Shapero & Cohn, Detroit, Mich. on briefs for L & L Concession Co.
Travis, Warren, Nayer & Burgoyne, Detroit, Mich., for Twilite and Gersell, by Frederick D. Steinhardt and Harry M. Nayer, Detroit, Mich.
Eugene Driker, Detroit, Mich., for appellee; Barris, Sott, Denn & Driker, by James A. Simpson, Detroit, Mich. on brief for Northeast Theatre Corp.
Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge and KRUPANSKY,* District Judge.
EDWARDS, Circuit Judge.
1
Appellants appeal from a judgment entered by a District Judge in the United States District Court for the Eastern District of Michigan, Southern Division after trial to the court. The judgment granted to plaintiff-appellee Northeast Theatre Corporation specific performance of a contract to purchase four theatres from defendant-appellant Twilite Theatre Company and for an award for lost profits of $204,553. Jurisdiction is founded on diversity of citizenship.
2
The facts developed in a six-day trial show that Twilite, desiring to sell four drive-in theatres in Michigan, made a proposal on April 13, 1970, to Northeast to buy said theatres. The proposal recited that the purchase price would be $1,400,000 on a 7% Contract, with 29% Down in 1970. It also provided, 'the length of time on the balance would have to be mutually agreed upon.'
3
Appellee Northeast contends, and the District Judge in detailed findings of fact agreed, that after some oral negotiations, which included a definition of pay-out terms and an oral agreement by Northeast and Twilite to keep the offer open until April 30 when they were to talk again, appellee Northeast sent a written acceptance on April 30, 1970, which completed the contract. Appellant Twilite, however, on April 29, 1970, had already made a conditional agreement to sell the four theatres to appellants Wetsman and L & L Concession Company if Wetsman and L & L could obtain the 25% Interest of a Twilite partner named Gersell. This agreement was finally consummated in formal contract documents signed on July 9, 1970, under vhich Wetsman and L & L took possession of the theatres and have been operating them ever since.
4
Appellants contend that there never was an offer and an acceptance which served to take the Northeast transaction out of the statute of frauds. They also contend that the District Judge's findings of fact pertaining to the oral agreement by Twilite to extend the offer to April 30 and to accept Northeast's payout schedule were based on the wrong standard of proof and that the evidence was insufficient to uphold them. Lastly, appellants contend that the District Judge's computation of damages was incorrect as a matter of law. We shall discuss these three issues in order.
1. The Statute of Frauds Issue
5
The Michigan Statute of Frauds provides in applicable part:
6
Same; contract for interest in lands other than one year lease; sales at auction
7
Sec. 8. Every contract for the leasing for a longer period than 1 year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized in writing . . .. Mich.Comp. Laws Ann. 566.108 (1967).
8
The offer and acceptance relied upon by the District Judge are set out fully hereafter:
9
April 13, 1970 Mr. Summer Redstone Northeast Theatre Corporation Thirty-One St. James Street Boston, Massachusetts 02116 Dear Sumner: After meeting with my partners, we have to come to this decision. We have decided to take $1,500,000.00 cash or $1,400,000.00 on a seven per cent contract with twenty-nine per cent down in 1970. The length of time on the balance would have to be mutually agreed upon. You would, also, have to assume the L & L Concession leases on three theatres, one being expired at this time. As for a breakdown, the attached schedule should give you the information required. For me to give you a further breakdown of each theatre would be almost impossible under our bookkeeping set up. Our admission prices in all four theatres are $1.75 Sunday through Thursday and $2.00 Friday and Saturday. Sincerely yours, TWILITE THEATRE COMPANY (s) W. DEAN GERSELL W. Dean Gersell
April 30, 1970
10
Mr. Richard J. Ashmun and Mr. W. Dean Gersell, Twilite Theatre Company Ashmun Theatres Strand Theatre Building Caro, Michigan Dear Dick and Dean: As per conversation with you, I had expected to hear from you by today. I realize that you may be tied up in a split meeting, but as I explained to you, we have had a choice between two deals and I have to make a decision; and my deadline on the other deal is today. After talking it over, we have decided to let the other deal go and accept your offer, although I do feel the price is high and the interest rate is high. However, frankly, we have no time for negotiating in view of the necessity for a decision today. Accordingly, we are accepting your offer to sell, as outlined in your letter of April 13 and reaffirmed by you in our phone conversations on Tuesday, April 28. We agree to pay for the four theatres $1,400,000.00 'on a 7% Contract with 29% Down in 1970'. In your telephone conversations, you indicated you desired a ten-year payout, and we are agreed to that. This is the substance of the transaction, and the rest are all details. We are assuming, of course, as you indicated, that you do have good record and marketable title; and the title is insurable. So far as the closing date goes, you indicated you could turn over the theatres almost immediately. We are certainly not inflexible on the date. I would think that thirty days would give enough time for the title check. I congratulate you both. I understand that Dean wants to stay on, and we are looking forward to the possibility of his working for us. Incidentally, you made no request for a deposit, but I am enclosing a check for $25,000.00 which, of course, would be deducted from the 29% On closing. Kindest personal regards.
Sincerely yours, Sumner M. Redstone
SMR:TB $25,000.00 check enclosed
11
Absent any other contentions-- and there are several-- these two documents would in our eyes constitute clear and convincing evidence of a legally binding and enforceable contract under the Michigan Statute of Frauds. That Statute, as interpreted by the Supreme Court of Michigan in an early case, provides that the written memorandum 'must be certain and definite as to the parties, property, consideration, premises and time of performance.' Cooper v. Pierson, 212 Mich. 657, 660, 180 N.W. 351, 352 (1920). These two documents taken together appear to us to meet each of the criteria of Cooper. This view is enforced by the fact that the trend of interpretation of Michigan law pertaining to satisfaction of the Statute of Frauds in more recent years has been toward somewhat less rigidity. See Goldberg v. Mitchell, 318 Mich. 281, 28 N.W.2d 118 (1947); Gedvick v. Hill, 333 Mich. 689, 53 N.W.2d 583 (1952); Duke v. Miller, 355 Mich. 540, 94 N.W.2d 819 (1959); and Goslin v. Goslin, 369 Mich. 372, 120 N.W.2d 242 (1963).
21. The Disputed Findings of Fact
12
The principal other contentions of appellants concerning this transaction pertain to circumstances surrounding the offer and acceptance above. As to these appellants contend 1) that, assuming Twilite's letter dated April 13, 1970, was an offer, it was legally revoked by a counteroffer made by plaintiff Northeast Theatre through its president Redstone in telephone conversations with Ashmun, the spokesman for the Twilite partnership; 2) that, assuming Twilite's letter dated April 13 was an offer, Ashmun, for Twilite, never agreed orally on April 28 to keep Twilite's offer open until April 30 and to call Redstone back on April 30 as claimed by Redstone; 3) that, if Twilite's letter of April 13 was an offer, it was revoked before acceptance by Northeast Theatre by a contract for sale of the theatres made on April 29 between Twilite and appellants Wetsman and L & L Concession Company, and that Northeast had notice of this contract through an agent, Clark, before April 30, and 4) that Redstone's letter of acceptance, dated April 30, was not actually mailed on April 30, 1970.
13
The trouble with these contentions is that the record is so replete with contradictory testimony (particularly from the principal witnesses, Redstone for Northeast Theatre and Ashmun for Twilite), that decision upon each such fact issue depends entirely upon which witness is telling the truth and which is not. The District Judge resolved the credibility issues with specific findings of fact in favor of Northeast Theatre and Redstone. He accepted Redstone's version of his telephone conversations with Ashmun concerning the price as being inquiries rather than a counteroffer. As to holding the offer open, he specifically found that it was 'agreed by Redstone and Richard Ashmun that no action would be taken by either party until they again spoke on Thursday, April 30, 1970.' As to the April 29 oral agreement between Twilite and Wetsman and L & L Concession Company, he found that Clark had not been informed of it and, in any case, was not an agent of Northeast Theatre.1 He also found that Redstone's letter of acceptance, dated April 30, 1970, had been mailed on April 30.
14
Under Rule 52(a) of the Federal Rules of Civil Procedure, we cannot set aside a District Judge's findings of fact unless they are 'clearly erroneous.' We have weighed all of the counterevidence and argument of appellants and we cannot find in this record a basis for setting any one of them aside as 'clearly erroneous.' The most troublesome one is the question of just when Redstone's letter was mailed.2 As to it, we note that while there is certainly evidence to support appellants' contention that it was not actually mailed on April 30-- equally certainly there is strong evidence that it was. Under these circumstances we understand Rule 52(a) to command acceptance of the trial judge's findings-- particularly when they rest, as here, in large measure on determinations of credibility of witnesses.
3. Damages
15
Specific performance for breach of contract is certainly no novel remedy, nor is the award of damages suffered by the offended party during the period of the breach. Goslin v. Goslin, supra; Milner Hotels, Inc. v. Ehrman, 307 Mich. 347, 11 N.W.2d 914 (1943); Restatement of Contracts 384.
16
The judgment of $204,553 was calculated from appellants Wetsman and L & L Concession Company's own books and we see no basis for setting it aside. We do, however, agree that the profits lost by Northeast Theatre ought to be offset by interest upon the down payment which was retained by Northeast during the breach. Presumably appellants Wetsman and L & L will seek to recoup their down payment, likewise with interest.
17
The judgment of the District Court is affirmed as modified above, and the case is remanded for further proceedings consistent with this opinion.
*
Honorable Robert B. Krupansky, United States District Judge for the Northern District of Ohio, sitting by designation
1
The District Judge in his Memorandum Opinion and Order dealt with and rejected appellants' contention that the oral agreement of April 29 between Twilite and L & L Concession and Wetsman revoked Twilite's prior offer to Northeast. We agree that, for the reasons given by the District Judge, revocation was not accomplished:
'One who has made an offer to sell property has no power to revoke it merely by making a sale of the property to a third person. Such a power can be expressly reserved; but the offeree must know of the reservation. A sale to a third person may make it hard for the offeror to perform as offered; but the offeree has power of acceptance even after tht property has already been sold, if he is ignorant of such sale.' 1 A. Corbin, Contracts, 39, at 164 (1963).
2
Appellants contend that Redstone's letter of acceptance dated April 30 was not mailed until May 4. The envelope actually has an April 30 date marked by the postage meter and a May 4 postmark. If (contrary to what we have written above) we were to assume that appellants were correct in when this letter was mailed, we do not believe such a conclusion would change the result in this case. Redstone also sent a telegram on May 1 to Ashmun which constituted an acceptance of Twilite's offer prior to any notice of cancellation or withdrawal of the offer had been conveyed to Redstone
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-01219-COA
NORMAN FERGUSON APPELLANT
v.
MISSISSIPPI FARM BUREAU CASUALTY APPELLEE
INSURANCE COMPANY
DATE OF JUDGMENT: 04/04/2013
TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: MARY SCHILLESCI MCPHERSON
ATTORNEYS FOR APPELLEE: PATRICK H. ZACHARY
MATTHEW D. SHOEMAKER
NATURE OF THE CASE: CIVIL - INSURANCE
TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED IN
FAVOR OF APPELLEE
DISPOSITION: AFFIRMED - 09/09/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND FAIR, JJ.
BARNES, J., FOR THE COURT:
¶1. Norman Ferguson sued Mississippi Farm Bureau Casualty Insurance Company (Farm
Bureau) for breach of contract and bad-faith refusal to pay his claim. The suit stemmed from
an accident where Ferguson received a serious spinal injury while working on a farm owned
by Robert Wilson in Hancock County, Mississippi. Wilson was insured by Farm Bureau
under a general liability policy with a limit of $50,000 for an employer’s liability.
¶2. The Circuit Court of Hancock County granted Farm Bureau’s motion for summary
judgment because there was no genuine issue of material fact about Ferguson’s complaint
being time-barred; the court found the three-year statute of limitations commenced on the
date of the injury and had expired. Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶3. On January 21, 2008, Ferguson was working on Wilson’s farm, roping calves from
a four-wheeler in order to tag them, when the four-wheeler tipped over. As a result,
Ferguson suffered a severe spinal-cord injury and was initially paralyzed from the neck
down. He was in a wheelchair for approximately fifteen months after the accident, leaving
him permanently disabled and unable to work.
¶4. Wilson was insured by Farm Bureau under a general liability policy with limits of
$10,000 for farm employees’ medical payments and $50,000 for farm employer’s liability.
It is undisputed the policy was in effect at the time of the accident. Ferguson made a claim
on the insurance policy based on his injuries. Farm Bureau paid $10,000 for Ferguson’s
medical bills, and offered to pay Ferguson the $50,000 limit of liability. Ferguson claims he
accepted the offer but Farm Bureau has since refused to pay him, while Farm Bureau claims
Ferguson refused to accept the offer.
¶5. On March 26, 2008, Farm Bureau claims representative James Corley wrote a letter
to Ferguson to follow up on a meeting they had at Ferguson’s home. Corley offered the limit
of Wilson’s policy ($50,000), and $10,000 for the medical-payments coverage. Corley also
explained that “due to the nature of [his] bill from Memorial Hospital,” where Ferguson was
treated, Ferguson should obtain “a medical waiver from [the hospital] stating they will waive
their medical lien so we can move forward in settling this case.” There is no indication in
2
the record Ferguson accepted the offer at this time. On July 9, 2008, MedPay Assurance,
which coordinated benefits for the hospital, sent a letter to Corley, informing him that
Ferguson had assigned benefits to the hospital, and MedPay had asserted a lien on any
payments made on this claim.
¶6. In October or November 2009, Ferguson claimed he went to Farm Bureau to pick up
the check for $50,000, and Corley informed him the benefits had to be signed over to the
hospital due to the medical lien. Ferguson wanted the money to be given to him personally;
so he refused to sign the check over to the hospital.
¶7. On April 8, 2010, attorney Mary McPherson advised Farm Bureau that she was
representing Ferguson on his claim. She also asked for documents relating “to any
assignments of benefits to any providers.” On April 13, 2010, Farm Bureau informed
McPherson that it had indicated to Ferguson, in writing and verbally, that it “would extend
the limits of liability on this policy for settlement which is $50,000.” On July 25, 2010,
Ferguson filed for Chapter 7 bankruptcy because he owed approximately $256,547 in
medical bills. Ferguson listed his claim on Wilson’s insurance policy as an asset. In
November 2010, Ferguson was granted a bankruptcy discharge.
¶8. On September 29, 2011, Ferguson’s counsel sent Farm Bureau a letter stating that the
medical lien should only apply to the “medical expense limit” of the policy, and not the
$50,000. She demanded payment of the $50,000 directly to Ferguson. Farm Bureau claimed
this letter was the first time that Ferguson had contacted it about the claim since Ferguson’s
bankruptcy discharge. On October 11, 2011, Farm Bureau replied by letter to Ferguson that
3
the statute of limitations had expired on January 21, 2011, or three years after the date of the
injury. Farm Bureau also stated that it had made numerous attempts to reach a settlement
with Ferguson, but “there [was] no indication in [its] file that the offer was accepted.”
Another letter by Farm Bureau in December 2011 indicated that Ferguson’s counsel had not
responded to its previous letter and it was closing the file.
¶9. In October 2012, Ferguson filed a complaint against Farm Bureau in Hancock County
Circuit Court for “breach of contractual duty to pay insurance proceeds and bad faith refusal
to pay” the claim. Farm Bureau filed a motion to dismiss or, alternatively, for summary
judgment, arguing that the complaint was time-barred under the applicable three-year statute
of limitations. Farm Bureau also argued that the complaint violated the prohibition of direct
actions against insurers without privity of contract. Ferguson filed a response, asserting that
the complaint did not allege a breach of Farm Bureau’s liability-insurance policy with
Wilson, but a breach of contract between Ferguson, individually, and Farm Bureau. Farm
Bureau filed a reply, attaching certain correspondence as exhibits that it argued demonstrated
no independent contract was ever created between it and Ferguson.
¶10. The trial court granted summary judgment in favor of Farm Bureau, holding that any
cause of action accrued on January 21, 2008, the date Ferguson was injured, and expired on
January 21, 2011; thus, his complaint, filed on October 1, 2012, was time-barred. Ferguson
timely filed a motion for a new trial, amendment of the judgment, or relief from the judgment
under Mississippi Rules of Civil Procedure 59 and 60, arguing the complaint was not time-
barred. Farm Bureau responded to the motion stating Ferguson’s motion was filed under
4
Rule 59 and relief was inappropriate. After a hearing, the trial court treated the motion as
one under Rule 59. The trial court denied the motion, finding no proof existed showing a
contract between Ferguson and Farm Bureau was breached on or after October 1, 2009; thus,
the complaint was time-barred.
STANDARD OF REVIEW
¶11. A trial court’s denial of a motion for reconsideration under Rule 59 is reviewed for
an abuse of discretion. City of Jackson v. Internal Engine Parts Grp. Inc., 903 So. 2d 60, 66
(¶19) (Miss. 2005). However, “[a]n appeal from a denial of a Rule 59 motion may address
the merits of the entire underlying proceeding . . . .” Perkins v. Perkins, 787 So. 2d 1256,
1261 (¶9) (Miss. 2001). Statute-of-limitations issues are reviewed de novo. Lincoln Elec.
Co. v. McLemore, 54 So. 3d 833, 835 (¶10) (Miss. 2010).
¶12. The standard of review for a trial court’s grant or denial of summary judgment is de
novo as well. Gorton v. Rance, 52 So. 3d 351, 354 (¶6) (Miss. 2011). Summary judgment
shall be granted “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.” M.R.C.P. 56(c).
“The burden rests on the moving party.” Gorton, 52 So. 3d at 354 (¶6). “Once the absence
of genuine material issues has been shown, the burden of rebuttal falls upon the nonmoving
party,” who “must produce specific facts showing that there is a genuine material issue for
trial.” Id. at 355 (¶7). The evidence will be viewed “in the light most favorable to the
nonmoving party.” Id. at 354-55 (¶6).
5
ANALYSIS
¶13. Ferguson claims the trial court erred in holding the statute of limitations accrued on
the date Ferguson was injured, January 21, 2008. Instead, he argues that the statute of
limitations accrued from the date that Farm Bureau allegedly “first breached” its agreement
with him by refusing to pay him $50,000 in October or November 2009.1 Around that time,
Ferguson went to Farm Bureau to obtain the $50,000 check, but he claims Corley told him
the check would not be given to him; he had to sign it over to the hospital. Ferguson argues
the three-year statute of limitations did not expire until October or November 2012, and his
complaint, filed October 1, 2012, was timely. We disagree.
¶14. Because Ferguson’s complaint did not state a claim with a specifically prescribed
statute of limitations, the parties are correct that Mississippi Code Annotated section 15-1-
49(1) (Rev. 2012) applies. It provides: “All actions for which no other period of limitation
is prescribed shall be commenced within three (3) years next after the cause of such action
accrued, and not after.” The Mississippi Supreme Court “has held that a cause of action
accrues ‘when it comes into existence as an enforceable claim, that is, when the right to sue
becomes vested.’” Weathers v. Metro. Life Ins. Co., 14 So. 3d 688, 692 (¶14) (Miss. 2009)
(quoting Bullard v. Guardian Life Ins. Co. of Am., 941 So. 2d 812, 815 (¶11) (Miss. 2006)).
“In other words, the statute of limitations ‘begins to run when all the elements of a tort, or
cause of action, are present.’” Id. (quoting Caves v. Yarbrough, 991 So. 2d 142, 147 (¶22)
1
Ferguson cannot provide a definitive date that the alleged breach occurred.
6
(Miss. 2008)).
¶15. The trial court held that the cause of action is based upon injuries Ferguson sustained
on January 21, 2008, and thus any cause of action accrued on that day. We agree. Any claim
Ferguson had to recover for his injury on Wilson’s farm accrued on January 21, 2008;
therefore, Ferguson’s complaint, filed on October 1, 2012, was time-barred under the
applicable statute of limitations. Furthermore, Farm Bureau makes the argument that
Ferguson’s complaint constitutes an impermissible direct action by a third party against an
insurer. Under Mississippi law, direct actions against insurance companies by third parties
are allowed “for the purpose of seeking declaratory judgment on the question of coverage.”
Miss. Mun. Liab. Plan v. Jordan, 863 So. 2d 934, 942 (¶19) (Miss. 2003) (quoting Jackson
v. Daley, 739 So. 2d 1031, 1038 (¶23) (Miss. 1999)). Here, Ferguson was not an insured of
Farm Bureau, but a third party to the policy issued to Wilson. There was no enforceable
judgment against Wilson at the time Ferguson’s complaint was filed, nor did the complaint
seek declaratory relief.
¶16. Even if Ferguson’s complaint was not based on his injuries, but breach of contract,
as Ferguson argues, there was no written or oral contract formed between Ferguson and Farm
Bureau that could have been breached on or after October or November 2009. A basic
principle of contract law is that “a contract is not formed between the parties absent the
essential elements of offer, acceptance, and consideration.” Whiting v. Univ. of So. Miss.,
62 So. 3d 907, 915 (¶14) (Miss. 2011). We agree that Farm Bureau offered to settle
Ferguson’s claims against Wilson for $50,000, confirmed by letter on March 26, 2008, and
7
then again on April 13, 2010.2 There is no evidence that Ferguson ever accepted Farm
Bureau’s offer, as he claims, in June or July 2008. All of Farm Bureau’s offers to settle had
provided that Ferguson had to obtain a waiver of the medical lien from the hospital, but to
the contrary, Ferguson assigned benefits to the hospital. Accordingly, he could not accept
Farm Bureau’s offer without obtaining a waiver of the lien, and later, a reassignment of
benefits. Ferguson rejected Farm Bureau’s offer of settlement when he refused to sign the
check in October or November 2009. Because Ferguson refused to accept Farm Bureau’s
settlement offer, no contract was formed between Ferguson and Farm Bureau. See Heritage
Bldg. Prop. LLC v. Prime Income Asset Mgmt. Inc., 43 So. 3d 1138, 1143 (¶10) (Miss. Ct.
App. 2009) (“[A] contract is not formed until the offeree accepts the terms stated by the
offeror.” (quoting Vice v. Hinton, 811 So. 2d 335, 338 (¶12) (Miss. Ct. App. 2001))).
Moreover, after his refusal of the offer, Ferguson waited until September 29, 2011, to write
a letter to Farm Bureau making a formal demand for payment of the $50,000. Farm Bureau
claims this was the first time Ferguson had contacted it about the $50,000 since his
bankruptcy proceedings closed nearly ten months earlier in November 2010. Farm Bureau
noted in its October 11, 2011 letter to Ferguson’s counsel that there was “an indication in
November 2010 that the Bankruptcy Court would decide whether the offer could be accepted
and if so where the proceeds would have to go,” but Farm Bureau never received a response
2
Farm Bureau claims it offered to pay $50,000 under the farm employer’s liability
coverage of Wilson’s insurance policy to Ferguson and known lienholders in exchange for
the execution of a valid release whereby Ferguson waived any right to bring an action
against Wilson.
8
about the outstanding offer. Farm Bureau stated that after reviewing the bankruptcy order,
it appeared that MedPay Assurance’s lien was discharged, but again, Ferguson made no
attempt to secure or accept the offered proceeds. By the time Ferguson’s complaint was
filed, the three-year statute of limitations on his claim against Wilson had run.
¶17. Ferguson never argued that the September 2011 demand letter was an attempt to
accept Farm Bureau’s offer. Even if Ferguson had made this argument, however, it would
not have been successful due to lack of consideration to form a valid contract. It has been
long established that “[a] benefit to the promisor or detriment to the promisee is sufficient
consideration for a contract. This may consist either in some interest, right, profit or benefit
accruing to the one party, or some forbearance, detriment, loss or responsibility given,
suffered or undertaken by the other.” Lowndes Coop. Ass’n v. Lipsey, 240 Miss. 71, 76, 126
So. 2d 276, 278 (1961) (citations omitted). “Where no consideration exists, and is required,
the lack of consideration results in no contract being formed . . . .” 3 Williston on Contracts
§ 7:11 (4th ed. 2013). Ferguson had nothing to offer, such as relinquishing the right to sue
the insured, in exchange for the policy proceeds, because his right to sue Wilson had expired.
Also, Farm Bureau would have obtained no benefit, because Ferguson could no longer sue
the insured. There could have thus been no consideration, and no contract formed.
¶18. In conclusion, there was no genuine issue of material fact that Ferguson’s complaint
was time-barred. Accordingly, we affirm the trial court’s grant of summary judgment for
Farm Bureau.
¶19. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY IS
9
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.
10
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORMAN GERALD DANIELS III, No. 17-17421
Plaintiff-Appellant, D.C. No. 1:13-cv-00202-AWI-SAB
v.
MEMORANDUM*
STUART SHERMAN, Warden, CSATF,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted January 15, 2019**
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
Norman Gerald Daniels III, a California state prisoner, appeals pro se from
the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
discrimination under the Americans with Disabilities Act (the “ADA”). We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Mendoza v. The Roman
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Catholic Archbishop of L.A., 824 F.3d 1148, 1149 (9th Cir. 2016). We affirm.
The district court properly granted summary judgment on Daniels’s ADA
claim because Daniels failed to raise a genuine dispute of material fact as to
whether any alleged violation arose from discrimination against him because of a
disability. See Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1022 (9th
Cir. 2010) (“The ADA prohibits discrimination because of disability, not
inadequate treatment for disability.”).
The district court properly granted summary judgment on Daniels’s requests
for injunctive relief because Daniels lacks standing to seek statewide injunctive
relief on behalf of other visually disabled inmates. See McCollum v. Cal. Dep’t. of
Corr. & Rehab., 647 F.3d 870, 879 (9th Cir. 2011) (“[T]o demonstrate third party
standing, a plaintiff must show his own injury, a close relationship between
himself and the parties whose rights he asserts, and the inability of the parties to
assert their own rights.” (citation omitted)).
The district court did not abuse its discretion in denying Daniels’s motion to
withdraw his admissions because any withdrawal of Daniels’s admissions would
prejudice defendant. See Fed. R. Civ. P. 36(b); Conlon v. United States, 474 F.3d
616, 621 (9th Cir. 2007) (standard of review).
The district court did not abuse its discretion in denying Daniels’s various
motions to compel. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)
2 17-17421
(standard of review; discovery rulings “will not be disturbed except upon the
clearest showing that denial of discovery results in actual and substantial prejudice
to the complaining litigant” (citation and internal quotation marks omitted)); see
also Getz v. Boeing Co., 654 F.3d 852, 867-68 (9th Cir. 2011) (discussing motions
for discovery under Fed. R. Civ. P. 56(d) and explaining that a plaintiff must show
that the discovery sought would have precluded summary judgment).
The district court did not abuse its discretion in denying Daniels’s motion
for leave to file a second amended complaint because amendment would have been
futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th
Cir. 2011) (setting forth standard of review and explaining that dismissal without
leave to amend is proper when amendment would be futile).
The district court did not abuse its discretion in denying Daniels’s motion
for reconsideration regarding the denial of his motion to file a second amended
complaint because Daniels failed to establish any basis for such relief. See Sch.
Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir.
1993) (setting forth grounds for reconsideration under Fed. R. Civ. P. 60(b)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We reject as without merit Daniels’s contentions regarding any district court
3 17-17421
discrimination or bias.
AFFIRMED.
4 17-17421
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In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2971
James J. Valona,
Plaintiff-Appellant,
v.
United States Parole Commission,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97-C-531--Rudolph T. Randa, Judge.
Submitted November 20, 2000--Decided December 22, 2000
Before Fairchild, Easterbrook, and Diane P. Wood,
Circuit Judges.
Easterbrook, Circuit Judge. Federal offenders
whose crimes predated November 1, 1987, remain
eligible for parole. James Valona was released on
parole in December 1992 and, under 18 U.S.C.
sec.4211(c)(1) (1982 ed.), was presumptively
entitled to release from supervision five years
later:
Five years after each parolee’s release on
parole, the Commission shall terminate
supervision over such parolee unless it is
determined, after a hearing conducted in
accordance with the procedures prescribed in
section 4214(a)(2), that such supervision should
not be terminated because there is a likelihood
that the parolee will engage in conduct violating
any criminal law.
December 1997 came and went without the hearing
and decision required by sec.4211(c)(1). Valona
sought a judicial order ending the Commission’s
supervision over him. Twice the district court
declined to reach the merits of this claim; twice
we remanded, the second time adding that, until
the Parole Commission got around to Valona’s
case, supervision must cease. Valona v. United
States, 138 F.3d 693 (7th Cir. 1998); Valona v.
United States Parole Commission, 165 F.3d 508
(7th Cir. 1998). In February 1999 the National
Appeals Board of the Commission concluded that he
should remain under supervision because he is a
suspect in an ongoing arson investigation. The
district court concluded that this decision is
neither arbitrary nor capricious and reinstated
the Commission’s authority over Valona. (The
district court used the standard of the
Administrative Procedure Act, 5 U.S.C. sec.706,
as our opinions required. See 18 U.S.C. sec.4218
(1982 ed.).)
One of Valona’s arguments is that, because the
Commission missed the five-year deadline and this
court lifted his supervision as an interim
remedy, see 5 U.S.C. sec.705, the Commission
cannot resume supervision. An interim remedy
under sec.705 is just that, however--interim. Now
that the Commission has rendered its decision,
the legal question is whether delay always brings
parole supervision to a close. Two decades ago we
addressed that question and concluded that parole
supervision can survive tardy actions by the
Parole Commission. Pullia v. Luther, 635 F.2d 612
(7th Cir. 1980). Accord, Russ v. Perrill, 995
F.2d 1001, 1003 (10th Cir. 1993); Penix v. United
States Parole Commission, 979 F.2d 386, 388-90
(5th Cir. 1992); Robbins v. Thomas, 592 F.2d 546,
549 n.7 (9th Cir. 1979). Revisiting that
interpretation of a repealed statute applicable
to a dwindling number of cases could not be
justified--especially not after Brock v. Pierce
County, 476 U.S. 253 (1986), which shows that as
a rule an agency that misses a statutory deadline
does not lose authority to make a belated
decision with the same legal effect as a timely
one. Congress sometimes specifies a consequence
of delay, along the lines of a statute of
limitations or the law at issue in Miller v.
French, 120 S. Ct. 2246 (2000), but, when the
statute is silent on the effect of delay,
shortcomings by public officials rarely preclude
(eventual) implementation of laws designed for
protection of the public at large. Valona
received an appropriate remedy when he was
released from supervision pending the
Commission’s action. Whether he should be on
parole supervision in 2001 and later depends on
the adequacy (as opposed to the timing) of the
Commission’s disposition.
Section 4211(c)(1) calls for extended
supervision if the Commission concludes that
there "is a likelihood that the parolee will
engage in conduct violating any criminal law."
This language does not answer a vital question:
how likely must future criminality be? Even a
saint may violate the criminal law in the future;
what is more, most hardened criminals eventually
go straight (if only because many kinds of crime
require physical exertion in which older persons
cannot engage). Efforts to predict future
criminality person-by-person have not done well.
Although past convictions are good indicators of
future crimes, this is prediction in the
statistical sense; no one has been able to devise
a method of determining which released convicts
will commit new crimes. Those who kill in a fit
of passion are unlikely to murder again, but
Valona was a drug dealer, and the recidivism rate
is high when crime pays. If this regularity were
enough to justify a finding of "likelihood,"
however, the statute might as well deny release
to all drug dealers; yet if "likelihood" means
"more likely than not" then there is little point
to the possibility of extension, because someone
who spends five years on parole without a fresh
conviction must be among those at lesser risk of
recidivism.
Because any mechanical reading of "likelihood"
either extends or terminates parole
automatically, and because automatic extensions
(or terminations) are just what sec.4211(c)(1)
does not authorize, the statute effectively hands
discretion to the Parole Commission. See Chevron
U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). One of the
Commission’s regulations specifying how this
discretion will be exercised provides that
supervision will continue if unresolved criminal
charges are pending against the parolee. 28
C.F.R. sec.2.43(e)(4). No "charges" have been
leveled against Valona, but a cloud hangs over
his head, and an investigation is ongoing.
In July 1996 Valona asked his parole officer to
arrange for early termination of his supervision.
The parole officer replied that this could not be
done while the balance of Valona’s criminal fine,
some $23,000, remained unpaid. Only that month
Valona had filed a financial statement claiming
to have at least $75,000 worth of antiques
available for sale. That inventory was soon
turned into cash-- though in a way the parole
officer could not have contemplated. Six days
after the officer told Valona to pay his fine,
the warehouse holding that inventory burned to
the ground, and Valona submitted an insurance
claim for the stated value of his stock in trade.
At about the same time Michael Antonelli, who
Valona had come to know while in prison and who
like Valona had been released on parole, told his
wife that he had a contract to burn down a
warehouse holding antique furniture; later
Antonelli told his wife that the job had been
done and that he had been paid for his work.
Valona has not been charged with hiring Antonelli
to torch the warehouse, but neither has he been
absolved of suspicion. Parole officials also
suspect him of bankruptcy fraud (it seems that he
obtained a discharge in 1995 without revealing
his antiques and other assets) and of associating
with other felons. Suspicion is not proof, but
"likelihood" also falls short of proof--and new
crimes committed after release from prison are
the best possible indicator that there "is a
likelihood that [Valona] will engage in conduct
violating any criminal law." Sensible people
could conclude that supervision should be
continued, if only to allow the intermediate step
of revoking Valona’s parole rather than
initiating a new criminal prosecution. The
Commission’s decision to continue Valona’s parole
cannot be set aside under the APA.
Valona argues that, even if the Commission’s
decision of February 1999 is lawful, we should
remand to the district court with instructions to
enter an order requiring the Commission to comply
with sec.4211(b): "Two years after each parolee’s
release on parole, and at least annually
thereafter, the Commission shall review the
status of the parolee to determine the need for
continued supervision." The Commission’s record
of delay does raise the question whether it can
be counted on to review Valona’s situation "at
least annually"; it not only missed the five-year
deadline under sec.4211(c)(1) but also has not
inquired since February 1999, yet we are closing
in on the second anniversary of that decision.
Perhaps, however, the Commission believed that it
could not properly hold additional proceedings
while the interim order lifting supervision
remained in force. Now that supervision has
resumed, so has the schedule under sec.4211(b).
If the Commission again lapses into inaction,
Valona will again be entitled to interim
cessation of supervision. We are confident that
the district court will protect his entitlements.
Affirmed
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-3953
___________
International Gaming Network, *
*
Appellant, * Appeal from the United States
* District Court for the District
v. * of South Dakota.
*
Casino Magic Corp., *
*
Appellee. *
___________
Submitted: May 22, 1997
Filed: July 17, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, and BOWMAN and MORRIS
SHEPPARD ARNOLD, Circuit Judges.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
International Gaming Network, Inc. ("IGN"), appeals a summary judgment
entered in favor of Casino Magic Corporation ("CMC") in an action for tortious
interference with a business relationship that existed between IGN and the
Sisseton-Wahpeton Sioux Tribe (the "Tribe"). The case, here under our diversity
jurisdiction, is governed by South Dakota law. We find that the evidence in the record
is insufficient to support a finding for IGN on its claim, and therefore affirm the
judgment of the district court.1
I.
The business relationship at issue here had begun by June, 1993, when the
Tribe's governing body, the Tribal Council, effected an agreement with IGN for the
latter to build and manage a casino on tribal land. This agreement was not binding on
the parties, because federal law required that it be approved by the National Indian
Gaming Commission ("NIGC"). See 25 U.S.C. §§ 2701-2721 (Indian Gaming
Regulatory Act). The parties agreed at oral argument as well that the agreement did
not carry with it an implied undertaking on the part of the Tribe not to repudiate it
before the NIGC acted to approve or disapprove it. IGN developed a plan and
submitted a proposal to the NIGC to build and operate a casino for the Tribe.
Before the NIGC had acted, the Tribe decided to recall the proposal from the
NIGC and to rescind the agreement with IGN. Prior to this action, the Tribe's regular
attorney, Bertram Hirsch (who had not been a part of the original negotiations with
IGN), was asked by the Tribal Council to review the agreement, a review that
ultimately led him to conclude that it was not in the best interests of the Tribe.
Expressions of concern over the agreement had been raised at tribal meetings held at
the district level (the Tribe comprised seven districts), concerns that contributed to the
calling of a public forum that was held on the date that the Tribal Council acted to
rescind the agreement. There was, as well, dissension in the ranks of the Tribal
Council over the agreement.
There had been, prior to the repudiation of this agreement, only one contact
between CMC and the Tribe that IGN thinks is relevant. There is a dispute as to the
1
The Honorable John B. Jones, United States District Judge for the District of
South Dakota.
-2-
characterization of this contact, but the parties agree that, only a few days before the
Council met to rescind the agreement, three agents of CMC entered a Tribe casino in
Watertown, South Dakota, and that a meeting lasting no more than fifteen minutes
occurred between them and certain members of the Tribe's Gaming Commission and
the Tribe's Gaming Board.
CMC contends that the meeting was merely an impromptu and unplanned
encounter that arose in the course of a training expedition during which its employees
were visiting various casinos. CMC argues, moreover, and IGN does not deny it, that
the Gaming Board and the Gaming Commission were bodies whose function was to
oversee the Watertown casino only, and that no one present at the meeting had any
authority with regard to new casino development.
IGN, on the other hand, maintains that the meeting was a formal presentation by
CMC designed to steal away the new casino project. It asserts that CMC distributed
company brochures touting its management prowess, and it also points to deposition
testimony suggesting that the CMC agents admitted to being there to discuss a
management contract. There is also some evidence in the record that Alan Johnson,
the Gaming Commissioner for the Tribe's South Dakota gaming operations, was a key
participant in, if not the originator of, the meeting.
After the action by the Tribe repudiating its agreement with IGN, IGN acted to
try to preserve its relationship with the Tribe. Beverly and Theron Thompson, who had
acted as intermediaries between the Tribe and IGN and who had a stake in IGN's
agreement, faxed a letter to CMC asking that it disavow any interest in the agreement.
The letter stated that "[w]e realize your people were contacted by Alan Johnson.... He
will not be Commissioner in North Dakota. He is the precipitator of the whole
situation." CMC declined to send back a suggested letter that the Thompsons had
attached to their fax, but it did write the Tribe asserting that it had "no interest in
-3-
pursuing any of the services mentioned in the fax sample letter and does not intend to
do so."
Soon thereafter, Lorraine Rousseau, the chairwoman of the Tribal Council, who
had been a key supporter of the IGN agreement, was removed from her leadership
position. The Tribal Council, under its new leadership, sought to solicit proposals for
the casino, while, at the same time, continuing negotiations with IGN. At this time, the
Tribe's attorney, Mr. Hirsch, wrote the Tribe urging it to discontinue negotiations with
IGN while it was soliciting proposals from others. The Tribe acceded to Mr. Hirsch's
suggestions, and wrote to tell IGN that it was discontinuing negotiations with it in order
to "explore other casino management opportunities."
The Tribe then solicited proposals from CMC, as well as from Red Rock,
Harrah's, the Mashantucket Pequot Tribe, and several others. The Tribe also informed
IGN that IGN could offer a new proposal if it wished, but it did not. Four proposals
were received. The Tribe selected Harrah's and CMC as finalists and ultimately
entered into an agreement with CMC.
II.
In order to survive summary judgment, IGN must have evidence that a business
relationship existed between it and the Tribe, and that there was an intentional and
unjustified act to interfere with that relationship by CMC. There must, as well, have
been harm to IGN that can reasonably be attributed to CMC's actions. See Nelson v.
Web Water Dev. Ass'n, Inc., 507 N.W.2d 691 (S.D. 1993); see also Restatement
(Second) of Torts §§ 766-774A at 7-57 (1979).
While we think it likely that a business relationship of the sort necessary for the
commission of this tort ceased to exist between IGN and the Tribe when the Tribal
Council rescinded the agreement, it is quite obvious that the necessary relationship was
at an end at the time when the Tribe, acting on Mr. Hirsch's advice, notified IGN that
-4-
it was discontinuing negotiations and that the contract was going to be rebid. The only
relevant evidence offered by IGN of CMC's interest in the casino contract before that
time was the meeting at Watertown that we have already adverted to. The difficulty
for IGN with this solitary bit of evidence is that on the present record, even when
viewed in a light most favorable to IGN, IGN cannot carry its burden of showing that
CMC's actions caused the rescission of the agreement.
IGN's main supporter within the Tribe was Lorraine Rousseau, who, as
chairwoman, orchestrated the negotiations that gave rise to the original agreement. But
her actions with regard to the IGN contract appeared to many in the Tribe to have been
hasty, and a general dissatisfaction with her performance led to her losing political
power. One act of hers that was criticized was that she had shut Mr. Hirsch, the long-
term tribal attorney, out of the IGN negotiations. She testified later that she did not
trust him. After the change of Tribal Council leadership, Mr. Hirsch was brought in to
review the agreement, and, as we have already indicated, he ultimately concluded that
it was not in the best interests of the Tribe. This led directly to a reopening of the
casino business to bids.
IGN argues on appeal that the question of attorneys was a red herring since the
NIGC had the duty to ensure that a contract between a tribe and casino operators is fair
to an Indian tribe: Therefore, IGN argues, not having Mr. Hirsch involved could not
have hurt the Tribe. IGN, it seems to us, misses the point that Mr. Hirsch's exclusion
from the relevant process, while not necessarily harmful to the Tribe given the NIGC's
oversight, was nevertheless a clearly unpopular act, and bolstered the sentiment shared
by many tribal members that Ms. Rousseau was acting too brashly with respect to the
casino business. Her political downfall was intimately linked to IGN's loss.
In the face of this evidence of political maneuvering, IGN offers only meager
evidence that CMC's actions at the Tribe's casino at Watertown were what influenced
the Tribe to undo its relationship with IGN. But this contact, which at most involved
-5-
the distribution of brochures, occurred with tribal members who had no authority over
new casino business. Before IGN could prevail, a jury would have to speculate on the
basis of this record that the Watertown meeting caused IGN to lose the business of the
Tribe. That, of course, a jury may not do.
III.
We find that the record before us cannot support a reasonable inference that but
for CMC's brief encounter with tribal members at Watertown, IGN's advantageous
relation with the Tribe would have been continued. We therefore affirm the district
court's grant of summary judgment in favor of IGN.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-6-
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266 F.3d 12 (1st Cir. 2001)
JOHN M. McCAMBRIDGE, Petitioner, Appellant,v.TIMOTHY HALL, SUPERINTENDENT, Respondent, Appellee.
No. 00-1621
United States Court of Appeals For the First Circuit
Heard Nov. 29, 2000Decided September 24, 2001
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge][Copyrighted Material Omitted][Copyrighted Material Omitted]
John M. McCambridge, pro se.
James J. Arguin, Assistant Attorney General, Criminal Bureau, on brief for appellee.
Before Lipez, Circuit Judge, Campbell and Cyr, Senior Circuit Judges.
LIPEZ, Circuit Judge.
1
John McCambridge appeals pro se from the denial of his petition for a writ of habeas corpus by the district court. He claims that his conviction in the Massachusetts state court for manslaughter is in violation of his constitutional rights because the prosecution failed to disclose exculpatory evidence and then used the absence of that evidence to impeach his credibility during closing argument. In determining whether McCambridge is entitled to a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1),1 we examine the opinion of the Massachusetts Appeals Court affirming his conviction. We conclude that the Appeals Court reached a decision that was both contrary to and an unreasonable application of clearly established federal law. Accordingly, we reverse the judgment of the district court.
I.
2
At trial, the parties agreed that McCambridge shot and killed Richard Doyle during the early morning of November 11, 1993, between the time they left a bar in Cambridge, Massachusetts, and the time the van in which they were riding crashed. The Commonwealth charged McCambridge with first degree murder and attempted to prove that McCambridge shot Doyle shortly after they left the bar and that McCambridge was driving at the time of the accident.
3
McCambridge claimed self-defense, testifying that Doyle was driving the van, and became angry when McCambridge called him a name that referenced Doyle's earlier conviction for child abuse. Further, McCambridge testified that while still driving the vehicle Doyle put a loaded and cocked gun to McCambridge's head. Then McCambridge said that he pushed Doyle's gun away with one hand, located another gun from the dashboard and fired it at Doyle with his other hand. The van crashed moments later. Following the accident, McCambridge was found wedged in the driver's seat of the van, and Doyle's body, still warm, was found pinned under a wheel of the vehicle.
4
The Commonwealth charged McCambridge with first degree murder, weapons violations, and vehicular offenses. Following a four-day trial, the jury found McCambridge guilty of manslaughter, illegal possession of a firearm and two of the three vehicular offenses charged.2 The Massachusetts Appeals Court affirmed the conviction for manslaughter,3 and the Supreme Judicial Court declined further review. McCambridge has now served over six years of a fifteen to twenty year sentence.
5
McCambridge filed a petition for a writ of habeas corpus in federal district court. The court denied his petition. We granted a certificate of appealability limited to the claim that the prosecution had failed to comply with the disclosure obligations imposed by Brady v. Maryland, 373 U.S. 83 (1963),4 and now reverse.
II.
6
McCambridge asserts that the Commonwealth violated the requirements of Brady in not disclosing exculpatory evidence. "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Additionally, because McCambridge is seeking relief from a state court judgment pursuant to 28 U.S.C. § 2254, he must also satisfy the statutory requirement that he demonstrate his eligibility for a writ of habeas corpus. "Habeas review involves the layering of two standards. The habeas question of whether the state court decision is objectively unreasonable is layered on top of the underlying standard governing the constitutional right asserted." Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001).
7
Accordingly, McCambridge must satisfy two legal standards. He must show that the Commonwealth denied his constitutional rights under Brady, and he must demonstrate that the Massachusetts Appeals Court made a determination that was contrary to or an unreasonable application of federal law in rejecting that claim, see 28 U.S.C. § 2254(d)(1). The Appeals Court rejected McCambridge's Brady claim on two grounds. See Commonwealth v. McCambridge, 690 N.E.2d 470, 475 (Mass. App. Ct. 1998). First, it ruled that McCambridge was required to object when the prosecutor refused to disclose the exculpatory evidence sought, namely, evidence of Doyle's conviction for child abuse. Second, the court ruled that McCambridge could not show prejudice from the prosecutor's wrongful suppression of that evidence. The court resolved these issues with brief analysis, citing only one Massachusetts case as authority:
8
While the defendant pressed for the introduction of the victim's criminal record at trial, he did not object when the judge did not order its production or request that the record be marked for identification. He cannot now be heard to complain that the judge failed to do so at the sentencing stage.5
9
In any event, assuming without deciding that the prosecutor should have produced the victim's record, there was no prejudice to the defendant because he was aware of the victim's record and was prepared to offer such evidence at trial. More importantly, there was no prejudice to the defendant. By convicting the defendant of manslaughter, the jury obviously credited the defendant's testimony that the struggle in the van was precipitated by the defendant's remark about this offense to Doyle. See Commonwealth v. Tucceri, 412 Mass. 401, 412-414, 589 N.E.2d 1216 (1992).
10
Id. Examining both of the state court's conclusions in turn, we hold that the determination of the Appeals Court that McCambridge should have objected is contrary to clearly established federal law, and that the court's conclusion that McCambridge was not prejudiced is an unreasonable application of that law.
III. Nondisclosure of Brady Material
11
The Supreme Court held in Brady v. Maryland that "the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. The favorable evidence at issue here is the criminal record of the victim, Doyle.6 McCambridge testified at trial that Doyle became violent when McCambridge called Doyle a name that referred to Doyle's conviction for child abuse. McCambridge also described an incident a few months prior to the accident where he asked Doyle whether he had been convicted of child abuse and Doyle threatened to kill him if McCambridge ever mentioned the topic again. Therefore, Doyle's criminal conviction related to McCambridge's theory of self-defense because it provided an explanation for why Doyle might have become violent in the van. Additionally, McCambridge's testimony about Doyle's earlier threat was significant in assessing McCambridge's state of mind at the time of the shooting for purposes of determining whether he was in reasonable fear of death or serious bodily injury.
12
In charging an unlawful killing, the Commonwealth assumed the burden of proving that McCambridge did not act in self-defense. See Commonwealth v. Reed, 691 N.E.2d 560, 563 (Mass. 1998). The jury might not have found McCambridge guilty of any wrongful killing if it could not reject, beyond a reasonable doubt, McCambridge's testimony that he reasonably perceived that he was in imminent danger of death or serious bodily harm. McCambridge's credibility on this self-defense claim and his perception of Doyle's alleged actions in the van and his earlier threat were thus potentially determinative of the verdict.
13
Doyle had, in fact, been convicted of and imprisoned for child neglect.7 Yet, during trial, the prosecutor represented, both to defense counsel and the trial judge, that there was no such conviction on Doyle's official record.
14
A. Requests, Representations, and Rulings Regarding the Exculpatory Evidence
15
The question of Doyle's record arose several times during the trial. There were three discussions at the bench. The first sidebar took place on the third day of the trial when Doyle's brother was testifying for the Commonwealth. Defense counsel informed the court and the prosecutor that McCambridge's testimony about the altercation in the van would refer to his understanding that Doyle had been convicted for child abuse. Defense counsel stated that he saw no reason to question Doyle's brother about the decedent's conviction unless the prosecutor was going to argue that McCambridge was lying. The prosecutor said he had not yet decided whether he would challenge McCambridge's veracity regarding Doyle's conviction. Due to the prosecutor's ambivalence about his plans in this regard, the defense was unable to resolve, at this point, whether to question Doyle's brother about the conviction. Therefore, the court ordered that the witness be held over for possible later questioning by the defense. During this initial sidebar, the prosecutor was put on notice that the record of Doyle's conviction was exculpatory because it corroborated McCambridge's anticipated testimony.
16
The second sidebar on the issue of Doyle's conviction occurred during defense counsel's direct examination of McCambridge. The prosecutor objected, on hearsay grounds, to McCambridge's reference to the conviction when he described the threat allegedly made by Doyle a month before the killing. The court overruled the prosecution's objection on the ground that the testimony was not being offered for the truth of the conviction, but rather to establish McCambridge's state of mind with respect to his fear of being killed by Doyle. The prosecutor replied that he thought the prejudicial effect of the evidence outweighed its probative value. The following exchange took place:
17
THE COURT: Do we have a conviction on this charge?
18
DEFENSE: Do I have a certified copy of the conviction? I do not. But I assert that it is true, that he was convicted for this charge. ... I don't think my brother can say to your Honor that, in fact, he was not convicted. I've read the newspaper articles about it.
19
COURT: Has anyone checked his probation record?
20
PROSECUTOR: It just says -- it doesn't say what for. I have no idea what it's for.
21
COURT: Okay. I'll tell them that it's not being offered for the truth of the matter.8
22
The key event during the second sidebar was the prosecutor's representation that he had looked at Doyle's record but had found it to be unclear.9
23
The question of the conviction arose again shortly after the second sidebar. Despite the court's ruling that the jury would be told that McCambridge's testimony regarding Doyle's conviction was not being offered for the truth of the matter, the prosecutor attempted to raise doubts about the fact of the conviction during his cross-examination of the defendant.
24
PROSECUTOR: You said that you had an argument with Mr. Doyle sometime prior to this in September and you said that he was involved in a problem of child molestation; is that correct?
25
DEFENDANT: I was told that. . . .
26
***
27
PROSECUTOR: You know Mr. Doyle is deceased; isn't that correct, sir?
28
DEFENDANT: He certainly is.
29
PROSECUTOR: He can't refute your allegations right now; can he?
30
DEFENSE: Objection to that, your Honor.
31
THE COURT: Sustained.
32
This line of questioning foreshadowed the prosecutor's reference to Doyle's conviction in closing argument.10 It also explains the concern expressed by defense counsel at the third sidebar, held on the fourth day of trial just before the defense rested.
33
At this third and last sidebar, the court again asked the prosecutor whether he had checked Doyle's record and the defense requested that the prosecution produce the record. Defense counsel also referred to the possibility of recalling Doyle's brother to establish the conviction, which he again indicated he would not do unless the prosecutor was going to argue that McCambridge was lying about it:
34
DEFENSE: He is maligning [the defendant's] character, you know, as if there is some evidence in the case that he [the victim] wasn't really in jail.
35
PROSECUTOR: He wasn't in jail, Judge. .
36
THE COURT: Did you check his record?
37
PROSECUTOR: He wasn't in jail, Judge.
38
THE COURT: Was he convicted?
39
PROSECUTOR: No. No.
40
DEFENSE: Do you have his record? Let's make it part of the
41
PROSECUTOR: No. I'm not going to make it a part. That's your case, sir. . . . So, as far as I know, he's never been in jail a day of his life.
42
* * *
43
DEFENSE: Your Honor, I don't have access to his criminal record. . . . So if he's got a criminal record, this is an important issue, it seems to me. I would like it produced so we can all see whether or not he did have a criminal record and what, if anything, he was convicted of. I'm concerned about it. I don't want to make it part of the case. On the other hand, I don't want to open it up for argument that I didn't prove that he had one and, therefore, my guy was lying.
44
* * *
45
PROSECUTOR: . . . [A]s far as I know, there is no record that Mr. Doyle had any convictions.
46
THE COURT: What do you intend to argue?
47
PROSECUTOR: . . . I am going to argue the facts of the case, Judge. That's all I'm going to argue.
48
THE COURT: There's inferences the jurors may want to draw from those facts. Are you
49
PROSECUTOR: But you can't draw an inference from something where there's no conviction of a guy. I mean, the guy [McCambridge] gets up there and says [Doyle's] done time when I know he hasn't from the records that I've seen. And, if he's got the records, he can
50
THE COURT: But this was offered really for state of mind, not for the truth of it, not as to whether or not he did, in fact, do any time or anything like that. Therefore, I don't know if it's appropriate to argue whether he did or he didn't. I am allowing it only for the state of mind of the defendant.
51
PROSECUTOR: Then that's all I'm going to argue, Judge.
52
At the third sidebar, defense counsel expressed a willingness to keep the existence of the conviction out of the case in compliance with the judge's ruling. However, he also voiced concern that the prosecutor would use the absence of evidence confirming the conviction to cast doubt on McCambridge's credibility. In addition, defense counsel directly asked the prosecutor for Doyle's record.
53
During these sidebar discussions and rulings, the prosecutor made two kinds of statements about Doyle's criminal record. First, the prosecutor made qualified statements that Doyle had no criminal record by saying, "as far as I know." However, at other moments, the prosecutor more definitively denied that Doyle had been convicted by answering the court's questions with a simple "No, no" or saying, "I know he hasn't [been convicted] from the records that I've seen."
54
Doyle's criminal record was in the Criminal Offender Record Information System (CORI) of Massachusetts. A person's CORI report lists his or her court appearances and convictions, if any.11 The Commonwealth has represented to the state courts and to us that at trial the prosecutor had only the first page of Doyle's three-page CORI report; the relevant conviction appears on the second page.12 The Commonwealth contends that it did not violate the requirements of Brady for three reasons. First, it says that the prosecutor disclosed all the information he had about Doyle's criminal record because the incomplete CORI print-out did not indicate that Doyle had ever been convicted for child abuse. Second, the Commonwealth contends that McCambridge should have been more diligent in requesting that the record be produced because the prosecutor qualified his representation that Doyle had no criminal record by saying, "as far as I know." Finally, the Commonwealth argues that McCambridge was required to object to the prosecutor's nondisclosure of Doyle's criminal record.
55
1. Evidence in the possession of the government
56
Under well-settled law, a prosecutor's duty to disclose exculpatory evidence extends beyond his or her personal knowledge of such evidence. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) (describing the prosecutor's duty "to learn of any favorable evidence known to the others acting on the government's behalf in the case"). This duty exists because the prosecutor is the representative of the government in proceeding against a defendant in a criminal case. See Giglio v. United States, 405 U.S. 150, 154 (1972) ("The prosecutor's office is . . . the spokesman for the Government."). Therefore, a state prosecutor may be held accountable, in appropriate circumstances, for the nondisclosure of Brady material in the possession of a state agency without regard to the prosecutor's personal knowledge of the existence of that material. See Strickler, 527 U.S. at 282 (discussing nondisclosure of Brady material "known to the Commonwealth" but apparently not to the prosecutor); United States v. Agurs, 427 U.S. 97, 111 (1976).
57
While the above cited cases involved evidence known to the police, their logic applies to the instant case where Doyle's record was in the CORI database. The prosecutor requested Doyle's criminal record from the Board, an agency established to coordinate the exchange of information among law enforcement personnel, including prosecutors and police officers. Based on the information he received from the Board, the prosecutor made inaccurate representations to the court and to the defense that Doyle had no criminal record. Under these circumstances, the Commonwealth is responsible for the nondisclosure regardless of the prosecutor's actual personal knowledge. See Kyles, 514 U.S. at 437-38 (holding that a prosecutor's ignorance of exculpatory evidence not produced by a state agency does not insulate the government from responsibility for a Brady violation). Accordingly, the prosecutor's statement that Doyle had no criminal record "as far as I know" does not relieve the Commonwealth of its obligations under Brady and its progeny because the prosecutor's personal awareness of Doyle's conviction is irrelevant.
58
2. Defense obligation to request exculpatory evidence
59
The Commonwealth also argues that defense counsel should have filed a formal discovery request for Doyle's criminal record. There is no legal support for this contention. Brady obligations apply independently of any request by the defense. See Strickler, 527 U.S. at 280 ("[T]he duty to disclose [exculpatory] evidence is applicable even though there has been no request by the accused.") (citing Agurs, 427 U.S. at 107). The prosecutor in this case was on notice from the time of the first sidebar conference that evidence substantiating McCambridge's claim that Doyle had a criminal record would be favorable to McCambridge's theory of self-defense. There was no need for McCambridge to request that evidence specifically.
60
The Commonwealth also asserts that it was not obligated to disclose evidence of Doyle's conviction because the defense could have found that evidence through a reasonably diligent investigation. See, e.g., United States v. Rodriguez, 162 F.3d 135, 147 (1st Cir. 1998) ("The government has no Brady burden when the necessary facts . . . are readily available to a diligent defender."). However, as we have said, McCambridge could not access the CORI database without a court order. See Mass. Gen. Laws ch. 6, § 172. Moreover, the Commonwealth's argument about the ready availability of evidence misses the point in an important way. This was not a case where the defense simply refused to look for evidence it knew existed and relied on the prosecution to disclose that evidence. Rather, the prosecutor misrepresented, to both defense counsel and the court, that the exculpatory evidence did not exist. Defense counsel was entitled to rely on that representation. See Strickler, 527 U.S. at 283 n.23. Under these circumstances, McCambridge was not obligated to inquire further.
61
The Commonwealth argues that the prosecutor's statements that Doyle had no criminal record "as far as I know" should have alerted defense counsel to the possibility that such a record did exist but was simply not personally known to the prosecutor. Because the prosecutor expressed this uncertainty, the Commonwealth asserts, McCambridge and his lawyer should have been more diligent in confirming whether the prosecutor's qualified statements were, in fact, true. The Commonwealth cites no authority for this argument, and we have found none. Under well-settled law, as we have explained, Brady obligations apply to a prosecutor's conduct even when the defense has not requested the discovery of exculpatory evidence. See Strickler, 527 U.S. at 280; Agurs, 427 U.S. at 107. Moreover, McCambridge's lawyer reasonably relied upon the prosecutor's assertions that Doyle had never been convicted, see Strickler, 527 U.S. at 283 n.23, and because the prosecutor was acting in his capacity as representative for the government, see Kyles, 514 U.S. at 437, defense counsel was also reasonable in concluding that the prosecutor's denials indicated that such evidence of a conviction did not exist at all.
62
3. Requirement to object to the nondisclosure of exculpatory evidence
63
Finally, the Commonwealth argues that McCambridge was required to object to the prosecutor's inaccurate representation about Doyle's record. We again invoke Strickler's holding that "defense counsel may reasonably rely" on a prosecutor's representation that she has complied fully with Brady, Strickler, 527 U.S. at 283 n.23, thus rendering unnecessary an objection to the nondisclosure of that evidence.
64
In Strickler, the prosecutor maintained an "open file" policy, meaning that "his entire prosecution file was made available to the defense." Id. at 283 n.22. While it is not clear from the record whether the Commonwealth maintained an open file policy in this case, the prosecutor's statements to defense counsel and to the court that Doyle had no criminal record constitute essentially the same representation at issue in Strickler: that the prosecution had fulfilled its constitutional duty under Brady. Under such circumstances, defense counsel is not required to object. The Supreme Court rejected such a requirement in Strickler: "The presumption, well established by tradition and experience, that prosecutors have fully discharged their official duties, is inconsistent with the novel suggestion that conscientious defense counsel have a procedural obligation to assert constitutional error on the basis of mere suspicion that some prosecutorial misstep may have occurred." Strickler, 527 U.S. at 286-87 (citation and internal quotation marks omitted).
65
The Commonwealth argues, again, that the prosecutor's occasional use of the words "as far as I know" excuses its failure to disclose the exculpatory evidence because such equivocal language should have indicated to the defense that a specific objection to the nondisclosure was necessary. We reject this argument for the same reasons we rejected it in determining whether McCambridge was obligated to pursue a more thorough investigation of Doyle's criminal record: the Commonwealth cannot escape its Brady obligations by qualifying its nondisclosure of exculpatory evidence and then shifting its disclosure burden to defense counsel. Moreover, the potential mischief invited by the Commonwealth's argument provides strong reason for rejecting it.
B. The state court decision
66
McCambridge argued to the Massachusetts Appeals Court that the prosecution did not fulfill its disclosure obligations under Brady. For example, he stated in his opening brief:
67
The suppression of material evidence favorable to the accused and requested by him violates the due process clause of the Fifth Amendment. Brady v. Maryland, 373 U.S. 83, 87 (1963). In the case at bar, because the trial court refused to require the Commonwealth to produce Doyle's criminal record, the defendant cannot prove that exculpatory evidence was withheld. The defendant did everything he could to preserve this issue. Compare this case with Commonwealth v. O'Brien, 419 Mass. 470, 477 (1995). Thus, this Court should order the Commonwealth to produce Doyle's criminal record so that an appellate decision can be made. In the alternative, the case should be remanded to the Superior Court for production of the document at issue.
68
If Doyle had a criminal record as described by the defendant at trial, then the withholding of that information and the misleading of the defense was intentional and prejudicial. See Commonwealth v. Tucceri, 412 Mass. 401 (1992). A new trial would be required.
69
As this passage from McCambridge's brief reveals, he articulated a claim under Brady, with appropriate citations, and argued that the prosecutor's nondisclosure of Doyle's record - if the record indeed existed - prejudiced him.
70
The prosecution finally disclosed Doyle's criminal record after McCambridge filed his brief to the appeals court. With the benefit of this disclosure, McCambridge refined his Brady argument in his reply brief:
71
In United States v. Bagley, 473 U.S. 667 (1985), the Supreme Court recognized that an incomplete response to a specific request for disclosure not only deprives the defense of the specific evidence, but also suggests to the defense that such evidence does not exist. The defense's reliance on such a misleading representation can result in important changes in trial strategy. In the case at bar, the defendant was specifically misinformed about Doyle's criminal record. The defendant then gave up his strategy of attempting to elicit information about that record from Doyle's brother or the Clerk of the Norfolk Superior Court. The prosecutor fully exploited his misrepresentation in closing argument.
72
The state constitutional and/or common law standard for a Brady violation does consider the issue of bad faith. See, Commonwealth v. Tucceri, 412 Mass. 401 (1992). Where bad faith has been demonstrated, and the withheld evidence might have affected the outcome of the trial, the defendant is entitled to a new trial. In the absence of bad faith, a new trial is necessary if the withheld evidence would have been a real factor in the jury's deliberation. In the case at bar, the defendant's truthfulness about the circumstances of his confrontation with Doyle was the central issue in the case. The blocking of the Commonwealth's claim, that the so-called argument about Doyle's child abuse record was only the defendant's attempt to assassinate Doyle's reputation, would have been a real factor in the jury's deliberation, and probably would have tipped the scales in favor of the defendant.
73
Again, McCambridge identified the proper legal authority for his Brady claim and explained why he was prejudiced by the prosecutor's failure to fulfill his disclosure obligations.
74
McCambridge's Brady claim was thus fully presented to the Massachusetts Appeals Court. In its opinion affirming McCambridge's conviction and sentence, the appeals court addressed the issue of Doyle's record only briefly: "While the defendant pressed for the introduction of the victim's criminal record at trial, he did not object when the judge did not order its production or request that the record be marked for identification. He cannot now be heard to complain that the judge failed to do so at the sentencing stage." McCambridge, 690 N.E.2d at 475. The court did not seem to recognize the Brady implications of Doyle's criminal record - despite McCambridge's argument on the issue in both his opening and reply briefs.
75
Under the new standard for federal habeas review, we must examine the state court determination of McCambridge's Brady claim to determine whether it is contrary to or an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). The Supreme Court has said the following with respect to the "contrary to" prong of § 2254(d)(1):
76
The text of § 2254(d)(1) therefore suggests that the state court's decision must be substantially different from the relevant precedent of this Court. . . . A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . . A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.
77
Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The Massachusetts Appeals Court did not explicitly identify a legal rule in finding that McCambridge could not "now be heard to complain" about the nonproduction of Doyle's record because he did not object when the trial court judge failed to order its production. McCambridge, 690 N.E.2d at 475. However, we discern in this reasoning reliance on a legal rule that would require a criminal defendant to object to the prosecution's nondisclosure of exculpatory evidence where the prosecution has represented that such evidence does not exist. As we have explained, Strickler held that defense counsel is not required to object to the nondisclosure of exculpatory evidence where the prosecutor has represented that she has discharged fully her Brady obligations. Strickler, 527 U.S. at 289. Accordingly, the opinion of the Massachusetts Appeals Court denying McCambridge's Brady claim, in part, because he failed to object at trial is contrary to clearly established federal law as determined by the Supreme Court.13
C. Adequate and Independent State Ground
78
The Commonwealth asserts that our review of McCambridge's habeas petition is precluded because there is an adequate and independent state ground for the state appeals court decision. Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). Noncompliance with a state procedural rule may preclude federal review: "The [adequate and independent state ground] doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests on independent and adequate state procedural grounds." Id. at 729-30. In this case, the Commonwealth contends that the appeals court's reliance on the Massachusetts rule requiring contemporaneous objections provides such an adequate and independent state ground.
79
We have already addressed and rejected the Commonwealth's argument that McCambridge had an obligation to object to the government's failure to disclose Brady material. As we have explained, there is no such obligation under federal law. Indeed, the Commonwealth has not identified any authority supporting its assertion that McCambridge was required to object. Our own review of Massachusetts case law has unearthed no case - except for the decision of the appeals court in this case - requiring an objection to the inaccurate representation by a prosecutor that exculpatory evidence sought by the defense has been disclosed. See, e.g., Commonwealth v. Hill, 739 N.E.2d 670 (Mass. 2000); Commonwealth v. Tucceri, 589 N.E.2d 1216, 1224 (Mass. 1992). For a state procedural rule to constitute an adequate and independent state ground barring federal habeas review, that rule must be consistently enforced in the state courts. See Moore v. Ponte, 186 F.3d 26, 32-33 (1st Cir. 1999). Even if a Massachusetts procedural rule requiring an objection to the nondisclosure of exculpatory evidence had been consistently enforced, such a rule would be unconstitutional under Strickler. Accordingly, we hold that there is no adequate and independent state ground supporting the decision of the Massachusetts Appeals Court that precludes our review of McCambridge's claim.
IV. Prejudice
80
Our conclusion that the ruling by the appeals court requiring an objection to the prosecutor's nondisclosure is contrary to clearly established federal law does not end the Brady inquiry. Brady established both a rule of conduct - that prosecutors must disclose exculpatory evidence in the possession and control of the government - and a standard of prejudice that petitioners must satisfy to obtain relief for a prosecutor's failure to comply with that rule. See Strickler, 527 U.S. 281-82 (noting elements of a Brady claim). Accordingly, we must also assess whether the appeals court made an erroneous determination of prejudice under Brady, and if so, whether that erroneous determination is contrary to or an unreasonable application of clearly established federal law.
81
To prevail on his Brady claim, McCambridge must show that he was prejudiced by the prosecutor's failure to disclose the evidence of Doyle's criminal record. He must demonstrate "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). "A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Strickler, 527 U.S. at 289-90. See also United States v. Josleyn, 206 F.3d 144, 152 (1st Cir. 2000). That there was sufficient evidence on which to convict McCambridge does not establish that his trial was fair. See Kyles, 514 U.S. at 435.
82
We think it improbable that, standing by itself, McCambridge's inability to corroborate his testimony through the introduction of Doyle's conviction would have had an effect on the jury's verdict. However, as McCambridge has argued consistently, the prosecutor's summation, exploiting his misleading disclosure about Doyle's conviction, seriously prejudiced his case.
83
Immediately after the third sidebar, the defense rested and the parties made their closing arguments,14 the pertinent parts of which follow:
DEFENSE:
84
Now, I want to talk about one other thing that's not evidence in this case. Mr. McCambridge told you on the stand the reason that he and Mr. Doyle got into the fight, besides that they were both drinking and probably neither one thinking with great clarity, there had been an incident a couple of months previously where Mr. McCambridge says he had been told something about Mr. Doyle and confronted him with it.
85
The Judge admitted that evidence as evidence of Mr. McCambridge's state of mind; in other words, it's not evidence that Mr. Doyle ever did anything. There is no evidence in this case that Mr. Doyle ever molested or abused any child. . . . There is also no evidence in this case that he did it. There is simply no evidence in this case one way or the other. You don't know as you sit here whether what transpired, what Mr. McCambridge says transpired between the two of them, has any backing in reality or not. There is no evidence. There is no evidence that he did it. There is no evidence that he didn't do it. It was admitted for a different purpose, which was the state of mind.
86
Now, you have to decide whether or not something like that could cause that explosion in the car, that eruption of bad blood when people had been drinking. Mr. McCambridge told you that he made some comment to this person that enraged him, and he had been threatened before.
87
***
PROSECUTION:
88
Does the defendant have something for you to believe when he gets up there and says, oh, yeah, I had an argument with Richard Doyle because of child molestation? There is absolutely evidence of that.15 Was that put in there to tell you what his frame of mind was? No. That was his third shot at the victim from the stand, assassinating his reputation with no evidence. That's what that was for, I suggest to you, not to show state of mind.
89
In compliance with the ruling of the judge, the defense argued in its summation that whether or not Doyle had been convicted of child abuse was relevant only to establish McCambridge's state of mind. In contrast, the prosecutor ignored the court's ruling, as well as his representation that he would abide by that ruling, and used the absence of exculpatory evidence he failed to produce to impugn McCambridge's credibility. For reasons that are not clear from the record, defense counsel did not object to the prosecutor's closing argument. Normally, this omission would require McCambridge to show cause for his failure to object and prejudice from the prosecutor's closing argument. However, we conclude that the Commonwealth has not raised the issue of McCambridge's procedural default and has thus waived that argument.
A. Waiver of Waiver
90
Massachusetts has a "routinely enforced, consistently applied contemporaneous objection rule" regarding improper closing argument. Burks v. DuBois, 55 F.3d 712, 716 (1st Cir. 1995). Without a timely objection, Massachusetts courts will not review appellate claims of improper summation unless cause and prejudice are demonstrated, except to ensure that a miscarriage of justice has not occurred. See Commonwealth v. Stote, 739 N.E.2d 261, 268 (Mass. 2000). When the Massachusetts courts apply the procedural default rule, federal review of an improper summation claim is similarly foreclosed because failure to observe state procedural rules can provide an adequate and independent state ground for the decision. Palmariello v. Superintendent of M.C.I. Norfolk, 873 F.2d 491, 493 (1st Cir. 1989).
91
The Commonwealth did not argue in the federal district court that McCambridge procedurally defaulted by not objecting to the prosecutor's closing argument.16 Indeed, even after receiving three extensions of time to file a brief in the federal district court, the Commonwealth failed to file a timely brief.17 "[T]his circuit religiously follows the rule that issues not presented to the district court cannot be raised on appeal." Ouimette v. Moran, 942 F.2d 1, 12 (1st Cir. 1991). In similar circumstances, we have found that the Commonwealth waived objections to arguments of a habeas petitioner where the petitioner did not make those arguments at trial:
92
Neither in briefing nor in oral argument in this court did the state argue that Fortini's failure to raise the constitutional issue at the trial stage precludes the argument in federal court. We conclude that the state has itself waived any objection to the habeas petition based on Fortini's failure to raise the constitutional issue at trial.
93
Fortini v. Murphy, 257 F.3d 39, 45 (1st Cir. 2001).
94
Also, litigants in federal habeas proceedings arising from state court convictions are generally required to raise all issues in the state courts. See Trest, 522 U.S. at 89; Coleman, 501 U.S. at 732 (noting that the independent and adequate state ground doctrine "ensures that the States' interest in correcting their own mistakes is respected"). The Commonwealth did not argue procedural default in any state proceedings. "[P]rocedural default is normally a defense that the State is obligated to raise and preserve if it is not to lose the right to assert the defense thereafter." Trest, 522 U.S. at 89 (internal quotation marks omitted); see also Commonwealth v. LaBriola, 722 N.E.2d 13, 14 n.1 (Mass. 2000). Where the state does not raise and preserve an argument of procedural default, federal appellate courts are not obligated to raise that procedural issue sua sponte. See Trest, 522 U.S. at 89. However, a federal court may, in its discretion, raise procedural default sua sponte even where the prosecution never presented that claim to any state court.18 See Ortiz v. DuBois, 19 F.3d 708, 715 (1st Cir. 1994).
95
This case presents a weak basis for sua sponte consideration of McCambridge's procedural default. In contrast to other cases where we noticed procedural default sua sponte, here the Commonwealth failed to assert the argument in any state court. See, e.g., Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997) (procedural default issue raised belatedly in district court habeas proceedings nonetheless had been fully briefed at both the state and federal levels). Additionally, the weakness of McCambridge's substantive claim is not apparent on the face of the record. In these circumstances, the position taken by the Third Circuit in a comparable case is compelling:
96
[W]here the state has never raised the issue at all, in any court, raising the issue sua sponte puts us in the untenable position of ferreting out possible defenses upon which the state has never sought to rely. When we do so, we come dangerously close to acting as advocates for the state rather than as impartial magistrates.
97
Smith v. Horn, 120 F.3d 400, 409 (3d Cir. 1997) (citing United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring)). We therefore decline to consider, sua sponte, McCambridge's procedural default.
B. State court decision
98
Next we examine the opinion of the Massachusetts Appeals Court to determine whether its conclusion that McCambridge was not prejudiced by the nondisclosure of the exculpatory evidence is contrary to or an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). The appeals court did not identify any legal rule in its brief treatment of the prejudice issue. The court simply stated: "By convicting the defendant of manslaughter, the jury obviously credited the defendant's testimony that the struggle in the van was precipitated by the defendant's remark about this offense to Doyle." McCambridge, 690 N.E.2d at 475. To be sure, the state court's opinion addresses the prejudice issue by considering whether the prosecutor's nondisclosure affected the outcome of McCambridge's trial. This focus on the outcome of the proceeding is appropriate. See Bagley, 473 U.S. at 682 (defining prejudice as "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different"). However, we cannot determine from the appeals court's opinion whether it required that McCambridge demonstrate, to a reasonable probability, that there was an effect on the outcome - the Brady standard for prejudice - or used some other standard. Because it is impossible for us to discern the legal rule upon which the state court relied, we cannot analyze the court's opinion to determine whether that legal rule is contrary to clearly established federal law. Accordingly, we consider whether the appeals court decision on the prejudice issue is an unreasonable application of clearly established federal law as determined by the Supreme Court.
The Supreme Court has said:
99
[A] federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable. The federal habeas court should not transform the inquiry into a subjective one by resting its determination instead on the simple fact that at least one of the Nation's jurists has applied the relevant federal law in the same manner the state court did in the habeas petitioner's case.
100
Williams, 529 U.S. at 409-10. Attempting to give some meaning to "unreasonable," the Court also noted that "the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410. We conclude that the state court's conclusion that "the jury obviously credited [McCambridge's] testimony," because it convicted him of manslaughter, is an unreasonable application of federal law. To explain, we describe the evidence presented at McCambridge's trial.
1. The evidence
101
The prosecution alleged at trial that McCambridge shot and killed Doyle shortly after the two men left a bar in Cambridge at 1 a.m., and that McCambridge was driving, with Doyle's body in the back of the van, when a state trooper tried to stop the van. The prosecution further alleged that the van crashed when McCambridge reached for a gun, intending to shoot the police officer attempting to apprehend him. However, the evidence presented by the Commonwealth at trial to prove this theory was conflicting and inconclusive.
102
a. Time of death
103
The doctor who performed the autopsy on Doyle testified that Doyle had last consumed alcohol approximately one and one half hours before his death. It is undisputed that Doyle and McCambridge left the bar when it closed at 1 a.m. and that the accident occurred at about 2 a.m. Thus, if credited by the jury, the doctor's uncontradicted opinion tended to diminish any possibility that Doyle's death occurred much before the crash occurred, let alone just after the two men left the bar at 1 a.m. Another prosecution witness, an EMT responding to the accident, testified that Doyle's skin was still warm when his body was found pinned beneath the van, thus tending to establish that Doyle died not long before the accident, particularly in light of the uncontradicted testimony that it was cold that night.
104
b. The weapons
105
The evidence was also inconclusive with respect to McCambridge's ownership of and possession of a gun. The prosecution tried and failed to establish that McCambridge was carrying a gun in the waistband of his pants before he was in the van. The bartender testified that McCambridge became angry when the bartender started to close up the bar. He said that McCambridge stood up and brushed up against him, chest to chest, while pushing his coat back. When asked by the prosecutor whether he saw McCambridge "reach for anything," the bartender said no. The bartender also testified that McCambridge did not seem to be angry with Doyle when the two men left the bar.
106
A firearms officer testified that McCambridge shot Doyle twice with a derringer. When emergency personnel were removing McCambridge's jacket after the accident, the derringer fell to the floor of the ambulance. However, the firearms officer did not trace the derringer to establish who owned it. Nor did he attempt to identify the owner of the 9 mm. pistol with which Doyle allegedly had threatened McCambridge. Another Massachusetts police officer testified that a box of ammunition fitting one of the two guns and labeled "Big Al's Gun Shop" was found in the van. However, the box of ammunition was never introduced into evidence and the police officer had no other information about it.
107
c. Location of the bodies
108
To bolster its theory that McCambridge had killed Doyle up to an hour before the accident, the prosecution attempted to establish that McCambridge was driving when the van crashed. Forensic witnesses testified that blood on the seat of McCambridge's pants was consistent with Doyle's blood, supporting an inference that McCambridge sat in the driver's seat at some point. However, there was also evidence that there was not enough blood on his pants to suggest that he sat there for long.
109
There was other conflicting evidence about the probable location of McCambridge's body and Doyle's body at the time of the accident. A prosecution witness testified that: (1) the passenger side window was broken; (2) glass from the passenger side window was found on McCambridge's collar and under his jacket but none was found on Doyle; and (3) if someone had been sitting in the passenger seat at the time of impact, he would have been thrown to the right into the windshield or the passenger door window. The prosecution offered no explanation as to how or why, under its theory of the case, McCambridge might have been in the passenger seat at the time of the impact.
110
The defense tried to show that it was not clear where the two bodies had been located prior to the crash and roll-over. The defense accident reconstructionist testified that the driver of the van could have been thrown between the bucket seats and out of the side door when the van was lifted into the air. The evidence was undisputed that after the accident the sliding door on the passenger side of the van was off its bottom hinges. The witnesses agreed that Doyle had been thrown from the car through this doorway. Because the fabric of his sweater had actually fused to the van, one investigator testified that Doyle's ejection must have been the result of a major impact that generated the heat necessary to accomplish the fusion. This evidence indicated that Doyle could have been driving at the time of the crash, and did not establish whether Doyle, if he had not been driving, was placed in the back of the van by McCambridge prior to the accident or was thrown there upon impact.
111
Police officers, emergency medical personnel and civilians agreed that McCambridge was found wedged in the driver's seat area. Yet blood and hair sample tests established, without contradiction, that McCambridge's head hit the passenger side of the windshield during the crash. Uncontradicted testimony also established that McCambridge had a gash in his head and was covered with blood when he was found.
112
d. The police investigation and handling of evidence
113
There were other questions left unanswered by the investigators. The accident reconstructionist for the state police had no photographs of the tire marks on the road and could not explain the absence of such important and apparently routine evidence.19 He also admitted during cross-examination that he had made mistakes in drawing the accident scene; he was not sure what one line was intended to indicate and a second line purporting to represent the track of one tire in fact traced the track of a different tire. Like the forensic chemist, he became confused regarding the physical principles for determining the direction the bodies would have moved when the van hit the barrier.
114
Another state investigator failed to document where things were located before they were removed from the van by the police. She was unaware of any inventory that might have been made of the "heaps of stuff" that had been in the van, which included trash bags, clothing, newspapers and debris. She also stated that the nine millimeter gun, which was loaded and cocked and allegedly used to threaten McCambridge, was found under a great deal of debris. Although the prosecution alleged that the van was weaving because McCambridge was reaching for this same gun in order to shoot the trooper who was trying to pull him over, there was no testimony as to whether the debris would have been on top of the gun before the crash or whether the gun itself would have moved during the crash. Moreover, the investigator could not say whether bloodstains of Doyle's blood type found in the back of the van were recent or even whether they had been made by the police as they removed items from the van. Some of the items that had fallen onto the road during the crash had been thrown back into the van before it was towed away, thus possibly causing contamination and making it harder yet to reconstruct the accident.
115
e. Self-Defense
116
In support of his self-defense claim, McCambridge testified that Doyle became aggressive after McCambridge called him a name referring to his conviction for child abuse. He also stated that he remembered nothing after the first shot he fired at Doyle until three to four days later when he was in the hospital. However, a defense medical expert explained that a person might become more aggressive after receiving the type of wound Doyle received when hit by the first bullet. Dismissing McCambridge's amnesia as "convenient," the prosecutor called no medical experts to challenge the inference that such a memory loss could be attributed to both shock and the serious head wound McCambridge sustained in the accident. Other than McCambridge's own testimony, the record is devoid of evidence bearing on whether McCambridge was in reasonable fear of serious bodily injury or death when he shot Doyle.
2. The verdict
117
The jury began deliberating at approximately 1:30 p.m. and returned its verdict the afternoon of the following day.20 At the end of the first day's deliberations, the jury asked for clarification on (1) unlawful killing, (2) malice aforethought, (3) burden of proof and (4) reasonable doubt. The following day, the jury requested clarification of manslaughter. That afternoon, the jury returned a verdict finding McCambridge guilty of the crime of manslaughter, unlawful possession of a firearm, operating under the influence, and operating to endanger.
118
In returning a verdict of manslaughter, the jury rejected the prosecutor's theory that McCambridge acted with either premeditation or malice aforethought. Its rejection of the murder charge left the jury with only two options on the charge of unlawful killing: manslaughter or acquittal. The prosecutor's insinuation that McCambridge fabricated his testimony to besmirch Doyle's reputation was the last thing the jury heard from either lawyer. This improper undermining of McCambridge's credibility on the determinative question of self-defense, and perhaps of his credibility in general, may well have tipped the balance in favor of a manslaughter conviction. Thus, we conclude that there is a reasonable probability that the outcome of McCambridge's trial would have been different if the existence of Doyle's conviction had been disclosed and the prosecutor had not suggested in closing argument that McCambridge was fabricating Doyle's conviction.
119
Our conclusion is consistent with our decision in United States v. Udechukwu, 11 F.3d 1101 (1st Cir. 1993), where we considered the prejudicial effect of a prosecutor's closing argument questioning the existence of exculpatory evidence the defendant claimed existed but which the prosecution failed to disclose.21 The defendant in that case, charged with smuggling illegal drugs into the United States from Aruba, presented a defense of duress. She testified that a man named Michael Mouma had threatened to harm her children if she did not transport drugs for him. Defense counsel tried to obtain evidence from the prosecution to corroborate the defendant's testimony regarding Mouma and the circumstances under which she agreed to smuggle the drugs. Although the government had information that Mouma did exist, was in Aruba, and had been a drug trafficker, that exculpatory information was never disclosed to the defense. The prosecutor then used the absence of information about Mouma to challenge Udechukwu's credibility in closing argument. In Udechukwu, as here, the defendant asserted on direct appeal22 that the prosecution's Brady violation was magnified by the improper summation. We stated:
120
The inferences and the direct challenge to the existence of a source named Michael, however, when the prosecution had unearthed evidence that he existed and was a prominent dealer in narcotics, is indefensible. Here we find a kind of double-acting prosecutorial error: a failure to communicate salient information, which, under [Brady and Giglio] should be disclosed to the defense, and a deliberate insinuation that the truth is to the contrary.
121
Id. at 1106.
122
As in the instant case, there was no question in Udechukwu that the defendant committed the acts alleged by the prosecution. Udechukwu's defense of duress, like McCambridge's claim of self-defense, depended entirely on her credibility. In Udechukwu, the evidence not disclosed by the prosecution only partly substantiated her defense because the fact that Mouma existed, lived in Aruba, and had been involved in illegal narcotics did not establish that Mouma ever threatened Udechukwu or asked her to smuggle drugs. Nevertheless, we reversed Udechukwu's conviction and remanded for a new trial because we concluded that she was prejudiced by the prosecutor's improper attack on the crucial issue of her credibility: "Whether the government's failure to disclose this credibility-strengthening information could be said to be reversible error, we need not decide. We have no doubt, however, that the prosecutor's persistent theme in closing argument suggesting the nonexistence of this information . . . did fatally taint the trial." Id. at 1105.23 Thus, we conclude that the prosecutor's insinuation during closing argument that McCambridge had lied about Doyle's criminal record likewise tainted the McCambridge trial.
123
Nevertheless, our conclusion that McCambridge was prejudiced by the prosecution's failure to disclose Doyle's conviction is not sufficient to warrant the issuance of a writ of habeas corpus. We must also conclude that the determination of the appeals court on this issue was an unreasonable application of clearly established federal law as articulated by the Supreme Court. See 28 U.S.C. § 2254(d)(1). The appeals court found no prejudice because it concluded that the jury must have believed McCambridge's account of the struggle and its cause given his conviction for manslaughter: "By convicting the defendant of manslaughter, the jury obviously credited the defendant's testimony that the struggle in the van was precipitated by the defendant's remark about [the conviction] to Doyle." McCambridge, 690 N.E.2d at 475.
124
As we have noted, the court made this decision without additional analysis or citation to any federal authority on Brady claims. It did not even identify the legal rule upon which it relied in deciding that McCambridge was not prejudiced by the nondisclosure of Doyle's record. Moreover, the court's conclusion that the jury "obviously credited" McCambridge's testimony is not reflected in the verdict. The jury's conviction of McCambridge on two of the three motor vehicle offenses indicates unmistakably that they concluded that he was driving the van at some point, a determination that required rejecting substantial parts of his account of the altercation with Doyle, the shooting, and the accident.
125
In sum, the conclusion of the Massachusetts Appeals Court is unduly speculative.24 The jury may well have reached a manslaughter verdict for any number of reasons having nothing to do with its crediting of McCambridge's insistence that the struggle was precipitated by his remark about Doyle's conviction. The only point we can make with certainty about the jury's evaluation of McCambridge's claim of self-defense is that the jury did not credit his testimony sufficiently to acquit him. Rather, their verdict reflected a negative judgment as to McCambridge's credibility, in a case where the Commonwealth's evidence was circumstantial and, on important points, inconclusive. Therefore, the state appeals court's erroneous conclusion that the outcome of McCambridge's trial would not have been different had the evidence of Doyle's conviction been disclosed also constitutes an unreasonable application of clearly established federal law regarding prejudice in the Brady context.
V. Conclusion
126
Just before closing argument in this case, defense counsel voiced concern to the trial judge and the prosecutor that the prosecutor would emphasize the absence of evidence of Doyle's conviction during his summation. The prosecutor represented that he would abide by the judge's ruling that the existence of the conviction was not at issue. Regrettably, the prosecutor fully confirmed defense counsel's fear. He failed to perform the difficult, but vital, duty our system imposes on prosecutors -- to attempt to win convictions without undermining the fairness of the trial process. Such prosecutorial lapses are, and we trust will remain, the exception in this circuit. Here, the prosecutorial lapse resulted in a Brady violation unrecognized by a state court decision plainly incompatible with the standards of § 2254(d)(1).
127
Accordingly, the judgment of the district court is vacated, and the cause remanded with directions to issue the writ of habeas corpus unless, within 90 days from the date of this judgment, the Commonwealth has vacated the judgment of conviction and, if it so chooses, instituted proceedings to retry petitioner.
128
So ordered.
Notes:
1
Section 2254(d)(1) provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.
2
Specifically, the jury convicted McCambridge of operating a motor vehicle under the influence of alcohol and operating a motor vehicle to endanger, but acquitted him of operating a motor vehicle after the revocation of his driver's license.
3
The vehicular offense convictions were also affirmed; the conviction for illegal possession of a firearm was overturned due to an error in the instructions to the jury.
4
The United States District Court for the District of Massachusetts denied McCambridge's petition for a writ of habeas corpus in March, 2000 and subsequently denied his request for a certificate of appealability (COA). We granted a COA limited to the claim that the prosecution had failed to comply with the disclosure obligations imposed by Brady. We agreed with the district court's determination that McCambridge had not made the showing necessary to support the issuance of a COA as to the other two grounds specified in his petition. These claims challenged the admission into evidence of McCambridge's clothing, which the police removed from his hospital room without a warrant, and the court's failure to instruct the jury on the defense of necessity in connection with the charge of illegal possession of a weapon.
5
During McCambridge's sentencing hearing, defense counsel again requested that the prosecutor disclose evidence of Doyle's criminal record and asked that his record be marked for the record. The prosecutor objected to this request and the trial court sustained the objection.
6
The Commonwealth does not dispute that the evidence of Doyle's conviction was favorable to McCambridge.
7
Doyle's official record indicates that he was convicted of child neglect and was sentenced to two years, six months to be served and the remainder suspended, with the six month period of incarceration to be followed by a two year period of probation. McCambridge referred at trial to a conviction for child abuse. The Commonwealth does not argue that the abuse/neglect distinction has any bearing on its disclosure obligation.
8
This jury instruction was never given.
9
The Commonwealth's summary of the second sidebar in its brief on appeal omits both questions posed by the Court: (1) "Do we have a conviction on this charge?" and (2) "Has anyone checked his probation record?" It also omits the prosecutor's response: "It just says -- it doesn't say what for. I have no idea what it's for." The Commonwealth thus misrepresents the colloquy as a simple exchange in which defense counsel stated that he knew there was a conviction and the judge ruled that she would admit the defendant's testimony about the decedent's conviction and instruct the jury that it was not being offered for the truth of the matter.
10
The prosecutor's questions, posed in disregard of the court's ruling, closely followed a defense motion for a mistrial because the prosecutor defied an earlier ruling that he could not question McCambridge about a piece of evidence because the prosecutor had not laid a proper foundation for it. While this occurrence has no direct bearing on the Brady issue, it is another troubling example of the prosecution's failure in this case to abide by a ruling of the court.
11
CORI reports are kept by the Criminal History Systems Board of Massachusetts. The Board is responsible for collecting and organizing criminal offender record information. See Mass. Gen. Laws ch. 6, §a168 (2000). The Board is comprised of several law enforcement officials and associations. Private users of the system, victims of crime, and experts in personal privacy issues are also represented. The Board serves as a centralized repository for criminal record information and may disseminate information only to criminal justice agencies, agencies required to have access by statute, and other agencies or individuals "where it has been determined [by the Board] that the public interest in disseminating such information to these parties clearly outweighs the interests in security and privacy." Id. at § 172.
12
The Commonwealth has not contended (nor did the trial court suggest) that the defense had access to Doyle's CORI report in the absence of a court order or cooperation by the prosecution. Massachusetts law permits dissemination of these records only to agencies and individuals that the Board has certified. See Mass. Gen. Laws ch. 6, § 172.
13
We held recently that the deferential standard of § 2254(d)(1) does not apply in cases where the state court decision at issue did not decide the petitioner's constitutional claim on the merits. See Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001) ("AEDPA imposes a requirement of deference to state court decisions, but we can hardly defer to the state court on an issue that the state court did not address."). Because we found that there was no state court determination to which to defer in Fortini, we reviewed the petitioner's claim de novo. Id. Although there might be an argument that such a de novo standard of review applies here, we do not have to resolve that issue because of our conclusion that the decision of the Massachusetts Appeals Court cannot withstand review pursuant to the more deferential standard applied to state court determinations on the merits.
14
Massachusetts Rule of Criminal Procedure 24(a)(1) provides that "the defendant shall present his closing argument first."
15
We have reproduced the prosecutor's argument as it appears in the transcript of the trial as set forth in the record. Given the thrust of the prosecutor's argument, we must assume that either the court reporter or the prosecutor unintentionally omitted the word "no" before the word "evidence" in this sentence.
16
In its brief in this Court, the Commonwealth, for the first time, did note in passing that there was no objection to its summation, but it did not mention the possibility of a procedural bar to federal habeas review. The summation issue was disposed of in one paragraph. "There is also no merit to the petitioner's contention that he was prejudiced by the prosecutor's reference during closing argument to the fact that the victim's criminal record was not in evidence. Defense counsel, during his closing, had already expressly conceded this point by stating: 'There's no evidence in this case that Mr. Doyle ever molested or abused any child.' In any event, the petitioner did not object to the prosecutor's closing and the judge instructed the jury that counsel's arguments were not evidence." This statement is patently inadequate to raise an adequate and independent state ground argument with respect to the failure of the defendant to object to closing argument. See United States v. Fernandez, 145 F.3d 59, 63 (1st Cir. 1998) (issues mentioned in perfunctory manner, unaccompanied by argument, are deemed waived); Fed. R. App. P. 28(b).
17
Despite not receiving permission to file a brief after the expiration of the final deadline, the Commonwealth did so. We assume it was not considered by the district court.
18
We are in agreement with other circuit courts on this issue. See, e.g., Washington v. James, 996 F.2d 1442, 1448 (2d Cir. 1993); Smith v. Horn, 120 F.3d 400, 409 (3d Cir. 1997); Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir. 1999); Smith v. Johnson, 216 F.3d 521, 523-24 (5th Cir. 2000); Hernandez v. Cowan, 200 F.3d 995, 997 (7th Cir. 2000) (referring to "well-established doctrine" of "waiver of waiver"); Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998); Hardiman v. Reynolds, 971 F.2d 500, 503 (10th Cir. 1992).
19
The defense expert testified that it was difficult to analyze the accident without a picture of the road marks and that it was standard procedure to carefully record such marks.
20
We are unable to tell from the record before us at what time the jury was dismissed for the evening on the first day, at what time it reconvened on the second day, or at what time it rendered its verdict on the afternoon of the second day.
21
Even though McCambridge suggests in his brief that Udechukwu is controlling, the Commonwealth neither distinguished nor cited it in its answering brief.
22
We considered Udechukwu's Brady claim on direct appeal, not collateral review. For purposes of evaluating McCambridge's Brady claim, Udechukwu applies; the only difference in our standard of review for the two cases is that we must take the additional step here of determining that the appeals court decision affirming McCambridge's conviction is contrary to or an unreasonable application of clearly established federal law.
23
Massachusetts law is consistent with our own. In Commonwealth v. Collins, 434 N.E.2d 964, 969 (Mass. 1982), the SJC stated: "When the failure to disclose is coupled with the blatant misrepresentation made by the prosecutor in his closing argument to the jury, the conclusion that the conviction cannot stand is inescapable."
24
The district court agreed with the Massachusetts Appeals Court that McCambridge had not been prejudiced by the prosecutor's nondisclosure. It concluded that the jury must have found enough plausibility in McCambridge's account to reject a first or second degree murder conviction: "[T]he jury must have accepted that [McCambridge's] provocation story at least raised some reasonable doubt in order to convict on manslaughter rather than first- or second-degree murder." This conclusion is unduly restrictive in its view that McCambridge received his due because he avoided a murder conviction. McCambridge was also entitled to fair consideration of his claim that he was not guilty of manslaughter.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4481
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY ARAZIL CLEVELAND,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:14-cr-00784-HMH-1)
Submitted: February 23, 2016 Decided: February 25, 2016
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. Elizabeth Jean
Howard, Assistant United States Attorney, Greenville, South
Carolina, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Arazil Cleveland pled guilty to bank robbery, in
violation of 18 U.S.C. § 2113 (2012). He received a within-
Guidelines sentence of 57 months’ imprisonment. On appeal,
Cleveland’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
meritorious grounds for appeal but questioning whether the
district court erred in calculating Cleveland’s criminal history
points. Cleveland has filed a pro se brief raising the same
issue. The Government declined to file a response.
We review Cleveland’s sentence for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41, 51 (2007). This review entails
appellate consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
factors, selected a sentence based on facts that were not
clearly erroneous, and sufficiently explained the selected
sentence. Id. at 49-51.
If the sentence is free of “significant procedural error,”
we review it for substantive reasonableness, “tak[ing] into
2
account the totality of the circumstances.” Id. at 51. Any
sentence within or below a properly calculated Guidelines range
is presumptively substantively reasonable. United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014); United States v. Susi, 674 F.3d 278, 289-90 (4th
Cir. 2012). Such a presumption can only be rebutted by a
showing that the sentence is unreasonable when measured against
the § 3553(a) factors. Louthian, 756 F.3d at 306.
Because Cleveland did not object below to the calculation
of his criminal history points, our review is limited to plain
error. United States v. Hamilton, 701 F.3d 404, 410 (4th Cir.
2012). To establish plain error, a defendant must show that
“(1) there is an error, (2) the error is plain, and (3) the
error affects substantial rights.” Henderson v. United States,
133 S. Ct. 1121, 1126 (2013) (internal quotation marks and
alteration omitted). We conclude that the district court did
not err in assessing the disputed criminal history points. See
U.S. Sentencing Guidelines Manual § 4A1.1(e) (2014) (directing
that one point be added for each prior sentence resulting from a
conviction of a crime of violence that did not receive points
under USSG § 4A1.1(a) because such sentence was treated as a
single sentence).
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
3
therefore affirm the amended judgment. This court requires that
counsel inform Cleveland, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Cleveland requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Cleveland. 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
4
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610 P.2d 222 (1980)
94 N.M. 335
Katherine MALDONADO, Plaintiff-Appellant, and
Allstate Insurance Company, Plaintiff in Intervention-Appellee,
v.
Linda HANEY and Ray Haney, Defendants.
No. 4178.
Court of Appeals of New Mexico.
April 8, 1980.
*223 Lorenzo A. Chavez, Martin J. Chavez, Albuquerque, for plaintiff-appellant.
Robert W. Casey, Carian & Casey, Albuquerque, for Allstate Ins. Co.
OPINION
WALTERS, Judge.
Plaintiff was awarded a $3,000 jury verdict for injuries and pain and suffering. From that amount, the trial court entered judgment in favor of the plaintiff in intervention (plaintiff's insurer Allstate), in the sum of $717.60 as its subrogated claim for expenses paid to or on plaintiff's behalf.
Plaintiff appeals the action of the trial court, contending that there was no proof offered by Intervenor on the amount claimed; therefore, the court had no authority to reduce her jury award by the amount of Intervenor's claim.
Under ordinary circumstances we would be inclined to agree with plaintiff, and we have no quarrel with the general rule that a subrogee must establish the elements of its claim. See 73 Am.Jur.2d 690, § 141 (1974). In the instant case, however, Allstate was not allowed to present its claim to the jury, even though the trial court had ordered that it be joined as a plaintiff in intervention. The pre-trial order lists Allstate as a party, and discloses that Allstate was prepared to call witnesses and prove its subrogation claim as a full participant at trial.
Counsel for plaintiff and for Allstate signed and filed a Stipulation of Statement of Facts and Proceedings wherein it was agreed that, by order of the trial court, (1) Intervenor Allstate's subrogation rights including attorneys fees, would be protected by the court; (2) Intervenor was prohibited by the court from participating in the case; (3) Intervenor would not be permitted to introduce evidence of medical expenses paid, and (4) Defendants admitted liability on the day of trial.
It is thus apparent that notwithstanding the pre-trial order showing Allstate as a party litigant, a later order of the trial court (not a part of the record other than as shown in the Stipulation) modified the pre-trial order to exclude Intervenor as a trial participant and to recognize, accept, and protect the amount it claimed in subrogation. According to the Stipulation, the trial court assured Intervenor its subrogation rights "would be protected by court order."
Allstate's complaint in intervention claimed $733.60 as the amount of medical expenses paid by it on behalf of plaintiff. Its complaint was filed against both plaintiff and defendants. Defendant answered and denied any liability to Allstate; plaintiff never filed an answer.
Nobody objected to the trial court's proposed method of controlling the proceedings. Nobody should be heard to complain now on appeal. The well-established rule is that to preserve a question for review, the record must show that a ruling by the trial court was fairly invoked, Rule 11, N.M.R.App.P. (Civil), 1978; and that an issue raised for the first time on appeal will not be considered by the reviewing court. Phillips v. United Serv. Auto. Ass'n, 91 N.M. 325, 573 P.2d 680 (Ct.App. 1977). Defendants paid to Intervenor the amount Intervenor claimed in subrogation; thus defendants do not complain. Intervenor did *224 not appeal, being satisfied with the way its claim was to be "protected." Only plaintiff appeals, attempting by her failure to produce evidence on the amount of Intervenor's claim, to benefit by her own disregard of her role, if necessary, in fulfilling the promise of the court to the Intervenor. The sole purpose of Intervenor's exclusion from trial was to remove consideration of insurance from the jury. That exclusion redounded only to the benefit of plaintiff. Not having objected to the court's order regarding protection of Allstate's claim at the time it was made, plaintiff acquiesced in the procedure outlined by the court and has no basis to object now. She became obligated, under the ruling of the court, to assume the proofs of Intervenor if she did not want its claimed amount for medical expenses, not denied by plaintiff, deducted from any award made by the jury, since that amount in deduction is exactly what the court disclosed prior to trial that it would order if a recovery were had.
The trial court must clearly be alerted to error. Matters not called to the attention of the trial court, if not jurisdictional, cannot be raised for the first time on appeal. Somerstein v. Gutierrez, 85 N.M. 130, 509 P.2d 897 (Ct.App. 1973).
Plaintiff argues she was not required to appeal from the trial court's order governing procedure because she was not prejudiced by Intervenor's exclusion at trial. Of course she wasn't. She confuses non-appeal from the order regulating trial procedure with failure to object to the intentions stated by the court regarding Intervenor's protected status.
We will not permit a litigant to sit back with complacence until the trial court puts its orders into effect, with the intention of sandbagging the trial court on appeal. The case went to trial with plaintiff in a default position insofar as Intervenor's claim against her and defendants alleged its entitlement to subrogation for moneys paid to plaintiff. Subrogation being an equitable remedy and subject to equitable principles, White v. Sutherland, 92 N.M. 187, 585 P.2d 331 (Ct.App. 1978), Intervenor may not be deprived of its right to collect from defendants what it paid on behalf of plaintiff when plaintiff, either by cleverness or ineptitude, avoids the responsibility of proving those damages which inhered in the trial court's exclusion of Intervenor from the trial proceedings. In other words, equity regards that as done which ought to be done. Logan v. Emro Chemical Corporation, 48 N.M. 368, 151 P.2d 329 (1944). Plaintiff's failure to deny Intervenor's allegations was to recognize in Intervenor its equitable right to recover medical expenses paid on her behalf. Aware that such expenses were to be "protected" in any award granted to her, if plaintiff did not intend to prove Intervenor's case so as to recover an amount reflective of all damages incurred, she waived any objection she might have had to the manner in which the award was apportioned.
The case should be remanded and the judgment modified only to require the trial court to determine the proportionate amount of attorney fees Intervenor should contribute to plaintiff's successful efforts in recovering Intervenor's claim, and to affirm in all other respects.
IT IS SO ORDERED.
ANDREWS, J., concurs.
LOPEZ, J., dissents.
LOPEZ, Judge (dissenting).
I dissent.
The issue on appeal is whether an insurance company, which has become a plaintiff in intervention, is entitled to the amount of its claimed subrogation out of the damages awarded its insured in a suit by the insured against a third party tortfeasor, when no evidence of the medical expenses to which the insurer is subrogated has been presented to the jury. The record does not indicate any agreement between plaintiff and the insurance company as to the conduct of the case or the sharing of fees and expenses. I would hold that when the insurer and its insured have not agreed before trial concerning proof at trial and the allocation between them of fees and expenses, and the *225 insured offers no evidence at trial of the medical expenses which had been paid by the insurance company, the company must either itself present such evidence, or take nothing from the damages the insured wins.
Maldonado filed suit against the Haneys for injuries sustained as the result of an automobile collision. Since Allstate Insurance Company had already paid $717.60 for her medical expenses pursuant to an insurance policy, Allstate was joined as a plaintiff in intervention. At a pre-trial conference, after Allstate had filed its complaint in intervention, the court ordered Allstate not to participate in the trial, ruling that it would protect Allstate's rights, including attorneys' fees by court order. Consequently, the insurance company was not present at trial, or otherwise represented in court, and no evidence establishing the amount of its claimed subrogation was tendered. Plaintiff limited her evidence to her injuries, pain and suffering; she submitted no evidence of her medical expenses. The sole issue before the jury was the proper amount of damages, the defendants having admitted negligence. From the jury verdict for plaintiff, the court awarded Allstate its subrogation claim.
Allstate argues that we cannot consider the propriety of the court's order excluding it from participating in the trial and promising to protect its rights, because Maldonado failed to preserve the issue for appeal by objecting below. I believe the error was preserved.
The trial court must be clearly alerted to a claimed non-jurisdictional error to preserve it for appeal. Barnett v. Cal M Inc., 79 N.M. 553, 445 P.2d 974 (1968). The trial court has been alerted to non-jurisdictional error when it has listed the issue as contested in its pre-trial order. Error is preserved when a pre-trial order lists an issue as contested. Williams v. Town of Silver City, 84 N.M. 279, 502 P.2d 304 (Ct.App.), cert. denied, 84 N.M. 271, 502 P.2d 296 (1972). The pre-trial order in the case before us lists as an issue of law contested by plaintiff the question of whether, from the damages awarded plaintiff for injuries, pain and suffering, the amount claimed by the intervenor as reimbursement for medical expenses it paid for the plaintiff can be deducted. The issue was preserved for appeal.
An intervenor has the same burden of proving his position as he would have if he had been one of the original parties in the suit.
[T]he same rule respecting the burden of proof applies to him [the intervenor] as to other litigants. If he tenders an affirmative issue which is met with a denial, he must assume the burden of proof.
59 Am.Jur.2d Parties § 183, at 623 (1971). Allstate alleged in its complaint in intervention that it paid $733.60 on behalf of plaintiff for her injuries arising from the accident and that it was subrogated to that claim. The defendants denied these allegations. It was Allstate's burden to offer evidence of the truth of its assertions. This does not mean that Allstate and plaintiff could not have agreed that plaintiff would offer this evidence; it does mean that the plaintiff had no duty to prove Allstate's claim unless she had voluntarily assumed that duty.
Under New Mexico law, an insurance company which claims to be entitled to subrogation is an indispensable party in a suit by its insured against a third party tortfeasor. Sellman v. Haddock, 62 N.M. 391, 310 P.2d 1045 (1957). This having been brought to the court's attention, it ordered Allstate joined as a party. Although Allstate intervened in the case involuntarily, the burdens attendant upon intervention are the same regardless of whether the party is there voluntarily or whether he was joined as an indispensable party. In either case, he is there to protect his own interests; he is there precisely because it is not thought that the other parties will or can protect his interest for him.
Subrogation is an equitable remedy. White v. Sutherland, 92 N.M. 187, 585 P.2d 331 (Ct.App.), cert. denied, 92 N.M. 79, 582 P.2d 1292 (1978).
[The doctrine of subrogation] originates in the general principles of equity, and will be applied or not according to the *226 dictates of equity and good conscience and consideration of public policy. Such doctrine is founded upon the relationship of the parties and upon equitable principles, for the purpose of accomplishing the substantial ends of justice.
6A Appleman, Insurance Law and Practice § 4054, at 142-43 (1972), quoted in United States Fidelity & Guaranty Co. v. Raton Natural Gas Co., 86 N.M. 160, 162-63, 521 P.2d 122, 124-25 (1974). Where it is not equitable for the insurance company to recover the full amount of the claim to which it is subrogated, its recovery is limited. Sutherland.
Similarly, in many jurisdictions, when the insured has gone to trial and proven damages, some of which rightfully belong to the insurance company because it has already recompensed the insured for that loss, it is inequitable to allow the insurance company to obtain from the insured the amount of its subrogation claim without requiring the company to pay its proportionate share of the expenses of the litigation, including attorneys' fees. United Services Automobile Association v. Hills, 172 Neb. 128, 109 N.W.2d 174 (1961); State Farm Mutual Automobile Insurance Co. v. Clinton, 267 Or. 653, 518 P.2d 645 (1974); State Farm Mutual Automobile Insurance Co. v. Geline, 48 Wis.2d 290, 179 N.W.2d 815 (1970); see, Hedgebeth v. Medford, 74 N.J. 360, 378 A.2d 226 (1977); Pena v. Thorington, 23 Wash. App. 277, 595 P.2d 61 (1979). In the case before us, however, the insured plaintiff did not prove any damages to which the insurance company was subrogated.
When an insured plaintiff sues a third party tortfeasor, the insurance company not participating, and the plaintiff proves and recovers damages for losses other than the losses paid by the insurance company, the company is not entitled to subrogation. Newcomb v. Cincinnati Insurance Co., 22 Ohio St. 382, 10 A.Rep. 746 (1872). That court wrote:
Where the assured, as in the case of partial insurance, sustains a loss, in excess of the reimbursement or compensation by the underwriter, he has an undoubted right to have it satisfied by action against the wrong-doer. But if, by such action there comes into his hands, any sum for which, in equity and good conscience, he ought to account to the underwriter, reimbursement will, to that extent, be compelled in an action by the latter, based on his right in equity to subrogation. But the assured will not, in the forum of conscience, be required to account for more than the surplus which may remain in his hands, after satisfying his own excess of loss in full, and his reasonable expenses incurred in its recovery; unless the underwriter shall, on notice and opportunity given, have contributed to and made common cause with him, in the prosecution. [Emphasis added.]
Id. at 388, 10 Am.Rep. at 750-51.
I believe that the result in Newcomb is equitable in the case before us. The underwriter, Allstate, had notice of the suit by the plaintiff against defendants. Indeed, it was a party to the suit. It had opportunity to contribute to and make common cause with the plaintiff. It did not do so, but rested in the umbrage of a court order that promised to protect its interests without any participation on its part. The court was without power to make such an order. It cannot relieve the insurance company of its burden of proof as an intervenor and force the plaintiff to shoulder that burden. Having been prohibited by court order from direct participation in the trial, Allstate had the options of seeking to stay the order, of coming to an agreement with the plaintiff concerning the conduct and expense of the trial, or of doing nothing. It chose the latter course, and cannot now complain because the plaintiff failed to prove its claim.
I would reverse the judgment of the trial court and have a judgment entered for the plaintiff for $3,000 with nothing to the plaintiff in intervention.
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89 S.W.3d 134 (2002)
Marcos ZAVALA, Appellant,
v.
The STATE of Texas, Appellee.
No. 13-99-671-CR.
Court of Appeals of Texas, Corpus Christi-Edinburg.
September 12, 2002.
*135 Christian Carl Samuelson, Jason D. Cassel, Houston, for appellant.
Calvin A. Hartmann, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney, S. Elaine Roch, Asst. District Attorney, Houston, for state.
Before Justices HINOJOSA, CASTILLO, and McCORMICK.[1]
OPINION
ERRLINDA CASTILLO, Justice.
Appellant, Marcos Zavala, was convicted of driving while intoxicated in a trial before the court. After hearing the evidence, the trial court found him guilty and assessed punishment at 180 days in jail, probated for one year, and a $300.00 fine. In two points of error, appellant challenges the legal and factual sufficiency of the evidence to support the conviction. More particularly, appellant asserts that the State failed to prove that he operated a vehicle at any specific hour of the day while he was intoxicated. We affirm.
Factual Background
In late September or early October of 1998, appellant bought a black Mustang automobile from his wife's cousin, Pedro Perales. Although appellant had not fully paid Perales for the vehicle, he had taken possession of it.
On November 29, 1998, an off-duty officer working at a restaurant near the Southwest Freeway in Houston noticed a number of wreckers going to a nearby location and went over to discover what had happened. At 3:40 a.m., Officer Kristin Gibbs, of the Houston Police Department, was dispatched to the scene, arriving on the scene at 3:48 a.m. She spoke first with the off-duty police officer who directed her to appellant who was standing fifteen to twenty feet away. She approached appellant and asked him what happened. He told her that he had been on the feeder road, northbound, attempting *136 to take the on-ramp to enter the Southwest Freeway. Appellant further explained to her that a car had then run him off of the road, causing him to hit a traffic control device that controlled entry to the freeway from the entrance ramp and then go across the median. Officer Gibbs observed the car, about a tenth of a mile from the traffic control device, with the car's right front quarter panel torn off, but still attached to the car by a cable. All four tires were flat and the panel had apparently been dragged under the car for some distance. While appellant was talking, Gibbs noticed an odor of an alcoholic beverage on appellant's breath, and on questioning him, he admitted to having had "a Jack Daniels and Coke" between 11:00 and 11:30 p.m. the previous night. Suspicions were raised in her mind that he was intoxicated at the time of the accident also by the fact that he had continued driving for one-tenth of a mile with four flat tires and a "torn-off" front quarter panel and that the entrance ramp was a single lane ramp, and so no vehicle could have run him off unless it was traveling on the median. Gibbs then inspected appellant's car and determined that there was no damage to his car indicating that he had been struck by another vehicle.
Gibbs then performed a H.G.N.[2] test on appellant, concluded he was intoxicated,[3] and placed him under arrest at 3:55 a.m. She then transported appellant to the intoxication center. While there, appellant began to cry and again described to Officer Gibbs how he had been attempting to get on the freeway when another car had run him off the road. While at the center, appellant refused a breath test and was administered another H.G.N. test by a different officer, who observed appellant crying and with bloodshot eyes. Appellant was also administered other sobriety tests by another officer, who videotaped the tests. Both officers were certified to give the respective tests. At the center, appellant had a very strong odor of alcohol that could be smelled three to five feet away. Both officers believed he was intoxicated and had lost the normal use of his mental and physical facilities.
At trial, Officer Gibbs testified that no one else, other than police, defendant, and the wrecker drivers were at the scene. She admitted that she didn't know exactly what time the accident took place; the vehicle was not running when she arrived; she didn't remember if the keys were in the vehicle; appellant was not in the car; she did not see appellant driving; no one told her they saw appellant drive the vehicle; and she saw no alcoholic beverage containers at or around the scene. At trial, testimony was also given by Roman Flores, cousin to appellant, who stated that, after viewing the videotape, he did not believe appellant was intoxicated. On cross-examination, Flores testified that appellant had described the accident to him and told Flores that he had been run off the road while driving and had hit a traffic light.
Standard of Review
In conducting a legal sufficiency review, we consider all the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In this review, we are not to reevaluate the weight and credibility of the evidence, but *137 rather, act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993).
In conducting a factual sufficiency review, we also consider all the evidence but without the prism of "in the light most favorable to the prosecution." Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). While authorized to disagree with the fact finder, the reviewing court must be appropriately deferential to the fact finder's findings so as not to substitute its judgment for that of the fact-finder and so should act only to prevent a manifestly unjust result. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App.1996). Unless the available record clearly reveals a different result is warranted, a reviewing court must defer to the fact finder's determination concerning the weight to be given contradictory testimonial evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). Under a factual sufficiency review, the appellate court, after viewing all the evidence neutrally, is to consider whether either the proof of guilt is so weak as to render it clearly wrong and manifestly unjust or the verdict of guilt is against the great weight and preponderance of the available evidence. Id. at 11.
The Extrajudicial Statements
At the outset, we are confronted with the evidentiary effect of appellant's extrajudicial statements made to Officer Gibbs, both at the scene and at the station, that he was driving the black Mustang. While proof of the corpus delicti of an offense may not be made by an extrajudicial confession alone, proof of the corpus delicti need not be made independent of the extrajudicial confession.[4]Self v. State, 513 S.W.2d 832, 835 (Tex.Crim.App.1974). As long as there is some evidence corroborating the confession, the confession may be used to aid in the establishment of the corpus delicti. Id.
The corpus delicti of driving while intoxicated is that someone drove or operated a motor vehicle in a public place while intoxicated. Threet v. State, 157 Tex.Crim. 497, 250 S.W.2d 200, 200 (1952). In Folk v. State, 797 S.W.2d 141, 144 (Tex. App.-Austin 1990, pet. ref'd), a case very similar to the one before us, the defendant argued that the corpus delicti was not proven because there was no evidence other than his extrajudicial statement tending to prove that he was driving the car. The court there found that evidence that the vehicle was registered to a person with whom the defendant lived was sufficient to corroborate his admission that he was driving the vehicle that night. Id. In the instant case, under Folk, the testimony of Perales that appellant was purchasing the vehicle and had taken possession of it is sufficient to corroborate his statement.[5]Id. We therefore find that appellant's statements may be used in establishing the corpus delicti in the instant case. Id.
Sufficiency Analysis
Considering appellant's statements then, along with the other evidence presented, *138 we find that the evidence is legally and factually sufficient to show that appellant was driving the black Mustang at the time of the accident. Id. Further, we find the evidence legally and factually sufficient to show appellant was intoxicated after the accident. See Bright v. State, 865 S.W.2d 135, 137 (Tex.App.-Corpus Christi 1993, pet. ref'd) (citing Finley v. State, 809 S.W.2d 909, 913 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd))(jury could consider defendant's failure to submit to a breath test as evidence of driving while intoxicated); Little v. State, 853 S.W.2d 179, 183 (Tex.App.-Corpus Christi 1993, no pet.)(the uncorroborated testimony of an arresting officer alone is sufficient to establish intoxication); Hargrove v. State, 774 S.W.2d 771, 772 (Tex.App.-Corpus Christi 1989, pet. ref'd)(testimony of officers sufficient to establish intoxication); see also Tex. Transp. Code Ann. § 724.061 (Vernon 1999) (evidence that defendant refused breath test may be introduced into evidence at trial). But this is not the end of our inquiry. Even though the evidence is sufficient to show appellant was intoxicated at the time of his arrest, and that he did drive a vehicle, the question more precisely before us is whether we must consider whether the evidence is sufficient to show that appellant drove while he was intoxicated.
Appellant argues that the evidence is insufficient to show that he was intoxicated at the time he was operating the motor vehicle because the time of the accident was not established nor was it established that he was intoxicated at the time of the accident. Appellant argues that as the State failed to "fix" the time of the accident, or more specifically, the time of appellant's driving and his intoxication, the conviction must be reversed and an acquittal entered.[6] For support, appellant cites Purvis v. State, 4 S.W.3d 118 (Tex.App.-Waco 1999, no pet.); Folk, 797 S.W.2d at 141;[7]Thomas v. State, 756 S.W.2d 59 (Tex.App.-Texarkana 1988, pet. ref'd); McCafferty v. State, 748 S.W.2d 489 (Tex. App.-Houston [1st Dist.] 1988, no pet.); Coleman v. State, 704 S.W.2d 511 (Tex. App.-Houston [1st Dist.] 1986, pet. ref'd); Sinast v. State, 688 S.W.2d 631 (Tex.App.-Corpus Christi), pet. ref'd per curiam, 698 S.W.2d 153 (Tex.Crim.App.1985); and Green v. State, 640 S.W.2d 645 (Tex.App.-Houston [14th Dist.] 1982, no pet.).
We note, first of all, that the analysis relied upon by appellant in Green actually only went to the proof that the respective defendants had driven the vehicle at all, not whether they were intoxicated at the time of the driving. Green, 640 S.W.2d at 647. As such, that case is not applicable to the present question.
As for the remaining cases, and indeed all of the cases cited by appellant to support this argument but one,[8] they are pre-Geesa cases so the reviewing courts were required to apply the exclusion of a reasonable hypothesis analytical construct. Geesa v. State, 820 S.W.2d 154, 158 (Tex. Crim.App.1991), overruled in part on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App.2000). In other words, as to a conviction based on circumstantial evidence, *139 the State had to exclude all reasonable hypotheses, other than the defendant's guilt, in order for the evidence to be found sufficient on appeal. Carlsen v. State, 654 S.W.2d 444, 447 (Tex.Crim.App. 1983), overruled by Geesa v. State, 820 S.W.2d 154, 161(Tex.Crim.App.1991). In a driving while intoxicated case, this might include the hypothesis that a defendant might have become intoxicated after an accident in which he had been driving. See, e.g., McCafferty, 748 S.W.2d at 491(noting "[t]he State did not ask [the witness] whether appellant had anything to drink while waiting for the wrecker, and thus did not exclude this hypothesis."). The reasonable hypothesis analytical construct was overturned in Geesa, and no longer binds this Court. Geesa, 820 S.W.2d at 161. Of the cases cited by appellant, only Purvis v. State, is a post-Geesa case. Thus appellant's cited pre-Geesa authorities are "not controlling and of limited value."[9]Barton v. State, 882 S.W.2d 456, 458-59 (Tex.App.-Dallas 1994, no pet.)(referring to several pre-Geesa authorities, including McCafferty and Sinast); see also Chaloupka v. State, 20 S.W.3d 172, 175 (Tex.App.-Texarkana 2000, pet. ref'd)(declining to follow McCafferty and Coleman); Purvis, 4 S.W.3d at 120 (declining to apply McCafferty and Sinast).
Moreover, in the three cases cited by appellant which do not specifically indicate they were decided under the reasonable hypothesis analytical construct, Thomas, Coleman, and Sinast, we do not read them as narrowly as appellant. Appellant argues that these cases stand for the principle that where the State does not establish the specific time of the defendant's driving which caused the accident, the conviction cannot be maintained because no nexus can be established between the intoxication and the driving admitted to by appellant. We disagree.
Proof of the precise time of an accident or of driving is not the sine qua non of driving while intoxicated. Such proof is in itself not critical, except as it establishes the time during which the fact finder must consider the defendant's state and determine whether during that episode of driving the defendant was intoxicated. Thus the critical issue is that there must be proof from which the fact finder can conclude that at the time of the driving in question, whenever that might be, the defendant was intoxicated, in other words, a "link" between the driving and the intoxication. See Thomas, 756 S.W.2d at 61 ("We must next examine the evidence to determine its sufficiency ... to link Thomas's intoxication to the time when the collision occurred."); Coleman, 704 S.W.2d at 512 (describing Duran v. State, 171 Tex. Crim. 535, 352 S.W.2d 739 (1962), upon which the Coleman court relied, as holding that "evidence held insufficient where defendant was shown to be intoxicated, and the driver of the auto, but no evidence linked the time of the accident with the time of his intoxication."). Thus the purpose of establishing a time for the driving is "to furnish the jury with an informed basis for determining the relationship, if any, between the accused's driving and his intoxication, if proven." Kennedy v. State, 797 S.W.2d 695, 697 (Tex.App.-Houston [1st Dist.] 1990, no pet.)
In the present case, there is evidence in the record before us to allow us to *140 determine that relationship and to show that appellant drove the black Mustang while intoxicated. As we have stated previously, there is sufficient evidence to show that appellant drove the vehicle at the time of the accident. While the time of his driving was not specifically fixed in the record, it was sometime between 11:00 or 11:30 p.m., when appellant testified he drank an alcoholic beverage,[10] and 3:40 a.m., at which time the police were dispatched to the accident site. Appellant was asked by Officer Gibbs after the accident whether he had had any alcoholic beverages and indicated none aside from the one he claimed he drank between 11:00 and 11:30 p.m. Thus, any intoxication under which appellant was laboring at the time of the arrest and at the intoxication center, by his own admission, must have had its origin in the drink, or drinks, which he had no later than 11:30 p.m. Hence, there is no possibility that appellant could have gotten intoxicated after the accident.[11] Therefore, since appellant's intoxicated state at the time of his arrest could only have arisen from his drinking at around 11:00 to 11:30 p.m. the night before, it follows that appellant must have been intoxicated between those time periods, which would have included the time of the accident. Thus the evidence is sufficient to establish that, whatever time the accident occurred, it occurred at a time during which he was intoxicated. See Purvis, 4 S.W.3d at 119, 121-22 (where "Good Samaritan" found a car in ditch, with defendant therein passed out, and when trooper arrived, defendant smelled of alcohol, appeared intoxicated, admitted driving at the time of the accident, and admitted drinking four beers before accident, evidence sufficient even though time of accident never established).[12]
We find that a reasonable trier of fact could have found that appellant was intoxicated at the time he drove the motor vehicle and that the evidence of the same was not so weak or against the overwhelming weight of the evidence as to be manifestly unjust. We therefore find the evidence both legally and factually sufficient to sustain appellant's conviction for driving while intoxicated and overrule both of appellant's issues.
Conclusion
Having overruled both of appellant's issues, we affirm the judgment of conviction.
Dissenting opinion by Retired Judge MICHAEL J. McCORMICK.
*141 Before Justices HINOJOSA, CASTILLO, and McCORMICK.[1]
Dissenting Opinion by Justice McCORMICK (Retired).
The majority concludes that the evidence in this case is sufficient to support the conviction. Because I do not believe the evidence to be legally sufficient, I file this dissenting opinion.
Appellant, Marcos Zavala, was convicted of driving while intoxicated in a trial before the court. Following a finding of guilty, the trial court assessed punishment at 180 days in jail probated for one year, a $300.00 fine, and 24 hours of community service. In two points of error, appellant challenges the legal and factual sufficiency of the evidence to support the conviction. More particularly, he complains that the State failed to prove beyond a reasonable doubt that appellant was intoxicated at the time he operated a motor vehicle in that the evidence failed to establish any specific hour of the day appellant operated the vehicle.
Appellant entered a plea of not guilty to an information alleging that while intoxicated by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol into his body, he operated a motor vehicle in a public place. The State first called Pedro Perales as a witness. He testified that the appellant was married to his cousin and that sometime in late September or early October prior to an accident in November, he transferred possession of a black Mustang to the appellant.
Officer Kristin Gibbs of the Houston Police Department testified that at 3:40 a.m. on November 29, 1998, she was dispatched to an accident scene on the Southwest Freeway, and that she arrived on the scene at 3:48 a.m. She first encountered an off duty police officer who directed her to appellant who was standing 15 to 20 feet away. She testified that appellant admitted driving a black Mustang that was parked on the side of the road with its right front quarter panel torn off and all four tires flat. Appellant told Officer Gibbs that he was attempting to enter the freeway when he was run off the road and struck a traffic control device that controlled entry to the freeway from the entrance ramp.
Officer Gibbs further testified that the black Mustang was about one-tenth of a mile from where the impact with the traffic control device occurred, and that the front panel of the vehicle was still connected to the vehicle by a cable and that the panel had been drug along the ground from the point of impact. She also testified that she smelled alcohol on appellant who admitted to having had one drink at around 11:00 p.m. the night before. She performed an H.G.N.[2] test on the appellant and concluded he was intoxicated and placed him under arrest at 3:55 a.m. She then transported appellant to the intoxication center where appellant refused a breath test, was administered another H.G.N. test, and was videotaped.
Officer Gibbs further testified that she saw no one else at the scene, she didn't know what time the accident took place, she didn't know if the keys were in the Mustang, no one told her they saw appellant drive the vehicle, and she saw no alcoholic beverage containers at or around *142 the scene. Assuming, arguendo, that appellant was intoxicated at 3:55 a.m., and later at 5:00 a.m. at the intoxication center, is the evidence sufficient to show that appellant operated the black Mustang while intoxicated?
As an appellate court called upon to review the legal sufficiency of the evidence, we must examine all of the evidence in the record in order to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.[3] This standard is applied to both direct and circumstantial evidence cases.[4] If there is evidence that establishes guilt beyond a reasonable doubt, and the trier of fact believes that evidence, the appellate court does not reverse the judgment on sufficiency of the evidence grounds.[5] Any inconsistencies in the evidence are resolved in favor of the judgment.[6] This Court must not sit as a thirteenth juror and disregard or reweigh the evidence.[7]
At the outset, we are confronted with the evidentiary effect of appellant's extrajudicial statement to Officer Gibbs that he was driving the black Mustang. The rule is that proof of the corpus delicti may not be made by an extrajudicial confession alone, but proof of the corpus delicti need not be made independent of the extrajudicial confession. If there is some evidence corroborating the confession, the confession may be used to aid in the establishment of the corpus delicti.[8]
The corpus delicti of driving while intoxicated is that someone drove or operated a motor vehicle in a public place while intoxicated.[9] In Folk v. State,[10] a case very similar to the one before us, the defendant argued that the corpus delicti was not proved because there was no evidence other than his extrajudicial statement tending to prove that he was driving the car. The court correctly noted:
This argument confuses the evidence necessary to prove the guilt of a defendant with that necessary to prove the corpus delicti. Provided there is other evidence that a crime was committed, the identity of the defendant as the perpetrator may rest alone with his confession. Thomas v. State, 458 S.W.2d 817 (1970). In support of his argument, appellant cites Coleman v. State, 704 S.W.2d 511 (1986, pet ref'd), and Hanson v. State, 781 S.W.2d 445 (1989, pet.granted). To the extent that these opinions suggest that the defendant's identity as the perpetrator is part of the *143 corpus delicti and must be supported by evidence other than an extrajudicial confession, we decline to follow them.
Following Folk, supra, the evidence is sufficient to show that appellant was driving the black Mustang. But this is not the end of our inquiry, even though the evidence is sufficient to show appellant was intoxicated at the time of his arrest. The question remains whether appellant drove while he was intoxicated. We answered this question in Sinast v. State:[11]
In the instant case there was no evidence that the engine of the vehicle was still hot, see Johnson v. State, 517 S.W.2d 536 (Tex.Crim.App.1975), or that the car was still smoking, see Green v. State, 640 S.W.2d 645 (Tex.App.-Houston [14th Dist] 1982, no pet.). Absent any evidence in the record fixing the time of the accident, the evidence is insufficient to show that appellant drove at the time he was intoxicated.[12]
As in Sinast, there is no evidence in the record before us to show when the appellant drove the black Mustang. Contrary to the assertions made by the majority, the appellant at no time stated he had drunk alcohol prior to the accident.
There being absolutely no evidence of the time of the offense, the evidence is legally insufficient to show that appellant drove at the time he was intoxicated. The judgment of the trial court should be reversed, and this cause remanded to the trial court with instructions that a judgment of acquittal be entered.
Because the majority fails to do so, I respectfully dissent.
NOTES
[1] Retired Court of Criminal Appeals Judge Michael J. McCormick assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. §§ 74.003 (Vernon 1998).
[2] Horizontal gaze nystagmus.
[3] Gibbs admitted that she was not certified to do the H.G.N. test but had received training on how to administer the test.
[4] The court in Self seemed to question the continued viability of the corroboration requirement, noting "A traditional distrust for the reliability of extrajudicial confessions has caused most jurisdictions to require their corroboration. This earlier distrust may now be dissipating because of the greater reliability that may be attributed to confessions as a result of the application of recent decisions such as Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964)." Self v. State, 513 S.W.2d 832, 836-37 (Tex.Crim.App.1974).
[5] Appellant's statements were also corroborated by the condition of the vehicle, which was damaged by the accident in which he stated he was involved.
[6] Although appellant raises an issue as to the factual sufficiency of the evidence, for which, if sustained, the proper relief would be a new trial, see Clewis v. State, 922 S.W.2d 126, 133-34 (Tex.Crim.App.1996), the only relief requested by appellant in his brief is for an acquittal.
[7] We assume that the case cited in this section and styled as Self v. State, but with the citation for Folk v. State, is meant as a citation to Folk since Self does not involve a driving while intoxicated conviction.
[8] Purvis v. State, 4 S.W.3d 118 (Tex.App.-Waco 1999, no pet.).
[9] Of the pre-Geesa cases cited by appellant, three, McCafferty, Folk and Green, expressly referenced the reasonable hypothesis analytical construct. McCafferty v. State, 748 S.W.2d 489, 491 (Tex.App.-Houston [1st Dist.] 1988, no pet.); Folk v. State, 797 S.W.2d 141, 143 (Tex. App Austin 1990, pet. ref'd); Green v. State, 640 S.W.2d 645, 647 (Tex.App.Houston [14th Dist.] 1982, no pet.).
[10] Appellant's statement that he had last drank an alcoholic drink the previous night indicates that the drink occurred prior to the accident.
[11] At trial, appellant took some pain to establish that there were no alcoholic beverages found in or around the vehicle. This, considered in light of appellant's statement of only having one drink the previous night, eliminates the possibility that he drank while he was driving or after he had the accident as the "Jack Daniels and Coke" must have been consumed in a location away from the vehicle. Appellant did not claim either below or on appeal that he had the accident prior to 11:00 or 11:30 p.m., retired to a bar or elsewhere for a drink, then returned to the scene to await the arrival of the police at the scene, the access road of a major freeway, some five hours later. Even under the old overruled reasonable hypothesis analytical construct, this theory would not have been a reasonable hypothesis.
[12] Despite citing Purvis for support, appellant argues that Purvis is distinguishable because appellant, unlike the defendant in Purvis, was not found in the vehicle, nor were the headlights on. Purvis, 4 S.W.3d at 121. As we read Purvis, these factors were considered as some of the evidence corroborating the defendant's statements and not the determinative factors in the case. Purvis, 4 S.W.3d at 122.
[1] Retired Judge Michael J. McCormick assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. §§ 74.003 and 75.002 (Vernon 1998).
[2] Horizontal gaze nystagmus.
[3] Criner v. State, 860 S.W.2d 84 (Tex.Crim. App.1992), and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[4] Chambers v. State, 805 S.W.2d 459 (Tex. Crim.App.1991).
[5] Moreno v. State, 755 S.W.2d 866 (Tex.Crim. App.1988).
[6] Matson v. State, 819 S.W.2d 839 (Tex.Crim. App.1991).
[7] Moreno, supra, at 867.
[8] Self v. State, 513 S.W.2d 832 (Tex.Crim.App. 1974). The Court in Self seemed to question the continued viability of the rule: "A traditional distrust for the reliability of extrajudicial confessions has caused most jurisdictions to require their corroboration. This earlier distrust may now be dissipating because of the greater reliability that may be attributed to confessions as a result of the application of recent decisions such as Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964)." Self v. State, 513 S.W.2d 832, 836-37 (Tex.Crim. App.1974).
[9] Threet v. State, 157 Tex.Crim. 497, 250 S.W.2d 200 (1952).
[10] 797 S.W.2d 141 (Tex.App.-Austin 1990, pet. ref'd).
[11] 688 S.W.2d 631 (Tex.App.-Corpus Christi 1985).
[12] Id. at 632.
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369 F.2d 259
Donald C. NEUSUS, Plaintiff-Appellant,v.B. D. SPONHOLTZ d/b/a De-Lux Neon Manufacturing Company of Oklahoma City and American Fire Apparatus Co., a Michigan corporation, Defendants-Appellees.
No. 15264.
United States Court of Appeals Seventh Circuit.
August 11, 1966.
Rehearing Denied September 27, 1966.
John C. Mullen, James P. Chapman, Chicago, Ill., for appellant.
Louis Gershon, Horace W. Jordan, Frederick W. Temple, Chicago, Ill., Van Duzer, Gershon & Jordan, Chicago, Ill., of counsel, for defendant-appellee, B. D. Sponholtz, etc.
Alvin G. Hubbard, Reese Hubbard, Frederick W. Temple, Chicago, Ill., Hubbard, Hubbard, O'Brien & Hall, Chicago, Ill., of counsel, for American Fire Apparatus Co.
Before CASTLE, KILEY, and SWYGERT, Circuit Judges.
SWYGERT, Circuit Judge.
1
This action was brought by Donald C. Neusus against B. D. Sponholtz, doing business as De-Lux Neon Manufacturing Company of Oklahoma City, Oklahoma and the American Fire Apparatus Company, a Michigan corporation.1 The plaintiff sought damages for injuries suffered when a fire truck aerial ladder which he was ascending suddenly collapsed while being used to fight a fire. The ladder was designed and assembled by the defendant Sponholtz who sold it to the defendant American Fire Apparatus Company. American installed the ladder on a pumping engine truck which it sold to the plaintiff's employer, the City of Batavia, Illinois. The complaint charged Sponholtz with negligence in the design and construction of the ladder and with the breach of express and implied warranties of quality. American was charged with negligence in installing the ladder on the truck and in failing to make sufficient safety tests and with the breach of an implied warranty of quality.
2
The jury returned verdicts for the defendants and the judgment was entered from which this appeal is taken. The errors relied upon arise out of assertedly prejudicial cross-examination of certain witnesses for the plaintiff, rulings on evidence, instructions, and remarks by the district judge during the trial. We do not reach these issues, however, because we are convinced that the plaintiff was guilty of misuse of the ladder and contributory negligence as a matter of law and that therefore the defendants were entitled to a directed verdict.2 A summary of the relevant evidence follows.
3
Sponholtz purchased a heavy duty extension ladder from the Aluminum Ladder Company in 1951. The ladder was a "ground ladder," which means that it was designed for use with its base on the ground and its top resting against a building or other fixed object. Sponholtz modified the ladder so that it might be used as a partially mechanized aerial ladder on a fire truck, and sold it to American in February 1952. American mounted the ladder on a fire truck and delivered the entire unit to the Batavia Fire Department in May 1952.
4
The ladder designed and assembled by Sponholtz was a three section aluminum extension ladder, affixed to a steel bed mounted on a pedestal. The ladder structure was elevated to the desired angle by a screw mechanism driven by an electric motor drawing power from the truck battery. After the ladder was elevated the sections were extended to the desired height or retracted by a hand-cranked winch mechanism, using wire cable running through pulleys attached to rungs on each of the two upper or "fly" sections. When the ladder sections were extended to the desired height they were locked in place by two automatic "fly locks," located on each of the two fly sections. In order to set the fly locks, the ladder sections were raised slightly above the desired height. The sections were then lowered until the fly locks hooked onto a rung of the section immediately below by means of a spring device.
5
The cable and pulley mechanism operated by the hand-cranked winch was designed only for the purpose of extending or retracting the two fly sections. Before the ladder was ready for use the fly locks had to be in position, locking the three sections. This fact was known by the plaintiff as well as all the other experienced firemen who testified. If the locks were not in position, whatever weight or stress was added to the ladder sections would be placed upon the cable and pulley mechanism.
6
The accident in question occurred on March 13, 1959, almost seven years after the equipment had been delivered to Batavia. Fire Truck No. 2, equipped with the aerial ladder, was called to Aurora, Illinois to assist in fighting a fire at a home for the aged. Upon arrival the aerial ladder was used with a ladder pipe fixed to the top, connected by a two and one-half inch hose.3 The plaintiff climbed the ladder and directed water on the burning building for some time, until he received instructions from the fire chief to lower the ladder and move the equipment to another position. The plaintiff descended the ladder. In attempting to shut off the water a valve pin broke and it became impossible to drain the water from the hose leading up the ladder to the ladder pipe. The fire chief began putting a clamp on the hose to cut off the water. While this was being done, the plaintiff undertook to extend the ladder with the winch to disengage the fly locks preliminary to retracting the ladder. He extended the ladder about six inches, thereby disengaging the locks, but was unable to retract it. Then, knowing that the fly locks were disengaged and that the hose was still charged with water, the plaintiff started to climb the ladder to see what was causing the ladder sections to bind together. The fire chief saw him start up the ladder and ran to order him off, but he was too late. When the plaintiff reached the second or center section of the ladder a pulley ruptured, the cable slipped off the pulley, and the ladder telescoped. The plaintiff fell to the ground, sustaining serious and permanent injuries.
7
The action taken by the plaintiff in ascending the ladder was completely unnecessary. The extended ladder could have been lowered to a horizontal position by the electrically driven screw mechanism. Then, whatever was keeping the ladder from retracting could have been found and corrected without exposing anyone to danger. The plaintiff testified that he knew that the purpose of the fly locks was "to lock the ladder in place as a safety measure and as a stability feature * * * to stabilize the ladder and to make the ladder safe." Nevertheless, he knowingly and deliberately climbed the ladder with the fly locks disengaged. In Day v. Barber-Colman Co., 10 Ill.App.2d 494, 135 N.E.2d 231, 239 (1956) the court declared:
8
Where a plaintiff is thoroughly familiar with a possible hazard involved in the performance of his job and with the means to avoid such, the fact that at a particular time he may have been momentarily unmindful thereof, forgetful thereof, or have overlooked the same does not absolve him from the duty of observing due care for his own safety.
9
The plaintiff's conduct is less excusable here, even though it may have occurred under circumstances demanding prompt action, since his knowledge of the function of the fly locks was not even momentarily obscured.
10
It is a truism to observe that no mechanical device can be made accident-proof. If it is misused it may cause injury, regardless of the method of manufacture. As stated by the New York Court of Appeals in Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802, 804 (1950) [quoted with approval in Murphy v. Cory Pump & Supply Co., 47 Ill.App.2d 382, 197 N.E.2d 849, 857 (1964)]:
11
We have not yet reached the state where a manufacturer is under the duty of making a machine accident proof or foolproof. Just as the manufacturer is under no obligation, in order to guard against injury resulting from deterioration, to furnish a machine that will not wear out * * *, so he is under no duty to guard against injury from a patent peril or from a source manifestly dangerous. * * *
12
In other words, the manufacturer is under no duty to render a machine or or other article "more" safe — as long as the danger to be avoided is obvious and patent to all.
13
The plaintiff was an experienced and trained professional fireman. He was thoroughly familiar with the operation of the aerial ladder. His action in climbing it, knowing that the fly locks were disengaged, establishes as a matter of law that his injuries resulted from a misuse of equipment or contributory negligence on his part, rather than from any fault of the defendants.
14
The judgment is affirmed.
Notes:
1
The suit was commenced in the Circuit Court of Kane County, Illinois and removed to the federal district court on the basis of diversity of citizenship
2
Although we do not reach these questions, the objectionable trial tactics of defense counsel for American, Reese Hubbard, should not escape comment. His conduct was very unprofessional in several instances, particularly with respect to his method of cross-examination by unsupported innuendo, and were it not for our resolution of the principal issue a new trial would have to be granted to the plaintiff. One example is sufficient to illustrate this point. During his crossexamination of an expert witness for the plaintiff, attorney Hubbard asked whether it was not true that the witness spent nearly all of his time testifying or "getting ready to testify," and whether he had not in fact just recently testified in a "Willie Bishop" case. The witness denied the facts suggested by these questions and counsel offered no proof by way of impeachment to support them. (In oral argument before this court, counsel for American — not trial counsel — attempted to justify the questions by representing that American's trial counsel had received a hearsay report of the expert witness' testimony in a "Willie Bishop" case. This representation was, of course, neither reassuring nor in any way exculpatory.)
The cross-examination tactic of attorney Hubbard is particularly objectionable in this case because it appears to have been undertaken deliberately and with complete disregard of the consequences. The same counsel has been criticized on a number of occasions for the same tactic and other tactics which are questionable from the standpoint of professional ethics. This court criticized counsel just one year ago for his deliberate disobedience of a trial court's admonition not to introduce evidence of workmen's compensation benefits into a personal injury case. In Mangan v. Broderick & Bascom Rope Co., 351 F.2d 24, 29 (7th Cir. 1965), cert. denied, 383 U.S. 926, 86 S.Ct. 930, 16 L.Ed.2d 846 (1966), we stated that "[c]ounsel's willingness to inject that evidence into the case at any cost is sufficient to earn him a new trial for plaintiff." In the same case attorney Hubbard's conduct in cross-examining a witness upon an exhibit which was not in evidence and which was never offered in evidence was characterized as "such a deliberate misuse of the judicial process that it must not be repeated upon a retrial of this suit." Id. at 31. See also Quality Molding Co. v. American Nat'l Fire Ins. Co., 287 F.2d 313, 315-16 (7th Cir.), cert. denied, 368 U.S. 826, 82 S.Ct. 45, 7 L.Ed.2d 29 (1961); O'Shea v. Jewel Tea Co., 233 F.2d 530 (7th Cir. 1956).
Even more recently, in Kiefel v. Las Vegas Hacienda, Inc., 39 F.R.D. 592 (N.D.Ill.1966), Judge Robson took attorney Hubbard to task and granted the plaintiff a new trial where counsel knowingly made prejudicial insinuations in his opening statement which were not substantiated by evidence, thwarted the efforts of opposing counsel to obtain the appearance of an out-of-town court reporter to testify regarding a deposition which had not been filed (in violation of the rules of court), and engaged in cross-examination tactics similar to those employed in this case. Judge Robson stated:
The court grants this motion for a new trial solely from its own observation of defense counsel's tactics, irrespective of the citation of similar action by the Illinois courts occasioned by the same counsel's conduct in the same regard [citing Ryan v. Monson, 33 Ill.App.2d 406, 179 N.E.2d 449 (1961); Cline v. Kirchwehm Bros. Cartage Co., 42 Ill. App.2d 85, 191 N.E.2d 410 (1963)]. The decisions do, however, furnish corroboration that his acts were not mere happenstance, inadvertently and unintentionally occurring. In contrast, the court notes the strenuous and futile efforts of plaintiff's counsel to combat the insidious effect resulting from the artfully planted statements of defense counsel.
* * * * *
Counsel for defendant is a lawyer who has had long and extensive trial experience. These years in the court should have taught him compassion and a sense of fair play. Instead, he seeks to use his experience to assert and apply every sly trick and strategem to win his case. He does this with the hope that he can stay within the bounds of professional ethics. In this instance, he has far overstepped the bounds. Id. 39 F.R.D. at 593-594, 596.
3
When so used the proper procedure was to drain the water from the hose before lowering the ladder
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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 October 30, 2002
Charles R. Fulbruge III
Clerk
No. 02-20054
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM ERNESTO PEREZ-BOLLANO, also
known as William Bollano-Perez, also
known as William Perez, also known as
William Ernesto Perez, also known as
William Ernesto Bolan Perez, also known
as William Perez-Bollanos,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-113-1
- - - - - - - - - -
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Willam Ernesto Perez-Bollano (Perez) appeals his conviction
after a bench trial of illegal re-entry in violation of 8 U.S.C.
§ 1326(b)(2). He raises three issues on appeal: (1) that the
district court erred by delegating authority to the United States
Probation Office to determine his ability to pay the costs of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-20054
-2-
court-ordered drug and alcohol treatment program; (2) that 8
U.S.C. § 1326(b)(2) is unconstitutional because it does not
require a prior aggravated felony offense to be proven to the
factfinder beyond a reasonable doubt; and (3) that the evidence
of his prior deportation should have been suppressed because the
removal procedures violated due process. Perez concedes that the
latter two arguments are foreclosed by this court’s precedent but
raises these issues in order to preserve possible Supreme Court
review.
Apprendi v. New Jersey, 530 U.S. 466 (2000), did not
overrule Almendarez-Torres v. United States, 523 U.S. 224 (1998).
See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202
(2001). Accordingly, Perez’s argument that 8 U.S.C. § 1326(b)(2)
is unconstitutional lacks merit.
In United States v. Benitez-Villafuerte, 186 F.3d 651, 656-
59 (5th Cir. 1999), this court held that the administrative
removal procedures in 8 U.S.C. § 1228 do not violate due process
and that in order to collaterally attack a prior deportation
proceeding in a prosecution under 8 U.S.C. § 1326 a defendant is
required to establish that there is a reasonable likelihood that
he would not have been deported but for the alleged errors in the
deportation proceeding. Perez has conceded that he cannot meet
this standard. Therefore, this issue is foreclosed.
No. 02-20054
-3-
In United States v. Warden, 291 F.3d 363 (5th Cir. 2002), we
recently rejected an appellant’s assertion that allowing a
probation officer to determine the appellant’s ability to pay the
costs of court-ordered treatment programs was an impermissible
delegation of authority. Thus, Perez’s first argument also is
foreclosed by circuit precedent. Id. at 366.
AFFIRMED.
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/26/2018 01:12 AM CST
- 329 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
NADEEM v. STATE
Cite as 298 Neb. 329
Mohammed Nadeem, appellant, v.
State of Nebraska, appellee.
___ N.W.2d ___
Filed December 8, 2017. No. S-16-113.
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court
reviews a district court’s order granting a motion to dismiss de novo,
accepting all allegations in the complaint as true and drawing all reason-
able inferences in favor of the nonmoving party.
2. Motions to Dismiss: Pleadings. For purposes of a motion to dismiss, a
court may consider some materials that are part of the public record or
do not contradict the complaint, as well as materials that are necessarily
embraced by the pleadings.
3. Pleadings: Complaints. Documents embraced by the pleadings are
materials alleged in a complaint and whose authenticity no party ques-
tions, but which are not physically attached to the pleadings.
4. ____: ____. Documents embraced by the complaint are not considered
matters outside the pleadings.
5. Res Judicata: Judgments. Res judicata bars relitigation of any right,
fact, or matter directly addressed or necessarily included in a former
adjudication if (1) the former judgment was rendered by a court of com-
petent jurisdiction, (2) the former judgment was a final judgment, (3)
the former judgment was on the merits, and (4) the same parties or their
privies were involved in both actions.
6. Convictions: Claims: Pleadings. Under Neb. Rev. Stat. § 29-4603
(Reissue 2016), a party alleging a wrongful conviction claim must plead
(1) conviction and sentence for a felony for which the party has served
at least part of the sentence; (2) pardon, vacation of the conviction, or
reversal and remand without a resulting retrial and conviction; (3) actual
innocence of the crime; and (4) that the plaintiff did not commit or sub-
orn perjury, fabricate evidence, or otherwise make a false statement to
cause or bring about such conviction or the conviction of another, except
for coerced confessions or guilty pleas.
- 330 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
NADEEM v. STATE
Cite as 298 Neb. 329
7. Sentences: Words and Phrases. Legal innocence is defined as the
absence of one or more procedural or legal bases to support the sentence
given to a defendant.
8. ____: ____. Actual innocence refers to the absence of facts that are pre-
requisites for the sentence given to a defendant.
9. Actions: Complaints. In determining whether a complaint states a
cause of action, a court is free to ignore legal conclusions, unsupported
conclusions, unwarranted inferences, and sweeping legal conclusions
cast in the form of factual allegations.
Petition for further review from the Court of Appeals, Pirtle,
Bishop, and A rterburn, Judges, on appeal thereto from the
District Court for Lancaster County, Robert R. Otte, Judge.
Judgment of Court of Appeals reversed, and cause remanded
with directions.
Jeffry D. Patterson for appellant.
Douglas J. Peterson, Attorney General, and Ryan S. Post
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
K elch, J.
INTRODUCTION
Mohammed Nadeem filed a claim against the State for
damages under the Nebraska Claims for Wrongful Conviction
and Imprisonment Act.1 The district court granted the State’s
motion to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6) for
failure to state a claim. Nadeem appealed to the Nebraska
Court of Appeals, which reversed the district court’s dis
missal.2 We granted the State’s petition for further review.
Because Nadeem has not sufficiently pled a claim of actual
innocence, we reverse, and remand to the Court of Appeals
with directions to affirm the order of the district court.
1
Neb. Rev. Stat. §§ 29-4601 to 29-4608 (Reissue 2016).
2
Nadeem v. State, 24 Neb. App. 825, 899 N.W.2d 635 (2017).
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
NADEEM v. STATE
Cite as 298 Neb. 329
FACTS
Background
Nadeem was convicted in 2010 of attempted first degree
sexual assault and attempted third degree sexual assault of
H.K., a minor. These offenses were based on an encounter that
Nadeem had with a 14-year-old girl in 2009 when he was 22
years old. The evidence presented at Nadeem’s criminal trial is
summarized in his original direct appeal,3 but the facts accord-
ing to Nadeem’s complaint are summarized below.
In 2009, Nadeem met a 14-year-old girl in a public library
and engaged in conversation with her. Nadeem asked the girl
questions such as how old she was, where she went to school,
and whether she had a boyfriend. The girl told Nadeem that
she was not allowed to give out her telephone number. Nadeem
asked the girl if he could give her his telephone number, and
she said, “‘I guess.’” Nadeem wrote down his telephone num-
ber for her and told her that he hoped she would call.
When the girl told her mother about her interaction with
Nadeem, the mother became very upset. She complained to the
head librarian, who suggested that she call the police.
The girl’s mother did call the police, and the next day, inves-
tigators invited the girl and her mother into their headquarters
for recorded interviews. The investigators then had the girl
make a recorded “‘controlled call’” to Nadeem, instructing the
girl on what to say and how to respond to Nadeem. According
to Nadeem, the purpose of the call was to induce him into a
conversation with the girl that involved sexual content. The
officers instructed the girl to tell Nadeem to meet her at the
library and to bring a condom. Nadeem went to the library as
requested, but did not bring a condom. Police met Nadeem
there and arrested him.
Nadeem’s convictions for attempted first degree sexual
assault and attempted third degree sexual assault of a minor
3
State v. Nadeem, 19 Neb. App. 565, 809 N.W.2d 825 (2012), reversed 284
Neb. 513, 822 N.W.2d 372.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
NADEEM v. STATE
Cite as 298 Neb. 329
were ultimately vacated by the Court of Appeals.4 Although
the Court of Appeals rejected Nadeem’s argument that there
was insufficient evidence to sustain his convictions, it reversed
Nadeem’s convictions and remanded the cause for a new trial
based on ineffective assistance of counsel and based on the
denial of a jury instruction for the defense of entrapment.5
The State sought further review with this court in 2013,
which we denied. During that time, Nadeem completed his
prison sentence.
Wrongful Conviction Claim
In 2015, Nadeem filed a claim against the State for com-
pensation under the Nebraska Claims for Wrongful Conviction
and Imprisonment Act, which claims are filed under the State
Tort Claims Act.6 In part of Nadeem’s complaint, he alleged
that he had been entrapped. The State then filed a motion to
dismiss Nadeem’s claim, arguing that the affirmative defense
of entrapment is legally insufficient to show actual innocence
(as opposed to legal innocence), which is a required element
of a wrongful conviction claim.7 The district court granted the
motion, and Nadeem appealed.
The Court of Appeals determined that the district court
erred in granting the State’s motion to dismiss. The major-
ity did not consider whether the defense of entrapment was
legally sufficient to show actual innocence. Instead, it noted
that Nebraska has a notice pleading system and stated, “[T]he
only issue we must decide is whether Nadeem sufficiently
alleges that he was [actually] innocent of attempted first
degree sexual assault.”8 Because his conviction was for an
4
State v. Nadeem, No. A-10-981, 2013 WL 674158 (Neb. App. Feb. 26,
2013) (selected for posting to court website).
5
Id.
6
See § 29-4607.
7
See Nadeem v. State, supra note 2.
8
Id. at 831, 899 N.W.2d at 639.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
NADEEM v. STATE
Cite as 298 Neb. 329
attempted crime, the question was whether he “intention-
ally engaged in conduct which constituted a substantial step
toward” the completed crime.9 The Court of Appeals con-
cluded that because, “[i]n his complaint, Nadeem alleged that
he did not have the requisite intent to commit the alleged
crime and did not take a substantial step toward committing
that crime,” he had made sufficient factual allegations to
defeat the State’s motion to dismiss.10
The State’s petition for further review contends, among
other things, that the Court of Appeals failed to consider its
prior opinion in the criminal case, which Nadeem referenced
in his complaint. Relevant to this contention, the Court of
Appeals said:
We acknowledge that in this court’s previous
opinion,[11] we specifically found that the evidence pre-
sented at Nadeem’s criminal trial was sufficient to sus-
tain his convictions for attempted first degree sexual
assault and for attempted third degree sexual assault.
However, in the current appeal, we are analyzing only
whether the allegations in Nadeem’s complaint are suf-
ficient to state a cause of action under the [Nebraska
Claims for Wrongful Conviction and Imprisonment] Act.
As such, we are confined to review only the specific
allegations in Nadeem’s complaint. We cannot look to
evidence outside of the pleadings which may or may
not be presented at a subsequent phase of these proceed-
ings. We also cannot assess the nature and quality of the
evidence presented in past proceedings to predict the
outcome of this action.12
9
Id. at 832, 899 N.W.2d at 639.
10
Id. at 833, 899 N.W.2d at 640.
11
State v. Nadeem, supra note 4.
12
Nadeem v. State, supra note 2, 24 Neb. App. at 832-33, 899 N.W.2d at
640.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
NADEEM v. STATE
Cite as 298 Neb. 329
ASSIGNMENTS OF ERROR
The State assigns that the Court of Appeals erred (1) in con-
cluding that it was confined to review only the specific alle-
gations in the complaint and (2) by not affirming the district
court’s dismissal of the complaint.
STANDARD OF REVIEW
[1] We review a district court’s order granting a motion to
dismiss de novo, accepting all allegations in the complaint
as true and drawing all reasonable inferences in favor of the
nonmoving party.13
ANALYSIS
Whether Court of A ppeals Erred in
Not Considering Its Prior Opinion
The State first argues that the Court of Appeals erred in con-
cluding that it was limited to looking at the face of Nadeem’s
complaint and could not look to its prior opinion, which the
court viewed as “evidence outside of the pleadings.”14 The
State argues that the prior opinion is not outside the pleadings
because it was “necessarily embraced by the complaint.”15
In support of its argument, the State cites DMK Biodiesel
v. McCoy.16
[2-4] In DMK Biodiesel, we held that for purposes of a
motion to dismiss, a court may consider some materials that
are part of the public record or do not contradict the com-
plaint, as well as materials that are necessarily embraced by
the pleadings. We explained that documents embraced by
the pleadings are materials alleged in a complaint and whose
authenticity no party questions, but which are not physically
13
Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
14
Nadeem v. State, supra note 2, 24 Neb. App. at 833, 899 N.W.2d at 640.
15
Memorandum brief for appellee in support of petition for further review
at 4.
16
DMK Biodiesel v. McCoy, 285 Neb. 974, 830 N.W.2d 490 (2013).
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Nebraska Supreme Court A dvance Sheets
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NADEEM v. STATE
Cite as 298 Neb. 329
attached to the pleadings.17 These documents are “not consid-
ered matters outside the pleadings.”18
We agree with the State that the Court of Appeals’ prior
opinion is “embraced by the complaint.” In Nadeem’s com-
plaint, he cites to the Court of Appeals’ 2013 opinion and
refers to numerous statements made by the court in that opin-
ion. Further, no party questions the authenticity of the opin-
ion. Thus, to the extent that the Court of Appeals suggested
that it could not consider the opinion in determining whether
Nadeem’s complaint sufficiently alleged facts to state a cause
of action, it was in error. However, as will be explained below,
only limited portions of the opinion by the Court of Appeals
are relevant to the matter before us.
Whether Court of A ppeals Erred in R eversing
District Court’s Dismissal
We next address the State’s argument that the Court of
Appeals erred in not affirming the district court’s dismissal
because the “facts [from the Court Appeals’ prior opinion]
show Nadeem cannot . . . establish his actual innocence.”19
[5] Although the Court of Appeals could have considered
its prior opinion, wherein it found that there was sufficient
evidence to sustain Nadeem’s conviction, the prior opinion
does not necessarily preclude Nadeem from alleging actual
innocence under § 29-4603(3),20 since his vacated conviction
does not have any res judicata effect on his current claim. Res
judicata bars relitigation of any right, fact, or matter directly
addressed or necessarily included in a former adjudication if
(1) the former judgment was rendered by a court of competent
17
See id.
18
Id. at 980, 830 N.W.2d at 496.
19
Memorandum brief for appellee in support of petition for further review
at 5.
20
See Neb. Rev. Stat. § 29-4603(3) (Reissue 2016) (that “he or she was
innocent of the crime or crimes”).
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jurisdiction, (2) the former judgment was a final judgment,
(3) the former judgment was on the merits, and (4) the same
parties or their privies were involved in both actions.21 Here,
although a final judgment was entered by the jury, the judg-
ment has since been vacated and has thus been deprived of its
conclusive character.22
The relevant issue at this stage of the litigation is whether
Nadeem’s complaint sufficiently placed the State on notice
of his wrongful conviction claim by setting forth “a short
and plain statement of the claim” showing that he is entitled
to relief.23
[6] Under § 29-4603, a party alleging a wrongful convic-
tion claim must plead (1) conviction and sentence for a felony
for which the party has served at least part of the sentence;
(2) pardon, vacation of the conviction, or reversal and remand
without a resulting retrial and conviction; (3) actual inno-
cence of the crime; and (4) that the plaintiff “did not com-
mit or suborn perjury, fabricate evidence, or otherwise make
a false statement to cause or bring about such conviction or
the conviction of another,” except for coerced confessions or
guilty pleas.
The State does not dispute that Nadeem sufficiently alleged
that he was convicted of and sentenced for a felony and
served at least part of the sentence, that the conviction was
vacated and the cause remanded without a resulting retrial
and conviction, and that he did not commit or suborn perjury
or fabricate evidence. However, the State does argue that
Nadeem has not sufficiently alleged facts to support a finding
of actual innocence.
21
State on behalf of Hopkins v. Batt, 253 Neb. 852, 573 N.W.2d 425 (1998).
22
See 50 C.J.S. Judgments § 958 at 282 (2009) (“[a]s a general rule, when a
judgment has been reversed on appeal, or vacated or set aside by the court
which rendered it, it is deprived of its conclusive character . . .”).
23
See Neb. Ct. R. Pldg. § 6-1108(a).
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[7,8] First, in Hess v. State,24 we delineated two distinct
definitions of innocence—legal and actual. Legal innocence
is defined as “‘[t]he absence of one or more procedural or
legal bases to support the sentence given to a defendant,’”25
whereas actual innocence refers to “‘[t]he absence of facts that
are prerequisites for the sentence given to a defendant.’”26 In
other words, actual innocence means that a defendant did not
commit the crime for which he or she is charged.27 Or, as the
U.S. Supreme Court has explained, “A prototypical example
of ‘actual innocence’ in a colloquial sense is the case where
the State has convicted the wrong person of the crime.”28
Accordingly, a defendant must plead more than lack of intent
to establish actual innocence.
[9] In determining whether a complaint states a cause of
action, we are free to ignore legal conclusions, unsupported
conclusions, unwarranted inferences, and sweeping legal con-
clusions cast in the form of factual allegations.29 Several of
the allegations in Nadeem’s complaint contain quotations
from the Court of Appeals’ opinion, wherein the Court of
Appeals evaluated the evidence from Nadeem’s criminal trial.
These are not factual allegations, but conclusions drawn by
the Court of Appeals from evidence presented at Nadeem’s
criminal trial, and thus, we do not consider them when evalu-
ating his complaint.
In addition, several of the allegations in Nadeem’s complaint
contain conclusory phrases, such as “hysterical speculation
24
Hess v. State, 287 Neb. 559, 843 N.W.2d 648 (2014).
25
Id. at 563, 843 N.W.2d at 653 (quoting Black’s Law Dictionary 859 (9th
ed. 2009)).
26
Id.
27
Hess v. State, supra note 24.
28
Sawyer v. Whitley, 505 U.S. 333, 340, 112 S. Ct. 2514, 120 L. Ed. 2d 269
(1992).
29
Kellogg v. Nebraska Dept. of Corr. Servs., 269 Neb. 40, 690 N.W.2d 574
(2005).
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and overreaction,” “entirely innocent,” “complete absence of
any evidence,” and “could not possibly be ‘ready and will-
ing.’” In evaluating Nadeem’s complaint, we do not consider
the information imparted by these unsupported conclusions.
Nadeem’s complaint does set forth that “[o]n August 6,
2009, . . . Nadeem engaged [H.K.] in an innocent conversation
while she was sitting in an open, public area of [a] Library.”
But after reviewing Nadeem’s entire complaint and the Court
of Appeals’ opinion, we discern that Nadeem’s reference to
the August 6 encounter clearly describes only the initial con-
tact Nadeem had with H.K. His complaint does not set forth
how his later telephone conversation with H.K. or his going
to meet H.K. at the library for a second time would reflect his
actual innocence.
Excluding from Nadeem’s complaint conclusions drawn by
the Court of Appeals and his own conclusory allegations, his
complaint does not allege an absence of facts which reflects
his actual innocence as we required in Hess.30 Even after draw-
ing all reasonable inferences of law and fact from Nadeem’s
pleadings in his favor, we find Nadeem has not sufficiently
pled a claim of actual innocence.
CONCLUSION
For the reasons set forth above, we reverse the decision of
the Court of Appeals that reversed the district court’s order
dismissing Nadeem’s complaint and remand the cause to the
Court of Appeals with directions to affirm the order of the
district court.
R eversed and remanded with directions.
Wright, J., not participating.
30
Hess v. State, supra note 24.
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377 Pa. Superior Ct. 46 (1988)
546 A.2d 1149
In the Interest of Harvey DAVIS.
Appeal of Harvey DAVIS.
Supreme Court of Pennsylvania.
Argued November 9, 1987.
Filed August 16, 1988.
*48 Karl Baker, Assistant Public Defender, Philadelphia, for appellant.
Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA and POPOVICH, JJ.
WIEAND, Judge:
In this proceeding to review the probationary status of a juvenile because of "problems in the home," the court revoked probation and ordered the juvenile committed based on his probation officer's testimony, over objection,[1] that "[the juvenile's] father advised me that [the juvenile] pulled a knife on him." On appeal, the juvenile contends that his probation was revoked improperly and he was deprived of his liberty on the basis of hearsay testimony without an opportunity to confront his accuser.
Harvey Davis had been adjudicated delinquent on May 6, 1985 on a charge of simple assault. At the dispositional hearing, he had been placed on probation upon the condition that he attend school, with no absences, lateness, or suspensions.
*49 On August 28, 1985, Davis's probation officer filed a motion to review the order of probation, with a request that Davis be committed to Glen Mills Diagnostic Center, because of "problems in the home and [Davis] appears to be in need of an extensive diagnostic study."
At the revocation hearing, the following occurred:
PROBATION OFFICER: . . . I got involved with the case because of [Harvey's] father some time ago, and there was quite a bit of disturbance in the home between Harvey and his father and Harvey's father advised me that Harvey pulled a knife on him
DEFENSE ATTORNEY: Objection, respectfully.
THE COURT: Overruled.
PROBATION OFFICER: And he protected himself, and that there were threats against Harvey and Harvey didn't want to stay home, and as a result of that, I felt it was the best thing to bring the case back to court . . .
At the conclusion of the hearing, Davis's counsel renewed his objection to the hearsay testimony of the probation officer and argued that no basis for revocation had been presented. The court revoked probation and committed appellant to the Glen Mills Diagnostic Center.
On appeal, Davis argues that his right to confrontation under the state and federal constitutions was violated when the trial court based its decision to revoke probation solely on the hearsay testimony of the probation officer.[2] We agree and reverse.
The Juvenile Act in Pennsylvania, 42 Pa.C.S. § 6301 et seq., provides specifically that in adjudicatory proceedings, *50 extrajudicial statements which would be constitutionally inadmissible in a criminal proceeding shall not be used against a juvenile. See: 42 Pa.C.S. § 6338(b). In dispositional hearings, however, the statute provides that "all evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition." 42 Pa.C.S. § 6341(d). With respect to probation revocation hearings, the Act is silent. See: 42 Pa.C.S. § 6324(5). For constitutional reasons hereinafter stated, however, we hold that a juvenile's probation cannot be revoked solely on the basis of extrajudicial statements made by an accuser whom the juvenile has not been permitted to confront.
The leading decision regarding the constitutional safeguards which are applicable to juveniles is Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The Supreme Court there observed:
Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure. In 1937, Dean Pound wrote: "The powers of the Star Chamber were a trifle in comparison with those of our juvenile courts. . . . The absence of substantive standards has not necessarily meant that children receive careful, compassionate, individualized treatment. The absence of procedural rules based upon constitutional principle has not always produced fair, efficient, and effective procedures. Departures from established principles of due process have frequently resulted not in enlightened procedure but in arbitrariness.
Id. at 18-19, 87 S.Ct. at 1438-1439, 18 L.Ed.2d at 541. Therefore, the Court determined that certain fundamental due process rights which had been recognized in adult criminal proceedings were applicable also in juvenile proceedings. The Court reasoned that a balance had to be struck between fundamental procedural protections and the *51 goals of the juvenile court system to ensure that juvenile proceedings "measure[d] up to the essentials of due process and fair treatment." Id. at 30, 87 S.Ct. at 1445, 18 L.Ed.2d at 548. With respect to the adjudicatory phase of a juvenile proceeding, the Court held, an alleged juvenile offender is entitled to receive notice of the charges, to be represented by counsel, to confront his accuser, to cross-examine witnesses, and to be free of the constraints of self-incrimination. In addition, proof beyond a reasonable doubt has been held necessary in order to adjudicate a juvenile delinquent. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Double jeopardy principles are also applicable to juvenile proceedings. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). However, the Constitution does not guarantee the right to trial by jury in juvenile proceedings. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).
Because a juvenile is entitled to confront his accuser, an adjudication of delinquency which is based solely on hearsay evidence will be reversed. In Interest of LaMore, 356 Pa.Super. 322, 514 A.2d 633 (1986); Commonwealth v. McNaughton, 252 Pa.Super. 302, 381 A.2d 929 (1977).
In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court held, in the context of adult proceedings, that a parolee had a substantial interest in retaining liberty until it had been determined that he had violated the conditions of his parole and that, therefore, parole could not be revoked absent due process. Although "the full panoply of rights" is not available, the Court said, a structured procedure, albeit informal, is necessary to assure that a revocation of parole will not be based on unverified facts or an inaccurate analysis of the circumstances. Thus, the Court formulated a two step procedure. The first step, similar to a preliminary hearing, is a factual inquiry to determine the existence of probable cause. The second step combines the factfinding function with the exercise of discretion to determine whether revocation of parole is necessary. In both proceedings, there exist conditional *52 rights to confront accusers and cross-examine witnesses. In the first step, these rights must be recognized unless it is determined that disclosure of the identity of an informant will create a risk of harm to him. In the second step, the right to confront and cross-examine an accuser can be denied only upon a finding of good cause.
These rights are also accorded to an adult probationer in proceedings to revoke probation. In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court said, "Probation revocation is not a stage of a criminal prosecution, but does result in a loss of liberty." Id. at 783, 93 S.Ct. at 1760, 36 L.Ed.2d at 661-662. Therefore, "a probationer can no longer be denied due process. . . [on the ground] that probation is an `act of grace.'" Id. at 783 n. 4, 93 S.Ct. at 1760 n. 4, 36 L.Ed.2d at 662 n. 4. See also: Commonwealth v. Kavanaugh, 334 Pa.Super. 151, 482 A.2d 1128 (1984).
The appellate courts in Pennsylvania have held unequivocally that "probation revocation proceedings entail the right to confront and cross-examine accusers." Commonwealth v. Riley, 253 Pa.Super. 260, 267, 384 A.2d 1333, 1336 (1978). "[B]efore hearsay testimony may be admitted, the hearing judge must make a finding that there is good cause for not allowing confrontation." Commonwealth v. Holmes, 268 Pa.Super. 396, 399, 408 A.2d 846, 848 (1979). See also: In the Interest of Bonner, 301 Pa.Super. 431, 447 A.2d 1043 (1982); Gartner v. Comm., Penna. Bd. of Probation and Parole, 79 Pa.Cmwlth. 141, 469 A.2d 1371 (1983).
A juvenile has the same substantial interest in retaining his liberty as an adult. See: State ex rel D.E. v. Dougherty, 298 S.E.2d 834 (W.Va. 1982). Similarly, society's interests in a juvenile probationer are no different than its interests in an adult probationer or parolee. It has been said that:
[a] parolee is not the only one who has a stake in conditional liberty. Society has a stake in whatever may be the chance of restoring him to a normal and useful life within the law. Society thus has an interest in not having *53 parole revoked because of erroneous information or because of an erroneous evaluation of the need to revoke parole, given the breach of conditions.
Morrissey v. Brewer, supra at 484, 92 S.Ct. at 2601, 33 L.Ed.2d at 496.
In view of the substantial liberty interests which exist in not having probation revoked on the basis of unverified facts or erroneous information, we conclude that due process considerations entailing the right to confront and cross-examine an accuser must extend to probation revocation proceedings for a juvenile. In Gault, the Supreme Court said:
The informality of juvenile court hearings frequently leads to the admission of hearsay and unsworn testimony. It is said that "close adherence to the strict rules of evidence might prevent the court from obtaining important facts as to the child's character and condition which could only be to the child's detriment." The assumption is that the judge will give normally inadmissible evidence only its proper weight. It is also declared in support of these evidentiary practices that the juvenile court is not a criminal court, that the importance of the hearsay rule has been overestimated, and that allowing an attorney to make "technical objections" would disrupt the desired informality of the proceedings. But to the extent that the rules of evidence are not merely technical or historical, but like the hearsay rule have a sound basis in human experience, they should not be rejected in any judicial inquiry.
Application of Gault, supra 387 U.S. at 11 n. 7, 87 S.Ct. at 1435 n. 7, 18 L.Ed.2d at 537 n. 7, quoting, Note, Juvenile Delinquents: The Police, State Courts, and Individualized Justice, 79 Harv.L.Rev. 775, 794-795 (1966) (footnotes omitted) (emphasis added). By ignoring the hearsay exclusion, "[t]he great engine of cross-examination would lie unused while error and perjury would travel untrammeledly to an unreliable and often tainted judgment." Johnson v. Peoples Cab Co., 386 Pa. 513, 514, 126 A.2d 720, 721 (1956).
*54 There can be no benefit to the juvenile, to society, or to the integrity of the juvenile court system to permit Davis's probation to be revoked solely on the basis of a hearsay declaration by his father without requiring the father to appear and be cross-examined. The goals of the juvenile system will not be defeated or even threatened by wrapping probation revocation proceedings in the same safeguards which apply to adult revocation hearings in order to insure the reliability of the information upon which a court is required to act. We conclude, therefore, that it was error to base the revocation of appellant's probation solely on an extrajudicial statement made by appellant's father to appellant's probation officer.
The order revoking appellant's probation is reversed.
CIRILLO, President Judge, files a dissenting opinion, in which OLSZEWSKI, TAMILIA and POPOVICH, JJ., join.
CIRILLO, President Judge, dissenting:
I respectfully dissent from the majority opinion. Although I agree that an adult in a revocation of probation hearing has the right to confront and cross-examine adverse witnesses absent a showing of good cause, I cannot embrace the majority's assertion that juveniles are entitled to this same right. Rather, an examination of applicable statutory and case law, as well as a consideration of the purposes and procedures of the juvenile system, leads me to the conclusion that juveniles have a more limited right to confrontation in probation revocation proceedings than do adults.
In Pennsylvania, juvenile matters are governed by a chapter contained in Pennsylvania Consolidated Statutes at 42 Pa.C.S. §§ 6301-6365. Although this chapter, known as the Juvenile Act, authorizes a juvenile court to impose probation upon a child found to be delinquent, 42 Pa.C.S. § 6352, and provides that "[a] child may be taken into custody . . . [b]y a law enforcement officer or duly authorized officer of the court if there are reasonable grounds to *55 believe that the child has violated conditions of his probation," 42 Pa.C.S. § 6324, it does not specifically enunciate the rules and procedures to be applied in probation revocation hearings. See F. McCarthy, Pennsylvania Juvenile Delinquency Practice & Procedure § 14-2 (1984). However, by considering the Juvenile Act in its entirety, the procedure and rules which the legislature intended to be applicable in probation revocation proceedings can be surmised.
In construing the provisions of the Juvenile Act, I am mindful of the Act's admonition that its provisions are to be interpreted to effectuate its purposes, one of which is "to remove from children committing delinquent acts the consequences of criminal behavior, and to substitute therefor a program of supervision, care and rehabilitation." 42 Pa. C.S. § 6301(b)(2). The Juvenile Act divides juvenile proceedings involving delinquents into two types: adjudicatory and dispositional. The adjudicatory hearing is concerned with determining whether a child is innocent or guilty of committing the delinquent act or acts of which he or she is accused. If the child is found to have committed the acts, then a disposition hearing is held to determine whether the child is in need of treatment, supervision or rehabilitation. If the court finds that the child is in such need, then it chooses from various alternative disposition orders the one most likely to meet that need.
Subchapter "C" of the Juvenile Act specifically addresses the procedures and safeguards to be utilized at hearings under that chapter. Among its provisions, this subchapter specifically entitles a juvenile to the right to counsel, the right to introduce evidence and to be heard in his or her own behalf, the right to cross-examine witnesses, and the right not to be a witness against oneself. See 42 Pa.C.S. §§ 6337, 6338(a) & (b). However, section 6303 of subchapter "A" limits the scope of the Juvenile Act as follows:
(a) General rule. This chapter shall apply exclusively to the following:
*56 (1) Proceedings in which a child is alleged to be delinquent or dependent.
(2) Transfers under section 6322 (relating to transfer from criminal proceedings).
(3) Proceedings arising under Subchapter E (relating to dispositions affecting other jurisdictions).
(4) Proceedings under the Interstate Compact on Juveniles, as set forth in section 731 of the act of June 13, 1967 (P.L. 31, No. 21), known as the "Public Welfare Code." . . .
The procedures and safeguards delineated under subchapter "C" are applicable only to the proceedings within the scope of the chapter. Notably absent from the proceedings listed under this section is any reference to disposition or probation revocation hearings. The Act, however, does not leave us totally in the dark regarding the procedures to be employed at disposition hearings. Subsection "d" of section 6341 explains the type of evidence which is to be considered in disposition hearings:
(d) Evidence on issue of disposition. In disposition hearings . . . all evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition. The parties or their counsel shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making the reports. Sources of information given in confidence need not be disclosed.
42 Pa.C.S. § 6341(d) (1982). Clearly, this section provides for the admission of hearsay evidence in disposition hearings, limiting the juvenile's right of confrontation in such hearings to the right to cross-examine the authors of reports and denying the right to confront third parties whose input was considered in those reports. This conclusion is supported by the Official Comment to section 6302 of the Act wherein it states:
*57 Before the child can be characterized a `delinquent child' he must be found (1) to have committed a `delinquent act' and (2) to be in need of treatment or rehabilitation. The first finding is made in the adjudicative hearing on the merits of the allegations of delinquent acts ascribed to the child and involves all of the due process of law safeguards prescribed by Gault [387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)]. The second finding is made in the dispositional hearing and involves the `good will and compassion' of the `kindly juvenile judge,' taking into account the `emotional and psychological attitude' of the child and having greater latitude in the information he may consider in making a disposition of the case. . . .
42 Pa.C.S. § 6302 (Supp. 1987) (emphasis added). The clear import of this Official Comment is that although at the adjudicative hearing the safeguards of due process contained in subchapter "C" of the Juvenile Act apply, at the disposition hearing they do not.
Since the right to confrontation is limited in disposition hearings, it should also be limited in probation revocation proceedings, which are held to determine if modification of the original disposition order is necessary. Modification of an order may be necessary because of a child's failure to abide by the terms of the probation order, because there has been some change in a child's circumstances, or because new information about a child's situation has come to light. As in disposition hearings, the focus in probation revocation hearings is on determining what course of action is best suited for the rehabilitation and treatment of the child. Logically, then, a juvenile should not be granted more rights in a hearing to determine whether modification of an original disposition order is necessary than in the original disposition hearing itself.
Comparison of our Juvenile Act with the juvenile act of Georgia, Ga.Code Ann. § 15-11-1 to 15-11-65 (1985 & Supp. 1987), persuades me that our legislature intended this result. Both of these juvenile acts were modeled after the Uniform Law Commissioners' Model Juvenile Court Act. *58 See 9 Uniform Laws Annotated (1987). In addition, Pennsylvania and Georgia are among the three jurisdictions listed in the Model Juvenile Act's table of jurisdictions which have adopted it. Furthermore, this table of jurisdictions is included within the section on the Juvenile Act in Pennsylvania Consolidated Statutes Annotated. See 42 Pa. C.S.A. §§ 6301-6365 (Supp. 1987). Our Juvenile Act defines "delinquent act" as:
(1) The term means an act designated a crime under the law of this Commonwealth, or of another state if the act occurred in that state, or under Federal law, or under local ordinances.
(2) The term shall not include:
(i) the crime of murder; or
(ii) summary offenses, unless the child fails to pay a fine levied thereunder, in which event notice of such fact shall be certified to the court.
42 Pa.C.S. § 6302 (1982). Georgia's juvenile act, on the other hand, defines "delinquent act" to mean:
(A) An act designated a crime by the laws of this state, or by the laws of another state if the act occurred in that state, under federal laws, or by local ordinance and the crime does not fall under subparagraph (C) of paragraph (12) of this Code section and is not a juvenile traffic offense as defined in Code Section 15-11-49;
(B) The act of disobeying the terms of supervision contained in a court order which has been directed to a child who has been adjudged to have committed a delinquent act: or . . .
Ga.Code Ann. § 15-11-2(6) (Supp. 1987) (emphasis added). By including probation violations in the definition of "delinquent act," Georgia's legislature made it clear that probation revocation hearings are adjudicative hearings. See also K.E.S. v. Georgia, 134 Ga.App. 843, 216 S.E.2d 670 (1975) (hearings in juvenile court seeking to terminate probation must be treated as delinquency trials). If the Pennsylvania Legislature had intended probation revocation hearings to be conducted under the rules applicable to *59 adjudicative rather than dispositional hearings, it could have simply included the violation of probation as part of the definition of "delinquent act," as was done by the Georgia legislature.
Even if, however, the legislature's intent in not specifically enunciating the procedure and rules applicable to probation revocation hearings in the Juvenile Act was to leave the promulgation of such procedures and rules to the courts, I would nevertheless find that juveniles do not have the right to confrontation at probation revocation hearings. I would do so in recognition of the juvenile judge's need, in considering a modification of a child's disposition, to have available to him the full range of information to which he had legal access in making that disposition originally.
In determining how to rehabilitate and treat a juvenile, a juvenile judge depends greatly on the oral and written reports of probation officers, social workers and various other professionals who function as a support staff for the juvenile. Many times, these personnel turn to people involved in a child's daily life, such as his or her family, friends, and teachers to find out how the child is getting along. The information they gain from speaking with these people is often included in the reports they deliver to the court. With this information, the judge is made aware of the child's progress or lack thereof, and is able to determine whether a modification of the original disposition order is necessary. If juveniles were afforded full confrontation rights at probation revocation hearings, the admissibility of these reports would be severely limited. This result would greatly impede the ability of the juvenile justice system to achieve its goal of rehabilitating and treating the children who enter its gates. I do not think such a result would benefit either juveniles or our society as a whole. Accord Matter of L.J.M., ___ Ind.App. ___, 473 N.E.2d 637 (1985) (finding no merit in the appellant's contention that hearsay was improperly admitted in his juvenile probation revocation hearing, the Indiana Court of Appeals reasoned that excluding hearsay evidence in disposition hearings would in *60 many cases disserve the child by excluding relevant information that might support a less restrictive disposition). Accordingly, I would find that in juvenile probation revocation hearings, juveniles are not entitled to a right of confrontation beyond that expressly delineated by 42 Pa.C.S. § 6341(d).
The analysis is not complete, however, without ascertaining whether it is constitutional to limit a juvenile's right to confrontation in a probation revocation hearing. First, I will examine the right of confrontation afforded adults in probation revocation proceedings. The United States Supreme Court formulated the present law on this right in two cases. In Morrissey v. Brewer, supra, the Supreme Court established the minimum constitutional requirements applicable to parole revocation hearings. Then, in Gagnon v. Scarpelli, supra, the Supreme Court extended the requirements formulated in Morrissey to probation revocation hearings. The Court reasoned that there was no difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation. 411 U.S. at 782, 93 S.Ct. at 1759.
In Morrissey, the Supreme Court observed that there are two important stages in the typical process of parole revocation. The first stage occurs when the parolee is arrested and detained, usually at the direction of his parole officer; the second stage occurs when parole is formally revoked. At the first stage, according to the Supreme Court, due process requires that a minimal inquiry be conducted to determine whether there is probable cause to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions. Furthermore, the Supreme Court determined that at the preliminary hearing stage, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decision maker, and a written report of the hearing. Gagnon, 411 U.S. at 786, 93 S.Ct. at 1761; Morrissey, 408 U.S. *61 at 485-87, 92 S.Ct. at 2602-03. Describing the conditional right of confrontation afforded parolees and probationers at this first stage, the Supreme Court stated:
On request of the parolee, persons who have given adverse information on which parole revocation is to be based are to be made available for questioning in his presence. However, if the hearing officer determines that the informant would be subjected to risk of harm if his identity were disclosed, he need not be subjected to confrontation and cross-examination.
Morrissey, 408 U.S. 487, 92 S.Ct. at 2603. At the second stage, the Supreme Court ruled, there must also be an opportunity for a hearing, if it is desired by the parolee, prior to the decision to revoke parole. This hearing, the Supreme Court declared, must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The minimum due process requirements of such a hearing, the Court instructed, are: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact finders as to the evidence relied on and reasons for revoking parole. Morrissey, 408 U.S. at 488-89, 92 S.Ct. at 2604.
In Commonwealth v. Kavanaugh, 334 Pa.Super. 151, 482 A.2d 1128 (1984), this court acknowledged and discussed the Supreme Court's direction in Morrissey and Gagnon regarding the procedure required by due process in probation revocation hearings. We recognized that the extent of a probationer's right to confrontation is dependent upon whether the hearing is a Gagnon I hearing, meaning the hearing required at the first stage of the revocation process, *62 or a Gagnon II hearing, the hearing required at the second stage of the process. We stated:
The conditional right to confront adverse witnesses, afforded in a Gagnon I hearing is not the same as the right to confront adverse witnesses afforded in a Gagnon II hearing. In the former, the hearing officer need not specifically find good cause for not allowing confrontation. In the latter, although it is not such a highly formal procedure that it must be conducted in accordance with the entire gamut of evidentiary and procedural rules employed in a criminal trial . . . the hearing officer is required to make a finding that there is good cause for not allowing confrontation before hearsay evidence may be admitted.
Id., 334 Pa.Superior Ct. at 156, 482 A.2d at 1130 (citations omitted). The import of Morrissey, Gagnon, and Kavanaugh is that adults are entitled to some right to confront adverse witnesses in all probation revocation hearings, the extent of the right depending on the type of hearing involved. Whether this right of confrontation extends to juveniles in probation revocation hearings, however, is yet to be resolved.
Neither the provisions of the Pennsylvania Constitution nor those of the United States Constitution, which Davis asserts guarantee the rights to confrontation and cross-examination in probation revocation proceedings, can be utilized as authority for the proposition that these rights extend to juvenile probation hearings. Indeed, contrary to Davis's contention, these provisions provide no guarantee for anyone, adult or juvenile, of the right to confrontation at revocation proceedings. As is apparent from their very wording, the provisions apply only to criminal prosecutions. Moreover, in both Morrissey and Gagnon, the Supreme Court emphasized that neither parole nor probation revocation hearings are the equivalent of criminal prosecutions. See Morrissey, 408 U.S. at 989, 92 S.Ct. at 2604 ("[T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such *63 a proceeding does not apply to parole revocations. . . . Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions"); Gagnon, 411 U.S. at 789, 93 S.Ct. at 1763 (addressing the issue of whether indigents have a due process right to be represented by counsel in all probation or parole revocation cases, the Court declared: "[W]e deal here, not with the right of an accused to counsel in a criminal prosecution, but with the more limited due process right of one who is a probationer or parolee only because he has been convicted of a crime").
The Supreme Court has addressed the procedural rights of juveniles in five notable decisions beginning with Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). See S. Davis, The Rights of Juveniles, The Juvenile Justice System 7-1 to 7-12 (2d ed. 1987); Note, Juvenile Law What Ever Happened to In Re Gault and Fundamental Fairness in Juvenile Delinquency Proceedings? Schall v. Martin, 22 Wake Forest L.Rev. 347, 349 & n. 22 (1987). In Kent, the Supreme Court held that a District of Columbia juvenile court order waiving that court's exclusive jurisdiction over a juvenile and directing his prosecution as an adult in federal district court was invalid. The Court instructed that "as a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records . . . presumably . . . considered by the court, and to a statement of reasons for the Juvenile Court's decision." Id. at 557, 86 S.Ct. at 1055. As part of its discussion, the Supreme Court briefly reviewed the history of the juvenile justice system in America, raising the question of whether the constitutional guarantees applicable in criminal proceedings must be applied in juvenile court proceedings. The Court declined to answer this question, though, noting that it was unnecessary to do so to resolve the matter before it.
Such was not the case with In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In Re Gault involved a *64 fifteen-year-old boy who was adjudicated a juvenile delinquent for making lewd phone calls. As Gault's disposition, the court committed him to an industrial school for the period of his minority, "unless sooner discharged by due process of law." Id. at 7-8, 87 S.Ct. at 1433. The corresponding penalty for an adult guilty of the same behavior as Gault was a fine ranging from five to fifty dollars, or imprisonment for not more than two months.
Beginning its review of Gault's adjudication as a delinquent, the Supreme Court addressed the question of whether, to meet constitutional standards, the full panoply of rights normally associated with due process of law must be accorded in proceedings in which courts adjudicate juveniles delinquent and commit them to institutions. With the recognition that a number of courts answered this question in the affirmative followed by a curt review of its case law, the Supreme Court concluded that "whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone." Id. at 13, 87 S.Ct. at 1436. Having reached this conclusion, however, the Supreme Court opened itself up to the problem of "ascertaining the precise impact of the due process requirement upon such proceedings."
The Supreme Court embarked upon its analysis of this problem by recapitulating the emergence of the parens patriae philosophy in the juvenile court system and examining the practical effect it has had thereon. Describing the inception of the juvenile court system, the Court stated:
The early reformers were appalled by adult procedures and penalties, and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals. They were profoundly convinced that society's duty to the child could not be confined by the concept of justice alone. They believed that society's role was not to ascertain whether the child was "guilty" or "innocent," but "What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career." . . . The *65 apparent rigidities, technicalities, and harshness which they observed in both substantive and procedural criminal law were therefore to be discarded. . . . The child was to be "treated" and "rehabilitated" and the procedures, from apprehension through institutionalization, were to be "clinical" rather than punitive.
These results were to be achieved . . . by insisting that the proceedings were not adversary, but that the state was proceeding as parens patriae.
Id. at 15-16, 87 S.Ct. at 1437. This parens patriae philosophy, however, faltered in effectuating the desired results. As observed by the Supreme Court:
The absence of substantive standards has not necessarily meant that children receive careful, compassionate, individualized treatment. The absence of procedural rules based upon constitutional principle has not always produced fair, efficient, and effective procedures. Departures from established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness.
Id. at 18-19, 87 S.Ct. at 1439. Consequently, the Supreme Court stated that although delinquency proceedings need not conform with all of the requirements of a criminal trial or even of the usual administrative hearing, they "must measure up to the essentials of due process and fair treatment." Due process and fair treatment, the Supreme Court reasoned, entitles juveniles to written notice of the charges against them, notification of the right to counsel, the right to confront and cross-examine witnesses, and the privilege against self-incrimination.
That In Re Gault grants substantial rights to juveniles that they never before were given, including the rights to confrontation and cross-examination, is not disputed; however, as the Supreme Court emphasized throughout its decision, the effect of In Re Gault upon juvenile's rights is limited to the delinquency stage of juvenile proceedings. Illustrative of this point, is the Supreme Court's categorical statement at the beginning of its analysis that:
*66 We do not in this opinion consider the impact of these constitutional provisions upon the totality of the relationship of the juvenile and the state. We do not even consider the entire process relating to juvenile "delinquents." For example, we are not here concerned with the procedures or constitutional rights applicable to the prejudicial stages of the juvenile process, nor do we direct our attention to the post-adjudicative or dispositional process.
Id. at 13, 87 S.Ct. at 1436. Expounding further on this limitation, the Supreme Court stated: "The problems of pre-adjudication treatment of juveniles, and of post-adjudication disposition, are unique to the juvenile process; hence what we hold in this opinion with regard to the procedural requirements at the adjudicatory stage has no necessary applicability to other steps of the juvenile process." Id. at 31 n. 48, 87 S.Ct. at 1445 n. 48. Thus, in carving out the constitutionally protected procedural rights of juveniles in adjudicatory hearings, the Court acknowledged that its reasoning and holding were fashioned around the distinct characteristics of the delinquency hearing and should not be relied upon as a basis for holding the same procedural rights applicable to post-adjudicative proceedings.
Several years after In Re Gault, the Supreme Court added to the list of "essentials of due process and fair treatment" accorded juveniles by holding that proof beyond a reasonable doubt is required in adjudicatory proceedings when a juvenile is charged with an act which would constitute a crime if committed by an adult. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In doing so, the Supreme Court made clear, as it had in In Re Gault, that it was not concerned with the pre-judicial nor post-adjudicative stages of the juvenile process. Id. at 359 n. 1, 90 S.Ct. at 1070 n. 1. On this point, the Court instructed:
Use of the reasonable-doubt standard during the adjudicatory hearing will not disturb New York's policies that a finding that a child has violated a criminal law does not constitute a criminal conviction, that such a finding does *67 not deprive the child of his civil rights, and that juvenile proceedings are confidential. Nor will there be any effect on the informality, flexibility, or speed of the hearing at which the fact finding takes place. And the opportunity during the post-adjudicatory or dispositional hearing for a wide-ranging review of the child's social history and for his individualized treatment will remain unimpaired.
Id. at 366, 90 S.Ct. at 1074 (emphasis added). With this passage, the Supreme Court reaffirmed the notion that informal proceedings should be the norm in juvenile proceedings and that varied evidence reflecting upon a juvenile's background should be considered in determining the type of disposition especially conducive to rehabilitating each youngster appearing before the court.
Subsequently, in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), the Supreme Court held that a right to trial by jury in the juvenile court's adjudicative stage is not constitutionally required by the due process clause of the fourteenth amendment. In reaching this holding, the Supreme Court recommitted itself to the posture that it had previously embraced in Gault and Winship of refraining from "taking the easy way with a flat holding that all rights constitutionally assured for the adult accused are to be imposed upon the state juvenile proceeding," id. at 545, 91 S.Ct. at 1986, attempting instead to balance the desirability of preserving the unique characteristics of the juvenile system with the beneficial effects of procedural orderliness. Striking this balance in McKeiver, the Supreme Court reasoned that requiring trial by jury in adjudicatory hearings would run the risk of remaking the juvenile proceeding into a fully adversary process, thereby abandoning the ideal of the juvenile court system as an intimate, informal, protective setting. Id.
In its fifth notable decision construing juvenile procedural rights, Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the Supreme Court determined that the fifth amendment's double jeopardy clause requires transfer *68 hearings to determine whether a particular juvenile should be prosecuted as an adult in criminal court to be conducted prior to the start of any adjudicative hearing in juvenile court. Discussing the juvenile court system, the Court stated, "We recognize that juvenile courts, perhaps even more than most courts, suffer from the problems created by spiraling case loads unaccompanied by enlarged resources and manpower. . . . And courts should be reluctant to impose on the juvenile court system any additional requirements which could strain its resources as to endanger its unique function." Id. at 537, 95 S.Ct. at 1789.
Having reviewed the applicable Supreme Court decisions regarding the constitutional rights of adults in probation revocation hearings and those addressing the procedural rights of juveniles, the next step is to consider whether these cases mandate that juveniles are constitutionally entitled to the same right of confrontation afforded adults in probation revocation proceedings.[1]
In State ex rel. D.E. v. Keller, 251 So.2d 703 (Fla.Dist.Ct. App. 1971), the Florida District Court of Appeals extended the procedural rights established in Gault to probation revocation hearings, thereby entitling juveniles in probation revocation hearings to the right to confront and cross-examine witnesses. The court reasoned that although the supreme court had considered only the adjudicatory process in Gault, certain passages of the opinion indicate that the *69 fundamentals of due process should be applied in other critical stages affecting the liberty of a juvenile.
In State v. Daugherty, 298 S.E.2d 834 (W.Va. 1982), the West Virginia Supreme Court of Appeals was confronted with the issue of whether the due process clause of the United States Constitution requires that a juvenile be given a hearing before his probation is revoked. Addressing this issue, the court first noted its decision in State v. MacQueen, 163 W.Va. 620, 259 S.E.2d 420 (1979), in which it had stated:
Neither the United States Supreme Court nor this Court has expressly spoken to the procedural requirements due a juvenile in parole revocation proceedings. In a series of cases, however, the Supreme Court has held that juveniles are entitled to procedural protections previously denied them under the doctrine of parens patriae. The command of these cases is that the constitutional rights of the juvenile can no longer be ignored but that he must be afforded constitutional due process and fair treatment.
259 S.E.2d at 422 (holding that juveniles in parole revocation hearings are entitled to the same protections afforded adults by Morrissey). Then, observing the constitutional protections established for adults in probation revocation hearings by Morrissey and Gagnon, and reasoning that the interest of the juvenile probationer is no less valuable than that of the adult probationer, the West Virginia court ruled that juveniles in probation revocation proceedings are entitled to the same protections as adults in those proceedings.
I am not persuaded by the reasoning of the Florida District Court of Appeals or the West Virginia Supreme Court. Unlike these two courts, I find nothing in the supreme court cases discussed above to lead to the conclusion that juveniles are constitutionally entitled to the right of confrontation established by Morrissey and Gagnon.
Although Kent, Gault, Winship, McKeiver, and Breed greatly affect the procedure of adjudicatory hearings in the juvenile court system, they clearly do not mandate our adoption of any corresponding constitutional rights in probation *70 revocation hearings. The Supreme Court explicitly recognized the distinction between adjudicatory and post-adjudicatory hearings, and the necessity for analyzing the conditional requirements of each type of hearing separately. Furthermore, these decisions convey the Supreme Court's belief that the unique characteristics of the juvenile court system are worth preserving and its view that the full range of constitutional rights afforded accused adults should not be mechanically imposed upon the juvenile court system. Accord In the Interest of Doe, 62 Haw. 70, 610 P.2d 509 (1980) (Kent, Gault, Winship, and McKeiver "manifest a definite concern for investing relevant juvenile proceedings with due process within a humanitarian system where rehabilitation is unquestionably the primary goal. . .").
At the dispositional stage of the juvenile court system, the court is concerned with determining the disposition best suited for a juvenile's treatment, supervision, rehabilitation and welfare. The court is not deciding the child's guilt or innocence. That has already been determined at the adjudicatory hearing, to which all the procedural rights enunciated in Gault apply. It is only after a finding of guilt has been made at the adjudicatory hearing that a disposition hearing is conducted at all.
One of the unique characteristics of the juvenile court system is its goal of rehabilitating, rather than punishing, the juveniles appearing before it. Our juvenile courts ask not what punishment should this youth be given for his unlawful behavior, but what can be done to help this youngster get back on the right track. Although this goal of rehabilitation may not always be attainable, it is a humane and arguably necessary one to which our society should aspire. As has been said many times, the preservation of our society depends upon the youth of today developing into responsible, law-abiding adults.
In order to decide how to undertake the rehabilitation of a particular juvenile, the court needs as much information regarding the youth's background, problems, personality, *71 relationships, and actions as possible. The more a judge knows about a juvenile, the better able he or she will be to fashion an individualized course of rehabilitation. In a probation revocation hearing, the court is called upon to re-evaluate its original disposition order to ascertain whether a change in disposition is necessary. To this end, once again, the juvenile court judge needs access to all available information regarding the juvenile if this determination is to be made with the precision that the rehabilitation purposes of our juvenile justice system require.
Because, in conducting a hearing on disposition or probation revocation, the juvenile court is not deciding the guilt or innocence of the juvenile, and because the goal of the juvenile system is to rehabilitate juveniles, rather than to punish them, these hearings have always been conducted in an informal manner. Only through an informal hearing can the juvenile judge gather the information necessary for the formulation of a practical and effective course of rehabilitation for each juvenile. I believe the informal nature of these hearings continues to be essential to the vitality of the juvenile court system. Extending the right of confrontation established in Morrissey and Gagnon to juveniles in probation revocation hearings would impair the judge's ability to learn as much as possible about the youth and would infringe upon the informal manner in which the hearings are conducted. See N. Cohen & J. Gobert, The Law of Probation and Parole 433 (1983) (employment of hearsay rules would significantly alter the nature of probation revocation hearings). Therefore, I would hold that juveniles are not constitutionally entitled to full confrontation rights in probation revocation proceedings and, consequently, that juveniles do not have this right in our Commonwealth. Accordingly, I would rule that the hearing court did not err when it admitted the hearsay testimony of Davis's probation officer and I would affirm the order revoking Davis's probation.
OLSZEWSKI, TAMILIA and POPOVICH, JJ., join.
NOTES
[1] The objection, although general, was adequate to preserve the court's evidentiary ruling for appellate review. Where only a general objection is made, the admission of the evidence is not ground for reversal if it is proper for any purpose. Commonwealth v. Bell, 288 Pa. 29, 35, 135 A. 645, 647 (1927); Commonwealth v. Marshall, 287 Pa. 512, 521, 135 A. 301, 304 (1926); Fischer v. Anderson, 173 Pa.Super. 175, 179, 96 A.2d 168, 170 (1953). See also: Henry on Pennsylvania Evidence, § 724. The better practice is to state specifically the reason for the objection. When this is done, all other reasons for excluding the evidence are deemed waived. Commonwealth ex rel. Wilkes v. Maroney, 423 Pa. 113, 119, 222 A.2d 856, 860 (1966); Commonwealth v. Markwich, 178 Pa.Super. 169, 172, 113 A.2d 323, 325 (1955); Huffman v. Simmons, 131 Pa.Super. 370, 375, 200 A. 274, 276 (1938).
[2] The probation officer also testified, in response to an inquiry by the court, that Davis had been absent from school. Davis's attorney objected to this testimony on the ground that Davis had had no prior notice that he was being charged with violating probation because of absence from school. The court overruled the objection, stating, "It is additional information." Appellant argues that this was error. In its opinion, however, the juvenile court has stated that it did not consider this testimony and that it did not have any effect on its decision to revoke the juvenile's probation. Therefore, we find it unnecessary to review this aspect of appellant's hearing.
[1] Although in Holmes' Appeal, 379 Pa. 599, 109 A.2d 523 (1954), our supreme court held that hearsay was admissible in a juvenile court proceeding, reasoning that "from the very nature of the hearings in the Juvenile Court it cannot be required that strict rules of evidence should be applied as they properly would be in the trial of cases in the criminal court," id., 379 Pa. at 606, 109 A.2d at 526, our resolution of the question before us is not controlled by this holding. Holmes' Appeal was decided prior to Morrissey and Gagnon as well as the Supreme court cases involving juvenile procedural rights which were discussed above. Therefore, the impact of these cases on the supreme court's holding in Holmes is unknown. Moreover, as the supreme court acknowledged in its opinion, it is unclear whether the juvenile hearing involved in Holmes' Appeal was an adjudicatory hearing or a probation revocation hearing. Id., 379 Pa. at 608-09, 109 A.2d at 527. Consequently, it is questionable whether the supreme court's holding in Holmes' Appeal bears upon the issue before us at all.
| {
"pile_set_name": "FreeLaw"
} |
Filed 3/23/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D069419
Plaintiff and Respondent,
v. (Super. Ct. No. SCD238770)
JOHN PAUL RIDDLES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Runston
G. Maino, Judge. Affirmed.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.
McGinnis and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and
Respondent.
In this case, defendant and appellant John Paul Riddles pled guilty to one count of
workers' compensation insurance fraud in violation of Insurance Code1 section 11760,
subdivision (a). His conviction grew out of his application for workers' compensation
insurance, which fraudulently represented that a number of nurses who had been placed
in residential care and skilled-nursing facilities by Riddles's staffing agency were
computer programmers. His misrepresentation of the nurses as computer programmers
substantially reduced the premium his agency was charged by the workers' compensation
insurer that accepted his company's application; accordingly, the trial court required that
Riddles pay, as restitution to the insurer, $37,000 in premiums the insurer would have
earned in the absence of his misrepresentation.
Contrary to his argument on appeal, a workers' compensation insurer may recover,
as restitution under Penal Code2 section 1202.4, the premiums it would have earned in
the absence of misrepresentations by an insurance applicant. (See People v. Petronella
(2013) 218 Cal.App.4th 945, 968-984 (Petronella).) The fact Riddles may have been
able to establish that the Labor Code did not require that he provide workers'
compensation coverage for the nurses does not relieve him of responsibility for providing
the insurer with a fraudulent application or alter the fact the nurses were covered by the
policy he obtained.
We also reject his contention that the trial court erred in imposing an $860 fine.
1 Riddles was permitted to plea under the provisions of People v. West (1970) 3
Cal.3d 595, 600-601. A plea under West allows a defendant to plead guilty to a charge
without admitting that he or she committed the crime alleged. (Ibid.)
2 All further statutory references are to the Penal Code unless otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND
From at least 2005 until 2009, Riddles operated Confident Care, a staffing agency
that placed nurses at residential care and skilled-nursing facilities. One facility expressly
required that Confident Care provide workers' compensation insurance for the nurses; the
record also shows that Confident Care provided certificates of workers' compensation
insurance to other facilities where it placed nurses.
Premium rates for workers' compensation insurance are based on the number of
workers employed in various classifications and the amount paid to workers in each
classification. Premium rates for computer programmers are as low as 26 cents per $100
of payroll. Premium rates for higher classification workers can be up to $50 per $100 of
payroll. Riddles classified the nurses he placed in health care facilities as computer
programmers and underreported their payroll.
Although the People's initial complaint, which was filed in January 2012, alleged
Riddles had fraudulently obtained workers' compensation for nurses commencing in
2005, Riddles's plea and conviction is based on a workers' compensation insurance policy
he obtained for Confident Care from First Comp Insurance (FCI) for the period between
January 21, 2007 and January 21, 2008. As a result of Riddles's fraudulent
misclassification, Confident Care paid FCI a premium of $554 for the year ending in
January 2008; however, an audit of three facilities that contracted with Confident Care
during that period showed the agency should have paid FCI a premium of $39,604. Thus,
an insurance investigator calculated that FCI lost the audited premium for the year
($39,604) minus the premium Confident Care paid ($554) or approximately $39,000.
Initially, following a restitution hearing, the court ordered Riddles to pay FCI
3
$52,259 in restitution. However, Riddles moved to reconsider and the court amended its
order and set restitution at $37,000. Riddles filed a timely notice of appeal.
DISCUSSION
I
Riddles contends the trial court abused its discretion when it ordered him to pay
restitution in the amount of premium loss suffered by FCI. We find no abuse of
discretion.
Restitution in criminal proceedings is mandated by article I, section 28,
subdivision (b) of the California Constitution, and that mandate has been carried out by
our Legislature in section 1202.4, which provides in part: "(f) [I]n every case in which a
victim has suffered economic loss as a result of the defendant's conduct, the court shall
require that the defendant make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed by the victim or victims
or any other showing to the court. . . . The court shall order full restitution." (See People
v. Mearns (2002) 97 Cal.App.4th 493, 498.) We review a restitution order for abuse of
discretion. (People v. Baker (2005) 126 Cal.App.4th 463, 467.) " ' " 'When there is a
factual and rational basis for the amount of restitution ordered by the trial court, no abuse
of discretion will be found by the reviewing court.' " ' " (Ibid.)
The intent of voters in approving article 1, section 28 of the California
Constitution is plain: "[E]very victim who suffers a loss shall have the right to restitution
from those convicted of the crime giving rise to that loss." (People v. Phelps (1996) 41
Cal.App.4th 946, 950.) Accordingly, " ' " '[a] victim's restitution right is to be broadly
and liberally construed.' " ' " (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
4
By its terms, the restitution statute allows for recovery of a broad variety of
economic losses that are incurred as a result of the defendant's criminal conduct.
(§ 1202.4, subd. (f)(3).) The categories for which restitution may be ordered "includ[e],
but [are] not limited to" payment for the value of stolen or damaged property, medical
expenses, mental health counseling expenses, wages or profits lost by the victim,
noneconomic losses including psychological harm, interest, attorney fees, moving
expenses, extra security, and expenses to retrofit a house or car to make them accessible.
(Ibid.) However, "[b]ecause the statute uses the language 'including, but not limited to'
these enumerated losses, a trial court may compensate a victim for any economic loss
which is proved to be the direct result of the defendant's criminal behavior, even if not
specifically enumerated in the statute." (People v. Keichler, supra, 129 Cal.App.4th at p.
1046.)
In Petronella, the court directly considered whether, as here, a workers'
compensation insurer could recover the amount of premium it failed to obtain because
over a number of years the defendant had falsely reported the number and payroll of his
employees. At his sentencing, the prosecutor presented evidence that, in the absence of
defendant's misrepresentations, the insurer would have collected at least $11.6 million in
additional premiums. (Petronella, supra, 218 Cal.App.4th at p. 965.) Nonetheless, the
trial court only imposed $500,000 in restitution. On the People's appeal, the Court of
Appeal reversed because the trial court had not considered the evidence of premium loss
offered by the People. In doing so, although the defendant had not raised the issue, the
court expressly found that such a loss of premium was recoverable as restitution under
section 1202.4, subdivision (f): "No California case appears to have held the willful
5
underpayment of insurance premiums constitutes an economic loss under Penal Code
section 1202.4. But since 'the statute uses the language "including, but not limited to"
the[] enumerated losses, a trial court may compensate a victim for any economic loss
which is proved to be the direct result of the defendant's criminal behavior, even if not
specifically enumerated in the statute.' " (Petronella, at p. 969.) In finding that a loss of
premium was a direct result of the defendant's conduct, the court relied on the holding in
United States v. Simpson (6th Cir. 2008) 538 F.3d 459, which found that "unpaid
[workers' compensation] premiums fall squarely within the definition of 'loss' " under
federal sentencing guidelines, including the award of restitution to victims. (Id. at
p. 462.) The court in Simpson in turn stated: "When an individual underreports his
payroll, he is attempting to take coverage directly and thereby to deprive a carrier of
premiums directly." (Id. at p. 464.)
In United States v. Leahy (6th Cir. 2006) 464 F.3d 773, 799-800, a defendant
committed fraud in a manner remarkably similar to the fraud practiced by Riddles: the
defendant knowingly classified his warehouse workers as clerical workers. In requiring
restitution of the insurer's lost premium, the court in Leahy stated: "The insurance
companies were entitled to the benefit of their bargains—the amount of money they
would have charged to insure the actual risk that [the defendant's company] presented.
[Citation.] Otherwise, [the company] would obtain a windfall through its fraud, receiving
coverage for greater risks than the amount of premiums merited. The district court,
therefore, did not err in the restitution order when it calculated the entire amount [the
company] should have paid and subtracted what it did pay. The remainder returns the
insurance companies to the positions they would have occupied absent the fraud." (Ibid.)
6
The fact that Riddles's fraud may have given FCI a defense to payment to the
claimant had a claim been made on the policy would not necessarily relieve Riddles of
responsibility to FCI for either payment of an appropriate premium or, if FCI chose,
reimbursement from Riddles for the amount of any amount FCI paid the claimant. (See
De Campos v. State Compensation Ins. Fund (1954) 122 Cal.App.2d 519, 529.) In such
circumstance, the insurer, not the fraudulent insured, chooses the insurer's remedy, and,
as the court noted in De Campos, the insurer may determine that it is in its best interest to
pay an innocent worker and seek compensation from a fraudulent employer. (Ibid.) Of
course, here, because the term of the policy in question had expired by the time Riddles's
misrepresentation was discovered, rescission was not a practical remedy for FCI.
Rescission would have simply required that FCI return the $554 premium Confident Care
paid. Thus, the only realistic remedy for FCI was recovery of a premium that fully
compensated the insurer for the risk it in fact covered during the policy term.
Contrary to Riddles's argument, this is not an instance where, as in People v.
Busser (2010) 186 Cal.App.4th 1503, 1510, even in the absence of the insured's false
report about a hit and run accident, the insurer would have been required to pay for
damage suffered by the insured and a third party. In that case, we found there simply was
no causal link between the defendant's false statements to an accident investigator and
payments that, in any event, the insurer was required to make under its policy. (See ibid.)
Here, in contrast, the record shows that had Riddles accurately represented that the
covered individuals were working as nurses, FCI would have recovered substantially
more in premiums. The only circumstance that might break the causal link between
Riddles's conduct and FCI's loss of premium is a finding that Riddles would not have
7
paid for any coverage for the nurses had he been required to pay for them as nurses;
under that very hypothetical circumstance, FCI would not lose any premium because the
hypothetical assumes an honest Riddles would not have obtained any coverage. Such a
finding, however, is simply not possible on this record, which shows that over a number
of years Riddles in fact obtained workers' compensation coverage and was required to do
so by at least one of the facilities where the nurses worked. Those facts make it far more
likely than not that Riddles would have obtained coverage, even if he had to pay a higher
premium.
We also reject Riddles's contention the nurses' potential status as independent
contractors relieved him of responsibility for FCI's losses. It is indisputable that Riddles
obtained coverage for the nurses from FCI and intentionally mischaracterized them.
Their actual status as employees or independent contractors under the workers'
compensation law (Lab. Code, § 3700 et seq.) is not a defense to the misrepresentations
Riddles made to FCI and his consequent violation of Insurance Code section 11760,
subdivision (a), which, by its terms, makes it a crime to falsely represent any fact
"material to the determination of the premium rate, or cost of any policy of workers'
compensation insurance, for the purpose of reducing the premium, rate, or cost of the
insurance." Insurance Code section 11760 does not require that the prosecution establish
that a defendant was obligated to provide workers' compensation coverage, only that the
defendant made intentional misrepresentations for the purpose of reducing the cost of
coverage.
Importantly, as we have discussed, had a nurse made a claim on the policy,
Riddles—having fraudulently induced FCI to issue a policy—was in no position to then
8
insist that FCI assert an independent contractor defense. (See De Campos v. State
Compensation Ins. Fund, supra, 122 Cal.App.2d at p. 529; United States v. Simpson,
supra, 538 F.3d at pp. 467-468.) Riddles's representation to nursing facilities that the
nurses were covered by a workers' compensation policy, and an injured nurse's likely
contention that he or she relied on those representations, would substantially undermine
FCI's willingness and ability to assert such a defense. (See Simpson, at pp. 467-468.)
Finally, even if FCI was willing to assert an independent contractor defense,
contrary to Riddles's argument on appeal, by no means does the record here show that it
would have been successful. In particular, our review of the record shows not only that
Riddles represented to facilities that he had secured workers' compensation coverage for
the nurses, but that Confident Care itself treated them as employees by paying state
unemployment and disability insurance for them. This is significant because "whether or
not the parties believe they are creating the relationship of employer-employee" (S.G.
Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 351) is
an important factor a court must look to in determining whether a worker is an employee
for purposes of awarding workers' compensation benefits. Because the record shows that
in many important respects Riddles treated the nurses as employees, FCI would have
been hard pressed to prove they were nonetheless independent contractors.
In sum, the record shows that, for the period in question, FCI was exposed to the
workers' compensation risk posed by the nurses working through Riddles's agency;
hence, FCI was entitled to recover an appropriate premium for that risk. Accordingly, the
trial court did not abuse its discretion in making its restitution order.
9
II
Riddles also challenges the trial court's imposition of an $860 fine, which he
claims violated the terms of his plea agreement.
As Riddles acknowledges, the change of plea form he signed stated that, among
other matters, he understood the trial court might impose a fine of up to $1,000. Prior to
accepting the plea, the trial court advised Riddles: "There's usually a fine in these things,
but my feeling is that since you're going to be paying some restitution, I probably impose
the standard fine we seem to have now and then stay it and then have that paid, if at all,
after restitution is paid. That would be, I think, sensible." Riddles then entered his guilty
plea to count 3 of the information under People v. West.3 The People moved to dismiss
the remaining counts, and the trial court stated: "I can do a 3 year probationary period
starting right now, okay? Obey all laws. I'll make a fine of the standard. It seems like on
so many misdemeanors it's like 860 bucks. But I'll stay all of that pending a restitution
hearing." The court's minute order reflected imposition of the $860 fine, stayed pending
the restitution hearing.
Contrary to Riddles's argument on appeal, the trial court did not violate the terms
of his plea agreement by imposing the $860 fine. The record is clear that before Riddles
entered his plea, he was aware that the trial court intended to impose a fine; and he raised
no objection thereafter when the $860 fine was imposed. Under these circumstances,
where the record shows that the parties left to the trial court the power to set the amount
of a fine, the trial court did not err in thereafter imposing a fine within any statutory
3 See footnote 1, ante.
10
limits. (People v. Villalobos (2012) 54 Cal.4th 177, 179; People v. Crandell (2007) 40
Cal.4th 1301, 1309.)
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
HALLER, J.
11
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARIA S. COHEN f/k/a MARIA RICHTER, Individually and as
Successor Co-Trustee and LISA BERMAN, Individually and as Successor
Co-Trustee,
Appellants,
v.
GABRIEL SCARNATO and PORTIA M. RINDOSH n/k/a PORTIA M.
RICCIO,
Appellees.
No. 4D18-3654
[April 10, 2019]
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Peter M. Weinstein, Judge; L.T. Case
Nos. PRC-16-1422, PRC-16-1525.
Casey W. Mills of Casey W. Mills, P.A., Fort Lauderdale, for appellants.
Gabriel Scarnato, Palm Coast, pro se.
PER CURIAM.
In this non-final appeal, we review an order transferring two
consolidated trust disputes from Broward County to Flagler County under
section 47.122, Florida Statutes (2018). We reverse for two reasons: first,
because there was insufficent evidence that a change of venue was
necessary, and second, because the trial court failed to consider whether
Flagler County was a proper venue for the trust cases.
In 1992, Portia Rindosh executed a will and revocable trust in Broward
County. She appointed herself as trustee and named her son, daughter,
and granddaughter as beneficiaries under the trust. She later resigned as
trustee, at which time her daughter and granddaughter became successor
co-trustees under the terms of the trust.
The trust disputes began in 2016, after Portia amended the trust to
terminate her daughter and granddaughter as co-trustees and name her
son as the sole beneficiary of the trust. The daughter and granddaughter
filed a complaint against Portia and her son in Broward County, seeking a
declaratory judgment that Portia lacked the capacity to amend the trust.
Consequently, Portia filed a separate complaint against her daughter and
granddaughter alleging that they had mismanaged the trust. The two
complaints were consolidated.
While the trust disputes were pending in Broward County, Portia
executed a new will and trust in Flagler County. She expressly revoked
the 1992 trust and thereby excluded her daughter and granddaughter as
beneficiaries. Portia died a few months later, and her son filed a petition
for administration of the new will in Flagler County. The daughter and
granddaughter objected to this petition and deposited the 1992 will in
Broward County. Neither will has been admitted to probate.
Thereafter, the son moved to transfer the Broward County trust
disputes to Flagler County. The trial court recognized that Broward
County was a proper venue for the trust disputes but decided that they
should be transferred “in the interest of justice and judicial economy”
because Flagler County was the only proper venue for the administration
of Portia’s estate. The daughter and granddaughter appealed.
Section 47.122 provides that “[f]or the convenience of the parties or
witnesses or in the interest of justice, any court of record may transfer any
civil action to any other court of record in which it might have been
brought.” The party seeking a transfer under this section must submit
affidavits or other evidence to show that a change of venue is necessary
for the convenience of the parties or witnesses or in the interest of justice.
See Cardelles v. Catholic Health Servs., Inc., 14 So. 3d 1025, 1027 (Fla. 4th
DCA 2009). Even after this showing is made, a court may transfer venue
only to a court where the action could have been filed initially. See McGee
v. McGee, 145 So. 3d 955, 958 (Fla. 1st DCA 2014); Vitale v. Vitale, 994
So. 2d 1242, 1243 (Fla. 4th DCA 2008).
We generally review an order transferring venue under section 47.122
for an abuse of discretion. See Vitale, 994 So. 2d at 1243; Weinberg v.
Weinberg, 936 So. 2d 707, 708 (Fla. 4th DCA 2006). But “where there are
no disputed facts and the venue order turns on a question of law,” our
review is de novo. Weinberg, 936 So. 2d at 708.
Here, the trial court erred in transferring the trust disputes to Flagler
County because there was insufficient evidence presented to show that a
change of venue was necessary for the convenience of the parties or
witnesses or in the interest of justice. See Cardelles, 14 So. 3d at 1027.
The son primarily argued that the trust disputes should be transferred
2
because they cannot be resolved until the Flagler County court determines
whether the new will and trust are valid. However, this argument is
unpersuasive because any potential injustice can be avoided by abating
the trust cases until the will contest is resolved. See Fla. R. Civ. P.
1.260(a)(1); Schaeffler v. Deych, 38 So. 3d 796, 799-800 (Fla. 4th DCA
2010).
The trial court also erred in transferring the trust disputes to Flagler
County without considering whether they could have been filed in that
venue initially. In its order the trial court primarily relied on our holding
in Pasquale v. Loving, 82 So. 3d 1205, 1207 (Fla. 4th DCA 2012), that
when a trust is incorporated by reference into a will, a party cannot
“challenge the validity of the trust without also contesting the will.”
However, the court’s reliance on Pasquale was misplaced because venue
was not at issue there. See id. No other basis for venue in Flagler County
can be determined from this record.
For these reasons, we reverse the trial court’s order transferring venue
to Flagler County and remand for further proceedings consistent with this
opinion.
Reversed and remanded.
MAY, LEVINE and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3
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160 F.3d 1066
Jeffrey BALAWAJDER, Plaintiff-Appellant,v.Wayne SCOTT, et al., Defendants-Appellees.
No. 97-20745
Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Dec. 2, 1998.Rehearing Denied Jan. 4, 1999.
Jeffrey Balawajder, Navasota, TX, pro se.
Appeal from the United States District Court for the Southern District of Texas.
Before KING, HIGGINBOTHAM and JONES, Circuit Judges.
PER CURIAM:
1
Texas state prisoner Jeffrey Balawajder, # 520106, appeals the district court's dismissal of his 42 U.S.C. § 1983 complaint as improvidently filed. He challenges the transfer of his case to the Southern District of Texas and argues that the district court abused its discretion by applying its policy of enforcing sanctions imposed by other Texas federal district courts. We AFFIRM.
2
Balawajder filed a 101-page pro se civil rights suit against twenty-one defendants alleging interference with his religious practices and denial of access to the courts. The complaint was originally filed in the United States District Court for the Eastern District of Texas. The district court referred the complaint to the magistrate judge who ordered the lawsuit transferred pursuant to 28 U.S.C. §§ 1404 & 1406 to the Southern District of Texas because Balawajder's claims involved events that took place at the Ellis I Unit, which is located in Walker County in the Southern District of Texas. The order also noted that Balawajder "has been warned and sanctioned many times" and "has the experience to know where his lawsuits are to be filed." Accordingly, the order also warned Balawajder that "sanctions may be imposed if he files any new lawsuits in this Court when there is no basis for this Court having venue over the matter."
3
The district court for the Southern District of Texas entered an order dismissing Balawajder's action, without prejudice, as improvidently filed. In dismissing the lawsuit, the district court pointed to Balawajder's involvement in other frivolous lawsuits. The court noted that in 1992 this court had ordered that a sanction of $50 be imposed against Balawajder for filing a frivolous appeal and that Balawajder had not paid this sanction. The court further noted that the district court for the Western District of Texas had dismissed a suit of Balawajder's, with prejudice, for contumacious conduct and had ordered the district court clerk not to accept any further pleadings from Balawajder without prior approval of a judge or magistrate judge. Applying a Policy Statement implemented by the Southern District on February 1, 1994, which adopted a policy of enforcing sanction orders imposed by other Texas federal district courts, and "[a]fter reviewing the pleadings filed by Balawajder and in light of the sanctions imposed by [this court]," the district court determined "that Balawajder should not be granted permission to proceed with his civil rights action." The court dismissed the action, without prejudice, as improvidently filed.
4
Balawajder filed a Fed.R.Civ.P. 59(e) motion seeking relief from final judgment. The magistrate judge issued an amended memorandum and recommendation that Balawajder's motion for relief from final judgment, and other motions, be denied. The magistrate judge noted that although Balawajder had, in fact, paid the $50 sanction imposed by this court, said error on the part of the district court was harmless and payment of the fine "does not alleviate the stigma of that sanction." The district court entered a memorandum and order adopting the magistrate judge's amended recommendation over Balawajder's objections and ordering that the action be dismissed with prejudice. Balawajder filed a timely notice of appeal.
5
Balawajder first challenges the transfer of his case to the Southern District of Texas. A district court has the authority to transfer a case in the interest of justice to another district in which the action might have been brought. 28 U.S.C. §§ 1404, 1406. Section 1404 provides in pertinent part:
6
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
7
28 U.S.C. § 1404(a). "The district court has broad discretion in deciding whether to order a transfer." Caldwell v. Palmetto State Sav. Bank, 811 F.2d 916, 919 (5th Cir.1987). The magistrate judge transferred the case because Balawajder's claims arose out of events that had occurred at the Ellis I Unit, which is located in Walker County in the Southern District of Texas, Houston Division. No abuse of discretion has been shown.
8
Balawajder's challenge to the district court's dismissal of his case based on the Southern District's policy of enforcing sanctions imposed by other Texas federal district courts is also unavailing. We review sanctions imposed upon vexatious or harassing litigants by the district court for an abuse of discretion. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.1993). We have affirmed a district court's sanction barring a litigant from filing future civil rights complaints without the prior consent of a district court or magistrate judge. Murphy v. Collins, 26 F.3d 541, 544 (5th Cir.1994). Hitherto, we have not addressed, in a published opinion, the propriety of one district court enforcing a sanction order of another district court pursuant to a local order. We have, however, considered this issue in several unpublished opinions. In Clark v. United States, No. 94-10899, slip op. at 2-3, 52 F.3d 1066 (5th Cir. Apr. 4, 1995) (precedential unpublished opinion), the district court for the Northern District of Texas dismissed the plaintiff's case because he had not paid a $50 sanction imposed by the district court for the Southern District of Texas in a previous frivolous civil rights action. This court affirmed the Northern District's application of "Miscellaneous Order No. 48, which permits 'each federal district court in Texas [to] honor the sanctions imposed by another federal court in Texas.' " Id. at 2. In Murphy v. Scott, No. 94-41355, slip op. at 2, 56 F.3d 1385 (5th Cir. May 22, 1995) (precedential unpublished opinion), this court upheld a similar order authorizing the Eastern District to honor sanctions imposed against pro se prisoners by other federal district courts. Furthermore, in Umar v. McVea, No. 95-20890, slip op. at 1, 81 F.3d 157 (5th Cir. Mar. 1, 1996) (nonprecedential unpublished opinion), this court affirmed the Southern District's policy of enforcing sanctions imposed by other Texas federal district courts.
9
As we have previously noted, Balawajder has a long history of involvement in frivolous litigation. See Balawajder v. Parker, Nos. 94-50605 & 94-50666, slip op. at 5 n. 2, 56 F.3d 1386 (5th Cir. May 24, 1995) (precedential unpublished opinion). Had Balawajder been proceeding in this case in forma pauperis, he would have been barred by the three strikes rule under 28 U.S.C. § 1915(g). Accordingly, the district court for the Southern District of Texas did not abuse its discretion in honoring the sanction order of the Western District of Texas and dismissing Balawajder's complaint.
10
AFFIRMED.
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173 Conn. 1 (1977)
POLICEMEN'S AND FIREMEN'S RETIREMENT BOARD OF THE CITY OF NEW HAVEN ET AL.
v.
DONALD R. SULLIVAN ET AL.
NEW HAVEN POLICE UNION LOCAL 530 ET AL.
v.
THE CITY OF NEW HAVEN
Supreme Court of Connecticut.
Submitted on briefs December 9, 1976.
Decision released April 26, 1977.
HOUSE, C. J., LOISELLE, BOGDANSKI, LONGO and BARBER, JS.
*2 W. Paul Flynn, on the briefs, for the appellants (defendants in the first case and plaintiffs in the second case).
Dennis L. Pieragostini, office of the corporation counsel, on the briefs, for the appellees (plaintiffs in the first case and defendants in the second case).
LONGO, J.
Since these cases arise from the same factual situation and since they have been treated as companion cases throughout the course of their development we shall treat them in a single opinion. *3 In the first case the plaintiffs, the Policemen's and Firemen's Retirement Board of the city of New Haven and the city of New Haven, sought an injunction, which was granted by the Superior Court, restraining and prohibiting the defendants from initiating or proceeding with arbitration. In the second case, the plaintiffs, New Haven Police Union Local 530 and Council 15, AFSCME, AFL-CIO, sought an order, which was denied, directing the defendant to proceed with arbitration. Local 530, Donald R. Sullivan and James Jackson appealed from the judgment in the first case and both unions appealed from the judgment in the second case.
The parties filed a stipulation of facts applicable to both cases from which the following summary may be drawn: Sullivan and Jackson are city of New Haven police officers who suffered injuries in the course of their employment, whereupon they applied for disability retirement and were rejected by the Policemen's and Firemen's Retirement Board. Instead, they were offered less strenuous duty, which they refused. The New Haven Police Union Local 530, of which Sullivan and Jackson were members, initiated a grievance pursuant to the procedure provided in an agreement between the city of New Haven and the New Haven Police Union Local 530 and Council 15, AFSCME, AFL-CIO, hereinafter referred to as the agreement, and claimed that the dispute should go to arbitration under the terms of the agreement. The Policemen's and Firemen's Retirement Board of the city of New Haven and the city of New Haven instituted an action in Superior Court seeking an injunction restraining Officers Sullivan and Jackson, Local 530 and the Connecticut Board of Mediation and Arbitration from proceeding with arbitration. The *4 unions, on the same date, filed an action to compel the city to proceed with arbitration. The issues posed by these appeals are whether the court erred in ruling that Local 530 and Council 15 were not entitled to an order directing the city to proceed with arbitration and in ruling that the defendants in the first case were enjoined from seeking arbitration.
The first question requiring resolution is whether the issue of the arbitrability of the grievance is a question for the court or for the arbitrator to decide. The determination of this issue requires a preliminary examination of the agreement and the grievance procedure provided therein. The grievance procedure established by article 3 of the agreement consists of a four-step process, the last step of which provides: "If the complainant and his representative, if represented, are not satisfied with the decision rendered, he or his representative may submit the grievance to the Connecticut State Board of Mediation and Arbitration, and the decision rendered by the arbitrator(s) shall be final and binding upon both parties." In order to invoke article 3, the claimant must have a grievance, which is defined by article 3 (b) as follows: "A grievance for the purpose of this procedure shall be considered to be an employee or Union complaint concerned with: (1) Discharge, suspension or other disciplinary action. (2) Charge of favoritism or discrimination. (3) Interpretation and application of rules and regulations and policies of the Police Department. (4) Matters relating to the interpretation and application of the Articles and Sections of this Agreement." (Emphasis added.) The unions, Sullivan and Jackson seek to reach arbitration through the application of part 4 of article 3 (b). They contend *5 that the dispute involves the interpretation or application of the agreement since it involves a determination of the applicability and interpretation of article 15 of the agreement. Article 15 states: "Section 1. Police Pension Plan #1, and all amendments thereto, shall continue to be the Police Pension for all members of the Department employed prior to December 31, 1957. Section 2. Police Pension Plan #2, and all amendments thereto, shall continue to be the Police Pension for all members of the Department employed on or after January 1, 1958." If article 15 were intended by the parties to the agreement to incorporate the provisions of the pension plans in the agreement, then it would appear that the determination of the pension claims of Sullivan and Jackson would be matters relating to the interpretation and application of the articles and sections of the agreement. This final issue, however, need not be reached if we decide that the question of arbitrability is enough to send the dispute to arbitration.
The agreement sets forth the boundaries of the disputes the parties have agreed to submit to arbitration in article 3, step 4 (e), which states in part: "The arbitrator(s) jurisdiction to make an award shall be limited by the submission and confined to the interpretation and/or application of the provisions of this Agreement." It is clear that by using the broad language of this provision the parties intended to allow submission of legal, as well as factual, questions to the arbitrators. The authority to allow arbitrators to resolve legal questions is clearly established in our law. United Electrical Radio & Machine Workers v. Union Mfg. Co., 145 Conn. 285, 141 A.2d 479; Colt's Industrial Union v. Colt's Mfg. Co., 137 Conn. 305, 77 A.2d 301. Granting *6 the arbitrator's authority to resolve legal questions, however, does not automatically require that the issue of arbitrability go to arbitration. As we stated in the leading case of Connecticut Union of Telephone Workers v. Southern New England Telephone Co., 148 Conn. 192, 197, 169 A.2d 646: "Whether the parties have agreed to submit to arbitration not only the merits of the dispute but the very question of arbitrability, as well, depends upon the intention manifested in the agreement they have made. No one is under a duty to submit any question to arbitration except to the extent that he has signified his willingness." We stated further (p. 198): "Whether a dispute is an arbitrable one is a legal question for the court rather than for arbitrators, in the absence of a provision in the agreement giving arbitrators such jurisdiction. The parties may manifest such a purpose by an express provision or by the use of broad terms." Such broad terms were found to exist in a case where the contract called for the submission to arbitration of "'[a]ny dispute that cannot be adjudicated between the Employer and the Union'"; International Brotherhood v. Trudon & Platt Motor Lines, Inc., 146 Conn. 17, 20, 147 A.2d 484; and where arbitration was required of "[a]ll questions in dispute and all claims arising out of said contract"; Liggett v. Torringon Building Co., 114 Conn. 425, 430, 158 A. 917. Shortly after we decided Connecticut Union of Telephone Workers v. Southern New England Telephone Co., supra, we decided International Union v. General Electric Co., 148 Conn. 693, 174 A.2d 298, in which we applied the controlling federal law as declared in United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403, and United Steelworkers of America v. Warrior & Gulf Navigation *7 Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409, to a dispute involving interstate commerce. We quoted from Warrior, supra, 582, the rule that "the judicial inquiry [as to the scope of an arbitration clause in a labor management contract] ... must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance.... An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." International Union v. General Electric Co., supra, 700-701. Though it was our duty in that case, and in Hudson Wire Co. v. Winsted Brass Workers Union, 150 Conn. 546, 191 A.2d 557, to apply the federal rule; Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456, 77 S. Ct. 912, 1 L. Ed. 2d 972; this court has subsequently indicated its approval of application of the Warrior rule to situations in which Connecticut law applied. In the recent case of Board of Police Commissioners v. Maher, 171 Conn. 613, 621, 370 A.2d 1076, in ruling that the board of mediation and arbitration was authorized by the agreement presently under consideration to arbitrate a grievance concerning disciplinary action against a New Haven police officer, this court stated: "[T]he trial court correctly concluded that the bargaining agreement conferred on the defendant board the authority to arbitrate disciplinary grievances. International Brotherhood v. Trudon & Platt Motor Lines, Inc., 146 Conn. 17, 21, 147 A.2d 484; Pratt, Read & Co. v. United Furniture Workers, 136 Conn. 205, 209, 70 A.2d 120. This is especially true since any '[d]oubts [concerning arbitrability] should be resolved in favor of coverage.' *8 United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 583, 80 S. Ct. 1347, 4 L. Ed. 2d 1409; International Union v. General Electric Co., 148 Conn. 693, 701, 702, 174 A.2d 298." Despite our acceptance of the federal rule favoring arbitration, we are unpersuaded that the language of this agreement requires that we send the question of the arbitrability of the dispute to arbitration. The question of arbitrability is not one which requires a court to interject its presence into the merits of a labor dispute. Rather, the question of arbitrability is purely a question of contract interpretation in which courts have expertise and an historically established role to play. Indeed, in discussing the leading federal case of United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, the United States Supreme Court stated that pursuant to a grievance procedure submitting to arbitration "all disputes between the parties `as to the meaning, interpretation and application of the provisions of this agreement'"; United Steelworkers of America v. American Mfg. Co., supra, 565; the question of arbitrability should be resolved by the court. The court stated in Warrior, supra, 583 n.7: "It is clear that under both the agreement in this case and that involved in ... [United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403] the question of arbitrability is for the courts to decide. Cf. Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev. 1482, 1508-1509. Where the assertion by the claimant is that the parties excluded from court determination not merely the decision of the merits of the grievance but also the question of its arbitrability, vesting power to make both decisions in the arbitrator, the claimant must bear the burden of a clear demonstration of that *9 purpose." We can find no such clear demonstration in the present case where the arbitrator's power is "limited by the submission and confined to the interpretation and/or application of the provisions of this Agreement."
Having determined that the court was correct in ruling that it had the authority to decide whether the dispute should go to arbitration, we must now turn to the issue whether it properly decided that issue against sending the dispute to arbitration. By requesting the lower court to issue an injunction restraining the defendants in the first case from proceeding with arbitration, the retirement board and the city were, in effect, asking the court to interpret the substantive provisions of the agreement. As the court stated in United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 585: "[T]he court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement." We are also mindful of the court's distinction in Warrior, supra, 578, between arbitration of commercial and labor disputes. The court stated: "In the commercial case, arbitration is the substitute for litigation. Here arbitration is the substitute for industrial strife. Since arbitration of labor disputes has quite different functions from arbitration under an ordinary commercial agreement, the hostility evinced by courts toward arbitration of commercial agreements has no place here. For arbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself." This court must, therefore, look carefully at any order which seeks to interject a judicial body into the functioning of the collective bargaining *10 process. As we stated in Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 64, 357 A.2d 466: "Arbitration is a creature of contract. Connecticut Union of Telephone Workers v. Southern New England Telephone Co., 148 Conn. 192, 197, 169 A.2d 646. The continued autonomy of that process can be maintained only with a minimum of judicial intrusion."
Under the grievance procedure established by the agreement "[m]atters relating to the interpretation and application of the Articles and Sections of this Agreement" are considered grievances subject to arbitration under step four of the grievance procedure. Since there is no claim that the parties have not complied with the procedural requirements of the grievance procedure, the only question confronting us is whether there is doubt that the dispute should not go to arbitration. If there is any doubt, the issue must be resolved in favor of arbitration. Board of Police Commissioners v. Maher, supra.
We conclude that the trial court did not err in deciding that the parties did not intend that disputes involving disability retirement should be the subject of arbitration under the procedure established by article 3 of the agreement. Those seeking arbitration argue that the parties to the agreement, by agreeing to article 15 of the agreement, intended to incorporate the provisions of the two police pension plans mentioned therein into the agreement. We do not agree. Article 15 merely states which pension plans shall apply to which employees and states nothing about the provisions of either. Further, the pension plans were not established by the agreement, but were created by special act. The police officers, Sullivan and Jackson, fall into the category of employees covered by Special Acts 1957, *11 No. 531, entitled "An Act Establishing a Pension Fund for New Haven Policemen and Firemen Employed after December 31, 1957." Section 2 of No. 531 of the 1957 Special Acts states, in part: "The management and administration of the pension plan are hereby vested in a pension board, which shall consist of seven members." The pension board is a distinct entity which was not made a party to the agreement and could not, therefore, have agreed to grant its powers to an arbitrator, who derives his powers from the agreement. Further, the provisions of article 15 of the agreement may be compared to those of article 17, § 1, of the agreement by which "[t]he City agrees to continue to provide for the member and his enrolled dependents, at no cost to the employee, the Blue Cross Semi-Private Room Plan with the Maternity Care Rider, Major Medical insurance coverage and the CMS Community Plan." Clearly, the parties, by agreeing to article 17, did not intend to allow the submission to arbitration of claims by covered employees which had been disallowed by Blue Cross, CMS or the major medical carrier. The pension plans are not incorporated by reference nor are they set forth verbatim in the agreement. It is, therefore, impossible to say that the substantive provisions of the pension plans were made part of the agreement or that the parties signified their willingness to submit pension disputes to arbitration. As stated before: "No one is under a duty to submit any question to arbitration except to the extent that he has signified his willingness." Connecticut Union of Telephone Workers v. Southern New England Telephone Co., 148 Conn. 192, 197, 169 A.2d 646. Therefore, since the city did not signify its willingness to submit such disputes to *12 arbitration, the court properly denied the application of Local 530 and Council 15 for an order directing the city to proceed with arbitration.
Having decided that the dispute is not a proper subject for arbitration under the agreement, we must now determine whether the equitable remedy of injunctive relief is available to the city and the retirement board. The parties seeking arbitration argue that it is incumbent upon a plaintiff to prove that he will suffer irreparable injury unless an injunction is granted or no such relief may be granted.
Our cases establish that the imminence of irreparable injury and the absence of an adequate remedy at law are ordinarily prerequisites to the granting of injunctive relief. Koepper v. Emanuele, 164 Conn. 175, 319 A.2d 411. The facts of this case were submitted to the court by stipulation of the parties. One part of the stipulation, which was adopted by the court as a finding of fact, stated that Local 530 intended to proceed with arbitration before the Connecticut State Board of Mediation and Arbitration. This stipulation is adequate to establish that absent court interference the parties seeking the injunction would be required to submit to the acts of an arbitrator without authority. This result could only be prevented by an injunction which the Superior Court correctly issued. The parties seeking injunctive relief provided an adequate basis for the court to decide the legal question of the inadequacy of the remedy at law and the factual issue of irreparable harm.
There is no error.
In this opinion HOUSE, C. J., and BARBER, J, concurred.
*13 LOISELLE, J. (dissenting). These consolidated appeals present two questions. The first is: Does the contract at issue here assign to the arbitrators the duty of deciding which disputes are arbitrable, or is that decision one for the courts? I agree with the majority opinion that this contract does not assign that duty to the arbitrators. The arbitration clause requires arbitration of "[m]atters relating to the interpretation and application of the Articles and Sections of this Agreement." I understand that we have decided to follow the United States Supreme Court in arbitration matters. The language of this arbitration clause tracks that of a contract which the United States Supreme Court held left the decision as to which disputes are arbitrable to the courts. The language in that contract required arbitration of all disputes "`as to the meaning, interpretation and application of the provisions of this agreement.'" United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 565, 80 S. Ct. 1343, 4 L. Ed. 2d 1403.
Once the decision as to which disputes are arbitrable has been determined to be one for the court to make, the second question arises: Is this dispute arbitrable? It is in answering this question that I disagree with the majority. If we follow the United States Supreme Court, and apply the same test it applied in United Steelworkers of America v. American Mfg. Co., supra, this dispute is arbitrable.
United Steelworkers of America v. American Mfg. Co., supra, involved a grievance which the Court of Appeals had determined to be frivolous and patently baseless, thus not subject to arbitration. The Supreme Court reversed, holding that even frivolous, baseless claims must go to arbitration if "the party seeking arbitration is making a claim which *14 on its face is governed by the contract." Id., 568. The court explained: "The courts ... 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.... The processing of even frivolous claims may have therapeutic values of which those who are not a part of the plant environment may be quite unaware." Ibid. I submit that the majority opinion weighs the merits and looks for language in the written instrument to support the claim.
The grievance in this case is a claim by the union that the "contract provided for a review of the orders and decision of the Policemen's and Firemen's Retirement Board." The majority tests the arbitrability of the dispute by asking whether the agreement incorporated the provisions of the police pension plans, or whether the parties signified their willingness to submit pension disputes to arbitration. I think those are the wrong yardsticks. The contract clearly indicates the willingness of the parties to submit to arbitration disputes concerning the application and interpretation of the contract, and one party has asserted that the contract should be interpreted to provide for review of the decision of the pension board. This is a dispute concerning interpretation of the contract, and it must go to arbitration.
Applying the test of United Steelworkers of America v. American Mfg. Co., supra, "whether the party seeking arbitration is making a claim which on its face is governed by the contract," it is clear that this claim, that the contract provides for review, is determined by the contract. The fact that *15 examination of the contract shows that no review is provided for does not make the dispute less arbitrable, but more arbitrable. This is a claim not governed by statute, by general contract law or, indeed, by any authority other than the contract itself. Only by looking to the contract may its validity or lack of validity be seen.
I would find error, vacate the judgments and remand with direction to deny the injunction and order the parties to proceed with arbitration.
In this opinion BOGDANSKI, J., concurred.
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209 U.S. 20 (1908)
DUN
v.
LUMBERMEN'S CREDIT ASSOCIATION.
No. 138.
Supreme Court of United States.
Argued January 31, 1908.
Decided February 24, 1908.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
Mr. John O'Connor and Mr. Charles K. Offield, with whom Mr. Thomas M. Hoyne and Mr. Henry S. Towle were on the brief, for appellants.
Mr. Fred H. Atwood and Mr. Charles O. Loucks, with whom Mr. Frank B. Pease was on the brief, for appellees.
*21 MR. JUSTICE MOODY delivered the opinion of the court.
The appellants are the proprietors of a mercantile agency which publishes at intervals a copyrighted book of reference containing lists of merchants, manufacturers and traders in the United States and the North American British possessions. The book contains information as to the business, capital and credit rating of those who are enumerated in it. The information is obtained at large expense and is useful to those who are engaged in trade and commerce, who in large number subscribe to the privilege of consulting copies of it, which are furnished but not sold to them. The appellee is a corporation engaged in preparing and publishing a similar book, limited, however, to those engaged in the lumber and kindred trades. The book is called the Reference Book of the Lumbermen's Credit Association. The appellants brought in the Circuit Court of the United States a suit in equity, alleging an infringement of their copyright by the appellee, and praying for an injunction, for an account, and for general relief. After hearing evidence, the Circuit Court entered a decree dismissing the bill for want of equity, which, with an immaterial modification, was affirmed by the Circuit Court of Appeals. An appeal to this court was then taken.
Both the courts below made findings of fact, which are in substantial agreement. Those findings best appear by quotations from the opinions which follow. The judge of the Circuit Court said:
"From the evidence it appears that defendant admits using complainants' book, but insists that it did so merely for the purpose of comparison and for information as to names, but that in every case it, at great cost, procured original and independent information as to the rating and other facts contained in defendants' book. There are in respondents' reference book more than 60,000 names. The evidence shows that there are on hand more than 1,000,000 reports, replies to inquiries. etc. It further appears that defendants receive large *22 numbers of newspapers, magazines, trade journals and bulletins; that they use traveling men, lumber dealers, agents, lawyers, justices of the peace, mercantile associations, railroad companies and the clippings sent out by a number of clipping bureaus. At times defendants' mail reaches approximately 2,000 pieces of mail per day. A large force of employes and large offices are required in the management of the business.
"On the other hand, a number of instances are disclosed in the evidence which have strong tendency to establish the charge that defendants have used some of complainants' copyright material in making their book. The same mistakes occur in each. In one case complainants' witness swears to an entirely fictitious item placed in complainants' book as a test, which was duly appropriated by defendants. In regard to a number of items said to be duplicated, defendants show original investigation. Still, when all the explanations are considered, it seems to be fairly established that defendants did take some of the items complained of. Generally such indicia is held to indicate a substantial theft of copyright property, but taking all the evidence together I am satisfied that the items selected as tests constitute the bulk of all the items taken, and that they are of small moment in comparison with the whole.
"Defendants' book gives information on 113 subjects, complainants on 19. When we consider that the matter consists of names and other data, which, when true, must be the same in any report, and that in many cases the source of information must often be the same with both the parties thereto, it would seem to be just to lay down a different rule from that which obtains in cases where syllabi and summaries of law and fact are appropriated. Here seems to be no attempt to coin money out of another's labor. It is clearly a case in which the matter taken must be substantial and such as to really work injury to complainants.
"When we take note of the character of the items alleged to be appropriated on the one hand and the consequences of *23 granting the injunction prayed for, it would be an unwarrantable use of the power of the court to do so."
The Circuit Court of Appeals said:
"The question is one of fact, to be solved by a study of the evidence. From our examination we concur in the conclusion of the Circuit Court. The large features are that appellees' book of about 60,000 names contain over 16,000 (and over 400 towns) that are not in Dun's; that of the names in common only about fifteen per cent have similar capital ratings, that of the names with similar capital ratings a large proportion are classified differently respecting the particular businesses; and that six times as many different classes of information are given in appellees' book as in Dun's. On every page of appellees' book the names that are not given in Dun's and the names regarding which the information does not exceed or substantially vary from that given in Dun's bear the relation of three to one. These features are ocular confirmation of appellees' testimony regarding the long-continued, elaborate and comprehensive system of obtaining independent information. It is futile to claim that such a system, producing twenty-five per cent more names than Dun, and six times as many subjects of information concerning the persons named, is kept up at great expense merely as a cloak. It may be that the evidence would require a finding that with respect to a few names an improper use of Dun's book was made by an agent or correspondent of appellees. But the proportion is so insignificant compared with the injury from stopping appellees' use of their enormous volume of independently acquired information, that an injunction would be unconscionable. In such cases the copyright owner should be remitted to his remedy at law. Drone on Copyright, 413; Mead v. West Pub. Co., 80 Fed. Rep. 380."
We cannot, as we are asked to do by the appellants, reverse the findings of fact made by the Circuit Court and the Circuit Court of Appeals. Successively considering the same evidence, the two courts agree in the findings. In such a case in a suit *24 in equity the findings will not be disturbed by this court, unless they are shown to be clearly erroneous. Towson v. Moore, 173 U.S. 17; Brainard v. Buck, 184 U.S. 99; Shappirio v. Goldberg, 192 U.S. 232. An examination of the voluminous testimony shows that it tended to sustain the findings, and that, to say the least, there is no ground for saying that the conclusions drawn from the evidence were clearly erroneous.
Accepting as true the facts found, we think the discretion of the court was wisely exercised in refusing an injunction and remitting the appellants to a court of law to recover such damage as they might there prove that they had sustained. The reasons for this conclusion are tersely stated in the opinion of the Court of Appeals, which we have quoted, and we approve them.
Judgment affirmed.
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United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
No. 05-6007WM
In re: *
*
Frank Lamont Swain and *
Esther Marie Swain, *
*
Debtors. *
*
Frank Lamont Swain and * Appeal from the United States
Esther Marie Swain, * Bankruptcy Court for the
* Western District of Missouri
Plaintiffs - Appellants, *
*
v. *
*
Dredging, Inc., d/b/a Scott’s Concrete *
and Jane Ellen Martin, *
*
Defendants - Appellees. *
Submitted: June 1, 2005
Filed: June 13, 2005
Before KRESSEL, Chief Judge, SCHERMER and DREHER, Bankruptcy Judges
SCHERMER, Bankruptcy Judge
Plaintiffs Frank Lamont Swain and Esther Marie Swain (“Plaintiffs”) appeal
the bankruptcy court’s1 denial of summary judgment in favor of the Plaintiffs and
entry of summary judgment in favor of Defendants Dredging, Inc., d/b/a/ Scott’s
Concrete (“Scott’s Concrete”) and Jane Ellen Martin (collectively “Defendants”) on
the Plaintiffs’ complaint for damages arising out of the Defendants’ alleged violation
of the discharge injunction of 11 U.S.C. § 524. We have jurisdiction over this appeal
from the final order of the bankruptcy court. See 28 U.S.C. § 158(b). For the reasons
set forth below, we affirm.
ISSUE
The issue on appeal is whether the Defendants’ actions in connection with a
certain insufficient funds check issued by one of the Plaintiffs pre-petition constituted
a violation of the discharge injunction of 11 U.S.C. § 524.2 Faced with cross-motions
for summary judgment, the bankruptcy court granted summary judgment in favor of
the Defendants and against the Plaintiffs, concluding that the Defendants’ actions did
not violate the discharge injunction. We agree that the Defendants did not violate the
discharge injunction and that entry of summary judgment in their favor and denial of
summary judgment in favor of the Plaintiffs was appropriate.
1
The Honorable Arthur B. Federman, United States Bankruptcy Judge for
the Western District of Missouri.
2
The Plaintiffs also argue in their brief, although not alleged in their
complaint, that the Defendants actions violated the automatic stay of 11 U.S.C.
§ 362. At oral argument, counsel clarified that the Plaintiffs have abandoned this
argument and therefore we need not address it. Nonetheless, the analysis and
result would be the same under Section 362 of the Bankruptcy Code as it is under
Section 524.
2
BACKGROUND
On February 15, 2000, Mrs. Swain delivered to Scott’s Concrete a check in the
amount of $17,261.52. The check was returned marked “insufficient funds” on
February 17, 2000. Shortly thereafter, Defendant Martin, the President of Scott’s
Concrete, contacted James Icenogle, the Camden County Prosecuting Attorney, and
completed a referral form for bad checks provided by his office. On March 19, 2000,
the Prosecuting Attorney’s Office sent a letter to Mrs. Swain notifying her that the
check had been returned marked insufficient funds and advising her that restitution
must be made through the Prosecuting Attorney’s Office in the amount of the check
plus a $10 merchant fee and a $25 statutory penalty. On May 30, 2000, Mrs. Swain
delivered funds to the Prosecuting Attorney sufficient to cover the bad check and the
merchant fee. The Prosecuting Attorney forwarded the funds to the Defendants.
On June 28, 2000, the Plaintiffs filed a petition for relief under Chapter 13 of
the Bankruptcy Code. On May 8, 2001, the Chapter 13 Trustee filed a motion to
convert the Plaintiffs’ Chapter 13 case. The case was converted to Chapter 7 on
November 6, 2001. On February 20, 2002, the Plaintiffs received a discharge under
Chapter 7 of the Bankruptcy Code.
On March 6, 2002, the Chapter 7 Trustee filed a complaint pursuant to
11 U.S.C. § 547 against Scott’s Concrete seeking to avoid the May 30, 2000, payment
from Mrs. Swain to Scott’s Concrete via the Prosecuting Attorney’s Office as a
preferential transfer. On June 3, 2002, the Chapter 7 Trustee and Scott’s Concrete
entered into a settlement wherein Scott’s Concrete agreed to pay the Chapter 7
Trustee $11,500.
Some time prior to March 6, 2002, the date the preference action was filed,
Defendant Martin provided to the Prosecuting Attorney’s office a copy of the motion
to convert the Plaintiffs’ bankruptcy case from Chapter 13 to Chapter 7. Neither
3
Defendant Martin nor anyone else at Scott’s Concrete had any further communication
with the Prosecuting Attorney’s Office regarding this matter.
On August 12, 2002, after the settlement of the preference action, the
Prosecuting Attorney’s Office sent another bad check letter to Mrs. Swain. The
Plaintiffs’ bankruptcy counsel and the Chapter 7 Trustee each sent letters to the
Prosecuting Attorney in response to the August 2002 bad check notice. The Office
of the Prosecuting Attorney filed an affidavit of probable cause with the Circuit Court
of Camden County in connection with the bad check. A warrant was issued and
Mrs. Swain was arrested on February 29, 2004. The Prosecuting Attorney eventually
dismissed the criminal charges against Mrs. Swain.
On August 17, 2004, the Plaintiffs filed a complaint against the Defendants
seeking compensatory and punitive damages for the Defendants’ alleged violation of
the Plaintiffs’ discharge injunction issued pursuant to 11 U.S.C. § 524. The parties
filed cross-motions for summary judgment. The bankruptcy court concluded that the
Defendants did not violate the discharge injunction and granted summary judgment
in favor of the Defendants and against the Plaintiffs. The Plaintiffs appeal the
summary judgment.
STANDARD OF REVIEW
The facts are not in dispute. We review the bankruptcy court’s entry of
summary judgment de novo. Pedroza v. Cintas Corp. No. 2, 397 F.3d 1063, 1068 (8th
Cir. 2005); Ahlborn v. Arkansas Department of Human Services, 397 F.3d 620, 622
(8th Cir. 2005); Ferris, Baker Watts, Inc. v. Stephenson (In re MJK Clearing, Inc.),
371 F.3d 397 (8th Cir. 2004). A grant of summary judgment will be affirmed if there
is no genuine issue of material fact and the moving party is entitled to judgment as
a matter of law. Ahlborn, 397 F.3d at 622-23.
4
DISCUSSION
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with 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. Fed. R. Civ. P. 56, applicable herein pursuant to
Fed. R. Bankr. P. 7056; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All facts
must be viewed and reasonable inferences drawn in favor of the non-moving party.
Brosseau v. Haugen, ___ U.S. ___, 125 S.Ct. 596, 597 n.2 (2004); Hope v. Pelzer,
536 U.S. 730, 734 n.1 (2002); Saucier v. Katz, 533 U.S. 194, 201 (2001). In this
instance, where summary judgment was ultimately entered in favor of the Defendants,
we view all facts and draw all reasonable inferences in favor of the Plaintiffs.
Pursuant to Section 524 of the Bankruptcy Code, a bankruptcy discharge
operates as an injunction against the commencement or continuation of an action, the
employment of process, or an act to collect, recover or offset any debt as a personal
liability of the debtor. 11 U.S.C. § 524(a)(2). The Plaintiffs argue that the
Defendants violated the discharge injunction by causing the Prosecuting Attorney to
prosecute Mrs. Swain for the pre-petition check. The Plaintiffs are simply wrong.
The only acts taken by the Defendants were filling out the bad check referral form
pre-petition and delivering a copy of the motion to convert the Plaintiffs’ bankruptcy
case to the Prosecuting Attorney’s Office post-petition. The exact date Ms. Martin
delivered a copy of the bankruptcy pleading to the Prosecuting Attorney’s Office is
unclear. The delivery occurred prior to the filing of the preference action – some time
prior to March 6, 2002. The Plaintiffs’ discharge was entered on February 20, 2002.
Therefore, it is possible that the delivery of the pleading occurred after the discharge
injunction was in place. Viewing the facts in the light most favorable to the
Plaintiffs, we will assume Defendant Martin delivered the bankruptcy pleading to the
Prosecuting Attorney’s Office after the discharge injunction was in effect.
5
Nonetheless, we do not believe this act constituted a violation of the discharge
injunction.
The Defendants’ delivery of a copy of a pleading from a public record to the
Prosecuting Attorney does not constitute an act to collect a debt. In the first place,
no debt existed between May 30, 2000, the date of the restitution payment, and
March 6, 2002, the last date on which the delivery could have occurred. Scott’s
Concrete had been made whole by the pre-petition restitution payment. No debt
existed until after the preference action was settled. Therefore, the Defendants could
not have been acting to collect a debt. Furthermore, even if a debt had existed at the
time, the delivery to a prosecutor of a copy of a public document – a pleading filed
in the record of a bankruptcy case – does not constitute an act to collect a debt.
The Plaintiffs argue that the Defendants forwarded the conversion motion to
the Prosecuting Attorney in anticipation of a preference action and the likelihood of
having to return the payment to the bankruptcy estate. According to the Plaintiffs, the
only possible purpose for contacting the Prosecuting Attorney was to gain assistance
in collecting a debt, albeit an anticipated debt at the time of the contact. The record
lacks one scintilla of evidence to support this theory. While we are obligated to view
the facts in the Plaintiffs’ favor and to draw all reasonable inferences in their favor,
we cannot infer something which completely lacks evidentiary support. Such an
inference would not be reasonable.
The Plaintiffs attempt to attribute the subsequent criminal prosecution to the
Defendants. This argument must fail. The only way the Plaintiffs could be held
accountable for the actions of the Prosecuting Attorney is if the Prosecuting Attorney
was acting as their agent for the purposes of attempting to collect a debt. To establish
an agency relationship between the Defendants and the Prosecuting Attorney, the
Plaintiffs must establish three elements: (1) the Prosecuting Attorney held the power
to alter legal relations between the Defendants and the Plaintiffs; (2) the Prosecuting
6
Attorney was a fiduciary for the Defendants within the scope of the agency; and
(3) the Defendants had the right to control the conduct of the Prosecuting Attorney
with respect to the matters entrusted to the Prosecuting Attorney. State ex rel. Ford
Motor Co. v. Bacon, 63 S.W.3d 641, 642 (Mo. 2002)(en banc). The absence of any
one of these elements defeats the purported agency relationship. Id. The touchstone
of agency is the right of the principal to control the conduct of the agent. Bost v.
Clark, 116 S.W. 3d 667, 676 (Mo. Ct. App. 2003). That factor is lacking in this
situation.
A prosecuting attorney has broad discretion in deciding whether to prosecute
a criminal case. State v. Honeycutt, 96 S.W.3d 85, 89 (Mo. 2003)(en banc); State v.
Gardner, 8 S.W.3d 66, 70 (Mo. 1999)(en banc). A prosecuting attorney is retained
by the state for prosecution of persons accused of crimes. Jenkins & Kling, L.C. v.
Mo. Ethics Commission, 945 S.W.2d 56, 59 (Mo. Ct. App. 1997). A prosecuting
attorney acts on behalf of the citizens of the state and not on behalf of the victims or
complaining witnesses. Weston v. State, 2 S.W.3d 111, 115 (Mo. Ct. App. 1999).
The Prosecuting Attorney was thus not acting on behalf of nor subject to the control
of the Defendants and therefore could not have been their agent as a matter of law.
Consequently, the only act by the Defendants which arguably occurred after entry of
the discharge injunction was the delivery of the motion to convert to the Prosecuting
Attorney. We have already established that such act did not violate the discharge
injunction. In light of the foregoing, the bankruptcy court did not err in granting
summary judgment in favor of the Defendants and against the Plaintiffs and such
judgment must be affirmed.
CONCLUSION
The Defendants did not violate the discharge injunction of 11 U.S.C. § 524 by
delivering a copy of a pleading in the Plaintiffs’ bankruptcy case to the Prosecuting
Attorney. Furthermore, any actions taken by the Prosecuting Attorney in prosecuting
7
Mrs. Swain for the delivery of a bad check are not attributable to the Defendants and
therefore likewise did not constitute a violation by the Defendants of the Plaintiffs’
discharge injunction. Accordingly we AFFIRM the entry of summary judgment in
favor of the Defendants and against the Plaintiffs.
8
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310 Md. 302 (1987)
529 A.2d 352
EDWARD ARTHUR POWELL, SR. ET AL.
v.
HERBERT A. GUTIERREZ ET AL.
No. 40, September Term, 1986.
Court of Appeals of Maryland.
August 5, 1987.
Michael Marshall (Sidney Schlachman, Schlachman, Potler, Belsky & Weiner, P.A., and Steven A. Charles, on the brief), Baltimore, for appellants.
Paul M. Bowman, Chestertown, for appellees.
Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH[*] and McAULIFFE, JJ., and MARVIN H. SMITH, Associate Judge of the Court of Appeals of Maryland (retired), specially assigned.
COLE, Judge.
We are asked today to decide what standard a trial judge should use when ruling on a motion to defer dismissal for lack of prosecution under Maryland Rule 2-507(e).
The relevant facts can be quickly recounted. On May 11, 1983, Edward Powell[1] filed a negligence action in the Circuit Court for Queen Anne's County against Herbert Gutierrez and Gutierrez's employer. On July 8, 1983, Gutierrez filed a counterclaim against Powell, and on March 8, 1984, Gutierrez served Powell with interrogatories. The docket record for the case then remained silent from March 8, 1984 to March 27, 1985. On the latter date, the parties were notified by the circuit court that the case would be dismissed unless a motion showing good cause to defer an entry of dismissal was filed.
Powell promptly filed a motion to defer dismissal and informed the court that he was in the process of answering Gutierrez's interrogatories and was ready to pursue his claim diligently. The circuit court denied Powell's motion, finding that he had "failed to show any cause for deferral of dismissal." Powell then filed an amended motion to defer dismissal. Powell's second motion informed the court that his inactivity had been caused by his involvement in an appeal of a Workmen's Compensation Commission decision relating to the injury suffered in the accident upon which the instant suit was being brought. In addition, the amended motion explained that Powell's first attorney had left the law firm; the attorney who had taken over his files had then disassociated himself from the firm; and the latest attorney in the firm to represent Powell had only recently assumed responsibility for the case. The amended complaint also reiterated that Powell was preparing answers to Gutierrez's interrogatories and was anxious to proceed with the case. The circuit court "read and considered" Powell's second motion and held that the motion failed to "set forth `good cause' within the meaning of Rule 2-507(e) to warrant opening or amending the judgment of dismissal."
Powell appealed, and the Court of Special Appeals, in an unreported per curiam opinion, affirmed the circuit court ruling. Powell v. Gutierrez, No. 757, Sept. Term, 1985, filed Feb. 19, 1986. We granted Powell's petition for certiorari.
Before us, Powell argues that the good cause standard found in Maryland Rule 2-507(e) is too vague to provide guidance to practitioners or to afford effective appellate review. He urges us to adopt the standard enunciated by the Fourth Circuit[2] in its interpretation of Rule 41(b) of the Federal Rules of Civil Procedure. Gutierrez, on the other hand, implores us to apply the test we set forth in Stanford v. District Title Insurance Co., 260 Md. 550, 273 A.2d 190 (1971). We shall do neither.
Present Rule 2-507 (the progeny of old Rule 530) provides in pertinent part as follows:
(c) For Lack of Prosecution. An action is subject to dismissal for lack of prosecution at the expiration of one year from the last docket entry. .. .
(d) Notification of Contemplated Dismissal. When an action is subject to dismissal pursuant to this Rule, the clerk shall serve a notice on all parties .. . that an order of dismissal for lack of jurisdiction or prosecution will be entered after the expiration of 30 days unless a motion is filed under Section (e) of this Rule.
(e) Deferral of Dismissal. On motion filed at any time before 30 days after service of the notice, the court for good cause shown may defer entry of the order of dismissal for the period and on the terms it deems proper.
(f) Entry of Dismissal. If a motion has not been filed under section (e) of this Rule, the clerk shall enter on the docket "Dismissed for lack of jurisdiction or prosecution without prejudice" 30 days after service of the notice.
Federal Rule 41(b) states in pertinent part:
(b) Involuntary Dismissal. Effect thereof. For failure of the plaintiff to prosecute ..., a defendant may move for dismissal of an action or of any claim against him.... Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits.
As we see it, while the Federal Rule and the Maryland Rule are targeted at solving the same problem removing dead cases from the overcrowded dockets of busy trial courts there are three important differences between the rules. First, the Maryland Rule specifically provides the standard to be used by a judge in deciding whether to defer the dismissal of a case. The rule provides that a court may defer dismissal "for good cause shown." The Federal Rule, on the other hand, is silent as to what standard a judge should use when determining whether to grant a motion to dismiss.
Second, the Maryland Rule specifically sets forth the time period that activates a notice of contemplated dismissal for lack of prosecution. That period is "one year from the last docket entry." Again, the Federal Rule is silent, and a case may be dismissed after any period of time.
Third, under the Maryland Rule, a case is dismissed without prejudice. A dismissal under the Federal Rule, however, is with prejudice and thus acts as an adjudication on the merits. Consequently, the plaintiff is forever barred from bringing his suit again. These three differences prompt us to reject the federal courts' interpretations of the Federal Rule as a solution to the Maryland problem.
Gutierrez would have us literally apply the lack of diligence standard enunciated in Stanford and approved in cases that have followed. See, e.g., Langrall, Muir & Noppinger v. Gladding, 282 Md. 397, 384 A.2d 737 (1978); Cooney v. Board of County Comm'rs, 21 Md. App. 57, 318 A.2d 231 (1974). In Stanford, we were called upon to determine if an action should be dismissed under old Maryland Rule 530. We stated that when a trial judge determines whether to defer dismissal, "the primary focus of his inquiry should be on [the plaintiff's] diligence and whether there has been a sufficient amount of it during ... [the] period of inaction for the court to affirmatively conclude that the case should not be automatically dismissed." Id. [260 Md.] at 555, 273 A.2d at 192-93 (emphasis added). The effect of applying Rule 2-507 under this diligence standard is to dismiss a case because of inordinate delays irrespective of the case's vitality. As we see it, this defeats the Rule's basic purpose of removing dead cases from the docket. Therefore, despite any indications in Stanford and its progeny to the contrary, docket inactivity in a case for twelve months is not an absolute indicium of a loss of litigious vitality.
Rule 2-507 should be applied to further its underlying purpose, which we set out in Mutual Benefit Soc'y v. Haywood, 257 Md. 538, 539, 263 A.2d 868, 869 (1970):
By creating a statewide dismissal rule (Maryland 530) we were confident that we could at least focus on the dead case, the case left unprosecuted for years at a time, whose mere presence in the mainstream of pending cases created such a paper logjam that our courts were unable to give due attention to cases that still exhibited the vital signs of life.
Neither Rule 530 nor Rule 2-507 was promulgated to penalize plaintiffs for having lax attorneys. Their primary focus was on pruning the docket of dead cases. A dead case is one in which neither party demonstrates an interest in having the issue resolved. This circumstance occurs for varying reasons, i.e., the parties may leave the jurisdiction, they may settle their dispute, or other circumstances may make the issue no longer viable. In any event, parties often neglect to dismiss their suits when their reasons for further prosecution have dissipated. These are the kind of cases that Rule 2-507 was devised to eliminate under a simple procedure.
Under subsection (a) of the Rule, the passage of twelve months of inaction on a case's docket record provides a signal to the court clerk that a case may be deadwood and ready for dismissal. At this point, subsection (d) of the Rule requires the court clerk to notify all of the parties that the action will be dismissed unless a motion showing good cause to defer dismissal is filed. If no motion is filed, the case should be automatically dismissed and removed from the active docket. If a motion to defer dismissal is filed, the court must determine if "good cause" to defer dismissal has been shown.
To show "good cause," the party filing the motion to defer dismissal must demonstrate to the court that he is ready, willing, and able to proceed with the prosecution of his claim and that the delay in prosecution is not wholly without justification. If the party makes this showing, the court should regard the case as viable and defer dismissal. This deferral, however, should be subject to a schedule for prosecution and should be made on such terms as the court determines are appropriate under the circumstances.
Thus, it is clear that the fact of a lack of prosecution for one year would not amount to automatic dismissal. However, if the defendant has suffered serious prejudice because of the delay, so as to impede substantially his ability to defend the suit, the trial court must balance the plaintiff's right to maintain his suit against the prejudice to the defendant. This matter we leave to the sound discretion of the trial court.
Lest it be forgotten, the defendant as well as the plaintiff has a responsibility to promote the orderly resolution of litigation. This Court will not countenance defendants who sit back and allow the prescribed period under the Rule to pass in the hope that the court will dismiss the case irrespective of the vitality of the litigation. The defendant must prod the plaintiff to answer interrogatories, respond to motions, etc. Litigation is not a game. The courts presume that the parties have instituted litigation based on serious and meaningful issues. Both sides have a responsibility to push for a prompt and satisfactory resolution of those issues. Consequently, in those circumstances where the defendant has averred that he has suffered prejudice because of the plaintiff's one year delay, the trial court must include as a consideration in its weighing process the efforts made by the defendant to secure a resolution of the case.
We turn now to determine if the case should have been dismissed. After Gutierrez filed his interrogatories on March 8, 1984, twelve months passed without an entry on the docket record. The court clerk then dutifully notified the parties that involuntary dismissal would occur in thirty days unless an appropriate motion to defer dismissal was filed. Roused by this notice, Powell promptly filed a motion to defer dismissal and averred that he was in the process of answering the interrogatories and was ready and eager to prosecute his action. Powell explained in his second motion to defer dismissal that his case had bounced from one attorney to a second attorney and finally to a third attorney in the same firm since the suit was filed. It is clear that Powell demonstrated the desire to continue his case, and his action therefore is not deadwood. Gutierrez has alleged no prejudice, and thus we need not engage in a balancing exercise.
In reaching our decision, we realize that judges and administrators are appropriately concerned with case flow and efficiency. Nevertheless, our concern with expeditious case management should not blind us to the true goal of our system, which is to provide a fair determination of legitimate issues brought before us. We therefore find that the trial judge abused his discretion in dismissing the case.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR QUEEN ANNE'S COUNTY AND CASE REMANDED TO THE CIRCUIT COURT TO REINSTATE THE CASE ON THAT COURT'S DOCKET FOR FURTHER PROCEEDINGS. APPELLEE TO PAY THE COSTS.
NOTES
[*] Couch, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he has also participated in the decision and adoption of this opinion.
[1] Powell's wife and his insurer were also named as plaintiffs in the action and are appellants in this appeal. Hereafter we shall use "Powell" when referring to all appellants.
[2] The Fourth Circuit has developed a test that requires the trial court to consider four factors before granting an involuntary dismissal: (1) the degree of personal responsibility of the plaintiff for the delay; (2) the amount of prejudice to the defendant caused by the delay; (3) the extent of intentional dilatory conduct that has occurred; and (4) the effectiveness of sanctions less severe than a dismissal with prejudice. See, e.g., Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978); McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir.1976); Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir.1974). Other federal courts, however, have eschewed a standard with specific factors and instead held that involuntary dismissal is only appropriate where there is deliberate or unreasonable delay by the plaintiff or prejudice to the defendant. See Titus v. Mercedes Benz of N. Am., 695 F.2d 746 (3d Cir.1982); Rogers v. Kroger Co., 669 F.2d 317 (5th Cir.1982); Holt v. Pitts, 619 F.2d 558 (6th Cir.1980); Davis v. Williams, supra; Navarro v. Chief of Police, 523 F.2d 214 (8th Cir.1975).
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780 F.2d 1032
Litvinev.Treetop Enterprises
85-7223
United States Court of Appeals,Eleventh Circuit.
12/19/85
1
N.D.Ala.
AFFIRMED
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579 So.2d 1325 (1991)
B.A.S.S. COAL, INC., and Roger Cupps
v.
BLACK WARRIOR MINERALS, INC.
89-1080.
Supreme Court of Alabama.
April 19, 1991.
Jack E. Held of Sirote & Permutt, Birmingham, for appellants.
Rodney A. Max and Allan L. Armstrong of Najjar Denaburg, Birmingham, for appellee.
ADAMS, Justice.
Roger Cupps and B.A.S.S. Coal, Inc., ("BASS") appeal from a judgment entered against them in favor of Black Warrior Minerals, Inc., ("Black Warrior") on claims of breach of contract, conversion, and fraud. We affirm.
This case arose out of the following facts:
On August 17, 1987, Black Warrior and BASS signed an agreement in which Black Warrior agreed to "reclaim" the site of a former strip-mine operation. The operation contemplated backfilling, regrading, and replanting the area. The agreement recited consideration in the amount of "ten dollars and other good and valuable consideration." It was signed by Roger Cupps, president and 50% shareholder of BASS. Black Warrior, after an unsuccessful attempt to hire a third party to reclaim the area, undertook the reclamation, using its own equipment. Black Warrior spent approximately $128,658 on the reclamation project.
On May 13, 1988, Black Warrior filed suit against BASS and Cupps. Count one of the complaint alleged that BASS breached its contract of August 17, 1987, to assign, as remuneration for Black Warrior's reclamation work, BASS's rights to a $46,000 performance bond that BASS had previously filed with the Alabama Surface Mining Commission to ensure the reclamation of the site of a former mining operation. Count two alleged conversion as a result of BASS's retention of $26,648 of that bond, which the Commission had already released to BASS. Count three alleged fraud in the inducement.
*1326 On March 2, 1990, a jury returned a verdict against BASS and Mr. Cupps on all three counts. The damages, assessed to each count on separate verdict forms, were broken down as follows:
Compensatory Punitive
Breach of Contract: $ 46,147
Conversion: 27,667 $13,711
Fraud: 27,422 13,711
________ _______
$101,236 $27,422
$128,658
========
The defendants' counsel made no objections to the court's jury instructions and filed no post-judgment motions. On April 12, 1990, the defendants, through new counsel, filed a notice of appeal. On appeal, the defendants argue two issues: First, they contend that the trial court erred in admitting into evidence an exhibit that they insist confused the jury, and second, they argue that the verdict, allegedly based on the improperly admitted exhibit, was illegal and excessive in that, they say, it made multiple awards of compensatory damages and awarded unwarranted punitive damages.
The Exhibit
BASS and Mr. Cupps contend that the trial court erred in allowing Black Warrior to introduce Exhibit 7, a sheet containing an itemization of Black Warrior's total reclamation cost, in the amount of $128,658. The defendants contend that because Black Warrior's breach of contract and fraud counts alleged only $46,000 in damages for failure to assign the performance bond, the exhibit was irrelevant, prejudicial, and confusing to the jury. BASS and Cupps bolster this contention by pointing out that the damages assessed, as distributed among the three counts, represented the exact amount that appeared on the exhibit. Black Warrior, however, contends that BASS and Mr. Cupps waived their right to assert the error in the admission of the exhibit that they now attempt to assert. Specifically, Black Warrior contends that, at trial, the defendants objected to the evidence on a specific ground other than that of relevancy the ground they argue on appeal. We agree.
The record reveals the following exchange regarding the admission of the exhibit:
"Q: I show you at this time what I have had marked as Plaintiff's Exhibit Seven and ask if you can identify this. It is an itemization of work, labor, materials, and equipment that went into that reclamation.
"A: That is it.
"Q: How much and you told us approximately but please tell me what the itemization comes to.
"A: $128,658.
"Q: So, it actually cost you some $128,000 to get this done?
"A: Yes.
"Q: And you got it done in about what ?
"A: Three weeks.
"....
"MR. SHERRER: [for the defense] Objection to Seven unless he can show whether it was leased equipment at the regular prices.
"MR. MAX: [for the plaintiff] This is the itemization.
"MR. SHERRER: Whether it was his equipment or where he would show that was rental value at the time. I object to that, Judge.
"....
"THE COURT: I think the objection is as to whether that the objection is over the value of the equipment used.
"MR. SHERRER: Right. Whether it is reasonable for services at the time, or are they self-serving documents?
*1327 "THE COURT: Could that be specified, Mr. Max?
"Q: Could you just explain how you came up with this?
"A: Those are my cost figures.
"Q: Your cost figures?
"A: Used every day in our mines fuel, operation of machinery time.
"THE COURT: Mr. Perry, this was based on use of your own equipment and the value you attached to it rather than outside leased equipment?
"A: Yes. I think you will find it quite a bit cheaper than what you can get it [for] on the open market.
"MR. SHERRER: We object to it not being based on the value of the open market, but what he places on his own equipment.
"MR. MAX: Judge, let me respond this way. If they wish to show market value, that's fine, but this is the value
"THE COURT: I believe that would go to weight rather than admissibility, and it would be admitted into evidence over objection at this time."
(Emphasis added).
"The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial." Ex parte Frith, 526 So.2d 880, 882 (Ala. 1987); see also State v. Holloway, 293 Ala. 543, 307 So.2d 13 (1975); Scarbrough v. State, 528 So.2d 890 (Ala.Crim.App.1988). In other words, "if only a specific objection is made and overruled, the appellate court will not consider any other grounds of objection." C. Gamble, McElroy's Alabama Evidence, § 426.01(11) (3d ed. 1977).
In this case, BASS and Mr. Cupps objected to the admission of the exhibit on the ground that the proponent had failed to establish the basis on which the figures were based and, therefore, the legitimacy of the total amount claimed by Black Warrior for its reclamation work. That ground was the one understood by the trial judge, as indicated by his remarks. Therefore, the defendants may not now contend that the trial judge erred on the ground that the exhibit bore no relevancy to the right of Black Warrior to BASS's performance bond as alleged in the complaint.
Damages
BASS and Mr. Cupps insist that the verdict of $101,236 for compensatory damages and $27,422 in punitive damages was excessive in view of the fact that the complaint sought compensatory damages in the amount of only $46,000, the value of the performance bond. They argue that the jury improperly apportioned the damages among the breach of contract, fraud, and conversion counts in order to reach a figure comprising the full cost of Black Warrior's reclamation operation an amount that Black Warrior had not sought in its complaint.
BASS and Mr. Cupps concede that in the absence of a motion for a new trial, this Court may not review a claim that the verdict was excessive. See Fallaw v. Flowers, 274 Ala. 151, 146 So.2d 306 (1962); State v. Ferguson, 269 Ala. 44, 110 So.2d 280 (1959); Humphrey v. Boschung, 47 Ala.App. 310, 253 So.2d 760 (Ala.Civ.App. 1970), aff'd, 287 Ala. 600, 253 So.2d 769 (1971). They contend, nevertheless, that "there is not a scintilla of evidence to justify the amount" of damages awarded in this case. This argument, which, in effect, merely offers us a "back door" through which to review the excessiveness of the verdict, invites us to review the sufficiency of the evidence as though the trial court had denied a motion for judgment notwithstanding the verdict.[1]Black Belt Wood Co. v. Sessions, 514 So.2d 1249, 1251 (Ala. 1986). We can not do this, because no such motion was filed with the trial court. See Ala.R.Civ.P. 50(b); Great Atlantic & Pacific Tea Co. v. Sealy, 374 So.2d 877 (Ala. 1979); see also University Computing Co. *1328 v. Lykes-Youngstown Corp., 504 F.2d 518 (5th Cir.1974); Porter v. Eckert, 465 F.2d 1307 (5th Cir.1972).
Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979), is not contrary to this holding and affords the defendants no support. There, as here, we declined the appellant's invitation to review the excessiveness of the verdict and reversed the judgment in that case solely on the issue of erroneous jury instructions instructions to which the appellant had properly objected. Because the defendants in this case failed to object to the court's jury instructions, we are not here presented with similar grounds upon which to examine the verdict.
The peculiar procedural posture of this case precludes appellate review of the excessiveness of the verdict or of the sufficiency of the evidence and requires us to affirm the judgment of the trial court. As to the possibility of post-judgment relief under Ala.R.Civ.P. 60(b), we offer no opinion, but for the foregoing reasons, the judgment is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur.
NOTES
[1] Although the appellants, in their reply brief, state that they "do not ask this Court in the first instance to review the excessiveness of the jury verdict or to weigh the sufficiency of the evidence," the thrust of their arguments is clearly otherwise. Indeed, the brief of appellants is rife with statements both expressly challenging the sufficiency of the evidence (pp. 16, 18, 20, 23, 24, 25, 26, 27, 28) and alleging excessiveness of the verdict (pp. 24, 29).
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518 F.3d 159 (2008)
ITC LIMITED and ITC Hotels Limited, Plaintiffs-Counter-Defendants-Appellants,
v.
PUNCHGINI, INC., Raja Jhanjee, Paragnesh Desai, Vicky Vij, Dhandu Ram, Mahendra Singh, Bachan Rawat, Bukhara Grill II, Inc., Defendants-Counter-Claimants-Appellees.
Docket No. 05-0933-cv.
United States Court of Appeals, Second Circuit.
Argued: November 18, 2005.
Decided: February 26, 2008.
*160 Ethan Horwitz (Jill Wasserman, on the brief), King and Spalding, New York, NY, for Plaintiffs.
Michelle Mancino Marsh (Michael J. Freno, on the brief), Kenyon & Kenyon, New York, NY, for Defendants.
Before: STRAUB and RAGGI, Circuit Judges.[1]
REENA RAGGI, Circuit Judge:
Plaintiffs ITC Limited and ITC Hotels Limited (collectively "ITC") sued defendants, Punchgini Inc., Bukhara Grill II, Inc., and certain named individuals associated with these businesses, in the United States District Court for the Southern District of New York (Gerard E. Lynch, Judge), alleging various federal and state law claims of trademark infringement and unfair competition in connection with a restaurant trademark, "Bukhara," as well as related trade dress that plaintiffs had not used in the United States for more than three years. On this appeal, plaintiffs challenge an award of summary judgment in favor of defendants. See ITC Ltd. v. Punchgini, Inc., 373 F.Supp.2d 275 (S.D.N.Y.2005). We assume a reader's familiarity with the underlying facts and procedural history in this case, which are detailed in our earlier decision, ITC Ltd. v. Punchgini, Inc., 482 F.3d 135 (2d Cir. 2007).
In that decision, this court affirmed the grant of summary judgment on ITC's trademark infringement claims under section 32(1)(a) of the Lanham Act and New York common law, concluding that ITC had abandoned its Bukhara mark for restaurant services in the United States. See ITC Ltd. v. Punchgini, Inc., 482 F.3d at 142. We further affirmed summary judgment on ITC's federal unfair competition claim because it depended on the "famous marks" doctrine, which Congress has not yet incorporated into federal trademark law. See id. at 172. At the same time, however, we recognized the possibility that the famous marks doctrine might support a New York common law claim for unfair competition. Accordingly, we certified two questions to the New York Court of Appeals: (1) "Does New York common law permit the owner of a federal mark or trade dress to assert property rights therein by virtue of the owner's prior use of the mark or dress in a foreign country?"; and (2) "If so, how famous must a foreign mark be to permit a foreign mark owner to bring a claim for unfair competition?" Id. Having received the Court of Appeals' response, ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 850 N.Y.S.2d 366, 880 N.E.2d 852 (N.Y.2007), we now affirm the district court's award of summary judgment in its entirety.
I. The New York Court of Appeals' Answers to the Certified Questions
To explain our decision, we first summarize the Court of Appeals' answers to our certified questions. The Court of Appeals responded to our first question in the affirmative, see ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d at 479, 850 N.Y.S.2d at 374, 880 N.E.2d at 860, but, in doing so, specifically stated that it did not recognize the famous marks doctrine as an independent theory of liability under state law. Rather, the court explained that its affirmative response was intended only to reaffirm established state law prohibiting unfair competition, specifically, the principle that *161 "when a business, through renown in New York, possesses goodwill constituting property or commercial advantage in this state, that goodwill is protected from misappropriation under New York unfair competition law. This is so whether the business is domestic or foreign." Id. 9 N.Y.3d at 479, 850 N.Y.S.2d at 373, 880 N.E.2d at 859.
In response to our second question, the Court of Appeals wrote as follows:
Protection from misappropriation of a famous foreign mark presupposes the existence of actual goodwill in New York. If a foreign plaintiff has no goodwill in this state to appropriate, there can be no viable claim for unfair competition under a theory of misappropriation. At the very least, a plaintiff's mark, when used in New York, must call to mind its goodwill. . . . Thus, at a minimum, consumers of the good or service provided under a certain mark by a defendant in New York must primarily associate the mark with the foreign plaintiff.
Id. 9 N.Y.3d at 479, 850 N.Y.S.2d at 374, 880 N.E.2d at 860 (citations omitted). Although the court cautioned that the relevant inquiry would necessarily vary with the facts of each case, it identified the following factors as potentially relevant: (1) evidence that "the defendant intentionally associated goods with those of the foreign plaintiff in the minds of the public, such as public statements or advertising stating or implying a connection with the foreign plaintiff"; (2) "direct evidence, such as consumer surveys, indicating that consumers of defendant's goods or services believe them to be associated with the plaintiff"; and (3) "evidence of actual overlap between customers of the New York defendant and the foreign plaintiff." Id. 9 N.Y.3d at 480, 850 N.Y.S.2d at 374, 880 N.E.2d at 860.
The Court of Appeals concluded its response to our certified inquiry by observing that,
to prevail against defendants on an unfair competition theory, under New York law, ITC would have to show first, as an independent prerequisite, that defendants appropriated (i.e., deliberately copied), ITC's Bukhara mark or dress for their New York restaurants. If they make that showing, [ITC] would then have to establish that the relevant consumer market for New York's Bukhara restaurant primarily associates the Bukhara mark or dress with those Bukhara restaurants owned and operated by ITC.
Id. 9 N.Y.3d at 480, 850 N.Y.S.2d at 374, 880 N.E.2d at 860. In short, to pursue an unfair competition claim, ITC must adduce proof of both deliberate copying and "secondary meaning." See ITC Ltd. v. Punchgini, Inc., 482 F.3d at 167 (observing that "`[s]econdary meaning' is a term of art referencing a trademark's ability to `identify the source of the product rather than the product itself'") (quoting Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 766 n. 4, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992)).
II. ITC's Failure to Raise a Genuine Issue of Material Fact as to Secondary Meaning
Reviewing the challenged summary judgment award on ITC's state law claim of unfair competition in light of this response, we easily conclude, as the district court did, see ITC Ltd. v. Punchgini, Inc., 373 F.Supp.2d at 290, that ITC adduced sufficient evidence of deliberate copying to satisfy that element of this claim. Thus, we focus in this opinion on the sufficiency of defendants' showing of secondary meaning.
The district court concluded that ITC "failed even to establish a triable issue as *162 to the existence of `secondary meaning' in the New York market in which defendants operate." Id. at 288. In challenging this conclusion, ITC has abandoned its original appellate argument that no proof of secondary meaning is required when a New York unfair competition claim is based on intentional copying. Recognizing that the New York Court of Appeals' opinion ruled otherwise, ITC now contends that the district court erred in concluding that it could not establish secondary meaning. Specifically, ITC faults the district court for applying a different and stricter standard to its secondary meaning analysis than the New York Court of Appeals has now identified. ITC submits that, if it had had the benefit of the Court of Appeals decision, it would have submitted additional and certainly sufficient evidence to withstand summary judgment. The argument, which is conclusory rather than specific, is unconvincing both on the facts and the law.
First, assuming arguendo that the district court did apply a stricter standard of secondary meaning than required by New York law, that hardly explains ITC's decision to withhold evidence supportive of secondary meaning, particularly because any evidence of secondary meaning would also have been material to plaintiffs' theory of famous marks protection under federal and state law. Second, and perhaps more important, the record demonstrates that the district court did not, in fact, hold ITC to an unduly strict standard of secondary meaning. To the contrary, it considered whether there was sufficient evidence to demonstrate secondary meaning however that term was construed. Toward this end, the district court reviewed the record evidence in light of the six factors classically recognized as relevant to secondary meaning: "(1) advertising expenditures, (2) consumer studies linking the mark to a source, (3) unsolicited media coverage of the product, (4) sales success, (5) attempts to plagiarize the mark, and (6) length and exclusivity of the mark's use." Id. (quoting Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 143 (2d Cir. 1997)). We discern no material difference between the standard established by these factors and those enumerated by the New York Court of Appeals and quoted earlier in this opinion.
ITC argues that the district court nevertheless erred in requiring secondary meaning in "the New York market," id., whereas the New York Court of Appeals focused more narrowly on defendants' customers in New York, see ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d at 480, 850 N.Y.S.2d at 374, 880 N.E.2d at 860. In fact, it is evident from a review of both decisions that the two courts were referring to the same market, i.e., potential customers for defendants' New York restaurant. We do not understand the Court of Appeals to have limited the relevant market to persons who had already eaten in defendants' restaurants, nor do we understand the district court to have expanded the relevant market to every New Yorker, whether or not inclined to eat in restaurants generally or Indian restaurants in particular. See, e.g., ITC Ltd. v. Punchgini, Inc., 373 F.Supp.2d at 286 (describing relevant market examined in Vaudable v. Montmartre, Inc., 20 Misc.2d 757, 193 N.Y.S.2d 332, 334-35 (N.Y.Sup.Ct.1959), as "the class of people residing in the cosmopolitan city of New York who dine out"); id. at 287-88 (describing test in Grupo Gigante S.A. de C.V. v. Dallo & Co., 391 F.3d 1088, 1097-98 (9th Cir.2004), as "whether customers of the American firm are likely to think they are patronizing the same firm that uses the mark in another country").
In any event, even if we were to conclude that the district court somehow erred in its market definition, ITC has *163 failed to adduce evidence sufficient to create a genuine issue of material fact on the question of whether the Bukhara mark, when used in New York, calls to mind for defendants' potential customers ITC's goodwill, or that defendants' customers primarily associate the Bukhara mark with ITC. See ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d at 479, 850 N.Y.S.2d at 374, 880 N.E.2d at 860. Like the district court, we observe that ITC's proffered evidence of goodwill derived entirely from foreign media reports and sources and was unaccompanied by any evidence that would permit an inference that such reports or sources reach the relevant consumer market in New York. See ITC Ltd. v. Punchgini, Inc., 373 F.Supp.2d at 290. ITC proffered no evidence that it had "directly targeted advertising of its Indian or other foreign `Bukhara' restaurants to the United States." Id. at 288-89. It made no attempt to prove its goodwill in the relevant market through consumer study evidence linking the Bukhara mark to itself, and it presented no research reports demonstrating strong brand name recognition for the Bukhara mark anywhere in the United States. See id. at 289 & n. 15. Moreover, the record is devoid of any evidence of actual overlap between customers of defendants' restaurant and ITC's Bukhara, aside from ITC's own inadmissible speculation. Absent admissible evidence, however, a reasonable factfinder could not conclude that potential customers of defendants' restaurant would primarily associate the Bukhara mark with ITC, particularly in light of evidence that numerous Indian restaurants in Massachusetts, Washington, Virginia, and around the world have used the name "Bukhara," all without any affiliation or association with ITC.
ITC's belated efforts to identify admissible evidence of secondary meaning are unavailing. First, ITC points to record evidence that a significant number of defendants' customers are Indian or "well-traveled [people who] know what authentic Indian food tastes like." Appellants' Supp. Br. Jan. 7, 2008, at 7. Even if these facts support a reasonable inference that this consumer market is "more knowledgeable about India than the general New York population," id., ITC provides no evidence apart from its own conjecture to support the conclusion that, as a consequence, these persons "primarily associate" the name "Bukhara" with ITC. Conjecture, of course, is insufficient to withstand summary judgment. See, e.g., Bridgeway Corp. v. Citibank, 201 F.3d 134, 142 (2d Cir.2000). Second, ITC argues that the district court failed to consider evidence of "public statements or advertising stating or implying a connection with the foreign plaintiff." Appellants' Supp. Br. Jan. 7, 2008, at *7. We are not persuaded. The district court plainly considered this evidence and concluded that it supported ITC's claim of intentional copying. Moreover, the district court recognized that "there may be some circumstances in which intentional copying is sufficient to show `secondary meaning.'" ITC Ltd. v. Punchgini, Inc., 373 F.Supp.2d at 291. But it cogently explained why this was not such a case: "it would be tautological to conclude that copying alone demonstrates `secondary meaning' sufficient to permit an unfair competition claim as to a foreign mark here, where that copying is only prohibited by the `well known' or `famous' mark exception if the mark has `secondary meaning.'" Id. We adopt this reasoning as consistent with the New York Court of Appeals' conclusion that more than copying is necessary for a famous foreign mark holder to pursue a state law claim for unfair competition. That foreign holder must further offer evidence that the defendant's *164 potential customers "primarily associate[ ]" the mark with the foreign holder. ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d at 479, 850 N.Y.S.2d at 374, 880 N.E.2d at 860. ITC cannot satisfy this burden simply by pointing to evidence of obvious similarities between defendants' Bukhara Grill and ITC's own Bukhara restaurant, because such evidence is no proof that defendants' potential customers were even aware of the existence of ITC's Bukhara.
Finally, ITC faults the district court for ignoring evidence of the goodwill created by ITC's New York and Chicago restaurants during the years they operated. Even if we were to assume the possibility of a company maintaining goodwill for years after abandoning a trademark, ITC cannot point to any record support even from a single one of defendants' customers that the goodwill of ITC's New York and Chicago restaurants lingered so that defendants' potential customers "primarily associated" New York's Bukhara Grill with ITC establishments. Id.
III. Conclusion
For the reasons stated, we conclude that the record evidence is insufficient as a matter of law to raise a triable question of fact on the issue of secondary meaning necessary to establish a New York State claim for unfair competition in a foreign mark. Accordingly, we hold that the district court correctly granted summary judgment in favor of defendants on this claim, and we now conclude our consideration of this appeal by affirming the judgment of the district court in all respects.
AFFIRMED.
NOTES
[1] The Honorable James L. Oakes, who was a member of this panel, retired following oral argument. The remaining two panel members, who agree on the disposition, decide this appeal pursuant to Local Rule § 0.14(b).
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SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
847
CAF 14-02250
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
IN THE MATTER OF ASHLEY FINZER,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
GEORGE MANNING, III, RESPONDENT-APPELLANT.
PATRICIA M. MCGRATH, LOCKPORT, FOR RESPONDENT-APPELLANT.
Appeal from an order of the Family Court, Orleans County (James
P. Punch, J.), entered November 25, 2014 in a proceeding pursuant to
Family Court Act article 8. The order, among other things, placed
respondent on probation for one year.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent appeals from an order that, inter alia,
granted the family offense petition and imposed a one-year period of
probation and a two-year order of protection. Contrary to
respondent’s contention, Family Court did not abuse its discretion by
imposing a term of probation pursuant to Family Court Act § 841 (c)
(see generally Martin v Flynn, 133 AD3d 1369, 1370).
Contrary to respondent’s further contention, “[t]he record,
viewed in its totality, establishes that [respondent] received
meaningful representation” (Matter of Heffner v Jaskowiak, 132 AD3d
1418, 1418; see generally People v Benevento, 91 NY2d 708, 712).
Indeed, respondent’s contention that he did not receive effective
assistance of counsel “is impermissibly based on speculation, i.e.,
that favorable evidence could and should have been offered on his
behalf” (Matter of Devonte M.T. [Leroy T.], 79 AD3d 1818, 1819).
Entered: October 7, 2016 Frances E. Cafarell
Clerk of the Court
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197 Mich. App. 210 (1992)
494 N.W.2d 850
H J HEINZ COMPANY, INC
v.
DEPARTMENT OF TREASURY
Docket No. 126707.
Michigan Court of Appeals.
Decided December 7, 1992, at 9:15 A.M.
Howard & Howard (by Patrick R. Van Tiflin and Todd D. Chamberlain), for the plaintiff.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Russell E. Prins, Terry P. Gomoll, and Richard R. Roesch, Assistant Attorneys General, for the defendant.
Before: REILLY, P.J., and HOLBROOK, JR., and MARILYN KELLY, JJ.
MARILYN KELLY, J.
This case involves an interpretation of Michigan's Single Business Tax Act (SBTA) for the purpose of determining whether certain arrangements known as "repo" transactions are "sales" as defined under the act. MCL 208.1 et seq.; MSA 7.558(1) et seq. Plaintiff appeals as of right from an order of the Court of Claims which ruled that the transactions in question were not sales, thus denying plaintiff requested tax refunds. On appeal, plaintiff again argues that its repo transactions constituted sales under the act. We disagree and affirm.
I
Plaintiff is a Pennsylvania corporation doing business in over thirty-five states, including Michigan. It operates a pickle processing plant in Holland, Michigan. In 1988, after recharacterizing its repo transactions as sales, plaintiff filed amended single business tax returns seeking refunds for the tax years 1984 through 1987. The alleged sales arose from the "purchase" of securities, certificates of deposit and commercial paper through repurchase (repo) agreements.
*212 At the beginning of each business day, plaintiff's Cash Administrator, who worked in its Money and Banking Department, determined the cash needs of the company for that day. In the event of excess cash, the Cash Administrator contacted various financial institutions to determine which offered the highest yield. Then, the company's excess funds were wired to the institution offering the highest yield. The next day, the institution wired the funds back to plaintiff's account along with the previous day's earnings on them. The wireback was done automatically, without further contact from plaintiff. The securities, themselves, never changed hands.
II
The single business tax is a form of value-added tax which imposes a tax on the value added to a product at each step of its production and distribution. Trinova Corp v Treasury Dep't, 433 Mich 141, 149; 445 NW2d 428 (1989), aff'd 498 US ___; 111 S Ct 818; 112 L Ed 2d 884 (1991). When calculating tax liability under the SBTA, a taxpayer must apportion its tax base according to the amount of activity it conducts inside as contrasted with outside the state. MCL 208.41; MSA 7.558(41). The tax base is the taxpayer's business income before apportionment. MCL 208.9(1); MSA 7.558(9)(1). The tax base is apportioned to Michigan by multiplying the tax base by:
Michigan Property Michigan Payroll Michigan Sales
__________________ + _________________ + _______________
Total Property Total Payroll Total Sales
__________________________________________________________
3
MCL 208.45(1); MSA 7.558(45)(1). If the taxpayer's *213 total sales increase, and the other factors remain constant, the taxpayer will owe less in single business taxes. See MCL 208.46; MSA 7.558(46); MCL 208.49; MSA 7.558(49); MCL 208.51; MSA 7.558(51).
A "sale" under the SBTA is defined as
the gross receipts arising from a transaction or transactions in which gross receipts constitute consideration: (a) for the transfer of title to, or possession of, property that is stock in trade or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the tax period or property held by the taxpayer primarily for sale to customers in the ordinary course of its trade or business, or (b) for the performance of services, which constitute business activities other than those included in (a), or from any combination of (a) or (b). [MCL 208.7(1); MSA 7.558(7)(1).]
III
In this case, when plaintiff amended its single business tax returns, it increased its total sales by denominating its repo transactions as sales rather than as interest bearing investments. Plaintiff's amended returns increased the total sales factor by the entire amount of the repo transaction, which includes the return of capital and interest. These calculations resulted in a lower apportionment percentage attributable to Michigan.
The trial court ruled that the repo transactions did not involve stock in trade held by plaintiff primarily for sale to customers in the ordinary course of its business. In fact, the gain received from the transactions arose from plaintiff's attempts to avoid holding idle cash. The court recognized that plaintiff had created a profitable Department *214 of Money and Banking. However, the department was formed for astute business operation, not for the sale of securities.
On appeal, plaintiff argues that the transactions in question involved the use of stock in trade. It asserts that the repo transactions were not merely collateralized loans but sales. It points out that express contractual language in the repurchase agreements or confirmation letters clearly established that plaintiff owned the securities. They contained such indicia of ownership as being alienable and vesting title and the risk of loss in plaintiff.
IV
We recently ruled in a case factually similar that receipts from the redemption and sale of certificates of deposit and other securities do not constitute sales under the SBTA. USX Corp v Treasury Dep't, 187 Mich App 256; 466 NW2d 294 (1991). In USX, the plaintiff "purchased" investment securities including certificates of deposit, commercial paper, stocks and bonds. The securities were acquired from those who issued them, then redeemed or resold to banks or investors. Id., 258.
In USX, we indicated there was insufficient evidence to categorize these transactions as sales. The trial court found that the plaintiff was neither in the business of selling securities to third parties nor licensed or registered as a dealer in marketable securities. The plaintiff's major lines of business were other than the sale of securities. The only evidence presented showed that the plaintiff was purchasing and selling securities for its own account. Id.
Plaintiff in this case admits that the facts underlying USX and this case are similar. In both, the *215 alleged sales occurred soon after the alleged purchases. Plaintiffs' major lines of business were other than the sale of securities. Each created a department dealing only with the investment of excess cash. One distinction in this case is that the alleged sales frequently were evidenced by a repurchase agreement requiring the sellers to repurchase identical securities at a later specified date. In USX, the plaintiff had no such commitment.
Some of the repurchase agreements or confirmation letters stipulated as exhibits in this case identified the transactions in issue as purchases and sales. One confirmation letter stated that plaintiff had the same rights as the seller in the securities. However, we must consider the real nature of the transactions without regard to the terms applied to them by the parties. Central Discount Co v Revenue Dep't, 355 Mich 463, 467; 94 NW2d 805 (1959).
Unlike the plaintiff in USX, plaintiff in this case could not sell the securities to third parties. It could retrieve them and sell them on the market only if the financial institutions where it invested failed to reacquire the securities at maturity pursuant to the repurchase agreements. The financial institutions never failed to reacquire the securities.
We agree with those courts which classify repo transactions as collateralized loans rather than purchases and sales. See Hammond Lead Products, Inc v Indiana Tax Comm, 575 NE2d 998 (Ind, 1991); Massman Construction Co v Director of Revenue, State of Missouri, 765 SW2d 592 (Mo, 1989). We disagree with plaintiff that Matz should control our decision. Matz v Treasury Dep't, 155 Mich App 778; 401 NW2d 62 (1986). Matz is clearly distinguishable from this case; it did not involve the short term investment of excess daily *216 cash. Matz stands for the proposition merely that income from government securities flows through mutual funds to the original investors. Id.
Our classification of plaintiff's repo transactions as collateralized loans not sales is consistent with our ruling in USX. We find no reason to treat the transactions in this case differently from those in USX. Therefore, we conclude that the trial court did not err in ruling that plaintiff's repo transactions did not fall within the definition of sales under the SBTA.
Affirmed.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Bumgardner
STEVEN B. CROUCH
MEMORANDUM OPINION *
v. Record No. 0603-11-2 PER CURIAM
AUGUST 2, 2011
BATTLEFIELD FARMS, INC. AND
NORTHERN INSURANCE COMPANY OF NEW YORK
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Robert Dwoskin, on brief), for appellant.
(Frederick T. Schubert, II; Angela F. Gibbs; Midkiff, Muncie &
Ross, P.C., on brief), for appellees.
Steven B. Crouch appeals a decision of the Workers’ Compensation Commission. He
asserts the commission erred in (1) rejecting his testimony regarding the severity of his
symptoms after spending an entire day fixing a machine for employer as evidence of an injury by
accident resulting from a “discernable incident,” and (2) concluding a single work event
occurring over the course of one day could not be classified as an injury by accident in the
absence of a “distinct onset of symptoms.” We have reviewed the record and the commission’s
opinion and find this appeal is without merit. Accordingly, we affirm for the reasons stated by
the commission in its final opinion. See Crouch v. Battlefield Farms, Inc., VWC File No.
241-48-21 (Mar. 8, 2011). We dispense with oral argument and summarily affirm because the
facts and legal contentions are adequately presented in the materials before the Court and
argument would not aid the decisional process. See Code § 17.1-403; Rule 5A:27.
Affirmed.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-13-00810-CV
In the INTEREST OF L.H.
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2009-PA-00997
Honorable Dick Alcala, Judge Presiding
BEFORE CHIEF JUSTICE STONE, JUSTICE BARNARD, AND JUSTICE CHAPA
In accordance with this court’s opinion of this date, the trial court’s Order of Termination
terminating the parental rights of Rogelio Hernandez Jr. is AFFIRMED.
SIGNED April 2, 2014.
_____________________________
Luz Elena D. Chapa, Justice
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95 N.W.2d 285 (1959)
BOARD OF EDUCATION OF CARROLL COUNTY, Iowa, Plaintiff-Appellee,
v.
STATE BOARD OF PUBLIC INSTRUCTION, J. C. Wright, Superintendent of Public Instruction, Board of Education of Audubon County, Iowa, Board of Education of Shelby County, Iowa, and Board of Education of Crawford County, Iowa, Defendants (Audubon County is the only Appellant).
No. 49653.
Supreme Court of Iowa.
March 10, 1959.
Dale D. Levis, L. L. Ryan, Audubon, for appellant.
Loth & Melton, Fort Dodge, for appellee.
HAYS, Justice.
May 14, 1957, the Boards of Education of Audubon, Carroll, Crawford and Shelby Counties fixed the boundaries of a proposed Manning Community School District. On appeal to the State Superintendent of Public Instruction, this action was reversed on the grounds of insufficient preliminary study prior to the filing of the petition on April 25, 1957, and, in effect, that the hearing on May 14, 1957 was biased, unfair and the result of prior commitments. On appeal from this decision to the District Court, the decision of the State Superintendent was reversed upon both grounds. On appeal to this Court by the Audubon Board, the sole issue goes to the fairness of the hearing on May 14, 1957.
In 1956 a petition was filed with the County Superintendent of Carroll County for the organization of a Manning Community *286 School District. The proposed district included a portion of the four counties above named. The west boundary of the district was the newly organized Manilla School District in Crawford and Shelby Counties. At a joint meeting of the four Boards the proposed boundaries were adopted by a tie vote. On appeal to the State Superintendent of Public Instruction the action was reversed, and, at the time material here, that decision was pending on appeal to the District Court.
At this time there was also pending in the District Court a quo warranto proceeding as to the legality of the Manilla organization. This action was brought by individuals living on the borders of the Manilla and Manning Districts, who desired to be included in the Manning District.
Early in the 1957 session of the Iowa Legislature an attempt was made to legalize the Manilla District irrespective of the pending litigation. It was suggested by various members of the Legislature that the Manilla and Manning Boards compromise this boundary line dispute. Following this conference, Mr. Norelius, attorney for the Manilla District, called a meeting at his office in Denison, Iowa. Present, or represented, were the Manilla Board members, County Superintendents of Carroll, Crawford and Shelby Counties, the Manning Local Board members and attorneys, and the quo warranto plaintiffs and their attorneys. The sole matter discussed was the line between the two districts as it affected residents in Shelby and Crawford Counties. As a result of this meeting, a line was agreed upon between the two districts, and the quo warranto proceeding as to the Manilla District, and the appeal as to the proposed Manning District were dismissed. Immediately thereafter on April 25, 1957, a new petition for the Manning reorganization, being the one here involved, was filed. It is similar to the 1956 petition except as to the compromise between Manilla and the proposed Manning Districts.
Audubon County was not notified of the Denison meeting and first learned of it after the May 14th meeting. At that meeting the only objection urged to the proposed boundary was made by Audubon County and related solely to the boundary as it affected the Audubon County area included therein. Upon the vote Audubon County voted against the plan because of the Audubon County territory included. No objection was urged to the new line on the west between Manilla and Manning.
Appellant, Audubon County, relies primarily upon the claim that at the Denison meeting the Boards of Carroll, Crawford and Shelby Counties committed themselves to vote for the proposed Manning District and that the hearing on May 14th was a sham and in fact not a hearing. It is true that at the Denison meeting three maps, showing the compromise boundary between Manilla and Manning, were prepared and given to the Superintendents of Carroll, Crawford and Shelby Counties. On the back thereof was typed a statement that in consideration of the dismissal of the quo warranto action the respective boards agreed to "support such boundaries in any petition presented by the Manning School District in the reorganization of their school." The Crawford County Board signed their copy. The Boards of Carroll and Shelby Counties did not sign and took the position that, while not objecting to the compromise line, they would wait and see what objections might be filed.
The trial court in its ruling states, "The evidence is clear in this case not only that no other county boards were bound (except Crawford), but they actually refused to be bound in advance or to pass any previous judgment upon the question of boundaries of the Manning District. The Audubon County members themselves did not question or attempt to change the Manning-Manilla boundary. The only change proposed, suggested, attempted, argued or voted upon was a change in Audubon County. As to this there was no member of any board (unless in Audubon County) who had *287 bound himself or agreed in any way to vote for or against any proposal. In other words, there was no one bound, committed or prejudiced in any way upon the only question raised at the hearing. The Court cannot see any inequity in this."
We think the foregoing statement is a fair and accurate appraisal of the situation and that the judgment of the trial court should be and is affirmed.
Affirmed.
All Justices concur.
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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37872
STATE OF IDAHO, ) 2011 Unpublished Opinion No. 350
)
Plaintiff-Respondent, ) Filed: February 10, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
MICHAEL ANTHONY SHANNON, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Patrick H. Owen, District Judge.
Judgment of conviction and unified sentence of ten years, with a minimum period
of confinement of two years, for felony driving under the influence, affirmed.
Molly J. Huskey, State Appellate Public Defender; Spencer J. Hahn, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
______________________________________________
Before LANSING, Judge; GUTIERREZ, Judge;
and MELANSON, Judge
PER CURIAM
Michael Anthony Shannon pled guilty to felony driving under the influence. I.C. §§ 18-
8004, 18-8005(6). In exchange for his guilty plea, a misdemeanor charge as well as an allegation
that Shannon was a persistent violator were dismissed. The district court sentenced Shannon to a
unified term of ten years, with a minimum period of confinement of two years. Shannon
appeals.
Sentencing is a matter for the trial court’s discretion. Both our standard of review and the
factors to be considered in evaluating the reasonableness of the sentence are well established and
need not be repeated here. See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-
15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App.
1
1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). When reviewing
the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho
722, 726, 170 P.3d 387, 391 (2007). Applying these standards, and having reviewed the record
in this case, we cannot say that the district court abused its discretion.
Therefore, Shannon’s judgment of conviction and sentence are affirmed.
2
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498 So.2d 140 (1986)
James H. GRAVOIS
v.
SUCCESSION OF Michael Joseph TRAUTH, United Services Automobile Association and Armed Forces Cooperative Insuring Association.
No. 86-CA-294.
Court of Appeal of Louisiana, Fifth Circuit.
November 10, 1986.
Writ Denied January 23, 1987.
*141 Pat M. Franz, Metairie, for James H. Gravois, plaintiff-appellant.
Schafer & Schafer, Timothy G. Schafer, Matthew B. Collins, Jr., New Orleans, for United Services Automobile Ass'n., defendant-appellee.
Before CHEHARDY, KLIEBERT and GRISBAUM, JJ.
CHEHARDY, Chief Judge.
This appeal arises from a jury verdict finding plaintiff, James H. Gravois, 40% at fault and defendant Michael Joseph Trauth 60% at fault for injuries plaintiff sustained in an automobile accident. Gravois was a guest passenger in a small sports car driven by defendant at the time of the collision. Trauth was killed in the accident and was uninsured. Suit was filed against his succession; United Services Automobile Association, the uninsured motorist carrier of plaintiff's father; and Armed Forces Cooperative Insuring Association, umbrella liability insurer of plaintiff's father. The jury awarded plaintiff $20,000 in special damages and $35,000 in general damages.
On appeal plaintiff raises two issues. First, plaintiff asserts the jury erred in finding that he was 40% at fault. Secondly, plaintiff urges this court to increase the amount of damages.
The evidence at trial showed that the 19-year-old plaintiff and the defendant were intending to go to a movie on the evening the accident occurred. Prior to going, the parties stopped at a Steak and Ale restaurant and bar located near the theatre. Sometime thereafter, defendant's car was seen speeding west on Behrman Highway in Jefferson Parish toward the intersection of Behrman and Holmes Boulevard. Before reaching the intersection of Behrman Highway and Holmes Boulevard, the speeding car crossed a bridge and then moved into a universal turn lane to avoid hitting two trucks which were occupying each traveling lane of the highway. The vehicle continued to travel in the turn lane, went through the intersection without stopping, and collided head-on with a pickup truck stopped for a left turn at the intersection.
Plaintiff was transported to Jo Ellen Smith Hospital for treatment of multiple injuries. He spent eight days in the hospital, two of which were in intensive care. At the hospital, he was diagnosed as having sustained a cervical concussion resulting in partial amnesia, multiple fractures of his jaw, a fracture of the navicular bone of his right foot (arch), and fracture of his left large toe. In addition, plaintiff required stitches for a 10-inch jigsaw laceration across his forehead and lacerations to his nose and leg. After discharge from the hospital, plaintiff obtained psychological *142 therapy for the emotional distress resulting from the trauma of the accident.
On appeal, plaintiff asserts that the jury erred in finding plaintiff 40% at fault. He argues that no evidence was presented to show that he knew of some hazard unknown to Trauth or that he had actual or constructive knowledge that Trauth was unfit to drive. Smith v. Marquette Casualty Co., 247 La. 1054, 176 So.2d 133 (1965); Sutton v. Langley, 330 So.2d 321 (La.App. 2d Cir.1976); Richards v. American Home Assurance Company, 241 So.2d 77 (La.App. 3d Cir.1970).
As pointed out by plaintiff, the leading case involving guest passengers injured through the negligence of an intoxicated driver is Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976). Prestenbach requires defendant to prove that plaintiff knew or should have known of the risk involved. As pointed out by plaintiff, however, the holding is couched in terms of assumption of the risk, and the jury herein found that plaintiff did not assume the risk. Neither Prestenbach nor its progeny refers directly to the alternative defense of contributory/comparative negligence and its applicability in the event plaintiff is found not to have assumed the risk of injury. See Holmes v. State through Dept. of Highways, 466 So.2d 811 (La.App. 3d Cir.1985); Case v. Arrow Trucking Co., 372 So.2d 670 (La.App. 1st Cir.1979).
As the Prestenbach court stated, assumption of risk requires a showing that the plaintiff knowingly and voluntarily assumed the risk of his injury. For purposes of assumption of the risk, "[k]nowledge is the mainstay of assumption of the risk defense and the court will impute knowledge to a plaintiff not because he was in a position to make certain observations, but only when plaintiff actually made those observations and should reasonably have known that a risk was involved. * * *" Bourgeois v. Jones, 481 So.2d 145, 151 (La.App. 5th Cir.1985). On the other hand contributory negligence is conduct on the plaintiff's part falling below the standard to which he should conform for his own protection, i.e. a reasonable man under like circumstances. Dorry v. Lafleur, 399 So.2d 559 (La.1981); Bourgeois v. Jones, supra.
Assumption of the risk and contributory/comparative negligence are well-established affirmative defenses to other automobile torts. Although we perceive a "gap" in the jurisprudence insofar as intoxicated drivers and their guest passengers are concerned, we think Prestenbach is reconcilable with the general automobile tort law. Were we to decide otherwise on the basis of the Prestenbach language, we would essentially be imposing a greater burden on defendants to extricate themselves from full or partial liability in cases of this kind than in other automobile accident cases. Thus, despite the seemingly restrictive holding in Prestenbach, we find that comparative negligence is applicable, with the test being whether plaintiff acted as a reasonable man in riding with an intoxicated driver.
Plaintiff asserts that a party who suffers from amnesia as a result of injuries received in an accident, and who is unable to recall the details at or before the accident, is presumed to have exercised due care where there are no other eyewitnesses. Lowenburg v. Labor Pool of America, Inc., 296 So.2d 846 (La.App. 4th Cir.1974). Plaintiff also asserts that evidence fails to show that he failed in his duty as a guest passenger to warn defendant of a hazard within his knowledge, but unknown to the driver. Smith v. Marquette Casualty Co., supra; Sutton v. Langley, supra; Richards v. American Home Assurance Company, supra.
The evidence herein reveals that plaintiff suffered amnesia due to the cerebral concussion he sustained in the accident. He testified that he was unable to recall any details from the time he entered the Steak and Ale at approximately 5 p.m. until he awoke in the hospital two or three days later. Although he was unable to remember whether or not Trauth showed visible signs of intoxication, he stated that he normally would not ride with someone not in *143 control. At the time of the accident plaintiff had a learner's driving permit, but lacked driving experience. He admitted, however, that he and Trauth intended to have a few drinks at the Steak and Ale while waiting for the movie to start.
Two witnesses in separate cars testified to the defendant's conduct prior to the accident. Allen Yeoman and Kenneth Mouton stated that they were traveling west on Behrman Highway when they saw the Trauth vehicle approaching from the rear, traveling in excess of 45 miles per hour. Yeoman was driving a motorcycle in the left lane and was directly in front of defendant. Mouton was in the left lane. Both testified that defendant changed lanes twice in order to pass each of their vehicles, but stated that the driver appeared to be in control. After passing them and prior to reaching the bridge on Behrman Highway, the witnesses stated the Trauth car suddenly entered the middle lane which is not a travel lane, but is a designated universal turn lane. Mouton testified that the defendant entered the center lane in an effort to avoid two large trucks occupying each of the travel lanes. He stated he did not see the defendant's brake lights and that the car was traveling so fast that when it reached the bridge the sports car was lifted from the ground completely. Mouton stated that defendant continued in the middle lane, crossed the intersection of Behrman Highway and Holmes Boulevard and collided head-on with a pickup truck waiting to make a left turn on the eastward portion of the roadway. At no time did Mouton see defendant apply his brakes prior to the collision.
Following the accident, a blood alcohol test was performed on defendant as part of his autopsy. The autopsy and test were done by the Orleans Parish Coronor's office and the defendant's blood alcohol level was determined to be .17%. Dr. Paul McGary, who performed the autopsy, testified the level of alcohol in defendant's blood was high. He stated that with a .17% alcohol level defendant's driving would have been dangerously impaired and that Trauth would have been exhibiting visible signs of intoxication. Dr. Monroe Samuels, chief consulant pathologist for the Coronor's office, affirmed Dr. McGary's findings. He qualified Dr. McGary's conclusions to some extent by stating that individuals show variable signs of intoxication at different levels of alcohol consumption. He testified, however, that an average man of defendant's weight and height would have consumed six to eight 8-ounce alcoholic drinks in order to reach the .17% level. He agreed with Dr. McGary that it was more likely than not that the defendant showed visible signs of intoxication.
Appellate review of facts is restricted to determination of whether the factual findings of the trial court are manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). The evidence in this case is fairly clear that defendant was intoxicated to the extent his driving skills were impaired. The evidence also shows that defendant would more likely than not have been exhibiting signs of intoxication based on his blood alcohol level. In addition, defendant was driving his vehicle in an unsafe manner. While we recognize that plaintiff, as an amnesiac, is entitled to the presumption that he exercised due care in riding with defendant, the evidence rebuts the presumption by a preponderance. Consequently, we find the jury was not clearly wrong in finding defendant 40% at fault in causing the injuries he sustained.
Plaintiff also complains that the damages awarded by the jury were inadequate. He argues that the general damage award of $35,000 is so low as to constitute an abuse of discretion considering his multiple injuries, residual disability, permanent scarring, and uncomfortable and painful treatment. Plaintiff also alleges that the award of special damages were erroneous in that the jury failed to award plaintiff the total amount of his lost wages.
The evidence shows that plaintiff suffered a cerebral concussion resulting in permanent partial amnesia. He fractured *144 his jaw in five places, and fractured his left toe and right foot. He received a 10-inch laceration to his forehead, a small laceration on his nose and a laceration on his leg. He further underwent seven months of psychological therapy.
Because of his physical injuries plaintiff spent eight days in the hospital, two of those days he was in intensive care. After leaving the hospital, he was bedridden for approximately two weeks. Plaintiff spent one month on crutches, required plastic surgery for the lacerations, had his mouth wired shut for one month due to his jaw fracture, underwent three root canals, and spent three and a half years in braces, also due to his jaw injury. The physicians who treated plaintiff stated he has a 25% functional loss of his right foot and that he requires a special foot mold for his shoes when engaging in stressful activities such as running, jumping and climbing. He further lost 50% of the normal motion of his left toe at the joint near the nail. Although he suffered some arthritic changes in his foot, the testimony indicates the changes have stabilized. The scars on plaintiff's face reached optimum appearance after one year.
Plaintiff also claimed damages for psychological injury for which he asserts he received treatment from Theresa Adams, a psychiatric social worker, for seven months. However, the evidence shows that he attended therapy sessions with Ms. Adams prior to entering the Navy in 1981. The accident occurred four days after he was discharged and returned home. He served nine months in the Navy, but was honorably discharged for psychiatric reasons. Although Ms. Adams and plaintiff asserted that most of the therapy after the accident was related to the trauma, they admitted that some part of the therapy included problems involving his psychiatric discharge and his pre-Navy difficulties.
Damage awards are not subject to modification by the appellate court absent a finding that the fact-finder abused its discretion. Reck v. Stevens, 373 So.2d 498 (La.1979). The jury awarded plaintiff $35,000 in general damages. While we find that the award for plaintiff's injuries are not generous, we cannot say the award is so low as to be an abuse of discretion.
In regard to the special damages, the jury awarded plaintiff $20,000. Our calculations show that the award is $379.09 less than plaintiff requested. Plaintiff presumes the award failed to consider plaintiff's total lost wages for 16 weeks at minimum wage.
Prior to entering the Navy in 1981, plaintiff was employed in various minimum-wage jobs appropriate for a 17-year-old. At the time of the accident he was 19, had served in the Navy for nine months and was not working. Following the accident, he was unable to work for approximately three to four months.
While we cannot state with certainty the reason the jury reduced the special damages by $379.09, we find it just as likely that they considered the fact that plaintiff's psychological therapy was not totally related to the accident and adjusted the medical figures accordingly. Considering the evidence in either case, we consequently find that the jury did not abuse its discretion in awarding the special damages.
Accordingly, the judgment of the trial court is hereby affirmed. Costs of the appeal are to be paid by appellant.
AFFIRMED.
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Case: 12-51061 Document: 00512302769 Page: 1 Date Filed: 07/10/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 10, 2013
No. 12-51061
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ESTEBAN FLORES-RUBIO, also known as Jose Luis Medina-Flores,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-1551-1
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Esteban Flores-Rubio appeals from his conviction and sentence for illegal
reentry following removal from the United States. He contends that his
sentence of supervised release was procedurally and substantively unreasonable
because the district court did not consider U.S.S.G. § 5D1.1(c) and its
accompanying commentary and failed to explicitly find that the sentence was
justified by the need for an extra measure of deterrence.
*
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: 12-51061 Document: 00512302769 Page: 2 Date Filed: 07/10/2013
No. 12-51061
Flores-Rubio did not raise his arguments in the district court, so our
review is for plain error. See United States v. Dominguez-Alvarado, 695 F.3d
324, 327 (5th Cir. 2012). Most of the district court’s comments at sentencing
were directed at Flores-Rubio’s long-running cycle of entering the United States,
committing crimes, being imprisoned, being removed, then illegally reentering
the United States and beginning the cycle over again. The district court
admonished Flores-Rubio to avoid the temptation to return to this country, as
a return to the United States would result in a new term of imprisonment.
Flores-Rubio had been removed from the United States four times, and he had
a lengthy and serious criminal history in this country. Although the district
court did not explicitly find that the particular facts of Flores-Rubio’s case
warranted a sentence of supervised release, the district court’s explanation was
adequate to support the supervised release sentence. See United States v.
Cancino-Trinidad, 710 F.3d 601, 607 (5th Cir. 2013).
AFFIRMED.
2
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195 N.J. Super. 559 (1984)
480 A.2d 963
STATE OF NEW JERSEY, PLAINTIFF,
v.
WILLIAM H. NIEMEYER, DEFENDANT.
Superior Court of New Jersey Law Division (Criminal), Union County.
Decided June 1, 1984.
*560 David Corrigan, Assistant Prosecutor, for the State.
James S. LaCorte, attorney, for defendant.
OPINION
MENZA, J.S.C.
This is a motion in limine brought by the State to declare certain evidence admissible at trial. The indictment charges the defendant with two counts of Aggravated Assault. Count one of the indictment charges defendant with second degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1). This statute provides in pertinent part:
A person is guilty of aggravated assault if he:
1) ... causes [serious bodily] injury ... recklessly....
Count two charges aggravated assault in the fourth degree, and is also grounded in the recklessness of the defendant.
These charges arise out of an incident that occurred on December 12, 1983, at which time the defendant's automobile collided head on with the automobile of the victim, Mrs. Anne Cooke, causing her serious injury. It is alleged that on the date in question the defendant had consumed a great deal of alcohol[1]*561 and that the accident occurred as a result of his driving while under the influence.
The State wishes to introduce into evidence the defendant's prior driving record showing his past convictions of driving while under the influence. The certified driver's abstract of the defendant discloses the following:
9/27/72 - driving under the influence and accident
5/12/76 - " " " " " "
7/2/79 - " " " " " "
4/12/80 - " " " " ; leaving the
scene of an accident; failure to observe
traffic control device; unlicensed driver
11/23/80 - driving under the influence
11/21/82 - " " " "
The State contends that this evidence demonstrates that the defendant had knowledge of his incapacity to operate a motor vehicle. This knowledge, it is contended, is relevant to show that defendant was aware of the substantial risks involved in driving an automobile while under the influence. As authority for its position, the State relies on Evid.R. 55[2] and State v. Soney, 177 N.J. Super. 47 (App.Div. 1980), certif. den. 87 N.J. 313 (1981).
The defendant argues that the probative value of this evidence is substantially outweighed by the risk that its admission will create a substantial danger of undue prejudice. Evid.R. 4. Moreover the defendant contends it is inadmissible because his knowledge is not relevant to any fact in issue, and is therefore not encompassed by Rule 55.
*562 At first glance it appears that evidence of defendant's knowledge would indeed be irrelevant where the element of culpability alleged is recklessness, as in this case. However, closer scrutiny of the definition of recklessness in the criminal code reveals that this is not necessarily so. N.J.S.A. 2C:2-2(b)(3) provides that "a person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct". (emphasis supplied). Implicit in the ordinary and plain meaning of the word "consciously" is the understanding that before the risk may be disregarded one must have knowledge of or otherwise be aware of the risk. Support for this conclusion is found in another provision of the Code. This section deals with the defense of intoxication. It provides that "when recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of the risk of which he would have been aware had he been sober, such unawareness is immaterial." N.J.S.A. 2C:2-8(b).
Thus it is clear that the definition of recklessly set forth in N.J.S.A. 2C:2-2(b)(3), and N.J.S.A. 2C:2-8(b), by their terms, indicate that some measure of awareness or knowledge is inherent in the element of recklessness.[3]
However, the question is not whether knowledge is an integral part of an element of the offense. Rather, the question is whether it is necessary to prove it that is whether the defendant's knowledge is really in issue. See State v. Atkins, 78 N.J. 454, 462 (1979).
*563 The case of State v. Soney, supra, upon which the State relies, is distinguishable. In that case the defendant was charged with causing willful or wanton death by automobile. The defendant Soney was a person subject to "akinetic" attacks or blackouts. He received a driver's license on the condition that he take medication which forestalled the attacks. State v. Soney, supra, 177 N.J. Super. at 54. Over his objection the State introduced evidence of two prior automobile accidents which occurred within the six week period preceeding the date of the offense charged. Id. at 52. The court held the evidence admissible for the purpose of proving knowledge of Soney's incapacity to operate a vehicle. Id. at 60. The State's theory of the case was that the accident was caused by Soney losing control of his vehicle due to an attack brought on by his failure to take medication on the day of the accident. Id. at 52.
First, I believe the nature of Soney's affliction as opposed to driving while drunk or impaired is materially different. Soney's condition was one that was peculiar to him only. In order to prove willful or wanton conduct the State had to show that Soney had knowledge of the effect failure to take the medication would have on his driving ability. Defendant's knowledge of the risks involved was in issue and could in fact be proved by showing the effect that the defendant's failure to take medication had on him in the past. See generally 2 Wigmore, Evidence (3 ed. 1940) §§ 244, 301. As the court pointed out, this evidence was significant to "demonstrate to defendant the risk he posed to himself and anyone else on the road by continuing to drive even though the State could not explicitly prove that he had not been taking his medicine at the time of those incidents." State v. Soney, supra, 177 N.J. Super. at 60; (emphasis supplied).
On the other hand, it is not necessary to show that a person has been convicted of driving while under the influence in order to prove that he had knowledge that he would be incapable of driving a car if he were drunk. I think it is safe to say that it is *564 fairly common knowledge that drinking and driving do not mix. The jury as fact finders, could certainly infer from evidence that defendant had consumed a quantity of alcohol and was intoxicated at the time in question, that he consciously disregarded the risks involved in driving an automobile while drunk or impaired. Simply stated: the defendant's knowledge of the risks resulting from driving under the influence is not in issue. "Everybody knows that!" Since it is not in issue, it is not admissable. Rule 55 provides in part:
[S]uch evidence is admissable to prove some other fact in issue, including motive, intent, plan, knowledge, identity or absence of mistake or accident. [emphasis added.]
See also State v. Peltack, 172 N.J. Super. 287, 293 (1980). (Because of its capacity for prejudice proof of "other crimes" is allowed only to meet an issue relating to an element of an offense which is projected by defendant either before or during trial or is necessarily raised by the evidence.) Under the circumstances, the only purpose for the admission of such evidence would be to demonstrate to the jury the defendant's propensity to commit the crime in question. This of course is not permissable.
Therefore, I find that defendant's prior incidents of driving under the influence, offered to prove his knowledge of his incapacity to operate a motor vehicle, is inadmissible under Rule 55 on the issue of whether he consciously disregarded a substantial and unjustifiable risk that he would injure someone by driving his automobile while intoxicated.
Moreover, the evidence is inadmissible under Rule 4. Even if the evidence had probative value, a balancing of that probative value (slight at best), as against the clear capacity of the evidence to inflame the jury, renders a conclusion that the admission of such evidence would create a substantial danger of undue prejudice to the defendant.
The State's offer of proof is rejected.
NOTES
[1] The State alleges defendant's blood/alcohol level at 0.43%. A reading of 0.10% is sufficient for a violation of N.J.S.A. 39:4-50, our drunk driving statute. It is my understanding that a blood alcohol level of 0.50% should cause death.
[2] Evid.R. 55 provides:
Subject to Rule 47, evidence that a person committed a crime or civil wrong on a specified occasions, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed a crime or civil wrong on another specified occasion but, subject to Rule 48 such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity or absence of mistake or accident.
The limitations imposed by Rule 47 and Rule 48 are not pertinent here.
[3] The precise quanta of awareness need not be established here, though it is certainly less than would be required to establish purposeful or knowing conduct. See N.J.S.A. 2C:2-2(b)(1), (2), -2(c)(3).
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199 Cal.App.3d 1453 (1988)
245 Cal. Rptr. 617
PABLO RODRIGUEZ et al., Petitioners,
v.
THE SUPERIOR COURT OF TULARE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Docket No. F008873.
Court of Appeals of California, Fifth District.
April 5, 1988.
*1457 COUNSEL
Garry Lawrence Jones and Loretta J. Wichowski for Petitioners.
No appearance for Respondent.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Garrick W. Chock and Garrett Beaumont, Deputy Attorneys General, for Real Party in Interest.
OPINION
HAMLIN, J.
THE CASE
Petitioners Pablo Rodriguez and Ofelia Rodriguez[1] seek a writ of prohibition and/or mandate (1) restraining respondent Superior Court of Tulare County from taking any further action in the pending criminal case against them (proceeding No. 24724), and (2) commanding respondent superior court to vacate its order denying petitioners' motion to suppress evidence pursuant to Penal Code section 1538.5[2] in the same superior court action and to enter a new order granting petitioners' motion. This court issued an *1458 order to show cause directing respondent superior court to show cause why a peremptory writ should not issue.
Petitioners contend that respondent superior court erred in denying their motion to suppress evidence, alleging (1) the affidavit in support of the search warrant under which the evidence supporting charges against petitioners had been seized failed to establish the necessary probable cause for issuance of the warrant and (2) the magistrate's authorization of nighttime service did not rest upon any showing of good cause. For reasons to be stated, we conclude that suppression of evidence is not required. We will therefore deny the petition for writ of prohibition and/or mandate.
THE UNDERLYING ACTION
Petitioners, along with Alfredo Rodriguez, were charged with multiple violations of the Health and Safety Code: possession of heroin for purpose of sale in violation of section 11351, possession of cocaine for sale in violation of the same section, and maintaining a place for selling or using drugs in violation of section 11366.
On March 19, 1987, Ofelia filed a motion to suppress evidence challenging the showing of probable cause in support of the warrant. About three weeks later, she also filed a written notice of joinder in a similar motion that had been filed on April 3 by codefendant Alfredo. On April 17, Pablo orally joined in codefendant Alfredo's motion. However, neither Ofelia's counsel nor Pablo's counsel appeared at the May 8 hearing on Alfredo's motion. The court denied Alfredo's motion, which had challenged not only the underlying probable cause for issuance of the warrant but the endorsement for nighttime service and the actual nighttime execution of the warrant. In the minute order for that hearing, the court limited its ruling to Alfredo's motion only, further stating: "Motions by the co-defendants [Ofelia and Alfredo] were ordered off calendar because of absence of counsel."[3]
Discovering their motions to suppress had not been heard by the trial court, and upon the court's denial of their motion for a continuance of the June 29 trial date, counsel for Ofelia, acting for both Ofelia and Pablo, refiled a motion to suppress evidence on June 26. By this motion, petitioners challenged both the sufficiency of the demonstrated probable cause and the showing of good cause for the nighttime endorsement and execution of the warrant. On the day set for commencement of jury trial, the trial court heard the motion to suppress, including testimony from the affiant officer, *1459 and denied the motion. On that same day, petitioners sought extraordinary relief from this court. Petitioners' trial was stayed pending resolution of this petition.
The petition and response present the following questions: I. Does the time limitation in section 1510 bar petitioners from seeking pretrial review of the trial court's denial of their motion to suppress evidence?
II. Did petitioner Ofelia have a legitimate expectation of privacy in the premises searched?
III. Does the affidavit offered in support of the warrant demonstrate probable cause to sustain issuance of the warrant? If not, did the officers executing the warrant objectively in good faith rely on the warrant?
IV. Was there a sufficient showing of the need for nighttime service of the search warrant? If not, does the magistrate's erroneous authorization of nighttime service compel exclusion of the evidence?
DISCUSSION
I.
Section 1510 Time Limitation
(1a) The People contend that petitioners are precluded from seeking pretrial review of the trial court's denial of their motion to suppress evidence since petitioners failed to file their motion within 60 days of their arraignment on February 17, 1987, as required by section 1510. That section provides in pertinent part, "The denial of a motion made pursuant to Section 995 or 1538.5 may be reviewed prior to trial only if the motion was made by the defendant in the trial court not later than ... 60 days following defendant's arraignment on the information or indictment if a felony, unless within these time limits the defendant was unaware of the issue or had no opportunity to raise the issue."
The People point out that the motion on which the trial court ruled was filed June 26, well beyond 60 days from the date of petitioners' arraignment. Petitioners do not attempt to avoid the bar of section 1510 by claiming lack of knowledge of the issue or lack of opportunity to raise the issue; rather, they contend their motions were timely in that their joint motion of June 26 was merely a renewal of their earlier joinder in Alfredo's motion or, in Ofelia's case, a renewal of her motion filed on March 19.
*1460 Petitioners' point is well taken. As the court pointed out in Smith v. Superior Court (1978) 76 Cal. App.3d 731, 734 [143 Cal. Rptr. 109], "A motion is an application to the court for an order. (Code Civ. Proc., § 1003.) The applicant must, in some way, communicate to the court what order is desired and upon what grounds. [Citations.]" At the time of the defendants' arraignment in Smith, one of two defendants indicated, "`For the record, I would like to reserve a 995 and 1538.5.'" The court responded, "`It will be reserved for you,'" and codefendant's counsel stated, "`That will be noticed also on behalf of Mr. Smith.'" (Ibid.) The court held this was not enough to tell the court the defendants had actually moved to suppress evidence, what evidence they might seek to suppress, or the grounds on which they intended to seek suppression of the evidence. Finding the petitioners were not entitled to pretrial review, the court in Smith dismissed their petition.
However, in Ghent v. Superior Court (1979) 90 Cal. App.3d 944, 950-952 [153 Cal. Rptr. 720], the court refused to dismiss, for failure to comply with section 1510, a petition seeking pretrial review of the trial court's denial of a section 995 motion. There, the court noted that the defendant was charged with homicide and was entitled to a transcript of the preliminary hearing, presumably within 10 days after the hearing. The court then concluded that the delay in furnishing the defendant's attorney a copy of the transcript triggered the statutory exception excusing compliance with section 1510 when the defendant has not had an opportunity to raise the issue. (2) Ghent points out that, once alleged noncompliance with section 1510 has been raised, a defendant bears the burden of showing that he is within one of the exceptions. Logically, a defendant who seeks to avoid the bar of section 1510 upon a claim of timely filing (rather than an exception) should bear the burden of proving his motion was brought within the time prescribed by statute, and we so hold.
(1b) As noted above, Ofelia filed not only a motion to suppress evidence on March 19 but also a written notice of joinder on April 3 in a similar motion filed by codefendant Alfredo. Pablo orally joined in Alfredo's motion on April 17. Although the court directed petitioners to refile their motions, neither did so until June 26 when Ofelia refiled a motion to suppress on behalf of both Pablo and herself. On June 29, the court denied the motion as refiled.
We conclude that petitioners' delay in refiling, resulting in the trial court's failure to rule on petitioners' renewed motion until well after 60 days had expired from the time of their arraignment, does not bar petitioners from pretrial review. Section 1510 does not mandate that a motion to *1461 suppress be adjudicated within the 60-day period; it requires only that such a motion be made within that period. Petitioners complied.
II.
Legitimate Expectation of Privacy in the Searched Home
(3) In their initial opposition, the People contend that Ofelia claims for the first time in this petition that she resided in the premises searched pursuant to the warrant; that Ofelia's failure to make this claim before the trial court equates to a failure to show that she had a legitimate expectation of privacy in the premises that were searched; and that absent such a claim, Ofelia lacked standing to seek suppression of evidence seized from those premises. In responding, Ofelia reiterates that at the time the search was conducted she lived at 681 North Brundage Street in Farmersville (Brundage Street residence), with a corresponding expectation of privacy in her home.
The simple answer to the People's contention is that in the trial court they never challenged Ofelia's legitimate expectation of privacy in the Brundage Street residence. They cannot now raise this issue.
A review of the points and authorities filed by the district attorney in opposition to petitioners' motion to suppress discloses no reference whatsoever to any claim that either Ofelia or Pablo lacked the requisite legitimate expectation of privacy in the Brundage Street residence. In responding to questions on cross-examination concerning lack of any facts in the affidavit to identify the suspected residents of the house, officer-affiant Farrel Ward, a detective with the Exeter Police Department, stated that the confidential informant "wasn't sure who the people was. He just knew that they lived there and this is where the dope came from."
As the United States Supreme Court pointed out in Steagald v. United States (1981) 451 U.S. 204, 209 [68 L.Ed.2d 38, 43-44, 101 S.Ct. 1642]: "Aside from arguing that a search warrant was not constitutionally required, the Government was initially entitled to defend against petitioner's charge of an unlawful search by asserting that petitioner lacked a reasonable expectation of privacy in the searched home, or that he consented to the search, or that exigent circumstances justified the entry. The Government, however, may lose its right to raise factual issues of this sort before this Court when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation."
*1462 Having failed at the suppression hearing to assert that Ofelia lacked a reasonable expectation of privacy in the searched home, the People are now precluded from raising the issue.
III.
Probable Cause
The operative language in the affidavit submitted to support issuance of a search warrant for the Brundage Street residence that purports to establish probable cause is as follows: "YOur [sic] affiants were advised by a confidential reliable informant within the past two days, that informant, while working as an informant, was present within the past two days as well [as] on numerous occasions at said residence, as described in detail on page one of the affidavit. When heroin has been sold from said residence, said informant further advised your affiants that said informant has accompanied on numerous occasions, individuals to said residence for the purpose of purchasing heroin and then said informant observed said individuals to enter said residence and then exit said residence in a short period of time, returning directly to said informants's [sic] locaiton [sic] and displaying to said informant a quanity [sic] of heroin that said indiiduals [sic] had stated were purchased from within said residence from a person whose identity is unknown to said informant.
"The reliability of the informant has been further ascertained by affiants in that said informant has on numerous occasions provided narcotic intelligence information to your affiants and other law enforcement officers, which has been corroborated with various sources and that information has been found to be factual."
Following the April 8 hearing, the trial court upheld the search warrant and found the affidavit adequate to support its issuance. In doing so, it noted that the period at the end of the first sentence is obviously misplaced; the qualifying phrase, "[w]hen heroin has been sold from said residence," should be part of the first sentence. This was deemed to have been the construction given the affidavit by the magistrate.
Nevertheless, reading the first sentence as the trial court did in deference to the magistrate's determination of probable cause and "the Fourth Amendment's strong preference for searches conducted pursuant to a warrant" (Illinois v. Gates (1983) 462 U.S. 213, 236 [76 L.Ed.2d 527, 547, 103 S.Ct. 2317]), the sentence states only this: a confidential reliable informant was present at petitioners' residence within two days prior to preparation of the affidavit when heroin was sold from the residence. The remaining *1463 information concerning the confidential informant is simply that he or she was at the residence on numerous occasions, for which no date or time-frame is specified, when heroin was sold from the residence. Presumably these are the occasions described in the affidavit when the informant accompanied unidentified individuals to the residence for the purpose of purchasing heroin, observed these individuals enter the residence and exit within a short period of time, immediately displaying to the informant a quantity of heroin which they told the informant had been purchased inside the residence. None of these unnamed individuals could identify or describe the person who purportedly sold them the heroin, nor could the confidential informant supply this fairly critical piece of information.
(4) In People v. Frank (1985) 38 Cal.3d 711, 722 [214 Cal. Rptr. 801, 700 P.2d 415], the California Supreme Court reaffirmed the appropriate standard for reviewing search warrant affidavits as first articulated in People v. Mesa (1975) 14 Cal.3d 466, 469 [121 Cal. Rptr. 473, 535 P.2d 337]: "This court, like the United States Supreme Court, seeks to encourage the use of warrants in preference to warrantless searches, however justifiable such a search may be as an exception to the warrant requirement. We therefore follow the rule that `"courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants."' (People v. Mesa (1975) 14 Cal.3d 466, 469....)"
Moreover, since the passage of Proposition 8[4] precludes California courts from excluding relevant evidence except insofar as such exclusion is compelled by the federal Constitution (In re Lance W. (1985) 37 Cal.3d 873, 879 [210 Cal. Rptr. 631, 694 P.2d 744]), this court's review of the affidavit submitted to the magistrate must be further tempered by the decision of the United States Supreme Court in Illinois v. Gates, supra, 462 U.S. 213. There the court rejected what had previously been described as the two-pronged Aguilar-Spinelli test[5] for gauging the sufficiency of an affidavit to establish probable cause for issuance of a warrant. In its place the court adopted an approach by which a reviewing court assesses the totality of the *1464 circumstances under which the warrant issues and invalidates the warrant only if that totality fails to establish probable cause.
(5) However, even applying the totality-of-the-circumstances approach to the instant case, we conclude that the affidavit here is not sufficient to establish probable cause that would sustain the magistrate's decision to issue a search warrant. The statement that, within two days prior to preparation of the affidavit, a confidential informant was at petitioners' residence when heroin was sold from the residence is nothing more than "a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause." (Illinois v. Gates, supra, 462 U.S. at p. 239 [76 L.Ed.2d at p. 549].) The statement contained no facts that might establish the basis of the confidential informant's knowledge. It does not indicate the informant was in the house; it states only he was at the residence. It reflects no facts upon which the informant, and consequently the affiant, could conclude heroin was being sold. No substance was observed or smelled, no bindle or other forms of packaging were noted, no exchange of drugs for money was observed.
Moreover, the confidential informant's presence at the house on "numerous" and obviously prior occasions does nothing to flesh out the deficiencies in this critical first sentence. "[A]n affidavit in support of a search warrant must provide probable cause to believe the material to be seized is still on the premises to be searched when the warrant is sought. [Citations.]" (People v. Mesa, supra, 14 Cal.3d at p. 470; see also United States v. Angulo-Lopez (9th Cir.1986) 791 F.2d 1394, 1399.) Thus, even if we overlook clearly serious procedural deficiencies in permitting a confidential criminal informant to assume the role of an officer in monitoring what appear to be controlled buys from individuals who are unidentified, untested, and apparently unsearched, the absence of any time reference within which these activities occurred provides an insufficient basis to sustain a magistrate's determination that heroin would be found on the premises at the time the warrant issued.
(6) Lastly, the affiant-officer attests to the credibility of this confidential informant in the same conclusory fashion he sets forth his statement of probable cause. Again, the affiant vaguely refers to "numerous occasions" on which the informant has "provided narcotic intelligence information to your affiants and other [unidentified] law enforcement officers, which has been corroborated with various sources and that information has been found to be factual." There is nothing to indicate how the information was corroborated nor how it was shown to be factual; no reference is made to previous search warrants issued on the basis of information supplied by the *1465 informant, evidence seized pursuant to those warrants, or arrests and convictions resulting from those seizures.
One of the affiants, Detective Ward, testified at the superior court hearing on petitioners' motion to suppress evidence; Ward explained to the superior court that the occurrence he had attempted to describe in the first sentence of the "probable cause" paragraph was actually a controlled buy in which "I [Ward] watched him [the confidential informant], the set up on him. He went into the house, he made the buy, he came out and gave me the heroin." However, Ward did not testify that he told those facts to the magistrate in support of issuance of the search warrant, although Ward did respond affirmatively when asked if the magistrate had checked his search warrant and asked questions before he signed it.
Upon petitioners' motion the court had admitted into evidence copies of nine other affidavits prepared by Detective Ward and warrants issued in response to those affidavits by the same magistrate who issued the search warrant in this case. The probable cause statement in each of those nine affidavits is identical, word-for-word and grammatical-error-for-grammatical error, with the affidavit in this case. In this connection, the trial court noted: "What troubles me is the strong inference, for instance, since none of these obvious grammatical errors were corrected, there's a strong inference that the Magistrate wasn't reading them all that carefully." The court, nevertheless, declined to "make the leap of faith from that that the Magistrate was simply rubberstamping these search warrrants without really looking at the affidavit."
The court also noted that when it questioned an affiant about aspects of an affidavit that made no sense or were unclear, it made the affiant correct the affidavit and initial the corrections. Even though it is not necessary to adopt this practice in every instance, there simply is no basis on which this court can assume that the necessary factual information was elicited when the magistrate questioned the affiant. (7) The affiant's testimony at the hearing on the suppression motion cannot provide probable cause.
(8a) Nevertheless, our conclusion that the affidavit here does not provide probable cause to sustain the magistrate's decision to issue a search warrant does not necessarily require this court to exclude the evidence seized pursuant to the warrant. (9) In United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405], the Supreme Court held that evidence should not be excluded when an officer conducting a search objectively relies in good faith on a warrant, issued by a detached and neutral magistrate, that later is determined to be invalid. That court pointed out that the good faith inquiry "is confined to the objectively ascertainable *1466 question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization. In making this determination, all of the circumstances including whether the warrant application had previously been rejected by a different magistrate may be considered." (Id. at pp. 922-923, fn. 23 [82 L.Ed.2d at p. 698].)
The Supreme Court reached its holding in Leon after balancing the cost of suppressing relevant evidence against the benefit of the exclusionary rule. It went on to conclude: "Because we find that the [exclusionary] rule can have no substantial deterrent effect in the sorts of situations under consideration in this case, ... we conclude that it cannot pay its way in those situations." (United States v. Leon, supra, 468 U.S. at p. 908, fn. 6 [82 L.Ed.2d at pp. 688-689].)
At the same time, the Supreme Court in Leon made it clear that the officer will in some cases have no reasonable grounds for believing the warrant was properly issued. The court referred specifically to cases in which the magistrate was misled by information in an affidavit which the officer knew or should have known was false, in which the magistrate wholly abandoned his role, in which the affidavit was "`so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,'" or in which the warrant was so facially deficient that the officer cannot reasonably presume it to be valid. (United States v. Leon, supra, 468 U.S. at p. 923 [82 L.Ed.2d at p. 699].)
(8b) We find none of the circumstances mentioned in the preceding examples present in this case. There was no false information included in the affidavit supporting the issuance of the warrant for the search of the Brundage Street residence. While we have concluded that legally this affidavit was factually insufficient, the affidavit was not so wholly lacking in indicia of probable cause as to render Detective Ward's belief in its existence entirely unreasonable. The magistrate did not abandon his role, and the warrant itself was not facially deficient. Instead, the trial court may appropriately have concluded that Detective Ward objectively relied in good faith on the warrant he obtained in this case because he had previously obtained numerous search warrants from the same magistrate based on substantially the same showing. Admittedly, the trial court expressed some concern that the magistrate was not reading the affidavits all that carefully, an expression of concern clearly justified under the circumstances of this case. But as the Supreme Court observed in Leon, "there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion." (United States v. Leon, supra, 468 U.S. at p. 916 [82 L.Ed.2d at p. 694].)
*1467 We conclude that the insufficiency of the affidavit does not compel suppression of the evidence since the officer executing the search warrant for the Brundage Street residence relied in good faith on the warrant under the Leon standard.
IV.
Nighttime Service
The search warrant affidavit Detective Ward signed contains a paragraph that provides in part, "Wherefore your affiant prays that a search warrant be issued for the seizure of said property or any part thereof, at anytime [sic] of the DAY OR NIGHT good cause therefore [sic] having been shown." Correspondingly, the magistrate issuing the warrant signed the nighttime endorsement on the warrant form that provides, "GOOD CAUSE HAVING BEEN SHOWN BY AFFIDAVIT, THIS WARRANT CAN BE SERVED AT ANY TIME OF THE DAY OR NIGHT." In fact, the warrant was served at 10:45 p.m.
At the time the warrant was issued, section 1533 provided that, "Upon a showing of good cause, the magistrate may, in his discretion, insert a direction in a search warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant shall be served only between the hours of 7 a.m. and 10 p.m." The trial court concluded that "[t]he judge's authorizing nighttime service was purely gratuitious [sic] and was error on his part, but it is my decision that that does not necessarily trigger the exclusionary rule. The officer in good faith believed that he had authorization to serve him at night." (10) The trial court's finding that the officer in good faith believed he had authorization for nighttime service cannot be sustained because the officer must have either known or should have known, since he was the affiant, that no facts were set forth in the affidavit to show that nighttime service was necessary.
The good faith exception to the exclusionary rule cannot be applied when the officer's reliance is not objectively reasonable. An officer cannot objectively rely on the validity of a nighttime endorsement when he knows that no facts to show the need for nighttime service have been presented to the magistrate and that the drug operation he expects to expose is an ongoing one as in this case.
As the Supreme Court recently clarified in People v. Kimble (1988) 44 Cal.3d 480, 494 [244 Cal. Rptr. 148, 749 P.2d 803]: "It is difficult, however, to anticipate all of the numerous factors that may justify the authorization of a nighttime search and we think that the Sixth Circuit in interpreting *1468 the comparable federal rule on nighttime searches adopted the proper perspective in suggesting that `[t]he Rule requires only some factual basis for a prudent conclusion that the greater intrusiveness of a nighttime search is justified by the exigencies of the situation. The procedural requirements of the Rule ensure that the fact that nighttime search is contemplated by the police is brought to the attention of a magistrate and that he or she consciously decide[s] whether such a particularly abrasive intrusion is called for in a given situation.' (United States v. Searp (6th Cir.1978) 586 F.2d 1117, 1121, ...)" (Fns. omitted.)
Detective Ward testified here that the basis for his "request" (presumably the signing of the form paragraph) was, "Nighttime service is any time you got people dealing in drugs there's always a danger of being shot or hurt, and I don't believe that was in the search warrant, but that was originally a warrant for a nighttime service." Section 1533 was amended by Statutes of 1986, chapter 257, section 1, and now provides that "[w]hen establishing `good cause' under this section, the magistrate shall consider the safety of the peace officers serving the warrant and the safety of the public as a valid basis for nighttime endorsements." But even under section 1533 as amended, some factual basis touching upon officer or public safety must be particularized to the search the officers plan to conduct and must, of course, be communicated to the magistrate. (People v. Kimble, supra, 44 Cal.3d at p. 494.)
Certainly drug dealers frequently possess weapons, as do criminals of other types, as well as private citizens seeking to protect their homes from nighttime intruders. Even in a justifiable concern for officer or public safety, those seeking authorization for nighttime service of a search warrant should be required to offer the magistrate some fact upon which the magistrate can conclude that the particular search under consideration requires nighttime service. Absent such a showing, a request for a nighttime endorsement should be declined by the magistrate.
(11a) Although we have concluded the officer executing the warrant to search the Brundage Street residence could not reasonably have relied upon the magistrate's authorization of a nighttime search, our conclusion does not necessarily dictate exclusion of the evidence seized in that search. We must first address, of course, this court's opinions in People v. Watson (1977) 75 Cal. App.3d 592 [142 Cal. Rptr. 245] and Tuttle v. Superior Court (1981) 120 Cal. App.3d 320 [174 Cal. Rptr. 576] in which we held that suppression of evidence seized in nighttime searches is compelled by the Fourth Amendment to the United States Constitution when good cause for service at night has not been shown as required by section 1533. (12) As we explained in Tuttle, "[t]ime of execution [of a search warrant] is a *1469 significant factor in determining whether or not in a constitutional sense a search is `unreasonable.'" (Id. at p. 331.)
(11b) We recognize that this court recently declined the Attorney General's invitation to retreat from the position taken in Watson and Tuttle. However, in People v. Lopez (1985) 173 Cal. App.3d 125 [218 Cal. Rptr. 799] we found the challenged search constitutionally valid under our earlier decisions and thus had no occasion to consider the effect of article I, section 28(d), of the California Constitution, added by Proposition 8 and set forth in footnote 4 above, on our earlier decisions. We do so now.
The mandate of section 28(d), i.e., relevant evidence shall not be excluded in any criminal proceeding, was explained in In re Lance W., supra, 37 Cal.3d 873, 886-887: "What Proposition 8 does is to eliminate a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled." Insofar as we held in People v. Watson, supra, and in Tuttle v. Superior Court, supra, that exclusion of evidence seized in violation of the nighttime search requirements of section 1533 was compelled not by the statute itself but by the fundamental purposes of the Fourth Amendment, it could be argued that Watson and Tuttle remain viable after the passage of Proposition 8. But we cannot end our inquiry so easily. Exclusion of evidence even when obtained in violation of the commands of the Fourth Amendment is not always required under current federal law. (See United States v. Leon, supra, 468 U.S. 897.)
More importantly, as this court in Tuttle v. Superior Court, supra, was placing section 1533 upon a Fourth Amendment footing, we nevertheless recognized that federal courts have declined to apply the exclusionary remedy for violations of federal nighttime search procedures. (Tuttle v. Superior Court, supra, 120 Cal. App.3d at p. 331, fns. 6-8.) Thus in Gooding v. United States (1974) 416 U.S. 430 [40 L.Ed.2d 250, 94 S.Ct. 1780], the United States Supreme Court upheld the applicability of a federal statute specifically directed to narcotic searches and permitting such searches at any time of day or night over a general District of Columbia statute which imposed certain limitations upon nighttime service of a warrant. In concluding the federal statute governed the challenged search, the Supreme Court did not resort to consideration of Fourth Amendment principles; it treated the issue as solely one of statutory interpretation. Likewise in United States v. Searp, supra, 586 F.2d 1117 the court distinguished between violations of constitutionally mandated procedures governing searches and seizures and procedures which are solely statutory in origin. Holding rule 41(c), Federal Rules of Criminal Procedure (18 U.S.C.), fell within this *1470 latter category, the court concluded that despite violation of the rule, exclusion of the evidence seized was not required. The court observed that "[w]hile the police failed to comply with the procedural requirements of Rule 41(c), the search was nevertheless `reasonable,' in the constitutional sense, because it was conducted pursuant to a valid state warrant, and met the requirements of the fourth amendment." (Id. at p. 1122.)
While we might justifiably distinguish the results reached in Gooding and in Searp prior to the passage of Proposition 8, we can no longer do so. If exclusion of evidence seized in searches violative of nighttime service requirements is not compelled under current federal law, evidence seized in violation of section 1533 should not be excluded if the search is otherwise reasonable in a constitutional sense. Nothing in the record before us suggests anything unreasonable in the nighttime search of the Brundage Street residence beyond the statutory violation in executing the warrant at approximately 10:30 p.m., and we therefore conclude the evidence seized in that search need not be excluded.
The petition for a writ of mandate or prohibition is denied and the order staying further proceedings is vacated.
Woolpert, Acting P.J., and Brown, (G.A.), J.,[*] concurred.
A petition for a rehearing was denied May 3, 1988.
NOTES
[1] Because both petitioners and the third defendant in the underlying action have the same surname, further references to each individually is usually by his or her first name.
[2] Further statutory references are to the Penal Code unless otherwise indicated.
[3] This court takes judicial notice of the record in case No. F008783, a petition for writ of mandate or prohibition by codefendant Alfredo Rodriguez following the superior court's denial of his section 1538.5 motion.
[4] Proposition 8 added section 28, subdivision (d) (hereafter section 28(d)), to article I of the California Constitution, which provides in relevant part: "Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, ..." (Italics added.)
[5] Aguilar v. Texas (1964) 378 U.S. 108 [12 L.Ed.2d 723, 84 S.Ct. 1509] and Spinelli v. United States (1969) 393 U.S. 410 [21 L.Ed.2d 637, 89 S.Ct. 584].
[*] Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.
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179 Ariz. 168 (1994)
876 P.2d 1203
MIDLAND RISK MANAGEMENT COMPANY, a Tennessee corporation, Plaintiff/Appellant,
v.
Dovie Pauline WATFORD and Robert M. Watford, Defendants/Appellees.
No. 2 CA-CV 94-0037.
Court of Appeals of Arizona, Division 2, Department B.
June 30, 1994.
*169 Johnson & Whiteman by H. Wayne Johnson and Blake E. Whiteman, Scottsdale, for plaintiff/appellant.
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A. by Ralph E. Hunsaker and Christopher Robbins, Phoenix, for defendants/appellees.
OPINION
ESPINOSA, Presiding Judge.
Appellees Dovie Pauline Watford and Robert M. Watford (the Watfords) were involved in an automobile accident with Phillip Genaro Sanchez while he was driving a vehicle insured by appellant Midland Risk Insurance Company (Midland) in the name of his wife, Tamara Louise Sanchez.[1] Midland denied automobile liability coverage for any claims arising out of the accident on the ground that Tamara Sanchez had obtained the policy from Midland by fraudulent misrepresentations and filed this declaratory judgment action. The trial court granted the Watfords' motion for summary judgment and denied Midland's cross-motion for summary judgment, finding that A.R.S. § 28-1170(F) mandates automobile liability insurance coverage *170 after an injury has occurred regardless of whether the policy was fraudulently procured. This appeal followed the denial of Midland's motion for reconsideration.
Facts
The facts are uncontested. In February 1992, Tamara Sanchez completed and signed a Personal Automobile Application (Application) for automobile liability insurance with Midland in which she stated that she was single, that there were no other drivers in her household, and that there were no other residents of her household over the age of 14. Later, at Midland's request, she completed and signed a Driver Disclosure Certification which required disclosure of all members of her household age 14 and over who were not listed as drivers or excluded on her Application. Sanchez again represented that there were no other residents of her household age 14 or over. In fact, when Sanchez completed the Application and Driver Disclosure Certification, she was married to Phillip Genaro Sanchez, and they resided together in Peoria, Arizona.
In March 1992, Phillip Sanchez was operating the vehicle insured in Tamara's name when he rear-ended a vehicle driven by Dovie Watford. As a result of this accident, Midland learned of Phillip Sanchez's existence and further discovered that he had been convicted of driving under the influence of alcohol, driving on a suspended license on two occasions, and violating the Financial Responsibility Act,[2] and that his driving privileges had been revoked for almost a year. Pursuant to Midland's underwriting guidelines and A.R.S. § 28-1170(B)(3), Midland would have excluded Phillip Sanchez from coverage had he been previously disclosed.
Standard of Review
In reviewing a summary judgment, we view the evidence in a light most favorable to the losing party, and give that party the benefit of all favorable inferences that may reasonably be drawn from the evidence. Hill-Shafer Partnership v. Chilson Family Trust, 165 Ariz. 469, 799 P.2d 810 (1990); Wisener v. State, 123 Ariz. 148, 598 P.2d 511 (1979). Summary judgment is appropriate where the facts are settled and a pure question of law is presented. United California Bank v. Prudential Ins. Co., 140 Ariz. 238, 681 P.2d 390 (App. 1983). We review such questions de novo. Employer's Mut. Casualty Co. v. McKeon, 170 Ariz. 75, 821 P.2d 766 (App. 1991).
Liability of the Insurance Carrier
The primary issue raised by this appeal is whether A.R.S. § 28-1170(F)(1) precludes an automobile liability insurer from avoiding coverage as to injured third parties even though the policy providing coverage was procured by the insured's deliberate and material misrepresentations in the insurance application. The trial court determined that, as a matter of law, § 28-1170 does not permit Midland to avoid coverage for the Watfords' claims.
The parties agree that but for the accident Midland could have rescinded the policy it issued to Tamara Sanchez as a result of her fraud. Midland, however, maintains that despite the accident it may avoid liability coverage in the instant case, contending that A.R.S. § 28-1170(F)(1) is inapplicable and the resolution of this issue is controlled by A.R.S. § 20-1109, which provides in part:
Misrepresentations, omissions, concealment of facts and incorrect statements shall not prevent a recovery under the policy unless:
1. Fraudulent.
2. Material either to the acceptance of the risk, or to the hazard assumed by the insurer.
3. The insurer in good faith would either not have issued the policy ... or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or otherwise.
Although fraud is a policy defense under § 20-1109, Midland's argument fails to recognize the full import of the Motor Vehicle *171 Safety Responsibility Act, and specifically § 28-1170(F)(1), which provides:
Every motor vehicle liability policy is subject to the following provisions which need not be contained in the policy:
1. The liability of the insurance carrier with respect to the insurance required by this chapter shall become absolute when injury or damage covered by the motor vehicle liability policy occurs. The policy may not be cancelled or annulled as to such liability by an agreement between the insurance carrier and the insured after the occurrence of the injury of damage, and no statement made by the insured or on his behalf and no violation of the policy shall defeat or void the policy.
This statute broadly mandates that an insurer's obligation to provide coverage "shall become absolute" whenever injury occurs. Unlike the provisions of § 20-1109, which apply to insurance policies of all kinds, § 28-1170 is applicable only to automobile insurance policies. It is a fundamental rule of statutory construction that courts will construe conflicting statutes in harmony when possible. Baker v. Gardner, 160 Ariz. 98, 770 P.2d 766 (1988). Where two statutes dealing with the same subject are seemingly in conflict, the more specific statute controls. Pima County v. Heinfeld, 134 Ariz. 133, 654 P.2d 281 (1982). As a matter of statutory construction, the general provisions of § 20-1109 do not override the more specific provisions of § 28-1170(F)(1). See, e.g., Farmer's Insurance Exchange v. Rose, 411 F.2d 270 (9th Cir.1969).
This result is further supported by our supreme court's determination that every automobile liability policy is subject to A.R.S. § 28-1170(F)(1), whether or not "certified" under the Act or expressly stated in the insurance contract. See Sandoval v. Chenoweth, 102 Ariz. 241, 428 P.2d 98 (1967); Jenkins v. Mayflower Ins. Exchange, 93 Ariz. 287, 380 P.2d 145 (1963). Because this was an automobile liability policy, once the Watfords were injured in the accident, § 28-1170(F)(1) superseded § 20-1109.
Midland relies on our decision in Keplinger v. Mid-Century Insurance Company, 115 Ariz. 387, 565 P.2d 893 (App. 1977), for the proposition that § 20-1109 is controlling due to the fraudulent conduct which occurred here. We have reexamined Keplinger and can find no support for Midland's conclusion. In that case, the accident victim appealed the trial court's finding that an automobile liability policy issued by the insurer to her husband was vitiated by his alleged misrepresentations in the application and did not cover injuries she sustained as a passenger in the insured car. Although we cited § 20-1109 as authority for the general policy defense of fraud or misrepresentation, we concluded that the carrier had not sustained its burden of establishing grounds for avoiding liability primarily because it had not shown it would have refused coverage for the loss had it known of the intended use of the insured vehicle. Thus, it was not necessary to consider the applicability of § 28-1170(F)(1).
Alternatively, Midland contends that even if A.R.S. § 28-1170(F)(1) is applicable, it does not mandate coverage under all circumstances and would not here. Midland asserts that § 28-1170(F)(1) must be interpreted to exclude from its application those insurers who undertake a reasonable investigation of insurability but are unable to discover the fraudulently concealed information. This is so, Midland argues, because it had the right to specifically exclude Phillip Sanchez under § 28-1170(B)(3), and would have had it known of his existence. Thus, requiring coverage under the instant circumstances places form over substance and promotes the fraudulent procurement of automobile insurance coverage. Although there is merit to Midland's argument, we find it contrary to the plain language and intent of § 28-1170(F)(1).
The primary principle of statutory interpretation is to determine and give effect to the legislative intent behind the statute, considering among other things the context of the statute, the language used and the spirit and purpose of the law. See Martin v. Martin, 156 Ariz. 452, 752 P.2d 1038 (1988); State Farm Mutual Auto Ins. Co. v. Wilson, 162 Ariz. 251, 782 P.2d 727 (1989). The Financial Responsibility Act was enacted in response to social and economic problems *172 arising from the increasing casualty rate on Arizona streets and highways. Sandoval, supra. Its primary purpose is the protection of the travelling public from financial hardship resulting from the operation of motor vehicles by financially irresponsible persons. Farmers Ins. Group v. Home Indemnity Co., 108 Ariz. 126, 493 P.2d 909 (1972); Schwab v. State Farm Fire & Casualty Co., 27 Ariz. App. 747, 558 P.2d 942 (1976). Midland suggests, however, that this purpose has since been undercut by the enactment of the Uninsured Motorist Act, A.R.S. § 20-259.01. We disagree. The protection afforded by that act is not applicable in all situations and may not necessarily protect all third parties in accidents caused by uninsured drivers. Indeed, the record before us does not indicate that it is applicable in the instant case.
As noted above, § 28-1170(F)(1) provides that the liability of an insurance carrier becomes "absolute" whenever injury or damage occurs. Further, "no statement made by the insured or on his behalf and no violation of the policy shall defeat or void the policy." The language of this section is straightforward. When a statute's language is clear and unequivocal, it is determinative of the statute's construction. Janson v. Christensen, 167 Ariz. 470, 808 P.2d 1222 (1991). In light of the plain language of § 28-1170(F)(1) and the legislature's overriding concern for victims of automobile accidents, we conclude that Midland's liability as to the Watfords became absolute upon the occurrence of the accident.
Our conclusion is bolstered by the decisions of our supreme court and other courts which have interpreted § 28-1170(F)(1). In Sandoval, supra, the court held that the insurer was liable to the injured third party despite acts by the insured in contravention of the express terms of the insuring policy, specifically, the insured's failure to notify the insurer that he had been served with a complaint for damages arising out of an accident. The court found this general defense precluded by § 28-1170(F)(1). Similarly, the Ninth Circuit Court of Appeals held that that law bars insurance companies from raising defenses of lack of cooperation by an insured, State Farm Mutual Automobile Ins. Co. v. Thompson, 372 F.2d 256 (9th Cir.1967), and operation of the vehicle by an intoxicated driver. Weekes v. Atlantic National Ins. Co., 370 F.2d 264 (9th Cir.1966).
Indeed, the Ninth Circuit has addressed nearly the identical issue raised here, concluding that § 28-1170(F)(1) precludes an insurer from raising the defense of fraud under § 20-1109. In Farmers Ins. Exchange v. Rose, supra, the insurance carrier sought a judicial declaration that the policy issued to its insured was void as a result of fraudulent and material misrepresentations by its insured and did not provide coverage to injured third parties arising out of an auto accident caused by the insured. The court held that § 28-1170(F)(1) mandated coverage despite the insured's fraudulent representations regarding his past driving and insurance record. In support of its conclusion, the court reasoned:
The defense which the company here wishes to assert fraud in applying for the policy is different from those held unavailable in the cases referred to above. However, it is difficult to see how the company could be any more prejudiced by a fraudulent statement in an application than it would be by the insured's lack of cooperation, operation of the vehicle by a drunk driver, or failure to notify the company of the commencement of a damage suit.... Moreover, the [accident victims] were ... blameless for [the insured's] fraud ... [and] stand to suffer as much if the company is permitted to prevail on the fraud defense as they would if it were permitted to prevail on any of these other defenses.
411 F.2d at 272.
Similarly, in Allstate Ins. Co. v. Dorr, 411 F.2d 198 (9th Cir.1969), the Ninth Circuit affirmed the lower court's finding pursuant to § 28-1170 that the liability of the insurance carrier became absolute upon the injury of the third parties, regardless of the fact that the insured had procured the policy by fraud. The court further concluded that the statute was not unconstitutional in its application.
We think that the economic burden placed by the Arizona statute upon companies *173 which sell liability insurance of paying an occasional claim which they would not, but for the statute, have had to pay, falls easily within the power of a legislature to legislate.
411 F.2d at 201. Although we are not bound by these decisions, we find them persuasive. Midland, however, distinguishes Rose and Dorr, arguing that in both these cases the insurer knew the identity of its insured and could have discovered the fraud prior to the accident had it more thoroughly investigated the insured's driving history.
While we might agree that here Midland had no reasonable opportunity to discover the fraud prior to the accident, this fact is not enough to sway our conclusion. The legislature and the courts of this state have expressly stated that the Financial Responsibility Act must be liberally construed to foster its main objective of making available to automobile accident victims the fullest benefits of insurance coverage. Geyer v. Reserve Ins. Co., 8 Ariz. App. 464, 447 P.2d 556 (1968). If inequity to insurers results, it is a matter that must be taken up with the legislature. Accordingly, we conclude that A.R.S. § 28-1170(F)(1) mandates coverage following an accident with injuries or damage notwithstanding the insurer's inability to discover fraudulent representations made in the insurance application. Our holding accords with decisions of other jurisdictions that have considered similar cases. See e.g. Barrera v. State Farm Mut. Auto. Ins. Co., 71 Cal.2d 659, 79 Cal. Rptr. 106, 456 P.2d 674 (1969); Safeway Ins. Co. v. Harvey, 36 Ill. App.3d 388, 343 N.E.2d 679 (1976); American Underwriters Group v. Williamson, 496 N.E.2d 807 (Ind. App. 3 Dist. 1986); Continental Western Ins. Co. v. Clay, 248 Kan. 889, 811 P.2d 1202 (1991); Fisher v. New Jersey Automobile Full Ins. Underwriting Assoc., 224 N.J. Super. 552, 540 A.2d 1344 (1988); Allstate Ins. Co. v. Matthews, 40 Misc.2d 409, 243 N.Y.S.2d 114 (1963); Aetna Casualty & Surety Co. v. O'Connor, 8 N.Y.2d 359, 170 N.E.2d 681, 207 N.Y.S.2d 679 (1960); Odum v. Nationwide Mutual Ins. Co., 101 N.C. App. 627, 401 S.E.2d 87 (1991). See also 7 Am.Jur.2d, Auto Insurance § 37 (1980); C.C. Marvel, annotation, Rescission or Avoidance for Fraud or Misrepresentation of Compulsory, Financial Responsibility, or Assigned Risk Automobile Insurance, 83 A.L.R.2d 1104 (1962).
Attorneys' Fees
Appellees request attorneys' fees and costs incurred in the trial court pursuant to A.R.S. § 12-341.01 and ask that we remand this matter for the court to determine the amount of attorneys' fees recoverable. We decline to do so.
The record and briefs reflect that the Watfords at no time prior to the entry of judgment requested fees, not even in their answer to Midland's complaint. Despite this fact, the trial court awarded the Watfords attorneys' fees in a second judgment dated December 14, 1992. This judgment was subsequently vacated when the court was made aware that the notice of appeal had been previously filed. See Trebilocox v. Brown & Bain, P.A., 133 Ariz. 588, 653 P.2d 45 (App. 1982) (trial court may not award attorneys' fees after the filing of a notice of appeal), overruled on other grounds, Barmat v. John and Jane Doe Partners A-D, 155 Ariz. 519, 747 P.2d 1218 (1987).
The Watfords concede that they did not comply with Rule 3.7(e)(1), Local Rules of Practice for Maricopa County, 17B A.R.S., which requires that a claim for attorneys' fees pursuant to A.R.S. § 12-341.01 be made "in the pleadings, in the joint pretrial statement, or by written notice filed and served prior to the trial or other determination on the merits of the cause." Despite their inaction, they assert that their noncompliance should not prohibit them from a "common and universally accepted award of attorney's fees in an action arising out of contract." We also note that appellees failed to raise this issue by cross-appeal. Absent a cross-appeal, an appellate court may not alter the lower court's judgment "to enlarge the rights of the appellee." See Larkin v. State ex rel. Rottas, 175 Ariz. 417, 857 P.2d 1271 (App. *174 1992); Ariz.R.Civ.App.P. 13(b)(3), 17B A.R.S. Moreover, even if the issue were properly raised, the Watfords offer no reason for their failure to comply with Rule 3.7(e)(1).
The judgment of the trial court is affirmed. Appellees' timely request for fees and costs on appeal pursuant to A.R.S. § 12-341.01 is granted upon compliance with Ariz.R.Civ. App.P. 21(c), 17B A.R.S.
DRUKE, C.J., and HATHAWAY, J., concur.
NOTES
[1] Appellees' accident was one of four separate accidents that Phillip Sanchez was involved in on March 27, 1992. Although other parties were involved in the original lawsuit, the only claims on appeal are those of the Watfords.
[2] A.R.S. § 28-1161, et seq.
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79 F.Supp. 91 (1948)
HORNE
v.
TITLE INSURANCE & TRUST CO. et al.
No. 7369.
District Court, S. D. California, Central Division.
June 29, 1948.
*92 Lillick, Geary & McHose and Reid R. Briggs all of Los Angeles, Cal., for plaintiff.
Fred Aberle, of Los Angeles, Cal., for defendants.
MATHES, District Judge.
Plaintiff, a citizen of the State of Washington, seeks a declaratory judgment pursuant to 28 U.S.C.A. § 400. She invokes the jurisdiction of this court under 28 U.S.C.A. § 41(1), alleging that the matter in controversy exceeds the $3,000 minimum and is between citizens of different states. Defendant Title Insurance and Trust Company is a California corporation, defendant Day a citizen of Ohio, and defendant Miller a citizen of Illinois.
As appears from admissions in the pleadings, stipulations made at pre-trial and evidence adduced upon the trial, the controversy arises from the following facts: In 1940 defendant Title Insurance and Trust Company received certain properties from one George E. Day to be held in trust for the benefit of certain named beneficiaries in accordance with the provisions of a declaration of trust known as Trust No. P-10453, and then executed by the title company as "Trustee" and by the trustor's son, William H. Day, as "co-trustee."
The trustor declared the trust to be irrevocable, and, so far as of interest here, the declaration further provided:
(1) that monthly payments of $833.33 be made to the co-trustee, William H. Day, during his lifetime, "in the payment of which the Trustee shall resort firstly to income and secondly to corpus";
(2) that monthly payments of $250 be made to "Frances Day (wife of William H. Day)" during the life of the trust following death of the co-trustee if "said Frances Day" survive him;
(3) that the remainder of the net income, if any, "shall be added to the principal of the trust estate * * *";
(4) that the trust shall terminate "upon the death of the survivor of * * * William H. Day and the said Frances Day (wife of William H. Day)", or upon remarriage of Frances Day if she be the survivor;
(5) that upon such termination of the trust, the entire net trust estate "shall pass and vest and thereupon be delivered by the Trustee," except 40% thereof not involved here, as follows:
(a) "20% thereof shall be distributed to [defendant] Walter S. Day";
(b) "20% thereof shall be distributed to [defendant] Richard Miller";
(c) "20% thereof shall be distributed to Gwendolyn Smith * * *", now Horne, plaintiff at bar; and
(6) that "as to the distributions to be made under the provisions * * * [just stated under (5)], William H. Day, during the * * * time * * * he shall be acting as co-trustee * * *, shall have the absolute right and power, with the approval of the Trustee, to prescribe and direct the Trustee that the distribution shall be made in different proportions than those provided; and in the event the said William H. Day, as such co-trustee, shall have exercised this discretionary power, with the approval of the Trustee, the Trustee shall make the distributions in accordance therewith. * * *"
*93 Prior to 1946, Frances Day, the wife of William H. Day named in the declaration of trust, died. On May 17, 1946, the attorney for co-trustee William H. Day wrote plaintiff:
"As you know, Mr. Day recently remarried, and under the terms of Trust No. 10453, Mrs. Ruth Day does not and would not participate in any of the principal or income of said Trust at the time of Mr. Day's death.
"It is the desire and request of my client that separate agreements be entered into as between yourself and the present Mrs. Day, * * * whereby out of the 20% interest which you are entitled to under the terms of said Trust at the * * * death of Mr. Day, that you personally agree to pay * * * 7-½% of your amount [to the present Mrs. Day].
"Similiar requests are being made to Mr. Walter S. Day and Mr. Richard Miller. * * *"
Plaintiff replied requesting further information. On June 2nd co-trustee William H. Day himself wrote plaintiff at length of his wishes, stating in part: "Dad * * * drew up TR-10453 for my exclusive benefit but we both overlooked the possibility that Frances would precede me in death. * * * Now at my death Ruth gets nothing whatever except my own private estate. * * * Since Frances' share of 10453 was to have been 40% and since I do not wish to wreck the trust * * * I am trying to so arrange it that at my death Ruth can have something more. * * * Richard Miller and Walter Day each have agreed to give up 7-½% or about 1/3 of the 20% they will receive. * * * If you now agree, then Ruth will receive at my death 3 × 7-½%. * * *"
Plaintiff replied on June 10th declining to agree, saying: "Will, I don't see any reason why I should take any * * * actions in changing your Father's trust. * * *" On July 2nd, the co-trustee's attorney again wrote plaintiff enclosing a proposed agreement between Ruth Day and plaintiff, whereby the latter agreed to pay to the former 37 ½% of the total amount received by plaintiff "as her distributive interest under the terms of said Trust. * * *"
Plaintiff declined to execute the agreement, and on August 8th, co-trustee William H. Day wrote again at length urging plaintiff to consent to the proposal, adding: "Now Gwen I am going to be frank and say your letter to me hurt me so I simply could see no reason to reply. * * * I planned this trust myself and do not wish to change it to the detriment of anyone. * * * Now Gwen I have gone to great lengths in this letter to have peace and understanding. I cannot go any farther. * * *" Plaintiff did not reply; nor did she execute the requested agreement.
On November 26th, William H. Day, as co-trustee, wrote defendant Title Insurance and Trust Company, as trustee, that "the undersigned, by reason of the authority vested in him as co-trustee, and subject to the approval of your company as Trustee, hereby directs that the provisions [of the Trust] be changed * * *" so that upon termination, instead of 20% each, the distributive shares in question would be as follows:
(a) "28% thereof * * * to Walter S. Day";
(b) "28% thereof * * * to Richard Miller";
(c) "4% thereof * * * to [plaintiff] Gwendolyn Smith * * *."
On the same date the trustee acknowledged receipt of the co-trustee's requested amendment, and certified that "said amendment and modification be, and the same is hereby accepted and approved." On November 29th, the trustee wrote plaintiff informing her of the "direction from William H. Day, co-trustee * * * changing the distributable percentages * * * of said trust." The letter concludes: "Said direction has been accepted and approved by this company as trustee, in accordance with the terms of said trust."
On November 30th, William H. Day wrote plaintiff: "Your refusal to join Richard Miller * * * and Walter Day in assenting to any change has forced *94 me to go through a very expensive legal process."
"In accordance with original terms of the trust * * * you would have received 20% of the principal * * * at my death, whereas now you will receive but 4% as you will note. * * *
"I tried to arrange this in a friendly way but your uncompromising attitude made it impossible.
"I deeply regret being forced to do this. * * *"
On December 6th, plaintiff wrote the trustee: "Referring to your approval of the transfer of percentages from trust P-10453 in the amount of 16% of my 20% to Richard Miller and Walter S. Day. * * * This transaction involves the loss to me of roughly $16,000 and without just cause. Please send me at once all the information and reason why you sanctioned such a drastic change in this trust."
Defendant Title Insurance and Trust Company replied to plaintiff on December 9th: "The change in the distributive percentages * * * was made in accordance with the terms of the trust and upon the written direction of William H. Day, co-trustee. * * * Upon receipt thereof, the matter was submitted to our trust officer and trust counsel, neither of whom could find any valid reason why we should not accept and approve such direction. It was, therefore, accepted and approved in accordance with the terms of the trust."
On December 17, 1946, William H. Day died, and Trust No. P-10453 ipso facto terminated.
Plaintiff contends "that the purported exercise by said William H. Day of his power to effect such change in the distributive shares under said Declaration of Trust was invalid and ineffective and that it was not bona fide and in furtherance of the Declaration of Trust but was fraudulent and intended by means of said separate agreements to accomplish in substance distribution of a portion of the trust estate to a stranger to the trust, Ruth Day," who was not an object of the power of appointment reposed in William H. Day by the trustor.
As set forth in the pre-trial stipulation, "It is the position of Title Insurance and Trust Company that the co-trustee, William H. Day, was vested with the absolute right and power, with the approval of said Title Insurance and Trust Company, to prescribe and direct said Title Insurance and Trust Company that distribution be made in any proportions which said co-trustee, William H. Day, might desire, and that there was vested in William H. Day the discretionary power, with the approval of Title Insurance and Trust Company, to make distributions in accordance therewith and that when said direction is once made and said power exercised, that same cannot be collaterally or otherwise attacked by a beneficiary."
Plaintiff concedes that a trustee holding an absolute power to appoint within a limited class may be even arbitrary or capricious in its exercise, but urges that the power may not be exercised in bad faith or with an intent to benefit a non-object of the power, as plaintiff maintains was done here.
The powers of the "Trustee" and the "co-trustee" and the legal effect of their acts in question must be determined by the law of California [Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; In re Estate of Bowditch, 1922, 189 Cal. 377, 208 P. 282, 23 A.L.R. 735; Restatement, Conflicts, §§ 286, 287].
It is of the very essence of the fiduciary relationship between trustee and beneficiary that the trustee at all times act in good faith, both in his dealings with the beneficiary and in carrying out the objects for which the trust was created. [cf. Cal.Civ.Code, § 2228.] The fact that a trustee is given "absolute discretion" in executing the power with which he is entrusted does not give him unbounded freedom of action. If his actions are not in good faith or would defeat a purpose of the trust, the trustee's discretion is subject to judicial control. [cf. Cal.Civ.Code, §§ 4, 5, 2269; In re Marsden's Trust, 4 Drewry 594, 62 Eng.Repr. 228 (1859); Scott on Trusts, § 187.]
*95 In determining whether the trustee is acting fraudulently or in bad faith the "real question is whether it appears that the trustee is acting in that state of mind in which it was contemplated by the settlor that he should act." [Scott on Trusts, supra, § 187.] The evidence at bar establishes to my satisfaction that co-trustee Day would not have attempted to change the distributive shares but for a desire to benefit his wife Ruth a non-object of the power. The agreements made between Ruth and defendants Richard Miller and Walter Day, read in the light of the correspondence, demonstrate that benefit to Ruth was the sole purpose of the appointment.
The rule has long been settled at common law that "If a donee of a special power makes an appointment to an object of the power in consideration of a benefit conferred upon or promised to a non-object, the appointment is ineffective to whatever extent it was motivated by the purpose to benefit the non-object * * *." [Restatement, Property, § 353]. Such an exercise of a special power is held to be a fraud upon the power and hence void. [Matter of Carroll, 1937, 274 N.Y. 288, 8 N.E.2d 864, 115 A.L.R. 923; Chenoweth v. Bullitt, 1928, 224 Ky. 698, 6 S.W.2d 1061; Degman v. Degman, 1896, 98 Ky. 717, 34 S.W. 523; Pitman v. Pitman, 1943, 314 Mass. 465, 50 N.E.2d 69, 150 A.L.R. 509.] Decisions of the courts of England have added the reverence of antiquity to this principle [Lee v. Fernie, 1 Beavan 483, 48 Eng.Repr. 1027 (1839); In re Marsden's Trust, supra, 4 Drewry 594, 62 Eng.Repr. 228; In re Kirwan's Trusts, L.R. 25 Ch. Div. 373 (1883)], and in the absence of California decisions or statutes to the contrary, the law of California must be presumed to be in accord with the common law of England [Cal.Pol.Code, § 4468].
The manifest purpose of the rule is to insure that the intention of the donor of the power be effectuated. An appointment to a non-object, by direction or indirection, patently negatives the donor's intent, is technically a fraud on the power, and a breach of trust. Such action by a trustee in fraud of a power necessarily defeats at least in part the purpose of the trust. When such a circumstance exists, a court of equity should declare the appointment void. [In re Kirwan's Trusts, supra, L.R. 25 Ch. Div. 373 (1883); Chenoweth v. Bullitt, supra, 1928, 224 Ky. 698, 6 S.W.2d 1061.]
It is urged that since the evidence does not show defendant Title Insurance and Trust Company was a party to the "fraud" knew of the co-trustee's purpose to benefit a non-object of the power the appointment is valid because only partly tainted. There is no merit to this contention. Both trustee and co-trustee "must unite in any act to bind the trust property" [Cal.Civ.Code, § 2268]. If one is legally incapable of uniting with the other to do an act, the purported joint action can have no legal effect.
Moreover, the Civil Code of California provides in § 2239 that "a trustee is responsible for the wrongful acts of a co-trustee to which he consented * * *." It is not necessary that the co-trustee act with the state of mind of the wrongdoer to share responsibility for wrongful acts. It is likewise unnecessary that the consenting trustee have the fraudulent state of mind of his co-trustee to render the united action ineffective.
It is my opinion, therefore, that the challenged exercise by the trustees of the power of appointment conferred under Trust No. P-10453 was ineffective to change the distributive shares. It follows that plaintiff is entitled to 20% of the net trust estate available for distribution.
Counsel for plaintiff will submit findings of fact, conclusions of law and judgment pursuant to local rule 7 within ten days.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LINDA L. YOUNG, :
:
Plaintiff, : Civil Action No.: 08-997 (RMU)
:
v. : Document Nos.: 5, 7
:
VERIZON COMMUNICATIONS, INC., :
:
Defendant. :
MEMORANDUM OPINION
GRANTING THE DEFENDANT’S MOTION TO DISMISS AND
DENYING AS MOOT THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter comes before the court on the defendant’s motion to dismiss and/or for summary
judgment. On June 10, 2008 the pro se plaintiff filed a complaint against the defendant alleging
employment discrimination and retaliation. See generally Compl. She filed an amended complaint
on June 17, 2008, providing additional detail about the alleged discriminatory and retaliatory acts.
Id. On July 10, 2008, the defendant filed a motion to dismiss and/or for summary judgment. See
generally Def.’s Mot at 1. The defendant, Verizon Communications, Inc., claims that it did not
employ the plaintiff; rather that the plaintiff was employed by Verizon Virginia, Inc., a subsidiary of
the defendant that is incorporated and maintains its primary place of business in Virginia and does
not transact business in the District of Columbia. Id. at 2 n.2. As such, the defendant argues that
this court does not have jurisdiction over the correct defendant – Verizon Virginia, Inc. Id. at 3.
The defendant also claims that the plaintiff failed to effect proper service by serving a individual
who is not an officer or registered agent of either the named defendant or Verizon Virginia, Inc. Id.
at 4.
After the plaintiff failed to timely oppose the defendant’s motion, on August 13, 2008 the
court ordered the plaintiff to file a response on or before September 1, 2008, specifically advising
the plaintiff that the court would “accept any factual assertions in the defendant’s affidavits as true
unless the plaintiff submits [her] own affidavits or other documentary evidence contradicting the
defendant’s assertions.” Minute Order (Aug. 13, 2008) (citing Neal v. Kelly, 963 F.2d 453, 456-57
(D.C. Cir. 1992)) (emphasis added). The plaintiff filed “Plaintiff [sic] Request to Deny Defendant’s
Motion for Dismissal of this Complaint” (“Pl.’s Opp’n”) on September 30, 2008. In this late-filed,
two-page document the plaintiff lists the attorneys she has contacted in an attempt to secure
representation and briefly explains her financial hardship. See generally Pl.’s Opp’n. She also
states that the charges against “Verizon [are] accurate . . . and easily can be proven.” Id. at 1.
Despite the court’s urging, the plaintiff did not set forth any factual arguments or provide any
documentary evidence regarding the issues challenged by the defendant. See generally id. Although
the court accepts the late filing, the plaintiff still failed to substantively oppose the defendant’s
motion. Accordingly, the court treats the motion as conceded. Twelve John Does v. District of
Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997) (noting that arguments not addressed are treated as
conceded).
For the foregoing reasons, the court grants the defendant’s motion to dismiss and denies as
moot the defendant’s motion in the alternative for summary judgment.1 An Order consistent with
this Memorandum Opinion is separately and contemporaneously issued this 17th day of March
2009.
RICARDO M. URBINA
United States District Judge
1
This dismissal shall be without prejudice for a period of ninety days after which it will become a
dismissal with prejudice.
2
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Case: 19-10913 Document: 00515372435 Page: 1 Date Filed: 04/06/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10913 April 6, 2020
Conference Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
ROMULO RAMOS-DIAZ,
Defendant−Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 3:18-CR-185-5
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Romulo Ramos-Diaz has moved to
* 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: 19-10913 Document: 00515372435 Page: 2 Date Filed: 04/06/2020
No. 19-10913
withdraw and has filed a brief per Anders v. California, 386 U.S. 738 (1967),
and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Ramos-Diaz has not
filed a response.
We have reviewed counsel’s brief and the relevant portions of the record.
We concur with counsel’s assessment that the appeal presents no nonfrivolous
issue for appellate review. Accordingly, the motion to withdraw is GRANTED,
counsel is excused from further responsibilities herein, and the appeal is
DISMISSED. See 5TH CIR. R. 42.2.
2
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981 F.2d 1264
Fields (Harvey A.)v.Spencer (Felton), Kelly (Howard)
NO. 92-8098
United States Court of Appeals,Eleventh Circuit.
Dec 21, 1992
M.D.Ga., 977 F.2d 599
1
DENIALS OF REHEARING EN BANC.
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705 S.E.2d 355 (2010)
STATE of North Carolina
v.
Lisa Louise GREENE.
No. 544P07-2.
Supreme Court of North Carolina.
December 15, 2010.
Robert C. Montgomery, Special Deputy Attorney General, for State of NC.
Barbara S. Blackman, Assistant Appellate Defender, for Greene, Lisa Louise.
Anne M. Middleton, Assistant Attorney General, for State.
Charles Reece, Assistant Attorney General, for State.
Roxann Vaneekhoven, District Attorney, for State.
ORDER
Upon consideration of the petition filed on the 28th of September 2010 by Defendant in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals:
"Denied by order of the Court in conference, this the 15th of December 2010."
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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 February 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-40828
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELVIN MOTA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-22-ALL
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Melvin Mota appeals his conviction and sentence for being
illegally present in this country following a deportation, in
violation of 8 U.S.C. § 1326. Mota challenges the
constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than
elements of the offense that must be found by a jury in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000).
*
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. 05-40828
-2-
Mota’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Mota contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, we have repeatedly
rejected such arguments on the basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Mota
properly concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
AFFIRMED.
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399 So.2d 1352 (1981)
CIG CONTRACTORS, INC.
v.
MISSISSIPPI STATE BUILDING COMMISSION.
No. 52681.
Supreme Court of Mississippi.
June 3, 1981.
Rehearing Denied July 8, 1981.
Rolf L. Anderson, Reynolds & Johnson, Jackson, for appellant.
Bill Allain, Atty. Gen. by Richard E. Ulmer, Sp. Asst. Atty. Gen., Donald Clark, Jr., McKibben, Tolbert & Associates, Jackson, for appellee.
Before SMITH, P.J., and WALKER and BROOM, JJ.
*1353 WALKER, Justice, for the Court:
Cig Contractors, Inc. filed a declaration in the Circuit Court of the First Judicial District of Hinds County, Mississippi, against the Mississippi State Building Commission, seeking damages in the sum of $120,000 which were alleged to have resulted from the Commission's breach of contract. The trial court sustained the demurrer to the declaration and Cig appeals.
The declaration alleges that Cig Contractors, Inc., and the Mississippi State Building Commission entered into a contract on February 17, 1975, for the construction of a portion of the physical science facility (chemistry building) at the University of Mississippi. This contract required Cig to be responsible for the concrete, masonry, and general contracting work on the project. The Building Commission entered into separate contracts with B.J. Lee Company for the mechanical portion; Warren Electric Company for the electrical portion; and Hamilton Industries, Inc., for the laboratory case-work portion.
The declaration further alleges that after the Building Commission issued the notice to proceed, Cig began the excavation work for the construction of the utilities tunnel which was to be built under the main structure of the project. After installing the utility tunnel, Cig backfilled around the tunnel as required by the plans and specifications. *1354 B.J. Lee Company then excavated down to the elevation required to install various mechanical pipes which entered the walls of the tunnel. After the back fill around the tunnel was put back in place under the inspection and observation of the Building Commission, Cig placed a concrete slab on top of the backfill. Sometime after the concrete slab was poured it was noted that one of the pipes extending out of a concrete wall in an area adjacent to the elevator shaft was tilted. Upon further investigation it was found that the pipe had no soil compacted around it. It became necessary for Cig to remove the concrete slab in order to rebuild and replace the subsoil which had eroded from under the slab.
In its declaration Cig seeks to recover $80,000, the repair costs incurred by Cig involved in removing and replacing the concrete slab and compacting the soil underneath it. The suit also seeks to recover from the Building Commission an additional $40,000 in overhead costs.
The declaration alleges that the Building Commission had the duty to test and inspect the soil prior to the placing of the concrete slab by Cig, quoting Section 2c of the specifications to the contract, which states:
Soils Testing and Inspection Service: Owner will provide soils testing and inspection service for quality control testing during earth-work operations.
The declaration also alleges that B.J. Lee Company, under its contract with the Building Commission, was to have packed in the dirt below the concrete slab in order to prevent water from entering the subgrade, and that the Building Commission's failure to enforce these provisions of B.J. Lee Company's contract damaged the work of Cig, requiring the extensive repairs. The declaration also alleges that the Commission's actions or inactions were a breach of its implied promise and obligation to coordinate and cooperate with Cig and to do nothing which would hinder, delay or otherwise interfere with the performance by Cig of its contract.
To this declaration the Building Commission demurred, which demurrer was sustained by the trial court. The demurrer was grounded upon two theories:
(1) The Building Commission was not subject to suit because of sovereign immunity; and
(2) The declaration failed to state a cause of action.
The order sustaining the demurrer does not state upon which ground it is founded, but the parties agree that the lower court orally indicated that it was sustained upon the ground of sovereign immunity.
Much of the briefs of both parties addresses the question of whether or not the defense of sovereign immunity was waived by the legislature when it included in the power granted to the Building Commission by Chapters 280 of the Laws of 1956, the authority to "contract and be contracted with and to sue and be sued." The appellee Building Commission contends that the authority to sue and be sued in contractual matters under this Act of the legislature is limited to certain "revenue producing projects." However, in Horne v. State Building Commission, 233 Miss. 810, 823, 103 So.2d 373 (1958), a case which did not involve a revenue producing project, the Court commented on the applicability of that act saying:
Prior to the enactment of Chapters 280 of the Laws of 1956, approved April 5, 1956, there was no statute which conferred upon the State Building Commission the power and authority to sue or be sued.
Section 1 of the Act provides:
The State Building Commission created by Chapter 328, Laws of Mississippi, 1944, as amended by Chapter 276, Laws of Mississippi, 1946, and Chapter 467, Laws of 1950, is hereby continued as a public body corporate of the State of Mississippi and, in addition to the powers and duties otherwise prescribed by law, the State Building Commission shall have powers and duties hereinafter set forth and granted. (Emphasis added).
*1355 Although the question was not expressly before the Court in Horne, supra, we are of the opinion that Chapter 280 of the Laws of 1956 granting the State Building Commission the power to "contract and be contracted with and to sue and be sued,"[1] is supplemental to the existing general powers and authority of the State Building Commission in contractual matters and not limited to the "revenue producing projects" referred to in that Act. The portions of the Act which are limited to certain revenue producing projects are clearly and unambiguously so designated.
Moreover, this writer doubts seriously that this Court would uphold a claim of sovereign immunity in contractual matters between a subdivision of the State and individuals doing business with it. The general rule is that when the legislature authorizes the State's entry into a contract, the State necessarily waives its immunity from suit for a breach of such contract. 81A C.J.S. States § 172 (1977). Where the state has lawfully entered into a business contract with an individual, the obligations and duties of the contract should be mutually binding and reciprocal. There is no mutuality or fairness where a state or county can enter into an advantageous contract and accept its benefits but refuse to perform its obligations.
Although this declaration may be inartfully drawn, it is obviously an attempt to allege what amounts to a breach of contract, and therefore, the defense of sovereign immunity is not available in this instance.
The Building Commission also contends, that even if the lower court was wrong in sustaining the demurrer on the ground of sovereign immunity the decision should be affirmed if that decision was correct for any other reason, in this instance, if the declaration failed to state a cause of action.
The Building Commission argues that this declaration failed to state a cause of action upon which the relief sought could be granted. It contends that the express provisions of the contract negative any allegations that the Building Commission owed any implied duty to coordinate the work of the separate prime contractors on this project. However, the plaintiff did not attach a copy of the contract to its declaration and nowhere in the record is a copy of the contract provisions to be found. In 17A C.J.S. Contracts § 535 (1963), it is stated:
Where a written agreement is pleaded in haec verba, its terms, rather than allegations pertaining thereto, control in determining the construction of the contract and the sufficiency of the pleading as against a demurrer. In such case an allegation inconsistent with the legal effect of the writing or putting a false construction thereon may be struck out as surplusage but is not ground for demurrer. On the other hand, where the contract is not set out in haec verba but only the substance, or the pleader's construction of the provisions, thereof is stated, a demurrer to the petition must be ruled on the language of the petition, rather than the language of the contract. A further effect of a failure to set out the contract in haec verba is that a particular defect therein may be disclosed only by the evidence, and not by the pleading, and hence is not available on demurrer.
Although no recent Mississippi cases could be found on this subject, there is an old case which holds it is not necessary to use the words of the party, but the plaintiff may declare according to their legal effect, in declaring on a written contract. Mullen v. Jelks, 1 Miss. (Walk.) 205 (Miss. 1825).
However, there are numerous cases from this State in which it is said that all well-pleaded allegations of a declaration must be taken as true in considering whether a demurrer should be sustained or overruled. Downs v. Corder, 377 So.2d 603 (Miss. 1979); Poole v. Brunt, 338 So.2d 991 (Miss. 1976).
If the allegation in the declaration that the Building Commission was to perform testing and inspection of the soil prior to *1356 Cig placing the concrete slab is taken as true, along with the allegation that the Building Commission failed to perform this obligation thereby causing damages to the plaintiff, then this declaration does set out a cause of action sufficiently to overcome the demurrer, and the lower court erred in sustaining same.
The Building Commission contends that this case is factually on all fours with Hanberry Corp. v. State Building Commission, 390 So.2d 277 (Miss. 1980). However, in that case the express provisions of the contract were attached to the declaration, and the Court was able to determine that the express provisions negatived any allegation that the Building Commission had an implied contractual duty to coordinate the work of the three prime contractors and to see that the work of each was performed properly. Although this is the same, or substantially the same, allegation contained in this declaration, the express provision of this contract are not before the Court, and the Court cannot rely on them to affirm the sustaining of a demurrer. In this case, it must be assumed as true that the contract states what the pleadings say it states. If the contract does not state what the declaration says it states, the suit will no doubt fail on the evidence.
For the reasons stated above, the order of the trial court sustaining the Building Commission's demurrer is reversed and this cause is remanded thereto for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.
PATTERSON, C.J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.
NOTES
[1] Such grant of authority does not extend to tort claims. French v. Pearl River Valley Water Supply District, et al., 394 So.2d 1385 (Miss. 1981).
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974 F.2d 1332
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Randi D. SLOAN, a/k/a Robert H. Ketchum, Plaintiff-Appellant,v.CITY of Asheville Police; Buncombe County; John Doe Nos.1-4, Defendants-Appellees.
No. 91-6330.
United States Court of Appeals,Fourth Circuit.
Submitted: April 14, 1992Decided: September 1, 1992
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Richard L. Voorhees, Chief District Judge. (CA-91-117-A)
Randi D. Sloan, Appellant Pro Se.
W.D.N.C.
Affirmed in part, vacated in part, and remanded.
Before HALL, WILKINS, and HAMILTON, Circuit Judges.
OPINION
PER CURIAM:
1
Robert H. Ketchum, a/k/a Randi D. Sloan, a/k/a Kent O. Norman, appeals from a judgment of the district court dismissing his 42 U.S.C. § 1983 (1988) action as frivolous. See 28 U.S.C. § 1915(d) (1988). Because there is a possibility that Ketchum could prove a set of facts meriting relief for some of his claims, we vacate in part the district court's decision.
2
Ketchum alleges that while he was homeless in North Carolina he was falsely arrested and his social security card and other identification were confiscated by unknown City of Asheville police and Buncombe County sheriff's deputies. He specifies the location and year of two arrests, and the year of a third arrest. He also alleges that other prisoners were allowed to attack him when he was put in Buncombe County Jail by sheriff's deputies, presumably after one of these arrests. He asserts that a policy exists that allows police to harass and intimidate homeless people. He also maintains that discovery would be required before he can specifically identify the offending police officers. The district court found that "the plaintiff's complaints touch on fourth, fifth, eighth and fourteenth amendment issues" but "his contentions are without a factual basis and are, at best, fanciful; therefore, plaintiff's complaint is frivolous within the meaning of section 1915(d)."
3
Pursuant to § 1915(d), a court may dismiss the case of a litigant authorized to proceed in forma pauperis,"if satisfied that the action is frivolous." However, dismissal under § 1915(d) is not appropriate where a plaintiff's factual contentions are not clearly baseless, or there is a basis for the claim in law. Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). When a complainant's allegations are not obviously "fantastic and delusional," the possibility, however remote, that a plaintiff can prove a set of facts meriting relief, justifies proceeding with service of process on defendants. See Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990); Neary v. Dugger, 766 F.2d 456, 457 (11th Cir. 1985); Boyce v. Alizaduh, 595 F.2d 948, 953 (4th Cir. 1979); Wooten v. Shook, 527 F.2d 976, 977-78 (4th Cir. 1975). Factual deficiencies must normally wait until the defendant attacks the lack of such details on a Fed. R. Civ. P. 12(b)(6) motion. See Neitzke, 490 U.S. at 329-31.
4
There is nothing inherently "fantastic or delusional" about allegations by a homeless person that he was harassed or his property confiscated by police. See, e.g., American Fed'n of R.R. Police, Inc. (AFRP) v. National R.R. Passenger Corp. (Amtrak), 832 F.2d 14 (2d Cir. 1987); Pottinger v. City of Miami, 720 F. Supp. 955 (S.D. Fla. 1989). Homeless individuals may have compelling liberty and property interests in personal identification, not only because of the importance of these documents as a prerequisite to receipt of government benefits, but to avoid police harassment of the type alleged in Ketchum's complaint. See, e.g., Brown v. Texas, 443 U.S. 47 (1979).
5
The real problem with Ketchum's claims is not that they are obvious figments of a deranged imagination, but that he is unable to state the names of the police officers and other officials who allegedly violated his rights, or the specific time of the alleged violations. Ketchum's inability to identify individual Defendants by name or the precise time of all the incidents does not in itself warrant dismissal of his claims as frivolous. Allegations in the complaint concerning false arrest and confiscation of property probably allow for specific persons and times to be subsequently identified justifying a responsive pleading. See Fed. R. Civ. P. 8(e)-(f); Nance v. Kelly, 912 F.2d 605, 607 (2d. Cir. 1990); Smith-Bey v. Hospital Adm'r, 841 F.2d 751, 759 (7th Cir. 1988); Riblet Tramway Co. v. Monte Verde Corp., 453 F.2d 313, 318-19 (10th Cir. 1972).1 The district court's decision is therefore vacated, and remanded2 for further proceedings insofar as it pertains to Ketchum's confiscation and false arrest allegations.3
6
Ketchum's inexcusable failure to cite the year in which sheriff's deputies allegedly allowed other prisoners to assault him, even after he was provided an opportunity to amend his complaint, rendered responsive pleading too difficult to allow him to proceed with this allegation. See Riblet Tramway Co., 453 F.2d at 318-19. His other allegations are not sufficiently particularized to state a claim for relief.
7
The district court's dismissal of that part of Ketchum's complaint which does not pertain to his confiscation and false arrest allegations is affirmed. 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.
8
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
1
Where a pro se litigant alleges a cause of action which may be meritorious against persons unknown, the practice of this Court has been to "afford him a reasonable opportunity to determine the correct person or persons against whom the claim is asserted." Gordon v. Leeke, 574 F.2d 1147, 115253 (4th Cir.), cert. denied, 439 U.S. 970 (1978). Records of his alleged arrests and incarceration probably have been kept and can be located with the information provided in his amended complaint, so that the identities of the Defendants may be determined. See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390 n.2 (1971)
2
Ketchum's motions, which we interpret as Motions to Vacate and Remand, are granted in part. His motion for appointment of counsel is denied
3
Because the court met its responsibility to allow Ketchum the opportunity to particularize, see Neitzke, 490 U.S. at 329, it may now proceed with service of process. If proper parties are not identified and served, see Fed. R. Civ. P. 4(c)(2)(B)(1), the action may then be dismissed pursuant to Fed. R. Civ. P. 4(j)
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STATE OF NORTH CAROLINA
v.
ANDREW JERMAINE AIKEN
No. COA06-1456
Court of Appeals of North Carolina.
Filed August 7, 2007
This case not for publication
Attorney General Roy Cooper, by Assistant Attorney Generals Joseph Finarelli and Brandon L. Truman, for the State.
D. Tucker Charns, for defendant.
SMITH, Judge.
Andrew Jermaine Aiken (defendant) appeals a judgment entered upon his conviction for possession of cocaine. We find no error in part and reverse and remand in part.
On the morning of 16 December 2004, the Winston-Salem Police Department received a telephone call reporting drug activity in Piedmont Circle, a public housing community. Sergeant Jay Edwards and Officer Edward King of the Winston-Salem Police Department were dispatched to the 2800 block of Piedmont Circle, and arrived at approximately 10:40 a.m. Having received a report that several African American males were selling drugs on the short street that bisects the horseshoe-shaped community, Sergeant Edwards drove around in search of subjects matching the descriptions provided to him. On his second pass through the neighborhood, Sergeant Edwards observed three African American males, two of whom matched the physical descriptions provided by the caller. Sergeant Edwards exited his police cruiser and instructed the subjects, who had begun to walk off in separate directions, to stop and approach him. However, the subjects disregarded Sergeant Edwards' command and continued to disperse.
One subject, later identified as defendant, walked around an adjacent building and out of the line of sight of Sergeant Edwards while the other subjects approached an apartment and began knocking on its back door. Sergeant Edwards then heard, over his radio, a report that Officer King was in a foot chase in the community. As defendant ran, he ignored Officer King's commands to stop. Meanwhile, Sergeant Edwards returned to his car and, after driving a short distance, observed Officer King in pursuit of defendant, whom Sergeant Edwards recognized as one of the subjects he had confronted earlier. During the chase, defendant was out of Officer King's line of sight for approximately two to three seconds. Officer King eventually caught defendant and subdued him with the help of Sergeant Edwards. After advising defendant he was under arrest, Sergeant Edwards searched defendant and discovered: (1) a cell phone in his hand; (2) $134 neatly folded in defendant's front pocket and (3) $80 in crumpled currency in his right pocket. Based upon his training and experience in undercover drug operations, Edwards testified that the manner in which defendant kept money was consistent with that used by other drug dealers. Officer King then began to retrace the path of his foot pursuit of defendant. While doing so, Officer King found a clear "baggie" laying on a grassy area beside a sidewalk. The "baggie", which appeared to Officer King to contain crack cocaine, was warm to the touch and was not covered by frost like that covering the ground on that cold morning. Officer King returned to the arrest location with the plastic "baggie" filled with what was confirmed by field tests to be crack cocaine. Subsequently, the crack cocaine was sent to the State Bureau of Investigation for testing and was determined to consist of 4.6 grams of crack cocaine.
At the close of the evidence, defendant moved to dismiss the charges of possession of cocaine with intent to sell and deliver and possession of cocaine, which were denied by the trial court. A jury convicted defendant of the offense of possession of cocaine on 23 February 2006. The following day, defendant pled guilty to being a habitual felon, and was sentenced to 133 to 189 months imprisonment in a judgment entered 24 February 2006. Defendant timely filed notice of appeal to this Court.
In defendant's first argument on appeal, he contends that the trial court erred by admitting a statement defendant made regarding the weight of the cocaine discovered on the ground shortly after defendant was taken into custody.
In the case sub judice, defendant complained of chest pain after his being taken into custody, and was escorted to a local hospital by Sergeant Edwards and Officer King. Defendant became combative at the hospital and in an effort to calm defendant, Officer King told defendant that he would only charge defendant with a misdemeanor rather than a felony. However, when defendant was taken before a magistrate, Officer King submitted a probable cause sheet which indicated that defendant was being charged with, inter alia, felony possession with intent to sell and deliver cocaine. Upon learning of the felony charge, defendant again became despondent. Officer King then advised defendant that the weight of the cocaine dictated a felony charge, to which defendant replied, "[t]hat officer must have weighed it with the bag. It only weighed 4.4 grams." It is this statement which defendant challenges.
However, after a careful review of the record, we conclude that defendant has not properly preserved this issue for appellate review. Defendant's assignment of error on this issue is as follows:
The trial court erred in overruling the defendant's objection to the admission of the alleged statement of the defendant while he was in custody as to the weight of the cocaine when the defendant had not been advised of his right to remain silent, in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections 19, 23, 24 and 27 of the North Carolina Constitution and Federal and North Carolina statutory and common law, resulting in prejudice to the defendant.
There was no objection at trial to the admission of this evidence. Thus, defendant's recourse was to assign plain error, which he has not done. As defendant failed to assign plain error in the record on appeal, and this Court's review "is confined to a consideration of those assignments of error set out in the record on appeal", defendant's argument is not properly before this Court. N.C.R. App. P. 10(a); see also State v. McNeil, 350 N.C. 657, 681, 518 S.E.2d 486, 501 (1999); State v. Williams, 153 N.C. App. 192, 196, 568 S.E.2d 890, 893 (2002); N.C.R. App. P. 10(c)(4) (noting that a question not preserved by objection at trial may be made the basis of an assignment of error, provided that in the assignment of error, "the judicial action questioned is specifically and distinctly contended to amount to plain error."). This assignment of error is therefore dismissed.
On appeal, defendant next contends that the trial court erred by failing to grant defendant's motion to dismiss the instant charges because the State failed to present substantial evidence that defendant had either actual or constructive possession of the cocaine located on the sidewalk. We disagree.
In ruling on a motion to dismiss, "the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Crawford, 344 N.C. 65, 73, 472 SE 2d 920, 925 (1996).
Evidence is substantial if it is relevant and adequate
"to convince a reasonable mind to accept a conclusion. In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. The trial court must also resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility."
State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56 (2002) (quoting State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001) (internal citations and quotation marks omitted)). "'[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both.'" State v. Crouse, 169 N.C. App. 382, 389, 610 S.E.2d 454, 459 (quoting State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981)), disc. review denied, 359 N.C. 637, 616 S.E.2d 923 (2005).
"An accused's possession of narcotics may be actual or constructive." State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). "A person has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use." State v. Reid, 151 N.C. App. 420, 428-29, 566 S.E.2d 186, 192 (2002). However, the State is not required to prove actual physical possession of the controlled substance; proof of constructive possession by defendant is sufficient to carry the issue to the jury. State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). "Constructive possession exists when a person, while not having actual possession, has the intent and capability to maintain control and dominion over a controlled substance." State v. Williams, 307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983). Where a controlled substance is found on premises under the defendant's control, this fact alone may be sufficient to overcome a motion to dismiss and take the case to the jury. Harvey, 281 N.C. at 12, 187 S.E.2d at 714. Nevertheless, if a defendant does not maintain exclusive control of the premises, other "incriminating circumstances" must be established for constructive possession to be inferred. State v. Alston, 91 N.C. App. 707, 710, 373 S.E.2d 306, 309 (1988). Our determination then "'depends on the totality of the circumstances in each case. No single factor controls, but ordinarily the questions will be for the jury.'" State v. Butler, 147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001)(quoting State v. Jackson, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991)).
In the instant case, because the cocaine was not found in defendant's actual possession, we evaluate defendant's argument in the context of constructive possession. Here, circumstantial evidence of defendant's possession of the cocaine include the following: the bag of cocaine was located on the precise route defendant had taken while being pursued by Officer King; Officer King testified that he saw no other persons on the route during the chase or while retracing the route after defendant was taken into custody; when Officer King retrieved the bag of cocaine it was still "warm to the touch" and not covered with frost as was the ground despite the cold weather and importantly, when Officer King advised defendant that the weight of the cocaine dictated a felony charge, defendant replied, "[t]hat officer must have weighed it with the bag. It only weighed 4.4 grams."
This evidence gives rise to a reasonable inference that the cocaine found on the ground shortly after the time of the arrest came from defendant. Taken in the light most favorable to the State, we conclude that there was sufficient record evidence to show that defendant had the intent and capability to maintain dominion and control over the cocaine. This assignment of error is overruled.
In defendant's third argument on appeal, he contends that the trial court erred by determining that defendant qualified as a Level IV offender when it calculated defendant's prior conviction for possession of marijuana as a Class 1 misdemeanor. Rather, defendant asserts that his conviction for possession of one half to one and one half ounces of marijuana pursuant to N.C. Gen. Stat. § 90-95(d)(4) (2005) qualifies as a Class 3 misdemeanor, which should have resulted in defendant being sentenced as a Level III offender. We disagree.
Under the Structured Sentencing Act, before imposing a felony sentence, the sentencing judge must determine a defendant's prior record level pursuant to N.C.G.S. § 15A-1340.14. A prior conviction, in turn, can be proved by any of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of the prior conviction.
(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.
(4) Any other method found by the Court to be reliable.
The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists.
State v. Alexander, 359 N.C. 824, 827, 616 S.E.2d 914, 916-17 (2005) (internal quotation marks and citations omitted). Additionally, in order for a trial court to determine a defendant's prior record level for purposes of felony sentencing, one point is assigned for each Class A1 and Class 1 non-traffic misdemeanor offense in accordance with N.C. Gen. Stat. § 15A-1340.14(b)(5) (2005).
In the instant case, The North Carolina Controlled Substances Act identifies marijuana as a Schedule VI controlled substance. N.C. Gen. Stat. § 90-94 (2005). While the statute provides that the possession of a Schedule VI controlled substance in an amount less than one-half of an ounce is a Class 3 misdemeanor, it specifically states, in pertinent part, that "[i]f the quantity of the [Schedule VI] controlled substance exceeds one-half of an ounce (avoirdupois) of marijuana . . . the violation shall be punished as a Class 1 misdemeanor." G.S. § 90-95 (d)(4). Accordingly, defendant's conviction for possession of marijuana in an amount between one half and one and one half ounces was correctly characterized as a Class 1 misdemeanor and also properly assigned one point for the purposes of calculating defendant's prior record level of IV. This assignment of error is therefore overruled.
In defendant's final argument on appeal, he contends that the trial court erred by sentencing defendant to a maximum sentence of 189 months in the instant judgment because the sentence exceeds the statutorily imposed maximum sentence pursuant to N.C. Gen. Stat. § 15A-1340.17(e) (2005). This argument has merit. "When a defendant assigns error to the sentence imposed by the trial court, our standard of review is whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing." State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (internal quotation marks omitted). A sentence beyond the maximum term allowed by the statute is unlawful. State v. Templeton, 237 N.C. 440, 75 S.E.2d 243 (1953).
Defendant's plea of guilty to being a habitual felon carried with it a Class C felony conviction in accordance with N.C. Gen. Stat § 14-7.6 (2005). For a Level IV offender, a Class C felony conviction carries a presumptive sentence of 107 to 133 months. See N.C. Gen. Stat. § 15A-1340.17(c) (2005). Utilizing the applicable sentencing tables, the maximum sentence to which defendant was subject was a minimum term of imprisonment of 133 months and a maximum term of 167 months. See G.S. § 15A-1340.17 (e). However, the trial court, in its judgment, sentenced defendant to a maximum term of imprisonment of 189 months. Accordingly, we reverse the judgment and remand this matter to the trial court for re-sentencing in accordance with the statutorily mandated maximum sentence of 167 months for the instant offense under North Carolina law.
No error in part; reversed and remanded in part.
Judges MCGEE and STEPHENS concur.
Report per Rule 30(e).
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In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2382
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
W ILLIAM S. K IRKPATRICK,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:08-CR-30257-001-MJR—Michael J. Reagan, Judge.
A RGUED N OVEMBER 17, 2009—D ECIDED D ECEMBER 14, 2009
Before E ASTERBROOK, Chief Judge, and R OVNER and
S YKES, Circuit Judges.
E ASTERBROOK, Chief Judge. After William Kirkpatrick
was arrested for possessing a gun—something his
felony convictions made unlawful, see 18 U.S.C.
§922(g)(1)—he confessed to committing four drug-related
murders. He also told a cellmate that he had arranged a
contract hit on the federal agent who was conducting the
investigation. After investing more than 200 hours in
investigations, agents concluded that Kirkpatrick had
2 No. 09-2382
neither killed anyone nor arranged for the agent’s death.
Kirkpatrick pleaded guilty to the felon-in-possession
charge. The Sentencing Guidelines recommended a range
of 37 to 46 months. The judge gave him more—sensibly
so. Lying to a federal agent is a crime, see 18 U.S.C. §1001,
and so is threatening the life of a federal agent, see 18
U.S.C. §115(a)(1)(B). Enhancements on account of an
offender’s additional crimes are normal and proper. See
United States v. Watts, 519 U.S. 148 (1997).
Kirkpatrick contests not the fact of the enhancement
but its magnitude. The district court imposed a sentence
of 108 months’ imprisonment, more than double the top
of the Guidelines’ range. Kirkpatrick calls this unrea-
sonable: an extra five years in prison is an exceptionally
harsh sentence for wasting 200 hours of federal employees’
time. Whenever a court gives a sentence substantially
different from the Guidelines’ range, it risks creating
unwarranted sentencing disparities, in violation of 18
U.S.C. §3553(a)(6), for most other judges will give sen-
tences closer to the norm. That’s a major reason why
substantial variances from the Sentencing Commission’s
recommendations require careful thought. See Gall v.
United States, 552 U.S. 38 (2007). Cf. Spears v. United
States, 129 S. Ct. 840 (2009); Nelson v. United States, 129
S. Ct. 890 (2009).
When a variance is carefully explained, appellate
review is deferential. But when a sentence appears to be
chosen arbitrarily, it is problematic. That is the case here.
The judge said that Kirkpatrick’s lies, which put the
case agent in fear and wasted the time of agents who
No. 09-2382 3
had better things to do, justified a higher sentence. That
cannot be gainsaid. But five years’ extra time in prison? The
judge proceeded as if any sentence within the statutory
maximum (10 years) needs no explanation beyond
the conclusion that something more than the top of the
Guidelines’ range is in order. Yet every sentence must
be justified under the criteria in §3553(a), and the
district judge does not appear to have recognized that
leaping close to the statutory maximum creates a risk of
unwarranted disparity with how similar offenders
fare elsewhere—not only because this may overpunish
braggadocio, but also because it leaves little room for
the marginal deterrence of persons whose additional
deeds are more serious (for example, actually putting out
a contract on an agent’s life).
Before United States v. Booker, 543 U.S. 220 (2005), made
the Guidelines advisory, we had held that departures
must be explained in the Guidelines’ own terms. Thus if
the district court’s reason for an upward departure was
an additional crime, the departure could not exceed
the incremental sentence that would have been appro-
priate had the defendant been charged with, and convicted
of, that additional crime. See United States v. Ferra, 900 F.2d
1057, 1062 (7th Cir. 1990); United States v. Horton, 98 F.3d
313, 317 (7th Cir. 1996); United States v. Rogers, 270 F.3d
1076, 1082 (7th Cir. 2001). Booker and its successors have
changed that rule. The Guidelines are no longer binding,
so a judge need not explain why a sentence differs from
the Sentencing Commission’s recommendation. See
United States v. Bartlett, 567 F.3d 901, 909 (7th Cir. 2009). It
is enough to explain why the sentence is appropriate
4 No. 09-2382
under the statutory criteria. But a judge still must start by
using the Guidelines to provide a benchmark that curtails
unwarranted disparities. See Gall, 552 U.S. at 49, and Rita
v. United States, 551 U.S. 338, 351 (2007). And this implies
that, when a judge believes that extra crimes justify extra
punishment, it is wise to see how much incremental
punishment the Sentencing Commission recommends.
Otherwise a particular sentence could get out of line
without the judge recognizing the problem. Before
giving an unusually high sentence on account of addit-
ional crimes, the judge should know that it is unusually
high; without this knowledge the judge cannot give
proper weight to §3553(a)(6).
Kirkpatrick’s range of 37 to 46 months comes from his
offense level of 20 and criminal history category of II.
Suppose his lying were treated as incompatible with
accepting responsibility, costing Kirkpatrick the two-
level reduction he had received. That would produce a
total of 22 and a recommended range of 46 to 57 months.
(Kirkpatrick’s offense level of 20 already included an
enhancement for obstructing justice.) If Kirkpatrick also
were charged with, and convicted of, lying to federal
agents and making threats designed to intimidate agents,
the offense level could reach 24 (depending on how
the grouping rule, U.S.S.G. §3D1.2, treated the §1001 and
§115 convictions, which have lower base levels than the
felon-in-possession crime). At offense level 24 and
criminal history category II, Kirkpatrick’s recommended
range would have been 57 to 71 months. There are some
other ways of classifying his additional acts that might
produce higher ranges, but level 24 seems most likely. To
No. 09-2382 5
get as high as level 28 (which corresponds to a range of
87 to 108 months), the district judge would have to find
that Kirkpatrick actually set out to have the case agent
murdered. Given the judge’s belief that Kirkpatrick was
all bark and no bite, however, the Sentencing Commis-
sion’s recommendation is for a sentence substantially
below 108 months.
Booker and its successors mean that this recommenda-
tion is not conclusive. But before exercising discretion
the judge should know what that recommendation is,
and thus how Kirkpatrick’s sentence will compare
with the punishment of similar persons elsewhere. The
Supreme Court has never questioned the principal goal
of the Sentencing Reform Act of 1984: to curtail the
variable sentencing caused by different judges’ perceptions
of the same criminal conduct. The allowable band of
variance is greater after Booker than before, but intellectual
discipline remains vital. “[A] motion to [a court’s] discre-
tion is a motion, not to its inclination, but to its judgment;
and its judgment is to be guided by sound legal princi-
ples.” United States v. Burr, 25 F. Cas. 30, 35 (No. 14692d)
(C.C. Va. 1807) (Marshall, C.J.). We think that the
district court would benefit from the guidance offered by
the Sentencing Commission’s approach. The sentence
therefore is vacated, and the case is remanded for pro-
ceedings consistent with this opinion.
12-14-09
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-1930
___________
Lonnie D. Snelling, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
J. D. Haynes, Indispensable party; Jack *
Fishman, Attorney at Law; Matthew * [UNPUBLISHED]
Chase, Attorney at Law; Fishman *
Firm; Michael F. Stezler, Indispensable *
party, *
*
Appellees. *
___________
Submitted: November 22, 2011
Filed: November 28, 2011
___________
Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
___________
PER CURIAM.
Lonnie Snelling appeals the district court’s1 dismissal of his 42 U.S.C. § 1983
action relating to a default judgment he obtained in state court. Upon careful de novo
review, we conclude the district court committed no error in dismissing
1
The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.
Mr. Snelling’s federal claims. See Detroit Gen. Ret. Sys. v. Medtronic, Inc., 621 F.3d
800, 804-05 (8th Cir. 2010) (Fed. R. Civ. P. 12(b)(6) dismissal reviewed de novo);
see also Phipps v. F.D.I.C., 417 F.3d 1006, 1010 (8th Cir. 2005) (court may affirm on
any basis supported by record). More specifically, we conclude that Mr. Snelling did
not adequately allege facts stating a conspiracy claim under section 1983, see Murray
v. Lene, 595 F.3d 868, 870 (8th Cir. 2010) (conspiracy claim under § 1983 alleging
violation of constitutional rights requires allegations of specific facts tending to show
meeting of minds among alleged conspirators); that Judge Michael Stelzer was
entitled to judicial immunity, see Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (judge
is immune from suit unless actions were non-judicial or taken in complete absence
of all jurisdiction); that the other defendants were not state actors, see Carlson v.
Roetzel & Andress, 552 F.3d 648, 651-52 (8th Cir. 2008) (mere invocation of state
legal proceedings is not state action); DuBose v. Kelly, 187 F.3d 999, 1003 (8th Cir.
1999) (conduct of counsel generally does not constitute action under color of law);
and that Mr. Snelling could not pursue a claim for a purported violation of 28 U.S.C.
§ 1654 (providing that in all courts of United States, parties may plead and conduct
their own cases personally or by counsel).
As to the remaining issues raised by Mr. Snelling on appeal, we conclude that
reversal is not warranted based on the district court’s decisions to decline to exercise
supplemental jurisdiction over the pendent state-law claims, see Gibson v. Weber,
431 F.3d 339, 342 (8th Cir. 2005) (Congress has unambiguously granted district
courts discretion in 28 U.S.C. § 1367(c) to dismiss supplemental state-law claims
when all federal claims have been dismissed); to deny Mr. Snelling leave to amend
his complaint, see In re Medtronic, Inc., 623 F.3d 1200, 1208 (8th Cir. 2010) (denial
of leave to amend is reviewed for abuse of discretion, while legal conclusions
underlying determination of futility are reviewed de novo); to deny his post-judgment
motion, see United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir.
2006) (denial of Fed. R. Civ. P. 59(e) motion is reviewed for abuse of discretion);
Bennett v. Dr. Pepper/Seven Up, Inc., 295 F.3d 805, 807 (8th Cir. 2002) (denial of
-2-
Fed. R. Civ. P. 60(b) motion is reviewed for abuse of discretion); or to deny his
motions for sanctions, see Exec. Air Taxi Corp. v. City of Bismarck, 518 F.3d 562,
570-71 (8th Cir. 2008) (denial of Fed. R. Civ. P. 11 motion for sanctions reviewed for
abuse of discretion).
Accordingly, we affirm the judgment of the district court. In addition, we deny
as moot Mr. Snelling’s motion to strike, and Mr. J.D. Haynes’s motion requesting that
he be dismissed as a party on appeal.
______________________________
-3-
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250 P.3d 703 (2010)
In the Matter of the Petition of A.T.M., Appellant, and
M.E. and L.E., Appellees, and
Adoption Choices of Colorado, Respondent-Appellee, and
Concerning S.C.M., a Child.
No. 09CA1970.
Colorado Court of Appeals, Div. A.
March 25, 2010.
Rehearing Denied April 22, 2010.
*704 Pamela K. Streng, Esq., P.C., Pamela K. Streng, Georgetown, Colorado, for Appellant.
Wedgle & Kukreja, P.C., Rajesh K. Kukreja, Katherine O. Ellis, Denver, Colorado, for Appellees.
Beltz & West, P.C., W. Thomas Beltz, Colorado Springs, Colorado; Virginia L. Frank, P.C., Virginia L. Frank, Evergreen, Colorado, for Respondent-Appellee.
Opinion by Judge CONNELLY.
The parental rights of A.T.M. (mother) were terminated under a statute that allows parents to file expedited petitions to relinquish rights to children under one year old. § 19-5-103.5, C.R.S.2009. Mother filed an expedited relinquishment petition but sought to withdraw it before it was acted upon. The district court refused to allow the petition to be withdrawn and (over mother's objection) granted it. We conclude this was contrary to the statute, which grants finality only to relinquishment orders and not petitions. Accordingly, we reverse the termination order.
I. Background
Mother was an unmarried twenty-year-old when she conceived a child with a man later incarcerated for assaulting her. During her pregnancy, mother was counseled by an adoption agency.
Mother gave birth to a daughter on June 18, 2009. The next day, she signed an affidavit of voluntary relinquishment. On June 25, mother's attorney filed (1) an expedited petition for relinquishment and (2) a motion to hold the relinquishment order in abeyance. The motion stated that mother did not want to lose parental rights until the "estranged" father's rights were terminated.
On the same day mother filed the petition and motion, the agency petitioned to terminate the incarcerated father's parental rights. Meanwhile, the child was placed (and remains) out of state with prospective adoptive parents.
On June 30, the court granted mother's motion to hold her petition in abeyance pending resolution of father's parental rights. Father subsequently notified the court that he would contest the requested termination of his parental rights.
On July 24, mother moved to withdraw her relinquishment petition and for the "emergency forthwith" return of her child. The motion stated that mother had "given serious consideration to this situation and ha[d] made the careful decision to parent her child."
The court granted that motion that same day, ordering the child's "immediate return" to mother. Three days later, mother filed an emergency petition for a writ of habeas corpus because the agency had refused to return the child. The prospective adoptive parents moved to intervene and asked the court to stay and vacate its order allowing mother's petition to be withdrawn and requiring the child's return.
The court stayed its July 24 order, and held a hearing on July 31. Mother appeared with counsel, as did the prospective adoptive parents. Father participated by phone; the court terminated his parental rights, and father has not appealed.
The court denied mother's motion to withdraw the petition. It found that mother had received sufficient counseling, had made the decision to relinquish voluntarily and not as the result of any duress, and had known that she could not revoke the petition once it was filed. After finding that relinquishment would serve the child's bests interests, the court "grant[ed mother's] petition for relinquishment" and gave the agency legal custody of the child.
Mother has appealed. Appellees are the agency and the prospective adoptive parents.
II. Discussion
Mother raises several appellate issues, but one is dispositive. Construing the statute de novo, see Moffett v. Life Care Centers, 219 *705 P.3d 1068, 1072 (Colo.2009), we hold it does not preclude withdrawal of a relinquishment petition prior to actual entry of an order terminating parental rights.
A. Statutory Overview
Section 19-5-103.5 was added to the Children's Code in 2003. A hearing formerly was required in all relinquishment cases. § 19-5-103(3) & (7)(a), C.R.S.2009. Now, however, parents seeking to relinquish children less than one year old "may seek an expedited order terminating [their rights] without the necessity of a court hearing." § 19-5-103.5(1)(a), C.R.S.2009.
An expedited relinquishment petition must be accompanied by a parent's affidavit detailing compliance with statutory procedures. § 19-5-103.5(1)(a) & (b), C.R.S.2009. A court then "may vacate the hearing [otherwise] required" and enter a relinquishment order "without a hearing, no more than seven business days after the date of the filing of the petition for relinquishment and the accompanying affidavit." § 19-5-103.5(1)(c), C.R.S.2009. But, to grant a relinquishment petition, a court must make the same findingsthat counseling was provided, that the parental decision is knowing and voluntary, and that relinquishment would serve the child's best interestsrequired in non-expedited cases. § 19-5-103.5(1)(c) (requiring findings set forth in § 19-5-103(7)(a)).
B. Analysis
Cases such as this one are particularly difficult because the competing interests those of the young mother who carried and gave birth to the child, those of the prospective adoptive parents who have raised the child during crucial early months of her life, and of course those of the child herselfall merit great respect. The absence of easy answers is shown by the fact that legislatures around the country differ regarding when, and under what circumstances, a birth parent can withdraw a prior consent to relinquish a child for adoption. See generally Catherine Sakach, Note, Withdrawal of Consent for Adoption: Allocating the Risk, 18 Whittier L.Rev. 879 (1997); Gary D. Spivey, Comment Note, Right of Natural Parent to Withdraw Valid Consent to Adoption of Child, 74 A.L.R.3d 421 (1976).
Ultimately, however, it is for our legislature to make the broad policy decisions on how best to balance those interests. The issue we must decide is whether the General Assembly has precluded birth parents from withdrawing expedited relinquishment petitions. We conclude it has not.
Appellees' contention that expedited petitions are irrevocable is founded upon section 19-5-103.5(1)(b)(I), C.R.S.2009, which they call a "statutory proscription against withdrawal of [a] petition." One sentence in this subsection states that "[t]he affidavit shall also advise the relinquishing parent that he or she may withdraw the affidavit anytime after signing it but before the affidavit and petition are filed with the court." Id. A second sentence effectuates this advice by allowing the parent to "withdraw the affidavit from the child placement agency or county department of social services . . . any time after signing it but before the affidavit and petition are filed with the court." Id.
We discern no "statutory proscription against withdrawal" of an expedited petition. Rather, the provisions relied on by appellees cover withdrawal of an affidavit filed with the agency or department rather than withdrawal of a petition filed with a court. Moreover, while granting an absolute right to withdraw an affidavit any time before it and the petition are filed, it is only by negative inference that the statute could be read to preclude later withdrawal.
In essence, appellees are asking us to construe the statute more broadly than required by its plain terms. For several reasons, we decline the request.
First, the "[t]ermination of parental rights is a decision of paramount gravity affecting a parent's fundamental interest in the care, custody and management of his or her child." K.D. v. People, 139 P.3d 695, 700 (Colo.2006); see also Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (parents' right to "care, custody, and control of their children" is "perhaps the oldest of the fundamental liberty interests recognized by this Court"). We must assume that if the legislature intended to make the termination decision irrevocable upon filing of a petition, it would have said so expressly.
*706 Second, a court entering a relinquishment order must find the "parent's decision to relinquish is knowing and voluntary." § 19-5-103(7)(a)(II), C.R.S.2009 (emphasis added), incorporated in § 19-5-103.5(1)(c). The present tense phrasing suggests that the relinquishment decision must still be voluntary at the time the order is entered. But a court could not possibly make such a finding if it then knew the parent was objecting to relinquishment.
Third, appellees concede an expedited petition may be withdrawn in some cases, as where the parent's affidavit was executed under duress or procured by fraud. They would have us accord the same finality to an expedited petition as to the order itself. See § 19-5-104(6), C.R.S.2009 ("an order of relinquishment is final and irrevocable" except as provided in subsection (7)); § 19-5-104(7)(a), C.R.S.2009 ("A relinquishment may be revoked only if, within ninety days after the entry of the relinquishment order, the relinquishing parent establishes by clear and convincing evidence that such relinquishment was obtained by fraud or duress.").
There is no statutory basis for according the same finality to a petition itself as to the order granting it. We recognize the petition filed in this case contained standard language that mother understood she could not change her mind about relinquishment after the petition was filed. This may serve as a salutary warning to parents filing expedited petitions, given that such petitions must be acted upon quickly and typically are granted without further notice or hearing. See § 19-5-103.5(1)(c). But until the petition is actually granted, nothing in the statute makes it irrevocable.
Finally, this would be a particularly troublesome case for adopting a rule that expedited petitions became irrevocable upon filing. Though mother filed an expedited petition, she simultaneously moved to hold any relinquishment order in abeyance pending resolution of the father's rights. Thus, from the outset, it was apparent that this was not a true expedited relinquishment case. Then, only a month later, before the petition had been acted on and well after the statutory deadline for acting upon an expedited petition, the court granted mother's motion to withdraw her petition. It should not later have reinstatedand grantedthe petition over mother's objection.
Appellees respond that mother "should have filed a standard petition for relinquishment, not an expedited petition for relinquishment." We agree that mother's initial filings invoked the wrong statutory section for accomplishing her stated goals. Had she filed a non-expedited petition, no one disputes she would have been free to withdraw it any time prior to a court order granting it. We decline to hold that this procedural misstep forfeited mother's parental rights.
III. Conclusion
The order terminating mother's parental rights is reversed, and the case is remanded for further proceedings consistent with this opinion.
Judge PLANK[*] and Judge ROTHENBERG[*], concur.
NOTES
[*] Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2009.
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336 S.W.2d 495 (1960)
STATE of Missouri, Respondent,
v.
Lee TAYLOR, Appellant.
No. 47764.
Supreme Court of Missouri, Division No. 1.
June 13, 1960.
Motion to Modify Opinion Sustained and Opinion Modified July 11, 1960.
*496 Ronald J. Fuller, Rolla, for appellant.
John M. Dalton, Atty. Gen., William C. Blair, Sp. Asst. Atty. Gen., for respondent.
WESTHUES, Presiding Judge.
Ernie Campbell and Lee Taylor were jointly charged by an information with burglary in the second degree and larceny. The offenses were alleged to have been committed in Phelps County, Missouri, on the first day of August, 1957. The information further alleged that each defendant had previously been convicted of a felony and had been discharged after serving a sentence of imprisonment. A severance was granted and on a change of venue, the case was transferred to Maries County, Missouri. Lee Taylor was there tried and convicted by a jury of burglary and larceny in connection with the burglary. The jury, by verdict, assessed Taylor's punishment at two years' imprisonment in the penitentiary for the larceny but did not assess any punishment for the burglary. On appeal to this court, the case was remanded to the Circuit Court with directions to that court "to cause defendant to be brought before it, and proceed to assess the punishment on the burglary charge, and enter a new judgment sentencing defendant on both charges." See State v. Taylor, Mo.Sup., 324 S.W.2d 725. The trial court in compliance with the mandate fixed Taylor's punishment for the burglary at two years' imprisonment. The court thereupon sentenced Taylor separately on each charge at two years' imprisonment in the penitentiary and issued a commitment that he be delivered to the Department *497 of Corrections to be dealt with according to law. From that judgment, an appeal was taken to this court.
The defendant has not favored us with a brief. The State refiled the brief which had been prepared and filed on the original appeal.
We shall consider such assignments in defendant's motion for new trial which present questions for our review and which were not disposed of on the first appeal.
The defendant did not question the sufficiency of the evidence to sustain the verdict of guilty. We, therefore, need not make a detailed statement of the evidence. The State's evidence tended to prove the following: Mrs. Thelma Loughrige testified that she lived about twelve miles west and four miles north of Rolla in Phelps County, Missouri; that on the morning of August 1, 1957, she left home and went to Newburg where she was employed at the Rawlings Manufacturing Company; that before she left she had locked the doors of her home and the windows were closed. On the afternoon of that day, the company superintendent informed her that word had been received that someone was burglarizing her home. She immediately went to her home and found that a basement window had been removed. Meat valued at about $75 had been taken from a freezer and a pistol valued at $10 and $7 in cash were missing from the home. This witness also testified that fuzz from a gunny sack was found in a wash tub which had been standing in the basement by the window that had been removed.
The evidence was that on the day of the burglary two boys living in the neighborhood noticed a car stop in front of the Loughrige home and saw a man walk around the rear of the house. This occurred before noon. In the afternoon, these boys saw a car stop near the home and two men went to the house carrying gunny sacks. These boys took bicycles and rode by the car and noted the license number. Later, the boys saw the two men driving by where the boys were working. Mrs. Loughrige was notified. Police officers, the sheriff, and the Highway Patrol were also notified. Campbell and Taylor were later arrested in Rolla. The two boys identified both Campbell and Taylor as the men they had seen at the Loughrige home.
When the arrest was made, a gunny sack was found in the same car which the State's witnesses had seen at the Loughrige home. The car belonged to Campbell. The defense was an alibi. However, neither Taylor nor Campbell testified during the trial of this case.
In the motion for new trial, defendant questioned the sufficiency of the information. He said it did not charge larceny. We find that the information charged the larceny to have been committed in connection with the burglary. The information did not allege that the property was taken without the consent of the owner. This question was considered in the case of State v. Zammar, Mo.Sup., 305 S.W.2d 441, loc. cit. 445, 446(6-8). This court there said, "A taking without right or leave and with an intent to keep, wrongfully, is obviously a taking without the consent of the owner, so that an attack on the sufficiency of the indictment for failure to use the precise words of the statute in this regard (and raised for the first time after verdict) should be, and it is disallowed." We rule the information to be sufficient.
Defendant complained of instruction No. 2 which informed the jury that in case it found defendant Taylor had not been previously convicted and found him guilty of burglary and larceny in connection with burglary, a punishment could be assessed for the burglary at 2 to 10 years and for the larceny at 2 to 5 years' imprisonment. Complaint is made that the punishment for larceny, as fixed by Section 560.161 (Laws of 1957, p. 376) permitted a punishment at less *498 than 2 years. This contention is without merit. Taylor was convicted of both burglary and larceny. The punishment prescribed for such a larceny is 2 to 5 years. See Sec. 560.110, V.A.M.S., 1959 Pocket Part, pp. 9, 10. We call attention to subsection 2 of Sec. 560.110 which provides that the trial court, in such a case, "shall state in pronouncing sentence whether the additional term of imprisonment provided herein is to run consecutively or concurrently. In the event that the court fails to determine at the time of pronouncing sentence how the terms of imprisonment shall run in relation to each other, the terms of imprisonment shall run concurrently." The instruction was proper and in accordance with Sec. 560.110, supra.
In this same assignment, defendant complained that the jury was not permitted to acquit him of burglary and convict him only of larceny or vice versa. We find this complaint to be without merit. Instruction 2 authorized an acquittal of both offenses, a conviction of both, or an acquittal of one and a conviction of the other. This instruction was a sufficient guide to the jury to find for the defendant or against him on either or both charges.
Defendant complained in his motion for new trial that the court erred in admitting in evidence State's Exhibit No. 1 which was a photograph of the defendant taken in the Missouri State Penitentiary on June 23, 1954. The exhibit was offered for the purpose of identification to prove that Taylor had served a sentence. Defendant said that he had been previously identified and therefore the exhibit was immaterial and only tended to prejudice the jury against him. The jury by its verdict found that defendant had not been previously convicted. The admission of the exhibit obviously did not prejudice him.
The State seems to have had some difficulty in getting two witnesses to court, that is, the two boys who saw Taylor and Campbell at the home of Mrs. Loughrige on the day the burglary was committed. The record indicates that an officer brought them to court on the day of the trial. The defendant's attorney was prevented on objection from cross-examining these witnesses as to their reason for not answering a subpoena. The defendant, in his offer of proof, stated that he wanted to show that the witnesses had been subpoenaed but failed to appear and that a deputy sheriff brought the witnesses to court. This is all of the offer of proof. It is evident that such a showing would not impeach the witnesses. The witnesses may have had good reason for the delay. The record shows that the prosecutor, after the above ruling was made, began to ask the witness then on the stand why he did not appear at court on time and the defendant's objection to such question was sustained. The record further shows that defendant's attorney was permitted to show that a deputy sheriff had brought the witnesses to court. The record indicates that the defendant had no desire to go into details as to the reason the boys were not in court on time. In the circumstances, the defendant was not prejudiced by the court's ruling. State v. Linders, 299 Mo. 671, 253 S.W. 716, loc. cit. 720(3).
Defendant further complained that the trial court erred in exchanging written communications with the jury. The record shows the following to have occurred: After the jurors had been in the jury room to consider their verdict, a note was sent to the judge which read as follows: "If found guilty could the Jury recommend 2 yrs. and parolled? If guilty he would be under parolled for 2 yrs". The trial judge, in reply to that query, sent the following to the jury room:
"If found guilty the Jury can fix the punishment under your instructions at Two years.
*499 "The Jury can recommend a parole but under the law a person is not eligible for parole if he has a previous record.
"/s/ Edw. T. Eversole."
The record shows that the attorney for the defendant objected and stated to the court that the written message did not correctly state the law as to the possible punishment and parole. The record further shows that the court held a hearing when the motion for new trial was before the court and, after such hearing, overruled the motion. In the case of Lloyd v. St. Louis Public Service Co., 360 Mo. 91, 227 S.W.2d 460, loc. cit. 461(2,3), this court said, "Granting a new trial for misconduct or indiscretion on part of jurors, lawyers, and a trial judge, occurring prior to the rendition of a verdict, rests largely within the discretion of a trial court. 46 C.J. 410, Sec. 468. Unless abused, the exercise of such discretion will not be disturbed. Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, loc. cit. 339 (10, 11)." In that case, the trial court sustained the motion for a new trial. The judge had communicated with the jury by oral message transmitted through a deputy sheriff. There was a dispute as to what had been said. In the case before us, the messages were in writing. Furthermore, it is apparent that the jury did not heed the court's message. The jury by its verdict assessed the minimum punishment ignoring the previous conviction which had been proven by the State. A parole was suggested even though the judge by the message had informed the jury that a parole could not be had. The defendant in this case received the minimum punishment permissible under the law. The two sentences of two years for the burglary and two years for the larceny, under the record before us, will run concurrently (see Sec. 560.110, supra). The record before us does not show that the defendant was prejudiced. The trial court so found by overruling the motion for a new trial and after a hearing on the question with which we are concerned. The practice of exchanging communications with a jury by the trial court is not commended. See Sullivan v. Union Electric Light & Power Co., 331 Mo. 1065, 56 S.W.2d 97, loc. cit. 102-104(12, 13), where the law on this subject was considered at length. See also 89 C.J.S. Trial § 473, pages 115-117.
Other matters complained of in the motion for a new trial were disposed of on the first appeal. A number of assignments are not supported by the record.
The judgment is affirmed.
All concur.
On Motion to Modify
PER CURIAM.
In a motion to modify our opinion in this case, the State has called our attention to the fact that Section 560.110, V.A.M.S., Pocket Part, pp. 9, 10, and particularly Subsection 2, did not become effective until after July 13, 1959, the day when the judgment in this case was entered. It is contended, and rightly so, that before Subsection 2, supra, became effective, a sentence for larceny and a sentence for burglary, upon a conviction under a single information, ran consecutively. See State v. Huff, 352 Mo. 1161, 181 S.W.2d 513; State ex rel. Dalton v. Blair, 365 Mo. 1167, 294 S.W.2d 1; and Section 560.110, RSMo, Cum.Supp. 1957, cited by the State in the motion to modify.
The State contends that Subsection 2 of Section 560.110, supra, should not act retroactively. This point is well taken. The author of the opinion, who is also the author of this Per Curiam, overlooked the fact that Subsection 2 had not taken effect on the day the judgment in this case was entered.
It follows that the sentences imposed upon the defendant Lee Taylor should not run concurrently but consecutively. To this extent, the opinion heretofore filed is modified.
It is so ordered.
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42 F.3d 1409
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Gregorio T. SANTOS, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 95-3022.
United States Court of Appeals, Federal Circuit.
Nov. 16, 1994.
MSPB
1
DISMISSED.
ORDER
2
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
3
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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61 F.3d 31
U.S.v.Milton**
NO. 94-6165
United States Court of Appeals,Eleventh Circuit.
June 26, 1995
Appeal From: S.D.Ala., No. 93-00171-CR-RV
1
AFFIRMED.
**
Local Rule 36 case
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In the Supreme Court of Georgia
Decided: September 22, 2014
S14A0808. RODRIGUEZ-NOVA v. THE STATE.
BLACKWELL, Justice.
Andres Luis Rodriguez-Nova was tried by a Gwinnett County jury and
convicted of murder and false imprisonment, both in connection with the death
of his girlfriend, Elba Mejia-Mesa. Rodriguez-Nova appeals, contending that the
trial court erred with respect to both an evidentiary ruling and its instructions to
the jury. He also contends that he was denied the effective assistance of counsel.
Upon our review of the record and briefs, we see no error, and we affirm.1
1
The crimes were committed on June 22, 2008. Rodriguez-Nova was indicted on
September 4, 2008 and charged with malice murder, two counts of felony murder, aggravated
assault, aggravated battery, and false imprisonment. His trial commenced on September 8,
2009, and the jury returned its verdict three days later, finding him guilty on all counts.
Rodriguez-Nova was sentenced to imprisonment for life for malice murder and a consecutive
term of imprisonment for ten years for false imprisonment. The verdict as to felony murder
was vacated by operation of law, Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479)
(1993), and the remaining counts merged with the malice murder. Rodriguez-Nova timely
filed a motion for new trial on September 14, 2009, and he amended it on October 26, 2011.
The trial court denied the motion on December 12, 2013. Rodriguez-Nova had already filed
a premature notice of appeal on May 25, 2012, which ripened upon the denial of his motion
for new trial. See Hall v. State, 282 Ga. 294, 295 (1) (647 SE2d 585) (2007) (a premature
notice of appeal is treated as effectively filed upon entry of the order denying the motion for
new trial). The case was docketed in this Court for the April 2014 term and submitted for
1. Viewed in the light most favorable to the verdict, the evidence shows
that Mejia-Mesa and Rodriguez-Nova lived together in a Norcross apartment
and worked in the same dance club, she as a dancer, and he as a security guard.
On June 22, 2008, her shift ended around 4:45 a.m., and although Rodriguez-
Nova called a taxi for her, she and two other dancers who lived in the same
apartment complex instead accepted a ride from a customer.
Later that morning, Rodriguez-Nova told his brother that he had killed
Mejia-Mesa. Rodriguez-Nova then called 911 and was met by police officers,
who found Mejia-Mesa’s body in their apartment. Her wrist and ankles were
bound with duct tape, and a doubled-over and knotted phone cord was wrapped
around her neck. She had sustained numerous injuries and had died as a result
of strangulation.
Rodriguez-Nova gave officers a statement in which he described what had
happened in some detail. At the dance club, he had seen Mejia-Mesa dancing
suggestively with the customer and kissing him. When Rodriguez-Nova arrived
at the apartment around 5:30 a.m., he saw someone leaving and thought it was
decision on the briefs.
2
the customer, at which point he “had no consideration for her.” Rodriguez-Nova
entered the apartment, grabbed a knife, and was going to stab Mejia-Mesa. But
when she begged him not to kill her and asked him to think about his children
and hers, he told her that he would not kill her if she stayed calm. He bound her
feet and hands, and she told him that she loved him, that they were going to get
married, that she already had ordered the wedding rings, and that, if he stopped,
she would not tell the police. He then told her that he was going to kill her
anyway and turn himself in, if he did not kill himself. At some point, he sprayed
her with pepper spray. He choked her with both hands, and she bled through her
nose. When he saw that she was still breathing, he tied a cord around her neck
— tightening it and knotting it twice so that it would not loosen — and choked
her to death with the cord.
Rodriguez-Nova’s defense at trial was that he was guilty only of voluntary
manslaughter. But on appeal, he does not dispute that the evidence is legally
sufficient to sustain his convictions. We nevertheless have independently
reviewed the record, with an eye toward the legal sufficiency of the evidence.
We conclude that the evidence adduced at trial was legally sufficient to
authorize a rational trier of fact to find beyond a reasonable doubt that
3
Rodriguez-Nova was guilty of the crimes of which he was convicted. Jackson
v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. We now consider the contention that the trial court erred when it
overruled Rodriguez-Nova’s timely objection to the admission of a recording
of his 911 call. He argues that the State failed to properly authenticate the
recording, insofar as the Spanish interpreter who assisted the 911 operator
during the call did not testify, and the operator herself does not speak Spanish.2
And Rodriguez-Nova points out that there was no showing that the interpreter
was “unavailable” as an authenticating witness under former OCGA § 24-4-48.3
Even so, an audio recording can be authenticated by the testimony of one party
to the recorded conversation. See Hudson v. State, 273 Ga. 124, 127 (3) (538
SE2d 751) (2000); Allen v. State, 302 Ga. App. 190, 191 (1) (690 SE2d 492)
(2010). In this case, the 911 operator reviewed the recording, identified it as a
2
Although the parties have argued about the applicability of the “language conduit”
rule, see Hernandez v. State, 291 Ga. App. 562, 566 (2) (a) (662 SE2d 325) (2008); Lopez
v. State, 281 Ga. App. 623, 625 (1) (636 SE2d 770) (2006), that rule deals with the issue of
hearsay, and Rodriguez-Nova did not base his objection at trial — nor does he base his
appellate argument — on hearsay grounds.
3
We note that the provisions of former OCGA § 24-4-48 were carried forward into
the new Evidence Code and now can be found at OCGA § 24-9-923.
4
fair and accurate reproduction of the call with no additions or deletions,
recognized her own voice, and identified the voice of the interpreter.4 See
Hudson, 273 Ga. at 127 (3); Allen, 302 Ga. App. at 191 (1). Her inability to
understand the Spanish portions of the recorded conversation went to the weight
to be given her testimony, not the sufficiency of the authentication of the
recording. See Gambrel v. State, 260 Ga. 197, 200 (2) (391 SE2d 406) (1990)
(witness was unable to fill in blanks left by transcriber); Pasuer v. State, 271 Ga.
App. 259, 263 (2) (a) (609 SE2d 193) (2005) (part of the recording was
inaudible), overruled on other grounds, Vergara v. State, 283 Ga. 175, 177 (1)
(657 SE2d 863) (2008). Consequently, the trial court did not abuse its discretion
when it admitted the recording of the 911 call.5 See Cook v. State, 273 Ga. 574,
575 (2) (543 SE2d 701) (2001); Allen, 302 Ga. App. at 191 (1).
3. We turn next to the claim that Rodriguez-Nova’s trial lawyer was
ineffective because he failed to subpoena a forensic biologist from the Georgia
4
We note that another police communications employee testified as to the operation
of the 911 system and the automatic recording of Rodriguez-Nova’s call.
5
Rodriguez-Nova also has briefly argued, at trial and in this appeal, that the State
failed to lay a proper foundation for admission of the recording in that it presented no
evidence of the chain of custody. But the chain of custody requirement does not apply to
audio and video recordings. Gadson v. State, 263 Ga. 626, 627 (2) (437 SE2d 313) (1993).
5
Bureau of Investigation to testify that sperm was found in Mejia-Mesa’s body.
To prevail on a claim of ineffective assistance, Rodriguez-Nova must prove both
that the performance of his lawyer was deficient and that he was prejudiced by
this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III)
(104 SCt 2052, 80 LE2d 674) (1984). To prove that the performance of his
lawyer was deficient, Rodriguez-Nova must show that the lawyer performed his
duties at trial in an objectively unreasonable way, considering all the
circumstances, and in the light of prevailing professional norms. Id. at 687-688
(III) (A). See also Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106 SCt
2574, 91 LE2d 305) (1986). And to prove that he was prejudiced by the
performance of his lawyer, Rodriguez-Nova must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U. S. at 694
(III) (B). See also Williams v. Taylor, 529 U. S. 362, 391 (III) (120 SCt 1495,
146 LE2d 389) (2000). This burden, although not impossible to carry, is a heavy
one. See Kimmelman, 477 U. S. at 382 (II) (C). We conclude that Rodriguez-
Nova has failed to carry his burden.
6
Rodriguez-Nova’s lawyer expected the State to call the biologist, and the
lawyer mentioned the expected evidence about the sperm during opening
statement and closing argument. At the hearing on the motion for new trial,
however, the lawyer indicated that he never planned to introduce that evidence
himself because he did not want the jury to perceive it as an unnecessary direct
attack on Mejia-Mesa. Although his strategy was to show that Rodriguez-Nova
had acted in the heat of passion resulting from the serious provocation of
observing evidence that she had just been unfaithful, the State did not even
dispute that Rodriguez-Nova saw evidence of her unfaithfulness or that he was
motivated as a result to kill her. After reviewing the record, we cannot say that
the strategic decision not to call the biologist was so unreasonable that no
competent attorney would have made it under similar circumstances. See
Washington v. State, 294 Ga. 560, 566 (3) (755 SE2d 160) (2014); Johnson v.
State, 282 Ga. 96, 97-98 (2) (646 SE2d 216) (2007); Aaron v. State, 275 Ga.
App. 269, 271 (4) (a) (620 SE2d 499) (2005). The evidence supported the trial
court’s conclusion that the performance of Rodriguez-Nova’s lawyer was not
deficient, as he “outlined sound tactical reasons for proceeding as he did.”
Moreover, because the evidence of Mejia-Mesa’s unfaithfulness was not in
7
dispute, Rodriguez-Nova failed to show a reasonable probability that the result
of the trial would have been different but for his lawyer’s failure to introduce
evidence about the presence of sperm. See Hoffler v. State, 292 Ga. 537, 543 (5)
(739 SE2d 362) (2013); Daniel v. State, 306 Ga. App. 48, 54 (4) (701 SE2d
499) (2010).
4. Last, we consider Rodriguez-Nova’s contentions with respect to the
jury instructions. He asserts that the trial court erred when it failed to give three
of his requested charges and that a fourth charge, which the court did give, was
in error. We will examine each of these assertions in turn.
(a) Citing Bogan v. State, 158 Ga. App. 1, 2 (279 SE2d 229) (1981),
Rodriguez-Nova complains of the trial court’s denial of his request to charge the
jury that, “[i]n making a determination of whether any other reasonable
hypothesis exists, the defendant’s explanation must be taken into consideration
insofar as it is consistent with the circumstantial evidence admitted.” But
Rodriguez-Nova did not testify at trial. See Upton v. State, 128 Ga. App. 547,
550 (2) (197 SE2d 478) (1973) (omission of this charge was not error because
the jury could disbelieve the defendant’s unsworn statement in part or in whole).
The court fully and correctly covered the applicable principles of law when it
8
instructed the jury regarding the presumption of innocence and the State’s
burden of proof and when it then charged that, “[t]o warrant a conviction on
circumstantial evidence, the proven facts must not only be consistent with the
theory of guilt but also exclude every other reasonable theory other than the
guilt of the accused.” See former OCGA § 24-4-66; Alford v. State, 224 Ga.
App. 451, 456 (4) (480 SE2d 893) (1997); Upshaw v. State, 172 Ga. App. 671,
673-674 (4) (324 SE2d 529) (1984). And because Rodriguez-Nova’s admissions
of guilt following the shooting were direct evidence of his guilt, the State’s case
was not based solely on circumstantial evidence. See Brown v. State, 251 Ga.
598, 601 (4) (308 SE2d 182) (1983); Storey v. State, 205 Ga. App. 610, 612 (4)
(422 SE2d 879) (1992). Consequently, assuming that the additional
circumstantial evidence charge requested by Rodriguez-Nova is ever required,
there certainly was no error in declining to give it in this case.
(b) Rodriguez-Nova next asserts that the trial court erroneously denied his
request to instruct the jury that, “[w]here the State must rely upon the
defendant’s admission alone for an essential element of its case, and where the
6
We note that the provisions of former OCGA § 24-4-6 were carried forward into the
new Evidence Code and now can be found at OCGA § 24-14-6.
9
defendant’s inculpatory statement is coupled with exculpatory matter, you
cannot accept the inculpatory statement and reject the exculpatory matter.” See
Lewis v. State, 292 Ga. App. 257, 261 (1) (a) (663 SE2d 721) (2008). But this
rule, as set out in Terry v. State, 243 Ga. 11, 12-13 (1) (252 SE2d 429) (1979),
“does not apply where the [S]tate presents other direct or circumstantial
evidence that contradicts the exculpatory part of the defendant’s statement or
testimony.” Lewis, 292 Ga. App. at 262 (1) (a). See also Nettles v. State, 249
Ga. 787, 788-789 (1) (294 SE2d 492) (1982). Here, anything in Rodriguez-
Nova’s statement that could support his defense of voluntary manslaughter was
contradicted by other evidence — including the medical examiner’s testimony,
physical evidence, and other portions of his statement — that his attack on
Mejia-Mesa was of significant length and involved a number of different
deliberate and cruel actions (during which she had the opportunity to explain
why he should not kill her), that he changed his mind about whether and how
to kill her, and that she sustained numerous injuries. See OCGA § 16-5-2 (a) (“if
there should have been an interval between the provocation and the killing
sufficient for the voice of reason and humanity to be heard, of which the jury in
all cases shall be the judge, the killing shall be attributed to deliberate revenge
10
and be punished as murder”); Frezghi v. State, 273 Ga. 871, 871 (1) (548 SE2d
296) (2001); Goforth v. State, 271 Ga. 700, 701 (1) (523 SE2d 868) (1999);
Lowe v. State, 267 Ga. 410, 411 (1) (a) (478 SE2d 762) (1996). Accordingly,
the trial court did not err when it declined to give Rodriguez-Nova’s requested
charge as to when a jury cannot reject exculpatory matter in a defendant’s
statement. See Manor v. State, 223 Ga. 594, 596 (11) (157 SE2d 431) (1967).
(c) Rodriguez-Nova also contends that the trial court erred when it failed
to give his request to charge the jury on battery as a lesser included offense of
aggravated battery and aggravated assault. But the trial court merged the
aggravated battery and aggravated assault counts into the conviction for malice
murder, and, therefore, any issue concerning the jury charge given in connection
with those counts is moot. See Parker v. State, 282 Ga. 897, 899 (4) (655 SE2d
582) (2008). In any event, the trial court defined battery for the jury, the verdict
form gave the jury the option of convicting Rodriguez-Nova of battery as a
lesser included offense of aggravated battery, and Rodriguez-Nova does not
explain how battery could have been a lesser included offense of aggravated
assault in this case.
11
(d) Rodriguez-Nova finally complains about the trial court’s charge that
“[p]rovocation by words alone will, in no case, justify such excitement of
passion sufficient to free the accused from the crime of murder or to reduce the
offense to manslaughter when the killing is done solely in resentment of such
provoking words.”7 He argues that this instruction was not supported by any
evidence and that it complicated the issues for the jury. But the rule set forth in
the charge is subsumed under the statutory definition of voluntary manslaughter
in OCGA § 16-5-2 (a). See Aguilar v. State, 240 Ga. 830, 833 (4) (242 SE2d
620) (1978). See also Brooks v. State, 249 Ga. 583, 585-586 (292 SE2d 694)
(1982). In that respect, the particular jury instruction of which Rodriguez-Nova
complains was implicit in the statutory voluntary manslaughter instruction that
was given pursuant to his request. See Williams v. State, 263 Ga. 135, 137 (6)
(429 SE2d 512) (1993). And it was consistent in any event with the defense
theory that Rodriguez-Nova was provoked by Mejia-Mesa’s conduct with the
customer from the dance club. The charge clarified for the jury that only such
conduct — not her words alone — could make the crime voluntary
7
This instruction is identical to a pattern charge on provocation by words alone. See
Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.10.42 (4th ed. 2007, updated
through January 2014).
12
manslaughter, and it was a correct and objective statement of the law. See Parker
v. State, 276 Ga. 598, 599-600 (4) (581 SE2d 7) (2003); Todd v. State, 274 Ga.
98, 101-102 (4) (549 SE2d 116) (2001).
Judgment affirmed. All the Justices concur.
13
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Case: 14-14463 Date Filed: 03/10/2015 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14463
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cv-02447-SCJ
STEPHEN TERRY BRITT,
Petitioner-Appellant,
versus
WARDEN, USP ATLANTA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 10, 2015)
Before ED CARNES, Chief Judge, HULL and ROSENBAUM, Circuit Judges.
PER CURIAM:
Stephen Terry Britt appeals the district court’s dismissal of his pro se 28
U.S.C. § 2241 petition for lack of jurisdiction. Having already litigated a 28
Case: 14-14463 Date Filed: 03/10/2015 Page: 2 of 2
U.S.C. § 2255 petition, Britt now relies on the savings clause of § 2255(e). The
savings clause is a jurisdictional provision, Williams v. Warden, 713 F.3d 1332,
1340 (11th Cir. 2013), so Britt bears the burden of showing that § 2255 is
“inadequate or ineffective” before the district court has jurisdiction to review his
§ 2241 petition, see Turner v. Warden, 709 F.3d 1328, 1333 (11th Cir. 2013).
To meet that burden, Britt must show that: (1) his claim is based on a
retroactively applicable Supreme Court decision; (2) the holding of that Supreme
Court decision establishes that he was convicted of a nonexistent offense; and (3)
circuit law squarely foreclosed his claim at the time it otherwise should have been
raised. Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999). Britt has not
claimed that he is relying on a retroactively applicable Supreme Court decision.
See id. The district court thus lacked jurisdiction to consider his arguments. See
Williams, 713 F.3d at 1339–40.
AFFIRMED.
2
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4656
JOHN CLARENCE JOHNSON, JR., a/k/a
JJ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-98-922)
Submitted: March 28, 2000
Decided: April 26, 2000
Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Harold Watson Gowdy, III, OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Caro-
lina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
John C. Johnson, Jr., appeals his convictions and sentences for con-
spiracy to possess with intent to distribute cocaine and possession
with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)
(1994). For the reasons that follow, we affirm.
A.
Johnson's Anders brief raises four claims.* Johnson first chal-
lenges the admissibility of his statements to Agent Mark Poag of the
Drug Enforcement Agency (DEA).
The admissibility of Johnson's statements turns on whether the
confession is voluntary. See 18 U.S.C. § 3501 (1994); United States
v. Dickerson, 166 F.3d 667, 684 (4th Cir. 1999), cert. granted, 68
U.S.L.W. 3361 (U.S. Dec. 6, 1999) (No. 99-5525); United States v.
Braxton, 112 F.3d 777, 781 (4th Cir. 1997). We review the voluntari-
ness of confessions de novo. See Braxton, 112 F.3d at 781. A state-
ment given freely and voluntarily without any compelling influences
is admissible in evidence. See Miranda v. Arizona, 384 U.S. 436, 478
(1966). The government bears the burden of establishing, by prepon-
_________________________________________________________________
*Johnson's counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967). Accordingly, the Clerk of this Court notified John-
son of his right to file a pro se supplemental brief. In response to John-
son's motions for extension of time, the court extended the time within
which to file the brief until January 3, 2000. On January 12, 2000, and
again on February 14, 2000, Johnson moved for another extension of
time. Because it is clear from the record that Johnson is entitled to no
relief, and because the court gave Johnson two prior extensions, we deny
his two pending motions for extension of time. We also deny his motions
to receive the complete record, to dismiss counsel, and to appoint new
counsel or proceed pro se.
2
derance of the evidence, the voluntariness of a confession. See Lego
v. Twomey, 404 U.S. 477, 489 (1972); Braxton , 112 F.3d at 781.
Shortly after his arrest, Johnson was interviewed by Poag. Poag
advised Johnson of his rights in accordance with Miranda, and John-
son waived his rights and agreed to talk to Poag. Johnson confessed
to Poag that he agreed to provide William Brazel with a half kilogram
of cocaine. Johnson further confessed that after unsuccessful attempts
to obtain the cocaine, he contacted William Wilkins in Florence,
South Carolina. Johnson also admitted that Wilkins and Arthur
Kinder came from Florence the night before the proposed exchange
with Brazel and that they repackaged the cocaine at Johnson's house.
Johnson contended that he made these statements prior to learning his
rights, and Poag testified that the statements were made after Johnson
was given a Miranda warning. The district court chose to credit
Poag's version of events.
A review of the record demonstrates that the district court's deci-
sion to credit Poag's testimony was not clearly erroneous. Therefore,
we deny relief on this claim. See United States v. Gray, 137 F.3d 765,
771-72 (4th Cir. 1998), cert. denied, ___ U.S. ___, 67 U.S.L.W. 3234
(U.S. Oct. 5, 1998) (No. 97-9680).
B.
Johnson next claims that the district court erred in denying his
motion for acquittal pursuant to Fed. R. Crim. P. 29.
The standard of review for deciding a Rule 29 motion is "whether
there is substantial evidence (direct or circumstantial) which, taken in
the light most favorable to the prosecution, would warrant a jury find-
ing that the defendant was guilty beyond a reasonable doubt." United
States v. MacCloskey, 682 F.2d 468, 473 (4th Cir. 1982). In determin-
ing the issue of substantial evidence, we neither weigh the evidence
nor consider the credibility of witnesses. See United States v. Arring-
ton, 719 F.2d 701, 704 (4th Cir. 1983).
The government presented substantial evidence sufficient to war-
rant the jury's finding of guilty beyond a reasonable doubt. Johnson
3
admitted that he, Kinder, and Wilkins agreed to deliver cocaine to
Brazel, and further admitted that he had previously sold an ounce of
cocaine to Brazel. The only issue in dispute was whether Johnson was
entrapped by Brazel. Brazel testified that Johnson approached him
with an offer to sell drugs. Conversely, Johnson testified that Brazel
repeatedly approached him. The district court allowed the jury to con-
sider entrapment as a defense. In rejecting the entrapment defense, the
jury implicitly credited Brazel's version of events. Because this court
does not review the factual determinations made by a jury, see
Arrington, 719 F.2d at 704, we deny relief on this claim.
C.
Following the jury verdicts, Johnson made several pro se motions
for a new trial based upon juror misconduct. Johnson claimed that
some jurors were sleeping during trial and that he witnessed some of
the jurors improperly discussing the case before it was submitted to
them. This court reviews denials of motions for mistrial based upon
juror misconduct for abuse of discretion. See United States v. Dorsey,
45 F.3d 809, 817 (4th Cir. 1995).
The district court found that, based upon its observations of the
jury throughout the trial, jurors were not sleeping or otherwise not
paying attention. The record is devoid of any evidence that this find-
ing was clearly erroneous. Moreover, because Johnson failed to
promptly bring to the court's attention any sleeping or unattentive
jurors, the district court correctly found that Johnson waived his right
to a new trial based upon juror misconduct. See United States v.
Dean, 667 F.2d 729, 733-34 (8th Cir. 1982). Accordingly, we deny
relief on this claim.
D.
Johnson raised several objections to his sentence. We review fac-
tual determinations made in sentencing proceedings for clear error
and legal conclusions de novo. See United States v. Blake, 81 F.3d
498, 503 (4th Cir. 1996). The district court's factual findings must be
supported by a preponderance of the evidence. See United States v.
Brooks, 957 F.2d 1138, 1148 (4th Cir. 1992).
4
Johnson claims that the inclusion of cocaine and crack cocaine
found in Wilkins' truck should not be attributed to him for the pur-
pose of determining his base offense level. Johnson admitted he initi-
ated the acquisition of drugs by Wilkins in Florence, South Carolina.
Johnson also admitted he and Wilkins cut and repackaged the cocaine
later found in Wilkins' truck. The district court, therefore, properly
held Johnson responsible for these drugs. See United States v. Irvin,
2 F.3d 72, 78 (4th Cir. 1993).
Johnson claims that the district court erroneously denied a reduc-
tion in his offense level for acceptance of responsibility pursuant to
USSG § 3E1.1 (1998). Johnson asserted his innocence throughout his
trial and sentencing. He is therefore not entitled to an acceptance of
responsibility adjustment. See USSG § 3E1.1, comment (n. 1(a));
United States v. Dickerson, 114 F.3d 464, 470 (4th Cir. 1997).
Finally, Johnson challenged the drug amount attributable to him as
relevant conduct. Johnson claimed that the drugs involved in a deal
that took place in Florida were not properly attributable to him as rel-
evant conduct for the instant offense; that the information used to set
relevant conduct drug amounts was given to Agent Poag under an
immunity agreement and therefore should not have been used against
him; and that the drug amounts in the pre-sentence report were factu-
ally incorrect.
Johnson's claims are without merit. Johnson admitted that in order
to consummate his first sale of cocaine to Brazel, he obtained one
ounce of cocaine from a source in Florida. This transaction was the
link the district court relied on to connect Johnson with on-going drug
activity in Florida. The district court therefore did not clearly err in
attributing the cocaine transactions between Johnson and his contact
in Florida as relevant conduct.
Johnson's remaining claims of immunity and erroneous drug
amounts boil down to attacks on the credibility of Agent Poag. The
district court decided to credit Poag's testimony, finding that no
immunity agreement existed and that Johnson had, in fact, provided
Poag with the information that formed the basis of the drug amounts
in the pre-sentence report. The district court's findings regarding the
credibility of witnesses are entitled to deference in this court. There-
5
fore, Johnson's sentence will not be reversed on this ground. See
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
As this is an Anders appeal, we have thoroughly reviewed the
record, including the transcripts and the pre-sentence report, and find
no reversible error. This court requires that counsel inform his client
in writing of his right to petition the Supreme Court of the United
States for further review. If Johnson requests that a petition be filed
but counsel believes that such a petition would be frivolous, then
counsel may move this court for leave to withdraw from representa-
tion. Counsel's motion must state that a copy thereof was served on
Johnson.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
6
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111 Ariz. 538 (1975)
534 P.2d 743
STATE of Arizona, Appellee,
v.
Jose Guadalupe Morales BECERRA and Jose Manuel Zamarripa, Appellants.
No. 2964.
Supreme Court of Arizona, In Banc.
May 1, 1975.
*539 N. Warner Lee, Atty. Gen., by Shirley H. Frondorf, Phoenix, for appellee.
Emery E. Varga, Yuma, for appellant Zamarripa.
B.L. Helm, Yuma, for appellant Becerra.
STRUCKMEYER, Vice Chief Justice.
This is a consolidated appeal from convictions for possession of marijuana for sale. Judgments affirmed.
THE APPEAL OF JOSE MANUEL ZAMARRIPA
Appellant Jose Manuel Zamarripa, co-defendant of appellant Jose Guadalupe Morales Becerra, was tried and convicted on a charge of transportation of marijuana and possession of marijuana for sale. The trial judge set aside the conviction for transportation of marijuana for the stated reason that it was his desire to equalize any sentences to be imposed. Zamarripa's ground for reversal here is that the trial court erroneously denied his motion to suppress evidence for the reason that a search of his vehicle was illegal and the seizure of the marijuana contained in it was evidence unlawfully obtained under the Fourth Amendment to the Constitution of the United States.
The seizure of the marijuana arose in this manner. Marcus H. Higgins, an officer in the United States Border Patrol stationed at Tacna, Arizona, was charged with the duty of apprehending illegal entrants into this country. Pursuant to those duties, he was parked about 7:30 a.m., observing traffic near Milepost 41 on Interstate 8 about 40 miles east of Yuma, Arizona. Interstate 8 is the only road north of the Mexican border running east and west between Yuma and Gila Bend, Arizona, a distance of approximately 120 miles. Higgins' vehicle was pulled off the road onto the median between the two traffic lanes when he noticed the approach of a 1960, white Chevrolet automobile in which Becerra was riding and Zamarripa was driving. The automobile was traveling east, away from Yuma, and at this point was approximately 30 miles north of the Mexican border. It was, in point of fact going to Phoenix.
Higgins testified that the border patrol looks for certain types of vehicles that might be loaded and that the back end of the 1960 Chevrolet in which Zamarripa and Becerra were traveling was "real low" to the ground. The apparent nationality of the occupants was Mexican. Higgins stopped the vehicle and talked to the driver, Zamarripa, who convinced him that he was an American citizen. Higgins then talked to Becerra and learned that he was a Mexican National, but that he had a local crossing card. The holder of such card can cross the border and stay for a period of 72 hours in the United States. He must, however, stay within 25 miles of the border. The point where Higgins intercepted the Chevrolet was approximately 30 miles north of the border. When an individual is found who has exceeded the limits of such a card, Higgins' duty is to take that person into custody. Zamarripa was *540 told by Higgins that he wanted to look in the trunk of the car. In the trunk were 485 pounds of marijuana. Higgins placed both Becerra and Zamarripa under arrest and had Zamarripa drive the Chevrolet to the border patrol office in Tacna, where the Arizona State Drug Enforcement Administration was called, with the resulting prosecution in Yuma County, Arizona.
Higgins also testified that he had been working for the border patrol for a little over two years and in that time had probably apprehended in excess of a thousand aliens; that ten or fifteen times he found aliens in the trunks of cars and sometimes there might be more than one person in the trunk. He testified at an omnibus hearing on Zamarripa's motion to suppress:
"Q. And the pattern, or what you observed on this particular morning, did this fit the pattern of what you have learned from your experience as to how aliens are smuggled, and picking out people out of a group of cars to check? You don't just indiscriminately check everybody, do you?
A. No, sir.
Q. You have certain things and factors in your mind that you have learned through experience at doing this that kind of make a little light go on or a bell ring in your mind that it says these people fit a profile or a pattern, these people should be checked for their citizenship status, is that correct?
A. Right."
Geographically, Interstate 8 between Yuma and Gila Bend passes through a remote part of the country in which it is possible for aliens to cross the International Boundary, particularly at night, on foot, and meet prearranged transportation. See, e.g., Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
We do not understand that Milepost 41 was a fixed checkpoint stop, but was more in the nature of a roving patrol stop; nor is it claimed that the border patrol had a search warrant or that Higgins was acting other than pursuant to the powers found in the United States Code, Title 8, § 1357.
We note that Higgins did not testify that he would not have searched the Chevrolet if he had found that both occupants were American citizens. Nor did he testify that the determination of Becerra's status induced him to search the vehicle. We therefore treat the stop and search as a single continuous incident without regard to whether the determination of Becerra's alien status justified the search after the stop. Nevertheless, we hold the search was lawful under the Fourth Amendment to the Constitution of the United States.
Congress has provided that any Immigration officer or employee shall have the power without warrant to search any vehicle for aliens within a reasonable distance from any external boundary of the United States. Section 287(a)(3) of the Immigration Nationality Act, U.S. Code, Title 8, § 1357. The Supreme Court of the United States in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), has construed Congress' Act to mean that the language of the statute is circumscribed by the constitutional requirement of probable cause as recognized in Carroll v. United States, supra, and the subsequent cases cited and distinguished in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
An experienced border patrol officer could conclude from the above stated facts that a stop and search of the Zamarripa vehicle could be lawfully undertaken. First, the area was important. Aliens can walk across the border and meet prearranged transportation in the farming area south of Yuma. Second, the time of day was significant. Aliens who illegally cross the International Boundary at night and on foot must find cover with the coming of daylight or risk of discovery becomes an almost certainty. Ideally, the arrangements would be to meet transportation to metropolitan areas at or shortly before dawn. Third, there is a high degree of probability that transportation arrangements *541 would be made with individuals with whom the aliens would be most likely to place their trust, that is, Mexican Nationals and Americans of Mexican extraction. And, finally, the significant facts that aliens are often transported in the trunk of an automobile and that the rear of this Chevrolet automobile was low to the ground.
The combination of these circumstances establishes a profile sufficient to sustain the stop and search. We therefore conclude that this was not an indiscriminate stop without probable cause, but a reasonable search permitted by the Constitution. Finding no error in the trial court's ruling that the search of the vehicle was legal and the seizure of the marijuana was not unlawful, the judgment is affirmed.
THE APPEAL OF JOSE GUADALUPE MORALES BECERRA
The appellant Becerra plead guilty to the charge of possession of marijuana for sale and received a sentence of two to three years in the State Penitentiary. He presents the single question of whether the failure of the trial court to grant probation was an abuse of discretion. Subsidiary to this question and underlying his argument is the thesis that the court below was under an obligation to spell out its reasons for granting or denying probation.
Appellant points to the Standards Relating to Appellate Review of Sentences of the American Bar Association, Approved Draft § 2.3(c), which provides that the sentencing judge shall make a statement of his reasons for selecting the sentence imposed. It is urged that if we require the sentencing court to state his reasons, an appellate court will both be able to review the sentence and provide courts and attorneys in Arizona definitive guidelines to specify which circumstances are aggravating and which are mitigating.
We have previously touched upon this issue in State v. Douglas, 87 Ariz. 182, 349 P.2d 622 (1960). There, we noted that the Legislature has not required the trial judge to spell out its reasons for either granting or denying probation. We said:
"Probably this was because there are so many intangible and imponderable factors entering into such a decision." 87 Ariz. at 187, 349 P.2d at 625.
We decline to find reversible error in the trial judge's failure to state his reasons for refusing to grant probation or imposing the particular sentence ordered in the case. The trial judge has had the opportunity to see and hear the defendant and the witnesses in the case and knows the local conditions. He has the necessary feel to impose a just sentence in assessing the intangibles and imponderables. We do not think it is necessary for our views to coincide with his. We therefore do not propose to second-guess him in such matters and will not disturb the sentence unless it appears that it is grossly excessive.
In the instant case, appellant, after pleading guilty, testified at a mitigation hearing that he was to share in the proceeds of the sale of the 485 pounds of marijuana which were found in the automobile in which he was riding. Such patent defiance of the laws of this State fully justifies the modest sentence imposed. The judgment of conviction and sentence are affirmed.
CAMERON, C.J., and LOCKWOOD, HAYS and HOLOHAN, JJ., concur.
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106 F.3d 391
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Susan PREISLER, Plaintiff-Appellant,andNelson BERRIOS, Plaintiff,v.HOSPITALITY INTERNATIONAL, INCORPORATED, a GeorgiaCorporation, a/k/a Scottish Inns; Ban Inn,Incorporated, a North CarolinaCorporation, Defendants-Appellees,andABC COMPANIES; Jane or John Does, 1 through 10, Defendants.
No. 96-1435.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 2, 1996.Decided Jan. 30, 1997.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, District Judge. (CA-94-958-5-BR(1))
ARGUED: Michael S. Kimm, Hackensack, New Jersey, for Appellant.
Phillip J. Anthony, PATTERSON, DILTHEY, CLAY & BRYSON, Raleigh, North Carolina, for Appellee Ban Inn; Andrew Albert Vanore, III, YATES, MCLAMB & WEYHER, Raleigh, North Carolina, for Appellee Hospitality International.
ON BRIEF: Philip S. Adkins, EAGEN, EAGEN & ADKINS, Durham, North Carolina, for Appellant. Grayson L. Reeves, Jr., PATTERSON, DILTHEY, CLAY & BRYSON, Raleigh, North Carolina, for Appellee Ban Inn.
Before WILKINSON, Chief Judge, ERVIN, Circuit Judge, and DAVIS, United States District Judge for the District of Maryland, sitting by designation.
OPINION
PER CURIAM:
1
Hotel guests Susan Preisler and Nelson Berrios sued hotel operator Ban Inn and hotel franchisor Hospitality International for invasion of privacy and infliction of emotional distress. The district court granted summary judgment to Ban Inn and Hospitality International. Preisler appeals. Because the evidence shows that the defendants neither knew of nor ratified the alleged tortious acts by hotel employees, we affirm the judgment of the district court.
I.
2
On November 29, 1992, Preisler and Berrios checked into the Scottish Inn at Exit 15 on Interstate 95 in North Carolina. They were assigned room 142. Both Preisler and Berrios showered while in their room that night. They claim that during the stay they were startled by noises coming from the wall in the bathroom, on which a large vanity mirror was positioned. They further allege that they discovered two separate "peeping tom" holes scraped into the mirror, behind which was a utility hallway accessible to all hotel employees. The president of Ban Inn, who manages the Scottish Inn hotel where Preisler and Berrios stayed, contends that he can find no evidence that peeping tom holes ever existed. He points out that two walls and several inches of fiberglass insulation separate the utility hallway from the bathroom in room 142, and none have holes or patch marks.
3
Preisler and Berrios brought suit against Ban Inn, the franchisee that operated that particular Scottish Inn, and against Hospitality International, the franchisor of the Scottish Inn chain. When Preisler and Berrios failed to provide discovery in a timely manner, the magistrate judge recommended that defendants' motion for sanctions be allowed. The district court adopted the magistrate's recommendation, dismissing Berrios' claim for discovery violations, assessing $200 in costs against Preisler, and then granting summary judgment in favor of Ban Inn and Hospitality International. Only Preisler appeals.
II.
A.
4
Preisler argues that the district court erred in granting summary judgment to Ban Inn and Hospitality International. She asserts that the two companies are responsible for the invasion of privacy and infliction of emotional distress that she suffered. Preisler's complaint pleads no claim of premises liability or other breach of duty owed directly to her by defendants. We therefore move directly into an analysis of whether Ban Inn and Hospitality International are vicariously liable, under respondeat superior, for torts allegedly committed by the hotel employees in this case.
5
Because the events at issue occurred in North Carolina, we look to North Carolina law to determine the rules of liability. In that state,
6
a principal will be held liable for its agent's wrongful act under the doctrine of respondeat superior when the agent's act is (1) expressly authorized by the principal; (2) committed within the scope of the agent's employment and in furtherance of the principal's business--when the act comes within his implied authority; or (3) ratified by the principal.
7
B.B. Walker Co. v. Burns Int'l Sec. Servs., Inc., 424 S.E.2d 172, 174 (N.C.Ct.App.), review denied, 429 S.E.2d 552 (N.C.1993). Neither of the first two circumstances--express authorization or scope of employment and furtherance of business--are at issue in this case. If Ban Inn and Hospitality International are to be liable, then, it must be because they ratified the alleged peeping activities of the employees. In order to ratify an agent's action, a corporation must have actual knowledge of the behavior. Carolina Equip. & Parts Co. v. Anders, 144 S.E.2d 252, 258 (N.C.1965) ("A principal who acted without actual knowledge of the material facts will not be held to have ratified an unauthorized act of his agent even though he failed to exercise due diligence which would have revealed the truth.").
8
Preisler offers no evidence that either Ban Inn or Hospitality International had actual knowledge of any alleged peeping tom activities occurring at the Scottish Inn hotel.* She merely makes a bald allegation that "defendants Hospitality International and Scottish Inns knew or should have known or would have discovered by reasonable inspection of the relevant premises that such Peeping Tom holes existed in room 142 of the hotel." This is insufficient to counter the affidavits sworn by the president of Ban Inn and the vice president of Hospitality International stating that neither company knew of or ratified any peeping tom activities in the hotel on November 29, 1992 or at any other time.
B.
9
Preisler further argues that the district court abused its discretion in imposing a $200 sanction against her for discovery delays, under Fed.R.Civ.P. 37(a)(4). She claims that the court failed to consider her mitigating circumstances, that it imposed a sanction that was more than was necessary to deter future violations, and that it imposed sanctions for expenses related to a hearing which covered matters other than the sanction motion.
10
We find that the district court was well within its discretion in imposing a $200 sanction on Preisler. The defendants served Berrios and Preisler with written discovery requests on July 17, 1995, with responses due by August 21, 1995. On September 18, after contacting Berrios and Preisler's attorney to try to obtain responses to the discovery request, defendants filed a Motion to Dismiss or Compel and Motion to Recover Expenses. The magistrate judge granted the Motion to Compel. Rule 37(a)(4) requires that,
11
the court shall, after affording an opportunity to be heard, require the party ... whose conduct necessitated the motion ... to pay the moving party the reasonable expenses incurred in making the motion, including attorneys' fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure of discovery without court action, ... or that other circumstances make an award of expenses unjust.
12
At the magistrate judge's request, the defendants prepared an affidavit showing that the expenses associated with the Motion to Compel amounted to $1,208. The magistrate judge recommended that Preisler be required to pay half of the total--$604. The district court imposed only a $200 sanction. The court was well within its discretion to require Preisler to pay this amount.
III.
13
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED
*
Preisler attempts to find evidence of actual knowledge by urging a "negative inference" from the fact that no inspection report from Hospitality International can be found for 1992. She implies that an inspection of the Scottish Inn in question took place in 1992 but that the report has been purposely lost or destroyed because it indicated knowledge of the peepholes. Her reliance on the lack of a report, however, is misplaced. Hospitality International made "periodic reports" each of which referred to the previous inspection. Two inspections were made in 1991. The next report in sequence was written in March 1993, and it specifically referenced the previous report made in 1991. There is no evidence that Hospitality International made an inspection in 1992, and ample evidence that it did not
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T.C. Summary Opinion 2001-102
UNITED STATES TAX COURT
JAMES K. AND PATRICIA J. GOODCHILD, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 1254-00S. Filed July 5, 2001.
Bruce N. Crawford, for petitioners.
Melissa J. Hedtke, for respondent.
PAJAK, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect at the time the petition was filed. The decision to be
entered is not reviewable by any other court, and this opinion
should not be cited as authority. Unless otherwise indicated,
subsequent section references are to the Internal Revenue Code in
effect for the year in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
- 2 -
Respondent determined a deficiency of $2,666 in petitioners’
1997 Federal income tax. Due to the manner in which petitioners
presented their case, the sole issue we must decide is whether
petitioners are entitled to exclude disability benefits from
income under section 105(c).
This case was submitted fully stipulated pursuant to Rule
122. The limited facts stipulated are so found. Petitioners
resided in Maple Grove, Minnesota, at the time their petition was
filed.
It was determined that petitioner James K. Goodchild
(petitioner) had Crohn’s disease, arthritis in both knees, and
job-related stress. Respondent conceded that petitioner’s
medical condition prevented him from continuing as a senior
broadcast technician at the University of Minnesota. Petitioner
began receiving a disability benefit from the Minnesota State
Retirement System in April 1997.
During 1997, petitioners received $12,873 from the Minnesota
State Retirement System. The Minnesota State Retirement System
provided petitioners with a Form 1099-R, Distributions From
Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs,
Insurance Contracts, etc., for that amount. During 1997,
petitioners received $6,030 from the Social Security
Administration. The Social Security Administration provided
petitioners with a Form 1099-SSA for that amount.
- 3 -
Respondent determined that petitioners did not report
pension income in the amount of $12,873. Respondent also
determined that petitioners did not report as income taxable
benefits of $5,126 from the $6,030 paid to petitioners by the
Social Security Administration. Petitioners take the position
that the Social Security benefits are subsumed in the section
105(c) exclusion issue.
Both parties argued the case based on the applicability of
section 105(c). Petitioners argue that they are entitled to an
exclusion of the disability payments under section 105(c).
Respondent’s position is that section 105(c) does not apply under
the facts in this case for a number of reasons.
Initially, we find it unnecessary to decide whether the
Minnesota State Retirement System qualifies as a health or
accident plan because petitioners cannot satisfy one of the
requirements under section 105(c).
Pursuant to section 105(a), payments received by an employee
under an employer-provided accident or health insurance plan for
personal injuries or sickness are generally includable in the
employee’s income. However, section 105(c) grants an exception
under which such payments may be excluded from an employee’s
gross income if the requirements of section 105(c) are met.
Section 105(c) provides that:
SEC. 105(c). Payments Unrelated to Absence From Work.–-
Gross income does not include amounts referred to in
- 4 -
subsection (a) to the extent such amounts–
(1) constitutes payment for the permanent loss or
loss of use of a member or function of the body, or the
permanent disfigurement, of the taxpayer, his spouse,
or a dependent (as defined in section 152), and
(2) are computed with reference to the nature of the
injury without regard to the period the employee is
absent from work.
Thus, a necessary predicate for exclusion under section 105(c) is
that the amounts are computed “without regard to the period the
employee is absent from work.” Armstrong v. Commissioner, T.C.
Memo. 1993-579.
The Minnesota State Retirement System provides that
disability payments are to be made to employees found to be
“totally and permanently disabled”. Minn. Stat. sec. 352.113
subdiv. 1, sec. 352.01 subdiv. 22 (2001). The statute defines
total and permanent disability as the employee’s “inability to
engage in any substantial gainful activity by reason of any
medically determinable physical * * * impairment that has existed
or is expected to continue for a period of at least one year.”
Minn. Stat. sec. 352.01 subdiv. 17 (2001). The statute goes on
to provide that if “the employee is no longer permanently and
totally disabled, or is engaged in or can engage in a gainful
occupation, payments of the disability benefit by the fund must
be discontinued.” Minn. Stat. sec. 352.113 subdiv. 6 (2001).
Thus, the disability payments under the Minnesota State
Retirement System cover only the period of time during which an
- 5 -
employee has to be absent from work. Such payments are promptly
discontinued if and when an employee becomes able to work again.
The disability payments from the Minnesota State Retirement
System are computed with regard to the period the employee was
absent from work. The critical requirement for exclusion under
section 105(c) that the payments must be “computed * * * without
regard to the period the employee is absent from work” is not
satisfied. Armstrong v. Commissioner, supra.
Section 105(c) does not apply in this case. The payments
from the Minnesota State Retirement System are taxable under
section 61(a)(11). The payments from the Social Security
Administration are taxable under section 86. We sustain
respondent’s determination.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.
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14 Cal.Rptr.3d 210 (2004)
91 P.3d 162
PEOPLE
v.
ROBINSON.
No. S123938.
Supreme Court of California.
June 9, 2004.
Petition for review granted; issues limited.
Respondent's petition for review GRANTED.
Defendant's petition for review DENIED.
The issue to be briefed and argued is limited to the following question: Where the trial court found a prima face case of Wheeler/Batson error with regard to the third African-American potential juror removed by the prosecutor by peremptory challenge (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748; Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69), was the court required to obtain the prosecutor's reasons for removing each of the three African-American potential jurors or could the court limit its inquiry to the prosecutor's reasons for the third challenge?
GEORGE, C.J., KENNARD, BAXTER, WERDEGAR, CHIN, BROWN and MORENO, JJ., concur.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 19 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
MIRIAM ANNE BISSEN,
Plaintiff - Appellant,
v. No. 98-1005
(D.C. No. 97-Z-1372)
JAVIER MAZZETTI, Academy (D. Colo.)
School District No. 20, President of
Board of Education; KEVIN C.
SMELKER, Supervisor of Finance;
RANDY K. HARPER, Chief,
Collection Branch, IRS; DAVID K.
EBERHARDT, Assistant
Superintendent; WALTER A.
HUTTON, JR., IRS District Director,
and Judge CHARLES E.
MATHESON, Chief Bankruptcy
Judge,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before PORFILIO, KELLY, and HENRY, Circuit Judges. **
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Plaintiff-Appellant Miriam Bissen filed a pro se action against two IRS
officials, a bankruptcy judge, and her employers in a Colorado school district for
alleged constitutional violations arising out of a tax levy. She appeals the district
court’s dismissal of her claims for lack of subject-matter jurisdiction. Our review
is de novo, see SK Finance SA v. La Plata County, 126 F.3d 1272, 1275 (10th
Cir. 1997), and we affirm.
In October, 1996, the IRS sent a Notice of Levy to Ms. Bissen’s employer,
Academy School District No. 20, directing it to turn over a portion of Ms.
Bissen’s wages to the IRS until she paid off a federal tax delinquency. The
school district complied. Ms. Bissen filed for bankruptcy in Colorado and the
case was assigned to a bankruptcy judge. Ms. Bissen moved to voluntarily
dismiss the bankruptcy case, and the bankruptcy judge granted her motion. She
then filed a complaint entitled Tort Claim for Constitutional Rights Violations,
which she later amended, asserting the defendants had taken her property without
due process and otherwise violated her rights under the Fifth, Seventh, Ninth, and
Tenth Amendments to the Constitution. She claimed a total of $13.5 million in
damages from the defendants. In her pro se appeal, she argues the district court
violated her Seventh Amendment right to jury trial by dismissing her case.
Bankruptcy judges are absolutely immune from civil liability for judicial
actions within the scope of their jurisdiction. See Mireles v. Waco, 502 U.S. 9, 9-
-2-
10 (1991); Gregory v. United States, 942 F.2d 1498, 1499–1500 (10th Cir. 1991);
Van Sickle v. Holloway, 791 F.2d 1431, 1435-36 (10th Cir. 1986). The
bankruptcy judge thus cannot be sued for his dismissal of a bankruptcy case. See
Mireles, 502 U.S. at 11.
Ms. Bissen’s suit against the individual IRS officers complains only of
actions taken in their official capacity, and is thus properly considered a suit
against the United States. See Atkinson v. O’Neill, 867 F.2d 589, 590 (10th Cir.
1989). The United States cannot be sued without its consent, and the terms of
that consent define a court’s subject-matter jurisdiction. See United States v.
Dalm, 494 U.S. 596, 608 (1990); Atkinson, 867 F.2d at 590. Actions under 26
U.S.C. §§ 7432 and 7433 are “the exclusive remedy for recovering damages
resulting from [tax collection] actions.” 26 U.S.C. § 7433(a). 1 Ms. Bissen has
not alleged facts to support a claim under either section, and we have no subject-
matter jurisdiction to consider her extra-statutory complaints. To the extent her
complaint can be construed as a Bivens claim against the officers in their
individual capacity, it will not lie because Congress has already established a
scheme of safeguards and remedies for individuals harmed by unlawful tax
1
Title 26 U.S.C. § 7433 was amended on July 22, 1998, but the
amendment is not retroactive and does not affect this case. See Internal Revenue
Service Restructuring and Return Act of 1998, Pub. L. No. 105-206, § 3102, 112
Stat. 685, 730-31 (1998).
-3-
collection. See Schweiker v. Chilicky, 487 U.S. 412, 422-23 (1988); Dahn v.
United States, 127 F.3d 1249, 1254 (10th Cir. 1997); Wages v. IRS, 915 F.2d
1230, 1235 (9th Cir. 1990); National Commodity & Barter Ass’n v. Gibbs, 886
F.2d 1240, 1248 (10th Cir. 1989).
Ms. Bissen’s claim against the officers of the school district is covered by
the Colorado Governmental Immunity Act, Colo. Rev. Stat. §§ 24-10-101 to 10-
120 (1997), which bars a plaintiff from filing suit unless she has filed a notice
with each defendant or his attorney within 180 days of her injuries. See Colo.
Rev. Stat. § 24-10-109 (1997). Ms. Bissen’s failure to do so deprives the court of
subject-matter jurisdiction. See id.; Trinity Broadcasting of Denver, Inc. v. City
of Westminster, 848 P.2d 916, 923 (Colo. 1993). We further note that 26 U.S.C.
§ 6332(e) discharges from liability any person complying with a levy.
As for Ms. Bissen’s claim that the district court violated her Seventh
Amendment rights, the court may not hold a jury trial on a suit over which it has
no jurisdiction.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-4-
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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 711 MAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
WANYA ROSSER, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 31st day of March, 2017, the Petition for Allowance of Appeal is
DENIED.
Justices Donohue and Wecht did not participate in the consideration or decision
of this matter.
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Fourth Court of Appeals
San Antonio, Texas
October 22, 2015
No. 04-15-00500-CV
IN THE BEST INTEREST AND PROTECTION OF S.W.,
From the Probate Court No 1, Bexar County, Texas
Trial Court No. 2015-MH-2596
Kelly Cross, Judge Presiding
No. 04-15-00505-CV
THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION OF S.W.
From the Probate Court No 1, Bexar County, Texas
Trial Court No. 2015-MH-2544
Kelly Cross, Judge Presiding
ORDER
Appellant’s briefs were originally due on September 7, 2015 and September 8, 2014,
respectively. On September 22, 2015, this court granted appellant’s motions for an extension of
time in which to file a brief and motions to consolidate the appeals. In that order, we ordered
appellant’s retained attorney, Mr. Michael S. Raign, to file appellant’s brief no later than October
8, 2015. Our order also stated that, because these are accelerated appeals, no further extensions
of time would be granted absent extenuating circumstances. Mr. Raign has not filed appellant’s
brief.
Accordingly, Mr. Raign is hereby ORDERED to show cause in writing, no later than
November 2, 2015, why these appeals should not be dismissed for want of prosecution. See TEX.
R. APP. P. 38.8(a).
The Clerk of this court shall cause a copy of this order to be served on Mr. Raign by
certified mail, return receipt requested, and by United States mail.
_________________________________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 22nd day of October, 2015.
___________________________________
Keith E. Hottle
Clerk of Court
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992 F.2d 320
U.S.v.Serpoosh
NO. 92-1608
United States Court of Appeals,Second Circuit.
Mar 10, 1993
1
Appeal From: E.D.N.Y.
2
AFFIRMED.
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485 P.2d 486 (1971)
Samuel Jefferson WOODS, Plaintiff in Error,
v.
The STATE of Oklahoma, Defendant in Error.
No. A-16520.
Court of Criminal Appeals of Oklahoma.
May 12, 1971.
Don Anderson, Public Defender, for plaintiff in error.
Larry Derryberry, Atty. Gen., James L. Gullett, Asst. Atty. Gen., for defendant in error.
BUSSEY, Presiding Judge.
Samuel Jefferson Woods, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Oklahoma County of the offense of Assault and Battery With A Dangerous Weapon With Intent to Kill; his punishment was fixed at twelve years imprisonment; and from said Judgment and Sentence a timely appeal has been perfected to this Court.
Briefly stated the evidence at the trial adduced that on March 6, 1970, around 8:00 or 8:30 P.M. Marion Smith had occasion to go to 10 1/2 S.W. 27th Street in Oklahoma City to see one Willie Gray about some work. He testified that he was standing in the driveway of Gray's house talking to the latter's son when he was shot twice in the stomach and chest (Tr. 7). The shots came from the south or a little east of south from the same side of the street. He saw a man with a rifle, but could not identify the person. Some *487 ten or twelve shots were fired in rapid succession.
Officers Pittenridge of the Oklahoma City Police Department testified about going to the place of the shooting, getting a .22 cal. rifle from another police officer and accompanying Smith to the hospital.
Officer Garrison of the Oklahoma City Police Department testified that the night of the shooting he went to 10 1/2 S.W. 27th Street and saw defendant standing near the door of the rear apartment with a rifle in his left hand. He retrieved the rifle and arrested defendant. He also found seven spent .22 cartridges and one live round, and observed bullet holes in the side of the house and in a car parked in the driveway. The person causing the bullet holes would have had to be in the driveway of the house where defendant was arrested.
Officer Hervey of the Oklahoma City Police Department testified that he interrogated defendant in the Oklahoma City Jail on March 6, 1970, about 10:45 P.M. He gave defendant the Miranda warning, and defendant told him he had been at a friend's house and had a few drinks about 5:30 P.M. that day. One Connie Gray (not the same person as Willie Gray) suggested poker game, and during the course of the game defendant suspected Gray of cheating and withdrew his money from the pot. Gray then said he was going to get even with defendant, and another person there said that Gray meant it and would probably get even with defendant. Defendant then went home, got a .22 rifle and went to his brother's house (one of the apartments at 10 1/2 S.W. 27th rear). As defendant reached the rear apartment he thought he heard two shots and saw people standing in the driveway. Defendant emptied his rifle at these persons. He "thought somebody was out to try to get him" (Tr. 43).
Defendant did not testify nor was any evidence offered in his behalf.
The first proposition alleges that the Court erred in denying defendant's requested instruction on self defense. The record reflects the following excerpt of the testimony of Officer Hervey concerning the statement of the defendant:
"Q. All right. Tell the Court and Jury what he told you.
"A. He told us that he had gone to a friend's house at 26th and South Broadway around 5:30 in the afternoon, that the reason he knew it was 5:30 because he was watching Perry Mason on T.V. and that while he was there there was another friend that was there that had a bottle and they had a few drinks and during the course of the evening while he was there there was two more came in, Loveless (phonetically) or something like that, was one of them's name, and Connie Gray, and that Connie Gray suggested they play a little poker.
They played a little nickel-ante poker and during the course of the poker game, why, he caught Connie Gray cheating. He called his hand on it and took his money out of the pot and that Connie Gray told him that he was going to get even with him and then Connie Gray left the house and another person at the house told him that Connie Gray meant it, that he probably would get even with him.
He stated he then left, went to his brother's house, this being a downstairs garage apartment, I believe it's 10 1/2, I don't recall the exact location, and asked his brother for a shotgun, that his brother told him he didn't have it, that he had hocked it.
"Q. Do you recall what his brother's name was?
"A. No, not right off hand.
"Q. All right, go ahead.
"A. So he then left and went to his own house and said he had a .22 rifle there that he had purchased from Oklahoma Tire and Supply about seems like it was about six months previous and a box of shells, that *488 he loaded up this gun with shells and thought it was .22 long rifle shells; that he went back over to his brother's house and while he was at his brother's house he heard some voices.
He started walking out from I think the brother's the door is kind of on the side, he has to walk around from the side to the front, this being a house in the back at the end of the driveway, and when he walked out there he said he thought he heard two shots and he saw two people standing up on the drive and he just emptied his.22 rifle at them, the thought they were trying to kill him.
"Q. All right. Did he ever express as to whether or not he knew later determine whether he knew either one of those two people?
"A. He said he couldn't he didn't he couldn't see them well enough to see who they were."
The defendant contends that since there was evidence of self defense contained in the above statement, the trial court committed fundamental error in denying his requested instruction on self defense. It is an established rule of law of this state that a defendant has the right to have a clear and affirmative instruction given to the jury, applicable to his defense, based upon hypothesis that it is true, when such evidence affects a material issue in the case. Fleming v. State, Okl.Cr., 401 P.2d 997 (1965).
We are of the opinion that the defendant's statement did not establish that he was in fact acting in self defense. He had been threatened by Connie Gray to "get even." After arming himself he saw two persons standing in the driveway, thought he heard two shots and that he thought they were trying to kill him. In the case of Jamison v. State, Okl.Cr., 304 P.2d 371 (1956), this Court by Judge Brett stated:
"Fear, based upon threats alone unless accompanied by some overt act or demonstration designed to execute the threats which furnished the defendant some reason to believe that he was in danger of being killed or suffering great bodily injury at the hands of the deceased, will not support a plea of self defense and mitigate the homicide."
In the instant case there was no evidence of some overt act or demonstration to execute the threat except that the defendant "thought" he heard two shots. There was no evidence that bullets from the alleged shots struck near the defendant and further that the defendant did not recognize who he was shooting at. A person asserting the right of self defense must rely on a more substantial overt act or demonstration than merely thinking he was being fired upon. We thus conclude that the trial court properly denied the requested instruction on self defense.
The defendant's final proposition asserts that the trial court erred in failing to instruct upon circumstantial evidence, although such an instruction was not requested.
In Watkins v. State, Okl.Cr., 351 P.2d 317 (1960), we stated:
"The defendants finally contend that the trial court erred in not giving an instruction on circumstantial evidence. The evidence herein was both direct and circumstantial. It has been repeatedly held that where the state's evidence is not entirely circumstantial, it is not necessary to give an instruction on circumstantial evidence."
See also Lawson v. State, Okl.Cr., 476 P.2d 89 (1970), wherein we held that where defendant has made no request for instruction on law of circumstantial evidence, failure of court to instruct does not constitute reversible error.
The defendant has filed a pro se supplemental brief. We have carefully examined the propositions contained therein and are of the opinion that they do not contain sufficient merit to be discussed in this opinion.
*489 In conclusion we observe that the record is free of any error which would justify modification or reversal, the punishment is well within the range provided by law and under such circumstances we are of the opinion that the judgment and sentence should be and the same is hereby
Affirmed.
NIX and BRETT, JJ., concur.
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
CHARLES EDWARD KENDRICK, JR., No. 08-12-00048-CR
§
Appellant, Appeal from
§
v. 396th District Court
§
THE STATE OF TEXAS, of Tarrant County, Texas
§
Appellee. (TC #1199839D)
§
JUDGMENT
The Court has considered this cause on the record and concludes there was no error in the
judgment. We therefore affirm the judgment of the court below. This decision shall be certified
below for observance.
IT IS SO ORDERED THIS 28TH DAY OF AUGUST, 2013.
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
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225 F.Supp.2d 414 (2002)
Guy SHAPIRA, Plaintiff,
v.
CHARLES SCHWAB & CO., INC., et ano., Defendants.
No. 02 CIV. 0425(LAK).
United States District Court, S.D. New York.
October 3, 2002.
*415 David A. Zelman, for Plaintiff.
Ned H. Bassen, Michelle W. Goldman, Hughes Hubbard & Reed LLP, for Defendant Charles Schwab & Co., Inc.
MEMORANDUM OPINION
KAPLAN, District Judge.
This case involves a claim that defendant Charles Schwab & Co., Inc. ("Schwab") improperly inquired into plaintiff's supposedly sealed arrest record and, upon discovering that he had been arrested, therefore denied him employment in a position that allegedly had been promised to him. The matter is before the Court on Schwab's motion for summary judgment dismissing the complaint.
Facts
The Arrest and the Records
On June 3, 1999, plaintiff, a licensed securities broker, was arrested for petit larceny. The parties agree that the arrest was the product of mistaken identity and that no charges ever were brought against him. Indeed, plaintiff asserts that he "was not involved in any `court proceeding,' ... never [was] charged with a crime[, and that n]o charging instrument was ever filed."[1]
Plaintiff contends that the New York Criminal Procedure Law resulted in the sealing of the arrest record once prosecution was declined.[2] The implicit assumption that the statute applied to this record is questionable as a matter of law.[3] But the salient point for present purposes is that the record in fact was not sealed immediately, whatever the statute intended.[4]*416 Plaintiff evidently learned as much in or about February 2000, as he then commenced a proceeding to seal the arrest record, a proceeding that ultimately resulted in an order and judgment in plaintiff's favor, which was entered on June 2, 2000.[5] The interval between the mid-1999 arrest and the mid-2000 sealing order, however, was to prove significant for purposes of this case, as the National Association of Securities Dealers, Inc. ("NASD") learned of the June 3, 1999 arrest by March 2000.[6]
The Employment Application at Schwab
In December 2000, plaintiff applied for corporate relationship manager and sales manager positions with Schwab.[7] Following an initial interview, he filled out an employment application and signed a form authorizing Schwab "to have full access to any and all court records pertaining to any criminal proceeding in which I have been involved, either as reflected on this form or on my employment application form, or as revealed in the records of the" Central Registration Depository of the NASD.[8] These forms then were faxed from Schwab's New York office, where plaintiff had been interviewed and where his application was pending, to Schwab's Risk Management & Investigations ("RMI") department in San Francisco for the purpose of RMI conducting a background check.[9] RMI then made inquiry of the NASD and learned that plaintiff had been arrested for petit larceny on June 3, 1999.[10]
At some point, plaintiff had a second interview in New York at which he claims he was promised a job. His pertinent deposition testimony was as follows:
"Q * * * My first question is, what representations did Schwab make to you that you would in fact be employed?
"A I was specifically requested when I could start. I was specifically requested for compensation. Expected compensation. I was specifically discussed and outlined the job duties. The preference of what position would be best suited for me from the two open positions, by the hiring manager. I was told specifically that I would be contacted shortly and this was a sure thing. In addition, I was asked to follow-up, after multiple interviews, *417 with a digitized document from a presentation that I had made to Schwab.
* * * * * *
"Q The next one, the second part says this was a sure thing. You would be contacted shortly and this was a sure thing. Did someone say those exact words to you?
"A Zachary Jolly [one of the interviewers] made it very clear that I would be contacted very shortly, within a day or so, and that at that point an offer would be formally presented."[11]
He testified also that he was told "the only impediment to his being hired in the position he applied for was to check his registration status with the National Association of Security [sic] Dealers, Inc."[12]
Schwab, on the other hand, denies that any promises were made. It contends that, immediately after the second interview, the interviewers who met with plaintiff unanimously concluded that he was not right for either of the jobs. And, of course, it is undisputed that no job offer ever was forthcoming.
The record concerning the knowledge of the plaintiff's arrest record by the four Schwab interviewers is murky, notwithstanding the categorical denials in Schwab's memorandum of law. Mr. Jolly, one of the Schwab interviewers, testified that he was not aware of the arrest record.[13] Another interviewer, Ms. Mabel, said that the interviewers never "discussed" plaintiff's arrest among themselves and that she had not discussed it with the RMI employee in San Francisco.[14] However, Ms. Mabel recalled a conversation in which the RMI employee advised her that Mr. Shapira "wasn't forthcoming with his answers," requiring additional investigation.[15] No affidavit or testimony of the other interviewers was submitted on the motion. The deposition testimony of the San Francisco RMI employee who learned of the arrest record, at least to the extent that it has been submitted to the Court, falls far short of claiming that she never advised the New York personnel of the arrest.
Discussion
Plaintiff makes three claims. He contends first that Schwab violated the New York State and New York City Human Rights Laws[16] by inquiring into his allegedly sealed arrest record. Second, he asserts that plaintiff unlawfully discriminated against him because of the arrest. Finally, he contends that Schwab is liable to him for the failure to hire on a theory of promissory estoppel.
A. The Inquiry
The relevant portions of the statutes in question provide, in substantially identical language,[17] that:
"It shall be an unlawful discriminatory practice, unless specifically required or permitted by statute [any other law], for any person ... to make any inquiry about, whether in the form of application or otherwise, or to act upon adversely to the person involved, any arrest or criminal accusation of such individual not then pending against that individual [such person] which was followed by a termination of that criminal action or *418 proceeding in favor of such individual [person] ... in connection with ... employment. ..."[18]
The Court puts to one side whether the statutes even apply to an arrest record where, as here, (a) no criminal action or proceeding ever was commenced against plaintiff and, in consequence, (b) no such action or proceeding could have been terminated in his favor.[19] For even if they did, Schwab plainly did not violate them.
Securities and Exchange Commission ("SEC") Rule 17a-3, promulgated under the Securities Exchange Act of 1934 (the "Exchange Act"),[20] provides in relevant part as follows:
"(a) Every member of a national securities exchange who transacts a business in securities directly with others than members of a national securities exchange, and every broker or dealer who transacts a business in securities through the medium of any such member, and every broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended, ... shall make and keep current the following books and records relating to his business:
* * * * * *
"(12)(i) A questionnaire or application for employment executed by each `associated person' (as hereinafter defined) of such member, broker or dealer, which questionnaire or application shall be approved in writing by an authorized representative of such member, broker or dealer and shall contain at least the following information with respect to such person:
* * * * * *
"(g) A record of any arrest or indictment for any felony, or any misdemeanor pertaining to securities, commodities, banking, insurance or real estate ... fraud, false statements or omissions, wrongful taking of property or bribery, forgery, counterfeiting or extortion, and the disposition of the foregoing."[21]
Schwab, one of the nation's largest brokerage firms, is a member of national securities exchanges and is registered pursuant to Section 15 of the Exchange Act.[22] The Act defines "associated person" very broadly to include, among others, "any employee" of a member of a national securities exchange.[23] In consequence, Schwab was obliged by Rule 17a-3 to keep and maintain current records of any arrests for larceny, among other offenses, of any person in its employ. Moreover, as the Rule expressly contemplates that such information be obtained by "application[s] for employment," the Rule at a minimum permits employers such as Schwab to inquire with respect to such arrests concerning prospective employees. It of course makes no difference whether plaintiff's focus is the inquiry to the NASD or Schwab's inquiry to him once it learned of the arrest. Plaintiff's first claim must be dismissed.
B. The Discrimination Claim
Defendant's motion for summary judgment, although brought under state *419 law, is analyzed under the familiar rubric of McDonnell Douglas Corp. v. Green.[24] Defendant assumes, albeit dubitante, that plaintiff has offered evidence which, if credited, would establish a prima facie case.[25] Certainly defendant has advanced non-discriminatory reasons for its employment decision. The question therefore is whether the admissible evidence establishes the lack of a genuine issue of fact material to the question whether plaintiff's arrest was a factor in defendant's decision not to hire him.
The crux of this branch of defendant's motion is its assertion that the persons who decided not to hire plaintiff did not know of his arrest record.[26] But the evidence defendant has offered falls considerably short of proving any such thing. Assuming that it all were credited, it would establish no more than that Mr. Jolly was unaware of the arrest, that the interviewers did not discuss it among themselves, and that the relevant RMI employee in San Francisco was vague as to exactly what transpiredall of which could be true even if the arrest record played a part in the ultimate decision.
Plaintiff's discrimination case appears to be weak. Nevertheless, the Court's role on a motion for summary judgment is not to predict the winner at trial and rule accordingly. The questions whether defendant's decision maker(s) knew of the arrest and, if so, whether it was a factor in the decision are for trial.
C. The Promissory Estoppel Claim
Plaintiff claims that he is entitled to damages based on promissory estoppel on the theory that Schwab reneged on its alleged promise of at least one of the jobs in question. This is mistaken for at least two reasons.
First, New York does not apply the doctrine of promissory estoppel in the employment context. A prospective employee, in other words, cannot sue an employer who reneges on a job offer or other employment promise on such a theory.[27]
Second, even if the doctrine were available in this context, plaintiff has not brought himself within it. The elements of such a claim, as plaintiff agrees, generally are:
"(1) a clear and unambiguous promise, (2) reasonable and foreseeable reliance by the party to whom the promise is made, and (3) an injury sustained in reliance on that promise."[28]
As the plaintiff's testimony, quoted above, shows, his evidence, if credited, would not establish the requisite clear and unambiguous promise. Discussions about what salary a job applicant would like, which of two available jobs the applicant would prefer, *420 and so on, especially with the caveat about checking with the NASD, simply are not sufficiently unequivocal, even if an interviewer were so unguarded as to say that an offer was "a sure thing." And plaintiff did not even go that far. When examined about whether Mr. Jolly actually said it was "a sure thing," he backed off and said that Mr. Jolly said only that an offer would be presented.
Therefore, the promissory estoppel claim also must be dismissed.
Conclusion
Defendant's motion for summary judgment dismissing the complaint is granted except to the extent the complaint seeks relief for alleged discrimination on the basis of defendant's arrest.
SO ORDERED.
NOTES
[1] Pl. 56.1 St. ¶ 13.
[2] Id. ¶ 37.
[3] N.Y. CRIM. PROC. L. § 160.50 (McKinney 1992), with exceptions not here relevant, requires that records of "a criminal action or proceeding" be sealed "[u]pon the termination" thereof "in favor of" the accused. A "criminal action," as defined by the statute, "commences with the filing of an accusatory instrument against a defendant in a criminal court ..." Id. § 1.20, subd. 16. "Criminal proceeding" in turn "means any proceeding which (a) constitutes a part of a criminal action, or (b) occurs in a criminal court and is related to a prospective, pending or completed criminal action ... or involves a criminal investigation." Id. subd. 18. As no accusatory instruction ever was filed against plaintiff, the arrest record was not a record of a "criminal action." Nor was there any "criminal proceeding." Section 1.20, subd. 18(a), is not satisfied because the lack of any accusatory instrument precludes the arrest record from having been a record of "a part of a criminal action." And Section 1.20, subd. 18(b), is not satisfied because nothing ever occurred in any court.
While the considerations that resulted in the adoption of CPL § 160.50 are at least as applicable to situations in which there has been an arrest, but no criminal prosecution, the Legislature appears to have drawn the statute more narrowly. In any case, however, there is no need to decide this point here because, as appears in the text, the arrest record was not in fact sealed promptly upon a determination not to proceed against plaintiff.
[4] Plaintiff sued the City for wrongful disclosure of the arrest record and obtained a settlement of $17,500. Def. 56.1 St. ¶ 39. (All references to defendant's Rule 56.1 Statement are to paragraphs the truth of which is admitted by plaintiff.)
[5] Goldman Aff. Ex. L.
[6] This is clear because plaintiff's then employer advised him in March 2000 that the NASD had informed it that plaintiff had been involved in a "disciplinary matter" on June 3, 1999 and requested details from plaintiff. Plaintiff concedes that the "disciplinary matter" actually was the arrest. Def. 56.1 St. ¶ 33; Goldman Aff. Ex. J (referring to the June 3, 1999 "disciplinary matter"); Shapira Dep. (Goldman Aff. Ex. D) 16-17 (acknowledging that the June 3, 1999 "disciplinary matter" was the arrest).
[7] Def. 56.1 St. ¶ 8
[8] Goldman Aff. ¶ 9 & Ex. H.
It is interesting to note that, although the parties have not made much of it, plaintiff has taken the position that these forms did not consent to Schwab's inquiry into his arrest record because consent was granted to inquire only with respect to "court records pertaining to any criminal proceeding in which [plaintiff] ha[s] been involved" whereas the arrest record was neither a court record nor related to any criminal proceeding. Compare Def. 56.1 St. ¶ 13 with Pl. 56.1 St. ¶ 13. This of course is inconsistent with his contention that N.Y. CRIM. PROC. L. § 160.50 required that the record be sealed, as that statute does not apply unless the record was of "a criminal action or proceeding." Supra note 3.
[9] Def. 56.1 St. ¶ 15.
[10] Griffin Aff. ¶¶ 4-5.
Plaintiff had not disclosed the arrest on his employment application.
[11] Shapira Dep. 71-72, 74; Pl. Mem. 7.
[12] Shapira Dep. 83; Pl. Mem. 7.
[13] Jolly Dep. (Goldman Aff. Ex. B) 51.
[14] Mabel Dep. (Goldman Aff. Ex. C) 81, 94.
[15] Mabel Dep. 27; Pl. 56.1 St. ¶ 31.
[16] N.Y. EXEC. L. § 296, subd. 16 (McKinney 2001); N.Y.C. AD. C. § 8-107(11).
[17] The slightly different wording of the City provision appears in brackets following the corresponding wording of the State statute.
[18] Emphasis added.
[19] Supra note 3.
[20] 15 U.S.C. § 78a et seq.
[21] 17 C.F.R. § 240.17a-3(a) (emphasis added).
[22] Def. 56.1 St. ¶¶ 1-2.
[23] 15 U.S.C. § 78c(21).
Plaintiff relies upon a different definition of "associated person" that appears in 17 C.F.R. § 1.3(aa)(2). Pl. Mem. 2. The reference is frivolous. That section is a regulation promulgated by the Commodity Futures Exchange Commission under the Commodity Exchange Act, not by the SEC under the Exchange Act, the agency and statute relevant here.
[24] 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
[25] Def. Mem. 13-14.
[26] Id. 16-17.
[27] E.g., Phansalkar v. Anderson Weinroth & Co., L.P., No. 00 Civ. 7872(SAS), 2002 WL 1402297, *17 (S.D.N.Y. June 26, 2002); Miller v. Citicorp, No. 95 Civ. 9728(LAP), 1997 WL 96569, *10 (S.D.N.Y. Mar.4, 1997); Van Brunt v. Rauschenberg, 799 F.Supp. 1467, 1473 (S.D.N.Y.1992); Mayer v. Publishers Clearing House, 205 A.D.2d 506, 507, 613 N.Y.S.2d 190 (2d Dept.1994); Dalton v. Union Bank of Switzerland, 134 A.D.2d 174, 176-77, 520 N.Y.S.2d 764, 766 (1st Dept.1987).
Plaintiff's efforts to distinguish these cases are meritless. So too is his reliance upon Avne Systems Ltd. v. Marketsource Corp., No. 99 Civ. 11220(JSR), 2000 WL 1036035 (S.D.N.Y. July 27, 2000), and Scher v. Llorente, No. 92 Civ. 5206(MBM), 1993 WL 426840 (S.D.N.Y. Oct. 22, 1993), neither of which involved the application of promissory estoppel in an employment case.
[28] Rogers v. Town of Islip, 230 A.D.2d 727, 727, 646 N.Y.S.2d 158, 158 (2d Dept.1996).
| {
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} |
United States Court of Appeals,
Fifth Circuit.
Nos. 85-2767, 91-4961.
Forest Henry SHIPES, on behalf of himself and others similarly
situated, et al., Plaintiffs-Appellees,
v.
TRINITY INDUSTRIES, A Corporation, Defendant,
Robert E. Rader, Jr., Appellant.
Forest Henry SHIPES, et al., Plaintiffs-Appellees,
v.
TRINITY INDUSTRIES, Defendant-Appellant.*
April 5, 1993.
Appeals from the United States District Court for the Eastern
District of Texas.
Before WISDOM, JOLLY, and DeMOSS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Forest Henry Shipes, a black male, was employed by Trinity
Industries. After he was laid off, Shipes filed suit against
Trinity under, inter alia, Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq. Shipes alleged that Trinity's
all-white supervisory force had discriminated against him in
decisions concerning his job placement, promotions, and lay-off.
The district court certified a class that included all black hourly
employees at two of Trinity's plants. The trial was bifurcated,
and after the trial on liability Trinity was found to have
intentionally discriminated against black hourly employees in
*
On motion of plaintiffs-appellees and by order of this
court, Shipes's cross-appeal was severed on March 12, 1993.
initial hiring, promotions, terminations, and lay offs. The
district court then appointed an expert who determined damages to
individual class members. After an award of attorneys' fees to
Shipes in the amount of $308,238.05, judgment was entered. Trinity
appeals. Still further, Trinity's trial counsel appeals the
district court's imposition of personal sanctions against him
pursuant to Fed.R.Civ.P. 37(b) in the amount of $3,000.00.
I
Trinity Industries manufactures railcars and structural steel
products. Trinity operates over thirty production facilities in
thirteen states, including two plants in Longview, Texas. Shipes
was employed by Trinity at its plant in East Longview as a welder's
helper from October 23, 1979, until he was laid off on June 30,
1980.
On December 16, 1980, Shipes filed suit against Trinity under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq. Shipes alleged that Trinity's all-white supervisory force had
discriminated against him personally in decisions concerning his
job placement, promotions, and layoff. In addition, the district
court permitted Shipes to maintain a class action that included all
black hourly workers employed at both of Trinity's plants in
Longview, Texas, between January 10, 1980, to April 1, 1984.
The district court bifurcated the trial, and the liability
portion was tried in 1984.1 On October 10, 1985, the district
1
During the course of discovery, the district court imposed
personal sanctions against Trinity's trial counsel, Robert Rader,
Jr. Rader's appeal of these sanctions has been consolidated with
this appeal.
court determined that Trinity intentionally discriminated against
plaintiff class members in initial placement and pay and in layoffs
at both Longview plants; intentionally discriminated against
plaintiff class members in promotions and terminations at the plant
in East Longview; and had discriminated against Shipes
individually in initial placement and pay, promotions, and layoff.
The district court then, sua sponte, appointed an expert to
determine damages.
On December 6, 1991, the expert submitted a model for damages,
and on January 22, 1992, the district court entered partial final
judgment and ordered that each class member have and recover from
Trinity the amount determined by the court-appointed expert.
Trinity had urged the district court to order class-wide relief,
but instead the district court instructed the expert to determine
damages on an individual-by-individual basis. The district court
subsequently awarded Shipes $308,238.05 in attorneys' fees.
Trinity appeals, and Trinity's trial counsel appeals the imposition
of personal sanctions.
II
On appeal, Trinity challenges class certification, the
computation of the back pay award, and the determination of
attorneys' fees.2 Trinity first appeals the district court's
2
Trinity also argues on appeal that the district court erred
by not including voluntary resignations in its analysis of
discrimination in layoffs. Trinity itself originally excluded
from its layoff analysis those employees who had resigned. Its
analysis, however, showed that a statistically significant higher
number of black employees than whites had been laid off. Thus,
Trinity then revised its study and included those employees who
had resigned. Trinity, however, presented no evidence of actual
employee motivation in resigning. Furthermore, Shipes's analysis
certification of a class, arguing that Shipes should not have been
allowed to represent blacks employed at a different plant from the
plant at which he worked. Second, Trinity appeals the district
court's method of calculating the back pay remedy. Trinity argues
that the district court erred in determining back pay awards on an
individual-by-individual basis. Trinity contends that the district
court should have ordered class-wide monetary relief—that is, it
should have awarded each and every plaintiff class member his pro
rata share of a pre-determined total monetary award. Third,
Trinity appeals the district court's determination of attorneys'
fees, arguing that the district court double counted factors and
relied on erroneous considerations in enhancing the award.
On the other hand, Shipes first argues that the district court
did not err in class certification. Shipes also argues that the
district court did not err in formulating the back pay remedy.
Furthermore, Shipes argues that the district court correctly
calculated the lodestar amount of attorneys' fees and properly
enhanced this amount.
In a consolidated action, Trinity's trial counsel, Robert
Rader, Jr., contends that the district court abused its discretion
by imposing personal sanctions against him in the amount of
$3,000.00. Shipes argues that the sanctions were warranted because
of Rader's failure to comply with discovery requests.
still showed an unfavorable result to black employees even when
employees who had resigned were included in the statistical data.
The district court found Trinity's proposal to include employees
who had resigned in its analysis of discrimination in layoffs
unsupported and illogical; we find no reversible error in the
district court's decision.
III
We first address Trinity's argument that the district court
should not have certified a class that included employees not only
at the plant where Shipes was employed, but also employees at an
additional plant. The district court's certification of a class is
reviewed under the abuse of discretion standard. Merrill v.
Southern Methodist Univ., 806 F.2d 600, 607 (5th Cir.1986).
Furthermore, the district court has wide discretion in deciding
whether to certify a proposed class. Jenkins v. Raymark Indus.,
Inc., 782 F.2d 468, 471-72 (5th Cir.1986).
Trinity argues that Shipes failed to satisfy the commonality
and typicality requirements of Fed.R.Civ.P. 23(a), and thus it was
an abuse of discretion for the district court to certify a class.3
The district court determined that the two plants Trinity operated
in Longview utilized the same subjective criteria in making
personnel decisions; white supervisors at both plants applied the
subjective criteria; employees were transferred between the two
plants; the two plants had the same insurance plan, retirement
programs, and administrative forms; and the two plants used the
same Hourly Employee Handbook. The threshold requirements of
commonality and typicality are not high; Rule 23(a) requires only
that resolution of the common questions affect all or a substantial
number of the class members. Jenkins, 782 F.2d at 472.
3
Rule 23(a) provides that one or more members of a class may
sue on behalf of all if (1) the class is so numerous that joinder
of all members is impracticable, (2) there are questions of law
or fact common to the class, (3) the claims or defenses of the
representative parties are typical of the claims or defenses of
the class, and (4) the representative parties will fairly and
adequately protect the interests of the class.
Allegations of similar discriminatory employment practices, such as
the use of entirely subjective personnel processes that operate to
discriminate, satisfy the commonality and typicality requirements
of Rule 23(a). Carpenter v. Stephens F. Austin State Univ., 706
F.2d 608, 617 (5th Cir.1983). The district court clearly did not
abuse its discretion in certifying the class.
IV
A
We next turn to Trinity's argument relating to damages. The
district court's calculation of a back pay award is reviewed under
the clearly erroneous standard. Pegues v. Mississippi State
Employment Serv., 899 F.2d 1449, 1455 (5th Cir.1990). At the
outset, we observe that fashioning a class-wide back pay award is
exceedingly complex and difficult, and the process is fraught with
uncertainty. Pettway v. American Cast Iron Pipe Co., 494 F.2d 211,
260 (5th Cir.1974). Two general premises apply to the computation
of a back pay award: (1) unrealistic exactitude is not required,
and (2) uncertainties in determining what an employee would have
earned but for the discrimination should be resolved against the
discriminating employer. Claiborne v. Illinois Cent. R.R., 583
F.2d 143, 149 (5th Cir.1978), cert. denied, 442 U.S. 934, 99 S.Ct.
2869, 61 L.Ed.2d 303 (1979). Furthermore, the district court must
be granted wide discretion in resolving ambiguities. United States
v. United States Steel Corp., 520 F.2d 1043, 1050 (5th Cir.1975),
cert. denied, 429 U.S. 817, 97 S.Ct. 61, 50 L.Ed.2d 77 (1976).
B
The district court ordered that back pay be determined on an
individualized basis. The district court ordered that only each
class member, whose beginning pay rate at the time he started
working for Trinity was below the average beginning rate for white
employees with the same qualifications, should receive a back pay
award; the award raised the hourly rate of such individual class
member by the difference between his beginning rate and the average
white beginning rate. Trinity argues that this back pay remedy
violates the fundamental rules of calculating such an award because
it unfairly excludes some class members and grants a windfall to
other class members. Trinity argues that the district court should
have determined a total sum that represented the difference between
black and white beginning rates as a whole, and then divided this
amount to all class members on a pro rata basis.4 Trinity argues
that such an increase to class members would tend to eliminate the
racial characteristics reflected in the distribution of pay rates;
in other words, black and white employees in representative numbers
would occupy the highest pay rates as well as the middle and lower
pay rates.
Trinity also argues—somewhat vaguely—that the district court's
4
Under Trinity's proposed method, every class member would
receive the same monetary award. In the calculation of the back
pay award for initial rate, for example, the average starting
rate for white employees as a group would be compared to that of
plaintiff class members. Simply illustrated, if five white
employees had beginning rates as a group of $5.00, $6.00, $7.00,
$8.00, and $9.00, the average would be $7.00. If five class
members had beginning rates of $3.00, $4.00, $5.00, $6.00, and
$7.00, the average would be $5.00. The total difference in rates
between the groups would be $2.00, (the difference in averages)
multiplied by 5, the number of class members, or $10.00. This
amount, $10.00, would then be distributed pro rata to the class
members, each class member receiving a back pay award of $2.00,
or $10.00 divided by 5. Trinity's method would thus shift the
entire group of plaintiff class members upward by that amount.
formula for determining back pay for premature separation from
employment was equally flawed. For premature separation from
employment, the district court ordered a comparison between the
actual length of service of each class member and the median length
of service of white employees hired in the same time period. Each
plaintiff class member whose service was less than the median
length of service for white employees received an award equal to
the difference.5 Again, Trinity argues that the appropriate remedy
is to calculate the total difference in the treatment of the
classes and then award each class member his pro rata share.
C
On the other hand, Shipes defends the district court's remedy.
Shipes argues that the district court's remedy was adopted in order
to bring the pay level of each black employee who was paid less
than the average salary of white employees with equal
qualifications up to the level of that average. Shipes argues that
the method proposed by Trinity is not intended to, and does not,
compensate individual black employees to the extent to which they
were underpaid relative to white employees with their
qualifications; instead, Trinity's method is concerned only with
equalizing the amounts paid to whites and blacks as a group.
Shipes argues that under Trinity's plan, each class member
would receive the same increment to his initial pay, regardless of
the amount by which he was actually underpaid or regardless of
5
For example, if the average length of employment for white
employees hired during a particular time period was two years,
but a black employee hired during this same time period was laid
off or terminated after one year, the black employee would be
entitled to back pay for one year.
whether he was underpaid at all. Shipes points out that some
blacks were hired at rates equal to comparable whites. Thus, there
is no basis to find that these black employees were discriminated
against. Consequently, Shipes argues that Trinity's proposed pro
rata award to all black employees would in effect deduct from the
wage rate awarded each black employee who was underpaid and, in
effect, grant that money as a windfall to non-discriminatees.
D
Let us begin our evaluation of these arguments by observing
that a Title VII class action suit imposes on the plaintiff a
bifurcated burden of proof. First, the plaintiff must establish
invidious class-based treatment; next, he must prove damages
caused to class members by that illegal conduct. A finding of
racial discrimination against a class "does not necessarily mean
that every member of the class is entitled to back pay." Johnson
v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1375 (5th Cir.1974).
Once a prima facie case of discrimination against a class is made,
a presumption of back pay arises in favor of all class members;
this presumption does not, however, per se entitle a class member
to back pay without some individual clarification. Pettway, 494
F.2d at 259. Once it has been determined that the class has been
subjected to unlawful racial discriminatory practices, only those
individuals who have suffered a loss of pay because of the illegal
discrimination are entitled to compensation. Johnson, 491 F.2d at
1376. Title VII does not require a remedy for those not
discriminated against. Gamble v. Birmingham So. R.R. Co., 514 F.2d
678, 686 (5th Cir.1975).
The complexity of the case is a determining factor in what
method the district court should utilize to formulate a back pay
award. Pettway, 494 F.2d at 261. If the class is small, the time
period short, or if the effect of the discrimination is
straightforward, an individual-by-individual determination of what
each claimant's position would have been but for the discrimination
is possible. Id. If, however, the class is large, the promotion
or hiring practices are ambiguous, or the illegal practices
continued over an extended period of time, a class-wide approach to
the measure of back pay may be necessitated. Id. The process of
computation is not, however, an "either, or" approach, and the
determination of a back pay model is not a choice between one
approach more precise than another. Id. at 261 n. 151.
Methods for determining back pay possessed of superior
certainty, such as the approach adopted by the district court,
should be exhausted before resorting to racially drawn class-wide
comparisons or pro rata approaches. United States v. Steel Corp.,
520 F.2d at 1055. The fact that a class is large does not mean
that pro rata relief should automatically be ordered. As noted
earlier, not all members of a class are automatically entitled to
back pay and there should be, if possible, a determination on an
individual basis as to which class members are entitled to damages
and the amount of such recovery. Johnson, 491 F.2d at 1375.
E
To reverse the district court, we would have to conclude that
its calculations of back pay were clearly erroneous. On December
27, 1990, the district court entered an order that established the
guidelines that the court-appointed expert was to follow in
constructing the final model for back pay damages. With respect to
discrimination occurring in wage rates upon initial hiring, the
district court ordered that back pay be awarded to particular class
members based on the difference between the average starting wage
paid to white employees with the class member's qualifications and
the actual starting wage paid to such class member.
On July 29, 1991, the district court entered a second order
relating to damage calculations. In this order, the district court
addressed Trinity's concern that calculations for the class should
be determined as a total sum, and then damages awarded to each
class member on a pro rata basis. The district court stated that
Trinity's proposal rested on the assumption that a class-wide
finding of discrimination implies that each class member was
affected equally by the discrimination and therefore damages should
be determined by comparing the class of white employees with the
class of black employees. The district court, however, expressly
rejected this argument, stating that Trinity's proposed method of
awarding damages was inappropriate. Specifically, the district
court stated that although Trinity was found liable for
discrimination against the plaintiff class generally, it could not
be assumed that such discrimination was uniformly felt by all class
members.
The back pay model adopted by the district court has two
sections. First, for back pay remedying discrimination in initial
starting salary, each individual class member was compared to white
employees who had the same educational background and work
experience. If a class member was paid a starting rate below the
average starting rate of white employees with the same
qualifications, the class member was awarded that difference as
back pay. Second, for back pay in premature separation from
employment, each individual class member was compared to white
employees who were hired in the same time period. An average
length of employment for these white employees was determined. If
a class member was laid off or terminated before the average length
of employment for the group of comparable white employees, he was
awarded the difference as back pay.
Under the back pay formula relating to initial pay rates,
those individual class members who were paid starting rates above
the average starting rates of white employees with the same
qualifications received no back pay award. Similarly, those
individual class members who were not laid off or terminated prior
to the average length of employment for white employees hired in
the same time period received no back pay award. A Title VII
plaintiff, however, is not entitled to recover an amount greater
than his pecuniary loss. Pegues, 899 F.2d at 1457. Because these
class members did not suffer pecuniary losses as a result of
Trinity's discrimination, it follows that they are not entitled to
an award of back pay. After carefully reviewing the record and the
back pay remedy ordered by the district court, it is our opinion
that the remedy ordered was not clearly erroneous. The district
court's back pay remedy is therefore affirmed.
V
A
We now address Trinity's argument concerning the attorneys'
fees awarded to Shipes. The district court's determination of
attorney's fees is reviewed for abuse of discretion, and the
findings of fact supporting the award are reviewed for clear error.
Von Clark v. Butler, 916 F.2d 255, 258 (5th Cir.1990). As the
first step in determining the amount of attorneys' fees to award,
the district court must determine the compensable hours from the
attorneys' time records, including only hours reasonably spent.
Alberti v. Klevenhagen, 896 F.2d 927, 930 (5th Cir.), vacated in
part, 903 F.2d 352 (5th Cir.1990). As a second step, the district
court must select an appropriate hourly rate based on prevailing
community standards for attorneys of similar experience in similar
cases. Id. The number of compensable hours is then multiplied by
the selected hourly rate to produce the "lodestar" amount.
Shipes sought recovery of attorneys' fees for 1,306.88 hours
of time at a rate of $175.00 per hour for lead counsel and $150.00
per hour for associate counsel. The district court, after
determining beyond doubt that the plaintiffs had indeed prevailed
on the central issue of the lawsuit and were thus prevailing
parties, ordered payment of 100% of the time requested at a rate of
$165.00 per hour for lead counsel and $140.00 per hour for
associate counsel, for a total fee award of $144,712.70. The
district court stated that only four of the Johnson v. Georgia
Highway Express, 488 F.2d 714 (5th Cir.1974), factors were subsumed
in the lodestar amount: (1) time and labor required; (2)
customary fee; (3) counsel's experience and ability; and (4)
awards in similar cases.6 After determining that the hours
accurately reflected the time expended in this action, the district
court further determined that the rates proffered by Trinity were
too low, but that Shipes's attorney had failed to show that
attorneys with abilities comparable with her actually received
$175.00 per hour. For this reason, the district court ordered
payment at the hourly rate of $165.00, which represented the amount
recently applied by the district court for work performed by lead
counsel in employment discrimination cases.
The district court did not err in its calculation of the
lodestar amount. The district court reviewed the attorneys' time
records and found them to be more than adequate. The district
court did not simply accept the hourly rate suggested by Shipes's
attorneys, but instead lowered it to an hourly rate that had been
applied in the community for similar cases. The district court
further ordered that the hourly rates for the attorneys be reduced
for the time the attorneys spent traveling. We find that the
district court did not err in its determination of the lodestar
amount of $144,712.70.
B
After determining the lodestar amount, the district court may
6
The twelve Johnson factors are (1) the time and labor
involved; (2) the novelty and difficulty of the questions; (3)
the skill requisite to perform the legal services properly; (4)
the preclusion of other employment by the attorney due to this
case; (5) the customary fee; (6) whether fee is fixed or
contingent; (7) time limitations; (8) the amount involved and
results obtained; (9) the experience, reputation, and ability of
counsel; (10) the undesirability of the case; (11) the nature
and length of the professional relationship with the client; and
(12) awards in similar cases. Johnson v. Georgia Highway
Express, 488 F.2d 714, 717-19 (5th Cir.1974).
adjust the lodestar up or down in accordance for relevant Johnson
factors not already included in the lodestar. After calculating
the lodestar amount, the district court must then apply the
remaining Johnson factors to determine if the lodestar should be
adjusted; the district court must be careful, however, not to
double count a Johnson factor already considered in calculating the
lodestar when it determines the necessary adjustments. Von Clark,
916 F.2d at 258. Furthermore, the district court must explain with
a reasonable degree of specificity the findings and reasons upon
which the award is based, including an indication of how each of
the Johnson factors was applied. Id. Four of the Johnson
factors—the novelty and complexity of the issues, the special skill
and experience of counsel, the quality of representation, and the
results obtained from the litigation—are presumably fully reflected
in the lodestar amount. Alberti, 896 F.2d at 930. Although upward
adjustments of the lodestar figure based on these factors are still
permissible, such modifications are proper only in certain rare and
exceptional cases supported by both specific evidence on the record
and detailed findings by the lower courts. Id.
After calculating the lodestar amount, the district court
enhanced the fee on five additional Johnson factors. First, the
district court determined that the lodestar amount should be
enhanced for the novelty and difficulty of the case, stating that
this action involved representation of over three hundred employees
at two manufacturing plants, challenged the entire spectrum of
Trinity's employment decisions, and involved complex, highly
technical data. Second, the district court enhanced the lodestar
amount based on the skill required, stating that Shipes's claim
necessitated extensive analysis, which Shipes's counsel competently
presented. Third, the district court enhanced the lodestar amount
for the preclusion of other employment, stating that Shipes's
counsel's total time commitment to this case for several months
adequately demonstrated that this case was inordinately
time-consuming and precluded the acceptance of other requests for
representation. Fourth, the district court enhanced the lodestar
amount based on special time limits imposed, stating that Shipes's
counsel's claim of nearly total time commitment before trial
supported an upward fee adjustment because of the exceptional skill
needed to present the last-minute data in an intelligible manner.
Fifth, the district court enhanced the lodestar amount based on the
amount of money involved and the obtained, stating that the outcome
of this lawsuit represented a tremendous victory based upon the
large number of claimants and the probable enormity of the relief.7
On December 7, 1987, the district court ordered an 80% enhancement
of the lodestar award based on these five Johnson factors,
increasing the attorneys' fee award from $144,112.70 to
$260,482.86. 685 F.Supp. 607.
C
We find that four of these five Johnson factors used by the
district court to enhance the lodestar amount—the novelty and
difficulty of the case, the skill required, special time limits
7
The district court further determined that enhancement
should not be granted for two remaining Johnson factors: the
undesirability of the case and the nature and length of
professional relationship with the client.
imposed, and preclusion of other employment—are unsupported, and
thus enhancement based on these factors was unwarranted. We do
think, however, that enhancement due to the results obtained may be
warranted.
The district court enhanced the lodestar amount based on the
novelty and difficulty of the case because it found that there were
over three hundred plaintiffs, an entire spectrum of employment
decisions was being challenged, the case was complex and highly
technical, and Trinity's obstinate conduct caused additional
difficulty. These factors—not uncommon in much present-day
litigation—simply do not render a case "rare" or "exceptional" for
purposes of enhancing the lodestar amount. All counsel competent
to handle a case such as this one are expected to be able to deal
with complex and technical matters; this expertise is reflected in
their regular hourly rate, based on fees for counsel of similar
experience and ability. Still further, the difficulty in the
handling of the case is adequately reflected in the number of hours
billed—hours for which the attorney is compensated in the lodestar
amount. Similarly, obstinate conduct by opposite counsel is
compensated by the additional number of hours that are required to
prevail over such obstinacy.
The district court's enhancement based on two other
factors—the skill required and special time limits imposed—was, we
think, also unwarranted as each is accounted for in the lodestar
amount. Even though Shipes's counsel presented extensive
statistical data with competence, nothing less should be expected
of counsel; consequently, this factor alone does not support
enhancement. We also find as an unwarranted basis for enhancement
"special time limits imposed" by the defendant's necessitating that
Shipes's attorney evaluate last-minute data shortly before trial.
Again, we emphasize that this factor is not an abnormal
occurrence—especially in a trial involving statistics and complex
data—and is accounted for by the additionally required hours that
are reflected in the lodestar.
We also conclude that the district court improperly enhanced
the lodestar based on the preclusion of other employment. The
district court found that Shipes's counsel was totally committed to
this case for several months prior to trial and concluded that this
demonstrated that counsel was precluded from accepting other
requests for representation. The district court did not make a
finding that Shipes's attorney had indeed been required to refuse
other employment because of this case, and enhancement based on
this factor is therefore unsupported. Furthermore, this factor
will ordinarily be subsumed within the lodestar amount: If, for
example, Shipes's attorney worked on nothing but this case, then
this potential loss of income in refusing other employment is
compensated for in the number of hours she billed in the instant
case.8
We do think, however, that the district court may have been
warranted in enhancing the lodestar amount because of the amount
8
We also note that the complaint in this case was filed on
December 16, 1980, the trial began on November 19, 1984, and
partial final judgment on liability was entered on October 10,
1985; for this extended period of time, however, Shipes's
attorneys sought fees for only 1,306.88 hours. Certainly during
this time period Shipes's attorneys were not precluded from
accepting other employment because of this case.
involved and results obtained.9 Shipes's victory was complete on
all issues. Furthermore, the victory resulted in a substantial
award of monetary damages for class members—plus, and very
importantly, future protection against discrimination in the form
of injunctive relief. For these reasons, enhancement of the
lodestar amount on account of the results obtained may have been
warranted. On remand, the district court must determine whether it
is customary in the area for attorneys to charge an additional fee
above their hourly rates for an exceptional result after lengthy
and protracted litigation. If Shipes's attorneys can demonstrate
this area custom, the district court will be warranted in enhancing
the lodestar in an appropriate amount based on this factor.
D
On August 4, 1988, the district court ordered an additional
33% enhancement of the lodestar amount based on the risk of not
prevailing, or the contingent nature of the case. The district
court found that the clear improbability of plaintiffs' ability to
find counsel to represent them in similar actions within the
district warranted the contingency enhancement.
In Islamic Center of Mississippi v. Starkville, 876 F.2d 465
(5th Cir.1989), this court adopted the approach to enhancement for
the contingent nature of the case set forth in Justice O'Connor's
concurrence in Pennsylvania v. Delaware Valley Citizens' Council
9
As we stated earlier, this factor is presumably reflected
in the lodestar amount and enhancement based on results obtained
is proper only in rare and exceptional cases supported by
specific evidence and detailed findings by the district court.
See Alberti, 896 F.2d at 930. On remand the district court
should take cognizance of this requirement in deciding whether to
enhance the lodestar amount based upon the results obtained.
(Delaware Valley II), 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585
(1987). In City of Burlington v. Dague, --- U.S. ----, 112 S.Ct.
2638, 120 L.Ed.2d 449 (1992), however, the Supreme Court rejected
Justice O'Connor's approach. In Burlington, the Court first noted
that, "[a]lthough different fee-shifting statutes are involved, the
question is essentially identical" to the question it had
addressed, but which it had not resolved in Delaware Valley II:
whether a court may enhance the fee award above the lodestar amount
in order to reflect the fact that the party's attorneys were
retained on a contingent-fee basis and thus assumed the risk of
receiving no payment at all. In Burlington, the Court was urged to
adopt the approach set forth by Justice O'Connor in Delaware Valley
II. The Court expressly declined to do so, however, stating that
"we do not see how it can intelligibly be applied." Burlington, --
- U.S. at ----, 112 S.Ct. at 2642. The Court instead adopted the
approach reflected in Justice White's plurality opinion in Delaware
Valley II and held that enhancement for contingency was not
permitted under the fee-shifting provisions of the Solid Waste
Disposal Act and the Clean Water Act. Burlington, --- U.S. at ----
- ----, 112 S.Ct. at 2643-44.
Thus, Burlington eviscerates our holding in Islamic Center in
which we stated that Justice O'Connor's position was "the only view
to which a majority of the [Supreme] Court, and perhaps even the
whole [Supreme] Court could subscribe." Islamic Center, 876 F.2d
at 471. Burlington now tells us, however, how wrong we were.
Accepting the error of previous thinking, and following the clearly
lighted path of Burlington, we now hold that the contingent nature
of the case cannot serve as a basis for enhancement of attorneys'
fees awarded to prevailing plaintiffs under traditional
fee-shifting provisions. Accordingly, it was error for the
district court to enhance the lodestar amount by 33% based on this
factor.
E
In summary, we conclude that the district court correctly
calculated the lodestar amount to be $144,112.70. We also conclude
that one of the enhancement factors applied by the district
court—the results obtained—may have been warranted; we therefore
remand this issue to the district court for a determination of
whether this factor is supported by custom in the legal community
and, if so, the appropriate amount.
VI.
We now turn to the issue of sanctions which were accessed
against Trinity's trial counsel, Robert Rader, Jr., pursuant to
Rule 37(b), the appeal of which has been consolidated with this
action. The imposition of sanctions is a matter of discretion for
the district court; we review only for abuse. Frame v. S-H, Inc.,
967 F.2d 194, 202 (5th Cir.1992). We hold that the district court
did not abuse its discretion in sanctioning Rader.
In its order of March 5, 1984, the district court noted that
Trinity had been recalcitrant in relation to the discovery sought
by Shipes. As early as November 24, 1981, the district court
observed that Trinity's entire posture was infected with a tone of
indifference and disrespect for clearly established rules of
procedure. The district court warned that such lassitude would not
be countenanced. On February 12, 1982, the district court stated
that the recurring nature of Trinity's indifference to time limits
substantially limited the credibility of Trinity's protestations of
good faith. The district court further stated that Trinity's
objection to and failure to answer two interrogatories directly
violated an earlier court order; the district court cautioned that
Trinity's failure to answer was tantamount to contempt of court.
In 1982, the district court also noted that Trinity continued to
adhere to its posture of disobedience to court orders and again
warned that this attitude would not be countenanced further. At
this point, the district court cautioned Rader that Rule 37(b)
prescribed harsh actions against parties who failed to comply with
orders concerning discovery.
Notwithstanding these warnings, still Shipes had to file
numerous other motions to compel, which the district court granted.
The district court held a hearing on March 16, 1984, to allow Rader
to appear to show cause why he should not be sanctioned. After the
hearing, the district court concluded that there had been a
deliberate effort by Rader to delay discovery. The district court
did not, however, impose any sanctions at that time, but stated
that it did not expect to be presented with any additional problems
concerning discovery. After the hearing, Shipes was given the
information to which Rader had referred. Then, however, on March
20, 1984, Shipes filed yet another motion for sanctions. At this
time, the district court awarded sanctions. The court found that
the information given to Shipes by Rader after the earlier hearing
did not represent most of the outstanding discovery and that Rader
had been disingenuous in his representations to the court that he
had complied with the court's orders.
The district court did not abuse its discretion in
sanctioning Rader. On the contrary, the district court gave Rader
several warnings and on numerous occasions cautioned Rader to
comply with discovery requests. The court did not err in
concluding that Rader had failed to heed its warnings and had
failed to comply in good faith. Neither did the court err as to
the amount of $3,000.00. Under Rule 37(b), Rader may be personally
liable for reasonable expenses, including attorneys' fees, caused
by his failure to comply with a discovery order. Batson v. Neal
Spelce Assoc., Inc., 765 F.2d 511, 516 (5th Cir.1985). The
affidavit presented by Shipes's attorney along with the January 23,
1984 motion for sanctions showed attorneys' fees and expenses in
the amount of $1,617.50. On March 16, 1984, Shipes's attorneys had
to attend a hearing for Rader to show why he should not be
sanctioned, and on March 20, 1984, Shipes's attorneys had to
prepare yet another motion for sanctions. It was reasonable for
the district court to assume that the expenses and fees involved in
the second motion were similar to those incurred in preparing the
first motion. We therefore affirm the district court in
sanctioning Rader in the amount of $3,000.00.
VII.
For the reasons stated above, we affirm the district court's
certification of a class. Furthermore, we affirm the district
court on the issue of damages. We reverse, vacate, and remand,
however, on the issue of attorneys' fees; the district court
correctly determined the lodestar amount, but enhancement should
not have been ordered except possibly on one Johnson factor—the
results obtained—with respect to which we remand. In addition, we
affirm the district court's sanctioning of Trinity's trial counsel.
Accordingly, the decision of the district court is
AFFIRMED in part; REVERSED, VACATED, and REMANDED in part.
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581 S.E.2d 648 (2003)
261 Ga. App. 142
SUNFLOWER PROPERTIES, INC.
v.
YOCUM.
No. A03A0528.
Court of Appeals of Georgia.
April 11, 2003.
Reconsideration denied May 6, 2003.
*649 Slade & Associates, Howard G. Slade, Fayetteville, Jason B. Thompson, Birmingham, AL, for appellant.
Joseph M. Todd, John G. Walrath, Jonesboro, for appellee.
*650 MIKELL, Judge.
A jury awarded David Yocum $168,297.66 in his suit against Sunflower Properties, Inc. ("Sunflower"), to recover for services performed pursuant to the parties' employment contract. Sunflower appeals from the denial of its motion for a new trial. We affirm.
1. Sunflower contends that it is entitled to a new trial because the verdict is contrary to and strongly against the weight of the evidence. We disagree.
The appellate court will not disturb the trial court's refusal to grant a new trial if there is any evidence at all to support the verdict, however slight, and regardless of what may be the character of the witnesses. Our function is to review the sufficiency of the evidence, and not to determine its weight. Though the evidence might have authorized a different verdict or the verdict is supported by only slight evidence or the evidence is conflicting or preponderates against the verdict, where no material error of law appears, the court will not disturb the trial judge's judgment in overruling the motion for new trial.[1]
In addition, in reviewing the denial of a motion for new trial, we "construe the evidence with every inference and presumption in favor of the verdict and judgment."[2] So viewed, the evidence shows that Sunflower, a construction company, built two apartment complexes: Holly Tree and Pembrooke. Robert E. Chaney, Sunflower's owner and president, testified that he hired Yocum in 1996 as the supervisor for those projects. In the beginning, Yocum was paid a weekly salary plus expenses. In 1998, Chaney instituted an incentive program to give his supervisors "an opportunity for additional earnings."
Yocum testified that under the incentive program, he was supposed to receive one-third of the amount by which he came in under budget on the projects. Yocum further testified that the incentive program was presented to him in letter form, but the letter disappeared from his filing cabinet after he and Chaney "started bumping heads" over bonuses.
Chaney admitted that he reviewed and agreed to the budgets for both projects and that he never paid Yocum any monies under the incentive program. Chaney testified that he gave Yocum a $6,000 raise instead. Yocum resigned in June 2000. Afterward, Sunflower received invoices from suppliers for work Yocum performed in his spare time. Sunflower contended that these invoices exceeded $8,000, and Yocum testified that he was amenable to offsetting that sum against monies owed him under the incentive plan.
Yocum introduced into evidence twelve documents showing the budget, costs, and cost savings of the two projects, including land development and apartment buildings. He testified that Sunflower owed him over $176,000 pursuant to the incentive program. In arriving at its verdict, the jury apparently reduced this sum by the amount Yocum admitted owing Sunflower.
Although Sunflower contends that the job cost reports it introduced into evidence were more accurate than the budgets produced by Yocum, that argument is properly made to a jury, not an appellate court. It is not our function to weigh the evidence.[3] There is evidence to support the verdict in this case, and the judgment issued thereon is affirmed.
2. Before trial, the court granted Sunflower's motion in limine to exclude all evidence of offers to compromise or settle the case. During trial, Yocum began to testify concerning settlement offers made by Chaney. Counsel for Sunflower objected, and the court sustained the objection. Yocum then testified that Chaney never denied owing Yocum money. Counsel for Sunflower objected again, and the trial court immediately instructed the jury to disregard any implied offer of compromise. The court also inquired whether any juror felt unable to follow the instruction. After the curative instruction, Sunflower was silent. Sunflower now argues that Yocum violated the order on the motion in limine. However, by failing to *651 renew its objection or move for mistrial after the curative instruction, Sunflower waived this issue.[4] In addition, we will not consider for the first time on appeal Sunflower's complaint that Yocum testified to settlement matters during rebuttal.[5]
3. Finally, Sunflower argues that the trial court erred in refusing to admit into evidence transaction reports which were not listed in the pretrial order. "Those documents that a litigant intends to rely upon affirmatively to meet the burden of proving his or her case ... must be disclosed in the pretrial order."[6] The reports excluded in the instant case consisted of data supporting Sunflower's job cost reports. Sunflower failed to produce them during discovery or list them in the pretrial order, and counsel for Yocum was unaware of the existence of the documents until Sunflower sought to introduce them into evidence. Sunflower claimed that it did not intentionally withhold the documents and argued that the documents were essential for rebuttal during the testimony of its bookkeeper, whose credibility had been attacked. In the pretrial order, the parties reserved the right to introduce additional documents into evidence, but only if opposing counsel were provided "a reasonable time prior to trial" to review such documents. The parties additionally reserved the right to "use other documents not listed above for impeachment and rebuttal." The trial court excluded the documents because Sunflower failed to produce them before trial but ruled that the bookkeeper would be permitted to testify that she had generated them. The bookkeeper testified that the actual invoices were used to prepare the transaction reports, which, in turn, were used to prepare Sunflower's job cost reports.
Under OCGA § 9-11-16(b), a pretrial order entered by the court "controls the subsequent course of the action unless modified at the trial to prevent manifest injustice." A trial court's action in enforcing a pretrial order will not be disturbed on appeal absent an abuse of discretion.[7] In the case at bar, we note that the excluded transaction reports were created on January 23, 2002, two months before the pretrial order was filed. It thus appears that the reports could have been produced well in advance of trial. Moreover, the bookkeeper was permitted to testify to their contents to rehabilitate her credibility, and the data contained in the documents was included in summary form in job cost reports that had already been introduced into evidence. Under the circumstances, we find no abuse of discretion in the trial court's refusal to admit the documents at issue into evidence.
Judgment affirmed.
JOHNSON, P.J., and ELDRIDGE, J., concur.
NOTES
[1] (Citations and punctuation omitted.) BM&J Contractors v. Liberty County Bd. of Ed., 226 Ga.App. 110, 111, 485 S.E.2d 262 (1997).
[2] (Citation omitted.) Sanders v. Brown, 257 Ga.App. 566, 567, 571 S.E.2d 532 (2002).
[3] BM&J Contractors, supra.
[4] Hill v. Cochran, 258 Ga. 473, 475(4), 371 S.E.2d 94 (1988) (objection waived by failure to renew objection after court gave curative instructions); accord Urrutia v. Jewell, 257 Ga.App. 869, 873(2), 572 S.E.2d 405 (2002); Carnes v. Woodall, 233 Ga.App. 797, 800(2), 505 S.E.2d 537 (1998).
[5] Williamson v. Harvey Smith, Inc., 246 Ga.App. 745, 750(6), 542 S.E.2d 151 (2000).
[6] Ballard v. Meyers, 275 Ga. 819, 822, 572 S.E.2d 572 (2002) (interpreting Uniform Superior Court Rule 7.2(14) and also holding that documentary evidence not listed in pretrial order may be used for impeachment).
[7] Driggers v. Campbell, 247 Ga.App. 300, 302(1), 543 S.E.2d 787 (2000).
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153 B.R. 573 (1993)
In re HARRY TURNER AND ASSOCIATES, INC., Debtor.
HARRY TURNER AND ASSOC., INC., Plaintiff,
Merchants National Bank, Intervenor,
v.
SHAWNEE COUNTY, KANSAS, Defendant.
Bankruptcy No. 92-40552-7C, Adv. No. 92-7609.
United States Bankruptcy Court, D. Kansas.
April 20, 1993.
Mark Shaiken, Stinson, Mag & Fizzell, Kansas City, MO, for Merchants Nat. Bank.
Russell Wright, Asst. Shawnee County Atty., Topeka, KS, for Shawnee County, Kan.
Joseph I. Wittmam, Chapter 7 Trustee, Topeka, KS, for debtor.
Charles N. Henson, Wright, Henson, Somers, Sebelius, Clark & Baker, Topeka, KS, for the Kansas Bankers Ass'n.
*574 John Foulston, Asst. U.S. Trustee, Wichita, KS.
MEMORANDUM OF DECISION
JAMES A. PUSATERI, Chief Judge.
The debtor commenced this proceeding before its bankruptcy case was converted from chapter 11 to chapter 7. Merchants National Bank (MNB) intervened, seeking to have its mortgage declared superior to tax liens claimed by Shawnee County, Kansas. The proceeding is presently before the Court on MNB's motion for summary judgment. The parties have submitted statements of uncontroverted facts and legal memoranda. The Court has allowed the Kansas Bankers Association to file an amicus brief.
MNB is represented by Mark Shaiken of Stinson, Mag & Fizzell. Shawnee County, Kansas (County), is represented by Assistant Shawnee County Counselor Russell Wright. The debtor, Harry Turner and Associates, Inc. (HTA), is now represented by Joe Wittman, the chapter 7 trustee, although it does not appear that the trustee has indicated whether he intends to pursue the relief originally sought by the debtor. The Kansas Bankers Association (KBA) is represented by Charles N. Henson of Wright, Henson, Somers, Sebelius, Clark & Baker.
Argument was made to the Court on January 11, 1993, and the motion is ready for decision.
FACTS
A. Uncontroverted Facts
The following facts are not disputed by the parties, and are drawn from MNB's Statement of Uncontroverted Facts, following the paragraph numbering used there.
1. In 1986, HTA wanted to purchase certain real property in Topeka, Kansas, known as 1515 N.W. Saline (the Real Property), on which to construct a new facility for its operations (the Facility).
2. In order to acquire the Real Property and to construct the Facility, HTA sought financing from MNB.
3. In conjunction with seeking the financing, HTA informed MNB that HTA was seeking to establish the Real Property as exempt from real estate taxes pursuant to Article 11, § 13 of the Kansas Constitution.
4. MNB was interested that HTA obtain an exemption because MNB believed HTA's projected cash flow might not be sufficient to service real estate taxes, and because Harry M. Turner, Jr. (Turner), president and principal shareholder of HTA, informed MNB that HTA was eligible for and could obtain an exemption under Kansas law.
5. In September, 1986, MNB agreed to advance $2.6 million (the Financing) to HTA to acquire the Real Property and to construct the Facility.
. . . .
7. The Financing was secured by, among other things, a valid and perfected real estate mortgage (the Mortgage) on the Real Property. The Mortgage was properly recorded on September 11, 1986, in the Office of the Shawnee County, Kansas, Register of Deeds.
8. At the time the Mortgage was recorded, the mortgage registration tax was fully paid.
9. In conjunction with the Financing, MNB obtained a title report (the 1986 Title Report) showing that as of September 11, 1986, no real property taxes were owed on the Real Property.
10. Utilizing the Financing, HTA constructed the Facility, and began operations there late in 1986.
11. Between September 25, 1987, and May 30, 1991, HTA executed the following promissory notes (the Notes) in favor of MNB: *575
Note # Amount Date of Note Maturity Date
85947 $ 425,000.00 05/30/91 05/30/92
85404 $ 75,500.00 07/20/90 07/20/95
85280 $ 75,000.00 05/04/90 05/04/95
85066 $ 100,000.00 02/15/91 02/15/96
85061 $ 79,472.66 02/09/90 01/31/95
84273 $ 166,150.00 10/21/88 11/21/93
83661 $ 83,141.40 12/09/87 12/09/92
83544 $2,100,000.00 09/25/87 09/25/90
83394 $ 238,000.00 07/13/87 07/13/92
83115 $ 128,600.00 02/20/87 02/20/92
12. Between September 1987 and December 1991, MNB contacted the Shawnee County Treasurer to confirm that the Real Property was tax exempt and that no taxes were owed on it. MNB made a contemporaneous written log (the Log) of the contacts, memorializing the information provided by the County. Each time MNB contacted the Shawnee County Treasurer, MNB presented the Log to the Treasurer and the Treasurer examined the real property records, completed the Log to indicate that no real property taxes were owed, and signed the Log and returned it to MNB. Thus, the County specifically and expressly informed MNB that no taxes were owed on the Real Property and that the Real Property was tax exempt.
13. The purposes of these contacts were, among other things, as follows:
a. Based on its concerns regarding HTA's cash flow, MNB sought to confirm that HTA's financial condition, as HTA reported it to MNB, was accurate and sound.
b. Since MNB believed the Real Property was tax exempt, MNB did not require a tax escrow account, as it would in any normal real estate loan transaction. MNB sought information regarding tax exempt status to assist it in determining whether it was still appropriate not to require a tax escrow account.
c. MNB sought to ensure that no taxes were owed. If taxes had been owed, MNB would have immediately insisted that HTA pay them. Thus, if MNB had been informed that taxes were owed, no more than one year of taxes would ever have accrued.
d. MNB sought to determine the tax exempt status to aid it in its decision whether to renew certain of the Notes.
14. On February 27, 1989, the Shawnee County Appraiser issued a "Change of Value Notice" for the 1989 tax year (the 1989 Notice).
15. The 1989 Notice listed the Real Property as "Class EM," meaning that the Real Property was tax exempt.
16. On April 13, 1990, the Shawnee County Appraiser issued a "Notice of Property Valuation" for the Real Property for the 1990 tax year (the 1990 Notice).
17. The 1990 Notice listed the Real Property as "Class EM," meaning that the Real Property was tax exempt.
18. On April 15, 1991, the Shawnee County Appraiser issued a "Notice of Property Valuation" for the Real Property for the 1991 tax year (the 1991 Notice).
19. The 1991 Notice listed the Real Property as "Class EM," meaning that the Real Property was tax exempt.
. . . .
23. In reliance on the County's representations referred to in paragraphs 12-19, MNB renewed certain of the Notes described in paragraph 11, did not require a tax escrow account, and was unable to insist that HTA timely pay any of the taxes the County now claims are owed.
24. On February 26, 1992, MNB obtained a title report for the Real Property (the February 1992 Title Report).
*576 25. The February 992 Title Report indicates that the County listed the Real Property as tax exempt as of the date of the report.
26. On March 6, 1992, MNB filed suit in the District Court of Shawnee County, Kansas, Case No. 92-CV343 (the Shawnee County Suit), against HTA, the County, and the Topeka/Shawnee County Development Corporation to commence, among other things, foreclosure of its mortgage on the Real Property.
27. The Court takes judicial notice that on March 19, 1992 (the Filing Date), HTA filed a voluntary Chapter 11 bankruptcy case (the Case) before this Court.
. . . .
29. On March 25, 1992, six days after the Filing Date, the County sent HTA tax bills seeking payment of property taxes purportedly due for the years 1988 to 1991 (the 1992 Tax Bills).
30. The 1992 Tax Bills sought $35,941.65 for 1988, $100,525.36 for 1989, $98,231.14 for 1990, and $96,369.66 for 1991.
31. The Court takes judicial notice that the County has never filed a motion for relief from the automatic stay in the Case, and consequently had not obtained stay relief before sending HTA the 1992 Tax Bills.
32. The Court also takes judicial notice that on March 23, 1992, MNB filed a Motion for Relief From the Automatic Stay (the Lift Stay Motion) in the Case seeking leave, among other things, to foreclose its Mortgage on the Real Property.
33. On April 13, 1992, a hearing was held respecting the Lift Stay Motion, and on April 14, 1992, this Court entered an order (the Lift Stay Order) granting MNB relief from the automatic stay, allowing MNB, among other things, to proceed with foreclosure of its Mortgage on the Real Property.
34. On August 18, 1992, an agreed Journal Entry of Foreclosure (the Journal Entry) was entered in the Shawnee County Suit. The County agreed to the Journal Entry.
35. Pursuant to the Journal Entry, an Order of Sale was issued ordering the Sheriff of Shawnee County, Kansas, to sell the Real Property.
36. On September 4, 1992, MNB obtained a title report for the Real Property (the September 4, 1992, Title Report) which indicates that the Real Property was tax exempt as of the date of the report.
37. On September 22, 1992, MNB bought the Real Property at the foreclosure sale for a credit bid of $1.6 million. As agreed in the Journal Entry, MNB deposited $330,423.51 in an escrow account (the Disputed Tax Account Funds) and the County released its lien on the Real Property.
38. The County and MNB agreed that this Court should decide, among other things, whether Shawnee County has a lien that is prior to MNB's mortgage lien on the Real Property. If the County's lien is not prior to MNB's mortgage lien, MNB is entitled to the Disputed Tax Account Funds.
B. Allegedly Controverted Facts
The County attempted to controvert the suggested uncontroverted facts in paragraphs 6, 20, 21, 22 and 28 of MNB's memorandum. The Court finds as follows with respect to each paragraph:
6. MNB asserted: "In conjunction with the Financing, Turner informed MNB that HTA had obtained the Exemption." The County responds that no exemption from ad valorem taxes was granted and that the statement is inadmissible hearsay. The Court finds from the other uncontroverted facts, the documents submitted, and the statements of counsel at the hearing that it is uncontested that MNB believed from the records available to it that the Real Property was exempt from ad valorem taxes.
20. The facts asserted in this paragraph are not necessary to this decision.
21. MNB asserted: "On February 5, 1992, HTA sought to establish that it had obtained the Exemption in 1986 by filing an application before the Kansas Board of Tax Appeals (BOTA)." The County asserts *577 that the statement is inadmissible hearsay. The Court finds that documents the County itself submitted as exhibits to its memorandum, to which neither HTA nor MNB objected, demonstrate that MNB's assertion is true.
22. MNB asserted: "As of February 5, 1992, when HTA filed its BOTA application, to the best of MNB's knowledge, HTA had not received any notice that the Real Property's tax exempt status was changed, nor had HTA received any Shawnee County real estate tax bills for the years 1988-1991." The County states the assertion is inadmissible as not within MNB's personal knowledge. The Court again finds that documents the County itself submitted as exhibits to its memorandum, to which neither HTA nor MNB objected, demonstrate that MNB's assertion is true. According to the County, the Real Property's exempt status on its records was not changed until mid-March of 1992 and the tax bills were not sent until the change was made.
28. The County recited its own version of the information contained in MNB's paragraph 28, and attached exhibits in support of its assertions. No one has questioned the County's assertions except its claim that the Real Property's exempt classification was erroneous. The Court concludes the following facts pertaining to MNB's paragraph 28 are uncontroverted:
The County assessed the Real Property for ad valorem taxes for the years 1988, 1989, 1990 and 1991. The Real Property was appraised and listed on the tax rolls for each year. The Real Property was classified as exempt during all four years. This classification continued until on or about March 19 or 20, 1992, when the Board of County Commissioners of the County issued correction orders reclassifying the Real Property as nonexempt and subjecting it to ad valorem taxes for the years 1988 through 1991. Thereafter, the County Clerk changed the tax rolls accordingly. The various correction orders recite the reason for change was to correct clerical error. On March 25, 1992, corrected tax statements and copies of the correction orders on the Real Property for the years 1988 through 1991 were sent to the debtor.
C. Additional Relevant Facts
Whether or not the exemption from ad valorem taxes on the Real Property was properly granted is not an issue at this time. It is a fact that HTA applied to the City of Topeka for an exemption. After holding hearings, the City took some action on the request which apparently caused the County to list the Real Property as exempt. The exempt classification was included on all the relevant public records that existed at the time MNB took its mortgage and loaned money secured by the Real Property, and that classification remained on the records until March of 1992.
CONTENTIONS OF THE PARTIES
The County contends that certain Kansas statutes authorize it to correct errors in the tax rolls, including erroneously listing property as exempt, and collect taxes which were improperly omitted from those rolls, citing K.S.A. 79-1701, et seq., and K.S.A. 1992 Supp. 79-1475. In addition, it contends that Bankruptcy Code §§ 362(b)(3) and 546(b) allow it to perfect a lien for such taxes after the taxpayer has filed for bankruptcy.
MNB and amicus KBA contend that the Kansas statutes the County relies on do not allow retroactive corrections for HTA's 1988 through 1991 taxes, but that if they do, the County should be equitably estopped from asserting any lien superior to MNB's mortgage. In addition, they contend that the County's attempted postpetition lien perfection violated § 362 and is void.
DISCUSSION AND CONCLUSIONS
As part of its investigation in connection with loaning $2,600,000 to HTA, MNB ascertained from the County's real property records that the County had listed the Real Property to be mortgaged to MNB as security for part of the loan as exempt from ad valorem taxes. Relying in part on this exemption, MNB determined that HTA's cash flow and financial condition were such *578 that the loan could be made. Since the Real Property was listed as exempt from ad valorem taxes, MNB did not require a tax escrow account as it would in an ordinary real estate loan transaction. MNB then loaned HTA the money and took a $2,100,000 mortgage on the Real Property, along with other security.
In September 1986, February 1992, and September 1992, MNB obtained title reports which showed that no real property taxes were owed on the Real Property and that it was exempt from ad valorem taxes. In 1989 and 1990, the County Treasurer's Office verified in writing to MNB that no real property taxes were owed because the property was exempt from ad valorem taxes. On other occasions, MNB directly or through HTA received county documents which indicated that the Real Property was exempt from ad valorem taxes, for example, the 1989 Change of Value Notice issued by the County Appraiser. MNB not only loaned HTA money on numerous occasions but also renewed some of the Notes representing HTA's obligation to MNB relying on its belief, verified by the County's employees and records, that the Real Property was exempt from ad valorem taxes. It was not until after HTA had defaulted on the Notes secured by the Mortgage and filed this chapter 11 proceeding that the County changed the listing of the Real Property from exempt to nonexempt and sent HTA tax bills for the years 1988 through 1991. The County, through its recommending officer and Board of County Commissioners, declared the change was to correct a clerical error in classifying the Real Property. The County further seeks to have its newly asserted tax claims determined to be a first lien on the Real Property ahead of MNB's Mortgage.
During the chapter 11 proceeding, MNB received relief from the automatic stay to foreclose on its Notes and Mortgage. A state court foreclosure judgment was obtained, and MNB credit bid $1,600,000 at the foreclosure sale. As agreed by the parties, MNB placed $330,423.51 of the sale price in escrow to pay the County the full amount of its ad valorem tax claims if they were determined to be valid and payable in advance of MNB's Mortgage. The County has never sought or obtained relief from the automatic stay to allow it to pursue its claims against the debtor or the bankruptcy estate.
The County relies on the following Kansas statutes to support its purported correction of clerical errors concerning the debtor's real property taxes.
Duties of county appraiser and clerk regarding property discovered to have been omitted from tax rolls. Whenever the county appraiser discovers that any real property subject to taxation has been omitted from the tax rolls, such property shall immediately be listed and valued by the appraiser, and returned to the county clerk. The county clerk, upon receipt of the valuation for such property, shall place such property on the tax rolls and compute the amount of tax due based upon the mill levy for the year in which such tax should have been levied, and shall certify such amount to the county treasurer as an added or escaped appraisal. . . .
K.S.A. 1992 Supp. 79-1475.
Correction of clerical errors by county clerk. The county clerk shall, prior to November 1, correct the following clerical errors in the assessment and tax rolls for the current year, which are discovered prior to such date:
(a) Errors in the description or quantity of real estate listed;
(b) errors in extensions of values or taxes whereby a taxpayer is charged with unjust taxes;
(c) errors which have caused improvements to be assessed upon real estate when no such improvements were in existence;
(d) errors whereby improvements located upon one tract or lot of real estate have been assessed as being upon another tract or lot;
(e) errors whereby taxes have been charged upon property which the state board of tax appeals has specifically declared to be exempt from taxation under the constitution or laws of the state;
(f) errors whereby the taxpayer has been assessed twice in the same year *579 for the same property in one or more taxing districts in the county;
(g) errors whereby the assessment of either real or personal property has been assigned to a taxing district in which the property did not have its taxable situs; and
(h) errors whereby the values or taxes are understated or overstated as a result of a mistake on the part of the county.
K.S.A. 79-1701.
Correction of clerical errors by board of county commissioners; refund, cancellation or credit of overpayments of taxes based on errors. Any taxpayer, the county appraiser or the county clerk shall, on their own motion, request the board of county commissioners to order the correction of the clerical errors in the appraisal, assessment or tax rolls as described in K.S.A. 79-1701, and amendments thereto. The board of county commissioners of the several counties are hereby authorized to order the correction of the clerical errors specified in K.S.A. 79-1701, and amendments thereto, in the appraisal, assessment or tax rolls for the current year and the immediately preceding two years during the period on and after November 1 of each year. . . . In the event the error results in an understatement of value or taxes as a result of a mistake on the part of the county, the board of county commissioners of the several counties are hereby authorized to correct such error and order an additional assessment or tax bill, or both, to be issued, except that, in no such case shall the taxpayer be assessed interest or penalties on any tax which may be assessed. If such error applies to property which has been sold or otherwise transferred subsequent to the time the error was made, no such additional assessment or tax bill shall be issued.
K.S.A. 79-1701a.[1]
The Kansas Supreme Court stated in In Re Order of Board of Tax Appeals, 236 Kan. 406, 412, 691 P.2d 394 (1984), "We have held that tax laws are statutory and do not exist apart from the statute. [Citation omitted.] As such, they must be strictly construed." See also Masson, Inc. v. County Assessor of Wyandotte County, 222 Kan. 581, 567 P.2d 839 (1977). Consequently, taxing authorities are sometimes left without a method for correcting errors. See Order of Board of Tax Appeals, 236 Kan. at 413.
While the assessments delivered to the debtor make clear that the County relied on K.S.A. 1992 Supp. 79-1475 to justify the changes, the stipulated facts make clear that 79-1475 does not apply to this situation. That provision appears to allow a county to correct assessments for any number of prior years, as the County did here for 1988 through 1991, while K.S.A. 79-1701a allows corrections only for the current and two immediately preceding years, here limited to 1990, 1991, and 1992 since the changes were made after November 1, 1991. Thus, the County must have relied on 79-1475. However, the Real Property was appraised and was not omitted from the tax rolls from 1988 through 1991. The County's records show, and it admits in its memorandum, that the Real Property was appraised and included on the tax rolls in each of the years in question. Since 79-1475 establishes procedures for added or escaped appraisals only when property has been omitted from the tax rolls, application of the statute here was inappropriate. See Order of Board of Tax Appeals, 236 Kan. at 410-11.
Though it appears the County did not act under K.S.A. 79-1701 and -1701a to correct clerical errors by the county clerk, the County did cite those statutes in its memorandum. Possible corrections under 79-1701a are limited to those specified in 79-1701. Section 79-1701 describes eight specific clerical errors in the assessment and tax rolls which may be corrected. None of the specified errors is clearly present in this case, though an argument of sorts may be made for the eighth error, *580 that is, an understating or overstating of the values or taxes as a result of a mistake by the County. In its brief, the amicus KBA contends that listing property as exempt so no taxes are due is not an understatement of the taxes. During oral argument, the County tended to agree with this position. If the County indeed conceded this point, then none of the statutes cited authorized the County to correct the allegedly erroneous exemption of the Real Property and assess back taxes against it. Even if this lack of authority resulted from legislative oversight rather than deliberate omission, such a state of affairs is not unheard of and, at least where tax laws are concerned, is one which must be remedied by the legislature, not the courts. See Order of Board of Tax Appeals, 236 Kan. at 413.
Assuming, on the other hand, that the County did not concede the scope of 79-1701(h) is so limited and that the word "understated" could be interpreted so broadly as to include a situation where the assessment declared zero taxes to be due, the language of 79-1701a still presents several problems for the County. The first is that the statute allows corrections only for the current tax year and the two immediately preceding years; thus, the County would have been unable to change the assessment for the first two years that the Real Property was listed as exempt. The second is that such corrections can be made only where the property has not been sold or otherwise transferred after the error was made. In this case, the Real Property was mortgaged to MNB after and in partial reliance on the alleged error. If the granting of a mortgage constitutes a "sale" or other "transfer" under 79-1701a, the correction could not be made under that statute.
Neither 79-1701 nor 79-1701a define "sale" or "transfer." However, a Kansas rule of statutory construction, K.S.A. 1992 Supp. 77-201, Second, provides, "Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meanings." In several areas, Kansas law treats a mortgage as a purchase (and so also as a sale) or transfer. The Kansas statutes governing the recording of instruments affecting real estate, K.S.A. 58-2221 through -2223, indicate a mortgage is a "purchase" for purposes of such recording. In Farmers & Merchants State Bank v. Higgins, 149 Kan. 783, 784-88, 89 P.2d 916 (1939), the Kansas Supreme Court held that a bank which took a mortgage for an antecedent debt in return for extending the due date on the debt was a purchaser for a valuable consideration, and since the bank had no notice, its mortgage had priority over a previously executed but subsequently recorded deed. The Kansas Uniform Commercial Code declares that "purchase" includes taking by lien, mortgage and pledge. See K.S.A. 1992 Supp 84-1-201(32). The leading legal dictionary defines "transfer" as, among other things, "The sale and every other method, direct or indirect, of disposing of or parting with property or with an interest therein, or with the possession thereof, or of fixing a lien upon property or upon an interest therein, . . . as a . . . pledge, mortgage, lien, encumbrance, gift, security or otherwise." Black's Law Dictionary 1342 (5th Ed.1979). The Bankruptcy Code, of course, defines "transfer" very broadly, clearly including giving a mortgage within its meaning. 11 U.S.C.A. § 101(54).[2] Based on all these "peculiar and appropriate meaning[s] in law" for "transfer" and "purchase" (or "sale"), the Court concludes that the mortgage to MNB was either a "sale" or other "transfer" under the last sentence of 79-1701a. Consequently, even under the broader interpretation of the word "understated" in 79-1701(h), the County had no authority to issue the corrected assessments or tax bills it sent the debtor, and thus has no claim against the Real Property for the taxes it alleges are due.
*581 For these reasons, the Court concludes the County had no authority under 79-1475, -1701 or -1701a to impose these taxes on the Real Property when it did. In the alternative, if the County could otherwise have imposed the taxes at that time, the mortgage to MNB cut off that authority. Consequently, MNB's motion should be granted. A separate judgment will be entered awarding the Disputed Tax Account Funds, $330,423.51, to MNB.
The foregoing constitutes Findings of Fact and Conclusions of Law under Rule 7052 of the Federal Rules of Bankruptcy Procedure and Rule 52(a) of the Federal Rules of Civil Procedure.
NOTES
[1] Although the Court will rest its decision on other grounds and not expressly consider MNB's equitable estoppel theory, the Court notes the last sentence of 79-1701a in essence incorporates the theory for certain situations.
[2] Due to a Congressional drafting error, two subsections of § 101 are number (54). This one should probably be (58).
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287 S.W.2d 342 (1956)
J. R. HAVER, Administrator of the Estate of Daniel M. Haver, Deceased, Appellant,
v.
John Clarence BASSETT, Respondent.
No. 22352.
Kansas City Court of Appeals. Missouri.
February 6, 1956.
*343 John C. Russell, Kansas City, for appellant.
Richard H. Heilbron, Kansas City, for respondent.
BOUR, Commissioner.
Plaintiff brought suit against John Clarence Bassett, in the circuit court of Daviess county, Missouri, to recover damages for the alleged wrongful death of Daniel Martin Haver. The trial court sustained defendant's motion to dismiss the petition, and a judgment was entered dismissing the cause. From that judgment the plaintiff has appealed. Since the amount sued for was $2,995, this court has appellate jurisdiction. Sec. 3, Art. 5, Const.1945, V.A.M.S.
Plaintiff alleged in his petition that he was the administrator of the estate of Daniel Martin Haver, deceased (hereinafter referred to as Haver), and that defendant was a resident of Knoxville, Iowa. Plaintiff further alleged, in substance, that on October 23, 1953, Haver sustained injuries as the result of a collision at the intersection of two public highways in Daviess county, Missouri, involving a truck which was owned and operated by defendant and a truck in which Haver was riding as a passenger; that Haver died on said date as a result of the injuries sustained in the collision; and that Haver's injuries and death were directly and proximately caused by the negligence of defendant, setting out three assignments of negligence. Plaintiff further alleged that at all times mentioned in the petition the defendant "was and now is" a nonresident of Missouri; that defendant had been absent from this state since the date of said collision; and that his last known address was Rural Route 1, Knoxville, Iowa.
Defendant's motion to dismiss was upon the ground that it appeared on the face of the petition that the claim was barred by the one-year statute of limitations, section 537.100 RSMo 1949, V.A.M.S. Plaintiff's claim was based upon section 537.080 of the wrongful death statute. Section 537.100 reads in part as follows: "Every action instituted by virtue of sections 537.070 to 537.090, * * * shall be commenced within one year after the cause of action shall accrue; provided, that if any defendant, whether a resident or nonresident of the state at the time any such cause of action accrues, shall then or thereafter be absent or depart from the state, so that personal service cannot be had upon such defendant in the state in any such action heretofore or hereafter accruing, the time during which such defendant is so absent from the state shall not be deemed or taken as any part of the time limited for the commencement of such action against him". (Italics ours.)
According to the petition, Haver died on October 23, 1953. The suit was instituted on February 23, 1955, and more than a year after the alleged cause of action accrued. Service of process was had on February 25, 1955, by serving the secretary of state of Missouri pursuant to the nonresident motorist statute, sections 506.200 to 506.320 RSMo 1949, V.A.M.S. Section 506.210 reads as follows:
*344 "The use and operation of a motor vehicle or trailer in this state on the public highways thereof by a person who is a nonresident of this state shall be deemed
"(1) An agreement by him that he will be subject to the jurisdiction of the courts of this state over all civil actions and proceedings against him by either a resident or nonresident plaintiff, for damages to person or property, including actions for death, growing or arising out of such use and operation; and
"(2) An appointment by such nonresident of the secretary of state of Missouri as his lawful attorney and agent upon whom may be served all process in suits pertaining to such actions and proceedings;
"(3) An agreement by such nonresident that any process in any suit so served shall be of the same legal force and validity as if personally served on him in this state." (Italics ours.)
Section 506.240, subsection (1) provides that service of process shall be made by delivering a copy of the summons, with a copy of the petition attached, and a fee of $1.00, to the secretary of state of Missouri at his office, or in his absence, to his chief clerk. Subsection (2) of section 506.240 provides that the secretary of state shall immediately mail to the defendant by restricted, registered mail, addressed to the defendant at his last known address, residence or place of abode a notice of such service and a copy of such process and petition. Section 506.270 prescribes the method of proof of the mailing of said notification to the nonresident defendant. Section 506.280 provides that the foregoing provisions relative to service of process in suits against nonresidents are cumulative and in addition to any existing right, remedy, cause of action, and method of procedure.
As stated, the trial court sustained defendant's motion to dismiss and judgment was entered dismissing the cause.
The question presented on this appeal is whether it appears from the face of the petition that plaintiff's claim is barred by the applicable statute of limitations, section 537.100, supra. Plaintiff-appellant contends that the one-year statute of limitations was tolled or suspended because the defendant (according to the petition) was at all times subsequent to the accrual of the cause of action alleged, absent from the state of Missouri, so that personal service could not be had upon him. Plaintiff relies heavily upon the phrase in section 537.100, which reads, "so that personal service cannot be had upon such defendant in the state". Defendant contends that under the facts alleged in the petition, he was at all times after the death of plaintiff's intestate amenable to service of process under the provisions of the nonresident motorist statute, and consequently the one-year statute of limitations was not tolled because of the fact that he was absent from the state during that time. In fact the service in this case, as has been stated, was made on the defendant through the secretary of state of Missouri under the nonresident motorist statute, sections 506.210, 506.240. It is conceded that such service is sufficient to authorize the court to render a personal judgment against the defendant. Plaintiff insists, however, that service upon the secretary of state is not personal service within the meaning of section 537.100.
Plaintiff cites six Missouri cases and eighteen cases decided by courts of other states. None of these cases is in point. Defendant relies chiefly upon a federal case. This case will be considered later.
The question presented has never been passed upon by an appellate court of this state. However, our appellate courts have decided analogous questions in construing what is now section 516.200 RSMo 1949, V.A.M.S., a tolling statute which is not applicable to actions for wrongful death. The second clause of section 516.200 provides that if a person who is a resident of this state when a cause of action accrues against him, shall thereafter "depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action." This provision, which is applicable to the ten-year, *345 five-year, three-year and two-year statute of limitations, sections 516.110 to 516.140, inclusive, has been construed in connection with the general service statute, section 506.150(1), which authorizes service upon an individual by leaving a copy of the summons and of the petition at his dwelling house or usual place of abode with some person of his family over the age of fifteen years.
Under the second clause of section 516.200, supra, it has been held that where a resident of this state goes outside of the state with the intention of returning, and while absent from the state maintains a residence in the state where service may be made on a person of his family, the statute of limitations continues to run in his favor notwithstanding his absence. Venuci v. Cademartori, 59 Mo. 352, at page 354, where the court said: "As his place of abode under the law was here, and service of summons there was good at any time, there was nothing to prevent the plaintiff from bringing an action and obtaining a personal judgment (if he recovered) * * *. Under such circumstances we can see no obstacle to the statute running." Accord: Garth v. Robards, 20 Mo. 523. See Miller v. Tyler, 61 Mo. 401; State ex rel. Shipman v. Allen, 132 Mo.App. 98, 111 S.W. 622; Bensley v. Haeberle, 20 Mo.App. 648, 653, where the court said: "It is the fact of absence beyond the reach of process that is important"; Rhodes v. Farish, 16 Mo.App. 430. In the Rhodes case it was held that where a resident departs from the state, leaving no place of abode in the state where service of process may be made, the statute of limitations does not run during his absence. The court said, at page 432: "In determining whether a case is within the exception created by this clause, it is necessary to bear in mind the purpose of the statute, which was that the plaintiff should not lose his right of action by the bar of the statute of limitations, if, during any substantial period of the time during which the statute otherwise would have been running, the defendant had departed from, or resided out of, the state, so that ordinary legal process, such as would afford a foundation for a personal judgment against the defendant, could not be served upon him." The court pointed out that where, under a statute authorizing service of process by leaving a copy of the summons at the defendant's usual place of abode, with some person of his family, service of process may be made upon the defendant, the period of his absence from the state will not be excluded from the period of limitation under the general statute of limitations. Under such circumstances, the reason for suspending the statute of limitations does not exist. The foregoing Missouri cases are in accord with the weight of authority. 34 Am.Jur., Limitation of Actions, sec. 221, p. 178; Annotation 94 A.L.R. 485, 486, 490. We think the principle announced in these cases applies to the instant case.
Courts of other states are not in agreement as to the effect of a nonresident motorist act upon a provision tolling the statute of limitations during the period of the defendant's absence from the state. The courts have, in a majority of cases, decided in favor of allowing the statute of limitations to run in favor of the nonresident. See 54 C.J.S., Limitations of Actions, § 212 c(2), p. 237; 34 Am.Jur., Limitation of Actions, sec. 221, p. 178; Annotations 94 A.L.R. 485, 119 A.L.R. 859, and 17 A.L.R. 2d 502. Cases so holding are: Scorza v. Deatherage, 8 Cir., 208 F.2d 660, under Missouri statute; Tublitz v. Hirschfeld, 2 Cir., 118 F.2d 29, under Connecticut statute; Peters v. Tuell Dairy Co., 250 Ala. 600, 35 So.2d 344; Coombs v. Darling, 116 Conn. 643, 166 A. 70; Nelson v. Richardson, 295 Ill.App. 504, 15 N.E.2d 17; Kokenge v. Holthaus, 243 Iowa 571, 52 N.W. 2d 711; Busby v. Shafer, S.D., 66 N.W.2d 910; Arrowood v. McMinn County, 173 Tenn. 562, 121 S.W.2d 566, 119 A.L.R. 855; Reed v. Rosenfield, 115 Vt. 76, 51 A.2d 189.
In Scorza v. Deatherage, supra, a federal case cited in defendant's brief, plaintiff's brought suit against two nonresident defendants to recover damages under the wrongful death statute of Missouri, alleging, inter alia, that Ferdinand Scorza, the father of plaintiffs, was fatally injured *346 as the result of a collision on a public highway in Missouri, involving an automobile which he was driving and a truck owned by one of the defendants and operated at the time in question by the other defendant. The suit was instituted more than a year after the accrual of the cause of action alleged. Service of process was had by serving the secretary of state of Missouri pursuant to the nonresident motorist statute. As we have seen, the one-year statute of limitations, section 537.100, provides that "if any defendant, whether a resident or nonresident of the state at the time any such cause of action accrues, shall then or thereafter be absent or depart from the state, so that personal service cannot be had upon such defendant in the state" the period of such absence shall not be counted in computing the statutory period. Defendants' motion to dismiss the complaint was sustained, D.C., 110 Fed.Supp. 251, and plaintiffs appealed.
The circuit court of appeals said, 208 F.2d at page 661: "In the final analysis the determinative question is whether service upon the Secretary of State constituted personal service upon the defendants within the purview of the Missouri death statute. The vital quality of personal service that distinguishes it from constructive or substituted service is that it confers jurisdiction on a court to enter judgment in personam against a defendant so served. In the instant case it is conceded that the service of process which was had on the Secretary of State confers such jurisdiction. The Missouri non-resident automobilist statute provides that one operating a motor vehicle upon the public highways of the state shall be deemed in effect to have appointed the Secretary of State as his agent upon whom process may be served in any action for damage to property or persons, including actions for death, growing out of such operation with the same legal force and validity as if personally served on him in the state."
After stating that in the case of Peterson v. Kansas City, 324 Mo. 454, 23 S.W. 2d 1045, it was held "that service on an agent authorized to accept such service constitutes personal service upon the principal of that agent", the court quoted from the opinion in Arrowood v. McMinn County, supra, as follows, 208 F.2d at page 662: "`It is obvious that under Code, Section 8671 et seq., providing for service on nonresident operators on highways in this State through the Secretary of State, suit could have been commenced and service had at any time within the limitation of one year. The absence or nonresidence of the defendants in no way obstructed or prevented suit against or service upon them. The applicable principle laid down by our decisions is that when the remedy of the suitor is complete and unaffected by the absence of the defendant, when his nonresidence does not affect the right to sue, Code, Section 8581 (Act of 1865) providing that "the time of his absence or residence out of the state shall not be taken as any part of the time limited for the commencement of the action" is without application.'"
The circuit court of appeals concluded "that plaintiffs could at all times subsequent to the accrual of their cause of action have secured personal service of process on the defendants by serving such process upon the Secretary of State of Missouri, and hence, the statute of limitations embodied in the death statute was not tolled. The judgment appealed from is therefore affirmed."
As indicated, some decisions are to the contrary: Gotheiner v. Lenihan, 25 A.2d 430, 20 N.J.Misc. 119; Maguire v. Yellow Taxi Corp., 253 App.Div. 249, 1 N.Y.S.2d 749, affirmed 278 N.Y. 576, 16 N.E.2d 110; Couts v. Rose, 152 Ohio St. 458, 90 N.E.2d 139, but see Canaday v. Hayden, 80 Ohio App. 1, 74 N.E.2d 635; Bode v. Flynn, 213 Wis. 509, 252 N.W. 284, 94 A.L.R. 480. In some of these cases the courts reasoned that since the nonresident motorist act did not in express terms make any exception to the provision tolling the statute of limitations, the legislature did not intend to remove such cases from the operation of the tolling statute.
We agree with the decision of the circuit court of appeals in the case of Scorza v. Deatherage, supra, which is in *347 accord with the weight of authority. Since it appears on the face of the petition that the cause of action alleged was barred by the one-year statute of limitations, the court did not err in sustaining the motion to dismiss the petition. The judgment dismissing the action should be affirmed, and the commissioner so recommends.
SPERRY, C., concurs.
PER CURIAM.
The foregoing opinion of BOUR, C., is adopted as the opinion of the court.
The judgment is affirmed.
All concur.
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892 F.2d 1047
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Phillip TUCKER, Petitioner-Appellant,v.William PERRILL, Warden, FCI, United States ParoleCommission, Respondent-Appellee.
No. 88-15424.
United States Court of Appeals, Ninth Circuit.
Submitted July 25, 1989.*Decided Dec. 14, 1989.
Before BROWNING, KOZINSKI and RYMER, Circuit Judges.
1
MEMORANDUM**
2
Tucker appeals dismissal of his 28 U.S.C. § 2241 habeas corpus petition. He argues that application of the United States Parole Commission guidelines, that were not in effect at the time appellant committed various institutional rule infractions, to adjust his parole date violated the ex facto clause, U.S. Const. art. I, Section 9, cl. 3. Guidelines of the United States Parole Commission are merely procedural guideposts, and thus are not laws within the meaning of the ex post facto clause. Rifai v. United States Parole Comm'n, 586 F.2d 695 (9th Cir.1978). The petition was properly dismissed.
3
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
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543 U.S. 910
LOMELI GONZALEZv.UNITED STATES.
No. 04-5761.
Supreme Court of United States.
October 4, 2004.
1
C. A. 9th Cir. Certiorari denied. Reported below: 365 F. 3d 796.
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Third District Court of Appeal
State of Florida
Opinion filed January 25, 2017.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D16-1531
Lower Tribunal No. 13-16460
________________
Laguna Tropical, a Condominium Association, Inc.,
Appellant,
vs.
Katia Marie Barnave,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.
Robert C. Eber, for appellant.
The Strauss Law Firm, and David A. Strauss (Fort Lauderdale), for appellee.
Before WELLS, SALTER and LOGUE, JJ.
SALTER, J.
Laguna Tropical, a Condominium Association, Inc. (“Association”), appeals
a final judgment in favor of a condominium unit owner, Ms. Barnave (“Owner”),
and her tenant, Ms. Garcia (“Tenant”). The Association sought injunctive and
other relief to enforce provisions of certain rules and regulations applicable to the
94 units in the condominium development under the recorded Declaration of
Condominium. We reverse the final judgment and remand the case to the trial
court for enforcement of the applicable rules as against the Owner, the Tenant, and
the condominium unit.
Flooring and Noise
The applicable rule is captioned “Noise.” It states, in pertinent part:
Unless expressly permitted in writing by the Association, no floor
covering shall be installed in the units other than any carpeting or
other floor covering installed by the Developer. In any event, each
unit owner shall have the duty of causing there to be placed
underneath such floor covering, so as to be beneath such floor
covering and the concrete slab,[1] generally accepted and approved
materials for diminution of noise and sound, so that the flooring shall
be adequately soundproof.
Another provision, this one in Article X, Paragraph D of the recorded
Declaration of Condominium, prohibits a unit owner from altering, modifying or
replacing the interior of a unit without the prior consent of the Association’s Board
of Directors. Paragraph B of that Article further requires that maintenance, repairs,
and replacements within a unit’s interior “shall be done without disturbing the
rights of other unit owners.”
1 The provision only makes sense if the padding would be placed beneath the
carpeting but above, not beneath, the concrete slab, or “between,” not beneath the
carpeting and slab.
2
In 2010, the Owner concluded that it would be necessary to replace the
carpeting in her unit. A previous tenant had allowed a pet (prohibited by the rules
and regulations, but kept in the unit without the Owner’s knowledge) to ruin the
original carpet. The Owner replaced the soiled carpeting with laminated flooring.
In 2011, the resident in the unit below the Owner’s second-story unit
complained that the noise was disturbing his occupancy. Ultimately, the
downstairs resident complained to the Association that the Owner and Tenant were
in violation of the rules and asked the Association to enforce the noise and
carpeting provisions. After a written notice by the Association, exchanges of
letters, and an unsuccessful mandatory alternative dispute resolution process before
the Division of Florida Condominiums,2 the Association filed a lawsuit against the
Owner and Tenant to enforce the flooring restrictions.
Selective Enforcement; Prior Written Approval
In the pleadings, at trial, and here, the Owner asserted affirmative defenses
alleging (1) “selective enforcement” of the flooring restrictions and (2) an alleged
approval of the laminated flooring by the president of the Association. The Owner
assumed the burden of proof as to each of these issues. The trial court found the
2 § 718.1255(4), Fla. Stat. (2013). The parties engaged in a further unsuccessful
attempt to mediate the dispute before the non-jury trial.
3
selective enforcement defense to be well taken, and entered a final judgment in
favor of the Owner. This appeal ensued.
The interpretation of the statutes, rules, and declaration of condominium
provisions are reviewed here de novo.3 The Owner’s selective enforcement
defense asserts that the Association only actually enforced the flooring (carpeting)
restriction as against eleven of the condominium development’s 94 units. It is
undisputed, however, that those eleven units were the only exclusively upstairs
units. Eleven other units were exclusively downstairs units below the upstairs
units, while the remaining 72 units were configured to include both first-floor and
second-floor residential space within the same unit.
The record also (and predictably) includes no evidence that occupants of the
72 upstairs-downstairs units ever complained to the Association about the noise
coming from upstairs, since they owned or leased the upstairs portion of the same
unit. Further, there were a handful of prior noise complaints by downstairs-only
occupants below upstairs-only units that had culminated in successful enforcement
action by the Association (i.e., the replacement of prohibited tile or wood flooring
in the upstairs-only unit by the specified carpeting and underlying “generally
accepted and approved materials for diminution of noise and sound”). Finally,
3 “Hence, because condominiums are a creature of statute courts must look to the
statutory scheme as well as the condominium declaration and other documents to
determine the legal rights of owners and the association.” Woodside Vill. Condo.
Ass’n v. Jahren, 806 So. 2d 452, 454 (Fla. 2002).
4
there was no evidence that the Association had declined to enforce a noise
complaint regarding a downstairs-only unit based on a replacement of carpet with
tile or wood flooring.
This case is readily distinguishable from the selective enforcement cases
relied upon by the appellees. In Prisco v. Forest Villas Condominium Apartments,
Inc., 847 So. 2d 1012 (Fla. 4th DCA 2003), for example, an association bylaw
prohibited any pets other than fish or birds. A unit occupant who kept a dog in her
unit was sued by the association to enforce the bylaw. The unit owner submitted
evidence that another owner kept two cats on the premises, and other occupants
also kept cats within their units. The trial court granted summary judgment for the
Association on “selective enforcement,” concluding that there were rational
differences regarding enforcement as against cats versus dogs (“[d]ogs clearly
bark, cats do not, dogs need to be walked outside of their home, cats do not as they
use litter boxes for the most part,” as the trial judge found). Id. at 1014. The
Fourth District reversed and remanded:
The restriction is clear and unambiguous and states that, other than
fish and birds, “no pets whatsoever” shall be allowed. The fact that
cats are different from dogs makes no difference. What does matter is
that neither a cat nor a dog is a fish or a bird, so both should be
prohibited.
Id. at 1015.
5
In the present case, the prohibition on floor coverings other than padded
carpet is plainly intended to avoid noise complaints. No selective enforcement was
proven, as no complaints have been shown to have arisen regarding any units
except second-floor only units like the Owner’s unit. It cannot be said that the
enforcement action in the present case “constituted unequal and arbitrary
enforcement of the restriction.” White Egret Condo., Inc. v. Franklin, 379 So. 2d
346, 352 (Fla. 1979).
The Owner also argues that the Association president confirmed in an
exchange of emails that the Owner’s laminated wood flooring was acceptable.4
This argument likewise fails, as the rules and declaration of condominium plainly
require consideration and written approval by the Association’s board of directors,
not merely one of its officers. Curci Vill. Condo. Ass’n, Inc. v. Maria, 14 So. 3d
1175 (Fla. 4th DCA 2009) (condominium association not estopped from enforcing
a restriction where written consent was not obtained from the board of directors (as
specified), as opposed to a verbal consent from the president). The record in the
present case contains no delegation by the Association of authority to approve
installations of the kind involved in this case by its president. The Owner admitted
that she did not submit a request for approval of the wood flooring to the
Association’s board.
4 This testimony was disputed, and the Owner did not introduce into evidence the
alleged emails, as her computer had crashed.
6
For all these reasons, we reverse the final judgment in favor of the Owner
and remand the case for enforcement of the flooring restrictions as sought by the
Association.
7
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346 S.W.2d 106 (1961)
Alice Anell BRIGGS et al., Petitioners,
v.
Billy Frank BRIGGS, Sr., Respondent.
No. A-8067.
Supreme Court of Texas.
May 10, 1961.
Lumpkin, Watson, Dunlap & Smith, Robert Page Smith, Amarillo, for petitioners.
Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, Warlick Thomas, Amarillo, with above firm, for respondent.
NORVELL, Justice.
Alice Anell Briggs, Betty Katherine Briggs and Robert Lafayette Briggs, all minors, acting by and through their mother, Mrs. Mozelle Briggs[1] brought this suit against their father, Billy Frank Briggs, Sr. to enforce a trust established by the father for the benefit of such minor children. The trial court granted a motion for summary judgment in favor of the minors which was reversed by the Court of Civil Appeals. Briggs v. Briggs et al., 337 S.W. 2d 753.
The judgment of the trial court was in accordance with the terms of the written trust instrument. In order to escape being *107 bound thereby, it was necessary that Billy Frank Briggs, Sr. avoid the trust. This he sought to do upon the grounds that it was in the nature of a contract between him and Mozelle Briggs, his divorced wife; that it was unenforceable because there was no meeting of the minds of the contracting parties; that the instrument was tainted with fraud, or was the result of accident or mistake. In our opinion, Briggs was precluded and estopped from attacking the trust instrument under which his children were beneficiaries, primarily because of the circumstance that at the time of the rendition of the summary judgment he was the guardian of the estates of the two younger minor children who were beneficiaries of the trust. The judgment of the Court of Civil Appeals will be reversed and that of the trial court affirmed.
The trust indenture was executed by the respondent Billy Frank Briggs, Sr. as a part of a property settlement incident to a divorce obtained by Mozelle Briggs in June of 1958. As a part of such settlement, Briggs agreed to execute a trust instrument covering an eighty-acre farm in Oklahoma which was to provide that:
"a. The net income from the 80-acre farm shall be paid to Mozelle Briggs, or any other legal representative of the children, for the benefit of the three children until Robert [the youngest of the three children] reaches the age of 21 years, such income to be paid on or before thirty (30) days after receipt thereof.
"b. Billy Briggs shall be the trustee of the account and shall have the full right to manage, lease, operate, and look after the farm and shall have the right to borrow money on the land only for the purpose of carrying out this agreement and paying off the indebtedness against the property at 1517 Fannin [a residence in Amarillo, Texas]. In the management of the farm Billy Briggs shall operate same or cause same to be operated in a good farmer like manner so that same shall produce the maximum revenues possible and he shall not use any crop allowables on this 80-acre farm to the benefit of any other farm lands owned by the trustee, his tenants, lessors, or anyone else."
The trust instrument is in general accord with the settlement agreement. It was recited that Briggs had negotiated a loan to be placed upon the farm, but it was stipulated that said loan was not to be repaid out of the income of the farm while the trust was in existence. The trust indenture then provided that:
"It is further understood that should such loan become delinquent in either principal or interest during the term of this trust, or should any net income not be paid as herein provided, then, Mozelle Lowrie Briggs, if living or any other legal representative of the aforesaid beneficiaries shall have the right to take over the trust properties and to manage same to protect the corpus of the trust estate so that the net income may be used for the support, maintenance and education of the three beneficiaries."
With reference to the farm program of the federal government, the instrument provided that:
"The Trustee shall not permit farm allowables assigned to the lands in this trust to be used for any other farm lands owned by the Trustee, his tenants or lessees, or anyone else. All of said crops to be sold or put in government loan within ninety (90) days after completion of harvest of each crop."
It was shown that respondent had not paid over to Mozelle Briggs, as the custodian of the beneficiaries under the trust, the net income realized from the farm but had tendered only a fractional part thereof because of his assertion that under the agreement he could operate the eighty-acre farm in connection with other properties *108 owned by him and pay over to Mozelle Briggs, as custodian, a proportionate part of the income from crops sold, government allowables and other sources of farm income realized from the entire operation. We see no basis for this construction in the provisions of the trust indenture. It follows that under the literal terms of the indenture (unless avoided) Mozelle Briggs had "the right to take over the trust properties and to manage same in order to carry out the purposes of the trust" whenever respondent defaulted in the performance of his duties under the trust.
The terms of the trust were enforced by the trial court's judgment.
This question is presented: Was respondent in a position to attack the trust instrument? This is not a dispute over a two party contract between Billy and Mozelle Briggs. While the trust indenture had its genesis in the divorce property settlement between them, the rights of third parties are involved. The minor children of the divorced parents are real parties at interest. They are the third party beneficiaries under the trust indenture.
Respondent contended in the trial court that he and Mozelle Briggs agreed that the trust indenture should not be filed until he had completed a loan on the eighty-acre farm. His contention was that the contemplated loan was one for $7,000. Mozelle contended that the only loan which respondent was authorized to make against the property was for $4,700, that is, the amount necessary to discharge the indebtedness against the Amarillo residence. When she learned that respondent intended to obtain a larger loan on the property she caused the trust instrument to be filed for record which prevented consummation of the projected loan. It is this action on the part of Mozelle which is primarily relied upon by respondent to defeat the present suit, destroy the trust indenture and set aside the basic property settlement agreement.
Petitioners suggested a number of reasons why respondent's contentions should not be accepted, waiver and estoppel being among them. As mentioned by the Court of Civil Appeals, respondent wrote to his former wife after she had filed the trust indenture of record in Oklahoma and stated that despite her breach of the agreement, he proposed to carry it out until some future breach made it impossible for him to do so. Then, on February 11, 1959 (after the filing of the present suit on January 9, 1959), the respondent filed a verified application with the County Court of Randall County[2] requesting that court to appoint him guardian of the estates of Betty Katherine Briggs and Robert Lafayette Briggs. In this application he affirmed the existence of the trust estate which he had created for such children by alleging that:
"This applicant would show that on June 26, 1958, a trust indenture involving income from land in Oklahoma was signed and established, entitling said minors to certain incomes from property located in Tillman County, Oklahoma, and that this Applicant is the Trustee under the terms of said trust indenture and that it is necessary, advisable and advantageous to the estates of said minor children for a guardian to be appointed to receive and administer in accordance with the law the income received from said trust instrument of record; that a full accounting may be made to the court and expenditures made only upon authorized orders signed by the Judge of the probate court, all of which reasons constitute a necessity that a guardian be appointed for the Estates of Betty Katherine Briggs and Robert Lafayette Briggs."
*109 On the 23rd day of February 1959, respondent was appointed guardian as prayed for and duly qualified as such. On April 20, 1959 he filed an inventory and appraisement listing the following under the heading, "Personal Property":
"Income from trust: Billy Frank Briggs, Sr., by trust indenture has placed all of the North one-half (N½) of the Northwest quarter (NW¼) of Section No. Twenty-two (22) T4S, R16W, I.M. in Tillman County, Oklahoma, together with all improvements thereon and appurtenances thereunto, in trust for the benefit of his minor children, to-wit: Alice Anell Briggs, Betty Katherine Briggs and Robert Lafayette Briggs. This trust shall remain in effect until Robert Lafayette Briggs reaches the age of 21 years."
Petitioners urge that respondent's attack upon the trust indenture necessarily must fail because of the doctrine of judicial estoppel which was recently restated by this Court in Long v. Knox, 155 Tex. 581, 291 S.W.2d 292. This argument is persuasive but there is another principle of law which is conclusive of the case when applied to the facts before us. One who stands in a fiduciary relationship to another, such as a trustee or a guardian, cannot by legal action destroy the trust or subject matter thereof so long as such fiduciary relationship remains in existence. On the date the motion for summary judgment was heard and judgment rendered, the respondent was the guardian of the estates of his two minor children who were also the beneficiaries of the trust which he had created. The acceptance of the contentions put forward by him at that time would have resulted in the destruction of the trust estate.
In Kidd v. Prince, Tex.Com.App., 215 S.W. 844, 845, holding approved by the Supreme Court, it was said:
"It is a well-recognized doctrine at common law that a guardian cannot maintain an action against his ward pending the guardianship. Our investigation of this question shows that the authorities are uniformly in accord. In most of the decided cases the controversy appears to have arisen during the guardianship. In such cases it is clear that an action should not be maintainable on behalf of the guardian to establish a claim against his ward in any other court than that in which the guardianship is pending. But the incapacity of the guardian to maintain an action against his ward does not rest alone upon the ground that the guardianship court has exclusive jurisdiction of the subject-matter of the suit. While the cases are not numerous, we find the same principle applied to suits where the cause of action arose prior to the guardianship, in suits both for the establishment of claims and the recovery of property. The incapacity to sue arises from the nature of the relationship of the parties."
See also, Iturri v. Whitehead, 22 Tex. 556, wherein it was said by way of dicta, that, "It would seem on general principles that, after it was made apparent to the court that the plaintiff had been appointed guardian of the defendants, the suit ought to have been dismissed"; Sandoval v. Rosser, 86 Tex. 682, 26 S.W. 933; 25 Am.Jur. 97, Guardian and Ward § 157; 39 C.J.S. Guardian and Ward § 169, p. 297.
Provided the ward's legal rights are duly protected by the appointment of a guardian ad litem or the taking of some similar measure, it may be that in certain species of equitable suits, as distinguished from legal actions, a person who also occupies the position of guardian might be permitted to individually maintain a position adverse to that of his ward, but there exists in the present case no sufficient reason why the general rule should not be applied. As above pointed out, the respondent in the guardianship proceedings asserted the validity of the trust. This was given as the basic reason for his appointment *110 as guardian. In the present suit brought by the beneficiaries of the trust and in accordance with the provisions thereof, he seeks to avoid such trust and thus defeat petitioners' suit.
It is no answer to petitioners' insistence that the trust be carried out to say that respondent was not appointed the guardian of his oldest child who was apparently over fourteen years of age. The trust must stand or fall as a unit. Its terms are not susceptible to a construction whereby it would be invalid as to certain beneficiaries and valid as to others. Nor, is it any answer to petitioners' contention in this regard, to say, as suggested by respondent, that the court could accept the view that respondent was unauthorized to maintain the guardianship proceedings because of a conflict of interest, and hence such proceedings would constitute no bar to his attacking the trust in the present proceedings.
At the time this suit was heard in the district court upon the motion for summary judgment, there had been no order of vacation or dismissal entered in the guardianship proceedings in Randall County. On the contrary, the order appointing respondent as guardian was subsisting and the district court was neither at liberty to ignore such order nor to treat the same as ineffective to establish the relationship of guardian and ward between him and his minor children.
As heretofore pointed out, this is not a suit in which respondent and Mozelle Briggs are the only parties involved. It is a suit for the enforcement of a trust brought on behalf of the beneficiaries thereof. Mozelle Briggs' right to sue in this case stems from the provisions of the trust indenture which authorizes her to take certain actions in the event of default by the respondent. The real parties at interest are the beneficiaries of the trust estate created by respondent and the case must be viewed from that standpoint. Because of his position as guardian, respondnt is precluded from attacking the trust. Upon this ground, if for no other, the trial court's summary judgment was proper.
The judgment of the Court of Civil Appeals is reversed. The judgment of the trial court is affirmed.
NOTES
[1] Mozelle Briggs is now and was at the time this suit was filed, the wife of W. S. Eakens. She will, however, be referred to as Mrs. Briggs in this opinion.
[2] The greater part of the City of Amarillo is situated in Potter County. A portion thereof, however, is situated in Randall County. The application alleged that the minors resided in Randall County.
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IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
MARILYN C. POWELL, Executrix
of the Estate of ALBERT B. COX,
Deceased; and NORMA C. COOK,
)
)
)
FILED
both Individually and as next ) February 17, 2000
friend and for the benefit of Albert )
B. Cox, Jr., ) Cecil Crowson, Jr.
) Appellate Court Clerk
)
Plaintiffs/Appellees, ) Shelby Chancery No. 100766-3 R.D.
)
VS. ) Appeal No. W1998-00001-COA-R3-CV
)
BRENDA C. MOORE, )
)
)
Defendant/Appellant. )
APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY
AT MEMPHIS, TENNESSEE
THE HONORABLE D. J. ALISSANDRATOS, CHANCELLOR
TIMOTHY A. RYAN, III
Memphis, Tennessee
Attorney for Appellant
ALLAN B. THORP
THORP AND FONES, PLC
Memphis, Tennessee
Attorneys for Appellees
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
DAVID R. FARMER, J.
HOLLY KIRBY LILLARD, J.
Brenda Moore has appealed the trial court’s finding that she used undue influence
and breached a fiduciary duty owed to her father, now deceased. For the following
reasons, the judgment of the trial court is affirmed.
Facts and Procedural History
1
This appeal arises from a suit filed by Marilyn Powell, as executrix of the deceased’s
estate, to recover money allegedly misappropriated by Brenda Moore. Powell alleged that
Moore had breached a fiduciary duty and exerted undue influence on the deceased, Albert
Cox, Sr. (Cox), and obtained funds that were intended to be used for the care of the
deceased’s son, Albert Cox, Jr. (“Buddy”). The trial court found for Powell, creating a
resulting trust in favor of Buddy. Moore appeals.
Cox executed a will on March 16, 1988, providing that upon his death, all the assets
in his estate were to be put in a trust for the care of Buddy. Buddy suffers from Down’s
Syndrome and is incapable of handling his own financial affairs. Brenda Moore was
designated as the trustee of the trust. Upon Buddy’s death, any assets were to be divided
equally between Cox’s remaining children: Powell, Moore, and Norma Cook.1 At this time,
Cox also signed a general and durable power of attorney in favor of Moore.
Cox died on August 24, 1991. The behavior of Moore prior to and immediately
following Cox’s death forms the basis for this appeal. During this period, Cox was in failing
health and hospitalized several times. In May 1991, Moore took Cox to the First
Tennessee Bank (FTB) to open a joint safe deposit box. Subsequently, Cox’s financial
papers were stored in the safe deposit box. In July 1991, Cox was sent a check in the
amount of ninety-six thousand dollars from the estate of his sister. Cox was hospitalized
at this time and sent Powell to retrieve the check, with the intent that it be deposited in an
account at National Bank of Commerce (NBC). Cox was too weak to sign the signature
cards required to open an account at NBC. Instead, Powell wrote the account number of
Cox’s First Tennessee Bank (FTB) account on the back of the check. ( Powell then turned
the check over to Moore.
Moore deposited the check into Cox’s FTB account. Shortly thereafter, Moore
withdrew ninety-thousand dollars from the FTB account. Moore used these funds to
purchase a certificate of deposit at NBC. The certificate of deposit was noted as a joint
account with right of survivorship, in the names of Cox and Moore. The effect of this
transaction was to prevent the money from becoming part of Cox’s estate upon his death.
Instead, the money passed directly to Moore pursuant to the right of survivorship and did
not become subject to the testamentary trust.
1
Norma Cook was later added as an additional party plaintiff in the suit below. Cook serves as non-
cus todia l co-g uard ian of Bud dy.
2
In addition to the NBC certificate of deposit, several other savings accounts were
opened at FTB in the joint names of Cox and Moore, with a right of survivorship. The
record is unclear as to whether these accounts were set up by Moore using her power of
attorney, or by Cox under the advisement of Moore. Four of these accounts, totaling over
seventy-two thousand dollars, were paid out directly to Moore upon Cox’s death.
Following Cox’s death, Moore withdrew the funds from both FTB and NBC, and
refused to turn them over to the estate. Moore claimed that Cox had intended for her to
receive the funds and that he did not intend for the money to be part of his estate.
Thereafter, Powell, as executrix of Cox’s estate, filed suit in the Shelby County Chancery
Court, alleging that Moore exerted undue influence and violated her fiduciary duty to Cox.
A hearing on the matter was held on August 3, 1998.
At the hearing, several witnesses testified that Cox had intended for all his assets
to be used for Buddy’s care. In addition, Powell testified that she had witnessed Moore
berating Cox and threatening to put him in a nursing home if he disagreed with the way his
finances were handled. According to Powell, Cox expressly stated that he did not want to
invest in any more certificates of deposit.
Moore testified that she was Buddy’s custodial co-guardian and looked after his
personal and financial needs. Moore also testified that she handled Cox’s financial matters
under his direction. Moore claimed that Cox had instructed her to deposit the inheritance
check into the FTB account and to purchase the certificate of deposit at NBC. In addition,
Moore claimed that the joint savings accounts with right of survivorship at FTB were set up
pursuant to Cox’s wishes.
The court found that Moore had been in a position of power with Cox and that she
had used that power to unduly influence him. The court further found that a resulting trust
in favor of Buddy was created because Moore had breached her fiduciary duty. The
resulting trust contained the funds from both the NBC certificate of deposit and the FTB
accounts. Moore was appointed as trustee of the resulting trust. Moore appeals.
On appeal, Moore asserts that the trial court erred in holding that the joint accounts
with right of survivorship at FTB should be part of the resulting trust. Moore does not
dispute the resulting trust as it pertains to the NBC certificate of deposit.
3
Analysis
The standard of review for a non-jury case is de novo upon the record. Wright v. City
of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness
as to the trial court’s factual findings, unless the “preponderance of the evidence is
otherwise.” TENN . R. APP . P. Rule 13(d). For issues of law, the standard of review is de
novo, with no presumption of correctness. Ridings v. Ralph M. Parsons Co., 914 S.W.2d
79, 80 (Tenn. 1996).
The sole issue on appeal is whether or not the trial court erred by including the FTB
joint accounts with right of survivorship in the resulting trust. Moore argues that the
accounts became her sole property upon Cox’s death, and therefore should be subject to
neither the terms of Cox’s will nor the resulting trust set up by the trial court. We do not
agree. The decision of the trial court is affirmed for the following reasons.
Moore relies on statutory and case law to support her position that the joint accounts
are her sole property. In particular, Moore cites the following section of Tennessee Code
Annotated:
“(1) JOINT TENANTS WITH RIGHT OF SURVIVORSHIP. Such designation
shall mean that the deposit account or certificate of deposit shall become the
property of each owner as joint tenants, and that the survivor is entitled to all
moneys in the account or represented by the certificate even if the first
person to die had a will specifically directing disposition to someone else.
The bank may release all moneys in the account or represented by the
certificate to, or honor checks or orders drawn by, or withdrawal requests
from, the survivor upon the death of any joint tenant...” Tenn. Code. Ann. §
45-2-703(c)-(f)(1) (emphasis added)
While this statute clearly supports Moore’s position, she fails to address several important
caveats that affect its application.
The Tennessee Supreme Court addressed the effect of joint accounts in Lowry v.
Lowry. Lowry v, Lowry, 541 S.W.2d 128 (Tenn. 1976). Although Lowry was decided prior
to the enactment of Tenn. Code Ann. § 45-2-703, this court has found that the principles
of Lowry are still applicable in certain situations. See In Re Estate of Holmes, No. 02A01-
9707-PB-00158H, 1998 WL 134333 at *2 (Tenn. Ct. App. March 26, 1998); see also In re
Estate of Nichols, 856 S.W.2d 397 at 400 (Tenn. 1993); see also Pawlakos v. Pawlakos,
No. 01A01-9708-CH-00443, 1998 WL 83029 at *3 (Tenn. Ct. App. Dec. 2, 1998) (in order
to attack validity of joint account with right of survivorship, challenging party must show
fraud, undue influence, or lack of capacity pursuant to Tenn. Code Ann. § 45-2-703).
4
Moore relies on the following language in Lowry, “Absent clear and convincing
evidence of contrary intent expressed at the time of its execution, we hold that a bank
signature card containing an agreement in clear and unambiguous language that a joint
account with rights of survivorship is intended, creates a joint tenancy enforceable
according to its terms; and upon the death of one of the joint tenants, the proceeds pass
to the survivor.” Lowry at 132. This language was basically codified with the passage of
Tenn. Code Ann. § 45-2-703.2 Under the statute, the signature card provides conclusive
evidence of the parties’ intent.
However, Moore fails to address additional language providing that joint accounts
are “...generally immune from attack in the absence of fraud, misrepresentation, duress,
undue influence, mutual mistake, and incapacity.” Lowry at 133. (emphasis added)
Therefore, while under the general rule as presented in Lowry and Tenn. Code Ann. § 45-
2-703, Moore would be entitled to the accounts, the circumstances of this case take her
outside the general rule. Where there is some evidence of fraud or undue influence, as
shown in this case, there is no conclusive evidence as to the validity of the joint account
and a party can challenge the validity of the transfer. In order to prevail, the challenging
party must show fraud, undue influence, or lack of capacity rendering the transaction
invalid. Pawlakos v. Pawlakos, No. 01A01-9708-CH-00443, 1998 WL 83029 (Tenn. Ct.
App. Dec. 2, 1998) Accordingly, we now address the trial court’s finding that Moore exerted
undue influence on Cox.
Undue Influence
In the proceedings below, the court found that Moore breached a fiduciary duty and
exerted undue influence on Cox, and that Cox did not intend to create the accounts for
Moore’s benefit. In support of its finding, the court pointed to specific facts regarding
Moore’s behavior. In particular, the court found that Moore had entered into a fiduciary
relationship with Cox when she assumed his power of attorney. The court further stated
that Moore had breached the fiduciary duty by overreaching and exerting undue influence
by withholding information from Cox and threatening him with confinement in a nursing
home.
A fiduciary or confidential relationship is one where there is both a dominant party
2
In pertinent part, § 45-2-702(e)1 provides:
“(1) A designation of "joint tenan ts with rig ht of s urvivo rship ," or su bsta ntially s imila r lang uag e, sh all
be conclusive evidence in any action or proceeding of the intentions of all named that title vests in the survivor”
(emphasis added)
5
and a weaker party and the dominant party exercises some control over the weaker party.
Iacometti v. Frassinelli, 494 S.W.2d 496 (Tenn. Ct. App. 1973). A presumption of undue
influence arises when the dominant party in a fiduciary relationship receives a gift or some
other benefit from the other party. Richmond v. Christian, 555 S.W.2d 105, 107 (Tenn.
1997). The presumption of undue influence renders the transaction invalid unless there
is clear and convincing evidence of the fairness of the transaction. Matlock v. Simpson, 902
S.W.2d 384, 386 (Tenn. 1997).
Moore’s actions trigger the undue influence presumption. She was the dominant
party in a fiduciary relationship with Cox as signified by her assumption of his power of
attorney. The creation of the joint accounts with right of survivorship bestowed a gift or
benefit upon Moore, the dominant party. Once the presumption of undue influence was
triggered, the burden shifted to Moore to rebut the presumption. Moore failed to meet this
burden regarding the creation of the joint accounts with right of survivorship at FTB. Moore
offered only her own testimony that Cox wanted her instead of Buddy to receive the
money. Indeed, all other testimony indicated that Cox wished all his assets to go to Buddy
upon his death. The trial court did not err in finding that Moore exerted undue influence
upon Cox. Accordingly, the FTB joint accounts are invalid and the funds are subject to the
resulting trust created by the court below.
Conclusion
Based upon the foregoing, the judgment of the trial court is affirmed. Costs of
the appeal are assessed to the Appellant, Brenda Moore, for which execution may
issue if necessary.
HIGHERS, J.
6
CONCUR:
FARMER, J.
LILLARD, J.
7
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888 F.2d 1383
U.S.v.Medical Office of Burks (Charles, Dr.), Burks (Charles J.)
NO. 89-3298
United States Court of Appeals,Third Circuit.
OCT 24, 1989
Appeal From: W.D.Pa.,
Diamond, J.
1
AFFIRMED.
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154 F.3d 417
U.S.v.Bennett*
NO. 97-20593
United States Court of Appeals,Fifth Circuit.
July 27, 1998
Appeal From: S.D.Tex. ,No.H96CR1933
1
Affirmed.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34-2
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218 Wis.2d 121 (1998)
579 N.W.2d 815
Ahmad Abu NAAJ, Plaintiff-Appellant,
v.
AETNA INSURANCE COMPANY, Defendant-Respondent,
John DOE, Defendant,
Adel KHEIRICH, a/k/a Kheirich, Defendant-Third-Party Plaintiff-Respondent,
Mohsin SAID, Ross Financial Services and Employers Reinsurance Corporation, Third-Party Defendants.
No. 96-3640.
Court of Appeals of Wisconsin.
Submitted on briefs January 6, 1998.
Decided March 31, 1998.
*123 On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Harold D. Block of Law Office of Harold B. Block of Milwaukee.
On behalf of the defendant-third-party plaintiff-respondent, the cause was submitted on the brief of Joseph A. McCarthy of Borgelt, Powell, Peterson & Frauen, S.C. of Milwaukee.
Before Wedemeyer, P.J., Schudson and Curley, JJ.
WEDEMEYER, P.J.
Ahmad Abu Naaj appeals from a summary judgment dismissing Naaj's complaint, which alleged safe place violations, against Adel Kheirieh and Aetna Insurance Company. Naaj claims the trial court erred in granting Kheirieh's motion for summary judgment. Because summary judgment was properly granted, we affirm.
I. BACKGROUND
On June 12, 1994, Naaj was working at his place of employment, Post Foods, which is a grocery/liquor store. The store leases space in the building located at 3455 Martin Luther King Drive. Kheirieh was the owner of the building. On the date of the incident, a man entered Post Foods and attempted to take a bottle of wine. When Naaj confronted the man, he struck Naaj with the bottle, causing serious injuries.
Naaj filed a lawsuit against Kheirieh alleging that, as the owner of the building, Kheirieh has a duty and an obligation to ensure that the building was a safe place to work, pursuant to the safe place statute, § 101.11, STATS. The complaint alleged that Kheirieh *124 knew or should have known that the building was located in a high-crime area, which required Kheirieh to equip the building with "security systems, such as silent alarms and surveillance cameras." There is also an allegation that an alarm system that was in place was deactivated in order to perform some remodeling to the building.
Kheirieh filed a motion seeking summary judgment on the basis that, as the owner of the building used as a place of employment, his statutory duties were limited to maintaining the building free of structural defects and unsafe conditions associated with the structure. See § 101.11(1), STATS. The motion proffered that because Naaj's injuries were not related to any structural defect or unsafe condition associated with the structure, summary judgment was appropriate.
The trial court ruled in pertinent part:
[T]he duty to maintain this security system is a duty associated with conditions of employment and maintaining a safe employment, which is the duty of the employer and not the duty of an owner of a place of employment.
. . . .
. . . there is no case that says the owner of the building is responsible to install and maintain some sort of a security alarm system for the conduct of a business which is operated by a separate legal entity on those premises . . . .
The trial court granted Kheirieh's motion for summary judgment and dismissed the case. Naaj now appeals.
II. DISCUSSION
Naaj claims the trial court erred in granting summary judgment because: (1) the law is unclear; and (2) *125 the trial court applied the wrong legal standard; instead of determining whether Kheirieh had a duty to maintain the alarm system, the trial court should have considered whether Kheirieh made the premises as safe as its nature permitted. We are not persuaded.
The procedure for reviewing a trial court's decision on summary judgment has been set forth in numerous cases and will not be repeated here. See Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473, 476-77 (1980). Our review is de novo. See id.
[1]
The statute at issue here is the safe place statute, § 101.11, STATS. It states in pertinent part:
(1) Every employer shall furnish employment which shall be safe for the employes therein and shall furnish a place of employment which shall be safe for employes therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employes and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.
(2)(a) No employer shall require, permit or suffer any employe to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide and use safety devices and safeguards, or fail to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and no such employer shall fail or neglect to do *126 every other thing reasonably necessary to protect the life, health, safety or welfare of such employes and frequenters; and no employer or owner, or other person shall hereafter construct or occupy or maintain any place of employment, or public building, that is not safe, nor prepare plans which shall fail to provide for making the same safe.
As noted by the trial court, the statute creates three different categories of persons under the safe place law: employers, owners of places of employment, and owners of public buildings. This distinction is supported by the language of the statute itself as well as case law interpreting it. See generally Leitner v. Milwaukee County, 94 Wis. 2d 186, 287 N.W.2d 803 (1980); Jaeger v. Evangelical Lutheran Holy Ghost Congregation, 219 Wis. 209, 262 N.W. 585 (1935).
There is a plain distinction between the obligation of an employer and the obligation of the owner of a building. The employer's duty to furnish safe employment includes the furnishing of a safe place of employment, and the employer has a broad duty not only with respect to the structure, which constitutes the place of employment, but with reference to the devices and other property installed or placed in such place.
Jaeger, 219 Wis. at 211-12, 262 N.W. at 586.
[2]
The obligation of an owner of a public building to furnish a safe place under the safe place statute is limited to structural or physical defects or hazards. See Williams v. International Oil Co., 267 Wis. 227, 229, 64 N.W.2d 817, 818 (1954). "Some confusion still arises because the duties of owners of public buildings and places of employment are covered in the same section of the statute." Id. The obligation of an owner of a public *127 building to furnish a safe place under the safe place statute is limited to structural defects. See id. "The obligation of an employer to furnish a safe place of employment is a broader duty." Id. An employer's obligation includes providing a safe place of employment and safe employment. See id.
The decisive question in this case, therefore, is whether the allegations regarding the alarm system and safety devices fall into the category of "safe place of employment" or "safe employment."[1]
If it relates to a "safe place of employment," both the owner and employer are responsible. If it relates only to "safe employment," however, then only the employer is responsible for such condition. Naaj argues that because Kheirieh controlled the alarm system and, because Kheirieh deactivated the alarm system during remodeling, the failure to have the alarm system working on the date of the incident falls on Kheirieh. Kheirieh argues that an alarm system does not relate to a safe place of employment. Stated differently, it is not related to the structural safety of the building or the physical condition of the building. Rather, he contends maintaining an alarm system in a crime-laden neighborhood falls into the category of ensuring employees' safe employment. That is, it relates to conditions of employment. As a result, he contends that this duty rests with the employer, not with the owner.
[3]
In considering this question, our supreme court concluded that an owner's duty is satisfied in making sure a building is safe if the building "is composed of proper materials and is structurally safe, and that the *128 statute does not apply to temporary conditions having no relation to the structure of the building or the materials of which it is composed." See Holcomb v. Szymczyk, 186 Wis. 99, 104, 202 N.W. 188, 191 (1925).
[4, 5]
The allegation in the instant case is that Kheirieh violated the safe place statute because, as the owner, he failed to maintain the alarm system. We conclude that an alarm system is not part of the structural composition of the building. The alarm system does not relate to a safe place of employment. Usually safety devices that protect employees from criminal activity are not part of the structure of the building. Whatever danger could have been avoided because of a functioning alarm system, such danger was not due to any unsoundness of the structure. Providing a safety device which might make the store safer for Naaj was not the duty of Kheirieh as owner of the building, but rather the duty of the employer. See Asen v. Jos. Schlitz Brewing Co., 11 Wis. 2d 594, 603, 106 N.W.2d 269, 274 (1960). Protection of employees from injury during an attempted crime by a third-party is part of the employer's duty to provide safe employment. See Leitner, 94 Wis. 2d at 193-96, 287 N.W.2d at 806-07.
Accordingly, the trial court was correct to conclude that, as a matter of law, Kheirieh, in his capacity as owner, could not be held responsible for a safe place violation for failure to maintain an alarm system. Contrary to Naaj's contentions, the law is not unclear in this area and the trial court applied the correct legal standard.
By the Court.Judgment affirmed.
*129 SCHUDSON, J. (dissenting).
Like the parties, the trial court, and the majority, I accept for purposes of the summary judgment analysis of this case, that Kheirieh ordered remodeling of the store and, in the process, deactivated or authorized the deactivation of the alarm system.[1] Given that factual premise, I disagree with the majority's conclusion.
Although Naaj's claims seem tenuous and might ultimately prove unconvincing to a jury, we must remember that the trial court dismissed his action at the summary judgment stage. The majority now upholds that dismissal based on two erroneous legal conclusions constructed on two cornerstones: 1) the distinction between the structural safety of a building and the employment safety of an employee in the building; and 2) the distinction between the safe place statute liability of an owner and of an employer. Both legal distinctions exist, but both crumble in this case.
*130 The majority relies on Holcomb v. Szymczyk, 186 Wis. 99, 202 N.W. 188 (1925), for the proposition that "a building is safe if the building `is composed of proper materials and is structurally safe, and that the statute does not apply to temporary conditions having no relation to the structure of the building or the materials of which it is composed.'" Majority op. at 127-28 (quoting. Holcomb, 186 Wis. at 104, 202 N.W. at 191). Holcomb, however, dealt with safe place statute liability in the context of a landlord/tenant relationship which, the court explained, had no applicability to an employer/employee relationship:
[T]he relation of landlord and tenant in fact and in law is vastly different than the relation of employer and employ[ee]. The duties of a master to his servant do not remotely resemble the duties of a landlord to his tenant. The relationships are not even analogous and are derived from different sources in the law. . . .
Holcomb, 186 Wis. at 102, 202 N.W. at 190. The distinction the majority attempts to drawa distinction that, as a matter of law, would absolutely separate alarm systems and related safety devices from the structure of a buildingfurther breaks down when we examine Jaeger v. Evangelical Lutheran Holy Ghost Congregation, 219 Wis. 209, 262 N.W. 585 (1935), another case on which the majority attempts to rely. See Majority op. at 126.
Jaeger involved the safe place statute claim of a woman who was injured by chairs falling from a "pile" of folding chairs as she was setting them up in a church. Id. at 210, 262 N.W. at 585. Concluding that the employer, not the owner, had safe place statute responsibility, the court explained:
*131 The permitting of temporary conditions wholly dissociated from the structure does not constitute a violation of the safe-place statute by the owner of a building, although it may, and undoubtedly does, constitute a violation if permitted by an employer.
Id. at 212, 262 N.W. at 586. The folding chairs, of course, were not part of the church building. An electronic alarm system, however, might not be "wholly dissociated from the structure."
Still, as the majority explains, Naaj sued Kheirieh as an owner, not an employer. Therefore, under Jaeger, would not "[t]he permitting of [the] temporary conditions"the deactivation of the security systemresult in Kheirieh's safe place liability only if he had been sued as an employer? Answering that question, the majority inexplicably ignores Prehn v. Niss & Sons, Inc., 233 Wis. 155, 288 N.W. 736 (1939), in which the supreme court declared:
In previous cases, this court has stated without deciding the question of whether one who is owner of a building and also is maintaining it as a place of employment is liable only for structural defects as owner or sustains the larger liability of an employer. The case at bar squarely presents this question and, having given it full consideration, we hold that a person in the situation above outlined sustains not merely the liability of an owner under the safe-place statute but also the larger liability of one conducting a place of employment. Hence, if there is a failure to comply with the requirements of the safe place statute, the mere fact that the injury is caused by a defect other than a structural defect would not of itself be sufficient to excuse from liability one who is both employer and owner.
*132 Id. at 157, 288 N.W. at 737 (citations omitted; emphases added).
The instant case also "squarely presents this question." Naaj's complaint alleged that Kheirieh was the "owner of the building." Kheirieh's answer admitted not only that he was the owner of the building, but also that at the time of Naaj's injury, he was the sole owner of the corporation that owned Post Food & Liquor and employed Naaj. In his affidavit, Kheirieh stated, "I'm the same owner for the store and the building," and acknowledged his personal involvement in the purchasing, remodeling, and repairing of the building and store. See Williams v. International Oil Co., 267 Wis. 227, 231, 64 N.W.2d 817, 819 (1953), and Burmeister v. Damrow, 273 Wis. 568, 580-82, 79 N.W.2d 87, 94-95 (1956) (discussing owners' safe place statute liability and its relation to their knowledge of temporary conditions).
Thus, in this case, we are dealing with a security system that, at the very least, involves a building's electrical components that might not be "wholly dissociated from the structure," and we are dealing with an owner who also is an employer. Consistent with the supreme court's holding in Prehn, the safe place statute simply does not allow an owner/employer to carry out owner/employer authority for installation or activation of an alarm system, and then shed employer responsibility for its deactivation.
Therefore, I conclude that the trial court erred in granting summary judgment and, accordingly, I respectfully dissent.
NOTES
[1] It is undisputed that Kheirieh was sued as the owner, and there is no allegation that he is also being sued as the employer.
[1] The record is unclear. It includes what appears to be only a portion of Kheirieh's affidavit. That portion has no discussion of any remodeling or deactivation of the alarm system. The record also includes what appears to be a repair order from a security system company, dated June 15, 1994, for work on the VCR, cameras, and wiring at Post Food & Liquor.
The complaint offers two different allegations regarding Kheirieh's responsibility for any alarm deactivation. First, it states that, "as owner of the building," he "knew or should have known of the existing conditions of inadequate security devices and that existing security devices had been disabled, removed or moved to a locked office. . . ." Later, it states that, "as owner and lessor of said property," Kheirieh "had caused and consented to the premises being in an unsafe condition because security systems, such as silent alarms and surveillance cameras . . . had been rendered ineffective by either being dismantled, deactivated, ignored, removed from the work area, or were lacking."
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2015 IL App (1st) 132070
FIRST DIVISION
January 12, 2015
No. 1-13-2070
BANKUNITED, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
DINO S. VELCICH, ) No. 11 CH 28298
)
Defendant-Appellant )
)
(Maria Nascimento, Unknown Owners, and )
Nonrecord Claimants, ) Honorable
) Darryl B. Simko,
Defendants). ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, BankUnited brought this mortgage foreclosure action against defendant, Dino
Velcich, who, along with codefendant Maria Nascimento, 1 executed a promissory note with
plaintiff secured by a mortgage on property commonly known as 2707 West Medill Avenue, in
Chicago, Illinois. The circuit court entered an order of default and a judgment of foreclosure
and sale. After the sale of the property, the circuit court entered an order confirming the sale.
Within 30 days of the entry of the order of the confirmation of the sale, defendant appeared and
filed an emergency motion to quash service, which the circuit court denied.
1
Nascimento did not contest plaintiff's suit and is not a party to this appeal.
No. 1-13-2070
¶2 Defendant raises two issues for our review: (1) whether the affidavits plaintiff relied upon
to effectuate service of process upon him were based on the affiant's personal knowledge and
sufficiently set forth the particular actions taken to serve him to satisfy section 2-206 of the
Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-206 (West 2010)) and local rule 7.3
(Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)); and (2) whether plaintiff's affidavit of service by
publication speaks the truth and complies with section 2-206 of the Code (735 ILCS 5/2-206
(West 2010)) 2 where plaintiff stated defendant's residence was unknown despite a diligent
inquiry. We hold plaintiff's affidavits were based on the affiant's personal knowledge and set
forth the specific actions taken to determine defendant's whereabouts to justify service by
publication in accordance with section 2-206(a) of the Code and local rule 7.3. 735 ILCS
5/2-206(a) (West 2010); Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996). We also hold that plaintiff did
not improperly fail to state defendant's residence in its affidavit for service by publication
because there is no evidence in the record that plaintiff knew where defendant resided.
¶3 JURISDICTION
¶4 On May 24, 2013, the circuit court denied defendant's motion to quash service. On June
19, 2013, defendant timely appealed. Accordingly, this court has jurisdiction pursuant to
Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered
below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).
¶5 BACKGROUND
¶6 Defendant and codefendant Maria Nascimento executed a promissory note with plaintiff in
the amount of $535,500. The note was secured by a mortgage on the property located at the
2
Under this second issue, defendant does not allege plaintiff violated local rule 7.3.
Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996).
-2-
No. 1-13-2070
common address of 2707 West Medill Avenue, in Chicago, Illinois. On August 10, 2011,
plaintiff filed a complaint to foreclose the mortgage. Plaintiff hired a private detective agency,
Firefly Legal, Inc., to locate and serve defendant.
¶7 The record contains multiple affidavits from three Firefly Legal process servers describing
their attempts to serve defendant. The process servers first attempted to serve defendant in
August of 2011 at five different addresses, all located in Chicago. All of the affidavits are signed
by the respective affiant and notarized. They also all state that "after due search, careful inquiry
and diligent attempts *** I have been unable to effect process" before stating a reason why service
was unsuccessful.
¶8 In an affidavit notarized on August 26, 2011, process server Beth McMaster attested that
on August 8, 2011, at 8:10 p.m., she attempted service upon defendant at 4218 West Thorndale.
As a reason for nonservice, McMaster stated that she "spoke to the defendant's niece who stated
that the defendant will be out of town for the next month or two and that she was house-sitting
while her aunt was away." The niece gave McMaster a phone number for defendant. The
registration for the phone indicated defendant's address as 5701 Patterson Avenue. In a different,
yet similar affidavit, McMaster attested that she attempted to serve codefendant Maria Nascimento
at the same address at the same time and similarly stated that she had spoken to defendant's niece,
who told her that she was house-sitting for her aunt.
¶9 The record contains three affidavits from process server Steven Stosur regarding his
attempts to serve defendant in August of 2011. In an affidavit notarized on August 19, 2011,
Stosur attested that he attempted to serve defendant at 4065 North Elston Avenue at 1:58 p.m. on
August 14, 2011, and at 11:17 a.m. on August 16, 2011. Stosur attested that the property was a
law office and that an administrative assistant identified defendant as an owner of the property who
-3-
No. 1-13-2070
did not live there. The administrative assistant indicated to Stosur that defendant ran a business at
the address, but that it had been shut down in 2009.
¶ 10 In an affidavit notarized on August 15, 2011, Stosur attested that he attempted to serve
defendant at 2707 West Medill Avenue at 3.55 p.m. on August 14, 2011. Stosur stated that he
was unable to serve defendant because a resident "said the defendant is the landlord who does not
live here and comes by to pick up the rent. She does not know where defendant lives."
Defendant was not listed on the mailbox or door bells
¶ 11 Stosur attested in an affidavit notarized on August 15, 2011, that he attempted service on
defendant on August 14, 2011, at 7:09 p.m. at 5701 West Patterson Avenue. Stosur stated that he
spoke to a resident of the second floor of the two-flat building. The resident had not heard of
defendant. The first floor of the building was vacant. Defendant's name was not listed on the
mail box or door bell.
¶ 12 Process server Nicholas Baker attested in an affidavit notarized on August 24, 2011, that he
attempted service on defendant on August 23, 2011 at 1 p.m. at 1515 West Chestnut Street. The
current resident informed Baker that defendant was "unknown at this address."
¶ 13 Due to plaintiff's inability to serve defendant in August of 2011, plaintiff sought and
obtained a first alias mortgage foreclosure summons on May 10, 2012. Plaintiff filed two
affidavits from process server Steven Stosur showing his attempts at service on defendant in May
and June of 2012 at two Chicago addresses: 2707 West Medill Avenue and 4218 W. Thorndale
Avenue. In an affidavit notarized on May 30, 2012, Stosur attested that he attempted service
upon defendant at 7:40 p.m. at 2707 West Medill Avenue. Stosur attested that he again spoke to a
"Mrs. Williamson," who informed him that defendant does not live at the property but is the
landlord and visits the property to collect rent.
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¶ 14 In an affidavit notarized on June 13, 2012, Stosur attested that he attempted service upon
defendant seven times between June 2, 2012, and June 8, 2012, at 4218 West Thorndale Avenue.
Specifically, Stosur attested he attempted service on the following dates and times: 4:48p.m., on
June 2; 2:01 p.m. on June 4; 10:21 a.m. on June 5; and 9:46 p.m. on June 6. Stosur stated that he
made three additional attempts, at 4:27 p.m., 4:28 p.m., and 6:50 p.m. respectively, on June 8,
2012. As a reason for nonservice, Stosur attested:
"Attempts were made at this address; however no contact could be made with the
defendant at this address. There is no evidence that the property is vacant. This is
a townhouse. There are no names on the doorbell or mailbox. I rang the bell and
knocked on the door. I cannot see inside the property. There is no access to the
rear of the property."
¶ 15 On July 16, 2012, plaintiff filed an affidavit for service by publication. In the affidavit,
counsel stated defendant could not be served because he could not be found upon diligent inquiry.
Counsel attached an affidavit from Michelle Bibeau outlining the steps she took to find defendant
utilizing various databases and searches. Bibeau stated defendant's last known address was 2707
West Medill Avenue in Chicago. Bibeau attested that she "made due and diligent search and
inquiry to discover the name and/or alternative current residence of [defendant] searching public
and non-public databases." Bibeau stated that despite her "diligent search and inquiry," she was
unable to determine defendant's current whereabouts or his current residence. She outlined the
various avenues she took in her attempts to locate defendant as follows. An "inquiry of credit
information," which included defendant's social security number, revealed an address of 2707
West Medill Avenue, in Chicago. The following 10 searches, however, were unable to provide a
residence or alternative address for defendant: directory assistance; driver's license; motor vehicle;
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voter registration; Department of State, professional license; "Nationwide Masterfile Death
Search"; federal, state, and county departments of corrections; and property tax records.
Accordingly, notice to defendant by publication occurred on July 18, 25, and August 1, 2012, in
the Chicago Daily Law Bulletin.
¶ 16 On August 23, 2012, plaintiff filed a motion for default judgment of foreclosure and sale.
On September 17, 2012, the circuit court granted plaintiff's motion, and entered a judgment of
foreclosure and sale and an order of default.
¶ 17 After the sale of the property, plaintiff filed a motion for order approving the report of sale
and distribution; confirmation of the sale; order for possession; and an in rem deficiency judgment
on January 31, 2013. On February 28, 2013, the circuit court granted the motion and entered an
order approving the report of sale and distribution, confirming the sale, and an order of possession
and an in rem deficiency judgment.
¶ 18 On March 28, 2013, defendant filed an appearance and emergency motion to quash
service. Relevant here, defendant argued that plaintiff's affidavits of service were improper and
did not support service by publication because they were made in the passive voice, did not
identify the person who attempted service upon defendant, and did not set forth with particularity
the actions plaintiff took to serve him. Defendant also questioned the truth of the affidavits based
on his own affidavits that he attached to his motion. Defendant, in his affidavit, attested that
during the time of service he lived at 4218 West Thorndale and worked at 4065 North Elston. He
alleged his name and his wife's name were listed on the mailbox, and provided a picture of his
mailbox. Defendant further attested that upon due inquiry and due diligence, plaintiff could have
personally served him at either his home on 4218 West Thorndale or at his work at 4065 North
Elston. Defendant also attached an affidavit from Ana Claudia Neves, who stated that she
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No. 1-13-2070
worked at the office at 4065 North Elston Avenue at the time of service. She stated it was her
responsibility to answer the door and attested that, "If anyone would have rang the doorbell ***
during 2011 or 2012 asking for [defendant], I would have either retrieved [defendant] from his
office or told the person asking for [defendant] when he would be back in the office." She denied
that she would have stated that defendant's business had closed. Accordingly, defendant argued
that plaintiff failed to show due inquiry or due diligence in attempting to serve him.
¶ 19 In response, plaintiff argued that it strictly complied with the rules of service and submitted
affidavits showing that upon diligent inquiry, defendant could not be located. Plaintiff disputed
defendant's challenge to its affidavits, arguing that its affidavits specified and named each of the
relevant process servers. Plaintiff disputed the relevance of the photographs defendant attached
to its motion, noting that they were dated March 28, 2013, and not at the time of service.
¶ 20 In reply, defendant reiterated his prior arguments and added that plaintiff's affidavit for
service did not speak the truth because the affidavits failed to state defendant's residence as 4218
West Thorndale.
¶ 21 A hearing occurred on May 24, 2013. 3 On that same day, the circuit court denied
defendant's motion to quash service. The written order stated that "all parties present and the
court being fully advised." On June 19, 2013, defendant timely appealed.
¶ 22 ANALYSIS
¶ 23 Defendant raises two issues for our review. First, he argues that the affidavits plaintiff
relied upon to effectuate service of process by publication upon him were passive voice
recitations and do not set forth the particular actions taken to serve him. Accordingly, he argues
3
As discussed supra, there is no transcript, bystanders report, or agreed statement of
facts in the record for the hearing that occurred on May 24, 2013.
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No. 1-13-2070
plaintiff's affidavits do not support service of process by publication under section 2-206 of the
Code (735 ILCS 5/2-206 (West 2010)) or local rule 7.3 (Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)).
Defendant relies solely on this court's decision in Deutsche Bank National Trust Co. v. Brewer,
2012 IL App (1st) 111213, in making this argument. Second, defendant argues that plaintiff's
affidavit for service by publication does not speak the truth and does not comply with section
2-206 of the Code (735 ILCS 5/2-206 (West 2010)) 4 because, despite its knowledge that
defendant resided at 4218 West Thorndale, plaintiff failed to state defendant resided there in its
affidavit for service by publication. Defendant did not file a reply brief before this court.
¶ 24 In response, plaintiff argues it strictly complied with both section 2-206 of the Code (735
ILCS 5/2-206 (West 2010)) and local rule 7.3 (Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)).
Specifically, plaintiff argues that the affidavits it filed in the circuit court show that the affiants
had personal knowledge of the multiple attempts at both serving defendant, and at trying to
locate him through various methods. According to plaintiff, this court's decision in Brewer,
2012 IL App (1st) 111213, is distinguishable because the affidavits in this case identify the
affiant and attest to the affiant's personal knowledge. Regarding defendant's argument that it
knew of defendant's residence at 4218 West Thorndale, plaintiff argues that defendants'
contention is not supported by the record.
¶ 25 Initially, we must make note of the record before us. The record shows that defendant's
motion to quash service was fully briefed and set for hearing on May 24, 2013. Defendant,
however, failed to include in the record a transcript of the May 24, 2013, proceedings, or a
bystanders report, or agreed statement of facts as required by Illinois Supreme Court Rule 323
4
Under this second issue, defendant does not allege plaintiff violated local rule 7.3.
Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996).
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No. 1-13-2070
(eff. Dec. 13, 2005). The record only contains a one-page written order denying defendant's
motion to quash and noting that "all parties present and the court being fully advised." As such,
nothing further is in the record showing what occurred at the May 24, 2013, hearing. We do
not know if the court received evidence on the issue, whether the parties presented additional
evidence, or what factual findings the circuit court made. It is well established that it is the duty
of the appellant to present a sufficiently complete record to support a claim of error, including
presenting a transcript, or bystander's report, or agreed statement of facts. Midstate Siding &
Window Co. v. Rogers, 204 Ill. 2d 314, 319 (2003). "In the absence of such a record, we will
not speculate as to what errors may have occurred below." Smolinski v. Vojta, 363 Ill. App. 3d
752, 757 (2006). Any doubts as to the incompleteness of the record will be resolved against the
appellant and we must presume that the relevant order had a sufficient legal and factual basis.
Rogers, 204 Ill. 2d at 319; Smolinksi, 363 Ill. App. 3d at 757-58 ("In fact, when the record on
appeal is incomplete, a reviewing court should actually 'indulge in every reasonable presumption
favorable to the judgment from which the appeal is taken, including that the trial court ruled or
acted correctly.' " (quoting People v. Majer, 131 Ill. App. 3d 80, 84 (1985)). Furthermore,
when, as in this case, the court is "fully advised," our presumption of correctness is especially
strong. See Smolinksi, 363 Ill. App. 3d at 758 (noting the circuit court order stated it was
" 'fully advised in the premises' "). Accordingly, we address defendant's claims of error under
this limitation.
¶ 26 Additionally, we must also make note of the standard of review we will utilize to review
defendant's two claims of error. The parties agree that we should review the issues under the
manifest weight of the evidence standard of review. See Brewer, 2012 IL App (1st) 111213,
¶ 17 ("When we review a decision on a motion to quash service of process, we must determine
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whether the trial court's findings of fact are against the manifest weight of the evidence."). We
disagree with the parties, however, because defendant does not ask us to review the circuit
court's factual findings. Defendant does not, for example, argue that the circuit court erred in
resolving a factual dispute, or that his pleadings raised a factual dispute, or ask that the matter
should be remanded for an evidentiary hearing. See State Bank of Lake Zurich v. Thill, 113 Ill.
2d 294, 312 (1986) (noting that issues of fact created by competing affidavits were to be resolved
by the circuit court); Madison Miracle Productions, LLC v. MGM Distribution Co., 2012 IL App
(1st) 112334, ¶ 39 (reviewing factual findings regarding personal jurisdiction under the manifest
weight of the evidence standard, but legal conclusions and the ultimate issue of personal
jurisdiction de novo). Rather, defendant attacks the sufficiency of plaintiff's affidavits.
Specifically, he focuses on the legal issue of whether plaintiff's affidavits were sufficient to
support service by publication. JPMorgan Chase Bank, National Ass'n v. Ivanov, 2014 IL App
(1st) 133553, ¶ 64 (noting de novo review is appropriate when reviewing only documentary
evidence). Accordingly, we review the issue of whether the circuit court obtained personal
jurisdiction over defendant de novo. BAC Home Loans Servicing, LP v. Mitchell, 2014 IL
116311, ¶ 17.
¶ 27 Jurisdiction over both the subject matter and the parties is required to have a valid
judgment. In re Marriage of Verdung, 126 Ill. 2d 542, 547 (1989). "Personal jurisdiction is
established either by effective service of process or by a party's voluntary submission to the
court's jurisdiction." Mitchell, 2014 IL 116311, ¶ 35. A judgment entered without jurisdiction
over the parties is void and may be challenged, directly or collaterally, at any time. Verdung,
126 Ill. 2d at 547.
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No. 1-13-2070
¶ 28 In actions affecting property, the Code allows for service by publication. 735 ILCS
5/2-206 (West 2010). Section 2-206(a) of the Code provides, in relevant part:
"[P]laintiff or his or her attorney shall file *** an affidavit showing that the
defendant resides or has gone out of this State, *** so that process cannot be
served upon him or her, and stating the place of residence of the defendant, if
known, or that upon diligent inquiry his or her place of residence cannot be
ascertained, the clerk shall cause publication to be made in some newspaper
published in the county in which the action is pending." 735 ILCS 5/2-206(a)
(West 2010).
¶ 29 The circuit court of Cook County elaborates on section 2-206 of the Code in its local rule
7.3, which provides:
"Pursuant to [section 2-206(a) of the Code], due inquiry shall be made to
find the defendant(s) prior to service of summons by publication. In mortgage
foreclosure cases, all affidavits of service of summons by publication must be
accompanied by a sworn affidavit by the individual(s) making such 'due inquiry'
setting forth with particularity the action taken to demonstrate an honest and well
directed effort to ascertain the whereabouts of the defendant(s) by inquiry as full
as the circumstances permit prior to placing any service of summons by
publication." Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996).
¶ 30 The statutory prerequisites for service by publication, including due diligence and due
inquiry, must be strictly complied with in order for a court to obtain jurisdiction over a
defendant. Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472, 475-76
(2006). "Our courts have determined that these statutory prerequisites are not intended as pro
- 11 -
No. 1-13-2070
forma or useless phrases requiring mere perfunctory performance but, on the contrary, require an
honest and well-directed effort to ascertain the whereabouts of a defendant by inquiry as full as
circumstances permit." Id. at 476.
¶ 31 Relying solely on this court's decision in Brewer, 2012 IL App (1st) 111213, defendant
first argues that plaintiff's affidavits were improperly made in the passive voice and do not set
forth the particular actions taken to serve him. In Brewer, this court held that a mortgage
foreclosure plaintiff failed to present affidavits based on the affiant's personal knowledge to
satisfy local rule 7.3. Id. ¶¶ 23-26. Specifically, the affidavits from the plaintiff did not
identify the affiant as the person who either attempted service or who searched the various
outlets to determine the defendant's whereabouts. Id. ¶¶ 23-25. The Brewer court further
noted that affidavits made in passive voice imply that someone other than the affiant attempted
service or performed the relevant searches. Id.¶ 22.
¶ 32 After reviewing the affidavits plaintiff used in this case to justify service by publication,
we hold the affidavits at issue here are easily distinguishable from the affidavits found to be
insufficient in Brewer. Unlike in Brewer, the affidavits in this case specifically identified the
affiant by name and outlined the steps the affiant took to either find or attempt service upon
defendant. The affidavits were notarized and signed by the named affiant. The affidavits for
the attempted service of the summons and complaint each named the respective process server
who made the attempt at service: Beth McMaster, Steven Stosur, or Nicholas Baker. In the
affidavit outlining the public and private database search, Michelle Bibeau is named as the
affiant. The language of the affidavits do not indicate that someone other than the affiant
attempted service, or in Bibeau's case, searched the various databases. Accordingly, after
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reviewing plaintiff's affidavits, we cannot say that we are left with the impression that someone
other than the affiants undertook the actions stated in the affidavits.
¶ 33 We also disagree with defendant's contention that plaintiff failed to specify the steps
plaintiff took to locate him. In the case of Michelle Bibeau, she identified several different
databases she searched in an effort to locate defendant. Those databases included social
security, directory assistance, driver's license, motor vehicle, voter registration, Department of
State, "Nationwide Masterfile Death Search"; Department of Corrections, and property tax
searches. The process servers, i.e., Beth McMaster, Steven Stosur, and Nicholas Baker,
attempted service at five different Chicago addresses: 2707 West Medill; 4218 West Thorndale;
4065 North Elston; 5701 West Patterson; and 1515 West Chestnut. At 4218 West Thorndale,
where defendant later alleged he resided, plaintiff specified eight different attempts at service on
six different dates. Overall, process servers employed by plaintiff made 14 attempts at service
upon defendant at 5 different addresses. In each affidavit, the process servers explained the
reason for nonservice as well as the time and date of each attempt. Accordingly, we hold that
plaintiff showed that it made a diligent inquiry and set forth specific actions it took to determine
defendant's whereabouts sufficient to justify service by publication in accordance with section
2-206(a) of the Code and local rule 7.3. 735 ILCS 5/2-206(a) (West 2010); Cook Co. Cir. Ct.
R. 7.3 (Oct. 1, 1996).
¶ 34 Defendant's final argument is that plaintiff's affidavit for service by publication does not
speak the truth because it failed to state defendant's residence as 4218 West Thorndale in
violation of section 2-206(a) of the Code. 735 ILCS 5/2-206(a) (West 2010). Defendant's
argument is based on the premise that plaintiff knew he resided at 4218 West Thorndale prior to
serving him by publication. He relies on process server Beth McMaster's affidavit in which she
- 13 -
No. 1-13-2070
attested that on August 8, 2011, at 8:10 p.m. she attempted service upon defendant at 4218 West
Thorndale. As a reason for nonservice, McMaster stated that she "spoke to the defendant's niece
who stated that the defendant will be out of town for the next month or two and that she was
house-sitting while her aunt was away." The niece gave McMaster a phone number for defendant
and for codefendant Maria Nascimento. The registration for defendant's phone indicated
defendant's address as 5701 Patterson Avenue. In a different, yet similar affidavit, McMaster
attested that she attempted to serve codefendant Maria Nascimento at the same address at the same
time and similarly stated that she had spoken to defendant's niece who told her that she was
house-sitting for her aunt. Plaintiff argues that defendant's argument is not supported by the
record.
¶ 35 After reviewing the record, we disagree with defendant's contention and do not find that
plaintiff affirmatively misstated defendant's residence. Rather, the record shows plaintiff, after
a diligent search and inquiry, was not able to ascertain defendant's residence. A review of
McMaster's affidavit shows that at no point in the affidavit does McMaster expressly state that
defendant resided at 4218 West Thorndale. Rather, McMaster indicates she spoke to someone
who told her she was house-sitting for her aunt. McMaster submitted a similar affidavit for
codefendant Nascimento. It is unclear to whom the person McMaster spoke to is related and
for whom she was house-sitting. Additionally, the phone number she gave McMaster showed
defendant's address as 5701 West Patterson. Furthermore, another process server employed by
plaintiff, Steven Stosur, made seven attempts at serving defendant at 4218 West Thorndale on
five later dates. Stosur attested that there were not any names on the doorbell or mailbox and
that he could not see or access the property. A review of Stosur's affidavits concerning 4218
West Thorndale, combined with the lack of a clear statement of defendant's residence in
- 14 -
No. 1-13-2070
McMaster's affidavit, lead us to conclude that plaintiff did not know defendant resided at 4218
West Thorndale. Section 2-206 only requires a plaintiff to state a defendant's residence "if
known." 735 ILCS 5/2-206(a) (West 2010). Otherwise, the affidavit must state "that upon
diligent inquiry his or her place of residence cannot be ascertained." 735 ILCS 5/2-206(a)
(West 2010). Therefore, the absence of a statement indicating that defendant resided at 4218
West Thorndale does not violate section 2-206(a) of the Code because such a statement is only
required if the residence is known to the plaintiff. 735 ILCS 5/2-206(a) (West 2010). The
record before us does not show plaintiff knew defendant resided at 4218 West Thorndale.
¶ 36 CONCLUSION
¶ 37 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 38 Affirmed.
- 15 -
| {
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} |
326 F.3d 1352
Richard COTTONE, as personal representative of the Estate of Peter Anthony Cottone, Jr., Peter Cottone, Sr., Plaintiffs-Appellees,v.Kenneth C. JENNE, II, individually and in his official capacity as Sheriff of Broward County, Florida, Joseph D'Elia, George Williams, individually and in his official capacity as Deputy Sheriff and/or Correction Officer of the Broward County Sheriff's Office, Patrick Tighe, individually and in his official capacity as Executive Director of the Department of Detention, Broward Sheriff's Office, Dwight St. Claire, Delores Watson, Barbara Law, Defendants-Appellants,Broward County Sheriff's Office, John Does, individually and in their official capacity as Directors and/or supervisors of the North Broward Detention Center, et al., Defendants.
No. 02-14529.
United States Court of Appeals, Eleventh Circuit.
April 11, 2003.
COPYRIGHT MATERIAL OMITTED Christine M. Duignan, Michael Ross Piper, Johnson, Anselmo, Murdoch, Burke & George, P.A., Ft. Lauderdale, FL, for Defendants-Appellants.
Barbara Ann Heyer, Heyer & Associates, P.A., Ft. Lauderdale, FL, for Plaintiffs-Appellees.
Appeal from the United States District Court for the Southern District of Florida.
Before HULL, MARCUS and FARRIS*, Circuit Judges.
HULL, Circuit Judge:
1
In this § 1983 suit, defendants Joseph D'Elia, George Williams, Patrick Tighe, Dwight St. Claire, Delores Watson, and Barbara Law, all in their individual capacities, appeal the district court's order denying their Rule 12(b)(6) motion to dismiss raising the defense of qualified immunity. After review and oral argument, we affirm the district court's denial of qualified immunity for defendants D'Elia and Williams, and reverse its denial of qualified immunity for defendants Tighe, St. Claire, Watson, and Law.
I. BACKGROUND
2
This appeal involves the death of Peter Cottone, Jr. ("Cottone") while he was detained in the North Broward Detention Center. Given the Rule 12(b)(6) posture of the case, we first review the allegations of the amended complaint as if all the allegations contained therein were true.1
A. Cottone's Detention
3
On March 9, 1999, Cottone was involved in a physical altercation with his father, Peter Cottone, Sr. As a result of this violent incident, Cottone involuntarily was transported to Memorial Hospital in Broward County, Florida under Florida Statute § 394.467, for observation and evaluation.2 On March 14, 1999, Cottone was moved to the Broward County Jail and was booked, assessed, and classified. As a result of the assessment and classification, Cottone was transferred from the Broward County Jail to Unit 1 of the North Broward Detention Center, which houses mentally ill inmates.
4
At the time of Cottone's detention, the Broward County Sheriff, employees working at the jail, and the Broward County Board of Commissioners were subject to a consent decree stemming from Carruthers v. Cochran, Case No. 76-6068-CIV-HOEVELER (S.D.Fla.), which was intended to ameliorate unconstitutional conditions of confinement in the Broward County jail system. The consent decree prescribed, inter alia, requirements for classification, separation, housing, and monitoring of inmates, as well as acceptable use-of-force levels, minimum medical care requirements, and availability of recreational activities.
B. Charles's Detention
5
On March 1, 1999, Widnel Charles ("Charles") was arrested. Prior to his arrest, Charles had been detained involuntarily under Florida Statute § 394.467 on numerous occasions due to his violent tendencies and a history of schizophrenia. While in the booking area of the Broward County Jail on March 1, Charles struck another inmate. Both a deputy sheriff and a nurse in the booking area observed and documented Charles's outburst. Charles originally was placed in the general population at the Broward County Jail. On March 6, however, he was reassessed and transferred from the Broward County Jail to the North Broward Detention Center.
6
On April 1, a staff psychiatrist at the North Broward Detention Center determined that Charles was mentally stable and reduced the psychotropic medicine to be administered to him. On April 6, Charles was placed into Unit 1 of the North Broward Detention Center with Cottone and Albert St. Hubert, the third and only other inmate in Unit 1. Although there were three separate cells in Unit 1, the doors to the cells remained unlocked, allowing the three inmates to interact with each other.
C. Charles Attacks Cottone
7
On April 7, guards D'Elia and Williams were summoned to Unit 1 by inmate St. Hubert. When D'Elia and Williams arrived, they found Cottone unconscious on the floor with ligature marks around his neck. During a schizophrenic episode, Charles allegedly strangled Cottone with shoelaces. After Charles's attack, Cottone was taken to North Broward Medical Center, where he died.
8
The amended complaint alleges that Charles's mental condition and the risk of serious harm that Charles posed to the other inmates was known by D'Elia and Williams. Specifically, the amended complaint alleges that prior to the murder incident, Charles was violent, out-of-control, and experiencing a schizophrenic episode and that Charles's mental condition would have been obvious to D'Elia and Williams if they had been watching the monitor. The amended complaint further alleges that D'Elia and Williams did not monitor the inmates housed in Unit 1 that day but were watching computer games, as follows:
9
Surveillance cameras mounted in the Day Room of Unit 1 were aimed at the three cells, however, they were not being monitored at the time of the incident.
10
At the time of the incident, a computer game was observed on the screen of the computer in the control room where the Defendants D'ELIA and WILLIAMS were stationed.
11
Amended Complaint, para. 50-51.
D. Procedural History
12
Plaintiffs Richard Cottone, on behalf of the Estate of Peter Cottone, Jr., and Peter Cottone, Sr. brought this § 1983 action against numerous defendants, including defendants D'Elia, Williams, Tighe, St. Claire, Watson, and Law in their individual capacities as a result of Cottone's death while he was detained in Unit 1 of the North Broward Detention Center.3 In their amended complaint, the plaintiffs allege two separate claims against the defendants. First, the plaintiffs allege that the defendants D'Elia's and Williams's reckless indifference toward a substantial risk of serious inmate harm at the North Broward Detention Center, which led to Cottone's death, violated the Eighth Amendment's prohibition against cruel and unusual punishment.4 Second, the plaintiffs allege that defendants Tighe, St. Claire, Watson, and Law have supervisory liability for Cottone's death due to their failure to train and to supervise deputy sheriffs and corrections officers under their control.
13
On April 18, 2002, the defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court denied the defendants' Rule 12(b)(6) motion, concluding, inter alia, that the defendants in their individual capacities are not entitled to qualified immunity. The defendants subsequently filed this interlocutory appeal.5
II. STANDARD OF REVIEW
14
We review de novo a district court's denial of qualified immunity. See Jordan v. Doe, 38 F.3d 1559, 1563 (11th Cir.1994); Hutton v. Strickland, 919 F.2d 1531, 1536 (11th Cir.1990). The determination of whether a complaint sufficiently alleges a constitutional violation also is a matter of law reviewed de novo. See GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1367 (11th Cir.1998). In reviewing a complaint, we accept all well-pleaded factual allegations as true and construe the facts in the light most favorable to the plaintiff. See id.; Williams v. Alabama State Univ., 102 F.3d 1179, 1182 (11th Cir.1997).
III. DISCUSSION
A. Rule 12(b)(6) Motions
15
A complaint is subject to dismissal under Rule 12(b)(6) when its allegations, on their face, show that an affirmative defense bars recovery on the claim. Marsh v. Butler County, 268 F.3d 1014, 1022 (11th Cir.2001) (en banc). "Once the affirmative defense of qualified immunity is advanced ... [u]nless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." Id. (internal quotation marks omitted). Absent such allegations, "[i]t is ... appropriate for a district court to grant the defense of qualified immunity at the motion to dismiss stage." Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir.2003). Thus, if the defendants in this case are entitled to qualified immunity, then their Rule 12(b)(6) motion to dismiss must be granted and the plaintiffs' suit must be dismissed.
B. Qualified Immunity Principles
16
"The defense of qualified immunity completely protects government officials performing discretionary functions from suit in their individual capacities unless their conduct violates `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Gonzalez, 325 F.3d at 1233 (quoting Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002)); Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002). To receive qualified immunity, a government official first must prove that he was acting within his discretionary authority. Gonzalez, 325 F.3d at 1234 (citing Vinyard, 311 F.3d at 1346). In this case, it is clear-and undisputed-that defendants D'Elia, Williams, Tighe, St. Claire, Watson, and Law were acting within their discretionary authority.
17
Once a defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity. Vinyard, 311 F.3d at 1346. The Supreme Court has established a two-part test to determine the applicability of qualified immunity. "The threshold inquiry a court must undertake in a qualified immunity analysis is whether [the] plaintiff's allegations, if true, establish a constitutional violation." Hope, 122 S.Ct. at 2513. If, under the plaintiff's allegations, the defendants would have violated a constitutional right, "the next, sequential step is to ask whether the right was clearly established." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
C. Liability of Guards D'Elia and Williams
18
We first examine whether the plaintiffs' amended complaint alleges a Fourteenth Amendment violation committed by defendants D'Elia and Williams.
19
1. Constitutional Violation Under the Fourteenth Amendment
20
"A prison official's deliberate indifference to a known, substantial risk of serious harm to an inmate violates the [Fourteenth] Amendment." Marsh, 268 F.3d at 1028. A Fourteenth Amendment violation occurs when a substantial risk of serious harm, of which the official is subjectively aware, exists and the official does not respond reasonably to the risk. Id. Furthermore, such risk must be an objectively substantial risk of serious harm to prisoners, and the prison official must respond to that risk in an objectively unreasonable manner. Farmer v. Brennan, 511 U.S. 825, 834, 844-845, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Finally, a plaintiff must show that the constitutional violation caused the injury. Marsh, 268 F.3d at 1028.
21
We conclude that the plaintiffs' amended complaint sufficiently alleges a violation of Cottone's Fourteenth Amendment rights. According to the amended complaint, Cottone's co-inmate, Charles, had a history of violent outbursts and mental instability and was in the midst of a violent schizophrenic outrage prior to his murdering Cottone. Given his visibly violent, mentally unstable state, Charles posed an objective risk of serious harm to other inmates, including Cottone.
22
Furthermore, based on the allegations in the plaintiffs' amended complaint, D'Elia and Williams were subjectively aware of the substantial risk of serious harm that Charles posed to the other inmates. First, D'Elia and Williams were assigned to Unit 1 in the North Broward Detention Center. Thus, D'Elia and Williams knew they were monitoring mentally ill inmates, who were so mentally ill that they had been assessed, classified, and separated for housing in Unit 1 of the North Broward Detention Center. Second, they were aware of the substantial risk of serious harm that Charles individually posed to other inmates based on his violent, schizophrenic outbursts which occurred prior to the murder incident. They were the guards on duty when Charles entered the throws of a violent schizophrenic outburst prior to murdering Cottone.
23
D'Elia's and Williams's response to the risk also was objectively unreasonable. According to the plaintiffs' amended complaint, neither D'Elia nor Williams was monitoring the inmates at all during the time either of Charles's violent schizophrenic outburst prior to the murder or of Charles's murder of Cottone. Plaintiffs allege that D'Elia and Williams took consecutive breaks during this time and that a computer game was observed on the computer screen at their monitoring station at the time of the murder.
24
Plaintiffs' amended complaint also alleges that the total lack of monitoring and supervision of Charles caused Cottone's death. They further allege that D'Elia's and Williams's failure to monitor a known violent, unstable inmate, like Charles, caused Cottone's death.
25
In sum, at this Rule 12(b)(6) stage, we conclude that the plaintiffs' amended complaint adequately alleges (1) an objective, substantial risk of serious harm to inmates existed, (2) D'Elia and Williams subjectively were aware of the substantial risk of serious harm, (3) D'Elia and Williams responded in an objectively unreasonable manner to that risk, and (4) this constitutional violation caused Cottone's death.
2. Violation of Clearly Established Law
26
Because the plaintiffs' amended complaint sufficiently alleges a constitutional violation, we next determine whether preexisting law clearly established that the defendants' conduct amounted to a constitutional violation. Vinyard, 311 F.3d at 1349 ("Because [the defendant]'s conduct violated a constitutional right, the next question is whether that constitutional right was `clearly established' at the time of the violation."); Marsh, 268 F.3d at 1030-31 ("A government-officer defendant is entitled to qualified immunity unless, at the time of the incident, the preexisting law dictates, that is, truly compels, the conclusion ... that what Defendant was doing violated Plaintiffs' federal rights.") (internal quotation marks and citation omitted). "`The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Vinyard, 311 F.3d at 1350 (quoting Saucier, 533 U.S. at 202, 121 S.Ct. 2151). In making this inquiry, "the salient question ... is whether the state of the law ... gave [the guards] fair warning that their alleged [conduct] was unconstitutional." Hope, 122 S.Ct. at 2516.
27
We can locate at least two factually similar cases, decided prior to the conduct in question, in which a lack of monitoring and supervision of known violent inmates, which led to inmate-on-inmate violence, constituted impermissible unconstitutional conduct. In LaMarca v. Turner, 995 F.2d 1526, 1536-38 (11th Cir.1993), this Court determined that a prison official's failure to ensure adequate supervision and monitoring of inmates with a history of inmate-on-inmate violence was a violation of the Eighth Amendment. In LaMarca, despite reported incidents of prior inmate-on-inmate violence, prison authorities did not station officers to patrol throughout the inmate dormitories, particularly at night. Id. at 1538. Prison authorities also allowed inmates to hang sheets, obstructing the guards' views, and preventing them from adequately supervising the inmates. Id. Thus, in LaMarca, there was an absence of adequate supervision despite a substantial risk of serious harm from inmate-on-inmate violence.
28
Similarly, in Hale v. Tallapoosa County, 50 F.3d 1579, 1584 (11th Cir.1995), an inmate was assaulted by another inmate during the lengthy time between the jailer's scheduled rounds. Id. at 1581. This assault occurred despite past incidents of inmate-on-inmate violence because, other than making rounds, the jailer in Hale was "stationed out of eyesight and earshot" of the inmates. Id. at 1584. Based on these facts, this Court in Hale recognized unconstitutional conditions of confinement existed because there was a lack of inmate supervision and a substantial risk of serious harm from known violent inmates.
29
The plaintiffs have made similar allegations in this case. Under the plaintiffs' version of the facts, the guards knew that Charles represented a substantial risk of serious harm because he was violent, out-of-control and in the throes of schizophrenia during his detention in Unit 1 prior to the murder incident. D'Elia and Williams were assigned to supervise Charles as one of the mentally ill inmates in Unit 1, but did not do so. Instead, they took consecutive breaks and watched video games. Thus, just as there was no supervision of known violent inmates in LaMarca and Hale, in this case guards D'Elia and Williams did not monitor and supervise Charles, a known violent inmate who posed a substantial risk of serious harm to the other inmates.
30
We conclude that prior factually similar case law gave fair and clear warning to D'Elia and Williams that it was their duty to monitor and to supervise known violent inmates who posed a substantial risk of serious harm to other inmates. See Vinyard, 311 F.3d at 1346. The law of this circuit "clearly establishes" that their total failure to monitor a known violent inmate housed in Unit 1, a housing unit for mentally ill inmates, constitutes unconstitutional deliberate indifference to Cottone's Fourteenth Amendment rights. Thus, given the plaintiffs' version of the events, defendants D'Elia and Williams are not entitled to qualified immunity at this Rule 12(b)(6) stage.
31
D. Supervisory Liability of Tighe, St. Claire, Watson, and Law
32
"It is well established in this Circuit that supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability." Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.1999) (internal quotation marks and citation omitted); Gonzalez, 325 F.3d at 1234 (concluding supervisory officials are not liable on the basis of respondeat superior or vicarious liability). Instead, supervisory liability under § 1983 occurs either when the supervisor personally participates in the alleged unconstitutional conduct or when there is a causal connection between the actions of a supervising official and the alleged constitutional deprivation. Gonzalez, 325 F.3d at 1234; Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.1990). The necessary causal connection can be established "when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so." Gonzalez, 325 F.3d at 1234 (quoting Braddy v. Fla. Dept. of Labor & Employment, 133 F.3d 797, 802 (11th Cir.1998)); Brown, 906 F.2d at 671. Alternatively, the causal connection may be established when a supervisor's "`custom or policy ... result[s] in deliberate indifference to constitutional rights'" or when facts support "an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so." Gonzalez, 325 F.3d at 1235 (quoting Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir.1991)); Hartley, 193 F.3d at 1263; see also Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1560-61 (11th Cir.1993). "The standard by which a supervisor is held liable in [his] individual capacity for the actions of a subordinate is extremely rigorous." Gonzalez, 325 F.3d at 1234 (internal quotation marks and citation omitted).
33
The plaintiffs do not allege that defendants Tighe, St. Claire, Watson, and Law personally participated in the alleged unconstitutional conduct which led to Cottone's death. Instead, the plaintiffs allege that there is a causal connection between these defendants and Cottone's death based on the defendants' failure to train and to supervise guards D'Elia and Williams. The plaintiffs allege that the defendants were on notice of the widespread unconstitutional conduct at the Broward County Jail through the consent decree and that the defendants failed to rectify such conduct.
34
The consent decree generally addresses unconstitutional practices at the Broward County Jail with respect to conditions of confinement, specifically the classification, separation, housing, and monitoring of inmates. In broad terms, the consent decree requires that assessment and classification of inmates be ongoing, that inmates continuously be assessed and classified based on an inmate's "social, legal, and ... medical history," and that each Broward County detention facility have its own classification officer. The consent decree also requires prison officials to separate and to supervise inmates closely, particularly those "who present a threat to the staff, other inmates, or themselves." With respect to monitoring these types of inmates, the consent decree requires "regular, documented sight checks ... at intervals not to exceed 15 minutes." Other than a time interval, however, the consent decree does not specify any details as to how such monitoring should be performed.
35
The problem for the plaintiffs here is that the allegations in the amended complaint itself show that the supervisors complied with the relevant terms of the consent decree. According to the amended complaint, Broward County Jail officials, including Dr. Maurice Waldman,6 assessed Charles and classified him as a mentally ill inmate. As part of the ongoing inmate assessment procedures in place, Dr. Waldman reduced Charles's psychotropic medication. Based on the assessment and classification procedures in place, Charles was transferred to separate housing for mentally ill inmates in Unit 1 of the North Broward Detention Center. Furthermore, there were surveillance cameras installed that allowed the guards to monitor continuously the inmates housed in Unit 1. Indeed, two guards, D'Elia and Williams, specifically were assigned to monitor the inmates in Unit 1. By its own allegations, the amended complaint itself acknowledges that the supervisors put in place the necessary procedures to abide by the consent decree. Thus, the consent decree itself does not provide notice to establish a causal connection between the supervisors and Cottone's death.
36
Furthermore, the plaintiffs do not allege any specific facts at all connecting the supervisors to D'Elia's and Williams's failure to monitor the inmates in Unit 1. There is no allegation that supervisors directed the subordinate guards not to monitor inmates or to act unlawfully. The amended complaint also does not make any allegations that the supervisors had any knowledge of D'Elia's and Williams's failure to monitor inmates or that D'Elia and Williams had any past history, or even one prior incident, of failing to monitor inmates or of watching computer games. The supervisors were not on any notice of D'Elia's and Williams's unconstitutional conduct so as to put the supervisors on notice of the need to correct or to stop the conduct of D'Elia and Williams by further training or supervision. Thus, the plaintiffs fail to establish the necessary causal connection between the supervisors and the unconstitutional conduct in issue for supervisory liability to be imposed. See Gonzalez, 325 F.3d at 1236 (concluding that in the absence of a causal connection between the supervisors and the alleged unconstitutional conduct, there is no basis for supervisory liability).
37
The plaintiffs also do not allege any affirmative custom or policy implemented by the supervisory defendants that played a role in Cottone's death. See id. Nor do they allege that the supervisors instructed D'Elia and Williams to commit constitutional violations. See id. As a result, the amended complaint does not allege the causal connection required to impose supervisory liability against these defendants.7
38
Thus, the plaintiffs have failed to allege that defendants Tighe, St. Claire, Watson, and Law committed a constitutional violation.8 Because the amended complaint fails to allege a constitutional violation committed by the supervisory defendants, we need not reach the "clearly established law" prong of the qualified immunity inquiry with respect to supervisory liability. See Vinyard, 311 F.3d at 1346 ("If a constitutional right would have been violated under the plaintiff's version of the facts, the next, sequential step is to ask whether the right was clearly established.") (internal quotation marks and citation omitted) (emphasis added). Accordingly, we conclude that defendants Tighe, St. Claire, Watson, and Law are entitled to qualified immunity and that the district court erred in failing to grant these defendants' Rule 12(b)(6) motion to dismiss.
IV. CONCLUSION
39
For the reasons stated above, we reverse the district court's denial of the defendants Tighe, St. Claire, Watson, and Law's Rule 12(b)(6) motion to dismiss based on qualified immunity and affirm the district court's denial of defendants D'Elia and Williams's Rule 12(b)(6) motion to dismiss based on qualified immunity.
40
AFFIRMED IN PART; REVERSED IN PART.
Notes:
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by designation
1
See Marsh v. Butler County, 268 F.3d 1014, 1023 (11th Cir.2001) (en banc) (setting forth the facts in the case by "[a]ccepting all well-pleaded factual allegations (with reasonable inferences drawn favorably to Plaintiffs) in the complaint as true"). Because we must accept the allegations of plaintiffs' amended complaint as true, what we set out in this opinion as "the facts" for Rule 12(b)(6) purposes may not be the actual facts. Cf. Swint v. City of Wadley, 51 F.3d 988, 992 (11th Cir.1995).
2
Florida Statute § 394.467, known as the "Baker Act," allows a person to be placed involuntarily in a treatment facility if clear and convincing evidence indicates that the person is mentally ill, and,inter alia, there is a substantial likelihood that, based on recent behavior, the person will inflict serious bodily harm on himself or another person. Fla. Stat. § 394.467(1)(a).
3
All parties agree that Sheriff Kenneth C. Jenne, II is not a party to this appeal. The amended complaint names Sheriff Jenne as a defendant solely in his official capacity
4
Because Cottone was a pretrial detainee at the time of the incident, the relevant constitutional guarantee is not the Eighth Amendment's prohibition against cruel and unusual punishment, but rather the Due Process Clause of the Fourteenth AmendmentIngraham v. Wright, 430 U.S. 651, 671 n. 40, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). Nonetheless, we previously have stated that "the standard for providing basic human needs to those incarcerated or in detention is the same under both the Eighth and Fourteenth Amendments." Marsh, 268 F.3d at 1024 n. 5. The plaintiffs' amended complaint notwithstanding, we will refer to their claims as arising under the Fourteenth Amendment.
5
The denial of qualified immunity on a motion to dismiss is an appealable interlocutory orderSee Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).
6
Although not a party to this appeal, Dr. Waldman is a defendant in this case before the district court
7
In examining the factual allegations in a complaint, we must keep in mind the heightened pleading requirements for civil rights cases, especially those involving qualified immunityGJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1367 (11th Cir.1998). However, as to supervisory liability in this case, the plaintiffs' amended complaint fails to meet even a relaxed pleading requirement.
8
At all times, the plaintiffs have been represented by legal counsel. Never in the district court did the plaintiffs seek to amend the complaint (for example, by adding facts), even after the complaint's sufficiency had been challenged specifically and the qualified immunity defense expressly advanced by opposing counsel. Thus, we decline to remand this case to the district court for further amendments to the plaintiffs' already amended complaint
| {
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} |
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE I. VALLE, DOCKET NUMBER
Appellant, NY-3330-15-0292-I-1
v.
SOCIAL SECURITY DATE: April 14, 2016
ADMINISTRATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Rafael Arroyo, San Juan, Puerto Rico, for the appellant.
David B. Myers, New York, New York, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction and based on a failure to state a
claim. For the reasons discussed below, we GRANT the appellant’s petition for
review, AFFIRM the finding that the Board lacks jurisdiction under 5 U.S.C.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
chapter 75 and 5 C.F.R. part 315, subpart H, REVERSE the finding that the
Board lacks jurisdiction over the appellant’s Veterans Employment Opportunities
Act of 1998 (VEOA) claim, DISMISS the VEOA claim for failure to state a claim
upon which relief may be granted, VACATE the finding that the appellant failed
to state a claim upon which relief may be granted under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C.
§§ 4301-4333) (USERRA), and REMAND the case to the field office for further
adjudication of the USERRA claim in accordance with this Order.
BACKGROUND
¶2 The appellant filed an appeal challenging his termination from the position
of Social Insurance Specialist during his probationary period. Initial Appeal File
(IAF), Tab 1. The appellant alleged that, because he had completed a
probationary period in a previous position, the agency erred by removing him
without providing him with due process. Id. at 6. The appellant also alleged that
the agency denied him a benefit of employment under VEOA by not reinstating
him when he was appointed to his position. Id. The appellant requested a
hearing. Id. at 2.
¶3 The administrative judge notified the appellant of the jurisdictional
requirements for a claim under VEOA and ordered him to file evidence and
argument establishing the Board’s jurisdiction over his claim. IAF, Tab 3. The
administrative judge also provided the appellant with notice of the jurisdictional
requirement for a probationary termination claim and ordered the appellant to file
evidence and argument establishing the Board’s jurisdiction over such a claim.
IAF, Tab 4.
¶4 In response to the show cause order concerning VEOA jurisdiction, the
appellant argued that the agency violated his veterans’ preference rights by
failing to reinstate him to a career-conditional position pursuant to 5 C.F.R.
§ 315.401(b), rather than hiring him from a certificate after it issued a vacancy
3
announcement for which he applied. IAF, Tab 6 at 4-5. The appellant further
argued that the agency’s failure to reinstate him violated USERRA. Id. The
administrative judge notified the appellant of the jurisdictional requirements
under USERRA and ordered him to file evidence and argument that would
establish the Board’s jurisdiction over a USERRA claim. IAF, Tab 14. The
appellant filed a response concerning USERRA jurisdiction asserting that the
agency was motivated by “antimilitary animus” when it terminated his
employment. IAF, Tab 15 at 8.
¶5 On September 30, 2015, the administrative judge issued an initial decision,
without holding a hearing, finding that the Board lacks jurisdiction under
5 U.S.C. chapter 75 because the appellant does not meet the statutory definition
of “employee.” IAF, Tab 16, Initial Decision (ID) at 6-11. The administrative
judge further found that the Board lacks jurisdiction over the appeal under
5 C.F.R. part 315, subpart H, and VEOA, ID at 11-17, and that the appellant
failed to state a claim upon which relief could be granted under USERRA, ID
at 17-21. The initial decision notified the parties that it would become final on
November 4, 2015, if neither party filed a petition for review by that date. ID
at 22.
¶6 Using the Board’s electronic filing system at e-Appeal Online, the
appellant filed a blank petition for review form 6 minutes after midnight on
November 5, 2015. Petition for Review (PFR) File, Tab 1. The appellant filed
his completed petition for review about 24 minutes later. PFR File, Tab 2. The
Clerk of the Board notified the appellant that his petition for review appeared to
be untimely and advised him how to file a motion requesting that the petition be
accepted as timely or that the filing deadline be waived for good cause shown.
PFR File, Tab 3. The appellant filed a motion to have the filing deadline waived
because he acted diligently by filing the petition as soon as he became aware of
the error in his initial filing. PFR File, Tab 4 at 5-6. The agency responded that
4
the petition should be dismissed as untimely or denied on the merits. PFR File,
Tab 5.
ANALYSIS
The appellant has shown good cause for untimely filing his petition for review.
¶7 To establish good cause for the untimely filing of an appeal, a party must
show that he exercised due diligence or ordinary prudence under the particular
circumstances of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R.
180, 184 (1980). To determine whether an appellant has shown good cause, the
Board will consider the length of the delay, the reasonableness of his excuse and
his showing of due diligence, whether he is proceeding pro se, and whether he has
presented evidence of the existence of circumstances beyond his control that
affected his ability to comply with the time limits or of unavoidable casualty or
misfortune which similarly shows a causal relationship to his inability to timely
file his petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62‑63
(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶8 We find that the appellant exercised due diligence and ordinary prudence
under the circumstances by immediately refiling his petition after he realized that
he had mistakenly filed a blank copy. PFR File, Tab 4. According to the Board’s
e‑Appeal logs, the appellant’s representative logged into the e-Appeal system at
9:03 p.m. on November 4, 2015, and started to submit the petition for review at
11:49 p.m. Although this original pleading was blank, the e-Appeal logs show
that the appellant’s representative refiled the correct pleading less than half an
hour later. Given the appellant’s representative’s attempts to file before the
deadline and the minimal filing delay, we find that the appellant has shown good
cause for the untimely filing. See Social Security Administration v. Price,
94 M.S.P.R. 337, ¶ 7 (2003) (finding that the agency exercised due diligence and
showed good cause for filing a petition for review 34 minutes late where its
attorney began sending the petition prior to the filing deadline but had technical
5
problems), aff’d, 398 F.3d 1322 (Fed. Cir. 2005). The agency has not shown that
it was prejudiced by the short delay, and, under the circumstances, we waive the
filing deadline. See id.
The Board lacks jurisdiction over the appellant’s probationary termination claim
under 5 U.S.C. chapter 75 and 5 C.F.R. part 315, subpart H.
¶9 Because the appellant’s appointment to a position in the competitive
service was terminated, he must satisfy the definition of “employee” set forth at
5 U.S.C. § 7511(a)(1)(A) to have Board appeal rights under 5 U.S.C. chapter 75.
See Henderson v. Department of the Treasury, 114 M.S.P.R. 149, ¶ 9 (2010). To
qualify as an “employee,” the appellant must show that he was not serving in a
probationary or trial period under an initial appointment or had completed 1 year
of current, continuous service under other than a temporary appointment limited
to 1 year or less. 5 U.S.C. § 7511(a)(1)(A); McCormick v. Department of the
Air Force, 307 F.3d 1339, 1341-43 (Fed. Cir. 2002). The Standard Form 50
(SF‑50) documenting the appellant’s appointment states that his appointment was
subject to a 1-year probationary period beginning on May 12, 2014. IAF, Tab 12
at 11. The SF-50 documenting the termination of the appellant’s appointment
states that the effective date was May 8, 2015. IAF, Tab 11 at 4. We agree with
the administrative judge’s findings that the appellant had not completed the
required 1-year probationary period, ID at 7-8, and had not completed 1 year of
current continuous service, ID at 10-11. 2 The administrative judge appropriately
2
An appellant who has not served a full year under his appointment can show that he
has completed his probationary period and is no longer a probationer by tacking on
prior service if: (1) the prior service was rendered immediately preceding the
probationary appointment; (2) it was performed in the same agency; (3) it was
performed in the same line of work; and (4) it was completed with no more than one
break in service of less than 30 days. Hurston v. Department of the Army, 113 M.S.P.R.
34, ¶ 9 (2010). Alternatively, an individual can show that, while he may be a
probationer, he is an “employee” with chapter 75 appeal rights because, immediately
preceding the adverse action, he had completed at least 1 year of current continuous
service in the competitive service without a break in Federal civilian employment of a
workday. Id. As set forth in the initial decision, neither the appellant’s prior military
service, nor his civilian service with the Environmental Protection Agency that ended in
6
concluded that the Board lacks jurisdiction under 5 U.S.C. chapter 75. ID
at 6‑11. We also agree with the administrative judge’s finding that the Board
lacks jurisdiction under 5 C.F.R. part 315, subpart H, because the appellant
has not alleged that his probationary termination was based on partisan political
reasons, marital status, or preappointment reasons, ID at 11-12; see 5 C.F.R.
§§ 315.805-315.806.
The Board has jurisdiction over the appellant’s VEOA claim, but he is not
entitled to corrective action.
¶10 To establish the Board’s jurisdiction over a VEOA claim based on an
alleged violation of veterans’ preference rights, an appellant must show that he
exhausted his remedy with the Department of Labor and make a nonfrivolous
allegation of the following: (1) he is a preference eligible within the meaning of
VEOA; (2) the action at issue took place on or after the October 30, 1998
enactment of VEOA; and (3) the agency violated his rights under a statute or
regulation relating to veterans’ preference. Haasz v. Department of Veterans
Affairs, 108 M.S.P.R. 349, ¶ 6 (2008). An appellant need not state a claim upon
which relief can be granted for the Board to have jurisdiction over a VEOA
claim. Id. The Board has held that an allegation in general terms that an
appellant’s veterans’ preference rights were violated is sufficient to meet the
nonfrivolous allegation requirement. Id., ¶ 7.
¶11 As found by the administrative judge, the appellant has shown that he
exhausted his administrative remedies with the Department of Labor. ID at 14.
The appellant also has submitted undisputed evidence that he is a preference
eligible within the meaning of VEOA. IAF, Tab 6 at 7-9. Additionally, the
actions at issue took place after VEOA’s enactment date. The administrative
judge found that the appellant failed to establish jurisdiction because he failed to
2012, qualified under either of these alternatives. ID at 8-11; see Bell v. Department of
Homeland Security, 95 M.S.P.R. 580, ¶¶ 15-18 (2004) (explaining that military service
cannot be tacked onto civilian service to meet the current continuous service
requirements of 5 U.S.C. § 7511(a)).
7
make a nonfrivolous allegation that the agency violated a statute or regulation
pertaining to veterans’ preference. ID at 14-17. The appellant alleges that the
agency denied him veterans’ preference by failing to reinstate him
noncompetitively to his position, rather than hiring him after he applied for the
position in response to a vacancy announcement. PFR File, Tab 2 at 6-7.
Veterans’ preference statutes and regulations permit noncompetitive
appointments to positions in the competitive service for certain veterans. See
Sherwood v. Department of Veterans Affairs, 88 M.S.P.R. 208, ¶ 6 (2001).
Therefore, the appellant has alleged that the agency violated his rights under a
statute or regulation relating to veterans’ preference, which is sufficient to meet
the nonfrivolous allegation requirement. See Elliott v. Department of the
Air Force, 102 M.S.P.R. 364, ¶ 8 (2006) (finding that an allegation by an
appellant, in general terms, that his veterans’ preference rights were violated is
sufficient to meet the nonfrivolous allegation requirement).
¶12 Although we modify the initial decision to find that the Board has
jurisdiction over the appellant’s VEOA claim, we find that the appellant is not
entitled to corrective action under VEOA. An appeal that is within the Board’s
jurisdiction can be dismissed for failure to state a claim upon which relief can be
granted if the appellant cannot obtain effective relief before the Board even if his
allegations are accepted as true. Alford v. Department of Defense, 113 M.S.P.R.
263, ¶ 11 (2010), aff’d, 407 F. App’x 458 (Fed. Cir. 2011). Dismissal for failure
to state a claim is appropriate only if, taking the appellant’s allegations as true
and drawing all reasonable inferences in his favor, he cannot prevail as a matter
of law. Id. The appellant contends that the agency violated his right to veterans’
preference by selecting him through competitive procedures and requiring him to
serve a probationary period instead of reinstating him. PFR File, Tab 2 at 6‑8.
The appellant has cited no authority, and we know of none, that would require an
agency to reinstate a preference-eligible veteran who has applied for a position
through the competitive process. On the contrary, agencies have discretion to fill
8
positions by any authorized method. 5 C.F.R. § 330.102. Thus, we find that the
appellant’s claim is not one on which corrective action under VEOA can be
granted, and we dismiss the VEOA claim, without the requested hearing, based
on a failure to state a claim.
The appellant has established jurisdiction over his USERRA discrimination claim
under 38 U.S.C. § 4311(a) and is entitled to a hearing.
¶13 USERRA provides, in relevant part, that a person who has performed
service in a uniformed service shall not be denied initial employment,
reemployment, retention in employment, promotion, or any benefit of
employment on the basis of performance of that service. 38 U.S.C. § 4311(a).
To establish the Board’s jurisdiction over a USERRA discrimination claim
arising under 38 U.S.C. § 4311(a), the appellant must allege the following: (1) he
performed duty or has an obligation to perform duty in a uniformed service of the
United States; (2) the agency denied him initial employment, reemployment,
retention, promotion, or any benefit of employment; and (3) the denial was due to
the performance of duty or obligation to perform duty in the uniformed service.
Wilson v. Department of the Army, 111 M.S.P.R. 54, ¶ 8 (2009). It is well
established that a claim of discrimination under USERRA should be broadly and
liberally construed in determining whether it is nonfrivolous. Id., ¶ 9.
¶14 The appellant has presented undisputed evidence that he performed duty in
a uniformed service. IAF, Tab 6 at 7-8. It is also undisputed that the agency
terminated his employment. IAF, Tab 11 at 4-8. In response to the agency’s
motion to dismiss the USERRA claim for lack of jurisdiction, the appellant
alleged, among other things, that his termination was motivated by “antimilitary
animus.” IAF, Tab 15 at 8. The appellant alleged that the agency has shown
hostility toward disabled veterans, active duty military hires, and has placed them
at a disadvantage with other employees not in the military, or with preference
eligibles “as it did when terminating [him] for unfounded reasons under the guise
of temporary status employee.” Id. The appellant’s allegations are vague;
9
however, lack of specificity is not a basis for finding that the Board lacks
jurisdiction over his USERRA claim. See Searcy v. Department of Agriculture,
115 M.S.P.R. 260, ¶¶ 7‑8 (2010); Swidecki v. Department of Commerce,
113 M.S.P.R. 168, ¶ 6 (2010). We find that the appellant’s claim is a
nonfrivolous allegation of a USERRA violation and sufficient to establish the
Board’s jurisdiction. See Yates v. Merit Systems Protection Board, 145 F.3d
1480, 1484-85 (Fed. Cir. 1998) (finding that a claim that a probationary
termination was the result of military service was within the Board’s jurisdiction
under USERRA even without an express reference to USERRA or
discrimination).
¶15 The initial decision states that, even if the Board has jurisdiction over the
appellant’s USERRA claim, the claim should be dismissed for failure to state a
claim upon which relief can be granted. 3 ID at 19. We do not agree. Dismissal
for failure to state a claim upon which relief can be granted is a decision on the
merits. Lubert v. U.S. Postal Service, 110 M.S.P.R. 430, ¶ 12 (2009). Once an
appellant has established the Board’s jurisdiction over his USERRA claim, he is
entitled to a hearing on the merits. Gossage v. Department of Labor,
118 M.S.P.R. 455, ¶ 10 (2012).
¶16 The administrative judge cites Haasz to support dismissing the appellant’s
USERRA claim for failure to state a claim. ID at 18. However, Haasz does not
support her conclusion. Haasz is a VEOA appeal in which the Board noted that
USERRA was unlike VEOA because USERRA grants an appellant an
unconditional right to a hearing once the appeal reaches the merits stage, whereas
VEOA does not. Haasz, 108 M.S.P.R. 349, ¶ 9. While the Board can adjudicate
the merits of the appellant’s VEOA claim without a hearing, the same disposition
3
The administrative judge’s finding regarding jurisdiction over the USERRA claim is
unclear. The initial decision states that the Board lacks jurisdiction under USERRA.
ID at 17. However, the administrative judge also adjudicated the merits of the claim by
dismissing it for failure to state a claim. ID at 21.
10
is not appropriate for his USERRA claim. See Kirkendall v. Department of the
Army, 479 F.3d 830, 844-46 (Fed. Cir. 2007).
¶17 Both the administrative judge and the agency note the lack of facts and
evidence supporting the appellant’s USERRA claim. ID at 19-21; PFR File,
Tab 5 at 13. The appellant acknowledged below that the record is incomplete, but
argued that discovery is needed to complete the record and address the merits of
his claim. IAF, Tab 15 at 7-8. The agency states that the appellant failed to
timely file discovery requests. PFR File, Tab 5 at 13 n.4. The administrative
judge should determine whether the appellant is entitled to discovery on remand.
¶18 Even if the appellant has waived his right to discovery, the lack of evidence
to support his USERRA claim is not a basis for dismissing the claim without
holding a hearing. See Wilson, 111 M.S.P.R. 54, ¶¶ 9‑10. Rather, if the
appellant fails to develop his contentions, his claim should be denied on the
merits after providing him with the hearing he has requested and to which he is
entitled. See Kirkendall, 479 F.3d at 846; Swidecki, 113 M.S.P.R. 168, ¶ 6;
Baker v. Department of Homeland Security, 111 M.S.P.R. 277, ¶ 18 (2009).
ORDER
¶19 For the reasons discussed above, we remand this case to the field office for
further adjudication of the USERRA claim in accordance with this Remand
Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
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938 N.E.2d 519 (2010)
237 Ill.2d 554
DAHAL
v.
ALLA.
No. 110247.
Supreme Court of Illinois.
September 1, 2010.
Disposition of petition for leave to appeal denied.[*]
NOTES
[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.
| {
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} |
229 F.3d 567 (6th Cir. 2000)
Dustin W. Seal, Plaintiff-Appellee,v.Allen Morgan, Superintendent, Knox County School (99-5090/5600); Knox County Board of Education (99-5600),Defendants-Appellants,Vicki Dunaway, Principal, Powell High School, et al., Defendants.
Nos. 99-5090, 99-5600
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: January 26, 2000Decided and Filed: October 6, 2000
Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 97-00267--James H. Jarvis, District Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted]
Tommy K. Hindman, Laura E. Metcalf, LAW OFFICES OF TOMMY K. HINDMAN, Knoxville, Tennessee, for Appellee.
Mary A.R. Stackhouse, DEPUTY LAW DIRECTOR, BOARD OF EDUCATION, Knoxville, Tennessee, John E. Owings, KNOX COUNTY LAW DIRECTOR'S OFFICE, Knoxville, Tennessee, Robert L. Crossley, Sr., CROSSLEY LAW FIRM, Knoxville, Tennessee, for Appellants.
Before: NELSON, SUHRHEINRICH, and GILMAN, Circuit Judges.
GILMAN, J., delivered the opinion of the court, in which NELSON, J., joined. SUHRHEINRICH, J. (pp. 582-86), delivered a separate opinion dissenting in part.
OPINION
RONALD LEE GILMAN, Circuit Judge.
1
In this action brought pursuant to 42 U.S.C. § 1983, Dustin Wayne Seal seeks monetary damages to compensate him for the Knox County Board of Education's 1996 decision to expel him from high school after a friend's knife was found in the glove compartment of Seal's car. Seal, who denied any knowledge of the knife's presence in the car while it was on school property, argues that the Board's action was irrational and violated his right to due process of law. The district court not only denied the motions for summary judgment filed by the Board and the Board's superintendent, but effectively entered summary judgment against both defendants on the issue of liability. For the reasons set forth below, we AFFIRM the judgment of the district court to the extent that it denied the Board's motion for summary judgment, REVERSE the judgment of the district court to the extent that it entered summary judgment in Seal's favor on the issue of liability, and REMAND this case for further proceedings consistent with this opinion. With regard to Superintendent Morgan's appeal, we REVERSE the judgment of the district court and remand with instructions to enter summary judgment in his favor.
I. FACTUAL BACKGROUND
2
In the fall of 1996, Seal was a junior at Powell High School in Knox County, Tennessee. On October 30, 1996, a friend of Seal's named Ray Pritchert, who was alsoa student at Powell High, became embroiled in an out-of-school dispute with another Powell High student who had begun dating Pritchert's ex-girlfriend. As a result, Pritchert started carrying around a hunting knife. The knife had a three-and-one-half inch blade and bore the inscription "Ray loves Jennie" (apparently Pritchert's ex-girlfriend). Seal knew that Pritchert had the knife, because Pritchert showed it to him that day. The next night, Seal went to pick up his girlfriend at her house, accompanied by Pritchert and another friend, David Richardson. Seal was driving his mother's car, because his own was not working. Pritchert, still carrying the knife, placed it on the floorboard of the car behind the driver's seat where Seal was sitting. When they arrived at the girlfriend's house, Seal went in to get her. Richardson, still in the car, placed the knife in the car's glove compartment. Whether Seal actually saw the knife when it was on the car's floorboard, or at any other point when the knife was in his mother's car, is not entirely clear from the record. It is, however, uncontroverted that Seal knew that Pritchert had been carrying a knife around, and that Pritchert had the knife on his person when he was in the car on October 31, 1996.
3
The following night was Friday, November 1, 1996. Seal, again driving his mother's car, drove his girlfriend and Pritchert to Powell High. All three were members of the Powell High band, and the Powell High football team had a game scheduled that night. The three had worn their band uniforms, but were informed after entering the school that they would not be required to wear their uniforms that night. They then returned to the car, which Seal had parked in the Powell High parking lot, so that they could put on the clothes they had planned to wear after changing out of their band uniforms. After changing, Seal and Pritchert went back into the school building. There, the band director, Gregory Roach, pulled Pritchert aside and asked him if he and Seal had been drinking. Pritchert said that they had not. Roach let Seal and Pritchert enter the band room, because he did not smell alcohol on Pritchert's breath.
4
About fifteen minutes later, Roach summoned Seal and Pritchert to his office. There they were joined by Charles Mashburn, the vice-principal of Powell High. Mashburn announced that four students had reported seeing the two of them drinking alcohol. Although Mashburn searched both Seal's and Pritchert's coats and instrument cases, he found no evidence to suggest that either student had been drinking or possessed alcoholic beverages. Mashburn then announced that he needed to search Seal's car for a flask, because one of the assistant band directors said he saw either Seal or Pritchert with a flask, with both students chewing gum and checking the other's breath. Seal consented to the search. Mashburn did not find a flask. He did, however, find two cigarettes in a crumpled pack in the back of the car, a bottle of amoxicillin pills (an antibiotic for which Seal had a prescription) in the console, and Pritchert's knife in the glove compartment.
5
Mashburn subsequently had Seal accompany him to his office, where he directed Seal to write out a statement about what had just occurred. Seal asked Mashburn what he should write in the statement, and Mashburn replied that Seal should explain why the knife was in the glove compartment. Seal's entire statement reads as follows:
6
Went to Roach's office because he thought or had been told that we had a flask and had been drinking, so we went and Mr. Mashburn searched the car. He found a knife and 2 cigs. The knife was there because Ray's ex-girlfriend's boyfriend had been following us around with a few of his friends so we were a little uneasy.
7
Mashburn then prepared a form Notice of Disciplinary Hearing for Long-Term Suspension From School, charging Seal with possession of a knife, possession oftobacco, and possession of "pills." On November 6, 1996, Powell High's principal, Vicki Dunaway, conducted a disciplinary hearing. After hearing from both Seal and Mashburn, she suspended Seal pending expulsion for possession of a knife. It does not appear from the record that she took any action against Seal for his possession of the two cigarettes or the antibiotic pills. Seal appealed, and on November 14, 1996, Jimmie Thacker, Jr., the Board of Education's disciplinary hearing authority, conducted an appeal hearing.
8
Seal attended this hearing, as did his parents, his girlfriend, Principal Dunaway, and David Richardson (the student who had placed the knife in the glove compartment of the car belonging to Seal's mother). At the hearing, Seal testified that he knew that Pritchert had had the knife on his person on October 31, 1996, at a time when Seal was driving Pritchert around in his mother's car, but that he had no idea that the knife was in his car on November 1, or at any other time when the car was on school property. Richardson testified that Seal had not been in his mother's car when Richardson put Pritchert's knife in the glove compartment, and that as far as Richardson could tell, Seal did not know that the knife was there. Seal's girlfriend also testified that as far as she knew, Seal did not know the knife was in the glove compartment of his mother's car.
9
On November 18, 1996, Thacker notified Seal's mother by letter that he had decided to uphold Principal Dunaway's decision to suspend Seal pending expulsion by the Board. In pertinent part, the letter read as follows:
10
Testimony and written statements presented during the hearing place the knife in the glove compartment of the car your son was driving and which he parked on the campus of Powell High School. Possession of a weapon on school property is a violation of Knox County Policy JCCC; therefore, I am upholding the principal's decision to suspend Dustin pending expulsion by the board of education.
11
The next day, Seal's mother telephoned school authorities to indicate that she and Seal wanted to appeal Thacker's decision to the Board. On November 22, 1996, Thacker notified Seal's mother by certified mail that the Board would consider the appeal of Seal's discipline for "possession of a weapon on school campus" at its next meeting.
12
The Board heard Seal's appeal on December 4, 1996. Seal was represented by counsel, who forcefully argued that Seal had no idea that the knife was in his mother's car either on November 1, 1996, or at any other time that the car was on school property. Board member Sam Anderson responded:
13
My concern was because the . . . in our record it shows possession of a knife, possession of tobacco, possession of pills. You know, it doesn't just signify a weapon. And . . . you know . . . and either [sic] of the three are justification . . . .
14
Anderson then asked Seal whether he had ever seen the knife in his car. Seal said that he had not. He admitted that he knew that Pritchert had the knife the day before November 1, 1996--off school property--but insisted that he thought Pritchert had simply taken it with him, and that it had not been left in his mother's car. Anderson then explained that
15
the problem I see is that we always have to be consistent in sending a clear message to students. Two or three years ago we were dealing with guns, guns, guns. Now, it's down to knives, knives, knives and I don't want to send a confusing message. Justin [sic], you are responsible for what's in your car and that's where I'm torn but I would have to say that you have to be held responsible as a driver for what's in your car. And that's a problem that you're going to have to deal with.
16
At another Board member's suggestion, the Board then voted unanimously to ruleon the appeal based on the record from the hearings conducted before Principal Dunaway and Disciplinary Hearing Authority Thacker. Anderson then made a motion to uphold Thacker's recommendation to expel Seal, which was approved unanimously. The entire transcript of the Board's proceedings as it relates to Seal spans three pages. In contrast, the transcript of the hearing conducted by Thacker is over fifty pages long.
17
In pertinent part, the Knox County Board of Education policy pursuant to which Seal was expelled provides that students may not "possess, handle, transmit, use or attempt to use any dangerous weapon [including knives] in school buildings or on school grounds at any time" and that students who are found to have violated the policy "shall be subject to suspension and/or expulsion of not less than one . . . year." The policy also provides that the Superintendent "shall have the authority to modify this suspension requirement on a case-by-case basis," although Superintendent Morgan has argued that it is "not clear" whether he has the power to modify a suspension or expulsion once it has been finally approved by the Board.
18
Generally, Tennessee law delegates to its local boards of education broad authority to formulate rules for student conduct and to prescribe appropriate remedies for the violation of those rules. See Tenn. Code Ann. § 49-6-4012(a). Before the 1996-97 school year, however, the Tennessee legislature directed each of its local school boards to develop and adopt, and to file annually with the state commissioner of education, written policies and procedures that would "impose swift, certain and severe disciplinary sanctions on any student" who, among other things, "brings a . . . dangerous weapon" onto school property, or "[p]ossesses a dangerous weapon" on school property. Tenn. Code Ann. § 49-6-4216(a)(2). Specifically, the legislature encouraged "[e]ach local and county board of education . . . to include within such policies and procedures a zero tolerance policy toward any student who engages in such misconduct." Tenn. Code Ann. § 49-6-4216(b).
II. PROCEDURAL BACKGROUND
19
In April of 1997, Seal's father initiated an action on Seal's behalf in the United States District Court for the Eastern District of Tennessee pursuant to 42 U.S.C. § 1983. After he reached the age of eighteen, Seal was substituted for his father as the plaintiff. Seal claimed that his expulsion violated his rights under the Equal Protection and Due Process clauses of the Fourteenth Amendment, and that the search of his mother's car by Vice-Principal Mashburn violated the Fourth Amendment. Initially, Seal named as defendants the principal, the hearing officer, and every member of the Knox County Board of Education. The district court, however, dismissed on its own motion Seal's claims against all of these defendants, concluding that the only proper party defendants were Allen Morgan, the school district's superintendent, and the Board of Education itself. None of these dismissals are at issue in these appeals.
20
Superintendent Morgan moved for summary judgment, asserting that he was entitled to qualified immunity as a matter of law. The Board of Education also moved for summary judgment. At the time these motions were filed, no discovery had been conducted. Seal did not cross-move for summary judgment. The district court concluded that both Superintendent Morgan and the Board were entitled to summary judgment on Seal's Fourth Amendment claim and Fourteenth Amendment equal protection claim, but that the Board was not entitled to summary judgment on Seal's Fourteenth Amendment due process claim. In addition, the district court concluded that Superintendent Morgan was not entitled to summary judgment on the basis of qualified immunity. The district court then set the case for trial on the issue of damages only, effectively deciding that Seal was entitled to summary judgmenton his due process claim. Superintendent Morgan appealed as of right from the denial of his motion for summary judgment on the basis of qualified immunity, and the Board sought and received permission from the district court and this court to take an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
III. ANALYSISA. The Board
21
There is no abstract federal constitutional right to process for process's sake. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983) (noting that "[p]rocess is not an end in itself."). Rather, the Fourteenth Amendment provides that one may not be deprived of life, liberty, or property without due process of law. State law determines what constitutes "property" for due process purposes. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972). It is undisputed that Seal enjoyed a property interest in his public high school education under Tennessee law. See Goss v. Lopez, 419 U.S. 565 (1975) (concluding that, in the absence of an emergency, public high school students cannot be suspended without the opportunity for a hearing). Tennessee not only provides its citizens with the right to a free public education, but requires them to attend school through the age of eighteen. See Tenn. Code Ann. § 49-6-3001.
22
Due process has two components. The first, procedural due process (often summarized as "notice and an opportunity to be heard"), is a right to a fair procedure or set of procedures before one can be deprived of property by the state. Even when it is clear that one is entitled to due process, "the question remains what process is due." Goss, 419 U.S. at 577 (citation omitted). The answer to the question of what process is due "depend[s] on appropriate accommodation of the competing interests involved." Id. at 579. In the context of disciplining public school students, the student's interest is "to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences." Id. Schools, of course, have an unquestionably powerful interest in maintaining the safety of their campuses and preserving their ability to pursue their educational mission. See id. at 580 ("Some modicum of discipline and order is essential if the educational function is to be performed. Events calling for discipline are frequent occurrences and sometimes require immediate, effective action.").
23
The district court rejected Seal's claim that he was denied procedural due process, concluding that he had received all of the process that he was due. Even though Seal, in his brief on appeal, asserts that he was "owed both the substantive and procedural components of the due process law and was denied such," he does not really argue that the Board used unfair procedures before expelling him. Rather, his complaint is with the substantive result--the ultimate decision to expel him. His argument is thus one of substantive due process, the other component of due process. In essence, Seal argues that the Board's ultimate decision was irrational in light of the facts uncovered by the procedures afforded him.
24
The Due Process Clause provides "heightened protection against government interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Government actions that burden the exercise of those fundamental rights or liberty interests are subject to strict scrutiny, and will be upheld only when they are narrowly tailored to a compelling governmental interest. See United States v. Brandon, 158 F.3d 947, 956 (6th Cir. 1998). The list of fundamental rights and liberty interests--which includes the rights to marry, to have children, to direct the educationand upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, to terminate one's pregnancy, and possibly the right to refuse unwanted lifesaving medical treatment, see Glucksberg, 521 U.S. at 720 (citing cases)--however, is short, and the Supreme Court has expressed very little interest in expanding it. See Glucksberg, 521 U.S. at 721 ("[W]e have always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.") (citation, internal quotation marks, and brackets omitted). In fact, the Supreme Court has held explicitly that the right to attend public school is not a fundamental right for the purposes of due process analysis. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33-37 (1973); see also Smith ex rel. Smith v. Severn, 129 F.3d 419, 429 (7th Cir. 1997) (rejecting due process and equal protection challenges to a school suspension, noting that "[t]he question of whether a public education is a fundamental right is not a novel one.").
25
The Supreme Court has also recognized the uniquely destructive potential of overextending substantive due process protection. See Glucksberg, 521 U.S. at 720 (observing that extending substantive due process protection to an asserted right or liberty interest "place[s] the matter outside the arena of public debate and legislative action," and reasoning that "the utmost care" must therefore be exercised before breaking new ground, "lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of this Court."). Indeed, the Court has specifically cautioned that "[j]udicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint," and that "[b]y and large, public education in our nation is committed to the control of state and local authorities." Goss, 419 U.S. at 578 (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)); see also Dunn v. Fairfield Community High Sch. Dist. No. 225, 158 F.3d 962, 966 (7th Cir. 1998) (expressing concern about the prospect of allowing the due process clause to "transform[] the federal courts into an appellate arm of the schools throughout the country").
26
Government actions that do not affect fundamental rights or liberty interests and do not involve suspect classifications will be upheld if it they are rationally related to a legitimate state interest. See Vacco v. Quill, 521 U.S. 793 (1997) (applying the rational basis standard of review to uphold New York's statutes outlawing assisted suicide, which neither infringe fundamental rights nor involve suspect classifications). In the context of school discipline, a substantive due process claim will succeed only in the "rare case" when there is "no 'rational relationship between the punishment and the offense.'" Rosa R. v. Connelly, 889 F.2d 435, 439 (2d Cir. 1989) (concluding that substantive due process did not require a student to be credited with "time served" while the student was out of school awaiting expulsion proceedings that were postponed at the student's request) (quoting Brewer v. Austin Indep. Sch. Dist., 779 F.2d 260, 264 (5th Cir.1985)); see also Wood v. Strickland, 420 U.S. 308, 326 (1975) ("It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion.").
27
That said, suspending or expelling a student for weapons possession, even if the student did not knowingly possess any weapon, would not be rationally related to any legitimate state interest. No student can use a weapon to injure another person, to disrupt school operations, or, for that matter, any other purpose if the student is totally unaware of its presence. Indeed, the entire concept of possession--in the sense of possession for which the state canlegitimately prescribe and mete out punishment--ordinarily implies knowing or conscious possession. See Wayne R. LaFave & Austin R. Scott, Jr., Substantive Criminal Law § 3.2, at 279 (1986 & Supp. 2000) (noting that "[f]or legal purposes other than criminal law--e.g., the law of finders--one may possess something without knowing of its existence, but possession in a criminal statute is usually construed to mean conscious possession") (footnotes omitted); see also United States v. Lewis, 701 F.2d 972, 973 (D.C. Cir. 1983) (Bork, J.) (observing that in order to withstand a motion for judgment of acquittal on the charge of constructive possession of an illegal firearm, the government must introduce sufficient evidence for a reasonable jury to conclude "that the possession was 'knowing'") (citation omitted); United States v. Sawyer, 294 F.2d 24, 29 (4th Cir. 1961) (noting, in a prosecution for unlawful possession of inventory for liquor bootlegging, that "possession, when charged as a crime, must be conscious"); State v. Rice, 374 A.2d 128, 132 (Conn. 1976) (concluding, in a prosecution for unlawful carrying of a firearm in a motor vehicle, that constitutional due process requires the government to prove the defendant's knowing possession of the firearm); State v. Labato, 80 A.2d 617, 622 (N.J. 1951) (noting in a criminal prosecution for possession of illegal lottery tickets, that the state legislature could legitimately abrogate the common law requirement of scienter, or evil intent, and impose criminal liability on persons who did not know that their possession of the tickets was illegal, but could not abrogate the requirement that the persons intentionally possessed the tickets).
28
We would have thought this principle so obvious that it would go without saying. The Board, however, devotes a great deal of the discussion in its briefs to arguing that "scienter" is not required by its "Zero Tolerance Policy," and that the criminal law requirement that possession of a forbidden object be knowing or conscious possession is a "technicality" that should not be "transported into school suspension cases."Frankly, we find it difficult to understand how one can argue that the requirement of conscious possession is a "technicality." Cf. Morissette v. United States, 342 U.S. 246, 250 (1952) ("The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty . . . to choose between good and evil.").
29
We asked counsel at oral argument whether the Board was seriously arguing that it could expel a student for unconsciously possessing a dangerous weapon, posing a hypothetical example involving a high-school valedictorian who has a knife planted in his backpack without his knowledge by a vindictive student. The question was whether the valedictorian would still be subject to mandatory expulsion under the Board's Zero Tolerance Policy, even if the school administrators and the Board members uniformly believed the valedictorian's explanation that the knife had been planted. Counsel for the Board answered yes. After all, counsel argued, the Board's policy requires "Zero Tolerance," and the policy does not explicitly say that the student must know he is carrying a weapon. Only after the Board's counsel sensed--correctly--that this answer was very difficult to accept did counsel backtrack, suggesting that perhaps an exception could be made for our unfortunate hypothetical valedictorian. We find it impossible to take this suggestion seriously, however, and not simply because counsel had just finished arguing the opposite. The suggestion is totally inconsistent with the Board's position in this case, which is that the Zero Tolerance Policy uniformly requires expulsion whenever its terms are violated.
30
Contrary to the Board's assertion, the criminal law requirement that possessionof contraband must be conscious or knowing is neither arcane nor unsettled. The Board's reliance on Morissette v. United States, 342 U.S. 246 (1952), is completely misplaced. Morissette was a prosecution for conversion of government property (spent bomb casings), in which the statute omitted any mention of a culpable state of mind being required for conviction. There was no question that Morissette had intentionally picked up the bomb casings, carried them away, and sold them, and that he knew that he was in possession of the casings when he carted them off. See id. at 247-48. Morissette argued, however, that he thought--mistakenly--that the bomb casings were abandoned property, "unwanted and considered of no value to the Government." Id. at 248. The district court concluded that the only intent that mattered was Morissette's intent to take the bomb casings, and instructed the jury that if it found that Morissette had intended to take the bomb casings (Morissette himself admitted that he had), it was required to convict. See id. at 249. Given essentially no choice by the district court's instructions, the jury convicted Morissette, and this court affirmed.
31
The Supreme Court reversed, refusing to infer from Congress's omission regarding culpability an affirmative intention to impose strict criminal liability and, thus, to "sweep out of all federal crimes, except when expressly preserved, the ancient requirement of a culpable state of mind." Id. at 250. Although the Court acknowledged that there might not be a "precise line" separating traditional crimes, for which intent would be presumed to be an element, and so-called public welfare or regulatory offenses, for which criminal liability without intent could be imposed, the Court refused to accept that larceny-type offenses were near the boundary. Indeed, the Court surveyed the state courts of last resort, "on whom fall the heaviest burden of interpreting criminal law in this country," and could not identify a single state court that had dispensed with the requirement of intent for larceny-type offenses. See id. at 260-61.
32
At oral argument, counsel for the Board also referred to an unspecified recent case involving the illegal possession of assault weapons, presumably Peoples Rights Organization v. City of Columbus, 152 F.3d 522 (6th Cir. 1998). Suffice it to say that Peoples Rights Organization does not support the Board's position. In that case, this court concluded that a Columbus, Ohio city ordinance prohibiting the possession of "assault weapons" imposed strict criminal liability. Id. at 534. The actual holding of Peoples Rights Organization, however, was that much of the ordinance, including its definition of "assault weapon," was unconstitutionally vague, and was thus "little more than a trap for the unwary." Id. at 535.
33
In any event, "strict liability" in the context of a weapons-possession statute at most means that the government would not need to prove that the defendant knew he was violating the law, or that the weapon possessed the attributes that make it a specific type of weapon--an assault weapon or machine gun, for example--that is likely the subject of heavy regulation or prohibition. But nothing in Peoples Rights Organization even remotely suggests that a defendant can be convicted for the unknowing possession of an item that is later revealed to be a statutory "assault weapon" or "machine gun." Cf. United States v. Staples, 511 U.S. 600, 606 (1994) (relying on Morissette, among other cases, for the proposition that because "offenses that require no mens rea" are disfavored, "some indication of congressional intent . . . is required to dispense with mens rea as an element of a crime," and refusing to interpret the federal statute criminalizing the unlicensed possession of machine guns as permitting convictions without proof that the defendant knew that the weapon hadthe specific characteristics that make it a statutory "machine gun").
34
The Board is, of course, correct when it observes that this is not a criminal case, and that its decision to expel Seal is not vulnerable to a substantive due process attack unless it is irrational. We believe, however, that the Board's Zero Tolerance Policy would surely be irrational if it subjects to punishment students who did not knowingly or consciously possess a weapon. The hypothetical case involving the planted knife is but one illustration of why.
35
Another example would be a student who surreptitiously spikes the punch bowl at a school dance with grain alcohol, with several students, none of whom having any reason to know that alcohol has been added to the punch, taking a drink. Suppose that the school has a code of conduct that mandates suspension or expulsion for any student who possesses or consumes alcohol on school property, but does not specifically provide that the alcohol must be knowingly possessed or consumed. Under the Board's reasoning, the student who spiked the punch bowl would of course be subject to suspension or expulsion, but so would any of the students who innocently drank from the punch bowl, even if the school board was completely convinced that the students had no idea that alcohol had been added to the punch. Suspending the students who drank from the punch bowl, not realizing that alcohol had been added, would not rationally advance the school's legitimate interest in preventing underage students from drinking alcohol on school premises any more than suspending a handful of students chosen at random from the school's directory.
36
A student who knowingly possesses a weapon and is caught with it can, of course, be lying when he or she claims not to have known of its existence. Simply because a student may lie about what he knew, however, does not mean that it is unnecessary to address the question of what he knew before meting out punishment. The Board, for its part, freely concedes that "the record does not reflect what the Board did or did not consider with respect to [Seal's] knowledge," but argues that "[i]n the absence of findings of fact [by the Board], it ought not be concluded that the Board failed to consider [Seal's] knowledge."
37
Well, why not? The Board's attorney has insisted that Seal's knowledge was completely irrelevant, and that the Board's Zero Tolerance Policy required Seal's expulsion regardless of whether he knew the knife was in his car. At the Board meeting during which the Board voted to expel Seal, Board Member Sam Anderson, who as far can be determined from the record is the only person having anything to do with the decision to expel Seal who even considered the question of what Seal did or did not know, suggested that it would send a "confusing message" to do anything besides expel Seal, regardless of whether Seal had any idea that the knife was in his car. Then again, he also apparently thought that Seal could have been expelled just as easily for having a prescription antibiotic in his car.
38
In the case before us, we must remember that it was the Board, not Seal, that moved for summary judgment. As the non-moving party, Seal was entitled to have all reasonable inferences drawn in his favor. See Fed. R.Civ. P. 56(c). The absence of any evidence about what the Board concluded regarding Seal's knowledge is exactly why the Board is not entitled to summary judgment. In this regard, we disagree with the dissent's characterization that "Seal admittedly knew that the knife had been placed in his car on October 31, 1996 for use as a weapon" (Dissenting Op. at __) and that "Seal's attorney conceded during oral argument that Seal had no reason to believe the knife had been removed from his car." (Dissenting Op. at __). What Seal's attorney said was that Seal did not specifically see anyone pick the knife up off the floor of the car and remove it.Seal himself testified that he assumed that when Pritchert left Seal's car, Pritchert took his knife with him.
39
Similarly, the record provides no clue as to how the Board viewed Seal's written statement to Vice-Principal Mashburn on the night in question. Was it a confession (as characterized by the dissenting opinion at page 31), or was it an after-the-fact deduction (as Seal insists) by Seal about how and when the knife must have gotten into the glove compartment. The dissent apparently concludes that the Board could rationally have decided that the statement was a confession, even though there is absolutely no indication in the record that this is what the Board actually decided.
40
We also find ourselves unable to take much comfort in the Board's frequent reminders in its brief and at oral argument that it afforded Seal a number of hearings, expending a significant amount of time in the process, before expelling him. Indeed, one could just as easily view this case as a challenge to the Board's procedures, the obvious defect in which is that they make no attempt to separate out students who knowingly possessed a weapon on school property from those who did not. Based on the evidence of record, it appears that nothing that Seal could have said at any of those hearings would have made one bit of difference. Because there was no dispute that the knife was in Seal's car when on school property, the Board insists that it was required under its Zero Tolerance Policy to expel Seal, whether or not he had any idea that the knife was in his car. We are prepared to take the Board at its word.
41
A school board can, of course, disbelieve the student's explanation and conclude that the student knowingly violated school policies. If that occurs, due process would be satisfied as long as the procedures afforded the student were constitutionally adequate and the conclusion was rational. The Board argues that the district court "erred by substituting its own view of the facts for that of the Hearing Officer and the Board of Education." Again, this begs the question--which nothing in the record answers--of what the views of the hearing officer and the Board were. Did the Board expel him because it disbelieved Seal's explanation, did it expel him despite believing his explanation completely, or did it expel him without deciding the issue, in the belief that Seal's knowledge was simply irrelevant to the decision? Of these possibilities, the first one would have been permissible if rationally supported by the record, but the other two would not have been.
42
It may be correct, as the Board argues, that as a matter of "state law, case law or its own rules," the Board is not required to make formal findings of fact in expulsion cases. As a matter of federal constitutional law, however, the Board may not expel students from school arbitrarily or irrationally. To accept the Board's argument would be to allow it to effectively insulate itself even from rational basis review, as long as the decision the Board reached might have been rational. What is at issue in the present case, however, is not whether the Board could have made a decision that would have been rationally related to a legitimate state purpose, but whether it actually did so.
43
The fact that we must defer to the Board's rational decisions in school discipline cases does not mean that we must, or should, rationalize away its irrational decisions. And when it is not clear that the Board's decision was rational, because it is impossible to conscientiously determine from the record what the Board's actual decision was, then the Board, as well as other school boards with similar "Zero Tolerance" policies, should not be entitled to summary judgment in civil rights actions arising from their decisions to impose long-term suspensions and expulsions.
44
On the basis of the record presented, a reasonable trier of fact could conclude that Seal was expelled for a reason that would have to be considered irrational. Wetherefore conclude that the district court correctly denied the Board's motion for summary judgment.
45
The district court, however, did more than deny the Board's motion for summary judgment. By ordering that the case "proceed to trial by jury . . . only to determine the amount of damages to be awarded" to Seal, the district court effectively entered summary judgment against the Board on the issue of liability. It did this even though Seal had not moved for summary judgment. In appropriate circumstances, we acknowledge that a district court may enter summary judgment against the moving party in the absence of a cross-motion. See, e.g., Rogers v. Management Tech., Inc., 123 F.3d 34, 38 (1st Cir. 1997) (explaining that "[t]he major limitation on this rule is that 'the losing party' must be 'on notice that she had to come forward with all of her evidence.'") (citation omitted); Martinson v. Massachusetts Bay Ins. Co., 947 F. Supp. 124, 127 (S.D.N.Y. 1996) (entering summary judgment in favor of the non-moving defendant and against the plaintiffs, who had moved for summary judgment); see also 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720, at 346-53 (3d ed. 1998 & Supp. 2000).
46
In the present case, however, we do not believe that this disposition was appropriate. As noted above, one cannot determine conclusively from the record in its present state why Seal was expelled. We do not believe that a reasonable factfinder would be compelled to find that the Board expelled him for an irrational reason, i.e., without making any determination of whether Seal consciously possessed the knife, or despite believing Seal's explanation that he did not. The Board might conceivably be able to show that it expelled Seal for a reason that would have to be accepted as rational. Accordingly, we will affirm the judgment of the district court to the extent that it denied the Board's motion for summary judgment, reverse the judgment of the district court to the extent that it entered summary judgment against the Board on the issue of liability, and remand the case for further proceedings.
47
On remand, the district court could, as an exercise of its discretion, permit discovery and allow the Board to renew its motion for summary judgment, supplemented by appropriate affidavits or other evidence. See, e.g., Whitford v. Boglino, 63 F.3d 527, 530 (7th Cir.1995) (noting that a district court has the discretion to entertain a successive or renewed summary judgment motion, and that doing so is particularly appropriate when the factual record upon which summary judgment is sought has been expanded). The district court's other option would be to conduct a trial on the issues of liability and damages. At trial, the determination of whether the Board's action was rationally related to a legitimate state interest is one of law and would be made by the court. The questions of what the Board did, and why, would be questions of fact for the jury. See Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 591 (3d Cir. 1998) (noting that the question of whether a governmental action is rationally related to a legitimate state interest is properly decided by the court, although questions regarding the state officials' motivation, if the subject of a genuine dispute of fact, are for the jury).
B. Superintendent Morgan
48
The doctrine of qualified immunity generally shields government officials from civil liability for performing discretionary functions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Malley v. Briggs, 475 U.S. 335, 341 (1986)("As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law."). In determining whether an official is entitled to qualified immunity, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Daughenbaugh v. Tiffin, 150 F.3d 594, 602-03 (6th Cir. 1998) (citation and internal quotation marks omitted).
49
As an abstract matter, the right of public school students not to be expelled arbitrarily or irrationally has been clearly established since at least the Supreme Court's decision in Goss v. Lopez, 419 U.S. 565 (1975), which held that long-term suspensions and expulsions must comport with minimal standards of due process. More concretely, however, we do not believe that the contours of that right were sufficiently clear to put a reasonable school superintendent on notice in 1996 that a school disciplinary policy's lack of a conscious-possession requirement could produce irrational expulsions and thus violate the legal rights of students expelled under the policy. For this reason, we will reverse the judgment of the district court to the extent that it denied Superintendent Morgan's motion for summary judgment, and remand with instructions to enter summary judgment in his favor.
50
For the future, however, we expect that our opinion today will clarify the contours of a student's right not to be expelled for truly unknowing or unconscious possession of a forbidden object. See Daughenbaugh, 150 F.3d at 603 (noting that an on-point appellate court decision can put future defendants on notice that certain specific types of conduct will violate clearly established legal rights). Because we have concluded that Superintendent Morgan was entitled to summary judgment on the basis of qualified immunity, we need not and do not address the question--which Superintendent Morgan's counsel conceded at oral argument was "not clear"--of whether he had the authority to disturb the decision to expel Seal once it was finally made by the Board.
IV. CONCLUSION
51
We would not for a minute minimize the Board's obligation to maintain the safety of its campuses, and its right to mete out appropriate discipline (including expulsion) to students who commit serious violations of its rules. But we cannot accept the Board's argument that because safety is important, and because it is often difficult to determine a student's state of mind, that it need not make any attempt to ascertain whether a student accused of carrying a weapon knew that he was in possession of the weapon before expelling him.
52
The decision to expel a student from school is a weighty one, carrying with it serious consequences for the student. See Goss, 419 U.S. at 576 ("[E]ducation is perhaps the most important function of state and local governments, and the total exclusion from the educational process for more than a trivial period . . . is a serious event in the life of the suspended child.") (internal quotation marks and citation omitted). We understand full well that the decision not to expel a potentially dangerous student also carries very serious potential consequences for other students and teachers. Nevertheless, the Board may not absolve itself of its obligation, legal and moral, to determine whether students intentionally committed the acts for which their expulsions are sought by hiding behind a Zero Tolerance Policy that purports to make the students' knowledge a non-issue. We are also not impressed by the Board's argument that if it did not apply its Zero Tolerance Policy ruthlessly, and without regard for whether students accused of possessing a forbidden object knowingly possessed the object, this would send an inconsistent message to its students. Consistency is not a substitute for rationality.
53
For the reasons set forth above, we AFFIRM the judgment of the district court to the extent that it denied the Board's motion for summary judgment, REVERSE the judgment of the district court to the extent that it entered summary judgment in Seal's favor on the issue of liability, and REMAND this case for further proceedings consistent with this opinion. With regard to Superintendent Morgan's appeal, we REVERSE the judgment of the district court and remand with instructions to enter summary judgment in his favor.
54
SUHRHEINRICH, Circuit Judge, dissenting in part.
55
As the majority acknowledges, the right to attend a public school is not a fundamental right for purposes of a due process analysis. A school's disciplinary decision will therefore survive a constitutional substantive due process challenge if it is rationally related to a legitimate government purpose. See Washington v. Glucksberg, 521 U.S. 702, 728 (1997). Furthermore, as the majority notes, the Supreme Court has specifically cautioned that "[j]udicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint," and that "[b]y and large, public education in our nation is committed to the control of state and local authorities." Goss v. Lopez, 419 U.S. 565, 578 (1975) (quotation omitted). Thus,
56
[i]t is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion. Public high school students do have substantive and procedural rights while at school. But § 1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations. The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and § 1983 was not intended to be a vehicle for federal-court corrections of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees.
57
Wood v. Strickland, 420 U.S. 308, 326 (1975) (emphasis added). The majority ignores these principles in holding that the Board acted irrationally in expelling Seal.
I.
58
First of all, the Board's decision was rational because the zero tolerance policy does not contain an express scienter requirement. By holding that "[s]uspending or expelling a student for possessing a weapon, even if that student did not knowingly possess the weapon, would not be rationally related to any state interest," the majority has improperly substituted its interpretation of the regulation for the School Board's. As Wood indicates, however, the Board's construction of its regulations is entitled to deference. See id.
59
Nor is it irrational to interpret the zero tolerance policy as the Board did. In addition to their duty to educate, schools act in loco parentis. Given this enormous responsibility, and the potentially devastating consequences of weapons on campus, a strict weapons policy is rationally related to a legitimate government interest - protecting our children from the very real threat of violence. The Columbine High School massacre and other school shootings have, unfortunately, become part of the national consciousness. The Knox County schools themselves are not immune from the threat of violence. Their disciplinary records show twenty injuries as a result of knives and sharp weapons in the three years preceding Seal's expulsion. Given this national and local landscape of violence, it is perfectly rational to establisha strict zero tolerance policy to ensure students' safety.
60
The Supreme Court has recognized the growing concern over school violence and the "substantial interest" of schools in maintaining discipline on campus. See New Jersey v. T.L.O., 469 U.S. 325, 339 (1985) ("Maintaining order in the classroom has never been easy, but in recent years, school disorder often has taken a particularly ugly form: drug use and violent crime in the schools have become major social problems."); see also Knox Cty. Educ. Ass'n v. Knox Cty. Bd. of Educ., 158 F.3d 361, 378-79 n.23 (6th Cir. 1998) ("Indeed, we do not have to search beyond recent local and national media headlines to understand that schools are, unfortunately, too often turned into places in which children are subjected to grave and even life-threatening dangers. . . ."). The court system should not further hamstring the process of education by substituting its judgment on matters relating to the safety of students for that of school administrators and school board members.1
61
Indeed, the Board implemented the zero tolerance policy in recognition of its statutory duty to provide safe schools. The Tennessee Constitution empowers the General Assembly to "provide for the maintenance, support and eligibility standards of a system of free public schools." Tenn. Const. art. XI, § 12. The General Assembly's authority concerning public education is in turn delegated to local boards of education which are vested with the power to dismiss students when the progress or efficiency of the schools makes such action necessary. See Tenn. Code Ann. § 49-2-203(a)(8). Tennessee also delegates broad authority to its local boards of education to formulate a code for student conduct and to prescribe remedies for the violation of those rules. See Tenn. Code Ann. § 49-6-4012(a).
62
The General Assembly seeks "to secure a safe environment in which the education of the students of Tennessee may occur." Tenn. Code Ann. § 49-6-4203(a),(b). In 1996, the General Assembly reacted to the growing incidents of school violence by amending the School Security Act to encourage zero tolerance policies for students who possess dangerous weapons on campus. See Tenn. Code Ann. § 49-6-4216(b). The statute now requires all boards of education to develop such policies:
63
(a) Prior to commencement of fall classes for the 1996-1997 school year, and annually thereafter, each local and county board of educaiton shall file with the commissioner of education written policies and procedures developed and adopted by the board:
64
(1) To ensure safe and secure learning environments free of drugs, drug paraphernalia, violence and dangerous weapons; and
65
(2) To impose swift, certain and severe disciplinary sanctions on any student
66
(A) Who brings a drug, drug paraphernalia or a dangerous weapon onto a school bus, onto school property or to any school event or activity; or
67
(B) Who, while on the school bus, school property or while attending any school event or activity:
68
(i) Is under the influence of a drug; or (ii) Possesses a drug, drug paraphernalia or dangerous weapon; or
69
(iii) Assaults or threatens to assault a teacher, student or other person.
70
(b) Each local and county board of education is encouraged to include within such policies and procedures a zero tolerance policy toward any student who engages in such misconduct . . . .
71
Tenn. Code Ann. § 49-6-4216 (1999) (emphasis added).
72
Let us remember that we are talking about dangerous weapons here, which the zero tolerance policy defined to include, inter alia, "any firearm, explosive, explosive weapon, Bowie knife, hawk bill knife, ice pick dagger, slingshot, switchblade knife, black jack knuckles . . . . " All the defined weapons, including the weapon possessed by Seal, have the potential to kill or seriously injure a fellow student. In fact, Seal admitted that the knife was placed in his automobile for use in a fight. As the General Assembly itself has recognized, children are entitled to a safe learning environment. Given the alarming increase in school violence nationwide, the Board's zero tolerance policy, enacted as part of a comprehensive network of state and local control over the schools, is not only rational but prudent.
73
The majority attempts to bolster its position with the hypothetical of the high-school valedictorian who, unknowingly, has a knife planted in his backpack by a vindictive student. The Board indicated at oral argument that an exception could be made to the zero tolerance policy in that situation. The majority seizes upon this statement as being "totally inconsistent with the Board's position in this case, which is that the Zero Tolerance Policy uniformly requires expulsion whenever its terms are violated." (Majority Op. at 576-77).
74
The majority's hypothetical assumes that the zero tolerance policy affords no discretion to the school administrators. Ironically, the majority would read a scienter requirement into the policy and read discretion out of the policy. Certainly, if at any stage of the proceedings, Seal or the mythical valedictorian provided a reasonable, believable, explanation for the weapon's presence that would end the matter. Furthermore, the analogy is inapt.2 Here, unlike the unwitting valedictorian, Seal admittedly knew that the knife had been placed in his car on October 31, 1996 for use as a weapon.3 The Board, as part of its discretionary authority, was therefore free to infer from the facts of the case sub judice that Seal also knew that the knife was in his car the next night, because Seal knew that Pritchert began carrying a hunting knife as a result of a dispute with another PHS student and Seal drove Pritchert to PHS. In light of the evidence and the Board's legitimate interest in preventing school violence, it was not irrational for the Board to expel Seal for possessing a knife in his car because it is undisputed that the knife was there on November 1, 1996.
75
The majority's ruling, in effect, means that there can be no such thing as zero tolerance. School boards in this circuit will, from today forward, have to include scienter a requirement in any such policy, even if the state does not impose such a condition on the enforcement of a weapons or drug policy.
II.
76
Even if we assume that scienter is required, the majority's criticism of the Board's ruling is faulty because scienter can be imputed from the fact of possession. Because Seal undisputedly possessed the knife, the Board could reasonably presume that Seal knew it was in his car. At this point, the burden of persuasion shifted to Seal to explain why he did not know the knife was there. Seal, and the hypothetical valedictorian were, after all, in the best position to explain the situation. The administrative due process hearings gave him the opportunity to rebut the presumption of scienter. Seal failed to meet that burden here. Seal offered no facts to show that he knew the knife had been removed from his car after it was placed there on October 31, 1996. Thus, the Board's decision was rational because there was proof of scienter and a lack of evidence to rebut that presumption. Furthermore, this burden of persuasion makes the policy itself rationally related to the goal of preventing school violence because it affords the student an opportunity to rebut the presumption of scienter, thereby guaranteeing that the zero tolerance policy is reasonably applied. For this reason, there was no substantive due process violation.
III.
77
The Board's decision is also rational because there is ample proof of scienter here. There is no question that the knife was in Seal's car when it was parked on the PHS parking lot on November 1, 1996. Seal admitted to the Board, and his attorney conceded at oral argument, that he knew the knife was in the car a few days prior to its discovery. He acquiesced to its presence in the car at that time. Seal also knew on October 31, 1996, that Pritchert intended to use the knife if threatened by his ex-girlfriend's boyfriend. Seal's attorney conceded during oral argument that Seal had no reason to believe the knife had been removed from the car4. Seal also admitted in his confession that he knew the knife had been in the car for protection because he and Pritchert felt "uneasy." It was certainly plausible that the knife would be needed for protection at PHS on November 1, 1996, as well since the conflict that made them feel uneasy involved a fellow PHS student.
78
Most significantly, in his signed confession5 taken on November 1, 1996, Seal did not state that he was unaware of the knife's presence. Rather, he stated that "the knife was there because [deleted] ex girlfriend's boyfriend had been following us around with a few of his friends so wewere a little uneasy." From this statement, with its significant omission, made on the night in question and not after the fact, the Board could easily have concluded that Seal knew the knife was in the car on November 1, 1996. Given record evidence to support the Board's ruling, it is improper for this court to second-guess the Board's decision. The only statement to the contrary is Seal's statement made after he obtained an attorney. Seal offered no evidence to support that statement, however. This is an insufficient basis to overturn the Board's decision.
IV.
79
The real problem here is that the majority does not approve of the manner in which the Board made its decision. Presumably the majority would be satisfied if the Board had explicitly stated that it did not believe Seal's after-the-fact denial, because: (1) Seal knew as of October 30, 1996, that his friend Pritchert was carrying a knife for protection because of a dispute with another PHS student; (2) Seal acquiesced to the presence of the knife in his car on October 31, 1996; (3) Seal drove Pritchert in his car to PHS on November 1, 1996; (4) Seal admitted in his signed confession taken that night that the knife was in the car because Seal and Pritchert felt "uneasy"; (5) it is entirely plausible that Seal and Pritchert would continue to feel uneasy on November 1, 1996, while attending a PHS function; (6) Seal did not state until after the fact that he did not know the knife was in the car on November 1, 1996; (7) there are no facts to support Seal's statement of lack of knowledge; and (8) because there are no facts to back his conclusion, the Board does not believe his statement. Had the Board's ruling followed this blueprint, we would not be remanding the matter to the district court for further proceedings. However, since the majority plans to remand for further proceedings, I think the only proper recourse in this case is to refer the matter back to the Board for more express fact findings on the issue of scienter or to simply allow the Board to present an affidavit concerning its findings. If the Board states that it disbelieved Seal, then there can be no trial, and judgment must be entered for the Board.
80
This case has far-reaching implications for school boards. School boards in this circuit should be on notice that, in attempting to implement weapons or drug policies, they must find scienter, and articulate those findings in a way that resembles the rulings of a federal district judge.
81
In any event, I am not prepared to hold school boards to the same standards as federal district courts. The majority has ignored the Supreme Court's admonitions in Goss and Wood that federal courts play a very limited role in public education, which is most properly left in the competent hands of state and local authorities.
82
For all of the foregoing reasons, I respectfully DISSENT as to III.A.
Notes:
1
The majority argues that "[n]o student can use a weapon to injure another person, to disrupt school operations, or, for that matter, any other purpose if the student is totally unaware of its presence." (Maj. Op. at 12.) Aside from the fact that the majority is again improperly substituting its assessments for those of the Board's, I disagree with this proposition. Even if the student who brought the weapon onto school property was unaware of its presence, another student could find the weapon and use it to cause injury. For example, even if the Board believed that Seal did not know the weapon was in the car on November 1, 1996, Pritchert knew it was there and presumably would have used it to injure another student had he felt threatened.
2
A more apt comparison would be: "Friend hands knife to valedictorian to carry for protection. Valedictorian puts knife in his pocket. Unbeknownst to valedictorian, friend later moves knife to valedictorian's backpack, which valedictorian carries to school."
Like Seal, this valedictorian knew at some point that he had the knife on his person. The majority's comparison of Seal to the completely clueless valedictorian is a false analogy.
3
The majority disagrees with this characterization. Yet, the majority does not, and cannot, dispute that Seal knew the knife was in the car on October 31, 1996 or that Seal explicitly stated that the knife was there because he and Pritchert felt "uneasy." What other possible conclusion can be drawn but that they brought the knife to protect themselves should a fight with Pritcher's ex-girlfriend's boyfriend materialize?
4
The majority also disagrees with this characterization. This characterization was drawn from the following statements and colloquy at oral argument:
[Seal's Attorney]: The record has shown that Mr. Seal did know on October 30th [sic] that there was a knife in his mother's car. The knife belonged to Ray Pritchert, was placed in the car by Mr. Pritchert because of what had been going on with some other individuals at the school over this girl [indecipherable].
. . . .
[Judge Suhrheinrich]: So he knew the knife was in his car. What difference did it matter that he didn't know the exact location of the knife?
Seal's Attorney]: Well your Honor, I don't think he is saying that he knew the knife was in his car. It was not his knife.
[Judge Suhrheinrich]: No, I appreciate -- but I think there is certainly enough in there that he knew that knife was there and he never saw anybody take it out.
[Seal's Attorney]: He didn't see anybody take it out, but I think that what he would say was that he assumed it was taken out because it was not his knife.
. . . .
[Judge Suhrheinrich]: But what bothers me in that he knew it was in the car and he never saw it being taken out.
[Seal's Attorney]: Yes your Honor.
(Emphasis added).
5
The majority rejects this characterization as well, preferring to refer to the November 1 statement as an "after-the-fact deduction." "After-the-fact" to what? The statement was given as an explanation for the knife's presence on school property on November 1, 1996. It was certainly not an "after-the-fact" deduction of the November l event, since Seal provided the statement that very evening at vice-principal Mashburn's behest. It is by no means a stretch to characterize the statement as a confession, because Seal acknowledged the weapon's presence.
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